SOME NOTES ON A DOCTORS LIABILITY. 775 



This provision was short-lived. The work of the lobbyists of the irreg- 

 ular party began to tell. In April of the same year an act was passed 

 which made the offense penal instead of criminal, and which also de- 

 clared 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." Mark the charming protective air in that statute ! 

 Under a free construction it reads, " However dangerous they may 

 be, if you only use American roots and products, we don't care what 

 you do." Quackery was again the upper dog. But the struggle was 

 not over. Although on top, the other dog had a vicious grip upon 

 him. The empiric was still unable to recover compensation from de- 

 linquent patients. He was equal to the emergency, and took his pay 

 in advance. It took the licensed practitioners four years to make the 

 next move, which was a feeble one. In 1834 the exemption from the 

 penalty was confined to such as used the herbs, etc., without fee or 

 reward. The next year the enactment was blotted out, and the two 

 parties stood as in 1830. For fourteen years the condition of affairs 

 remained unchanged, when, in 1841, all criminal and penal laws against 

 the unlicensed practice of physic and surgery were repealed, as well 

 as every enactment which prohibited any person from recovering com- 

 pensation for services as physician or surgeon, whether licensed or not. 

 One doctor was as good as another in the eye of the law. Quackery 

 had achieved a complete victory, and was liable only in cases of mal- 

 practice, or gross ignorance, or immoral conduct in such practice. The 

 standard of admission to the profession was lower even than it was in 

 the time of the Christian emperors. At that early day physicians were 

 required to undergo an examination to prove their competency to per- 

 form pi-ofessional duties before they were permitted to practice. If 

 any practiced without a license they were heavily fined. 



For thirty years the situation remained unchanged. From 1844 to 

 1874 no step was taken to purify the system. But, in the latter year, 

 our legislators awoke. Among other regulations it was declared " a 

 misdemeanor for any person to practice medicine or surgery in the 

 State unless authorized so to do by a license or diploma from some 

 chartered school. State board of medical examiners, or medical soci- 

 ety," or who should practice it " under cover of a medical diploma 

 illegally obtained." The punishment was to be a fine of not less than 

 fifty dollars nor more than two hundred dollars for the first offense, 

 and for a subsequent offense a fine of not less than one hundred dollars 

 nor more than five hundred dollars, or imprisonment of not less than 

 thirty days or both. This was an excellent move, and, supplemented 

 by the one in 1880, has been fairly effectual in driving out unlicensed 

 practitioners. The enactment of 1880 provided that no person shall 

 "" practice physic or surgery within the State unless he is twenty-one 

 years of age, and either has been heretofore authorized so to do pursu- 



