by administering a medicine mal à propos, as the following text shows: " Imferitia qiu.qu: culpcr admuncratitr; I'duti si mcdiciis ideo serz'itni tuiim occidcrit quod cum male sccucrit ant pcrpcram ci mcdicamcntum dcdcrit." (¡nstit. Liv. IV., tit. III., Section VII.) Wounds which were not fatal but which were sufficiently serious to be damaging to the master of the slave were comprised in the third clause of the law Aquilia. The direct application of the law Aquilia was only al lowed when the detriment resulting was caused corpore corpori, for example, when it was applied to a physician who had wounded or killed a slave by the performance of an operation upon the latter. But it was not applicable to the one who had only been the cause of the detriment and who had not caused it by his proper body, as for example, a physician who had prescribed a medicine mai à propos. In this case the Jurisconsults gave the application of the law, that is to say, introduced by interpretation following the example of that of the law and procuring by the manner in which it was drawn up by the praetor, the same results. According to Accarias, the professional services of a physician could become the ob ject of a hire of labor when it was a question of a slave, and Proculus declared that a phy sician who had badly cared for a slave could be sued either ex lege Aquilia, or r.r locate. The following is the exact text: "Prociilns ait si mcdicHS servum imperite seciwrit, vel r.r loeoti) vcl ex Lege Aquilia compcteri actioncm." (D. Liv. IX., tit. II., 7, Section 8.) The direct application of the law Aquilia could not be applied to a physician when the victim was a free man, and Ulpien says that a man has not the right of ownership of his limbs." Now, in order to obtain a direct application of the law Aquilia it was neces sary that the person injured should have also his patrimony involved. But a free man who had become the victim of errors committed
by a physician could have the direct applica tion of the law Aquilia accorded by the praetor who procured the same effects, excepting in that which concerned the pecuni ary reparation of the injury. In the latter case, the value of human personality was not considered. The reparation could only in clude the tort resulting from expenses in volved for the cure, from incapacity to work and, lastly, the funeral expenses. Now, although the texts are perfectly af firmative regarding the admission of the principle of medical liability in Rome, it is more difficult to say whether or not it was frequently applied, and it would appear that the contrary was more likely the case if one considers with what violent indignation Pliny affirmed that in Rome a physician en joyed the most complete impunity as he states in the twenty-ninth Book of his Nat ural History as follows: "Nulla prœterea k.r, qua? pitniat inscitiam; capitale nullum cxcmphim vindictac. Disaint pcricitlis nostris, ct experi menta per mortes agunt: medicoque tantum homincm oecidisse impiinitas sitnwia est. Quin iiniiio transit convichim ct intcmperantia culpatiir: »troque qui pcricre arguuntnr." The Roman laws were not, however, as severe as Montesquieu has upheld in his im mortal work entitled Esprit des Lois, in which he says that "the people were desirous of having physicians punished for their neg ligence or their ignorance. In this case they condemned a physician who occupied a cer tain social position to exile, while death was the sentence applied to the one occupying a lower social condition. This great writer committed an error, for the law to which he makes allusion (D. Liv. 3): "Ad legem CorneЧат de Sicariis . . ." did not punish negli gence, ignorance or lack of attention, but the crime, the grave mistake committed with the criminal intention of producing death. Medical liability was rigorously followed out in the ancient Germanic law to such an
