advantage, els no man s, implying operty, the age and dein interest ntracts regu ating to time professions, ation arising derations to tion. While roducts contter, intangi onents of the ad judgment n, while his ts, consumed Fessional seralities must purely comtheir nature ating merely een regarded , any similar § 3. In legal acceptation, the idea embraced in the term art or profession is that of some uncommon and exceptional attainment possessed by a few, distinguishing them from the many, and securing to them quoad hoc, an exclusive advantage or prerogative in the exercise of this special faculty. The aggregation of such persons from similarity of attainments or pursuits into classes, constitutes those learned corporations termed professions or arts; and the designation lawyer, physician, apothecary, engineer, &c., exactly expresses that idea of special acquirement which finds its highest illustration in a scientific calling. These callings form, doubtless, distinctions of an artificial character among men, yet they are distinctions founded in the necessities of civil society for a distribution of its labors. And, since natural reason makes no provision for those special conditions of estate which classify men living under forms of government, we can not revert to it for information touching the myriad conditions into which a complex system of civilization distributes mankind. All are by nature laymen and apprentices, since nemo nascitur artifex, and the term clerk,1 (clericus,) is the expression of a civilization already recognizing rank as the abstract heritage of the educated mind, and the insignia of an indisputable leading class. Finding no basis for professional prerogative or fiduciary relations in the law of nature, we are driven to seek for them in positive, institutional law, that law which is the offspring of human enactment. It is in the rules of this system as expressed in repeated adjudications, and thus passed into 'The force of this idea, now grown imperceptible in the popular diffusion of knowledge, is well illustrated by the ancient doctrine of benefit of clergy, whereby special immunities from legal penalties were extended to all who could read, such persons being, in contemplation of law, clerici, or clergyBlack's Comm. lib. 4, cap. 28. men. the current of general jurisprudence, that we shall find all the light necessary for our instruction. The common law, with its habitual regard for the widest freedom of action, has always permitted the most unrestricted exercise of any profession, imparting to it, in that sense, no special dignity of character, but leaving to its practitioners the duty of maintaining its sanctions. In the celebrated case of Dr. Bonham, Lord Coke made a fierce assault upon the patent of King Henry VIII., creating the College of Physicians, as against common right, because it gave both judicial and ministerial functions to its censors.1 It was a very plain infraction of the 29th chapter of Magna Charta, guaranteeing to every person within the realm trial by his peers, and according to the law of the land. And this common law principle has been so often reaffirmed as to require no further discussion. Nothing can be better settled. § 4. But, although the door to professional occupations is left open to all, a corresponding responsibility is attached to the manner in which particular services are rendered by persons assuming to be practitioners of any art. They virtually promise, by the very fact of announcing themselves to be willing to undertake any particular service, to bring to its discharge all the qualifications essential to that purpose. Hence skill, diligence, and faithful performance of duty are requisite elements to the rendition of professional services in a legal manner. All of them must be present in some degree, and none in lower measure than accords with the average standard of 1 "And it appears in our books that in many cases the commom law will control acts of Parliament, and sometimes adjudge them to be utterly void, for, when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void." 8 Coke, 375. the profession practiced. resent, constitutes a fraud he covenants for that meas helly possessed by every practitioner in any profe there is no escape. The Banner in which the serv thiner than that he who ty which he has volun 20 advantage from his ellary to this, he is f the ill consequences o is in discharging such hall find common eedom of ted exersense, no ctitioners celebrated ze assault ne College se it gave of Magna the realm the land. • often re- Occupations nd reason, or re- the profession practiced. For such deficiency, whenever LEGAL DEFINITION OF PHYSICIANS. § 5. In England there are three orders in the medical profession, viz., physicians, surgeons, and apothecaries. These orders are the creatures of statutory2 enactments, defining and prescribing the qualifications, rights, duties and liabilities of such corporate bodies and their members, as also the limits within which their franchise may be 1 Duncan v. Blundell, 3 Starkie, 6. 2 The earliest statute relating to the medical profession is a Draft of an Act of Parliament, 9 Hen. V., A. D. 1422, in which it is recited that "no one shall use the mysterie of fysyk unless he hath studied it in some university, and is at least a bachelor in that science. And if any one practice contrary to this regulation, he shall forfeit £40 and be imprisoned." Of other statutes, relating to the same subject, may be mentioned Rot. 32, Henry VI.; Canon of Council of Lateran; 19th Henry VII., cap. 7; 3d Henry VIII., cap. 11; 14th Henry VIII., cap. 5; 32d Henry VIII., cap. 40. These are the leading and most important charters, of which the succeeding are generally confirmations, with, in some cases, new grants: 1 Mary, Sess. 2, cap. 9; Chart. 7 Elizabeth; 3 Jac. I., cap. 5; 10 Geo. IV., cap. 7. 3 Physicians of the College of London may practice in that city and seven exercised. In the United States, these distinctions do not obtain, being considered as essentially opposed to that spirit of the common law which favors the right of every man to practice in any profession or business in which he is competent. And medicine being regarded by it as an honorific profession, no apprenticeship was required, but the practitioner always prescribed at his peril. This doctrine was essentially borrowed from the civil law, where no barriers were drawn around either professions of law or medicine. Any one who pleased might practice them without any previous qualification, subject always to responsibility for injuries inflicted upon others. "À Rome," says Montesquien, "s'ingérait de la medecine qui voulait; mais parmi nous les medecins sont obligés de faire des études, et de prendre certains grades; ils sont donc censés connaitre leur art." ניי § 6. In the absence of any statutes, therefore, limiting the common law right to practice medicine inherent in every person, the term physician may be applied to any one who publicly announces himself to be a practitioner of this art, and undertakes to treat the sick either for or without reward. It is plain that at common law no distinctions can be made between systems or schools of medicine, and consequently none between those practicing under them. Every one undertaking to treat the sick professionally, and as the exercise of his vocation is, miles around it; while licentiates of Oxford or Cambridge may practice throughout England and Wales, but not in London. Willcocks on Medical Profession. 1 Esprit des Lois, liv. 29, ch. 14. Il est même assez vraisemblable que ceux, qu'on a qualifiés les premiers du nom de medecins, ont été principalement redevables de ce titre aux connaissances qu'ils avaient en chirurgie. Goguet. Origine des Lois, vol. 1, 216. ally, a physician.' He gether with those rights sponsibilities of that post arly placed himself. It satte prescribes particula da profession, and one un that such qualifications chy a wrong-doer; first send, as against the pub a him the ordinary prof todes of ethics alone im zens at large to abstai ssions. They are not s and courts can take no of er are to a certain ex redited professional authority beyond it, attaches itself to them, greements, creating mo 7. These principle Daly of the New York involving the question in legal signification. is opinion: "In the absence of exclusively recognize r class of medical pr tions formerly in force ng as a condition to services, an attendar before a medical boar association, are repea Proof that one practice professional character. Su tions do d to that of every aich he is an honor the prac trine was O barriers medicine. hout any ibility for s Montesais parmi des, et de connaitre e, limiting nherent in ied to any ractitioner ther for or law no disols of medipracticing at the sick vocation is, e may practice cks on Medical isemblable que - été principale t en chirurgie. legally, a physician.' He has the rights of one, and together with those rights assumes the burdens and responsibilities of that position in which he has voluntarily placed himself. It is of course otherwise if any statute prescribes particular qualifications for the practice of a profession, and one undertakes to discharge its duties without such qualifications. For, in the latter case he is doubly a wrong-doer; first, as against the statute, and, second, as against the public, which has a right to demand in him the ordinary proficiency of his profession. But codes of ethics alone impose no legal obligation upon citizens at large to abstain from practicing particular professions. They are not statutes of legislative enactment, and courts can take no official cognizance of them. While they are to a certain extent useful within the circle of accredited professional membership, they certainly have no authority beyond it, for no attribute of sovereignty attaches itself to them, being at most only conventional agreements, creating moral and not legal obligations. § 7. These principles are well elucidated by Judge Daly of the New York Court of Common Pleas, in a case involving the question of what constituted a "physician," in legal signification. The following is the substance of his opinion: "In the absence of special statutes, the law does not exclusively recognize any particular system of medicine, or class of medical practitioners. The statutory regulations formerly in force in the State of New York, requiring as a condition to the right of recovery for medical services, an attendance upon lectures, an examination. before a medical board, and a certificate from an organized association, are repealed. 'Proof that one practices as a physician is prima facie evidence of his professional character. Sutton v. Tracy, 1 Mich. 243. |