PART FOURTH.

THE JURISPRUDENCE OF PHARMACY.

CHAPTER I.

LIABILITIES OF VENDORS OF DRUGS IN GENERAL, AND THE

IMPLIED WARRANTY OF SOUNDNESS WHICH ACCOMPANIES

SALES OF MEDICINES.

175. THE Science of pharmacy, by its intimate association with the practice of medicine, forms an important chapter in medical police. The large field of instrumentalities with which it deals, whether of natural origin, or artificial preparation, undoubtedly meets a wider variety of necessities in civilization than belongs to any other avocation. If we examine the Materia Medica alone, we shall find that it comprises all alimentary substances-all natural medicines and poisons, and a very large proportion of all the pigments used in the arts; and if to this immense catalogue we add the artificial products of the chemical laboratory, already numbered by the hundred, and still increasing, all which substances fall commercially within the province of the pharmaceutist, we shall readily appreciate the fact that, aside from the general principles of law governing commercial transactions, the nature of

many of the products dealt in, and their beneficent or disastrous effects upon human health and life, imparts to such a traffic a far more important character than belongs to transactions in inert substances.

Long before the profession of pharmacy existed as a distinct branch of industry, the principle of responsibilty among men was graduated according to the relations of their avocations to health, life, reputation and property. Hence from remotest antiquity, pilots, physicians, and provision-venders as dealing with agencies dangerous to human life, have been held to a superior accountability for the careful practice of their calling. Out of this venerable principle of self-preservation have arisen those codes of medical police, which are the consummate fruit of mature civilization, and even where they do not exist in the form of positive enactments, the unwritten law of the land recognizes in its adjudications, the validity of the doctrine, by applying it to the case of dealers in substances capable of injuring health or life. Discussing the subject, therefore, under the light of the common law alone, we shall inquire first, into the liabilities of vendors of drugs in general, and the implied warranty of soundness which accompanies sales of medicines; second, the liabilities of manufacturing pharmaceutists for false representation as well as quality; and third, the liabilities of dispensing pharmaceutists for negligence, want of skill, or unauthorized publication of prescriptions.

§ 176. Drugs or medicines, as a marketable commodity, seem originally to have sprung from the field of provisions, among which, as is well known, are to be found many substances having a therapeutic as well as an alimentary

character. Hence, grocers or poticaries,' as they were synonymously called, formed one of the ancient companies of the city of London, until the year 1615, (13 Jac. I.) when, from the glaring mischiefs already seen to arise through the sale of improper medicines, the propriety of separating the apothecaries from the grocers' company became a matter of public necessity, and the king accordingly "grants that the apothecaries shall be separate from, and constitute a company distinct from that of the grocers, and free from their by-laws, regulations, jurisdiction and privileges. And, to promote the full dignity of the faculty of the pharmacopolites, before sunk into disrepute and despised, he grants to certain persons therein named, and all other persons educated in the faculty of pharmacy and practicing it, being freemen of the grocers' company, or of any other company of London, that they, and all such practicing within London, and its suburbs and seven miles around, shall constitute a corporation by the name of the master, wardens and society of the art and mystery of pharmacopolites of the city of London."

Previous to this creation of a corporation of apothecaries, many of the grocers had doubtless familiarized themselves with both the nature and the composition of drugs so as to act as apothecaries proper to physicians, and obtaining ac

The apotheca of the ancient Romans meant simply a store-house of any kind, and the word apothecarius a store-keeper. (Vid. Digest. lib. 19, 2, 3, 11; and Code lib. 12, 58, § 3, 12). It is strange, therefore, that a word so notoriously improper, professionally speaking, as apothecary, should still be retained by graduates in pharmacy. It becomes only those who deal in omnibus rebus, et quibusdam medicamentis.

2 General Statutes, Char. May 30, 13 Jac. I.

3 Says Chaucer, in his character of the Doctor of Physic:
"Ful redy hadde he his apotecaries,

To send him drugges and lettuaries,
For eche of them made other for to winne

Hir friendship n' as not newe to beginne."

quaintance with the prescriptions of the latter often did administer them upon their own responsibility as practitioners of physic. Their right to do so was recognized by the House of Lords in the case of the College of Physicians against Rose,' and they still enjoy this privilege, taking nothing for their advice, but including a remuneration for skill and attendance in the price charged for their medicines. On the continent the corporation of apothecaries was recognized much earlier than in England. In 1484, under Charles VIII. of France, several ordinances were passed bearing upon their rights and duties; these ordinances were further added to under Louis XII., in 1514; under Francis I., in 1516 and 1520; under Charles IX., in 1571; under Henry III., in 1583, and Henry IV., in 1598. Louis XIII. confirmed their ancient charters in 1611 and 1624, and in 1638 appeared the final statutes under which the corporation has ever since governed itself."

§ 177. The code Napoleon makes a trenchant distinction between apothecaries and simple druggists, in the rights severally accorded them to deal in drugs. The former who are assumed to be pharmaceutically educated are alone allowed to sell compounded medicines, the latter, who are mentioned in it along with grocers, are only permitted to

13 Salk. 17, H. T. 1703.

2 Willcocks on Medical Profession, p. 19.

Encyclopédie Méthodique, Art. JURISPRUDENCE.

4 But even then only upon the prescription of a physician or surgeon, viz.: "Apothecaries are forbidden to dispense or sell any medicinal preparations, or compounded drugs, except upon the prescription of a physician, surgeon or health officer, and over his signature. They shall sell no secret remedies. They shall conform in their preparations, which they shall compound and keep on hand to the formulas inserted in the dispensatories present or future. They are further forbidden to deal in the same place or shop, in any other articles than drugs and medicinal preparations." Code of Med. Police, Art. 32.

sell drugs of a simple character, in bulk and at wholesale.1 In the United States, wherever statutes do not otherwise direct, apothecaries and druggists are put upon the common law footing of provision vendors, and may sell in any quantities, the articles in which they deal. For the right to dispose of property by sale or otherwise, is an incident of its ownership everywhere recognized as fundamental. But, like every other right conceded to individuals in civil society, it is always subordinated to the superior rights of public safety, and public expediency or policy. In obedience therefore to the supreme law of public safety, or the temporary and mutable necessities of public policy, the right of any person to dispose of his own property, by sale or otherwise, in open market, or through private contract, may be either restricted and abridged, or wholly suspended, pro hac vice. The moving consideration to these restrictions upon personal and proprietary rights must be sought for either in the inherently dangerous character of the property offered for sale, or the peculiar circumstances subsisting between the buyer and seller. The sale of poisons, diseased meat, unwholesome provisions, dangerous fireworks, or obscene publications, is an illustration of the former; the sale of arms, munitions of war, or provisions to a public enemy, of the latter.

This principle of restrictions upon the indiscriminate sale of certain articles dangerous in themselves, and

And the following are the restrictions upon druggists: "Grocers and druggists are forbidden to sell any medicinal or compounded preparation, under a penalty of 500 francs. But they may continue to deal at wholesale in simple drugs, without, however, the right of selling any in medicinal doses." Ibid. Art. 33.

As to what constitutes a medicinal or compounded preparation, see the case of the four druggists in Rome, (reported in Merlin, Art. Droguiste,) where it was held, that pulverizing and selling pulverized chinchona bark was a violation of a similar article of the modern Roman code.