Jint the State may doubtless create a board 
of health or a similar body, and require every 
physician to register his license with the 
board, or in the office of the county clerk or 
other appropriate place. But his right to 
practice will not depend upon this registration, 
as the right has already been vested and as- 
sured by the diploma and license of the college. 
And should the State also vest this board of 
health with the right and even duty of ex- 
amining and licensing applicants, it could not 
apply to those who held a license from the 
incorporated colleges. Nor could it militate 
against or invalidate in any way the right of 
the colleges to issue valid diplomas and li- 
censes, before or after; for not even can the State 
by its legislation divest or impair a vested 
right which the colleges already had. 
But should a State not vest this power in a 
college or colleges of different schools, but 
vest it in an examining board, board of 
health or any other name, it should by all 
means be composed of men of different schools, 
for the jealousy among these schools is so 
great, that if the examiners be of but one 
school they would be too apt to abuse their 
powers, to the prejudice of the other schools, 
no matter what the restrictions imposed on 
them by the legislature, "such as that no man 
should be excluded or refused a license because 
he was or was not of a particular school." If 
it be true that the allopaths refuse to recog- 
nize as physicians the graduates of other- 
schools, they might grant licenses to none but 
allopaths, and claim that they had not violated 
the law, because that, although they had re- 
fused licenses to the homoeopaths or eclectics, 
yet they had not refused it to men competent 
to practice medicine. This would be setting 
themselves over the law, and arrogating to 
themselves the right to call him whom the law 
says is a physician, not a physician. In other 
words, the law says that he who has a compe- 
tent knowledge of anatomy, physiology, theory 
and practice, i. e., of medicine, is a physician, 
and the allopaths say he is not a physician; 
then the law must appoint as judges those 
who will not deny its authority; or at least a 
sufficient number of the other schools as will 
nullify their judgment and arrogance, and if 
the allopaths refuse to serve on the board with 
those of the other schools, they must take the 
consequences, and submit to the other schools. 
Probably there was a time when no school 
was known, or even in existence, but the allo- 
pathic, and it may have been thought that 
that school had appropriated all the medical 
ideas that were known or knowable; but in- 
telligence is no more stationary than the world., 
Many and wonderful are the discoveries and 
advances in knowledge in the last half century, 
Office of Health and Home, 
Washington, D. C., Sept. 5, 1884. 
Dear Sir: The following article by that able jurist 
and constitutional lawyer, Judge McGary, of Wash- 
ington, D. C., will appear in Health And Home of 
Sept. L5th. You are at liberty to use it, in whole or 
in part, with proper credit. 
Yours respectfully. 
W. H. Hale, 
Editor Health and Home. 
ARE MEDICAL LAWS CONSTITUTIONAL? 
Editor Health and Home : 
I acknowledge the receipt of your note of 
inquiry as to the law in regard' to licensing 
physicians in the States, and also if by the 
laws of the I nited States, a license in one 
State is available in any other State. 
In reply, it is not necessary to consider the 
statutes that the States may now have on the 
subject, but only to state the general principles 
on which they should be based, in order not 
to be unconstitutional, or opposed to the gen- 
ius of our Government. 
ijst, " e musf n°t treat the right to practice 
medicine as a natural, inalienable or sove- 
reign right, as none of the States have so treat- 
ed i • any nie- And the reason is, that as 
the object of all government and law is the 
protection of citizens in all their rights of life, 
liberty and property, which includes the pro- 
tection of the common health-and as the prac- 
tice of medicine may injure as well as benefit 
it, particularly if improperly and ignorantly 
practiced-the States have justly treated the 
practice, as a mere statutory right, created by 
the legislature, and to be authorized and 
regulated by license. They all have or may 
provide by statute for licensing all who are 
competent for the duty, within their own geo- 
graphical limits, for a State's authority can 
go no farther. I believe the usual way has 
been, by the incorporation of medical schools 
or colleges, with the chartered right to award 
diplomas to their students for competency and 
proficiency in that branch of learning, and 
which diploma is tantamount to or actually 
the State's license. This right to issue the 
diploma is a vested right in the college, not 
to be annulled or taken from it, without for- 
feiting its charter, through the medium of a 
court of justice of its own State. And the 
license is also a vested right in the recipient. and it is known that one set of men or one 
school can not appropriate all knowledge, nor 
can prevent other people and schools from 
acquiring the same knowledge that they 
possess, nor of even advancing beyond them. 
There was also a time when there was but one 
church-the Boman-and that outside of it 
all was corruption and ignorance, but later 
ages have advanced far beyond the learning of 
that time, and there are far more schools of 
religion than of medicine, and yet all are 
equal before the law. 
The examination of medical students, un- 
doubtedly, should be by medical men, but not by 
any one school of medical men; and if one school 
is so prejudiced against the other as to do them 
injustice, the legislature of a State does violence 
to the genius of our laws and civilization, yea, 
to the Constitution itself, to make the exam- 
iners all of one school. The schools should be 
equally represented on any such board. And 
if made up of but one school, and they should 
refuse licenses to applicants of other schools, 
they can make but one excuse, and that is, that 
the applicant has not a competent knowledge 
of anatomy, physiology, obstetrics, chemistry, 
and theory and practice; and any one believ- 
ing he had a competent knowledge and yet 
refused, might sue out a mandamus against 
them and oblige them to act according to law. 
But the best remedy by far is, for the legisla- 
ture to appoint persons of the different schools 
on those boards. 
If a State has once vested this or any other 
right in one body or corporation, it cannot 
thereafter vest the same right in any other 
board or body, to the prejudice of the first. 
And in whatever board or college it vests the 
right, it can and must act only in accordance 
with its authority, and not abuse it. It would 
be an abuse of it to refuse a license to a man 
because he does or does not belong to a par- 
ticular school of medicine. The only author- 
ity the legislature could confer would be to 
license such men as were found to possess a 
competent knowledge of medicine, and as that 
is embraced in anatomy, physiology and 
theory and practice, the only power of the 
examiner would be to ascertain that the appli- 
cant was possessed of a competent knowledge of 
these branches, regardless of what school of 
medicine he advocates or hails from. That is 
a matter with which neither the State nor ex- 
aminer has anything to do. It is the concern 
only of the physician and his patrons. A 
man may be an allopath, a homoeopath or 
eclectic, and yet have a thorough knowledge 
of anatomy, physiology, obstetrics, chemistry, 
and the theory and practice, or the one as good 
a knowledge as the other, and each a 
_ tent knowledge, and if he has that, 
that the law can require of him to i. 
to a license. 
All this has reference only to persons 01 
previously having a license; for persons already 
having a license, and then going into another 
State to practise, may be regarded as having 
left it behind, and to entitle him to the privi- 
lege must obtain it from the State in which 
he proposes to practice, and must therefore 
apply to the board or other power appointed 
by the State for the purpose. This could be 
changed by the States passing a law to recog- 
nize the license of a sister State, upon proof 
of good moral character. But this involves 
something to be done by the applicant, viz: to 
have some one to vouch for his good moral 
character before some board or authority. 
The only difference would be that in the one, 
he must prove his good moral character, and 
in the other, that, and also that he is possessed 
of a competent knowledge of medicine-not 
allopathy, nor homoeopathy, nor eclecticism, 
but of anatomy, physiology, and theory anti 
practice. 
Article 4, section 2, of the Constitution, which 
says, "The citizens of each State shall be entitled 
to* all the privileges and immunities of the 
citizens of the several States," does not help 
him in this case, as it is not applicable; be- 
cause, as I stated above, the practice of medi- 
cine isrtiot a natural, but only a statutory right, 
created by the legislature of the State. For 
example,'it is a natural and sovereign right for 
every citizen oi a State to travel about or cioss 
from one boundary of his State to the other, 
without let or hindrance by law, and for which 
his own State cannot tax him. But this gives 
him not the same right in another State, 
or even the right to enter into another 
State. Hence to avoid this, the section above 
was inserted into the Constitution; and by 
virtue of it alone a citizen of one State has the 
right to enter and travel in or pass across 
another State, and without taxation; because 
he can not be taxed for the same thing in his 
own State, and he cannot be taxed in the lat- 
ter, because it is a natural and sovereign right. 
But the right to practice medicine, even in his 
own State, is not a natural or sovereign right; 
but a right created by the legislature, and 
hence we say a mere statutory right. The 
United States have nothing to do with matters 
of this sort. They are things peculiarly 
within the legislative powers of the States, 
independent of any interference by Congress. 
To those who say there should be a uniform 
law on the subject,* T reply, that could be done 
onlv by each State adopting the same law, 
which they have the power to do if they choose, 
or for Congress to pass an act; which it has. not 
the power to do. It must be borne in mind,. that if Congress had that power, it would also 
have the power to regulate marriage, punish 
for petty larceny, and all the other things that 
the States alone have the power to provide 
for, and also the right to prescribe who should 
have the right to vote, the qualifications of 
voters, and the regulation of elections in the 
States. In short, if Congress had this right 
there would be no further use for the legisla- 
tures of the States, as Congress would have all 
other rights, and the States none. It is true, 
there are persons who contend that Congress 
has this right, and perhaps every other right, 
since the adoption of the 1-Jth and loth amend- 
ments to the Constitution; but they only ex- 
press their wish and not their knowledge. 
Our Government, Federal as well as State, 
was and is founded upon the absolute sov- 
ereignty of the people of thirteen, now thirty- 
eight communities, who have never surrendered 
their sovereignty, the States being their States 
or agency, and the Federal Government their 
Government, i. e., their agency. 
All this must be reversed before Congress 
can pass such laws as above alluded to; that 
is, the sovereignty of thirty-eight communities 
must be surrendered and vested in one agency. 
Then the agency or government would be the 
sovereign, and not the people, as now; and 
the government might then do as it pleased, 
regardless of limitation or constitution. But 
the people will not thus put their liberties at 
the disposal of Congress, which always legis- 
lates according to the will and pleasure of 
which ever party is in power. 
Washington, t>. C. W. L. McGary.