the best learned wisest and most discreet such as they shall think convenient and have experience in the said faculty of Physick and that the said four persons so elected and chosen after a corporal Oath to them ministred by the said President or his Deputy shall and may by vertue of this present Act have full authority and power as oâ—ten as they shall think meet and convenient to enter into the house or houses of all and every Apothecary now or any time hereafter using the mystery or craft of Apothecary within the said City only to search view and see such Pothecary Wares Drugs and stuffes as the said Apothecaries or any of them have or at any time hereafter shall have in their house or houses And all such Wares Drugs and stuffes as the said four persons shall then find defective corrupted and not meet nor convenient to be ministred in any medicines for the health of mans body the same four persons calling to them the Wardens of the said mystery of Apothecaries within the said City for that time being or one of them shall cause to be brent or otherwise destroy the same as they shall think meet by their discretion And if the said Apothecaries or any of them at any time hereafter do obstinately or willingly refuse or deny the said four persons yearly elected and chosen as is before said to enter into their said house or houses for the causes intent and purpose before rehearsed That then they and every of them so offending contrary The forfeiture of an Apothecary that refuseth to have his house searched St. 1. M. 9. to this Act for every time that he or they do o offend do forfeit C. s. the one half to your Majesty and the other half to him that will sue for the same by action of debt bill plaint or information in any of the Kings Courts wherein no wager of law essoine or protection shall be allowed And if the said four persons or any The forfeiture of such as being elect refuse to be sworn or to make search of them so elected and chosen as before is said do refuse to be sworn or after his said oath to him â—â— them administred do obstinately refuse to make the said search and view once in the year at such time as they shall think most convenient by their discretions having no lawful impediment by sickness or otherwise to the contrary that then for every such wilful and obstinate default every of the said four persons making default to forfeit forty shillings And forasmuch as the Science of Physick doth comprehend include and contain the knowledge Any of the Physicians of London may practise Chirurgery of Chirurgery as a special member and part of the same therefore be it enacted that any of the said Company or fellowship of Physicians being able chosen and admitted by the said President and fellowship of Physicians may from time to time as well within the City of London as elsewhere within this Realm practise and exercise the said Science of Physick in all and every his members and parts any Act Statute or provision made to the contrary notwithstanding CAP. XLII The authority and liberties of Barbers and Chirurgeons in London being made of one Company THe King our Soveraign Lord by the advice of his Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same by all their common assents duly pondering among other things necessary for the Common-wealth of this Realm that it is very expedient and needful to provide for men expert in the Science of Physick and Chirurgery for the health of mans body when infirmities and sickness shall happen for the due exercise and maintenance whereof good and necessary acts be already made and provided Yet nevertheless forasmuch as within the City of London where men of great experience as well in speculation as in practise of the Science and faculty of Chirurgery be abiding and inhabiting and have more commonly the daily exercise and experience of the same Science of Chirurgery then is had or used within any parts of this Realm And by occasion thereof many expert persons be brought up under them as their servants apprentices and others who by the exercise and diligent information of their said masters as well now as hereafter shall exercise the said Science within divers other parts of this Realm to the great relief comfort and succour of much people and to the sure safeguard of their bodily health their limbs and lives And for as much as within the said City of London there be now two several and distinct Companies of Chirurgeons occupying and exercising the said Science and Faculty of Chirurgery the one Company being By whom and at what time the Barbers of London were incorporate commonly called the Barbers of London and the other Company called the Chirurgeons of London which Company of Barbers be incorporated to sue and be sued by the name of Masters or Governors of the Mystery and Communalty of the Barbers of London by vertue and authority of the Letters Patents under the great Seal of the late King of famous memory King Edward the fourth dated at Westminster the four and twentieth day of February in the first year of his reign which afterward as well by our most dread Soveraign Lord as by the right noble and vertuous Prince King Henry the seventh Father unto the Kings most excellent Highness now being were and be confirmed as by sundry Letters Patents thereof made amongst other things in the same contained more at large may appear And the other Company called the Chirurgeons be not incorporate The benefit like to ensue by joyning the Barbers and Chirurgeons in one Company nor have any manner of Corporation which two several and distinct Companies of Chirurgeons were necessary to be united and made one body incorporate to the intent that by their union and often assembly together the good and due order exercise and knowledge in the said Science or Faculty of Chirurgery should be as well in speculation as in practise both to themselves and all other their said servants and apprentices now and hereafter to be brought up under them and by their learning and diligent and ripe informations more perfect speedy and effectual remedy should be then it hath been or should be if the said two Companies of Barbers and Chirurgeons should continue severed asunder and not joyned together as they before this time have been and used themselves not medling together Wherefore in consideration of the Premises be it enacted by the King our Soveriagn Lord and by the Lords Spiritual and Temporal and by the Commons in this present Parliament assembled and by the authority of the same That the said two several and distinct Companies of Chirurgeons that is to say both the Barbers and the Chirurgeons and every person of them being a freeman of either of the said Companies
within the City of London except he be a Freeman of the same Corporation and Company And furthermore at such times as have been heretofore accustomed there shall be chosen by Four Wardens shall be chosen and their authority the same Company four Masters or Governors of the same Corporation or Company of the which four two of them shall be expert in Chirurgery and the other two in Barbery which four Masters and every of them shall have full power and authority from time to time during their said office to have the oversight search punishment and correction of all such defaults and inconveniences as shall be found among the said Company using Barbery or Chirurgery as well of freemen as foreins aliens and strangers within the City of London and the circuit aforesaid after their said discretions And if any person The forfeitures of the offenders or persons using any Barbery or Chirurgery at any time hereafter offend in any of these Articles aforesaid then for every moneth the said persons so offending shall lose forfeit and pay five pounds the one moity thereof to the King our Soveraign Lord and the other moity to any person that will or shall sue therefore by action of debt bill plaint or information in any the Kings Courts wherein no wager of law essoine or protection shall be admitted or allowed in the same Provided that the said Barbers and Chirurgeons and every of them shall bear and pay lot and scot and such other charges as they and their predecessors have been accustomed to pay within the said City of London this act nor any thing therein contained to the contrary hereof in any wise notwithstanding Provided alway and be it enacted by authority Any person may keep a Barber or Chirurgeon as his servant aforesaid that it shall be lawful to any of the Kings Subjects not being Barber or Chirurgeon to retain have and keep in his house as his servant any person being a Barber or Chirurgeon which shall and may use and exercise those arts and faculties of Barbery and Chirurgery or either of them in his masters house or elsewhere by his Masters license or commandement any thing in this Act above written to the contrary notwithstanding Anno xxxiiii xxxv Henrici octavi CAP. VIII Any person being no common Chirurgeon may minister outward medicines WHere in the Parliament holden at Westminster in the third year of the Kings most Gracious reign amongst other things for the avoiding of sorceries witchcrafts and other inconveniencies it was enacted That no person within the City of London nor within seven miles of the same should take upon them to exercise and occupy as Physician or Chirurgeon except he be first examined approved and admitted by the Bishop of London and other under and upon certain pains and penalties in the same Act mentioned Sithence the making of which said Act By what means the Chirurgeons of London have abused the Statute of 3. H. 8. 11. for their own gain the company and fellowship of Chirurgeons of London minding only their own lucres and nothing the profit or ease of the diseased or patient have sued troubled and vexed divers honest persons as well men as women whom God hath endued with the knowledge of the nature kind and operation of certain herbs roots and waters and the using and ministring of them to such as been pained with customable diseases as womens brests being sore a pin and the web in the eye uncomes of hands scaldings burnings sore mouthes the stone strangury saucelim and morfew and such other like diseases and yet the said persons have not taken any thing for their pains or cunning but have ministred the same to poor people only for neighbourhood and Gods sake and of pity and charity And it is now well known that the Chirurgeons admitted will do no cure to any person but where they shall know to be rewarded with a greater sum or reward then the cure extendeth unto for in case they would minister their cunning unto sore people unrewarded there should not so many rot and perish to death for lack of help of Chirurgery as daily do but the great part of Chirurgeons admitted been much more to be blamed then those persons that they trouble For although the most part of the persons of the said craft of Chirurgeons have small cunning yet they will take great sums of money and do little therefore and by reason thereof they do oftentimes impair and hurt their patients rather than do them good In consideration whereof and for the ease comfort succour help relief and health of the Kings poor Subjects inhabitants of this his Realm now pained or diseased or that hereafter shall be pained or diseased Be it ordained established and enacted by the authority of this present Parliament that all time from henceforth it shall be lawful to every person being the Kings Subject having knowledge and experience of the nature of herbes roots and waters or of the operation It shall be lawful for any person to cure outward sores notwithstanding the Statute of 3. H. 8. 11. of the same by speculation or practise within any part of the Realm of England or within any other the Kings Dominions to practise use and minister in and to any outward sore uncome wound apostemations outward swelling or disease any herb or herbs oyntments bathes pultes and emplasters according to their cunning experience and knowledge in any of the diseases sores and maladies beforesaid and all other like to the same or drinks for the stone and strangury or agues without suit vexation trouble penalty or losse of their goods the foresaid Statute in the foresaid third year of the Kings most Gracious reign or any other Act Ordinance or Statute to the contrary hereof heretofore made in any wise notwithstanding Anno primo MARIAE Sessio secunda CAP. IX The Incorporation of Physicians in London WHereas in the Parliament holden at London the fifteenth day of April in the fourteenth year of the reign of our late Soveraign Lord King Henry the eighth and from thence adjourned to Westminster the last day of July in the fifteenth year of the reign of the same King and there holden It was enacted that a certain Grant by Letters Pattents of incorporation made and granted by our said late King to the Physicians of London and all clauses and Articles contained in the same Grant should be approved granted ratified and confirmed by the same Parliament For the consideration thereof be it enacted by A confirmation of the St. of 14. H. â— 5. touching the Corporation of Physicians of London authority of this present Parliament that the said Statute or act of Parliament with every article and clause therein contained shall from henceforth stand and continue still in full strength force and effect Any Act Statute Law Custome or any other thing made had or used to the contrary in any wise notwithstanding And for the
year all Offendors 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 to us duly given by certain Letters Patents under the Great Seal of England made and granted to the said Colledge and Comminalty by the late King of famous memory King Henry the 8th bearing date the 23. day of September in the tenth year of his reign and one Act of Parliament made in the 14. year of the reign of the said late King Henry the 8th concerning Physicians where by the Letters Patents aforesaid and every thing therein are granted and confirmed And by vertue of the said Act of Parliament and Letters Patents aforesaid and one other Act of Parliament made in the first year of the reign of our late Soveraign 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 Colledge-house in Pater noster-Row in London one Christopher Barton and we have examined the said Christopher Barton and upon his examination and other due proofs we have found that the said Christopher 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 S. Botolphs Parish Aldgate London and the Childe of one Jane Bigge and some others in the moneth of January in the year 1638. contrary to the Lawes in that behalf made and provided whereupon we have imposed upon the said Christopher Barton a Fine of 20 l. for his evil practise in Physick aforesaid And we have also for the same cause sent you the Body of the said Christopher Barton willing and requiring you in the Kings Majesties name to receive and keep him in safe custody as prisoner there to remain at his own costs and charges without bayâ— or mainprize untill he shall be discharged of his said imprisonment by the President of the said Colledge and by such persons as by the said Colledge shall be there unto authorised according to the Statute in that behalf made and this our Warrant shall be your discharge Given at the said Colledge the eleventh day of September in the fifteenth year of the Reign of our Sovereign Lord King Charles Otwell Meverell Edm. Smith Lawr. Wright William Goddard To the Keeper of Woodstreet Compter London or his Deputy To Mr. John Penyall one of the Messengers of his Majesties Chamber in Ordinary to execute this Warrant Et haec est causa accepcois detenconis prefati Christophori Barton in prisona predct sub custodia nra corpus Cujus quidem Christophori coram prefat Dno Rege apud Westm parat habemus Being at the Bar the said 19. of October for that the Lord chief Justice Sir John Bramston was not present the other Judges present would not accept of Bayl which the said Barton tendred but suspended the matter untill Tuesday the 22. of October following Barton for that time was returned back and coming to the Bar again on the said Tuesday with his Councel and Bayl the Lord Bramston being then present my Lord demanded the return of the warrant which was neglected by the Clerks of the Court and left in the Crown Office in the Temple so my Lord would not proceed but respited the cause untill Thursday the 24. of October following when all parties appearing with Councel on both sides the Warrant and Return was read and the Cause debated and there the Court plainly declared that he should not be bayled it being against the Law and the Letter of the Warrant grounded upon the Statutes Then it was desired by Bartons Councel that he might go over to the Kings-Bench which also was denied because he was committed originally to the Compter in Woodstreet as appeared by the Warrant and so Barton was remanded by the Court to the said Compter and willed if he would have Liberty to submit to the Barton remitted to prison Colledge and make his peace there Barton being in Custody of the Serjeant that carried him up to the Bar eâ—â—â—ibited his humble Petition to the President and Censors the 25. of October signed with his own hand for abatement of part of his Fine and for his enlargement submitting in all things unto them whereupon the President and Dr. Meverell one of the Censors were contented to abate the half of his Fine of 20 l. and to accept of 10 l. the one half to be paid in hand which was paid and the other half at our Lady day next And so upon the 29. of October signed his discharge and set him at liberty he being put again before his enlargement into the said prison Termino Trinitatis anno octavo Caroli Regis in Banco Regis Crokes Reports the First Part. Butler versus the President of the Colledge of Physicians Pasc 7. Car. rot 519. ERror of a Judgment upon a Demurrer in the Common-Bench The first Error assigned was because the Record was Ad respondendum Domino Regi Praesidenti Collegii c. Qui tam pro Domino Rege quam pro seipso sequitur quod reddat eis sexaginta libras unde idem Praesidens qui tam c. dicit c. Whereas the Action ought to have been brought by the President only qui tam c. and not by the King and President c. sed non allocatur For being an Original Writ the Writ is most often so and sometimes the other way And they conceived it good both waies But Informations are alwaies that the party qui tam for the King quam pro seipso sequitur c. Vide Plowd 77. new Book of Entries 160. old Book of Entries 143. 373. The second Error was that the Replication was a departure from the Count For the Count sets forth That King Henry the eighth anno decimo Regni sui incorporavit per le Statut of decimo quarto Henrici octavi confirmavit the Colledge of Physicians by the name of the President c. that no man should practise Physick in London or within seven miles without Licence under the Seal of the Colledge upon penalty of 5 l. for every moneth that he so practised the one moity unto the King and the other unto the President of the Colledge to the use of the said Colledge And for that the Desendant not being allowed c. had practised Physick for twelve months in London The said Action was brought c. The Defendant pleads the Statute of tricesimo quarto Henrici octavi cap. 8. That every one who hath Science and experience of the nature of Herbs Roots and Waters or of the operation of the same by speculation or practise may minister or apply in and to any outward Sore Uncome Wound Aposthumations outward Swelling or Disease any Herb Oyntments Baths Pultes or Implaisters according to their cunning experience
after the custome of the said City The Barbers and Chirurgeons of London made one Company and incorporated of London and their successors from henceforth immediately be united and made one entire and whole body corporate and one Comminalty perpetual which at all times hereafter shall be called by the name of Masters or Governours of the mystery Comminalty of Barbers and Chirurgeons of London for evermore and by none other name And by the same name to implead and be impleaded before all manner of Justices in all Courts in all manner of Actions and Suits And also to purchase enjoy and take to them and to their successors all manner of lands tenements rents and other possessions whatsoever they be and also shall have a common Seal to serve for the business of the said Company and Corporation for ever And by the same name peaceably quietly and indifferently have possess and enjoy to them and to their successors for ever all such lands and tenements and other hereditaments whatsoever which the said Company or Comminalty of Barbers have and enjoy to the use of the said Mystery and Comminalty of Barbers of London And also shall peaceably and quietly have and enjoy all and singular benefits grants liberties priviledges franchises and free customes and also all manner of other things at any time given or granted unto the said Companies of Barbers or Chirurgeons by whatsoever name or names they or any of them were called and which they or any of them now have or any of their predecessors have had by acts of Parliament Letters Pattents of the Kings Highness or other his most noble progenitors or otherwise by any lawful means had at any time afore this present Act in as large and ample manner and form as they or any of them have had might or should enjoy the same this union or conjunction of the said companies together notwithstanding And as largely to have and enjoy the premises as if the same were and had been specially and particularly expressed and declared with the best and most clearest words and terms in the law to all intents and purposes And that The Barbers and Chirurgeons in London shall be exempt from bearing of armes or to be in watches or inquests 5. H. 8. 6. all persons of the said Company now incorporate by this present Act and their successors that shall be lawfully admitted and approved to occupy Chirurgery after the form of the Statute in that case ordained and provided shall be exempt from bearing of armour or to be put in any watches or inquests And that they and their successors shall have the search oversight punishment and correction as well of Freemen as of foreins for such offences as they or any of them shall commit or do against the good order of Barbery or Chirurgery as afore this time among the said mystery and Company of Barbers of London hath been used and accustomed according to the good and politick rules and ordinances by them made and approved by the Lords Chancellor Treasurer and two chief Justices of either Bench or any three of them after the form of the Statute in that case ordained and provided 19. H. 7. 7. And further be it enacted by the authority The Chirurgeons may take yearly four condemned persons for Anatomies aforesaid that the said Masters or Governors of the Mystery and Comminalty of Barbers and Chirurgeons of London and their successors yearly for ever after their said discretions at their free liberty and pleasure shall and may have and take without contradiction four persons condemned adjudged and put to death for felony by the due order of the Kings Lawes of this Realm for Anatomies without any further suit or labour to be made to the Kings Highness his Heirs or Successors for the same And to make incision of the same dead bodies or otherwise to order the same after their said discretions at their pleasures for their further and better knowledge instruction insight learning and experience in the said Science or Faculty of Chirurgery Saving unto all persons their heirs and successors all such right title interest and demand which they or any of them might lawfully claim to have in or to any of the lands and tenements with the appurtenances belonging unto the said Companie of Barbers and Chirurgeons or any of them at any time afore the making of this Act in as ample manner and form as they or any of them had or ought to have had heretofore Any thing in this present Act comprised to the contrary hereof in any wise notwithstanding And forasmuch as such persons being of the Mystery or Faculty of Chirurgery oftentimes meddle and take into their cure and houses such sick and diseased persons as been infected with the pestilence great Pocks and such other contagious infirmities do use or exercise Barbery as washing or shaving and other feats thereunto belonging which is very perillous for infecting the Kings liege people resorting to their shops and houses there being washed or shaven Wherefore it is now enacted or dained and provided by the authority aforesaid that no manner person within the City of London Suburbs of the same and one mile compass of the said City of London after the Feast of the Nativity of our Lord God next coming using any Barbery or shaving No Barber in London shall use Chirurgery or that hereafter shall use any Barbery or shaving within the said City of London Suburbs or one mile circuit of the same City of London he nor they nor none other for them to his or their use shall occupy any Chirurgery letting of bloud or any other thing belonging to Chirurgery drawing of teeth only except And furthermore in like manner whosoever that useth the mystery or craft of Chirurgery within the No Chirurgeon in London shall use the art of shaving circuit aforesaid as long as he shall fortune to use the said mystery or craft of Chirurgery shall in no wise occupy nor exercise the feat or craft of Barbery or shaving neither by himself nor by none other for him to his or their use And moreover that all manner of persons using Chirurgery for the time being as well freemen as foreins aliens and strangers within the said City of London the Suburbs thereof and one mile compass of the same City of London before the Feast of Saint Michael the Archangel next coming shall have an open sign on the street side where Every Chirurgeon in London shall have a Sign at his door they shall fortune to dwell that all the Kings liege people there passing by may know at all times whether to resort for their remedies in time of necessity And further be it enacted by the authority asoresaid None shall be a Barber in London but a Freeman of that Company That no manner of person after the said Feast of Saint Michael the Archangel next coming presume to keep any shop of Barbery or shaving
which words as it appears by all other Acts passed in the same Roll and as Mr. Clayton one of the keepers of the Parliament Rolls told me in all other Acts made it manifest were passed by the King himself being personally present in Parliament Upon farther search at the Rolls I found the Act of Parliament its self and had it exemplified under the Seal Dec. 18. 1658. So that the Charter its self is in one Roll and the Act of Parliament in another distinct Roll. Now as to that objection that these words le Roy le veult are not subscribed to this Act concerning Physicians I answer that neither were these words subscribed to some Acts preceding this nor to any that followed it And at the end of all this Roll 't is said the King having heard all the Acts recited and read did confirm them and commanded the Parliament to see them all observed Rastals and Poultons Statute Books our Charter and Exemplification have all of them per Nomina Praesidentis Collegii seu Communitatis c. But in Bonhams Case in Cooks Reports 't is per Nomina Praesidentis Collegii 'T was the opinion of two of our Councel that Et would make a variation and nonsuit consequently They both said that for the Tithes of London and Magna Charta there was nothing extant but prescription If a Statute be special particular or private as this of the Colledge is then if any man will have benefit by or make use of it or will charge another upon it he must plead and shew the Statute at large vide Shepard in folio pag. 917. Crompton fol. 15. 1617. Lord chief Baron Steele at a Plea holden at Kingston upon Trent 1655. the Action being laid in Nomine Praesidentis Collegii seu Communitatis c. and the Defendants pleading it ought to run according to Cooks Reports in Nomine Praesidentis Collegii salved it thus by saying there was to be put a Comma after Praesidentis betwixt it and Collegii and so did tantamount to Praesidis Collegii At a Trial at Guild-hall against Trigge for ill practise Judgment for Trigge because the Colledge could not prove what Medicines he gave for he made his Medicines privately himself Blank for ill practise fined by the Censors 20 l. and upon a habeas corpus was remitted to prison and paid the Fine Ann. l. 2. pag. 186. Trigge fined by the Censors for a Paracentesis 20 l. sent to Newgate and paies the 20 l. 14 15. H. 8 By Easter Record 1656. first draught BE it remembred that the President of the Colledge or Comminalty of the faculty of Physicians in London who followeth as well for Charles by the grace of God King of England Scotland France and Ireland Defender of the Faith c. as for himself did come before the Barons of this Exchequer the 6. day of June this Term in his own person and as well for the said King as for himself did give the Court here to understand and to be informed That one Richard Barker of the Parish of St. John the Baptist in the Ward of Dowgate London Gent. between the first day of July last past and the day of the exhibiting of this Information that is to say by the space of 11. months at the Parish of St. John Baptist aforesaid did exercise the faculty of Physick the said Richard Barker not being admitted to exercise the said faculty of Physick by the said President and Comminalty by Letter of the said President and Comminalty sealed with their common Seal contrary to the form of the Statute in such case made and provided whereupon the said President as well for the said King as for himself prayeth the advice of the Court in the premises And the said Richard Barker for the offence aforesaid may forfeit 55 l. of lawful money of England that is to say for every month of the said 11. months in which he did exercise the said faculty of Physick not being admitted in form aforesaid 5 l. of like lawful money of England And that he the said President may have the moiety of the forfeiture aforesaid according to the form of the Statute aforesaid and that the said Richard Barker may come here to answer the premises SEcretary Walsingham writes a Letter in 88. to the Major and Aldermen of London who had then charged the Colledge with Armes that they should no more trouble them hereafter but should permit them to live quietly and free from that charge L. Annal. 1. cap. 67. Anno 1614. October 4. the Colledge being charged with Arms Sir William Paddy pleaded the priviledge of the Colledge before Sir Thomas Middleton Lord Major and a full Court of Aldermen and Sir Henry Montacue Recorder alledging that in former times by vertue of their Charter and Acts of Parliament they have been exempted from this service and that 1. The Statute 14. H. 8. confirms not only all Grants Articles and other things contained in the said Letters Patents but also for enlargement of farther Articles for the said Colledge are to be interpreted available to the said Colledge in as large and ample manner as may be taken thought and construed by the same 2. In Anno 32. H. 8. they and every of them of the said body corporate or fellowship and their successors shall at all time and times be discharged to keep any watch or ward in London or the Suburbs of the same Here observe the word any which in true right of construction was to be extended as if that clause had been in more words expressed 3. In the Act for the Chirurgeons in the first entrance there are these words It was thought expedient by the wisdome of the land to provide for men expert in the science of Physick and Chirurgery And therefore when it followeth in their Act of Parliament that the Chirurgeons by express words are exempted from the bearing of armour it may truly be inferred that Physicians are exempted as before from any watch or wards as also Physicians here recited in the preamble should receive a greater or at least the same immunity especially since Physicians are by their Science and Act of Parliament Chirurgeons without farther examination and approbation to be had from the Bishop of London whereunto mere Chirurgeons are subject An Alderman objects that by the words of this Act of Parliament viz. bearing of Armour were to free their persons but not to exempt them from the charge of the service Answer That the difference 〈…〉 and wearing of arms was such that the very Etymon of the word bearing as in many other cases comprehended both and therefore should give immunity for both 4. In all foreign or domestick wars Physicians do attend the Armies in person and for this produceth the regigister The Recorder then perusing every branch of the Statutes recited and the reasons urged and opening every part thereof at large did conclude that the Acts of Parliament did extend to give to
A COLLECTION OF Acts of Parliament Charters Trials at Law and Judges Opinions Concerning Those GRANTS to the Colledge of Physicians London taken from the Originals Law-Books and Annals Commanded By Sir EDWARD ALSTON Kt. President and the Elects and Censors Made by CHRISTOPHER MERRETT Fellow and Censor Anno Dom. 1660. CONTENTS ACts 3. H. 8. pag. 1. Search for the Original 122 123 ACts 14 15. H. 8. 3. ACts 32. H. 8. 14 18. ACts 34 35. H. 8. 27. ACts 1. Mariae 30. Chirurgeons and their Liberties 18. Charters 10. H. 8. pag. 3. Confirmed 9 11 19 30 34 39 40 41 61. Queen Eliz. for Anatomies 34. King James 37. to be confirmed next Parl. 62. An Abridgment of it 134. Allowed in the Exchequer 65. His Letter in prosecution of it 130. The like from his Councel 133. Tryals Colledge versus Gardiner 67 110 112. Tryals Colledge versus Dr. Bonham 75. Bugge 65 Tryals Colledge versus Barton 101. Tryals Colledge versus Jenkins and Read 113. Tryals Colledge versus Barker 122. Tryals Colledge versus Trigge 124. Tryals Colledge versus Blanke 124 133. Tryals Colledge versus Butler 133. Bonham versus Colledge 79. Butler versus Colledge 106. Concerning the Kings Physicians 129. Lord chief Justice Pophams Resolves 113. Lord Chancellour Chief Justice and Judges resolves 116. Several tryals nonsuits and directions 122 123 124 133. 1. Form of a Declaration 67. 2. an Information in the Exchequer 67. 3. a Warrant to commit to prison 101. PRIVILEGES Coll. Incorporated pag. 4 5. To choose a President 5 To have a Common Seal 6. To purchase Lands 6 60 To plead and be impleaded 6 124. To make by-Laws 6 56 To have a Hall and meetings 55. To imprison non-payers of fines 52. To have all fines 53 57 To pay 6 l. per annum for those fines 63. Not to be in Inquests juries c. 8. Freed from Watch Ward and Offices 15. Freed from Armes compare 19 22. 61 126. May practise Chirurgery 18. Elects to be chosen 10. What Physicians they may licence 11 Register his office and oath 57 58 Officers to choose and swear 58 59 Censors are to be yearly chosen their office concerning Physicians and Medicines 7 May fine and imprison for mala praxis 7 31 32 47 And for that only 97 98 Keepers to receive whom they commit to prison 31 Must be sworn 16. their forfeiture for non-swearing and searching 16 May search Apothecaries c. shops 16 32 44 50 52 Apothecaries refusing search how fined 17 33. May summon examine fine and convent Physicians and witnesses 45 51. May fine and imprison witnesses not appearing c. 46 May swear witnesses 49. May take a bond of 100 l. for no farther practise 59 May punish non admissos and how 47. Discovery of offenders and how 48 May convent Apothecaries c. 51 Admitted by the Vniversities 3 11 75 Colledge 7. Bishops 2 3. Elects 11 Penalty of non admissi 2 7 42 By the Common Law 66 In what cases any person may Practise 27. ANNO TERTIO HENRICI Octavi CAP. XI By whom every Physician and Chirurgeon shall be allowed TO the King our Soveraign Lord and to all the Lords Spiritual and Temporal and Commons in this present Parliament assembled For as much as the science and cunning of Physick and Chirurgery to the perfect knowledge whereof be requisite both great learning and ripe experience is daily within this Realm exercised by a great multitude of ignorant persons of whom the greater part have no manner of insight in the same nor in any other kind of learning some also can no letters on the book so Inconveniences ensuing by ignorant persons practising Physick or Chirurgery far forth that common Artificers as Smiths Weavers and women boldly and customably take upon them great cures and things of great difficulty in the which they partly use sorcery and witchcraft partly apply such medicines unto the disease as be very noyous and nothing meet therefore to the high displeasure of God great infamy to the Faculty and the grievous hurt damage and destruction of many of the Kings liege people most especially of them that cannot discern the uncunning from the cunning Be it therefore to the surety and comfort of all manner people by authority of this present Parliament Enacted That no person within the City By whom they which practise Physick or Chirurgery in London c. shall be allowed St. 14. H. 8. 5. 34. H. 8. 8. of London nor within seven miles of the same take upon him to exercise and occupy as a Physician or Chirurgeon except he be first examined approved and admitted by the Bishop of London or by the Dean of Pauls for the time being calling to him or them four Doctors of Physick and for Chirurgery other expert persons in that Faculty and for the first examination such as they shall think convenient and afterward alway four of them that have been so approved upon the pain of forfeiture for every moneth that they do occupy as Physicians or Chirurgeons not admitted not examined after the tenour of this Act of v. li. to be imployed the one half thereof to the use of our Soveraign Lord the King and the other half thereof to any person that will sue for it by action of debt in which no wager of Law nor protection shall be allowed And over this that no person out of the said A Physician or Chirurgeon allowed by the Bishop of the Diocese City and precinct of vii miles of the same except he have been as is aforesaid approved in the same take upon him to exercise and occupy as a Physician or Chirurgeon in any Diocese within this Realm but if he be first examined and approved by the Bishop of the same Diocese or he being out of the Diocese by his Vicar general either of them calling to them such expert persons in the said faculties as their discretion shall think convenient and giving their Letters testimonials under their Seals to him that they shall so approve upon like pain to them that occupy contrary to this Act as is above said to be levied and imployed after the form before expressed Provided alway that this Act nor any thing The Priviledges of Oxford and Cambridge therein contained beprejudicial to the Universities of Oxford and Cambridge or either of them or to any priviledges granted to them Rast pla fol. 426. Anno xiiii xv Henrici octavi CAP. V. The priviledges and authority of Physicians in London IN their most humble wise shew unto your Highness your true and faithful subjects and liege men John Chambre Thomas Linacre Fernandus de Victoria your Physicians and Nicholas Halsewell John Fraunces and Robert Yaxley and all other men of the same faculty within the City of London and seven miles about that where your Highness by your most gracious Letters Pattents bearing date at Westminster the 23. day of September A body corporate of the faculty
their Maladies and to remove Leprosies amongst them and also to remove all fumes and smels which may offend or be prejudicial to their health as it appears by the several Writs in these several cases provided and so if a man be not right in his Wits the King is to have the Protection and Government of him lest he being infirm waste or consume his Lands or Goods and it is not sufficient for him that his Subjects live but that they should live happily and discharges not his Office if his Subjects live a life but if they live and flourish and he hath care as well of their Bodies as of their Lands and Goods for Health for the Body is as necessary as vertue to the minde and thâ— King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reign which was the beginning of his Essence to that purpose and by the Common Law any Physician which was allowed by the University might practise and exercise the said faculty within any place within England without any dispensation examination or approbation of any but after the making of the said Act made in the third year of King H. 8. none may practise exercise or occupy as Physician or Chirurgeon within the City of London and seven miles of that if he be not first examined approved and admitted by the Bishop of London and the Dean of Pauls for the time being calling to them four Doctors of Physick or Chirurgeons c And that no practiser may occupy or exercise the said faculty out of the said Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar general every of them calling unto him such expert persons in the said faculty as their discretions think covenient and the reason of this difference as he conceived was for that that in this City and the said Precincts the King and all his Councel and all the Judges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject unto Infection and the aire more pestiferous and for that there is more necessity that greater care diligence and examination be made of those which practised here in London and the Precincts aforesaid then of those which practise in other places of the Realm for in other places the people have better air and use more exercise and are not so subject to Infection and for that there is no cause that such care should be used for them for they are not in such danger and in the Statute there is not any exception of the Universities nor of those which are Graduats there and for that they shall be tryed by the said Act and the Statute of 14. H. 8. chapter 5. only excepts those which are Graduats of Oxford or Cambridge which have accomplished all things for the form without any Grace and if this Exception shall be intended to extend to others then all the University shall be excepted by that and such exception was too general and over he said that the Plaintiff gave absurd and contemptous answer when he being cited before them said that he would not be ruled nor directed by them being such grave and learned men and for that that he hath practised against the Statute he was worthily punished and commited for it should be a vain Law if it did not provide punishment for them that offend against that and Bracton saith Nihil est habere Leges si non sit unus qui potest Leges tueri and for this here are four grave and discreet men to desend and maintain the Law and to punish all Offenders against that according to the Statute by Imprisonment of their Bodies and other reasonable waies and the said four men have the search as well of those men as of other Mediciners and the Statute of 1. Marie provides that the Keepers of Prisons shall receive all which are committed by the said four grave and learned men and though there be great care committed to them by the said Statute and the said Letters Patents yet there is a greater trust reposed in them then this for we commit to them our lives when we receive physick of them and that not without cause for they are men of Gravity Learning and Discretion and for that they have power to make Lawes which is the Office of the Parliament for those which are so learned may be trusted with any thing and for the better making of these they have power to assemble all the Commons of their Corporation and the King allowes of that by his Letters Patents for it is made by a Congregation of wise learned and discreet men and the Statute of 1. Marie inflicts punishment upon Contempts and not for any other offences and they held a Court and so may commit as every other Court may for a contempt of common right without Act of Parliament or Information or other legal form of proceeding upon that as it appears by 7. H. 6. for a contempt committed in a Leet the Steward committed the Offender to Prison and it was absurd to conceive that the Statute will allow of commitment without cause and it is a marvelous thing that when good Lawes shall be made for our health and wealth also yet we will so pinch upon them that we will not be tried by men of experience practise and Learning but by the University where a man may have his Degree by grace without merit and so for these reasons he concluded that this Action is not maintainable Coke chief said that the Cause which was pleaded Coke for that the Plaintiff was committed was for that that he had exercised Physick within the City of London by the space of a Moneth and did not very fitly answer for which it was ordained by the Censors that he should pay a hundred shillings and that he should forbear his practise and that he did not forbear and then being warned of that and upon that being summoned to appear did not appear and for that it was ordained that he should be arrested and that after he was summoned again and then he appeared and denied to pay the hundred shillings and he said that he would practise for he was a Doctor of Cambridge and upon that it was ordained that he should be committed till he should be delivered by the Doctors of the Colledge and upon this was the Demurrer joyned and in pleading the Plaintiff said that he was a Doctor of Philosophy and Physick upon which the Lord took occasion to remember a saying of Galen that is ubi Philosophia desinit ibi medicina incipit and he said the only question of this case depends not upon the payment of the said hundred shillings but upon the words of the Letters Patents of the King and the said two Statutes the words of which are Concessimus
Statute of 14. H. 8. Wherefore it was adjudged for the Plaintiff Coram Judice D. Jo. Popham APrilis die 8. Anno Dom. 1602. Compauerunt Rogerus Jinkins Simon Read in Aedibus Primarii Angliae Justitiarii D. Johannis Popham Equitis Aurati coram ipso Judice quiritantes de Injuria illis illata per Praesidentem Censores Collegii Medicorum quorum authoritate ob illegitimam Medicinae praxin in Carcerem conjecti sunt ibidemque jam per aliquot septimanas detenti Adfuerunt ex parte Collegii per Praesidentem missi Censores tres D. Johannes Nowell Edwardus Lyster Johannes Argent Incarceratorum causam agebat quidem Magister Harris Jurisperitus Judex prius sedulò perlectis iis Regni statutis quae ad medicinam faciunt Jinkins urgebat ut rationem redderet cur ausus sit Medicinam exercere licenti◠non priùs impetratâ à Collegio Medicorum Is Primùm Praxin denegavit Postea urgente magis Judice haesitanter ambigue respondit Tandem metuens ne Jurejurando premeretur fassus est se aliquando Practicasse idque ut putabat non illicitè Quid inquit Judex Obtinuistine unquam Collegii Commune Sigillum Non inquit ille Sed quia Chirurgus sum in opere Chirurgico saepe necessarius est internorum Medicamentorum usus Respondit Judex re ita urgente advocandum esse Medicum atque nullo modo licere Chirurgo medicum agere Objecit Jurisperitus Praesidentis Censorum authoritatem non eam esse quâ possint quenquam in Carcerem conjicere ideoque à Collegio ad alios Judices causam omnem esse promovendam Hunc reprehendit Judex asserebatque validam esse maximéque legitimam hac ex parte Collegii authoritatem Multùm tandem conquestus est Jinkins quòd ob raram praxin eamque ex aliorum Praescripto tam gravis ei Mulcta sit inflicta Tum Libro Annalium ostenso Compertum est eum jam antea sexties Publicè accusatum esse aliquoties etiam leves mulctas subiisse Unde Judici aequissimum visum est ut cum clementer tractatus incorrigibilem tamen se praebuisset graviori tandem mulcta premeretur Et eo quòd aliorum Medicorum Praescriptis ad suam Praxin saepius sit abusus Consultissimum putavit Medicor praescriptis Dies Mensis cum patientis Nomine adscribendus Judex ut omnes Medici Praescriptis suis omnibus diem mensis Patientis nomen inscribant unde fraus iis abutentium faciliùs deprehendi possit Judex Re auditâ Collegiique Censurâ optimè approbatâ Jinkins redditur Carceri Jinkins denuò Carceri reddendum censuit donec Praesidenti Censoribus satisfactum sit Cumque quorundam Amicorum instantiâ rogatus est Judex ut fide-jussoribus admissis immunitatem illi concederet à Carcere Non est inquit Judex penes me ut hoc faciam Legibus enim Regni illis solum datur ut istud concedant Quidam qui astabat objecit Statuto quodam regni cautum esse ne quis liber Civis Londinensis per forinsecum aliquem incarceretur Perlectis statuti verbis nulloque modo sensum hunc ferentibus Hujusmodi inquit Judex interpretationibus meam etiam possitis infringere authoritatem These words the Lord Chief Justice said in hearing this Cause 1. There is no sufficient Licence without the Colledge Seal 2. No Chirurgeon as a Chirurgeon may practise Physick no not for any disease though it be the great Pox. 3. That the authority of the Colledge is strong and sufficient to commit to prison 4. That the Censure of the Colledge rising from lesser mulcts to greater was equal and reasonable 5. That no man though never so learned a Physician or Doctor may practise in London or within seven miles without the Colledge Licence Annal. l. 1. pag. 155 156. Read conquestus est Collegium contra regni statutum ultra 20 l. paenam erogasse verbis statuti perpensis pronuntiavit Judex Collegio licere quam velint mulctam infligere custodem tamen carceris non esse astrictum ut eum detineat si sit ultra 20 l. Read praxin suam asseruit quod statuto regni cuivis concessum est per herbas c. aliquos saltem morbos curare at respondit Judex nonlicere quoniam non ad missus erat per Collegium Resolutions of Questions concerning the Colledge by the Lord Chancellor and Judges THe King having directed his Letters to the Right Honourable Thomas Lord Ellesmere Lord Chancellor of England Sir John Popham Lord chief Justice and one of his privy Councel They the said Lord Chancellor and Lord chief Justice by vertue of the same Letters called unto them Sir Thomas Fleminge then Lord chief Baron Sir Thomas Walmesley Sir Peter Warburton Knights Justices of the Court of Common-Pleas and Sir David Williams and Sir Lawrence Tanfield Justices of the Kings-Bench and after due consideration had both of the Charter of King Hen. 8. and several Acts of Parliament thereof made in the 14. year of the same King and the other in the first year of Queen Mary did on the first of May 1607. at the house of the said Lord Chancellor called York-house resolve the several Questions hereafter mentioned Quest 1 Whether Graduates of Oxford and Cambridge may practise in London or seven miles compass of the same without Licence under the said Colledge Seal by vertue of the clause in the end of the Statute of 14. Hen. 8. and whether that clause hath not relation to the Statute of 3. H. 8. only or how far it doth extend Resp 1 All resolved that no Graduate that is not admitted and licensed by the President and Colledge of Physicians under their common Seal could practise in London or within seven miles compass of the same Quest 2 Whether by Graduates Graduates in Physick only are to be understood Resp 2 They resolved that the Exception in the Statute of 14. H. 8. ca. 11. of Graduates in the two Universities is to be understood only of Graduates of Physick and of no others And all resolved that by that Exception those Graduates may practise in all other places of England out of London and seven miles of the same without examination but not in London nor within the said circuit of seven miles Quest 3 If Graduates not admitted to practise in London practise there whether for evil practise or misdemeanor therein they be not subject to the correction and government of the Colledge They all agreed that they are subject to the Resp 3 government and correction of the Colledge by an express clause of the said Charter enacted which giveth to the Censors Supervisionem scrutinium correctionem Gubernationem of all persons using the practise of Medicine within the City Quest 4 If they may not practise without admission of the Colledge as their Letters patents plainly import Then whether such Graduates are not subject to the Examination without which there were
the Colledge as much immunity as in any sort to the Chirurgeons Whereupon the Court desired a Catalogue of the Members of the Colledge in number then 41. which was immediately done that others not of the Colledge might not delude them and so claim priviledge Hereupon ordered a dispensation of the Colledge from bearing of Arms and also a precept then awarded by the Major and Court to commit all other Physicians or Chirurgeons refusing to bear or find arms who were not by the Colledge allowed or Chirurgeons licenced according to form L. 2. Annal. pag. 17 18. Rot Parl. 32 H. 6. M. 17. REx adversa valetudine laborans de assensu Consilii sui assignavit Joannem Arundel Joannem Saceby W. Haâ—cliffe medicos Robertum Warren Joan Marshal Chirurgos ad libere ministrandum exequendum in circa personam suam Inprimis viz. quod licitè valeant moderare sibi dietam suam quod possint ministrare potiones syrupos Confectiones laxativas medicinas clysteria supositoria caput purgia gargarismata lealnen epithemata fomentationes embrocationes capitis rasuram unctiones emplastra cerata ventosa cum scarificatione vel sine Emorodorum Scarificationes c. Dante 's singulis in mandatis quod in executione praemissorum sint intendentes c. Upon this four things are to be observed 1. That no Physick ought to be given to the King without good warrant 2. This Warrant ought to be made by advice of his Councel 3. They ought to minister no other Physick then that is set down in writing 4. That they may use the aid of those Chirurgeons named in the Warrant but of no Apothecary but to prepare and do all things themselves c. And the reason of all this is the precious regard had of the health and safety of the King which is the head of the Common-wealth Cokes institutes pars 4. pag. 251. Physicians Chirurgeons soient sages en lour faculties eyent sans les consciences cy que rien ne ent failli a faire cure silz ne scavoyent a bone chiefe mitter ou silz a bon chiefe scavâ—yent entre-mettent nequidant follement ou negligentment issent que ilz mittont froid pur chaude ou le revers ou trop peu de cure ou nemi mitter un due diligence nosmement en arsons ad abscissions que sont defend a faire forsque al peril des mesters si lour patients morerent ou perdent memorie en tiels cases sont ilz homicides ou Mayhemers Mirror cap. 4. § de Homicide verb daut ' part To Our trusty and welbeloved the President and Censors of the Colledge of Physicians within the City of London JAMES REX TRusty and welbeloved We greet you well Whereas the Art of Physick by many unlearned men making gain by the profession thereof to the great hurt and prejudice of many of Our loving subjects is much abused in many places of this Our Realm but especially in our City of London and the Suburbs thereof the government whereof as touching the practise of the said Art and the practitioners thereof being by the Lawes and Statutes of the Realm committed unto you the President and Censors of our Colledge of Physicians and you having also from us by our Letters Patents more ample authority for the suppression and correction of such delinquents We therefore minding so far as in us lieth the speedy reformation of all such abuses and inconveniences do by these presents as heretofore yet more strictly charge and command you the President and Censors aforesaid to call before you all such irregular and ignorant practitioners as contrary to our Lawes and authority do abuse that Art and to examine their sufficiency and such as you shall find not sufficient to punish for their bad practise according to our Lawes in that case provided And Whereas we are credibly given to understand that many having been punished and warned by you to desist from any further practise do yet obstinately notwithstanding persist in their former contempt of our Lawes and commandments We will and command you that you proceed against such delinquents with all severity according to the tenor of our said Letters Patents and the due course of our Lawes by fine and imprisonment or by causing them to enter into recognizance with condition restraining them to offend any more or otherwise as the case shall require and shall be agreeable to justice And our will and pleasure is that such offenders as shall be so imprisoned shall there remain without being enlarged unless it be upon their conformity and submission to you the said president and Censors or other due course of Law wherein we require all our Judges and Justices that they be very careful and circumspect not to do any thing that may give encouragement to such offenders by enlarging any such too easily or without due examination of the causes of their commitment first calling thereto the said President and Censors or some of them to declare the true reasons and causes thereof And whereas we are given to understand that oftentimes upon the solicitation of some or other friend or person of quality sutor to you for the said delinquents after their conviction you have been moved to wink at their faults and neglect their punishment to the great prejudice of the health of many our poor subjects Our will and pleasure is and we do hereby straightly charge and command you that henceforth neither for favour friendship or respect of any you forbear the just censure and punishment due by our Lawes unto such delinquents as you shall answer to us on the contrary at your peril and that you require the aid and assistance of the Lord Major and Aldermen of our City of London whom by our Letters we have so required to do for your better expedition in the execution of this our Royal Will and Commandment not doubting but that you with more care will seek to suppress such intolerable abuses and satisfie our trusts in this case committed to you Given under our Signet at our Pallace of Westminster the second day of July in the twentieth year of our Reign of England France and Ireland and of Scotland the five and fiftieth The Kings Councel about the same time send a Warrant for Attachment of Empericks directed to all Justices of Peace Mayors Sheriffs Baileys Constables Headboroughs and all other his Majesties Officers and Ministers within the City of London and seven miles Butler made extraordinary Chirurgeon to the King was permitted by the Lord Keeper to be sued Annal. pag. 97. Blank had a Habeas Corpus 1637. but by the Judges was sent back to prison having been fined by the Censors 20 l ob malam praxia though he had Letters Patents from the Archbishop of Canterbury A Brief of what King James granted and defective in former Grants 1. THat whereas they were by the former Act enabled to keep Courts and Convocations and thither to convent and there to punish offenders but had no certain place limited now they have power to purchase a Hall peculiar for that purpose 2. Whereas they are by the former Act inabled to purchase only 12 l. revenue to the said Colledge now they have power by the Letters Patents to purchase to the value of 100 Marks per annum 3. Whereas the Colledge is authorised of old by suite to recover from all practisers in Physick without approbation from the Colledge 5 l. a moneth By the last Letters Patents they are authorised to punish such offenders contempt in not coming to the Colledge upon the President and Censors Warrants or in refusing to answer being come by a Fine of 40 s. and imprisonment till they have paid the same And for practising without License upon conviction they may fine the offenders in 3 l. and imprison them for seven daies and untill they have paid such fines 4. Whereas of old the Colledge might punish evil practitioners in Physick within their Limits by a Fine of 20 l. By their new Grant they may examine for Witnesses against them upon oath Chirurgeons and Apothecaries and Druggists And the Servants and Attendants upon the Sick and no others and fine them 20 s. for refusing to come or answer before them and upon conviction they may fine evill Practisers in Physick 10 l. and imprison them for 14. daies and until they pay the same Fine 5. Whereas of old the Physicians had power to search the Shops and Ware-houses of all Apothecaries Druggists Distillers and Sellers of Medicines and finding unwholsome Drugs and Medicines to burn them By their new Grant they are authorised to fine such offenders in 3 l. and to commit them untill they pay the same 6. Whereas of old the one half of all Fines to be imposed by the Colledge were granted to the said Incorporation in their new Grant all the said Fines are granted to them paying to the King his Heirs and Successors yearly 6 l. 7. In the new Grant the President and Censors are enabled to take Recognizances to the Kings Majesty of Offenders convicted of unlawful or evil practise with condition that they shall not commit like future offences and to imprison them if they refuse to be so bound 8. In the new Grant the Collegiates are freed from bearing or finding of Arms because they are subject to serve in person both in the Kings Armies and in his Fleets upon occasion 9. His Majesty promiseth his Royal Assent for enacting this Patent the next Parliament