honest use by a man of his own name, an interference which I think is entirely novel to the law of England." The learned judges might have found a case exactly in point to the same effect in Meneely v. Meneely, 62 N. Y. 427; S. C., 20 Am. Rep. 489

LAW AND DOCTORS IN NEW YORK.

I,

That veracious historian of New York, the lamented Diedrich Knickerbocker, assures us, in a sentimental parenthesis, that there is something exceedingly delusive in looking back through the long vista of departed years, and catching a glimpse of the fairy realm of antiquity that lies beyond. Like some goodly landscape melting into distance, they receive a thousand charms from their very obscurity, and the fancy delights to fill up their outlines with graces and excellences of its own creation."

I have fully realized the delusiveness of antiquarian researches, in my attempts to find some trace of the physician during the halcyon days of New Amsterdam. The thrifty Dutch burghers who bought Manhattan island for $24 were probably healthy people, and had little need for the medical profession. The days of Van Twiller, Kieft and Stuyvesant, were not productive of a high scientific development. Mrs. Lamb, in her History of the City of New York, makes no mention of the medical profession during the Colonial period; and during that period, covering more than one hundred and fifty years, only three times was this profession the subject of legislation. January 17, 1680, the legislative counsel ordered that no one should practice physic without a license. This was doubtless the origin of licensing physicians. In 1684, October 22, an act was passed concerning surgeons and midwives, and in 1760, June 10, an act was passed to "regulate the practice of physic and surgery in the city of New York." But though meager was his place in our early history, we know that the disciple of Esculapius has been abroad in the world in all ages, and among all people. Sometimes he has turned aside from his profession to do other work for the world, in literature, in statesmanship, in war, in discovery, in reform, and in religion. Every department of human endeavor has felt bis influence and enjoyed the benefit of his cultivated experience. Looking back into history we recall the fact that the record of the establishment of Christianity by the apostles, and the third Gospel, were written by a physician; and we cannot fail to be impressed by the exact professional knowledge, the broad humanity, and the reverent affection for his master, which characterize Luke's biography of our Lord. Coming to a later time, we recollect that Dr. Warren left his patients to defend the liberties of the Colonies, and won immortality by his gallant death at Bunker Hill; and it was a physician, the lamented Livingstone, who first carried the light of civilization into the recesses of the dark continent. While he has labored, the physician has also suffered. We might recall numerous instances where physicians have become martyrs to the mysteries of the laboratory, martyrs to the dangers and contagions of the sick room, martyrs to their devotion to the physical well-being of their fellowmen.

Dr. Samuel Johnson, the eminent English critic, once described lawyers as a class of men who go through life with their faces toward the past. While this statement of fact here is in a sense true, the criticism implied is unjust. Lawyers look into the future for clients, and into the past for precedents. It would be intolerable if a court should make law according to its own whim, or if lawyers should advise according to their prejudices. The question always is, what is the

law? and we can only answer by turning our faces toward the past to see what has been legislated or decided in the particular instance. It has been the aim of all jurisprudence, from the consummate legal fabric of the Roman Empire to our own judicial system, to establish upon a firm basis the proposition that the general certainty of the law is of more consequence than that it shall work out exact justice in every case. There is not a legal remedy for every wrong, neither is there a cure for every disease. "The past" does not mean antiquity alone; yesterday is a part of the past, and what we must do is to try to adjust the complications of to-day to the principle already established by the wisdom of experience.

I have often thought, and sometimes with a feeling akin to envy — that the physician is not hampered by the conservatism which necessarily environs the lawyer. Medicine is essentially an experimental science; and while there are certain general principles, as in the law, which have been established bya large experience -the medical practitioner must, nevertheless, apply a discerning judgment in the treatment of diseases, varying with the peculiarities of each case. Therapeutics is an expansive study, and no man will ever be able to say that he has reached its limit. Out of the rude knowledge, and the ruder practice of early ages, the growth of medicine has kept pace with the development of general science, and to-day no branch of knowledge ranks higher than this. During all these years the work and study of the profession have greatly broadened; its literature has constantly expanded; its mission has been elevated and extended; its standards of proficiency have been lifted higher and higher, corresponding with its increasing influence in society; and it is but natural that physicians and surgeons should desire legal protection against quackery, and the annoyance of those who, without proper study, and without a due appreciation of the great importance of the science and practice of medicine, assume and presume to be as competent [as those who have devoted years of study, and who have had years of experience in preparing themselves to properly minister to the ills that flesh is heir to. Hence the attempt in these modern days to guard against impostors, and to compel by law compliance with certain prescribed standards of qualification before permitting persons to enter upon the practice of the healing art.

Reference has already been made to the Colonial statutes upon this subject. The State government was organized in 1777; since that time statutory regulation of medicine has become firmly established.

The first act regulating the practice of medicine, after the organization of the State government, was passed March 27, 1792 (chap. 37), and related solely to the city and county of New York. That was an age of preambles, and this statute was ornamented with one in which the reasons for the law were set forth as follows:

Whereas, many ignorant and unskillful persons presume to administer physic and practice surgery within the city and county of New York, to the detriment and hazard of the lives and limbs of the citizens thereof, for the prevention of such abuses in future," it was enacted that no person whatsoever should practice medicine or surgery unless attending two years with a competent physician, if a graduate of an American college; if not such graduate, he must attend with such physician three years, and must be examined, approved of and admitted by the gov ernor, chancellor, judges of the Supreme Court, attorney-general, the mayor or recorder of the city, or any two of them, taking to their assistance any three respectable physicians, except tutors of such applicants. A penalty was imposed for practicing without a certificate. Persons not qualified

might administer medical aid in any sudden emergency, without compensation. Medical graduates were not affected by the act. In 1797, chapter 45, this act, with some modificatious, was extended to the whole State. Non-residents were not allowed to practice here, except upon the special request of a physician within the State. Certificates of qualification were required to be filed in the county clerk's office. In 1801. chapter 144, a new act was passed, adding new requisites to the qualifications of practitioners, and permitting non-residents to practice here at their option. Laymen might give medical aid in sudden emergencies, without compensation, as in former statutes.

A statute passed in 1806 expressly declared that any person who should commence practice after the first day of September then next, without being duly licensed should "forever thereafter be disqualified from collecting any debt or debts incurred by such practice." The Revised Laws of 1813, and the Revised Statutes, which took effect January 1, 1830, contained regulations concerning medical practice, the latter statute making the unauthorized practice a misdemeanor. The statute of 1830, chapter 126, made the offense penal instead of criminal, and also declared that such penal provisions should not "be deemed and taken to extend to or debar any person from using or applying, for the benefit of any sick person, any roots, barks or herbs, the growth or produce of the United States." By this statute "quackery ceased to be a crime, and if confined to the use of domestic roots, barks and herbs, it was not even a penal offense." In 1834, an act was passed confining the exemptions from the penal provision of the act of 1830, to those who used domestic roots, etc., without fee or reward. The law of 1834 was repealed in 1835, thus restoring the act of 1830. The law remained in this condition until 1844, when the Legislature swept away all criminal and penal laws against the unlicensed practice of physic and surgery, and every enactment which prohibited any person from recovering a compensation for services as a physician or surgeon, whether licensed or not. While statutes still remained in force relating to the examination and licensing of physicians, they were practically a dead letter, because any person could practice without license, and recover compensation for his service.

In 1872 (chap. 746), an act was passed relating to the examination of candidates for the degree of doctor of medicine, and it provided for the appointment by the regents of the university of the State of New York, of one or more boards of examiners in medicine, such board to consist of not less than seven members, who shall have been licensed to practice physic and surgery in this State.

The regents, in their report to the Legislature in 1888, state that then such boards have been organized, and now have a legal existence, giving the names of the members. The oldest of these boards was appointed on the nomination of the State Homoeopathic Society, and consisted of nine members. There is also a board of eight members, nominated by the State Medical Society. A third board of seven members, represents the Eclectic School of Medicine.

Such boards are required to faithfully examine all candidates referred to them for that purpose by the chancellor of the university, and furnish him a detailed report of all the questions and answers of each examination, together with a separate written opinion of each examiner as to the requirements and merits of the candidates in each case.

Such examinations shall be in anatomy, physiology, materia medica, pathology, histology, clinical medicine, chemistry, surgery, mid-wifery and therapeutics, according to each of the systems of practice represented by the several medical societies of this State. The examinations, and the reports of the examiners,

and their opinious, are to be a part of the public records of the university. Candidates for examination must be over twenty-one years of age, of good moral character, must have a competent knowledge of all the branches of learning taught in the common schools of this State, and of the Latin language, and must have diligently studied medicine not less than three years, under the direction of a duly qualified physician, or must have been licensed, on examination, by some medical society or college, legally empowered to issue licenses or degrees of medicine. If not less than five members of a board of examiners vote in favor of a candidate, the regents shall issue to him or her a diploma conferring the degree of doctor of medicine of the University of the State of New York, which degree shall be a license to practice physic and surgery. Candidates are required to pay into the treasury of the university a preliminary fee of not less than $35, and upon receiving a diploma, a further sum of not less than $10.

This statute is still in force, and is recognized in the Medical Code of 1887, hereafter quoted.

From 1844 to 1874, the practice of medicine in this State was free to everybody. During this period of thirty years, quackery was triumphant, and a gullible public became the victims of all sorts of charlatanry. The Legislature of 1844 made every man a doctor, and nostrums of every description and admixture could be safely prescribed, and payment therefor exacted by authority of law. Other States had suffered by the same looseness in medical legislation. In Massachusetts, Thompson, the originator of the steam practice, had been indicted and tried for murder, for having killed a patient with steam and lobelia, but the Supreme Court of that State held that as there was no law prohibiting him from practicing without a license, he could not be convicted either of murder or manslaughter, if he administered the medicine, which killed the patient, through ignorance of its dangerous character, and with an honest intention and belief that the same would cure instead of killing the person to whom it was given. See G Paige, 586

In 1874, chapter 436, an attempt was again made to regulate the practice of medicine and surgery, by the enactment of a statute, requiring all practitioners to procure a certificate of their qualifications from the censors of some medical society, such certificate to be recorded in the county clerk's office; and persons not qualified to practice, either by such certificate, or by a license or diploma, from some chartered school, State board of medical examiners, or medical society, were declared guilty of a misdemeanor, and punishable by fine or imprisonment.

This statute continued in force until 1880, when a new license law was passed, chapter 513, requiring registration under regulations prescribed by the stat ute. The law was incomplete in some of its details, and created some confusion in the methods of acquir. ing and retaining a right to practice medicine and surgery. The law was amended in 1881 and in 1884, but was repealed by the Medical Code of 1887.

There was a general revision of the statutes relating to this subject in 1887 (chap. 647).

This statute provides that "no person shall practice physic or surgery in this State who shall not have attained the age of twenty-one years, nor unless already registered and licensed when the act took effect, or thereafter licensed and registered as prescribed by the act; and no persons were to be deemed so licensed or authorized to practice physic or surgery, by the act, except one of the three following classes:

First. All who shall have been graduated from an incorporated medical school or college, in this State, with the degree of doctor of medicine, after substan tial compliance with all the requirements of the general laws and of the charter of said corporation regu

lating the term and amount of study, attendance and attainment requisite to obtain said degree, provided that no person shall receive the degree of doctor of medicine, or be licensed to practice physic or surgery in this State, unless after the age of eighteen years, he shall have pursued the study of medical science for at least three years in a chartered medical school or with some physician and surgeon duly authorized by law to practice physic or surgery; and shall have attended two complete courses of lectures in some legally incorporated medical school or college, in good standing at the time of such attendance, prior to the granting to him or her a diploma or license; provided further, that two courses of lectures, both of which shall be either begun or completed within the same calendar year, shall not satisfy the above requirement.

Second. All who have received said degree from the regents of the university of the State of New York, after substantial compliance with the legal requisites preliminary to its attainment, and after an examination by a legally coustituted board of medical examiners of this State.

(This refers to the statute of 1872, already quoted, giving the regents the authority to grant medical diplomas after examination as prescribed by the act.)

Third. All who, having been graduated from incorporated medical schools or colleges without the State as doctors of medicine, or licensed to practice physic or surgery under the laws of those European countries in which said degree does not confer the right so to practice, shall procure their diplomas from such corporation, or their licenses from such countries to be indorsed by the faculty of an incorporated medical school or college within this State, or by the regents of the university on the recommendation of a legally constituted board of medical examiners of this State. The statute prescribes the form of the indorsement. Every corporation or board so indorsing shall keep a a record of such indorsements, and may require applicants to verify their statements under oath. Persons indorsing such diplomas with fraudulent intent or with gross carelessness or ignorance, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined $250.

Persons entitled to practice medicine are required to register in a book to be kept in the clerk's office of the county where the practice is carried on, his or her name, residence, place and date of birth, and authority for practicing. An applicant for registration must also make an affidavit, the form of which is prescribed by the statute, stating his name, place and date of birth, and residence, the source of his authority to practice, that he has complied with all the requirements of law concerning study, etc.; that he paid no money for the degreee or diploma except the regular fee; that the procurement of said degree or diploma was free from any fraud, misrepresentation or mistake in any material regard; and in case of a foreign license or diploma, that it has been indorsed as required by the statute.

The applicant must also exhibit to the county clerk his or her license or diploma, or a certified copy of it, and the clerk must indorse thereon the date of registry, and shall also give to the applicant a certificate stating the fact of such registry, and the substance of the affidavit. Practicing physicians or surgeons, duly registered, who shall remove their practice or part thereof, or regularly engage in practice, or open an office in another county, shall procure their certificates to be indorsed by the clerk of such other county.

Persons not registered at the time the act was passed, June 23, 1887, bad until October 1 of that year, to register under the laws of 1880. Since that date registration could only be made by complying with the

statute of 1887. Persons convicted of a felony cannot be licensed to practice medicine. Licensed persous who are convicted of a felony, are by the fact of such conviction, deprived of their license to practice. Persons making a false affidavit to procure registration are guilty of perjury. Persons guilty of counterfeiting or forging a diploma, license or certificate are guilty of forgery in the second degree. Practicing under a false or assumed name, or falsely personating another practitioner, is a felony, "and any person guilty of violating any of the other provisions of this act, not otherwise specifically punished herein, or who shall buy, sell or fraudulently obtain any medical diploma, license or registration, or who shall aid or abet such buying, selling or fraudulently obtaining thereof, or who shall practice physic or surgery in this State under cover of a diploma or license that shall have been illegally obtained, or that shall have been signed or issued unlawfully, or under fraudulent representations, or mistake of fact in material regard, or who, after conviction of a felony, as aforesaid, shall attempt to practice physic or surgery in this State, and any person who shall assume the title of doctor of medicine, or append the letters "M. D." to his or her name, without having received the degree of doctor of medicine from some school, college or board empowered by law to confer such degree or title, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $250, or imprisonment for six months, for the first offense; and upon conviction of a subsequent offense, by a fine of not less than $500, or imprisonment for not less than one year, or by both fine and imprisonment."

Persons practicing medicine or surgery without being lawfully authorized and registered are guilty of a misdemeanor, and are punishable by a fine of not less than $50 for the first offense, and for each subsequent offense by a fine of not less than $100, or by imprisonment for not less than one hundred days, or by both such fine and imprisonment. "When any prosecution under this act is made on the complaint of a lawfully incorporated medical society of this State, or a county society entitled to representation in a State society or association, the fine, when collected, shall be paid to the society making the complaint, and any excess of the amount of fiues so paid, over the expenses incurred by the said society in enforcing the medical law of this State, shall be paid at the end of the year to the county treasurer for the use of the poor of such county." "The duly incorporated medical society of any county in which any person shall practice physic or surgery without lawful authority or registration may, upon proof of such practice, recover from such practitioner, in an action before any justice of the peace, a penalty of $25 and the cost of the action for the first judgment, and upon every subsequent judgment for the same offense, a penalty of $50 and the cost of the action; provided that said societies shall pay to the county treasurer for the use of the poor of the county any surplus that may accrue in their hands from the excess of fines and penalties collected, over the disbursements of said society for counsel fees and the expenses incident to the enforcement of this act by them."

The statute does not apply to commissioned medical officers serving in the army or navy of the United States, or in the United States marine hospital service, while so commissioned, or any one while actually serving as a member of the resident medical staff of any legally incorporated hospital, or any legally qualified and registered dentist exclusively engaged in the practice of dentistry, or interfere with the manufacturers of artificial eyes, limbs or other pedical instruments, or trusses of any kind from fitting such instruments on persons 'in need thereof, or any lawfully