§ Mr. Wakleyrose to move, pursuant to Notice—
That a Select Committee be appointed to inquire into the Management of the Royal College of Surgeons of England:—Also, to investigate the Circumstances which led to the grant of an additional Charter to the Council in 1843, and into the Effects produced by the operation of that Charter upon the interests and professional rank of the great body of the Members of the College.He had received numerous letters on the subject; but the Motion had been specially brought forward in consequence of a petition he had presented, on the 31st of March last, from the surgeons of Gloucestershire, showing—That, by virtue of a charter granted in the year 1843 by Her Majesty, the Council were empowered to select from among the members a certain number of persons, and to confer upon them the dignity and title of 'Fellows,' together with the privilege of electing the Council in future. That while your petitioners cannot but look upon such a distinction (however desirable in itself) as unjust, if made to operate retrospectively upon the character and interests of the great body of the members of the College, they more particularly desire to assert their most indignant protest against the manner in which the Council have exercised the power entrusted to them by the said charter. That the charter requires that all existing members of the College shall undergo another examination, or be for ever excluded from the honour and privileges of the fellowship, an indignity from which your petitioners cannot but feel that the possession of the before-mentioned diploma, and a devotion of many years to the active duties of their profession, ought, in fairness, to have exempted them; the petitioners, therefore, humbly pray that no Bill concerning the medical profession which shall in any way recognise the distinctions alluded to, be allowed to pass into a law until such an inquiry shall have been instituted.The right hon. Baronet (Sir J. Graham) was pretty well aware by this time that he had made a false step in making the grant of that charter. It was pretty clear that the right hon. Gentleman felt that was the case from what he had said the other night; but, nevertheless, the right hon. Gentleman did not intend, as he gathered from his language, to make any of those changes which the profession were so anxious to see. In bringing forward this Motion, he was placed in a difficulty, by the fact of the Bill with the alterations not having been printed as yet for the use of Members, and he was therefore ignorant 417 of what changes the right hon. Gentleman designed to make. The history of the conduct of the council of the College of Surgeons had been one of injustice. For some time previous to the year 1826, the tendency of their conduct had been to throw fees into the hands of their own body, and acquire a monopoly of the public offices. In consequence certain resolutions had been passed at a meeting of a body of gentlemen holding high places in the profession, who were presided over on that occasion by Mr. Lawrence, who was at present a member of the College, and consisting of nearer 2,000 than 1,500 persons; and those resolutions, which were, to the best of his recollection, carried unanimously, condemned, in the strongest and most unequivocal manner, the conduct of the Council of the College up to that period, the last of them being to petition the House of Commons that the members of the Council should be elected by the members generally. The following were the resolutions then agreed to:—That the public, and the members of the surgical profession, may justly complain that the science of surgery has not been advanced, nor its practitioners benefited, either by the late corporation or the present Royal College of Surgeons in London. That the regulations first promulgated and acted upon in 1823, prescribing the course of study required of candidates for the diploma, contain provisions of the most oppressive character, injurious to the rights and property of individuals, calculated to increase the expense and difficulty of acquiring surgical knowledge, and to serve the private interests of the ten examiners by whom these regulations were made.That petition had been presented by his hon. Friend the Member for Kendal (Mr. Warburton), whom he was sorry not to see in his place. Up to that time the College had no catalogue of the Hunterian Museum, which had been purchased at a great expense of public money, and was in great disorder; and they had no library. In 1834 a Committee was appointed by the House of Commons, presided over by the hon. Member (Mr. Warburton), before whom a large portion of evidence was produced by members of the College and practitioners of great eminence, and that evidence confirmed the charges which had been made against the management of the council of the College. From that period to 1843 societies were formed in various parts of the country, medical 418 clubs and associations, all complaining of the grant to the College; and a new force was given to that movement by the annoying operation of the Poor Law Amendment Act. But in 1843, to their profound amazement, they were informed that a new charter had been granted by the Crown, and new privileges most unjustly bestowed on the Council, whose conduct had been so severely reprobated. They scarcely credited the information; but, unfortunately, a short time proved that the statement was perfectly true, and that that document had been issued under the sign manual of the Crown, conferring on the Council most extraordinary powers and privileges. The right hon. Baronet supposed that he had curtailed those powers, and posterity might think so; but the charter would at this time injuriously affect 10,000 of the profession. The sciences of surgery and medicine were also called in it two branches, when, in reality, they were but one. That was the universal opinion of all writers of observation and ability; and yet he found that in the charter of 1843 a broad distinction was made between surgery and the practice of pharmacy and midwifery; and those who practised the latter were, by the terms of the Act, excluded from belonging to the governing body of the College of Surgeons. That exclusion was calculated to degrade the general body of medical practitioners; and it stamped the practice of medicine and midwifery as an inferior profession. It was also a novelty. True it was that such provisions were included in the by-laws of the Council; but until this charter there were none that had received the sanction of the Crown, or were recorded in any of the statutes of the College. The clause to which he referred was as follows—That from henceforth no member of the said College, who shall not also be a fellow of the same, shall be eligible as a member of the council of the said College; nor shall any fellow be so eligible whilst practising midwifery or pharmacy, or who shall have practised midwifery or pharmacy at any time during the five years next preceding the day of election; nor unless he shall reside and bonâ fide practise his profession of surgeon within five miles by highway or road from the General Post Office in St. Martin's-le-Grand. And if any member of the council shall at any time after his election practise midwifery or pharmacy, or shall cease to reside and bonâ fide practise his profession of surgeon within five 419 miles of the General Post Office, as aforesaid he shall be liable to removal from the council.One would have supposed that such a charter had been issued in the 16th century, instead of 1843, and it was laughed at by all except those who suffered from its effects. It was as absurd and ridiculous a document as any that had ever received the sign manual. It was impossible that the great body of the profession could see such provisions conferred on the Council without considering that it was calculated to inflict upon them a most unmerited injury. Under such circumstances, it might be easily supposed they would feel strong discontent; and that discontent had been expressed in various ways, by petitions to that House, by remonstrances to the Council, and by memorials to the right hon. Gentleman. It was, indeed, difficult to say who was pleased with the charter. The right hon. Gentleman was not pleased with his offspring, and considered that it possessed very ugly features. He supposed, then, that the council must be pleased with it; but out of twenty-one councillors, one, who was president of the College a few years ago, had presented two petitions to that House, praying for inquiry into the grant, the circumstances that led to it, and its operation. What was the language of Mr. Guthrie, the eminent surgeon of the Westminster Hospital, one of the Council, and late president? He said—That although your petitioner, in his collective capacity has been compelled to accept the grant of a new charter to the said College, a copy of which was lately laid on the Table, of your hon. House, he considers several of the provisions of the said charter to be illiberal, exclusive, and unjust.That was his language in the petition presented by him last year. What then did he say in the petition addressed to that House this year?—Your petitioner, aware of the unfitness of this charter for the purposes for which it was intended, opposed its acceptance in his place in the council of the said College, and has on every possible occasion objected to its continuance. The parts of the charter to which your petitioner particularly objects are those which, from their supposed liberality, are considered by the few advocates it possesses to form a praiseworthy feature in its construction, but which your petitioner is ready to prove are the principal causes of the discontent which has been manifested throughout the profession in a manner hitherto unprecedented; and that, so far from any of them being acts of liberality, they are really otherwise, being either deceptive in 420 their nature, or so despotic and unjust in their character, as to be discreditable even to a purely arbitrary government, and the retention of which cannot be maintained before any competent court or Committee of Inquiry.What did the Council say of it themselves? In a statement which they had just published as a vindication of their conduct some time last year they said:—If the changes introduced by the present charier are to have the effect of elevating the character of the surgical profession generally, it will be in the next, rather than in the present generation.The majority of the Council looked upon the duties imposed on them by the right hon. Baronet as invidious. So long ago as 1826, the right hon. Baronet now at the head of the Government was earnestly entreated to approve of provisions for giving to the members of the College some share in the government of it; and it was thought at the time he was not unfriendly to the prayer of that petition. He could not understand how a Minister of the Crown should feel himself justified in taking the course which the right hon. Baronet the Secretary for the Home Department had adopted in 1843 relative to granting this charter. In his opinion, the right hon. Gentleman exercised very unconstitutional powers, and he thought most unjustly so, with reference to a large body of the medical profession. But what had been the case with the petitions which had for the last twenty years been addressed to that House by thousands of the medical profession praying that they might be placed in a proper position in their own institutions? They had been answered secretly by a Minister of the Crown, who, yielding to some private influence or solicitation at the Home Office, instead of punishing the Council for their misconduct, invested them with new powers, enabling them to inflict most extreme annoyance on their professional brethren. Of this, however, he was quite sure, that the right hon. Baronet had been deceived by some person whose judgment he ought not in future to respect, and upon whose recommendation, as a public man, he ought not to place further reliance. The right hon. Gentleman the other night had referred to some alteration that he was disposed to make in the charter relative to the standing of the fellows. That was the most absurd and ridiculous thing he could conceive. 421 The College was empowered, according to the provisions of the charter, to elect 300 members, to be called Fellows, within three months from the time of the charter — the 14th of September, 1843. No condition was laid down as to the mode of exercising that power—it was perfectly arbitrary. Between December, 1843, and September, 1844, they were also empowered to elect any other number of persons into the class of Fellows; but so much annoyance had their former labours produced among their profession, that they returned to their duty after having elected 300 Fellows with extreme reluctance; for it was not till the end of the year, when the power of creating Fellows expired, that they elected 240 more, making in all 540. Now, the Fellows were the persons from whom the future councillors were to be selected. But what was the case? That men who had obtained diplomas forty years ago were placed lower in the list than men who obtained their diplomas in 1840; so that under the present arrangement the former had no chance of becoming members of the Council. Could the right hon. Gentleman suppose that an arrangement of that kind would be productive of anything but dissatisfaction? And whom had the College elected Fellows?—Two hundred and twenty-nine surgeons of general hospitals in various parts of the United Kingdom; fifty-two teachers of the various branches of medical science, recognised as such by former acts of the council; ten who had distinguished themselves by their contributions to the sciences connected with surgery; forty surgeons resident in London not practising pharmacy or midwifery, who were considered eligible to the council under the former charter and by laws, and who, if not admitted to the fellowship, would have been deprived of a privilege which they formerly possessed (many of these, though not connected with general hospitals, hold important public appointments); four senators of the University of London; 132 surgeons in the navy, army, and East India Company's service (these were recommended by the heads of their respective departments, with the exception of the surgeons of the regiments of Guards, who, being independent of the Army Medical Board, were nominated by the council according to seniority); sixty-seven provincial surgeons, who, though not attached to general hospitals, have a high surgical reputation in their respective districts (many of these hold important public appointments, and there is no one among them whose diploma is dated since 1824). To these may now be added, 422 thirty-nine admitted by examination in December, 1844, and April, 1845.Upon the face of that document it was apparent that inquiry was demanded, or that the right hon. Gentleman should acknowledge that the charter should not stand. It was impossible to look at the principle that governed it, or to the paucity of individuals elevated, without feeling and being convinced that such a state of things could not continue without the utmost dissatisfaction. Not one of the 67 surgeons whose diplomas were granted in 1824, and in some succeeding years (as we understood the hon. Member), had been appointed Fellows; but in the first 300 Fellows appointed, there were 30 whose diplomas were dated between 1833 and 1837. This was not the time for going into the whole question of medical policy; but, with reference to the provisions of the charter, he might be allowed to quote the language of several gentlemen of great experience and of high distinction in the profession—men of European celebrity—who were examined before the Committee of 1834. By the clause in the charter referring to midwifery and pharmacy, the right hon. Baronet (Sir J. Graham) excluded from seats in the Council persons who had practised midwifery and pharmacy during the five years antecedent to the day of their election. It had been acknowledged for many years past that a medical practitioner, in order to exercise his professional functions with safety to his patients, should be educated not merely in a part, but in the whole of his profession. The expressive observation made by Mr. Abernethy in 1828, that "medicine and surgery are one and indivisible," had frequently been quoted; and its force and truth were admitted. But, notwithstanding such a dictum, the right hon. Baronet had, by his charter, separated the different branches of the profession; and had, in fact, cast odium upon those members of the profession who were engaged in the practice of pharmacy and midwifery. Mr. Lawrence, a member of the council, was asked by the Committee of 1834—Is not a large share of the actual practice of a London surgeon medical practice?—Unquestionably: surgical cases are principally treated by means called medical. Perhaps this practice extends, not merely to the medical treatment of surgical cases, but to the treatment of many cases altogether medical? 423 —Decidedly; a great portion of it is medical. A large portion of the practice of the surgeon being medical, ought not the course of study and examination prescribed by the Council of your College to comprehend pharmacy and therapeutics?—Unquestionably. Might not the present course be animadverted upon, as deficient in those respects?—Undoubtedly; it must be considered very imperfect, if it is regarded as a course of medical education. As far as you know what the duties are, the performance of which is exacted by your College from its members, is there anything in those duties that should render a man unfit to be at the same time a member of the College of Surgeons, and a licentiate of the College of Physicians?—Nothing: I think there are good reasons why every one who is elected, either a fellow, or a licentiate of the College of Physicians, should possess a knowledge of surgery. If there are any reasons against the possession of such knowledge, I am not acquainted with them.The next gentleman to whose evidence he would refer was Sir B. Brodie, who was asked—Is it not a very important part of the business of a surgeon, by proper medical treatment, to prevent the necessity of operating?—Yes; it is a great mistake that is sometimes made, to suppose that the great business of the surgeons is to perform operations. That is one part of their business; but only the smallest part. The principal employment of surgeons is to prevent the necessity of operations; which, however, they will perform when they are wanted. In the present improved state of the art, the greater number of cures made in cases which are universally acknowledged to be surgical, are made by medical treatment, not by operations.And yet this class of medical practitioners were to be excluded from the Council of the College of Surgeons! Sir Astley Cooper was asked—In the case of army surgeons residing in this country, do they not practise pharmacy as well as surgery in the treatment of diseases in the regiment?—I do not know that they practise what I call pharmacy; they all prescribe, but I do not know that they make up their medicines. The fact is we are all physician-surgeons, and it is a folly to say that any man is a pure surgeon; for as to practising surgery without physic, it is absolutely impossible.Mr. Travers, also a member of the Council, was asked—Are the medical and surgical cases separated at St. Thomas's Hospital?—They are. Was it the rule some years ago, that in a case requiring external and internal treatment, the surgeon attended to the surgical treatment, 424 and the physician the medical treatment of the patient?—Yes it was. How long ago has that rule been rescinded?—It was not formally rescinded until about seven years ago; but before that there was a gentlemanlike understanding and concession of the point between the physicians and the surgeons. The surgeons had their prescriptions prepared, though in this they were obliged to be very cautious. I was elected to the hospital in 1815; and I remember that for many years after, we literally could not prescribe beyond a black draught or a dose of opening medicine. Was that by order of the governors?—It was; and a most grievously injurious system it was. Suppose, in a case of mortification, not admitting of delay, the surgeon and the physician differed upon the treatment of the patient, how were they to arrive at a decision?—I have always had the good fortune to have a colleague (for we have each a colleague according to our standing) who has been too much of a gentleman to interfere with the treatment of my cases.These were the arrangements existing in the Borough hospitals so lately as 1827; at at this moment relics of such arrangements still continued in some of the hospitals. It was acknowledged that no man could practice safely and properly as a surgeon unless he possessed an acquaintance with medical practice. In fact, the surgeon not only understood what ought to be done, but he said to the public, "I am capable of doing it; there is no function connected with my surgical or medical duties from which I shall shrink." Again he said, these were the men who were degraded by the present charter. He hoped the right hon. Home Secretary must now be satisfied that he had been acting upon most incorrect information as to the rule and practice of medicine, and that he would not persist in carrying out his present views. With reference to the practice of midwifery, Mr. Lawrence was asked—Ought midwifery to be one of the subjects which candidates should be required by your council to have studied, and to be examined upon?—I think midwifery ought to be studied by those who mean to practise the medical profession, and that such persons ought to be examined on that subject. Ought it to form a part of the course prescribed by the College of Surgeons? I think it ought. Ought there not to be on the Board of Examiners practitioners in midwifery?—I think that would be necessary, if the College of Surgeons are to perform the duty of examining in midwifery.Sir Astley Cooper, on the same subject said—I hold that, as to the practice of midwifery, it is one of the most important operations in 425 surgery, and ought not to be neglected; yet it has been grossly neglected.Sir Astley was asked,—You have already proposed that the examinations in midwifery should not be intrusted to the Apothecaries' Company, but to examiners connected with the College of Surgeons?—There are a great number of respectable apothecaries in London who have practised midwifery to a great extent; and in that body there would be many individuals found who could give good examinations in midwifery. But I think the best constructed board would be derived from those men who practise midwifery almost exclusively. I have heard of such horrors from ignorance in midwifery as would harrow up your souls if I were to repeat them.He (Mr. Wakley) considered it the extreme of folly to throw disrepute upon that class of practitioners who were engaged in such an onerous branch of the profession as midwifery, by excluding them from the council of the College of Surgeons. He was sure the right hon. Baronet could not have been aware of the danger to which society in this country would be exposed by such a measure. The wealthy portion of the community could never have any difficulty in obtaining the aid of the most skilful medical practitioners; but it ought to be the object of the Government and of the Legislature, in dealing with such a question as this, to provide competent medical practitioners for the millions—to take care that from one extremity of the kingdom to the other there should not be a single unqualified medical man. Within the last year several cases had been published in connexion with the practice of midwifery, in which the uterus had been absolutely torn away; and in one instance a medical practitioner tore from the body of an unfortunate victim eighteen feet of intestines. Four cases of this kind had been published during the last twelve months; and these occurrences were attributable to the folly of their legislation. The Legislature, in dealing with this subject, ought to act with more prudence and wisdom; and he was convinced that if the right hon. Home Secretary acted with more determination — disregarding the palty, petty interests which beset and perplexed him, he could, within forty-eight hours, lay before the House a plan of medical legislation which would secure to the public throughout the kingdom a class of competent medical practitioners. It was especially their duty to see that 426 the poor were provided with competent medical practitioners. A poor man in the country, with a wife and a family of six or seven children, might meet with a serious accident; he would be taken to his cottage; he had no hospital to go to—no Brodies or Listons to attend him; the neighbouring surgeon was the only medical man to whom he could have recourse. The most careful treatment, the most extreme sagacity, might be required on the part of the surgeon; if he failed, what was the condition of the poor man's family? The husband—the father—died, and his wife and children were consigned to the workhouse. He maintained that the Legislature were, to a great extent, answerable for such consequences; for there was no difficulty in obtaining the most competent medical practitioners for all classes of the community. Then, he called upon the Mouse to consider the situation of a poor woman, the mother of a large family, in childbirth. The hon. Gentlemen whom he addressed little knew the condition of the poor in such circumstances; often they were destitute of every comfort—frequently they had not even the necessaries of life. If the surgeon was not equal to the emergency, the woman expired; and thus the misery of these unfortunate people was increased by the evil of incompetent medical practitioners. But he would go a step higher; he would ask the House to consider the case of the families of farmers and persons in the middle class. Those persons entertained the same anxiety for the welfare of their relatives as was felt by the aristocracy, or the more wealthy portion of the community. But to what misery and torture were they subjected by being compelled to employ unqualified medical practitioners! He was enabled to state that the great body of surgeons in this country were fully competent to discharge their professional duties; he would venture to say that a more competent body of medical men could not be found elsewhere; but, by the operation of a charter which they had no reason to expect would issue from the Crown, they were lowered in their own estimation, and degraded in professional rank. They saw selected as the higher members of the College a number of individuals who had no merit beyond themselves—who had not been distinguished more than themselves in medical pursuits. It might be difficult 427 for Ministers to understand the feelings' of medical men in such circumstances; but he would ask them to picture to themselves the case of a surgeon in the country who for twenty years had occupied high professional rank, and who now suddenly found men twenty years his junior placed completely over his head, and elevated to a high professional position. If the Committee for which he now asked was granted, he would be able to prove that hundreds of surgeons who had been elevated to the rank of Fellows, had attained no professional reputation. Under these circumstances he would ask the right hon. Home Secretary, first, whether it were his intention to refuse an inquiry; and in the event of such refusal, secondly, if he would state whether it were his determination to maintain the charter in its present odious integrity? He could not believe that if the right hon. Baronet should refuse this inquiry he would persist in the latter course. The Council of the College had acted in the most unjustifiable manner. In an address to the National Association of General Practitioners some time since the Council said—Under a sense of justice to their future members, who will possess the same qualification as the present members, and under the obligation which the institution of the novel honorary degree imposed, they necessarily sought other evidence of distinguished surgical attainments than the ordinary diploma, which attests only the amount of proficiency required of all.The public were therefore left to infer, that all the existing members possessed only inferior qualifications. The members of the College did not seek the inquiry for which he (Mr. Wakley) now asked with the view of causing any annoyance to the Council; on the contrary, their only desire was that the medical institutions of this country should be placed on a proper foundation, and governed by wise and sound laws. The members of the College considered that they were entitled to a share in the government of their own institution. The charter expressly stated that the o[...]dy corporate consists of the members, the governing body consisting of the Council. Why, then, should the request of the members be refused? If their claim were just, ought any absurd and ridiculous prejudices the Council might entertain, as to practitioners in pharmacy and midwifery, to prevent a concession of 428 their demand by the Government? He believed, when the right hon. Baronet's Bill came under their consideration, the House by its decision would agree with him on the subject. Would it be wise, he would ask, to establish a multitude of medical corporations? As a body, the Council of the College repudiated the practice of medicine: yet all the Council openly confessed that the smallest portion of the science of medicine was surgery. Then it was said that the corporate rights of the College of Surgeons ought to be called into activity; but he would ask, who could call their corporate rights into action unless it were the College itself? The fact was, that the College of Surgeons treated the whole of the privileges conferred on them as if they were their own private property—their own fee-simple, and he regretted to perceive that the course pursued by the right hon. Baronet opposite seemed to encourage that idea. But the public by this time pretty well understood that the Council of the College of Surgeons were mere trustees. Now, the right hon. Baronet, in dealing with such a body of men, should say frankly that which was the fact. He should tell those trustees that they had betrayed their trust; that they had done nothing for the science of surgery. If the Council of the College of Surgeons had done their duty in the year 1815, the members of that College would now be in the full possession of their rights. The House knew perfectly well, and it was quite unnecessary for him to remind hon. Members, that the Home Secretary, by his measures, showed an evident intention to render the College of General Practitioners inferior to that of the Surgeons and of the Physicians—to make it appear to the world that they were an inferior order of men. Now, that class of men were exactly those whom the House ought to protect, because they were the advisers of the poor; and the poor, by reason of their poverty, were unable to assert their own rights. He was not aware that any appeal which he might make to the right hon. Baronet stood the least chance of being successful. It must be obvious to every one that the right hon. Baronet had got into serious difficulties, and that he did not seem exactly to know how to get out of them; but he ought not to seek to escape from the embarrassments which surrounded him, by conferring power and distinction 429 upon a body like the Council of the College of Surgeons, who had betrayed their trust. How had that body treated the private lecturers? There was Mr. Brookes, one of the greatest anatomists of the age in which he lived. He was never elected a Fellow of the College. He well recollected, that often at the close of a session, Sir Astley Cooper was in the habit of saying—"Well, gentlemen, the session is now over; but if any one desires further instruction in anatomy, let him go to Mr. Brookes." Yet Mr. Brookes was never chosen on the Council, and it was well known that he died in poverty. There was also Mr. Carpue; he still lived, but he was not a member of the Council. Mr. Dunlop was also an eminent teacher; yet the Council refused to elect him. Was not that disgusting? Was it not intolerable that men of merit should be so treated? The explanation of the whole matter was, that some of those gentlemen taught cheap, and therefore they were not chosen members of the Council. Looking then at the character and conduct of the College of Surgeons, he could not help saying how much he regretted that the right hon. Baronet should have listened to the representations which had been addressed to him. He unfortunately listened to representations made to him at the Home Office by parties in whom he ought to place no confidence; and he paid no attention to the complaints and representations made in the hundreds of petitions which had poured in from all parts of the country. For all these reasons, then, he did intreat and implore the right hon. Baronet to retrace his footsteps—to disregard private and local interests—to attend to the true interests of the whole people—and, at the close of his labours, to be able to thank God, that under the law as it now stands, there shall not be one unqualified medical practitioner. He hoped that the right hon. Baronet would not refuse him a Committee. However, if his first Resolution were not agreed to, be should take the sense of the House on his second Resolution, which was as follows:—That in any Charter which the Crown may be advised to grant for the Incorporation of the General Practitioners, those gentlemen are fully entitled to enjoy an equality of professional station with the newly created Fellows; that a deep and lasting injury would be inflicted on many thousands of scientific men, if 430 a College of General Practitioners were to be founded as an institution inferior to the College of Surgeons.
§ On the conclusion of the hon. Member's speech, the House was counted out.