CHAPTER I.

LEGAL STATUS OF PHYSICIANS.

§ 1. THE relations of civil society impose obligations upon its members which are necessary for their mutual protection and well-being. These obligations, although at times unequal in extent, are yet always so far reciprocal in character as to require that each party in every transaction should bring to its accomplishment a share, more or less great, of personal and legal responsibility. Wherever, therefore, there is mutuality of benefit there is mutuality of responsibility; nor does it matter what the specific contribution of either party may be, whether in time, money, or skill, provided always it constitutes, when measured by established usage, a fair and just return for the capital advanced, or the service rendered. The foundation of the mutuality of obligation subsisting between men in civil society rests upon the doctrine that each member has rights of which he can not, with propriety, be divested; and that, in the exercise of those rights, and in the ordinary transactions of every-day life,

he is entitled to a quid pro quo for every advantage, privilege or favor granted to another. Justice, when abstractly considered, ignores charity, and compels no man to the performance of any act for which a moving consideration or advantage to him has not existed, or will not exist in the future. The whole circle of civil obligations as contradistinguished from natural or imperfect ones may be expressed by the simple maxims of do ut des, vel facio ut facias.

§ 2. In ordinary commercial transactions, implying either the purchase, sale, or transfer of property, the execution of mechanical works, or the carriage and delivery of goods, the obligations of parties in interest generally assume the character of express contracts regulated by current market prices and usages relating to time and mode of execution; but in the learned professions, other elements enter into the spirit of obligation arising from their practice, and act as moving considerations to the rendition of the particular service in question. While in the former cases tangible and material products constitute the basis of the transaction, in the latter, intangible and immaterial products are the sole exponents of the capital invested. And, inasmuch as skill and judgment form the true capital of a professional man, while his counsel and services are its immaterial fruits, consumed in their very production, it follows that professional services, into which more or less of these qualities must inevitably enter, can never be considered as purely commercial transactions. They are far higher in their nature and consequences than any transactions relating merely to tangible materialities, and have always been regarded among civilized nations as not amenable to any similar standards of value.

3. In legal acceptation term art or profession is the ptional attainment posse them from the many, and exclusive advantage or

this special faculty. The Em similarity of attain constitutes those learned arts; and the designa ry, engineer, &c., exact quirement which finds i the calling. These calli fan artificial character Sons founded in the nec bution of its labors. provision for those s lassify men living und t revert to it for i editions into which a distributes mankind. A

prentices, since nemo na

clericus,) is the expres iring rank as the abst d the insignia of an in 10 basis for professiona in the law of nature, w positive, institutional 1 of human enactment. expressed in repeated

The force of this idea, now of knowledge, is well illustra whereby special immanities

could read, such persons bei men. Black's Comm. lib. 4,