Energizing the Brief

It always helps if you can find some relevant and unusual historical information to fit into a law review article or a brief, for it whets the reader's intellectual curiosity and frequently can tip the scales of justice in favor of your position. Being aware of the mechanics of good briefing is also useful because it sharpens your awareness of the possibilities for expansion of cases through analogy. And it helps you think of new ways to attack problems.

Here is an interesting situation that occurred in a criminal appellate case I handled some years ago. The defendants had been convicted of "conspiracy to injure the public health." In their opening brief, their counsel argued that the charge was as broad and vague as to be constitutionally void.


In criminal law, you will learn that every defendant has the right to know specifically what the charge is so that a proper defense can be prepared. If the language of the indictment or information is not clear enough for a reasonable person to understand that the conduct complained of is criminal, the charging document is insufficient as a matter of law, and the case must be dismissed. Since this goes to the very heart of the jurisdiction of the court to try the case, it is an issue which can be raised for the first time on appeal. It need not be raised in the original trial.

In this matter, intensive research on both sides failed to come up with a case in any Anglo-American jurisdiction which had ever defined the phrase "injury to the public health." The very logical defense argument was that since this language had never been defined anywhere, either by case or statute, it was impossible for someone to know beforehand whether the acts to be entered upon would constitute a crime. In constitutional law, this theory is referred to as the "void for vagueness doctrine."

In briefing the state's case, since there was no precedent to follow, I had to try another approach. You will recall that the common law of the United States includes all the law of England, both statutes and cases that existed as of the time of the signing of the Declaration of Independence, in 1776. I decided to trace this conspiracy statute back to see if there was any indication of how it came to be enacted.

When you are analyzing a statute, always write it out in longhand. It is amazing how certain words will suddenly take on new meaning, how punctuation becomes critical, how the very style of the statutory language can cause new ideas to form in your mind--ideas which may give you some clue to the solution of the problem at hand. That is what happened to me in this case. I found that the statute was enacted by the First Legislature of California. The style looked suspiciously as if it had been copied from somewhere else. There was too much detail for it to have been created out of thin air. I got out the statute book for that First Legislature. It was part of a whole enactment devoted to criminal law; it was part of an entire criminal code. My speculation was that some lawyer might have come out in the 1849 gold rush and brought his law books along just in case he did not strike it rich as a miner. Perhaps he was elected a member of the First Legislature and proposed a bill which incorporated the criminal code used in his home state.

A little research showed that I was possibly on the right track. The current New York statute on conspiracy was almost word for word the same as California's. I was able to trace the New York law back to 1829 but could not find any similar language predating it. So I thought it might be possible to pick something up if I started at the beginning and worked forward instead of backward.

The rare book section of the library gave me what I was looking for. I scanned the indices of all New York statutes from the time the English took over Manhattan Island from the Dutch. There was nothing usable on conspiracy in any index. However, I spotted a word that looked enticing: "chirurgion."

Read as broadly as possible because you never know when some little bit of information will be helpful. That is what happened here. Years before, I had come across an article on the origin of red-and-white striped barber poles which claimed they originated in Germany. Because of their intimate knowledge of knife sharpening, barbers also conducted a sideline business in surgery. The poles outside their shops were painted white to match the plastered walls of their buildings. When the rags used to wipe up the blood were washed, they were draped around the poles to facilitate drying. These precursors of present day surgeons were called "chirurgeons."

This turned out to be the clue I was looking for. Here is how it came out in the brief:

THE MEANING OF THE TERM

"INJURY TO THE PUBLIG HEALTH"

HAS BEEN WELL KNOWN TO THE

COMMON LAW FOR HUNDREDS OF YEARS

The meaning of the term "injury to the public health" has been well known to the common law for several hundred years. It goes back to the very foundation of the Colony of New York in 1664 when the English took over Manhattan Island from the Dutch.

The Duke of York's Laws for the Government of the Colony of New York were compiled under the direction of the first governor, Richard Nicolls, from existing laws for the government of other English colonies in America. The following statute, sandwiched somewhat alphabetically amidst titles such as "churchwardens," "charges public," "children and servants," and material relating to courts, goes right to the heart of "injury to the public health." It became effective in 1665.

That no Person or Persons whatsoever, Employed about the Bed of Men women or Children at any time for the preservation of Life or health as Chirurgions, Midwives, Physicians or others; presume to Exercise or put forth any Acte Contrary to the known approved Rules of Art in each mistery or Occupation, or exercise any force, violence or Cruelty upon, or to the Bodies of any whether Young or old; without the advice and Councell of the such as are skillful in the same Art (If such may be had,) or at least of some of the wisest and gravest when present and Consent of the patient or patients if they be Mentis Compotes: much less Contrary to such Advice and Consent upon such severe punishments as the nature of the fault may deserve, which Law nevertheless is not intended to discourage any from all Lawful use of their skill but rather to encourage and direct them in the right use thereof, and to inhibit and restrain the presumptuous arrogance of such as through Confidence of their own skill, or any sinister Respect, dare boldly attempt to Exercise any violence upon or toward the body of young or old one or other, to the prejudice or hazard of the Life or Limb of man, woman or child." Vol. 1, The Colonial Laws of New York from the Year 1664 to the Revolution, pp. 6, 27.

In 1755, New York enacted its first law setting up a ship quarantine area to curtail the spread of infections and contagious diseases. Van Shaak's Laws, ch. 973; 3 Colonial Laws of New York, 1071.

In 1760, the New York Colonial Legislature passed an act to restrain quacks practicing in the City of New York, which act provided for examination and licensing of physicians and surgeons, and provided monetary penalties for practicing without the certification.

The preamble of that act provided:

"WHEREAS many ignorant and unskillful Persons in Physic and Surgery in order to gain a Subsistence do take upon themselves to administer Physic and practice Surgery in the City of New York to the endangering of the Lives and Limbs of their Patients; and many poor and ignorant Persons inhabiting the said City who have been persuaded to become their Patients have been great sufferers thereby: For preventing such Abuses for the future. ..." 4 Colonial Laws of New York, 455, 1180.

In 1806, the New York State Legislature passed the first medical society act and turned over the examination and licensing of doctors to the profession. The act provided for expulsion of members, if necessary, and that other than grandfather clause practitioners could not thereafter practice unless certified by the society. Laws of New York, 29th Session, ch. 138.

It is submitted that the term "any act injurious to the public health" was a well defined phrase at common law and specifically was directed toward (1) quarantine violations, and (2) unnecessary operations and unlicensed practice of medicine which had for their motives avarice and greedy expectation of financial gain or other sinister purposes.

It is also persuasive to note that when the conspiracy statute was initially enacted, everything, after the initial language relating to com-mission of any offense, was directed to crimes revolving around fraud. And fraud obviously was one of the sinister purposes for which doctors could have been severely punished under the Duke of York Laws and later colonial laws relating to unlicensed practice of medicine.

Finally, the great concern of government that its citizens must be protected from intentional acts obviously injurious to the public health is reflected in the fact that both the Duke of York Laws and the original California statute were each promulgated or enacted at the very time the respective governments were first being established: in New York right after the surrender of the Dutch; in California right after admission of the state.

By the time of oral argument, I found more material in a little book entitled His Majesty's Laws for the Plantations of Delaware and Pennsylvania. Accompanied by an armed library bailiff, I brought that rare old volume to court with me. You should have seen the justices delicately turning the brittle pages. If you are interested, you can read the entire decision in People v. Rehman, 253 Cal. App. 2d 119,61 Cal. Rep. 65. You will not often have the opportunity to play around with legal history in such depth, but when conditions are ripe you can have a lot of fun and satisfaction.