been questioned by very high authority, upon the ground that physic and salves were in use before licensed physicians and surgeons existed.(p)

And it seems now to be settled that it makes no difference whether the party be a regular physician or surgeon or not. Thus it has been held that if a person bonâ fide and honestly exercising his best skill to cure a patient, perform an operation, which causes the death of the patient, it makes no difference whether such person be a regular surgeon or not, nor whether he has had a regular education or not. Upon an indictment for manslaughter by causing the death by thrusting a round piece of ivory against the rectum, and thereby making a wound through the rectum, it appeared that upon examination of the body after death, a small hole was discovered perforated through the rectum. The prisoner had attended the deceased, but there was no evidence to show how the wound had been caused, and questions were put in order to show that it might have been the result of natural causes, and it was proposed to show that the prisoner had had a regular medical education, and that a great number of cases had been successfully treated by him. Hullock, B. (stopping the case), "This is an indictment for manslaughter, and I am really afraid to let the case go on, lest an idea should be entertained that a man's practice may be questioned whenever an operation fails. In this case there is no evidence of the mode in which this operation was performed; and even assuming for the moment that it caused the death of the deceased, I am not aware of any law which says that this party can be found guilty of manslaughter. It is my opinion that it makes no difference whether the party be a regular or irregular surgeon; indeed, in remote parts of the country, many persons would be left to die, if irregular surgeons were not allowed to practice. There is no doubt that there may be cases where both regular and irregular surgeons might be liable to an indictment, as there might be cases where, from the manner of the operation, even malice might be inferred. All that the law-books(q) have said has been read to you, but they do not state any decisions, and their silence in this respect goes to show what the uniform opinion of lawyers has been upon this subject. As to what is said by Lord Coke, he merely details an authority, a very old one, without expressing either approbation or disapprobation; however, we find that Lord Hale has laid down what is the law on this subject. That is copied by Mr. J. Blackstone, and no book in the law goes any further. It may be that a person legally qualified to practice as a surgeon may be liable to penalties, but surely he cannot be liable to an indictment for felony. It is quite clear you may recover damages against a medical man for want of skill; but as my Lord Hale(r) says, “God forbid that any mischance *689] of this kind should make a person guilty of murder or *manslaughter." Such is the opinion of one of the greatest judges that ever adorned the bench of this country; and his proposition amounts to this, that if a person, bonâ fide and honestly exercising his best skill to cure a patient, performs an operation. which causes the patient's death, he is not guilty of manslaughter. In the present case no evidence has been given respecting the operation itself. It might have been performed with the most proper instrument and in the most proper manner, and yet might have failed. Mr. L. has himself told us that he performed an operation, the propriety of which seems to have been a sort of vexata quæstio among the medical profession; but still it would be most dangerous for it to get abroad, that if an operation performed either by a licensed or unlicensed surgeon should fail, that surgeon would be liable to be prosecuted for manslaughter."(s)

Where a person, who had been in the habit of acting as a man-midwife, tore away part of the prolapsed uterus, supposing it to be a part of the placenta, it was held is guilty of manslaughter. He may have no evil intention, and may have a good one; but he has no right to hazard the consequence in a case where medical assistance may be obtained; if he does so, it is at his peril. It is immaterial whether the person administering the medicine prepares it or gets it from another." This case was doubted by Mr. Alley, in Rex v. St. John Long, 4 C. & P. 434 (19 E. C. L. R.), and it seems inconsistent with the subsequent cases. C. S. G.

(p) 1 Hale 429.

(g) 4 Bl. Com. 197; 1 Hale P. C. 429; 4 Inst. 251.

(r) Hale P. C. 429.

(8) Rex v. Van Butchell, 3 C. & P. 629 (14 E. C. L. R.), coram Hullock, B., and Littledale, J. Verdict, not guilty.

that he was not indictable for manslaughter by thus causing the death, unless he was guilty of criminal misconduct, arising either from the grossest ignorance, or the most criminal inattention. The prisoner, who was indicted for the murder of Mrs. D., was not a regularly educated accoucheur, but was a person who had been in the habit of acting as a man-midwife among the lower classes of people. Mrs. D. had been delivered by the prisoner on a Friday, and on the Sunday following an unusual appearance took place, which the medical witnesses stated to be a prolapsus uteri; this the prisoner mistook for a remaining part of the placenta, which had not been brought away at the time of the delivery: he attempted to bring away the prolapsed uterus by force, and in so doing he lacerated the uterus, and tore asunder the mesenteric artery; this caused the death of the patient; and it appeared, from the testimony of a number of medical witnesses, that there must have been great want of anatomical knowledge in the prisoner. It was proved that the prisoner had safely delivered many other women. Lord Ellenborough, C. J.: There has not been a particle of evidence adduced which goes to convict the prisoner of the crime of murder, but still it is for you to consider whether the evidence goes as far as to make out a case of manslaughter. To substantiate that charge, the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance, or the most criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct, which is essential to make out a case of manslaughter. It does not appear that in this case there was any want of attention on his part; and from the evidence of the witnesses on his behalf, it appears that he had delivered many women at different times, and from this he must have had some degree of skill." (t)

*Upon an indictment for manslaughter by feloniously rubbing Miss C. [*690 with a dangerous liquid, it appeared that two of the family had died of consumption, but that Miss C. had enjoyed good health. Mrs. C. having heard that the prisoner had said that unless Miss C. put herself under his care she would die of consumption in two or three months, placed her under his course of treatment. The prisoner rubbed a mixture on different parts of the bodies of his patients, and this had been applied to Miss C. on the 3d of August by the prisoner's servant, and by his direction. On Friday, the 13th of August, a witness went with Miss C. to the prisoner's, respecting a wound on her back, and Miss C. then inhaled; on the next day the prisoner examined her back, and said it was in a beautiful state, and that he would give one hundred guineas if he could produce a similar wound on the persons of some of his patients. The prisoner's attention being directed to a part of the wound which was of a darker appearance, he stated that this proceeded from the inhaling, and that unless those appearances were produced he could expect no beneficial result. The wound at this time was about five or six inches square. Miss C. was suffering much from sickness, and the prisoner said that it was of no consequence, but, on the contrary, a benefit; and that those symptoms, combined with the wound, were a proof that his system was taking due effect. On Sunday, the 15th, Miss C. having got worse, the prisoner said that in two or three days she would be better in health than she had ever been in her life, and spoke very confidently that the result of his system would prolong her life, and that no person could be doing better than she was. At this interview the wound, which had extended, was shown to the prisoner. At the same time he was desired to do something to stop the sickness, but he said he had a remedy in his pocket, which he would not apply, as he knew the sickness had been beneficial: and he also stated on that day, and on Monday, the 16th, that Miss C. was doing uncommonly well. On Tuesday, the 17th, she died. An eminent surgeon proved that on the Monday her back was extensively inflamed as large as a plate, and in the centre was a spot, as large as the palm of the hand, black, and dead, and in a mortified state, and he thought that some very powerfully stimulating liniment had been applied to her back; that applying a lotion of a strength capable of causing the appearance he saw, to a

(1) Rex v. Williamson, 3 C. & P. 635 (14 E. C. L. R.). In addition to the facts above stated, it was proved that the prisoner had attended the deceased in seven previous confinements with perfect success, and that the deceased wished him to attend her in her last confinement. See 4 C. & P. 407 (19 E. C. L. R.), note (a).

person of the age and constitution of the deceased, if in perfect health, was likely to damage the constitution and produce disease and danger. The appearances on the lack were quite sufficient to account for her death. On the most careful examination of the body, after death, no latent disease or seeds of disease were discovered. It was submitted, for the defence, that, in point of law this was nothing like a case of manslaughter, and 1 Hale P. C. 429, 4 Bl. C. b. 4. c. 14, and Rex v. Van Butchell, (u) were cited and relied on. Park, J. A. J., "I am in this difficulty; I have an opinion, and my learned Brother differs from me; I must, therefore, let the case go to the jury.' Garrow, B., "In Rex v. Van Butchell the learned judge had very good ground to stop the case, as there was no evidence as to what had been done. I *make no distinction between the case of a person, who con

*691] sults the most eminent physician, and the cases of those whose necessities or whose folly may carry them into any other quarter. It matters not whether the individual consulted be the president of the College of Physicians, the president of the College of Surgeons, or the humblest bone-setter of the village; but be it one or the other, he ought to bring into the case ordinary care, skill, and diligence. Why is it that we convict in cases of death by driving carriages? Because the parties are bound to have skill, care, and caution. I am of opinion that, if a person, who has ever so much or so little skill, sets my leg, and does it as well as he can, and does it badly, he is excused; but suppose the person comes drunk, and gives me a tumbler full of laudanum, and sends me into the other world, is it not manslaughter? And why is that? Because I have a right to have reasonable care and caution." Park, J., in summing up, "The learned counsel truly stated in the outset, that whether the party be licensed or unlicensed is of no consequence, except in this respect that he may be subject to pecuniary penalties for acting contrary to charters or Acts of Parliament; but it cannot affect him here." (After citing 1 Hale 429, as an authority in point, the learned judge proceeded), "I agree with my learned Brother, that what is called mala praxis in a medical person is a misdemeanor; but that depends upon whether the practice he has used is so bad that everybody will see that it is mala praxis. The case at Lancaster(v) differs from this case. I have communicated with Tindal, C. J., who tried that case, and he informed me that the man was a blacksmith, and was drunk, and so completely ignorant of the proper steps, that he totally neglected what was absolutely necessary after the birth of the child. That certainly was one of the most outrageous cases that ever came into a court of justice. I would rather use the words of Lord Ellenborough in Rex v. Williamson." (w) (His Lordship read them.) "And this is important here, for though he be not licensed, yet experience may teach a man sufficient; and the question for you will be, whether the experience this individual acquired does not negative the supposition of any gross ignorance or criminal inattention?" (After setting the authority of Hale P. C. 429, against the dictum of Lord Coke, 4 Inst. 251, and citing the observations of Hullock, B., in Rex v. Van Butchell(x) with approbation, his Lordship proceeded), "The refusal by the prisoner to apply the medicines in order to stop the sickness, although he had it with him, would, in my opinion, if wickedly done, amount to murder; but he mentioned a case in which sickness had been beneficial. Undoubtedly the result proves a very erroneous opinion on his part, and it seems singular that the restlessness and other circumstances did not awaken apprehension, and call for further measures, but the question again recurs, whether this was an erroneous judgment of a person, who was of general competency, though he unfortunately failed in the particular instance." "With respect to the application of the mixture, if he commanded the servant to *692] use it, it is the same as if he used it himself. Perhaps *from the evidence you will think that the act caused the death; but still the question recurs, as to whether it was done either from gross ignorance or criminal inattention. No one doubts Mr. B.'s skill, but that is not quite the question; it is not whether the act done is the thing that a person of Mr. B.'s great skill would do, but whether it shows such total and gross ignorance in the person who did it, as must necessarily produce such a result. On the one hand, we must be careful and most anxious to

(u) Supra, p. 689.
(w) Supra, p. 689.

(v) Probably Ferguson's case, post, p. 696.
(x) Ibid.

prevent people from tampering in physic, so as to trifle with the life of man; and, on the other, we must take care not to charge criminally a person who is of general skill, because he has been unfortunate in a particular case." "If you think there was gross ignorance or scandalous inattention in the conduct of the prisoner, then you will find him guilty; if you do not think so, then your verdict will be otherwise."(y)

The important consideration in these cases is, whether in reference to the remedy the party has used, he has acted with a due degree of caution, or, on the contrary, has acted with gross and improper rashness and want of caution. Upon a similar indictment against the same person for causing the death of Mrs. L. it appeared that she put herself under his care on the 6th of October, at which time she was in very good health, to be cured of a complaint she had in her throat. On the 3d she had applied a small blister to her throat, but the wound occasioned by it was nearly well on the 6th. On the 7th, 8th, 9th, and 10th she went to the prisoner's, and on the evening of the 10th complained to her husband of a violent burning across her chest, in consequence of which he looked at it, and found a great redness across her bosom, darker in the centre than at the other parts; she also complained of great chilness, and shivered with cold, and passed a very restless and uncomfortable night. On the 11th she was very unwell all the day, the redness was more vivid, and the spot in the centre darker, round the edges white and puffed up, and there was a dirty white discharge from the centre. Cabbage leaves had been applied. On the 12th the redness on the breast and chest was, if anything, greater. In consequence of the symptoms, the husband went to the prisoner, who asked why Mrs. L. had not come to inhale, and go on with the rubbing; the husband replied it was impossible, she was so ill; she had been constantly unwell since the night of the 10th, and was suffering a great deal of pain and sickness: the prisoner said it would soon go off, it was generally the case. He was told of the shivering and chilness, and that some hot wine and water had been given to relieve her; he said hot brandy and water would have been better, and to put her head under the bed clothes. He was told that her chest and breast looked very red and very bad; he said that was generally the case in the first instance, but it would go off as she got better, and that the husband need not be uneasy about it, as there was no fear or danger. In the course of the day the cabbage leaves had been removed, and a dressing of spermaceti ointment put on the chest instead. In the evening the prisoner came and *saw Mrs. L. and looked at her breast, and observing the dressing said those [*693 greasy plasters had no business there, and she ought to have continued the cabbage leaves. She said she could not bear the pain of keeping them on. then took off his great coat and said that he would rub it out, and turned up the cuff of his coat as if for the purpose of doing so. She exclaimed very much with fright, and expressed her wonder that he should think of rubbing in the state her breast was in. She asked if there was no way of keeping the leaf on without touching the breast; and he asked her what she wished; she replied to be healed. He said it would never heal with those greasy plasters; that was not the way in which he healed sores. He then asked for a towel, and began dabbing it on the breast, particularly in the centre, where the discharge came from. He said that old linen was the best thing to heal a wound of that kind. She said her skin and flesh were very healthy, and always healed immediately with the simple dressing she had used. He said old linen was better, but she might use the dressing if she liked it, he saw no objection, and, when it skinned over he would rub it again. He never saw her afterwards; she died on the 8th of November. A surgeon proved that on the 12th of October he found a very extensive wound covering the whole anterior part of the chest, which, in his opinion, might be produced by any strong acid the skin was destroyed; the centre of the wound was darker, and in a higher state of inflammation than the other parts; he considered the wound very dangerous to life when he first saw it; the centre spot and the upper part became gangrenous in about a week; and in his opinion Mrs. L. died of the wound, and (y) Rex v. St. John Long, 4 C. & P. 398 (19 E. C. L. R.). Verdict, guilty. For the defence twenty-nine witnesses were called, who had been patients of the prisoner, and were satisfied with his skill and diligence.

He

according to his judgment it was not necessary or proper to produce such a wound to prevent any difficulty in swallowing, and he did not know of any disease, in which the production of such a wound would be necessary or proper. The body was internally and externally in perfect health, except a little narrowness at the entrance of the œsophagus. Another surgeon stated that he thought that a man of commin prudence or skill would not have applied a liquid which in two days would produce such extensive inflammation; though all irritating external applications sometimes exceeded the expectations of the medical attendant; but he should say that such conduct was a proof of rashness and of ignorance. It was submitted that this was not manslaughter, but homicide per infortunium; that where the mind is pure and the intention benevolent, and there are no personal motives, such as a desire of gain, if an operation be performed, which fails, the party is not responsible; and that the indictment which in substance charged that the death was occasioned by the external application, was not supported. There was no count imputing ignorance or want of skill, or hastiness, or roughness of practice. Bayley, B. "I agree with Lord Hale,(z) and do not think that there is any difference between a licensed and unlicensed surgeon. It does not follow that in the case of either, an act done may not amount to manslaughter. There may be cases in which a regular medical man may be guilty; and that is all that Lord Hale lays down. And that may be laid out of the question in this case. *But the manner in which the act is *694] done, and the use of due caution, seems to me to be material. Mr. J. Foster, p. 263, speaking of a person who happens to kill another by driving a cart or other carriage, says. "If he might have seen the danger, and did not look before him, it will be manslaughter for want of due circumspection." And there is also a passage in Bracton to the like effect. But all that I mean to say now is, that there being conflicting authorities, and the impression on our minds not being in your favor, I propose to reserve the point. As to the indictment not being supported by the evidence, one of the allegations is that the prisoner feloniously applied a noxious and injurious matter. And there is no doubt, if the jury should be of opinion against the prisoner, that the facts proved will be sufficient to warrant their finding that the prisoner feloniously did the act; for if a man, either with gross ignorance or gross rashness, administers medicine and death ensues, it will be clearly felony." It was then objected that in this case, as in larceny, there must be a trespass proved. It was not proved that any fraud had been practiced by the prisoner to get the patient under his care; nor had there been any avaricious seeking after fees; if there had been it might have been evidence to show the existence of trespass. In Rex v. Van Butchell, (a) the case was stopped, because there was no evidence of how the operation was performed, and here there was not any evidence to show the mode in which the application was made. Bayley, B. "In this case we may judge of the thing by the effect produced, and that may be evidence from which the jury may say, whether the thing which produced such an effect was not improperly applied." Bolland, B. "When you pass the line which the law allows, then you become a trespasser.' Bayley, B. "If I had a clear opinion in your favor, or if my Brothers had, or if we had any reason to think that other judges were of a different opinion, it would become our duty to give our opinion here, and prevent the case from going to the jury: but feeling as I do, notwithstanding all I have heard to-day, and myself and my Brothers having had our attention directed to the law before we came here, I think it right that the case should go to the jury; I think that if the jury shall find a given fact in the way in which I shall submit it to them, it will constitute the crime of feloniously administering, so as to make it manslaughter. I do not charge it on ignorance merely, but there may have been rashness; and I consider that rashness will be sufficient to make it manslaughter. As for instance, if I have the toothache, and a person undertakes to cure it by administering laudanum, and says, 'I have no notion how much will be sufficient,' but gives me a cup full, which immediately kills me; or if a person prescribing James's powder says, 'I have no notion how much should be taken,' and yet give me a tablespoonful, which has the same effect; such persons acting

(2) 1 Hale P. C. 429.

(a) Supra, p. 689.