false imprisonment against Henry Atkins, George Turner, Thomas
Moundford, and John Argent, doctors in physic, and John Taylor, and Wm.
Bowden yeomen; for that the defendants, the 10 Nov. _anno_ 4 _Jacobi_,
did imprison him, and detain him in prison seven days. The defendants
pleaded the letters patent of King H. 8. bearing date the 23 Septemb.
_anno_ 10 of his reign, by which he recites, [112]_Quod cum Regii
officii sui, &c._ (_quod vide ante p._ 7.) But the case at bar doth
principally consist on two clauses in the charter. The first,
_concessimus etiam eisdem presidenti, &c._ (_quod vide ante p._ 10). The
second clause is, which immediately follows in these words, _præterea
voluit, &c._ (_quod vide ante p._ 10.) And afterwards, by act of
Parliament made _anno_ [113]14 H. 8. it was enacted, that the said
corporation, and every grant, article, and other things in the said
letters patent contained and specified, should be approved, granted,
ratified, and confirmed, &c. _in tam amplo & largo modo prout poterit
acceptari, cogitari, et construi per easdem literas patentes_. And
further it was enacted, that the said six persons named in the said
letters patent, as principal of the said college, should elect to them
two other of the said college, who should be named _electi_, and that
the said elects should chose one of them to be president, as by the said
act appears: and further, they pleaded the act of [114]1 _Mariæ_, by
which it is enacted, _Quod quædam concessio, &c._ And further it was
enacted, “That whensoever the president of the college, or commonalty of
the faculty of physic at London for the time being, or such as the said
president and college shall yearly, according to the tenor and meaning
of the said act, authorize to search, examine, correct, and punish all
offenders and transgressors in the said faculty, &c. shall send or
commit any such offender or offenders for his or their offence or
disobedience, contrary to any article or clause contained in the said
grant or act, to any ward, gaol, or prison, &c.” (see p. 26.) And
further pleaded, that the said Thomas Bonham, 10 April, 1606, within
London, against the form of the said letters patent, and the said acts,
_exercebat artem medicinæ, non admissus per literas præd’ presidentis &
collegii sigillo eorum communi sigillat’ ubi revera præd’ Tho. Bonham
fuit minus sufficiens ad artem medicinæ exercend’_. By force of which,
the said Thomas Bonham, 30 _Aprilis_ 1606, was summoned in London by the
censors or governors of the college, _ad comparend’ coram præsiden’ &
censor’ sive gubernatorib’ collegii præd’_ at the college, &c. the 14th
day of April next following, _super præmissis examinand’_. At which day
the said Tho. Bonham came before the president and censors, and was
examined by the censors _de scientiâ suâ in facultate suâ in medicin’
administrand’. Et quia præd’ Thomas Bonham sic examinatus minus apte &
insufficienter in præd’ arte medicinæ respondebat, & inventus fuit super
examinationem præd’ per præed’ præsident’ censores minus insufficiens &
inexpert’ ad artem medicinæ administrand’ ac pro eo quod præd’ Tho.
Bonham multoties ante tunc examinatus, & interdictus per præsident’ &
censores, de causis præd’ ad artem medicinæ administrand’ per unum
mensem et amplius post talem interdictionem facultatem illam in Lond’
præd’ sine licentia, &c. ideo adtunc & ibid’ consideratum fuit per præd’
præsident’ censores, quod præd’ Thomas Bonham pro inobedientia et
contempt’ suis præd’ amerciaretur to 100s. in proximis comitiis præd’
præsident’ et collegii persolvend’ et deinceps abstineret, &c. quousque
inventus fuerit sufficiens, &c. sub pœna conjiciendi in carcerem si in
præmissis delinqueret_. And that the said T. Bonham, 20 Octo. 1606,
within London did practice physic, and the same day he was summoned by
the censors to appear before the president and them, 22 Octob. then next
following, at which day Bonham made default: _ideo consideratum fuit per
præd’ censores_, that for his disobedience and contempt he should be
amerced to 10l. and that he should be arrested and committed to custody;
and afterward, 7 Nov. 1606, the said T. Bonham, at their assembly came
before the president and censors, and they asked him if he would satisfy
the college for his disobedience and contempt, and submit himself to be
examined, and obey the censure of the college, who answered, that he had
practised and would practise physic within London, _nulla a collegio
petita venia_, and that he would not submit himself to the president and
censors, and affirmed, that the president and censors, had no authority
over those who were doctors in the university; for which cause, the said
four censors, _sc._ Dr. Turner, Dr. Moundford, Dr. Argent, and Dr. Dun,
then being censors or governors, _pro offensis et inobedientia præd’
adtunc & ib’ ordinaverunt & decreverunt, quod præd’ T. Bonham in
carcerem mandaretur ib’ remansur’ quousque abinde per præsident’ &
censores, seu gubernatores collegii præd’ pro tempore existen’
deliberaretur_, and there then by their warrant in writing, under their
common seal, did commit the plaintiff to the prison of the Compter of
London, &c. _absque ballio sive manucapt’ ad custagia & onera ipsius T.
Bonham, donec præd’ T. Bonham per præcept’ præsiden’ & censor’ collegii
præd’ sive successor’ suor’ liberatus esset_; and Dr. Atkins then
president, and the censors, and Bowden and Taylor as their servants and
by the commandment of the said president and censors, did carry the
plaintiff with the warrant, to the gaol, &c. which is the same
imprisonment. The plaintiff replied and said, that by the said act of 14
H. 8. it was further enacted, “And where that in the dioceses of
England, out of London, it is not like to find alway men able
sufficiently to examine (after the statute) such as shall be admitted to
exercise physic in them, that it may be enacted in this present
Parliament, that no person from henceforth be suffered to exercise or
practise physic through England, until such time that he be examined at
London by the said president and three of the said elects, and to have
from them letters testimonial of their approving and examination, except
he be a graduate of Oxford or Cambridge, which have accomplished all
things for his form without any grace;” and that the plaintiff, _anno
Dom._ 1595, was a graduate, _sc._ a doctor in the university of
Cambridge, and had accomplished all things concerning his degree for his
form without [115]grace, by force whereof he had exercised and practised
physic within the city of London until the defendants had imprisoned
him, &c. upon which the defendant demurred in law. And this case was
often argued by the Serjeants at bar in divers several terms; and now
this term the case was argued by the Justices, and the effect of their
arguments who argued against the plaintiff (which was divided into three
parts) shall be first reported. The first was, whether a doctor of
physic of the one university or the other, be by the letters patent, and
by the body of the act of 14 H. 8. restrained from practising physic
within the City of London, &c. The second was, if the exception in the
said act of [116]14 H. 8. has excepted him or not. The third was, that
his imprisonment was lawful for his said disobedience. And as to the
first, they relied upon the letter of the grant, ratified by the said
act of 14 H. 8. which is in the negative, _sc. nemo in dictâ civitate,
&c. exerceat dictam facultatem nisi ad hoc per prædict’ præsidentem &
communitatem, &c. admissus sit, &c._ And this proposition is a general
negative, but [117]_generale dictum est generaliter intelligendum_; and
_nemo_ excludes all; and therefore a doctor of the one university or the
other, is prohibited within this negative word _nemo_. And many cases
were put where negative statutes shall be taken _stricte et exclusive_,
which I do not think necessary to be recited here. Also they said, that
the statute of [118]3 H. 8. c. 11. which in effect is repealed by this
act of [119]14 H. 8. has a special proviso for the universities of
Cambridge and Oxford, which being here left out, doth declare the
intention of the makers of the act, that they did intend to include them
within this general prohibition, _nemo in dictâ civitate, &c._ As to the
second point they strongly held, that the said latter clause, “and where
that in the dioceses of England, out of London,” &c. this clause,
according to the words, extends only to places out of London, and so
much the rather, because they provided for London before, _nemo in dictâ
civitate, &c._ Also the makers of the act put a distinction betwixt
those who shall be licensed to practise physic in London, &c. for they
ought to have the admittance and allowance of the president and college
in writing, under their common seal; but he who shall be allowed to
practise physic throughout England, out of London, ought to be examined
and admitted by the president and three of the elects, and so they said,
that it was lately adjudged in the King’s Bench, in an information
exhibited against the said Dr. Bonham for practising physic in London
for divers months. As to the third point they said, that for his
contempt and disobedience before them at their assembly in their
college, they might well commit him to prison for they have authority by
the letters patent and act of Parliament, and therefore for a contempt
or misdemeanor before them they may commit him. Also the act of [120]1
M. has given them power to commit them for every offence or disob.
contrary to any article or clause contained in the said grant or act.
But there is an express negative article in the said grant, and ratif.
by the act of 14 H. 8. _Quod nemo in dictâ civitate, &c. exerceat, &c._
and the defendants have pleaded, that the plaintiff had practised physic
in London by the space of one month, &c. and therefore the act of 1
_Mariæ_ has authorised them to imprison him in this case; wherefore they
concluded against the plaintiff. But it was argued by Coke Chief
Justice, Warburton and Daniel Justices of the Common Pleas, to the
contrary. And Daniel Justice conceived, that a doctor of physic, of the
one university or the other, &c. was not within the body of the act, and
if he was within the body of the act, that he was excepted by the said
latter clause; but Warburton argued against him for both the points; and
the Chief Justice did not speak to those two points, because he and
Warburton and Daniel agreed, that this action was clearly maintainable
for two other points, and therefore in this action the Chief Justice
omitted to speak to the said two points; but to two other points, he and
the said two other Justices, Warburton and Daniel, did speak, _sc._ 1.
Whether the censors have power, for the causes alledged in their bar, to
fine and imprison the plaintiff. 2. Admitting that they have power to do
it, if they had pursued their power. But the Chief Justice, before he
argued the points in law, because much was said in commendation of the
doctors of physic of the college in London, and somewhat (as he
conceived) in derogation of the dignity of the doctors of the
universities, he first attributed much to the doctors of the said
college in London, and confessed that nothing was spoke in their
commendation which was not due to their merits: but yet that no
comparison was to be made between that private college, and either of
the universities of Cambridge and Oxford, no more than between the
father and his children, or between the fountain and the small rivers
which descend from it; the university is _alma [121]mater_, from whose
breasts those of that private college have sucked all their science and
knowledge (which I acknowledge to be great and profound) but the law
saith, _erubescit lex filios castigare parentes_: the university is the
fountain, and that and the like private colleges are _tanquam rivuli_,
which flow from the mountain, _et melius est petere fontes quam sectari
rivulos_. Briefly, _Academiæ [122]Cantabrigiæ & Oxoniæ sunt Athenæ
nostræ nobilissimæ, regni soles, oculi & animæ regni, unde religio,
humanitas, et doctrina in omnes regni partes uberrimè diffunduntur_: but
it is true, _nunquam sufficiet copia laudatoris, quia nunquam deficiet
materia laudis_; and therefore these universities exceed and excel all
private colleges, _quantum inter virburna cupressus_. And it was
observed that K. H. 8. in his said letters patent and the K. and the
Parliam. in the act of 14 H. 8. in making of a law concern. physicians,
for the more safety and health of men, therein follow the order of a
good physician (_Rex [123]enim omn’ artes censetur habere in scrinio
pect’ sui_) for, _medicina est duplex, removens, [124]& promovens;
removens morbum, & promovens ad salutem_: and therefore five manner of
persons (who more hurt the body of man than the disease itself, one of
which said of one of their patients, _fugiens morbum incidit in
medicum_) are to be removed; 1. _Improbi._ 2. _Avari, qui medicinam
magis [125]avaritiæ suæ causa quam ullius bonæ conscientiæ fiducia
profitentur._ 3. _Malitiosi._ 4. _Temerarii._ 5. _Inscii._ And of the
other part five manner of persons were to be promoted, as appears by the
said act, _sc._ those who were, 1. profound. 2. sad. 3. discreet. 4.
groundly learned. 5. profoundly studied. And it was well ordained, that
the professors of physic should be profound, sad, discreet, &c. and not
youths, who have no gravity and experience; for as one saith, [126]_In
juvene theologo conscientiæ detrimentum, in juvene legista bursæ
detrimentum in juvene medico cœmiterii incrementum._ And it ought to be
presumed, every doctor of any of the universities to be within the
statutes, _sc._ to be profound, sad, discreet, groundly learned, and
profoundly studied, for none can there be master of arts (who is a
doctor of philosophy) under the study of seven years, and cannot be
doctor in physic under seven years more in the study of physic; and that
is the reason that the plaintiff is named in the declaration doctor of
Philosophy, and doctor of physic; _quia oportet medicum esse
philosophum, [127]ubi enim philosophus desinit, medicus incipit_: as to
the two points upon which the Chief Justice, Warburton and Daniel, gave
judgment. 1. It was resolved by them, that the said censors had not
power to commit the plaintiff for any of the causes mentioned in the
bar; and the cause and reason thereof shortly was, that the said clause,
which gives power to the said censors to fine and imprison, doth not
extend to the said clause, _sc. quod nemo in dictâ civitate_, &c.
_exerceat dictam facultatem, &c._ which prohibits every one from
practising physic in London, &c. without licence from the president and
college; but extends only to punish those who practise physic in London,
_pro delictis suis in non bene [128]exequendo, faciendo & utendo
facultate medicinæ_, by fine and imprisonment: so that the censors have
not power by the letters patent, and the act, to fine and imprison any
for practising physic in London, but only _pro delictis suis in non bene
exequendo, &c. sc._ for ill, and not good use and practice of physic.
And that was made manifest by five reasons, which were called _vividæ
rationes_, because they had their vigour and life from the letters
patent, and the act itself; and the best [129]expositor of all letters
patent, and acts of Parliament, are the letters patent and the acts of
Parliament themselves, by construction, and conferring [130]all the
parts of them together, [131]_Optima statuti interpretatrix est (omnibus
particulis ejusdem inspectis) ipsum statutum_; and [132]_injustum est
nisi tota lege inspecta una aliqua ejus particula proposita judicare vel
respondere_. The first reason was, that these two were two absolute,
perfect, and distinct clauses, and as parallels, and therefore the one
did not extend to the other; for the second begins, _præterea voluit et
concessit, &c._ and the branch concerning fine and imprisonment is
parcel of the 2d clause. 2. The first clause prohibiting the practice of
physic, &c. comprehends four certainties: 1. Certainty of the thing
prohibited, _sc._ practice of physic. 2. Certainty of the time, _sc._
practice for one month. 3. Certainty of penalty, _sc._ 5l. 4. Certainty
in distribution, _sc._ one moiety to the King, and the other moiety to
the college, and this penalty he who practises physic in London incurs,
although he practises and uses physic well, and profitable for the body
of man; and on this branch the information was exhibited in the King’s
Bench. But the clause to punish _delicta in non bene exequendo, &c._ on
which branch the case at bar stands, is altogether uncertain, for the
hurt which may come thereby may be little or great, _leve vel grave_,
excessive or small, &c. and therefore the King and the makers of the act
could not, for an offence so uncertain, impose a certainty of the fine,
or time of imprisonment, but leave it to the censors to punish such
offences, _secundum quantitatem delicti_, which is included in these
words, _per fines, amerciamenta, imprisonamenta corporum suorum, et per
alias vias rationibiles et congruas_. 2. The harm which accrues by _non
bene exequendo, &c._ concerns the body of man; and therefore it is
reasonable that the offender should be punished in his body, sc. by
imprisonment; but he who practises physic in London in a good manner,
although he doth it without licence, yet it is not any prejudice to the
body of man. 3. He who practises physic in Lon. doth not offend the
statute by his practice, unless he practises it by the space of a month.
But the clause of _non bene exequendo, &c._ doth not prescribe any
certain time, but at what time soever he ministers physic _non bene,
&c._ he shall be punished by the said second branch: and the law hath
great reason in making this distinction, for divers nobles,
[133]gentlemen, and others, come upon divers occasions to London, and
when they are here they become subject to diseases, and thereupon they
send for their physicians in the country, who know their bodies, and the
cause of their diseases; now it was never the meaning of the act to bar
any one of his own physician; and when he is here he may practise and
minister to another by two or [134]three weeks, &c. without any
forfeiture; for any one who practises physic _bene, &c._ in London
(although he has not taken any degree in any of the universities) shall
forfeit nothing, unless he practises it by the space of a month; and
that was the reason that the time of a month was put in the act. 4. The
censors cannot be [135]judges, ministers, and parties; judges to give
sentence or judgment; ministers to make summons; and parties to have the
moiety of the forfeiture, _quia [136]aliquis non debet esse Judex in
propriâ causâ, imo iniquum est aliquem suæ rei esse judicem_; and one
cannot be judge and attorney for any of the parties, Dyer 3 E. 6. 65. 38
E. 3. 15. 8 H. 6. 19. b. 20. a. 21 E. 4. 47. a. &c. And it appears in
our books, that in many cases, the common law will [137]controul acts of
Parliament, and sometimes adjudge them to be utterly void: for when an
act of Parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will controul it, and adjudge
such act to be void: and therefore in 8 E. 3. 30. a. b. Thomas Tregor’s
case on the statute of W. 2. c. 38. & _artic’ super chartas_, c. 9.
Herle [138]saith, some statutes are made against law and right, which
those who made them perceiving, would not put them in execution: the
stat. of W. 2. [139]c. 21 gives a writ of _Cessavit hæredi petenti super
hæredem tenent’ & super eos quibus alienatum fuerit hujusmodi
tenementum_: and yet it is adjudged in 33 E. 3. [140]_Cessavit_ 42.
where the case was, two coparceners lords, and tenant by fealty and
certain rent, one coparcener had issue and died, the aunt and the niece
shall not join in a _Cessavit_, because the heir [141]shall not have a
_Cessavit_ for the cesser in the time of his ancestor, F. N. B. 209. F.
and therewith agrees Plow. Com. 110. a. and the reason is, because in a
_Cessavit_ the tenant before judgment may render the arrearages and
damages, &c. and retain his land, and that he cannot do when the heir
brings a _Cessavit_ for the cesser in the time of his ancestor, for the
arrearages incurred in the life of the ancestor do not belong to the
heir: and because it would be against common right and reason, the
common law adjudges the said act of Parliament as to that point void.
The statute of [142]Carlisle, made _anno_ 35 E. 1. enacts, that the
order of the Cistercians and Augustines, who have a convent and common
seal, that the common seal shall be in the keeping of the Prior, who is
under the Abbot, and four others of the most grave of the house, and
that any deed sealed with the common seal, which is not so in keeping
shall be void: and the opinion of the court (_in an._ 27 H. 6. Annuity
41.) was, that this statute was [143]void, for it is impertinent to be
observed, for the seal being in their keeping, the Abbot cannot seal any
thing with it, and when it is in the Abbot’s hands, it is out of their
keeping _ipso facto_; and if the statute should be [144]observed, every
common seal shall be defeated upon a simple surmise, which cannot be
tried. Note reader the words of the said statute at Carlisle, _anno_ 35
E. 1. (which is called _Statutum religiosorum_) are, _Et insuper
ordinavit dominus Rex & statuit, quod Abbates Cisterc’ & Præmonstraten’
ordin’ religiosorum, &c. de cætero habeant sigillum commune, et illud in
custodia Prioris monasterii seu domus, et quatuor de dignioribus et
discretioribus ejusdem loci conventus sub privato sigillo Abbatis ipsius
loci custod’ depo, &c. Et si forsan aliqua scripta obligationum,
donationum, emptionum, venditionum, alienationum, seu aliorum
quorumcunque, contractuum alio sigillo quam tali sigillo, communi sicut
præmittit’ custodit inveniant’ a modo sigillat’, pro nullo penitus
habeantur omnique careant firmitate._ So the statute of 1 E. 6. c. 14.
gives chauntries, &c. to the King, saving to the donor, &c. all such
rents, services, &c. and the common law controuls it, and adjudges it
void as to services, and the donor shall have the rent, as a rentseck,
distrainable of common right, for it would be against common right and
reason that the [145]King should hold of any, or do service to any of
his subjects, 14 Eliz. Dyer 313. and so it was adjudged Mich. 16 & 17
Eliz. in _Com’ Banco_ in [146]Strowd’s case. So if any act of Parliament
gives to any to hold, or to have conusans of all manner of pleas arising
before him within his manor of D. yet he shall hold no plea, to which he
himself is party; for, as hath been said, _iniquum est aliquem suæ rei
esse judicem_. 5. If he should forfeit 5l. for one moiety by the first
clause, and should be punished for practising at any time by the second
clause, two absurdities should follow, 1. That one should be punished
not only twice but many times for one and the same offence. And the
divine saith, _Quod [147]Deus non agit bis in idipsum_; and the law
saith, _Nemo debet bis puniri pro uno delicto_. 2. It would be absurd,
by the first clause, to punish practising for a month, and not for a
lesser time, and by the second to punish practising not only for a day,
but at any time, so he shall be punished by the first branch for one
month by the forfeit of 5l. and by the second by fine and imprisonment,
without limitation for every time of the month in which he practises
physic. [148]And all these reasons were proved by two grounds, or maxims
in law; 1. [149]_Generalis clausula non porrigitur ad ea quæ specialiter
sunt comprehensa_: and the case between Carter and [150]Ringstead, Hil.
34 Eliz. Rot. 120. _in Communi Banco_, was cited to this purpose, where
the case in effect was, that A. seized of the manor of Staple in Odiham
in the county of Southampton in fee, and also of other lands in Odiham
aforesaid in fee, suffered a common recovery of all and declared the use
by indenture, that the recoverer should stand seised of all the lands
and tenements in Odiham, to the use of A. and his wife, and to the heirs
of his body begotten; and further, that the recoverer should stand
seised to the use of him, and to the heirs of his body, and died, and
the wife survived, and entered into the said manor by force of the said
general words; but it was adjudged, that they did not extend to the said
manor which was specially named: and if it be so in a deed, _a
fortiori_, it shall be so in an act of Parliament, which (as a will) is
to be expounded according to the intention of the makers. 2. [151]_Verba
posteriora propter certitudinem addita ad priora quæ certitudine
indigent sunt referenda._ 6 E. [152]3. 12. a. b. Sir Adam de Clydrow
Knight, brought a _Præcipe quod reddat_ against John de Clydrow, and the
writ was, _Quod juste, &c. reddat manerium de Wicomb et duas carucatas
terræ cum pertinentiis in Clydrow_, in that case the town of Clydrow
shall not relate to the manor, _quia non indiget_, for a manor may be
demanded without mentioning that it lies in any town, but _cum
pertinentiis_, although it comes after the town, shall relate to the
manor, _quia indiget._ _Vide_ 3 E. 4. 10. the like case. But it was
objected, that where by the second clause it was granted, that the
censors should have _supervisum et scrutinium, correctionem et
gubernationem omnium et singulorum medicorum, &c._ they had power to
fine and imprison. To that it was answered, 1. That _that_ is but part
of the sentence, for by the entire sentence it appears in what manner
they shall have power to punish, for the words are, _ac punitionem eorum
pro delictis suis in non bene exequendo, faciendo, vel utendo illa
facultate_; so that without question all their power to correct and
punish the physicians by this clause is only limited to these three
cases, _sc. in non bene exequendo, faciendo, vel utendo, &c._ Also this
word _punitionem_, is limited and restrained by these words, _ita quod
punitio eorundem medicorum, &c. sic in præmissis delinquentium, &c._
which words, _sic in præmissis delinquentium_, limit the former words in
the first part of this sentence, _ac punitionem eorum pro delictis suis
in non bene exequendo, &c._ 2. it would be absurd, that in one and the
same sentence the makers of the act should give them a general power to
punish without limitation; and a special manner how they shall punish,
in one and the same sentence. 3dly, Hil. 38 Eliz. in a _Quo warranto_
against the Mayor and Commonalty of London, it was held, that where a
grant is made to the Mayor and Commonalty, that the Mayor for the time
being should have [153]_plenum et integrum scrutinium, gubernationem, et
correctionem omnium et singulorum mysteriorum, &c._ without granting
them any court, in which should be legal proceedings, that it is good
for search, whereby a discovery may be made of offences and defects,
which may be punished by the law in any court, but it doth not give, nor
can give them any irregular or absolute power to correct or punish any
of the subjects of the kingdom at their pleasure. 2. It was objected,
that it is incident to every court created by letters patent, or act of
Parliament, and other courts of record, to punish any misdemeanor done
in court, in disturbance or contempt of the court, by imprisonment. To
which it was answered, that neither the letters patent nor the act of
Parliament has granted them any court, but only an [154]authority, which
they ought to pursue, as it shall be afterwards said. 2. If any court
had been granted them, they could not by any incident authority
_implicitè_ granted them, for any misdemeanor done in court, commit him
to prison without bail or mainprize, until he should be by the
commandment of the president and censors, or their successors,
delivered, as the censors have done in this case. 3. There was not any
such misdemeanor for which any court might imprison him, for he only
shewed his case to them, which, he was advised by his counsel, he might
justify, which is not any offence worthy of imprisonment. The second
point was, admitting that the censors had power by the act, if they had
pursued their authority, or not? And it was resolved by the Chief
Justice, Warburton and Daniel, that they had not pursued it for six
reasons. 1. By the act, the censors only have power to impose a fine, or
amerciament; and the president and censors imposed the amerciament of
5l. upon the plaintiff. 2. The plaintiff was summoned to appear _coram
presidente et censoribus, &c. et non comparuit_, and therefore he was
fined 10l. whereas the president had no authority in that case. 3. The
fines or amerciaments to be imposed by them, by force of the act, do not
belong to them, but to the King, for the King had not granted the fines
or amerciaments to them, and yet the fine is appointed to be paid to
them, _in proximis comitiis_, and they have imprisoned the plaintiff for
non-payment thereof. 4. They ought to have committed the plaintiff
presently, by construction of law, although that no time be limited in
the act, as in the statute of W. 2. cap. 11 [155]_De servientibus,
ballivis, &. qui ad compotum reddend’ tenentur, &c. cum dom’ hujusmodi
servientium dederit eis auditores compoti, et contingat ipsos in
arrearagiis super compotum suum omnibus allocatis et allocandis,
arrestentur corpora eorum, et per testimonium auditorum ejusdem compoti
mittantur et liberentur proximæ gaolæ domini Regis in partibus illis,
etc._ In that case, although no time be limited when the accomptant
shall be imprisoned, yet it ought to be done [156]presently, as it is
held in 27 H. 6. 8. a. and the reason thereof is given in Fogassa’s
case, Plowd. Com. 17. b. that the generality of the time shall be
restrained to the present time, for the benefit of him upon whom the
pain shall be inflicted, and therewith agrees Plow. Com. 206. b. in
Stradling’s case. And a Justice [157]of Peace upon view of the force,
ought to commit the offender presently. 5. Forasmuch as the censors had
their authority by the letters patent and act of Parliament, which are
high matters of record, their proceedings ought not to be by parol, _&
eo potius_, because they claim authority to fine and imprison, and
therefore, if judgment be given against one in the Common Pleas in a
writ of [158]recaption, he shall be fined and imprisoned, but if the
writ be vicontiel in the county, there he shall not be fined nor
imprisoned, because a writ of the court is not of record, F. N. B. in
Recaption; so in F. N. B. 47. a. a plea of trespass _vi et armis_ doth
not lie in the county court, hundred court, &c. for they cannot make a
record of fine and imprisonment; and regularly they who cannot make
[159]a record, cannot fine and imprison. And therewith agrees 27 H. 6.
8. Book of Entries, tit. Account, fol. —. The auditors make a record
when they commit the defendant to prison; a Justice of Peace upon view
of the force may commit, but he ought to make a record of it. 6.
Forasmuch as the act of 14 H. 8. has given power to imprison till he
shall be delivered by the president and the censors, or their
successors, reason requires that it should be taken strictly, for the
liberty of the subject (as they pretend) is at their pleasure: and this
is well proved by a judgment in Parliament in this very case; for when
this act of 14 H. 8. had given the censors power to imprison, yet it was
taken so literally, that the gaoler was not bound to receive such as
they should commit to him, and the reason thereof was, because they had
authority to do it without any court: and thereupon the statute of 1 Ma.
[160]cap 9. was made, that the gaoler should receive them upon a
penalty, and yet none can commit any to prison, unless the gaoler
receives him: but the first act, for the cause aforesaid, was taken so
literally, that no necessary incident was implied. And where it was
objected, that this very act of 1 _Mar._ cap. 9. has enlarged the power
of the censors, and they urged it upon the words of the act; it was
clearly resolved, that the said act of 1. _Mar._ did not enlarge the
power of the censors to fine or imprison any person for any cause for
which he ought not to be fined and imprisoned by the said act of
[161]14. H. 8. For the words of the act of Queen Mary are, “according to
the tenor and meaning of the said act:” also “shall send or commit any
offender or offenders for his or their offence or disobedience, contrary
to any article or clause contained in the said grant or act, to any
ward, gaol, &c.” But in this case Bonham has not done any thing which
appears within this record, contrary to any article or clause contained
within the grant or act of 14 H. 8. Also the gaoler who refuses shall
forfeit the double value of the fines and amerciaments that any offender
or disobedient shall be assessed to pay; which proves that none shall be
received by any gaoler by force of the act of 14 H. 8. but he who may be
lawfully fined or amerced by the act of 14 H. 8. and that was not
Bonham, as by the reasons and causes aforesaid appears. And admitting
that the replication be not material, and the defendants have demurred
upon it; yet forasmuch as the defendants have confessed in the bar, that
they have imprisoned the plaintiff without cause, the plaintiff shall
have judgment: and the difference is, when the plaintiff [162]replies,
and by his replication it appears that he has no cause of action, there
he shall never have judgment: but when the [163]bar is sufficient in
matter, or amounts (as the case is) to a confession of the point of the
action, and the plaintiff replies, and shews the truth of the matter to
enforce his case, and in judgment of law it is not material, yet the
plaintiff shall have judgment, for it is true that sometimes the
declaration shall be made good by the bar, and sometimes the bar by the
replication, and sometimes the replication by the rejoinder, &c. but the
difference is, when the declaration wants time, place, or other
[164]circumstance, it may be made good by the bar, so of the bar,
replication, &c. as appears in 18 E. 4. 16. b. But when the declaration
wants substance, no bar can make it good; so of the bar, replication,
&c. and therewith agrees 6. E. 4. 2. a good case, and _nota_ there
_dictum_ Coke. _Vide_ 18 E. 3. 34. b. 44 E. 3. 7, a. 12 E. 4. 6. 6 H. 7.
10. 7 H. 7. 3. 11 H. 4. 24. &c. But when the plaintiff makes
replication, sur-rejoinder, &c. and thereby it appears, that upon the
[165]whole record the pl. has no cause of action, he shall never have
judgment, although the bar or rejoinder, &c. be insufficient in matter;
for the court ought to judge upon the whole record, and every one shall
be intended to make the best of his own case. _Vide_ [166]Ridgeway’s
case, in the Third Part of my Reports 52. b. and so these differences
were resolved and adjudged between [167]Kendal and Helyer, Mich. 25 & 26
Eliz. in the K.’s Bench, and Mich. 29 & 30 Eliz. in the same court,
between [168]Gallys and Burbry. And Coke Ch. Just. in the conclusion of
his argument observed seven things for the better direction of the
president and commonalty of the said college for the future. 1. That
none can be punished for practising physic in London, but by forfeiture
of 5l. by the month, which is to be recovered by the law. 2. If any
practise physic there for a less time than a month, that he shall
forfeit nothing. 3. If any person prohibited by the statute offends _in
non bene exeq’ &c._ they may punish him according to the stat. within
the month. 4. Those who they may commit to prison by the stat. ought to
be commit. [169]presently. 5. The fines which they set, according to the
statute, belong to the King. 6. They cannot impose a fine, or
imprisonment without a record of it. 7. The cause for which they impose
fine and imprisonment ought to be certain, for it is [170]traversable:
for although they have letters patent, and an act of Parliament, yet
because the party grieved has no other remedy, neither by writ of error,
or otherwise, and they are not made Judges, nor a court given them, but
have an [171]authority only to do it, the cause of their commitment is
traversable in an action of false imprisonment brought against them; as
upon the statute of [172]bankrupts, their warrant is under the great
seal, and by act of Parliament; yet because the party grieved has no
other remedy, if the commissioners do not pursue the act and their
commission, he shall traverse, that he was not a bankrupt, although the
commissioners affirm him to be one; as this term it was resolved in this
court, in trespass between Cutt [173]and Delabarre, where the issue was,
whether Will. Cheyney was a bankrupt or not, who was found by the
commissioners to be a bankrupt; _a fortiori_ in the case at bar, the
cause of the imprisonment is traversable; for otherwise the party
grieved may be perpetually, without just cause, imprisoned by them; but
the record of a force made by a Justice of Peace is not traversable,
because he doth it as Judge, by the statutes of [174]15 R. 2. and 8 H.
6. and so there is a difference when one makes a record as a Judge, and
when he doth a thing by special authority, (as they did in the case at
bar) and not as a Judge. And afterwards, for the said two last points,
judgment was given for the plaintiff, _nullo contradicente_, as to them.
And I acquainted Sir Thomas Fleming, Chief Justice of the King’s Bench,
with this judgment, and with the reasons and causes of it, and he well
approved of the judgment which we had given: and this is the first
judgment on the said branch concerning fine and imprisonment which has
been given since the making of the said charter and acts of Parliament,
and therefore I thought it worthy to be reported and published.
(See Carthew 492. 6 Mod. 125.)
[_For the Pleadings in this Case see 8 Co. Rep. p. 107._]
-------
Dr. Groenvelt vers. Dr. Burwell and others, Censors of the College of
Physicians
(from 1 Comyns Rep. p. 75)
This was an action of trespass for an assault, battery, wounding and
false imprisonment. The defendants as to the beating and wounding, plead
not guilty, and as to the residue of the trespass they justify; for that
by letters patent dated the 23 of September 10 H. 8 the king granted,
that they, viz. the doctors of physick in London, should be a body and
perpetual community, _per nomen præsidentis & collegii five communitat’
facultat’ medicin’ London’, &c._ and that they might make By-Laws; _&
quod quatour singulis annis eligerentur qui haberent scrutinium
correctionem & gubernationem omnium & singulorum dictæ civitatis
medicorum & aliorum medicorum forinsecorum facultate illa utentium infra
eandem civitatem & suburbia, ac infra septem milliaria in circuitu
ejusdem, ac punitionem eorundem pro delictis suis in non bene exercendo,
&c. per fines amerciamenta & imprisonamentum corporum suorum_; and that
these letters patent were confirmed by an act of parliament of 14 H. 8.
And that on the 1st of January 8 W. 3. the plaintiff exercised the art
of physick in London, and that he administered bad and unwholesome
physick to one woman and that the said woman and her husband complained
to the defendants, being the censors of the said college; upon which
complaint the plaintiff was summoned before them, and upon examination
they found him guilty of administering unwholesome physick, by means of
which the said woman languished; and thereupon they fined the plaintiff
20l. and made a warrant under their hands and seals to —— —— who was
also a defendant, to take the plaintiff; who took him pursuant to such
warrant and conveyed him to prison; which is the residue of the trespass
of which the plaintiff complains. The plaintiff replies _protestando_,
that there are no such letters patent, and no such act of parliament;
and _protestando_, that the plaintiff did not administer such
unwholesome physick; that the defendants of their own wrong committed
the trespass; _absque hoc quod_, that the plaintiff was taken and
committed by force of the said warrant: and to this it was demurred. And
this case was divers times argued, and many exceptions were taken to the
plea and to the replication; and now this term judgment was given for
the defendants. And Holt C. J. delivered the opinion of the court; and
said, that the rest of the Judges were agreed, that the replication of
the plaintiff was ill, and that the plea of the defendants was good. The
plaintiff in his replication traverses the taking by the warrant
mentioned in the plea of the defendants; and this is ill both in
substance and in form; for in point of form he ought not to traverse the
taking by force of the warrant, but that there was not any such warrant;
for if it were necessary that the arrest of the plaintiff should be by
the same warrant that was mentioned before in the pleading that if the
defendants had shewn in their plea another warrant than that which was
shewn at the time of the arrest, the plaintiff ought not to have said,
that he was not taken by this warrant but that there was not any such
warrant. But the replication is not good in point of substance; for the
plaintiff seems to intend, that the warrant by which he was arrested was
unlawful, yet the plaintiff shall not have advantage of it, if there was
another warrant which was lawful to take him at the same time; for if
there are two warrants, the one lawful and the other unlawful, and the
party is taken upon the illegal warrant, yet he who apprehends him may
justify himself by the authority of the legal warrant; and this appears
by the case Mich 34 Ed. 1 Fitz. Avowry, 232 cited 3 Co. 26. a. If a man
takes a distress for a thing for which he has not good cause of
distress, but had good cause of distress for another thing; if a
replevin is brought, and he comes into court, he may avow for which
thing he pleases. Then it was considered whether the plea of the
defendants was good; to which it had been objected that it was ill for
the uncertainty; for the cause of the commitment being traversable ought
to be alleged with certainty. Secondly, That by the plea it appears,
that the plaintiff was fined and imprisoned also; the censors (of the
college of Physicians the defendants) have authority to impose a fine,
and to imprison for non-payment of that fine, or they may imprison for
the offence; but they cannot both fine and imprison for the same
offence, as in this case; for it does not appear that the imprisonment
was for non-payment of the fine but the plaintiff was both fined and
imprisoned, and so was twice punished for one offence. Thirdly, the plea
does not shew that the plaintiff was one of the college. Fourthly, The
plea makes no answer to the assault; it does not shew that there was any
assault, or set forth any justification of it. But Holt C. J. said that
the Court held the plea to be good, for it goes to the whole
declaration; as to the battery and wounding the defendants plead not
guilty, as to the residue of the trespass they justify; and the residue
of the trespass comprehends the assault, and every other part of the
declaration to which the plea (of not guilty) does not extend: and there
is no need that the plaintiff should be of the college; for it appears
that he exercised his faculty within London and the censors have
jurisdiction within London and the suburbs, and seven miles in
circumference; and it appears by the words of the Charter, that the
censors have power to punish by fine and imprisonment; and how they
exercise that authority we do not enquire, as it will be apparent
afterwards in the answer to the first objection, and which is the most
material one. In answer to the first objection, then, we say, First that
the cause of the commitment is not traversable. Secondly if it were
traversable, it is set forth with certainty enough. That the cause of
commitment is not traversable appears by the authority which the censors
have by the act of parliament; for by it they are constituted judges of
fact, what is a mal-administration (of medicines) and what is not: and
they are judges of record for they have authority to impose fine and
imprisonment; and when a new authority is constituted, with power to
fine and imprison, the persons invested with such authority are judges
of record; for that every thing proves a court to be a court of record,
viz. the power of fining and imprisoning; for courts which are not of
record can neither set a fine nor commit any one to prison. 8 Co. 38. b.
And there it is proved, that the leet can impose a fine, because it is a
court of record; and forasmuch as the statute W. 2. c. 11 impowers the
auditors to commit the accountant to prison the auditors are thereby
made judges of record; as is observed 10 Co. 103. a. 2. Inst. 218. Then
the censors being constituted judges of the matter, that which they have
done as such they shall not be answerable for; and that a judge shall
not be answerable for an act done by him as a judge, appears by 12 Co.
24. and the cases there cited. True it is, that if a justice of(_a_)
peace issue his warrant to imprison the party, or to arrest him until
such time as he can be brought before him, or if the commissioners of
bankrupts commit a witness for refusing to be examined(_a_) it may be
determined in an action, whether they have pursued their authority or
not; for their act in this respect is only ministerial;(_b_) and the
commitment is not intended as a punishment, but only as a mesne process
to bring the party to justice, or to make him do his duty. My Lord Coke,
it is true, says in Dr. Bonham’s case, 8 Co. 121 a. that the cause of
commitment was traversable; but this opinion was there given obiter, and
was not essential to the case in judgment; for there the question was,
for practising without the licence of the college, for which the party
could not be imprisoned; and Dr. Bonham being a graduate in the
university, my Lord Coke was carried away by his affection to his Alma
Mater so far as to make a resolution in the present point, which was not
in the case before him: but my Lord Coke says, that upon a conviction by
the censors, they ought to make a record of it, which admits they are
judges of record; and then by his own rule there in the case of a
justice of peace who made a conviction of a force, and the cases in his
other works, their acts (the acts of the justices of the peace) cannot
be traversed; and my Lord Coke does not cite any authority in support of
his opinion (as to the point now before us). The reason which he gives
why the party has no remedy by writ of error or otherwise is of no
weight: I grant that a writ of error lies not; for the censors having a
new authority by a special act of parliament and their proceedings being
directed to be in a summary way there is no need for them to pursue the
forms and methods of others courts; and it is sufficient for them to
make such summary proceeding as justices of the peace in many cases may
do; yet the party is not without remedy for he may have a Certiorari to
remove the record of conviction, and then it may be examined and
reviewed, to see whether it be pursuant to their authority; for in every
case where a new jurisdiction is set up for a special purpose this court
by virtue of its original power may award a Mandamus to make them put
their authority in execution, and a Certiorari to look into their
proceeding whether it be conformable to their authority or not. Thus a
Certiorari lies to remove an indictment for felony before the justices
of the peace (bro. Eliz. 489. Long’s case) to remove orders before
commissioners of sewers, or by justices of the peace who have authority
to make conviction of a force in their presence, or for deer-stealing,
but although no Certiorari did lie (in the present case) it is not
consequential that the cause of their commitment is traversable; for if
the parliament intrusts them with a power so great that no act of theirs
shall be reversed or reviewed, there is the less reason that their
proceeding should be examined or traversed in an action; a jury is not
finable for giving a verdict against evidence; and though there are many
cases where jurymen have been fined (1) yet Bushel’s case, in which all
the others are cited, is sufficient to controul all the rest. Vauq. 135
(a) and if a juror shall not be fined or imprisoned or otherwise
punished for refusing to find a man guilty upon apparent and plain
evidence, much less shall a judge be liable to censure. In the case (b)
of Hammond and Powell, P. 29 Car. 2 an action for false-imprisonment was
brought after the resolution in Bushel’s case for his imprisonment (for
Hammond was one of the same jury with Bushel and fined 40l. and
imprisoned for it at the same time,) and notwithstanding that the fine
and imprisonment were illegal yet it was adjudged that the action did
not lie for false-imprisonment against the judge or the officer; so a
fine imposed by a judge of a court is not traversable as an amercement
is. 7 H. 6. 13. a. As to the case between Terry and Huntington Hard. 480
which may be objected; that is good law; for there an action was brought
against the commissioners of excise, who had charged a man for the duty
upon strong waters, where the liquor made by him was low wine of the
first extraction, and the action well lay, for they had exceeded their
jurisdiction; for low wines of the first extraction were not chargeable
within the act of parliament; and if they had charged a duty upon a
liquor not chargeable with it, they were not to be excused for having
named it strong waters. If a justice of the peace commits a man for
being the Father of a bastard child no action lies against the justice
if the man was the father of a bastard otherwise if he had no bastard at
all. So the case between Nickols and Walker, Cro. Car. 394, (_a_) is
good law, for there an inhabitant of Tottridge was charged to the poor
of Hatfield; and the justices of the peace have power to award a
distress, where a person is assessed to the poor of the parish where he
hath land or is an inhabitant; but where he is charged to the relief of
another parish there the case is beyond their jurisdiction. But if the
cause of the commitment were traversable yet the plea of the defendants
here is good, for it shews with certainty in what the ill-administration
of the physic consisted viz in the use of unwholesome drugs: and
although it is not said what drugs he used, it is no matter, for how
shall we be informed whether he has shewn them. In an action against a
surgeon for an inartificial cure the plaintiff does not shew what
plaisters the defendant used. As to what hath been said that the plea
does not shew for what malady the medicines were given; it was answered
that it would be so much the worse if the medicines were given when the
party had not any malady at all. And although it is not said that the
witnesses upon whose testimony the fine was imposed were upon oath, yet
the plea is sufficient; for it may be that it was not necessary that
they should be sworn or if it were needful the omission of it is not
such as will make their proceedings void. In such a special jurisdiction
in which the proceeding is to be in a summary manner it is not needful
to observe all the circumstances which are necessary in other legal
proceedings.—Judgment for the defendants.
The College of Physicians versus Dr. West.
(from 10 Mod. 358.)
The Question was, whether a Man, that had taken his Degree of Doctor of
Physick, in either of the Universities, might not practise in London,
and within seven miles of the same, without a Licence from the College
of Physicians.
The Court clear of Opinion, that a Licence from the College was
necessary; and that by reason of the Charter of Incorporation, confirmed
by 14 & 15 Hen. 8. cap. 5. penn’d in very strong and negative words.
As to the Testimonials granted by the Universities upon a Person’s
taking the Doctors Degree; the Court was of Opinion, That these
Testimonials might have the Nature of a Recommendation; they might give
a Man a fair Reputation, but conferr’d no Right; and consequently all
those Statutes, which have confirmed the Privileges of the Universities,
could revive or confirm nothing but the Reputation, that this
Testimonial might give such Graduates.
And whereas it has been insisted, That by the last Clause of the
Statute, it is said, That none shall practise in the Country without a
licence from the President and three Elects, unless he be a Graduate of
one of the Universities, it was said all the inference from that would
be, That possibly two Licences may be necessary where a person is not a
Graduate.
In the Case of Dr. Levet, Lord Chief Justice Holt did not think this a
Question worth being found specially.
The College of Physicians are without doubt more competent Judges of the
Qualifications of a Physician than the Universities, and there may be
many good Reasons for taking a particular care of those, that practise
Physick in London.
_William Rose_, Plaintiff } in
_The College of Physicians, London_, Defendants } Error
_15^{th} March, 1703._
In the 10^{th} year of _Hen._ 8. the defendants were incorporated; and,
in the letters patent granted for that purpose, which were confirmed by
stat. 14 and 15 _Hen._ 8. _c._ 5. is, _inter alia_, the following
clause: “_Concessimus, etiam eisdem præsidenti et collegio, seu
communitati, et successoribus suis, quod nemo in dicta civitate, aut per
septem milliaria in circuitu ejusdem, exerceat dictum facultatem, nisi
ad hoc perdict, præsidentem et communitatem, seu successores eorum qui
pro tempore fuerint, admissus sit per ejudem præsidents et collegii
literas sigillo suo communi sigillatas, sub pœna centum solidorum pro
quolibet mense, quo non admissus eandem facultatem exercit, dimidium
inde nobis et hæred. nostris, et dimidium dicto præsidenti et coll.
applicandum._”
The plaintiff, who was an apothecary, and freeman of _London_, attended
one _Seale_, a butcher, in the parish of _Saint Martin in the Fields_,
and made up and administered proper medicines to him; but, without any
licence from the faculty, and also without the direction of any
physician, and without taking or demanding any fee for his advice.
The defendants apprehending this conduct to be an infringement of their
privileges, brought their action against the plaintiff, to recover the
penalty of 5_l._ _per_ month, under the above clause in their charter;
and, on the trial, the jury found a special verdict, stating the
charter, the confirmatory statute, and the facts of the case; and
submitted to the Court, whether the defendant _Rose_ did practice
physic, within the intent of the letters patent and act of
Parliament.—And, after this verdict had been three several times argued
in the Court of Queen’s Bench, the Judges were unanimously of opinion,
that _the facts found did amount to the practising physic, within the
meaning of the act of Parliament_; and gave judgment accordingly.
Hereupon, a writ of error in Parliament, was brought to reverse this
judgment; and on behalf of the Plaintiff in error, it was argued, that
the consequences of it would not only ruin him, but all other
apothecaries; as, in case of the affirmance of this judgment, they could
not exercise their profession, without the licence of a physician. That
the constant usage and practice, which had always been with the
apothecary, was conceived to be the best expounder of this charter; and,
that therefore, the selling a few lozenges, or a small electuary, to any
person asking a remedy for a cold, or in other ordinary or common cases,
where the medicines had a known and certain effect, could not be deemed
unlawful; or practising as a physician, when no fee was taken or
demanded for the same. That the physicians by straining an act made so
long ago, endeavoured to monopolize all manner of physic solely to
themselves; and if they should succeed in this attempt, it would be
attended with many mischievous consequences: For, in the first place, it
would be laying a heavy tax on the nobility and gentry, who, in the
slightest cases, and even for their common servants, could not have any
kind of medicine, without consulting and giving a fee, to a member of
the college: It would also be a great oppression upon poor families,
who, not being able to bear the charge of a fee, would be deprived of
all kind of assistance in their necessities: And, it would prove
extremely prejudicial to all sick persons, who, in case of sudden
accidents, or new symptoms, happening in the night-time, generally send
for the apothecary; but who should not dare to apply the least remedy,
without running the hazard of being ruined.
On the other side, it was contended, that by several orders of the
college, its members were enjoined to give their advice to the poor
_gratis_; and that not only to such as could come to them for it; but
every physician, in his neighbourhood, was obliged to visit the sick
poor, at their own lodgings; and therefore the objection, that, if the
apothecaries could not administer physic but by the prescript of a
physician, the poorer sort of people would be lost for want of proper
remedies, had not the least foundation. And, when these orders were
observed not to have their full intended effect, on account of the high
prices which the apothecaries generally demanded for the remedies
prescribed, whereby the poor were deterred from consulting the
physician, for fear of the charge of the physic; the college, by a joint
stock, erected several dispensaries in town, where, after the physicians
had given their advice _gratis_, the patients might have the physic
prescribed, for a third, and generally less, of what the apothecaries
used to exact for it; by which expedient, many hundred persons of mean
condition, received their cures at a very small expense, and without one
farthing profit arising to the physicians. That in cases of sudden and
immediate necessity, not only apothecaries, but any other person, might
do his best to relieve his neighbour, without incurring the penalty of
the law; but there was no reason why the apothecaries, under that
pretence, should be permitted to undertake, at leisure, all dangerous
diseases; and especially where, as in this city at least, a skilful
physician may be as soon had as an apothecary. That, in common or
trifling indispositions, the patients themselves were generally their
own physicians; and would of course, send for any medicine, of which
there had been common experience, for their cure, and which the
apothecary might lawfully make up and sell; but, for the apothecary to
be permitted to judge of diseases in their beginning, whether slight or
not, and to order medicines for the same, would prove both dangerous,
and more chargeable. _Dangerous_, because the most malignant distempers
usually begin with apparently inconsiderable symptoms, and are many days
before they appear in their proper colours; and, as apothecaries are not
bred to have suitable skill, the management thereof ought not to be left
to their judgment. And _more chargeable_, because, be the disease ever
so slight, the apothecary will be sure to prescribe largely enough; and
should he chance to mistake, then that distemper, which, by the discreet
advice of a physician, might, by one proper medicine, have been
eradicated at the beginning, runs out into great length, to the extreme
hazard and great expense of the patient.
BUT, after hearing counsel on this writ of error, it was ORDERED and
ADJUDGED, that the judgment given in the Queen’s Bench, for the
President and College, or Commonalty of the faculty of Physic, _London_,
against the said _Wm. Rose_, should be reversed.
(From 1 Brown Par. Ca. p. 78.)
-------
The King _against_ the President and College of Physicians.
(From 7 Term Rep. p. 282)
This was a rule calling on the president and College or commonalty of
physic in _London_ to shew cause why a mandamus should not issue,
commanding them to examine C. Stanger, M.D. as to his qualification and
fitness to be admitted into the said Corporation as a member or fellow
thereof.
* * * * *
Doctor Stanger, after referring to the above statutes (3 Hen. 8: 14 & 15
Hen. 8) and Charter, stated in his affidavit that in 1783 he took a
degree of doctor of physic at _Edinburgh_ after a residence there for
three years, and after having studied physic there and at other places
for many years; that afterwards he went abroad to _France_, _Italy_, and
_Germany_, and studied physic there for several years more. That in 1789
he obtained a licence from the college of physicians here in the usual
way to practise in _London_ and within seven miles thereof, and that he
has practised ever since. That in _June_ 1796 he applied to the
president and college at their general meeting to be admitted by them to
be a member of their corporation, submitting himself to be previously
examined by them concerning his qualification and fitness to be admitted
a member of the corporation, which the college refused. Dr. _Stanger_
also added in his affidavit that he was duly qualified and fit to be
admitted a member of the college.
The affidavits in answer to the rule disclosed the following (among
other) facts. For two hundred years past there have been three classes
of persons practising physic in _London_ and seven miles round; the
fellows; candidates, persons desirous of becoming members and who have
been examined and approved by the president and censors to be candidates
for election into the society or fellowship; and the licentiates, who
may practise as fully in all respects as fellows and have the same
benefits and advantages. Various bye-laws have been made by the college
respecting the qualifications of persons to be admitted fellows, one of
them so long ago as 1637, by which it was ordained that no person should
be admitted a fellow unless he had performed all his exercises and
disputations in one of our universities without dispensation, and which
has continued ever since with some little alterations. To prevent any
mistakes arising from the words “_aliquâ Britanniæ Academiâ_” in some of
the bye-laws respecting this qualification, an explanatory bye-law was
made in 1751, in which it was declared that the meaning of the words was
that no person should be admitted who was not a Doctor of Physic of
_Oxford_ or _Cambridge_. The bye-laws of the college have been revised
and altered since the year 1768. By those now in existence no person can
be admitted a fellow unless he has been a candidate for a year, except
in certain cases hereafter mentioned. No person can be admitted into the
class of candidates unless he has been created a Doctor of Physic in the
university of _Oxford_ or _Cambridge_, or unless he has obtained the
same degree in the university of _Dublin_ and has been incorporated into
one of the universities of _Oxford_ or _Cambridge_; nor can any such
person be admitted into the class of candidates until after he has been
examined as to his knowledge of physic in three of the greater or lesser
meetings (called the _comitia majora_ and _comitia minora_) of the
college. After a person has been a candidate for a year, he may be
proposed by the president at one of the greater meetings and admitted a
fellow, if the majority of fellows consent, without further examination.
But by two other bye-laws persons not having the above qualifications
may be proposed in one of two ways; by one, the president is enabled
once in every other year at the _comitia minora_ to propose one
licentiate of ten years standing, who may (if the major part of the
_comitia minora_ consent) be proposed by the president at the next
_comitia majora_ to be elected a fellow, and if the majority of fellows
then present consent, he may then be admitted a fellow. By the other,
any one of the fellows may propose any licentiate, of seven years
standing and of the age of 36, in the _comitia majora_ to be examined;
if the major part of the fellows consent, such licentiate may be
examined by the president or vice-president and censors, and if approved
by the major part of the fellows then present, he may be proposed at the
next _comitia majora_ to be a fellow, and admitted if the majority of
the fellows then present consent. The ordinary greater meetings
(_comitia majora_) are holden four times a year, and consist of the
president or vice-president and ten fellows at the least. The ordinary
lesser meetings (_comitia minora_) consisting of the president or
vice-president registar and censors of the college, are holden once a
month. A letter was also inserted in the affidavits written by King
_Charles_ the Second to the college not to admit any person who had not
had his education in either of our universities of _Oxford_ or
_Cambridge_: but it was admitted in the argument that no notice could
legally be taken of this letter. It was also stated in the affidavits
that Dr. _Stanger_, when he was licensed; gave his faith or promise to
the college that he would observe the statutes of the college &c. in the
usual mode.
_Adair Serjt. Law_, _Chambre_, and _Christian_, argued in support of the
rule; and
_Erskine_, _Gibbs_, _Dampier_, and _Warren_, against it.
The case was argued very much at length on three several days: but it is
unnecessary to give a detail of the arguments, as the Court in giving
their opinions went into them. The points insisted upon by the counsel
in support of the rule were these; 1st. That under the general words of
the charter “_omnes homines ejusdem facultatis_” &c. Dr. _Stanger_, who
came within that description by his license, had an inchoate right,
which authorised him to tender himself to the college for examination in
order that he might be admitted, if on examination the president and
college thought him qualified; though they admitted that the president
and college were the sole judges of his fitness. And they referred to
the several dicta of Lord _Mansfield_ and _Aston_ J. in _R._ v. Dr.
_Askew_ and others, 4 _Burr._ 2169; 2202; 2193; 2202. Secondly, That the
bye-laws requiring an education at either of our universities or at
_Dublin_ were illegal and void, on grounds of public policy, and also on
the ground that they superadded a qualification not required by the
Charter, 4 _Burr._ 2198, 9; 2203, 4; and that it narrowed the number of
the eligible; _R._ v. _Spencer_, 3 _Burr._ 1827; and _R._ v. _Cutbush_,
4 _Burr._ 2204.
On the other hand it was insisted, 1st. That Dr. _Stanger_ had no
_right_ to be examined in order to be a fellow, either as a licentiate,
Dr. _Archer_’s case, 4 _Burr._ 2203; or as coming within the description
“_omnes homines ejusdem facultatis_” &c.; but that the election into
that body was a mere matter of grant or favor, for that the charter
evidently marked out two descriptions of persons, the members of the
college (the fellows) and all those who practised physic in _London_ or
within seven miles thereof, that the former were to superintend the
latter; and that if the latter had also a right to be admitted fellows
the distinction between the governors and the governed would be
destroyed, and the very object of the charter and act of parliament, in
giving to the fellows the superintendance of the others practising
physic in and about _London_, would be defeated;—observing that the
usage for a long period was in favour of this construction. 2dly, That
Dr. _Stanger_, by giving his faith when he received his licence in 1789,
was estopped to object to the bye-laws. But this point was abandoned in
the course of the argument; it being considered that he was only bound
to observe the bye-laws of the college that were not illegal. 3dly, That
the bye-laws were neither against sound policy or law; and instances
were alluded to of degrees taken in either of our universities giving
privileges to the persons taking them in the other professions. And the
counsel observed that the not having taken a degree in one of our
universities was not an absolute bar to any person becoming a fellow of
the college, there being two modes by which he might gain admission
without that qualification.
Lord KENYON, Ch. J. If in deciding this question it were necessary for
us to answer all the arguments that have been urged at the bar, I should
have desired further time to consider of the subject; but as the grounds
on which I am warranted to determine the case lie in a very narrow
compass, and I have formed my opinion upon it, I wish to put the
question at rest now. By what fatality it has happened that almost ever
since this charter was granted this learned body have been in a state of
litigation I know not; and I cannot but lament that the learned Judges
in deciding the cases reported in _Burrow_ did not confine themselves to
the points immediately before them, and dropped hints that perhaps have
invited litigation; though indeed I cannot see what these parties are
contending for that is worth the expense and anxiety attending this
litigation. The public already have the benefit of the assistance of the
licentiates; and their emoluments, the fair fruits of their education
and advice, are just the same as those that the fellows of the college
receive. We have however been pressed with the authority of those who
have preceded us here: no person can have a greater veneration for those
characters than I have, and if this point had been decided by them, I
should have thought myself bound by their decision. But the cases are
unlike. The principal ground on which it was said in 4 _Burr._ 2199.
that the bye-laws of the college were bad was, that “they interfered
with their exercising their own judgment, and prevented them from
receiving into their body persons known or thought by them to be really
fit and qualified;” and if I had found that objection existed in this
case, I should have thought it fatal: but in the very sentence in which
Lord _Mansfield_ expressed himself as above, he added “such of them
indeed as only require a proper education and a sufficient degree of
skill and qualification may be still retained.” Two universities have
been founded in this country, amply endowed and furnished with
professors in the different sciences; and I should be sorry that those
who have been educated at either of them should undervalue the benefits
of such an education.
In this case it is admitted that a licentiate does not _de facto_ become
a fellow of the college: it is admitted that he must be first examined,
and that those who are called the College of Physicians are to judge of
his fitness. It seems that the appeal here is rather made _ad
verecundiam_, and that Dr. _Stanger_ could not be rejected if he were
examined. If the college are not judges of the fitness of the person
examined, I do not know who is. Then is this a reasonable test of the
fitness of the party? possibly they might have framed a better, though I
do not say that they could; but the question here is whether this is a
reasonable bye-law? According to the concurrent opinions of all mankind
it is. The Legislature have considered that persons who have taken their
degrees in our universities are entitled to certain privileges in the
church. So if we look into our own profession, those who have been
educated at our universities have particular privileges; and though the
inns of court are not corporations, yet their regulations shew that this
has been considered as reasonable. It is not that a person becomes
qualified from keeping his commons within the walls of the inns of court
or the universities, but living with those of the profession will
probably advance him in the knowledge of that profession for which he is
a candidate. Again in the civil law; however competent any particular
individual may be from extraordinary endowments or the exertion of
superior talents, he must first take his degrees at one of our
universities, and afterwards continue a year in a state of probation
before he can practise. Those regulations that are adapted to the common
race of men are the best: it does not follow that all institutions
calculated for the ordinary classes are to be prostrated merely because
they stand in the way of some few individuals of superior talents. Then
the question is whether this is a reasonable bye-law that requires a
degree to be taken at one of our universities, which in general is
supposed to be conferred as a reward for talents and learning. If indeed
this had been a _sine qua non_, and it had operated as a total exclusion
of every other mode of gaining access to the college, it would have been
a bad bye-law: but these bye-laws point out other modes of gaining
admission into the college. If Dr. _Stanger_ has all those requisites
that qualify a person for that high station, any one of the fellows may
now propose him; he may apply to the honourable feelings of the college,
to the very same tribunal to which this mandamus (if it were granted)
would refer him; for in all events he must submit to their examination
and determination. In the profession of the church, we find that the
bishops insist on having a testimonial of the person to be ordained
signed by a certain number of clergymen; and though the bishops
themselves may have the power of judging of the fitness of the person to
be ordained it was never doubted but that this was one reasonable test
of fitness, even before examination: it is a test to regulate their own
conduct. So here I think this is a reasonable test. Therefore on this
short ground, without entering into any of the other topics that have
been argued, I am of opinion that these are good and reasonable
bye-laws, and that we are bound to refuse the writ.
ASHHURST, J. Though this matter has taken a considerable time in the
argument, it is now reduced to a narrow compass. The counsel who have
argued for the issuing of the mandamus do not contend that a licentiate,
as such, does _ipso facto_ become a member or a fellow of the college:
they only say that any man who is fit in learning and morals has a right
to offer himself for examination, without any superadded qualification;
and therefore that the bye-law requiring “that every licentiate, in
order to entitle him to offer himself for examination, shall be a doctor
of one of the two universities in _England_ or that of _Dublin_,” is a
void bye-law. It is not denied by counsel who have argued for the rule
that the corporation have the right of making bye-laws for the
regulation of their own body. And Lord _Mansfield_, on whose authority
they ground themselves as in their favour, said in 4 _Burr._ 2199, “that
such bye-laws as only require a proper education and a sufficient degree
of skill and qualification may be still retained; that there can be no
objection to cautions of this sort; and the rather if it be true that
there are some amongst the licentiates unfit to be received into any
society.” This brings it then to the question, whether the bye-law now
under discussion is or is not to be considered as a bye-law of
regulation. It does appear to me that in order to ensure a proper
education and a competence in a learning, there cannot be a more likely
method than the having spent fourteen years in one of our learned
universities, and, after having been examined by persons competent to
the subject, having been admitted to a doctor’s degree. This it should
seem would prevent in _limine_ the danger of that happening, which Lord
_Mansfield_ complains of, namely, of persons being admitted amongst the
licentiates unfit to be received into that society. Indeed the
Legislature so long ago as the passing of the act of the 14 and 15
_Henry_ 8. seemed to shew their own opinion how much stress ought to be
laid on such a kind of test; for there, in speaking of country
physicians, the act says, “that no person shall be suffered to exercise
or practise in physic through _England_ until such time as he be
examined in _London_ by the president and three elects, and have from
them letters testimonial of their approving and examination:” but then
the act goes on with this exception (viz.) “unless he be a graduate of
_Oxford_ or _Cambridge_, which hath accomplished all things for his form
without any grace.” This shews the opinion of the legislative body of
that day; and the college might think it a very fit model for their
imitation in the formation of the bye-law now under discussion, and that
it would prevent them from having their time too much broken in upon by
improper applications for examination. I would not be thought to infer
that the gentleman now applying is in any degree deficient either in
learning or education: but general laws cannot give way to particular
cases; and as this law has been of some standing, we must suppose it has
been found to be attended with general convenience, and therefore it
should be abided by. I therefore concur in the opinion that the rule for
a mandamus should be discharged.
GROSE, J. This being a motion for a mandamus to a body incorporated by
charter, we must see that we are authorised by the charter or the
bye-laws to grant the application. On examining the charter, which was
confirmed by act of parliament, we find that there was a select body of
eight including the president, and an indefinite number of the
commonalty. The election of the president is to be made annually by the
college; so also is the election of the four censors. The intention of
the crown was to put an end to the mischiefs occasioned by the ignorance
of the unskilful practitioners; and for that purpose this corporation
was created, with power of making bye-laws, of admitting skilful persons
to practise physic, and of preventing all others practising: the great
object was to admit only those to practise physic who were (to use the
language of the act) “profound sad and discreet, groundedly learned and
deeply studied in physic.” How or when the fellows are to be chosen or
admitted is not directed by the charter: it is left to the discretion of
the persons named in the charter under the general power given to them
of perpetuating themselves and of making bye-laws. The charter is
therefore silent both as to the election of fellows, and as to the
examination of them before election: but the examination is incident to
the power of election. The charter being silent on these heads, and the
college having the power of making bye-laws, they have made bye-laws to
ascertain a criterion of fitness of future candidates, by pointing out
in some cases the mode of their education, in others the persons by whom
they were to be proposed as candidates. One of these bye-laws is
objected to as illegal, because it requires a degree to be taken at one
of our universities, which (it is contended) is superadding a
qualification to those required by the charter: but I think it is only
ascertaining a criterion of fitness as has been done most properly in
other professions in cases alluded to both at the bar and bench. Then it
is said that a licenciate has an inchoate right: if by that Dr.
_Stanger’s_ counsel mean that he has one qualification which when added
to others may give him a right of admission, I agree with them; but the
college are to judge of the other qualifications: if by this inchoate
right they mean any thing more, I dissent from them. It is admitted by
this application that the college have a right to insist on an
examination: and upon what ground? as a test of fitness—but though this
right is not expressly given to them by the charter, nor is there a word
denoting any obligation either to admit or examine, it is incident to
their power of judging who is fit to be admitted. That Lord _Mansfield_
thought that they have such a right incidently is clear from what fell
from him in Dr. _Askew’s_ case, in which he said, “It is true that the
judgment and discretion of determining upon this skill ability learning
and sufficiency to exercise and practise this profession is trusted to
the college of physicians: and this Court will not take it from them in
the due and proper exercise of it.” The same power that authorises them
to judge of fitness also authorises them to regulate the mode by which
they shall judge. They think, of which they are much better judges than
we can be, that every man who is to be a candidate ought either to have
taken his degree at one of our universities or in Dublin, or shall be
proposed by one fellow, or by the president. The bye-laws requiring this
do not appear to me unreasonable or inconsistent with the character any
more than requiring a particular mode of education, and in the case so
often alluded to Lord _Mansfield_ thought such bye-laws were good; for
when he recommended it to the college to revise their bye-laws, he said
“Such of them indeed as only required a proper education and a
sufficient degree of skill and qualification may be still retained.” In
consequence of that opinion the college have reviewed and altered their
bye-laws, requiring in some cases an education at either of our
universities or at _Dublin_, in others permitting a nomination of
persons as fit to be examined by men whom they deem worthy of such a
trust, considering such degree and nomination merely as tests of the
person taking it or named having skill and learning and being fit to be
examined. And in making these bye-laws I think that the college have
shewn a due attention to discharge their duty to the public and to
attain the ends of their institution. Therefore I concur in the opinion
already given that this rule ought to be discharged.
LAWRENCE, J. This is an application for a mandamus to compel the College
of Physicians to examine Dr. _Stanger_ in order that he may be admitted
a fellow; and the foundation of the application is that he has been
admitted to the practise of physic and is one of the _homines
facultatis_ within the meaning of the charter; which (it is said) gives
him a right to admission, if on examination he shall be found fit; and
that all the bye-laws militating against such right are illegal. His
counsel have been under the necessity of insisting on the licence giving
him a right to examination; for if the being admitted a member of the
body be matter of election, it is immaterial whether the bye-laws be
good or bad. It seems to me that the insufficiency of the provisions of
the statute 3 _Hen._ 8. probably gave rise to this charter; the object
of which was to establish a better mode of determining who were proper
persons to be licensed to practise physic, and to prevent the practice
of ignorant empirics; and if so, it was not necessary that all men of
the faculty should be members of the body. All that was necessary was
that it should be composed of a sufficient number of learned and
discrete practisers of physic, who should have a power of continuing the
succession in such persons as themselves, and that they should license
proper persons and restrain unfit persons from the practice of it. If
this were the object, is it natural to construe the charter as giving a
right to all men of the faculty to become members of this body, when the
charter speaks of men of the faculty in a sense contradistinguished from
the members of the body; or to suppose that the Crown meant to
incorporate all, when the charter was made for the government of some,
who, if all were incorporated, could not exist? It is admitted that
there were two distinct classes under the charter, and according to Dr.
_Stanger’s_ construction one class, that of the governed, would be
extinguished. Another mode of construing the charter in the argument was
by considering the words _omnes homines ejudem facultatis_ to mean the
individual members of the corporation: but if so, there would be no
power given to make bye-laws to affect the licentiates; and the clause
in the charter that gives the exemption from serving on juries speaks of
the person exercising the faculty as contradistinguished from the
members of the college; “_nec presidens nec aliquis de collegio prædicto
medicorum, nec successores sui, nec eorum aliquis exercens facultatem
illam_.” Therefore it seems to me that the _homines facultatis_ are not
the individual members of the college. Then it was said that there might
be some persons who might not choose to become corporators, and that
this would make a class to be governed: but that is improbable; it is
not to be supposed that, as the principal object of the charter was to
incorporate those who were skilled in physic and to prevent those from
practising who were unfit, they to whom the charter was offered would
refuse the advantages of this corporation, especially as the obvious
means of constituting a body to consist of all would be to make it
compulsory on the physicians to become members, as in the case with
companies in some city and corporate towns, of which persons carrying on
certain trades are obliged to be free. But seeing that there is in some
degree an uncertainty as to the words “_homnes ejusdem facultatis_,” the
usage that has prevailed ought to govern us in the construction of them,
especially as the usage perfectly accords with the design of the
incorporation. It is said indeed that the usage is in favour of Dr.
_Stanger’s_ claim: but that is not so; for there is no proof that before
these bye-laws were made any persons were admitted into the body as a
matter of right, and we must therefore take it that they came in by
election. If Dr. _Stanger_ claim as a matter of right, it must be under
the words of the charter “_quod ipsi omnesque homines ejusdem
facultatis_ &c.” but if this gave him a right, the college could not
resist his claim though he would not submit to examination. And if every
_homo ejusdem facultatis_ came within this description of claim, Dr.
_Archer_ would have had a right to be admitted. The charter does not say
that all the men of the faculty, who on examination shall be found fit,
shall be admitted; if it has said any thing in their favor, it has given
them the right as soon as they become men of the faculty; it has
directed no examination. Suppose by a charter all the weavers of a town
were incorporated, they would all have a right to be admitted without
any examination. If then all the men of the faculty within the limited
district have a right from being men of the faculty, they possess all
the fitness that the charter requires. This seems to me to be only a
contrivance to get out of Dr. _Archer’s_ case, and to set up a right on
the ground of being a licentiate. In the course of the argument it was
said that only those were to be admitted who were “profound sad and
discrete, groundedly learned and deeply studied in physic:” but if so,
it destroys the argument arising from the words “_omnes homines ejusdem
facultatis_.” An argument has also been drawn from the statute 3 _Hen._
8:, and it has been said that the persons licensed by that act were the
only persons who at the time of the charter were men of the faculty, and
that they and the six persons named were meant to be incorporated. But
the words of the charter do not extend to all those persons; they are
confined to the “_homines de et in civitate prædictâ_,” that is, to all
men of and in the city of _London_ practising physic: but this does not
extend to persons practising in other places. Now if that construction
had been adopted, it would have excluded the greater part of those who
have been members of the college practising physic in _Oxford_,
_Cambridge_, and other places beyond these limits, as not falling within
the description of those persons of whom (according to the construction)
the college is to consist.
Taking the whole of the charter and the usage this construction will
reconcile all the difficulties; the intention of the Crown was to
incorporate the six persons named in the charter and all men practising
physic at that time _de et in civitate prædictâ_; and all those persons
were entitled to admission: but the Crown did not intend to give any
right to those, who might thereafter become _homines facultatis_, but
intended that the succession should be continued by the power incident
to all corporations to elect. Had the charter of incorporation nominated
every man authorised to practise physic in _London_ and given no
directions as to the succession, they would have been authorised to
continue themselves by election as they have done; and the charter has
done the same thing in substance by incorporating the same persons by a
general reference to their character and situation. This avoids all
contradiction; it is consistent with the usage; and according to this
construction no one is entitled as a matter of right but only by
election. In making such elections there is a trust and duty to keep up
the body by a choice of learned men sufficient to answer the purposes of
the charter; and if this be done all the interest that the public have
is consulted; they have no interest in this or that man being a member
of the college: so long as the body is continued and there are proper
censors elects and other officers, and so long as proper persons are
licensed and improper ones restrained, the objects of the charter as far
as concerns the public will be attained. We have been pressed however
with the dicta of Lord _Mansfield_ in _R._ v. Dr. _Askew_; very great
deference is always due to whatever fell from him: but it is sufficient
to say that this was not the point then before the Court, the only
question there being whether licentiates were of the body.
On the other question respecting the validity of the bye-laws, I can
hardly add to what has already been said by the Court; and therefore
shall only say that I agree with them in thinking the bye-laws
reasonable.
Rule discharged[175].
Return to a Habeas Corpus.
(Goodall. 467)
London. ss. _Nos_ Johannes Warner & Thomas Adams _Vic’ Civitat’_ London,
_Serenissimo Domino Regi in brevi huic schedul’ annex’ nominat’ ad diem
& locum in eodem brevi content’ Certificamus, quod ante adventum nobis
praedict’ brevis scil’ duodecimo die Septembris Anno regni dicti domini
Regis nunc Anglie &c. decimo quinto_ Christoferus Barton _in dicto brev’
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in_ Wood Street London _prædict’ & in eadem Prisona sub custodia_ Isaaci
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eorum exit’ ab officio suo sub custodia nostra detent’ virtute cujusdam
Warranti_ Otwelli Meverell, Laurentii Wright, Edmund Smith, & Willielmi
Goddard _in Medicinis Doctor’ & Collegii Medicor’ in_ London _praedict’
custodi praedict’ Computatorii_ London _praedict’ vel ejus deputat’
direct’ Cujus quidem Warranti tenor sequitur in hæc verba_.
[A Copy of the Censors Warrant for the Commitment of Empiricks to
prison.]
“ss. We _Otwell Meverell_, _Lawrence Wright_, _Edmund Smith_ and
_William Goddard_ Doctors in Physick and Censors of the Collage of
Physicians in _London_, being chosen by the President and Collage of
Physicians aforesaid to govern and punish for this present year all
offenders in the faculty of Physick within the City of _London_ and the
Suburbs thereof and seven miles compass of the said City, according to
the authority in that behalf duly given by certain Letters Patents under
the great Seal of _England_ made and granted to the said Collage and
Comminalty by the late King of famous memory King Henry the Eighth,
bearing the date the 28th day of _September_ in the Tenth year of his
Raigne, And one Act of Parliament made in the 14th year of the said late
King _Henry_ the Eighth concerning Physicians Whereby the Letters
Patents aforesaid and every thing therein are granted and confirmed: And
by virtue of the said Act of Parliament and Letters Patents aforesaid
and one other Act of Parliament made in the first year of the Raigne of
our late Soveraigne Lady Queen _Mary_ intituled _An Act touching the
Corporation of Physicians in_ London, did cause to be brought before us
the sixth day of this instant _September_ at our Collage house in _Pater
noster Rowe_ in _London_ one _Christofer Barton_; and we have examined
the said _Christofer Barton_, and upon his examination and other due
proofs we have found that the said _Christofer Barton_ hath unskilfully
practised the Art of Physick within the City of _London_ and Precinct
aforesaid upon the bodies of _Richard Ballady_ of _Aldermary_ Parish
_London_, _Michael Knight_ of St. _Buttolphs_ Parish _Aldgate London_
and the child of one _Jane Brigge_ and some others in the month of
_January_ in the year 1638, contrary to the Laws in that behalf made and
provided; whereupon we have imposed upon the said _Christofer Barton_ a
fine of 20_l._ for his evil practice in Physick aforesaid; and we have
also for the same cause sent you the body of the said _Christofer
Barton_, Willing and requiring you in the King’s Majesties name to
receive and keep him in safe custody as Prisoner, there to remain at his
own costs and charges without bail or mainprize untill he shall be
discharged of the said imprisonment by the President of the said
Collage, and by such persons as by the said Collage shall be thereunto
authorised according to the Statute in that behalf made, And this our
warrant shall be your discharge. Given at the said Collage the eleventh
day of September in the 16th year of the Raigne of our Soveraigne Lord
King _Charles_.”
Otwell Meverell,
Law. Wright,
Edmund Smith,
William Goddard.
To the Keeper of Woodstreet Compter,
London or his Deputy.
Note. This Christopher Barton, like James Leverett a Gardener (whose
case and the reference of it by the Court of Star Chamber to the
College, are recited in Goodall p. 447) and the more celebrated
Valentine Greatrex, was one of those Empirics, half enthusiasts and half
imposters, who pretended to perform cures by touching or stroaking.
Doctor Burgess’ Case.
(Goodall’s Proceedings 376)
Doctor _Burgess_ having been in Orders and now practising Physick in
_London_, was summoned before the President and Censors to give an
account by what authority he practised in this City contrary to the
Statute Law of this Kingdom. He ingenuously confessed; Not by any
authority, but by the indulgence of the College; and told them he had
formerly offered himself to examination, though he had not yet been
examined. The President replied, that by a Statute of the College (which
was read by the Register) they could not examine admit or permit any to
the practice of Physick, who had been in Holy Orders. Besides if the
Statutes of the College would allow it He told him an admission to a
person that had been so qualified was repugnant to the Statute Laws of
the Kingdom and Canons Ecclesiastical. He replied with great temper and
candour, that he would not contradict either the one or the other, but
lay down practice in _London_. After this he was convened a second time
before the President and Censors and interdicted the practice of Physick
within the College Liberties, to which he submitted and promised that he
would speedily betake himself to the Country. Some of the Fellows of the
College were complained of for consulting with him.
Doctor Winterton’s Letter to the President.
My service and best respects remembered.
Master President and my much honoured friend
Whereas I am given to understand that you have heard that the last year
I would not give way to two or three for the obtaining a Licence to
practise Physick, nor to a Doctor of Leyden to be incorporated with us
without giving publick testimony of his abilities, and I further
understand that yourself and the whole College are well pleased
therewith, I have cause to rejoice: and further thought fit at this time
to acquaint you with my real intentions, which I shall eagerly
prosecute, if I may have countenance and assistance. I have observed and
have grieved to see sometimes a Serving-man sometimes an Apothecary
oftentimes Masters of Arts (whereof some have afterwards assumed holy
Orders) admitted to a Licence to practice in Physick, or to be
incorporated to a Degree without giving any publique testimony of their
learning and skill in the Profession. And what hath followed hereupon?
The Minister hath neglected his own calling and trespassed upon
another’s, not without endangering the Souls of the people of God, and
the losse of the Lives of many of the King’s Subjects. The Serving-man
and Apothecary upon a Licence obtained have been presently made Doctors
by the breath of the people, and Doctors indeed undervalued. Masters of
Arts after Licence obtained have taken as I said holy Orders, that if
one Profession did faile them another might supply them. And
Incorporation being in an instant obtained by a little summe of money
which by orderly proceeding (I speake concerning the Doctor’s Degree)
would cost 12 years study in the University besides performance of
exercises and much expence; It is come to passe, that in the University
at this time I doe protest I doe not know any one that intends the study
of Physick, and practice thereof according to the Statutes. Chirurgeons
and Apothecaries are sought into, and Physicians seldome but in a
desperate case are consulted with, when the Patient is ready to dye and
in this kind we have too many examples. The consideration of these
mischiefs redounding to the Church, Commonwealth, University, and our
Profession, hath often troubled me, when I had no power to prevent them.
But now seeing it hath pleased God and the King to conferre such power
upon me, that without me neither Licence nor Degree in Physick can be
obtained at _Cambridge_ (for I have solicited Dr. _Nichols_ and Dr.
_Allet_ to joyne with me; and I have prevailed soe farre with them that
they will doe nothing without me) I doe intend by the grace of God to
give way unto noe man to obtain a Licence or Degree without keeping an
Act at the least, &c. unless it shall happen that with some one
particular man it shall be dispenced withall by supreme Authority or in
some extraordinary case. But all this will be to little purpose, unlesse
yourselfe and the College will solicite Dr. _Clayton_, his Majesties
Professor at _Oxford_, and others of the faculty there, to doe the like;
or rather Petition to my Lord’s Grace of _Canterbury_, who out of his
innate goodnesse, and zeale for the good of the Church and Commonwealth,
and the honour of the Universities, I am fully perswaded, will grant
what you desire, against Apothecaries and Chirurgeons, and all others
which without Licence and authority do practise Physick, I could wish
there were some course taken; I know there be already good Lawes, if
they were put in execution. This much in haste (as you may perceive by
my writing) I thought good to signify unto you, out of the grateful
respect which I beare unto yourself and the whole College, tending the
honour of our common Profession, which I will maintain as much as in me
lyes, and vindicate from the invasions of Usurpers and Intruders. I have
exceeded I feare the bounds of a Letter, but that you will pardon I hope
considering the occasion. And soe with a gratefull acknowledgment of
your love and favour towards me and an ingenuous profession of much
service I owe unto you, I take my leave, as one that will be ready, upon
the least signification, to embrace your commands, and execute them with
all alacrity.
Yours in all dutiful respects
RALPHE WINTERTON.
From the King’s College in Cambridge,
August 25th, 1635.
LILLY’S DIPLOMA.
THE LICENSE OF DR. SHELDON, ARCHBISHOP OF CANTERBURY, GRANTED TO WILLIAM
LILLY, THE ASTROLOGER, TO PRACTISE PHYSIC. _Dated A. D. 1670._
“Gilbertus providentia divina Cantuariensis Archiepiscopus totius Angliæ
Primas et Metropolitanus, dilecto nobis in Christo _Gulielmo Lilly_ in
Medicinis professori, salutem, gratiam, et benedictionem. Cum ex fide
digna relatione acceperimus te in arte, sive facultate medicinæ per non
modicum tempus versatum fuisse, multisque de salute et sanitate corporis
verè desperatis (Deo omnipotente adjuvante) subvenisse, eosque sanasse,
nec non in arte predicta multorum peritorum laudabili testimonio pro
experientia, fidelitate, diligentia et industria circa curas quas
susceperis, peragendas in hujusmodi arte Medicinæ merito commendatum
esse, ad practicandum igitur, et exercendum dictam artem Medicinæ in et
per totam Provinciam nostram Cant: (_Civitate Lond’ et circuitu septem
millarum eidem prox’ adjacen’ tantummodo exceptis_,) ex causis prædictis
et aliis nos in hoc per te juste moventibus, præstito primitus per te
juramento de agnoscendo Regium supremam potestatem in causis
ecclesiasticis et temporalibus ac de renunciando, refutando, et
recusando omni, et omni modo jurisdictioni, Potestati, Authontati, et
Superioritati, foraneis juxta vim formam et effectum Statui Parlamenti
hujus inclyti regni Angliæ liceat et non aliter neque alio modo te
admittimus, et approbamus tibique licentiam et facultatem nostras in hac
parte, Tenore præsentium quamdiu te bene et laudabiliter gesseris
benignè concedimus et elargimur. In cujus rei testimorium sigillum (quo
in hac parte utimur) presentibus apponi fecimus. _Dat. Undecimo Die
Mensis Octobris, Anno Domini 1670 Nostræque Translationis Anno Octavo._”
(LS) _Radulph Snowe, et_ } Registrarii.
_Edm. Sherman._ }
_S. Rich. Lloyd_, Sur.
Vicarii in Spiritualibus Generalis per provinciam Cantuariensem.
It does not appear in the memoirs of Lilly, as written by himself, that
he ever made an attempt to acquire the elements of medical science, but
was directed in his prescriptions by his astrological art only: but
having procured the above license he began to practise more openly, and
every Saturday rode to Kingston, where the poorer sort flocked to him
from several parts, and received much benefit by his prescriptions,
which he gave them freely, and without money; from those that were more
able he now and then received a _shilling_, and sometimes an
_half-crown_, if they offered it to him, otherwise he demanded nothing.
At the Court at the Queen’s Palace, the 26th of July, 1809. Present,
The King’s Most Excellent MAJESTY.
Archbishop of _Canterbury_.
Lord Chancellor.
Lord President.
Earl of _Liverpool_.
Earl of _Harrowby_.
Lord _Mulgrave_.
Mr. Chancellor of the Exchequer.
Mr. Secretary _Canning_.
Sir _David Dundas_, K. B.
Mr. _Ryder_.