a licensed physician, and the defendant, instead of demurring, pleaded to the merits of the action, held, that it was too late to take this exception on the appeal.1 It may be stated, therefore, as a well recognized principle of law, that wherever statutory enactments require special evidence of qualifications in the form of licenses in order to practice medicine, persons practicing as physicians without having been licensed, as required by law, can claim no compensation for their services, since no action will lie on a contract, the consideration of which is prohibited by law, or which originated in the violation of any statute. And that, consequently, all notes given to pay for medical services rendered by an unlicensed physician are void.3 FEES te market value, a lar, irrespective the professional 3 CHAPTER III. FEES AND REMEDIES AT LAW. § 31. Ar common law, the services of lawyers and physicians were formerly considered to be in their nature gratuitous,1 a doctrine derived from the civil law, where the relation subsisting between the parties being founded upon the principle of a mandate, no compensation as such to the mandatary was in contemplation. Nam originem ex-officio atque amicitia trahit; contrarium ergo est officio merces.2 Therefore the term honorarium, applied to the reward which a lawyer or physician might receive for his services, expressed very clearly the principle that such a gratuity was not to be regarded in the light of a salary or hire. Honorarium sumitur etiam pro mercede quæ datur advocatis, professoribus liberalium artium, mensoribus et ceteris qui operam suam non locant, sed beneficio loco pracstant.3 Mandatum and locatio operis being mutually irreconcilable in the right to recover a reward for services, any attempt to merge the character of the former into that of the latter was repudiated, as tending, practically, to reduce a professional service to a mere commodity having a defi 13 Blacks. Comm. 28; Chorley v. Bolcott, Exr., 4 Term R. 317. There can be no doubt that at one time, both in Scotland as well as in England, physicians' fees were regarded as honoraries, and as not exigible by action except under a special contract. But this principle, inherited from the civil law, has been relaxed to a great extent, so as to meet the necessities of modern society. Stair, 1, 12, 5; Johnstone v. Bell, 1716, Morr. Dict. 11,418; Dickson's Law of Evid. Vol. 1, 393. Ze philosophical ise to pay t made, although merely from the maris cognition there was no pro Blackstone ha England' that a fees, and it has actice of medi ment that a phy is services, but 13 Blackst. Comp Try some years AW. s of lawyers and be in their nature e civil law, where ties being founded mpensation as such Nam originem on. ium ergo est officio um, applied to the ight receive for his inciple that such a light of a salary or mercede quæ datur , mensoribus et ceteficio loco pracstant. g mutually irreconrd for services, any former into that of ractically, to reduce odity having a deff 4 Term R. 317. in Scotland as well as in aries, and as not exigible this principle, inherited extent, so as to meet the stone v. Bell, 1716, Morr. 93. nite market value, and typical by analogy for every thing similar, irrespective of the greater or lesser skill displayed by the professional practitioner. On the contrary, the true philosophical interpretation put upon such services was, that each case being sui generis, whether in value to the client, or, in extent of required attainment and effort on the part of counsel or physician, all idea of a fixed and invariable salary became impossible, and the honorarium, like the case, must be left to stand upon its own merits. Yet there can be no doubt that both the advocate and physician might recover for their services upon an express promise to pay the honorarium, assumed to have been made, although there was no implied promise arising merely from the fiduciary relation. The action de extraordinariis cognitionibus gave the required remedy, for which there was no provision in the action by formula. Blackstone has stated it to be the established law of England' that a counsellor can not sustain a suit for his fees, and it has also been repeatedly decided that the practice of medicine is so far a merely honorary employment that a physician can not recover any compensation for his services, but must take what is voluntarily given him.2 13 Blackst. Comm. 28. 2 Chorley v. Bolcott, Exr., 4 Term R. 317. Under the rulings in this case, it is evident that, in the hierarchy of Medicine, physicians in England have always held a higher rank than surgeons. And Lord Kenyon, C. J., said, "I remember a learned controversy some years ago as to what description of persons were intended by the medici at Rome, and it seemed to have been clearly established by Dr. Mead, that, by those, were not meant physicians, but an inferior degree amongst the possessors of that art, such as answer rather to the description of surgeons amongst us; but at all events it has been understood in this country that the fees of a physician are honorary, and not demandable of right. And it is much more for the credit and rank of that honorable body, and perhaps for their benefit also, that they should be so considered." In England, if a medical practitioner passes himself off as a physician, rents. Large or s § 32. This was a complete imitation of the jurisprudence of Rome, where the legal presumption of the immaculate character of a liberal profession was carried out to a degree of ethical purity which reflects the highest credit upon the civilization of that day. Honor first, last, and always, was the germinal idea associated with the practice of professions, insomuch, that, no ordinary action would lie for an honorarium, but the magistrate, prætor, or praeses of the province pronounced extra ordinem, and according to the circumstances (causa cognita) whether they were justly due, and if so, to what amount.1 But the Cincian law, "de donis et muneribus," which was intended to prevent the perfidy of advocates, several notable instances of which had occurred about that time, went further than the principle of mandatum, for it directly inhibited the reception of any fee or gratuity whatever on the part of a pleader, qua cavetur antiquitus, nequis ob causam orandam pecuniam donumve accipiat. A law like this, which was a direct infraction of the personal rights of the citizen, could not evidently endure, and in the reign of Claudius we find it so far modified as to allow advocates to receive any sum up to ten thousand sesterces ($400) for their services. In like manner, physicians and midwives could claim their honorarium by the action extra ordinem, but no statute fixed the limit of their legal emolu 3 de sole arbiter of it although he has no diploma, and no right to assume that character, he can 2 Tacitus, Annals. Lib. XI. C. 5. 3 Capiendis pecuniis posuit modum usque ad dena sestertia, quem egressi repetundarum tenerentur. Ibid. Lib. XI. c. 7. an law was a m People of antiquit Plas, remediles character of th 0 Tide Opinion o Ter in France has a to dismiss LAW. n of the jurispru me that character, he can na sestertia, quem egressi ments. Large or small, in either case the magistrate was the sole arbiter of its justice. The reason of this distinction was founded upon the superior influence of the bar as a stepping-stone to political preferment, and the increasing fashion of taking bribes, which prevailed among lawyers and official personages. In fact, neither suits nor elections could be carried on without bribes. And the Cincian law was a measure which, while it practically did little good, yet paved the way for that amendment under Claudius recognizing the fact, that, professional services created something more than an imperfect obligation on the part of the recipient, and entitled the practitioner to his quiddam honorarium even through the intervention of the magistrate. Such was the high standard affixed to the exercise of a liberal profession among the most polished people of antiquity. § 33. These theoretical dogmas, deduced from an age whose social fabric permitted their adoption, and suited to a civilization of less complex relations than our own, have had to give way to the more practical necessities of modern times. The increasing demand for the services of a large body of educated men in both professions of law and medicine, whose lives should be exclusively devoted to the practice of their professions, has pointed out the injustice, as well as the absurdity, of leaving them, as a class, remediless for the value of such services as they may render to the public.1 Admitting even the honorable character of their employment, as taking the first rank among human occupations, it would be a poor return in 1 Vide Opinion of Senator Verplanck in Adams v. Stevens et al., 26 Wendell, 451. Vide also Merlin, tit. Honoraires, where it is stated that although a lawyer in France has a legal right to his fees, yet it is a rule of the bar of Paris to dismiss any member who sues for them. |