Nemo in dicta Civitate c. Also the makers of the Act put a distinction betwixt those who shall be licensed to practise Physick within 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 Physick throughout England out of London ought to be examined and admitted by the President and 3 of the Elects and so they said that it was lately adjudged in the Kings Bench in an Information exhibited against the said Doctor Bonham for practising of Physick within London for divers months As to the Third point they said That for his contempt and disobedience before them in their College they might commit him to Prison for they have authority by the Letters Patents and Act of Parliament And therefore for his contempt and misdemeanor before them they may commit him Also the Act of 1 Mariae hath given them power to commit them for every offence or disobedience 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 ratified by the Act of 14 H. 8. Quod nemo in dicta Civitate c. exerceat c. And the Defendants have pleaded that the Plaintiff hath practised Physick within London by the space of one month c. And therefore the Act of 1 Mariae hath authorised them for to imprison him in this case for which cause they did conclude for the Defendants against the Plaintiff But it was argued by Coke Chief Iustice Warburton and Daniel Iustices of the Common Pleas to the contrary And Daniel conceived that a Doctor of Physick of the one Vniversity 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 Iustice did not speak to these 2 points because that he and Warburton and Daniel did agrée that this action was clearly maintainable for two other points But to the 2 other points he and the said 2 other Iustices Warburton and Daniel did speak scil 1. Whether the Censors have power for the Causes alledged in their Barr to fine and imprison the Plaintiff 2. Admitting that they have power to doe it if they have pursued their power But the chief Iustice before he argued the points in Law because that much was said in the commendations of the Doctors of Physick of the said College within London and somewhat as he conceived in derogation of the dignity of the Doctors of the Vniversities he first attributed much to the Doctors of the said College within London and did confess that nothing was spoken which was not due to their merits but yet that no comparison was to be made between that private College and any of the Vniversities of Cambridge and Oxford no more than between the Father and his Children or betwéen the Fountain and the small Rivers which descend from thence The Vniversity is Alma 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 Vniversity is the fountain and that and the like private Colleges are tanquam rivuli which flow from the fountain melius est petere fontes quà m sectari rivulos Briefly Academiae Cantabrigiae Oxoniae sunt Athenae nostrae nobilissimae regni soles oculi animae regni unde Religio humanitas doctrina in omnes regni partes uberrimè diffunduntur But it is true Nunquam sufficiet copia laudatoris quia nunquam deficiet materia laudis and therefore these Vniversities excéed and excell all private Colleges tanquam inter viburna cupressus And it was observed that King Henry the 8. his said Letters Patents and the King and the Parliament in the Act of 14 H. 8. in making of a Law concerning Physicians for the more safety and health of men therein have followed the order of a good Physician Rex enim omnes artes censetur habere in scrinio pectoris sui For Medicina est duplex removens promovens removens morbum promovens ad salutem And therefore 5 manner of persons who more hurt the body of men than the disease it self are to be removed 1. Improbi 2. Avari qui medicinam magis avaritiae suae causâ quà m ullius bonae conscientiae fiduciâ profitentur 3. Malitiosi 4. Temerarii 5. Inscii and of the other part 5 manner of persons were to be promoted as appeareth by the said Act scil those that were 1. profound 2. sad 3. discreet 4. groundedly learned 5. profoundly studied And it was well ordained That the professors of Physick should be profound sad discreet c. and not youths who have no gravity and experience for as one saith In Juvene Theologo conscientiae detrimentum in juvene Legista bursae decrementum in juvene Medico coemeterii incrementum And it ought to be presumed every Doctor of any of the Vniversities to be within the Statute sc to be profound sad discreet groundedly learned and profoundly studied for none can there be Master of Arts who is a Doctor of Philosophy under the study of 7 years and cannot be Doctor of Physick under 7 years more in the study of Physick and that is the cause that the Plaintiff is named in the Declaration Doctor of Philosophy and Doctor of Physick quia oportet Medicum esse Philosophum ubi enim Philosophus desinit incipit Medicus As to the 2 points upon which the Chief Iustice Warburton and Daniel gave judgment 1. It was resolved by them That the said Censors have not the power to commit the plaintiff for any of the causes mentioned in the Barr and the cause and reason thereof shortly was That the said clause which giveth power to the said Censors to fine and imprison doth not extend to the said clause sc Quòd nemo in dicta Civitate c. exerceat dictam facultatem c. Which prohibiteth every one to practise Physick within London c. without licence of the President and College but extendeth onely to punish those who practise Physick within London pro delictis suis in non bene exequendo faciendo utendo facultate medicinae by fine and imprisonment So that the Censors have not power by the Letters Patents and the Act to fine and imprison any for practising of Physick within London but onely pro delictis suis in non bene exequendo c. for ill and not good use and practice of Physick And that was made manifest by 5 Reasons called vividae rationes because they had their vigour and life from the Letters Patents and the Act it self And the best Expositor of all Letters Patents and Acts of Parliament are the
c. and the Common Law doth controll it and adjudge the same void as to services and the donor shall have the Rent as a Rent-seck distr of Common right for it should be against Common right and reason that the King should hold of any or do service to any of his Subjects 14 Eliz. Dyer 313. And so was it adjudged Mich. 16 and 17 Eliz. in the Common Pleas in Stroud's Case So if any Act of Parliament giveth to any to hold or to have Conusans of Pleas of all manner of Pleas arising before him within his Mannor of D. yet he shall hold no Plea to which himself is party for as hath béen said iniquum est aliquem suae rei esse judicem 5. If he shall forfeit 5 li. for one month by the first clause and shall be punished for practising at any time by the second clause two absurdities would follow 1. That one should be punished not onely twice but many times for one and the same offence And the Divine saith Quòd Deus non agit bis in idipsum and the Law saith Nemo debet bis puniri pro uno delicto 2. It should be absurd by the first clause to punish practising for one month and not for lesser time and by the 2. to punish practising not onely for a day but at any time so he shall be punished by the first branch for one month by the forfeiture of 5 li. and by the 2. by fine and imprisonment without any limitation for every time of the month in which any one doth practise Physick And all these reasons were proved by 2 grounds or Maxims of Law 1. Generalis Clausula non porrigitur ad ea quae specialiter sunt comprehensa And the Case between Carter and Ringstead Hill 34 Eliz. rot 120. in the Common Pleas was cited to this purpose where the Case in effect was That A. seized of the Mannor of Staple in Odiham in the County of Southampton in Fée and also of other lands in Odiham aforesaid in Fée suffered a common Recovery of all and declared the use by Indenture That the Recoverer should stand seized 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 seized to the use of him and to the heirs of his body and died and the wife survived and entred into the said Mannor by force of the said general words But it was adjudged That they did not extend to the said Mannor which was specially named and if it be so indéed à 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. Verba posteriora propter certitudinem addita ad priora quae certitudine indigent sunt referenda 6 E. 3. 12. Sir Adam de Clydrow Knight brought a Praecipe quod reddat against I. de Clydrow and the writ was Quod juste c. reddat Manerium de Wicombe duas carucatas terrae cum pert in Clydrow in that case the Town of Clydrow did not relate to the Mannor quia non indiget for a Mannor may be demanded without mentioning that it lieth in any Town but cum pertinentiis although that it cometh after the Town shall relate to the Mannor 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 scrutinium correctionem gubernationem omnium singulorum Medicorum c. they had power to fine and imprison To that it was answered 1. That the same is but part of the sentence for by the entire sentence it appeareth in what manner they shall have power to punish for the words are ac punitionem eorum pro delictis suis in non bene exequendo saciendo seu utendo illâ facultate so that without question all their power to correct and punish the Physicians by this clause i ̄s onely limited to 3 cases scil in non bene exequendo faciendo vel utendo c. Also this word punitionem is limited and restrained by these words Ita quòd punitio eorundem Medicorum c. sic in praemissis delinquentium c. which words sic in praemissis delinquentium limit the first words in the first part of this sentence ac punitionem eorum pro delictis in non bene exequendo 2. It shall be absurd That in one and the same sentence the makers of the Act shall give them a general power to punish without limitation and a special manner how they shall punish in one and the same sentence 3 Hil. 38 Eliz. in a Quo Warranto against the Mayor and Commonalty of London it was holden That where a Grant is made to the Mayor and Commonalty that the Mayor for the time being should have plenum integrum scrutinium gubernationem correctionem omnium singulorum Mysteriorum c. without granting to them any Court in which should be legal procéedings that the same is good for search by which 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 pleasures 2. It was objected That it is incident to every Court created by Letters Patents or Act of Parliament or other Courts of Record to punish any misdemeanors done in Court in disturbance or contempt of the Court by imprisonment To which it was answered That neither the Letters Patents nor the Act of Parliament hath granted to them any Court but onely an authority which they ought to pursue as it shall be afterwards said 2. If any Court had béen granted to them they could not by any incident authority implicitè granted unto them for any misdemeanor done in Court commit him to prison without bail or mainprise untill he shall 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 the Court might imprison him for he onely shewed his case to them which he was advised by his Councel he may justifie which is not any offence worthy of imprisonment The second point Admitting that the Censors had power by the Act if they have pursued their authority or not And it was resolved by the chief Iustice Warburton and Daniel that they have not pursued it for 6 causes 1. By the Act the Censors onely have power to impose a fine or amercement and the President and Censors do impose the amercement of 5 li. upon the Plaintiff 2. The Plaintiff was summoned to appear before the President and Censors c. and did not appear and therefore he was fined 10 li. whereas the President hath not any
authority in that case 3. The fines and amercements to be imposed by them by force of the Act do not belong to them but to the King for the King hath not granted the fines and amercements 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 Stat. of West cap. 12. De Servientibus Ballivis c. qui ad compotum reddend ' tenentur c. cum Dom ' hujusmodi servientium dederit eis auditores compoti contingat ipsum in arreragiis super compotum suum omnibus allocatis allocandis arrestentur corpora eorum per testimonium auditorum ejusdem compoti mittantur liberentur proximae gaolae Domini Regis in partibus illis c. in that case although that no time be limited when the Accomptant shall be imprisoned yet it ought to be presently as it is holden in 27 H. 6. 8. and the reason thereof is given in Fogossa's Case Plow Com. 17. that the generality of time shall be restrained to the present time for the benefit of him upon whom the pain shall be inflicted and therewith agréeth Plow Com. 206. b. in Stradling's Case And a Iustice of Peace upon view of the force ought to commit the offender presently 5. For as much as the Censors had their authority by the Letters Patents and Act of Parliament which are high matters of Record their proceedings ought not to be by word and so much the rather because they claimed authority to fine and imprison And therefore if Iudgment be given against one in the Common Pleas in a Writ of Recaption he shall be fined and imprisoned but if the Writ be Vicontiel in the County there he shall not be fined or imprisoned because that the Court is not of Record F. N. B. in bre de Recaptione so in 47 F. N. B. a Plea of Trespass vi armis doth not lie in the County Court hundred Court c. for they cannot make Record of fine and imprisonment and regularly those who cannot make a Record cannot fine and imprison And therewith agréeth 27 H. 8. Book of Entries The Auditors make a Record when they commit the Defendant to prison A Iustice of Peace upon view of the force may commit but he ought to make a Record of it 6. Because the Act of 14 H. 8. hath given power to imprison untill he shall be delivered by the President and the Censors and their Successors reason requireth that the same be taken strictly for the liberty of the Subject as they pretend is at their pleasure And the same is proved by a Iudgment in Parliament in this Case For when this Act of 14 H. 8. had given power to the Censors to imprison yet it was taken so literally that the Gaoler was not bound to receive them which they committed to him and the reason thereof was because they had authority to do it without any Court And thereupon the Statute of 1 Mar. cap. 9. was made that the Gaoler should receive them upon a pain and none can be committed to any prison if the Gaoler cannot receive him but the first Act for the cause aforesaid was taken so literally that no necessary incident was implyed And where it was objected that this very Act of 1 Mariae hath enlarged the power of the Censors and that upon the word of the Act It was clearly resolved that the said Act of 1 Mariae 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 14 H. 8. For the words of the Act of Q. 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 hath not done any thing which appeareth within this Record contrary to any Article or clause contained within the Grant or Act of 14 H. 8. Also the Gaoler who refuseth shall forfeit the double value of the fines and amerciaments that any offender or disobedient shall be assessed to pay which proveth 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 for that was not Bonham as by the reasons and causes aforesaid it appeareth And admit 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 Iudgment And the difference is when the Plaintiff doth reply and by his replication it appeareth that he hath no cause of action there he shall never have judgment But when the Bar is insufficient in matter or amounteth as this Case is to a confession of the point of the action and the Plaintiff replyeth and sheweth the truth of the matter to enforce his Case and in Iudgment of Law it is not material yet the Plaintiff shall have Iudgment for it is true that sometimes the Count shall be made good by the Bar and sometimes the Bar by the Replication and sometimes the Replication by the Rejoynder c. But the difference is when the Count wantethtime place or other circumstance it may be made good by the Bar so of the Bar Replication c. as appeareth in 18 E. 4. 16. b. But when the Count wanteth substance no Bar can make it good so of the Bar Replication c. and therewith agrée 6 E. 4. 2. a good case and mark there the words of Choke vid. 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 a Replication Sur-rejoynder c. and thereby it appeareth that upon the whole matter and Record the Plaintiff hath no cause of action he shall never have Iudgment although that the Bar or remainder 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 Vid. Rigeways case in the 3. part of my Reports 52. And so these differences were resolved and adjudged betwéen Kendall and Heyer Mich. 25 26 Eliz. in the Kings Bench. And Mich. 29 30 Eliz. in the same Court betwéen Gallys and Burbry And Coke Chief Iustice in the conclusion of his argument did observe 7 things for the better direction of the President and Commonalty of the said Colledge in time to come 1. That none can be punished for practising
AND further of our like especiall grace certaine knowledge and meere motion Wee will and for us our heires and successors doe promise and graunt to and with the said President and Colledge or Comminaltie and their Successors by these presents That at the next Parliament or Session of Parliament of us our heires or successors to be holden within this our Realme of England Wee our heires or successors will give and graunt our roiall and free assent and consente to any Act Bill or Petition by the said President and Colledge or Comminaltie or their Successors or any of them in the same Parliament or Session of Parliament to be exhibited or preferred and by the Lords Spirituall and Temporall and the Comminaltie of the said Parliament to be approved and assented unto for the better enabling authorizing and investing of the said President or Colledge and Comminaltie and their Successors to and with the severall graunts powers priviledges authorities exemptions immunities and other matters and things in these presents to them given graunted and confirmed or intended to be to them given graunted or confirmed according to our gratious intent and meaning heerein before specified and expressed AND further Wee will and by these presents for us our heires and successors doe graunt unto the said President and Colledge or Comminaltie and their Successors That these our Letters Patents and all and singular the guifts graunts authorities powers priviledges and immunities and other things therein conteyned shal be good firme avayleable and effectuall in the Lawe to the intents and purposes aforesaid and shall be in all and every our Courts of Record and elsewhere had taken construed and adjudged most strongly against us our heires and successors and most benignely favourably and beneficially to and for the said President and Colledge or Comminaltie and their Successors Any Statute Act Ordinance Custome Vsage Guift Graunt or any other matter or thing heretofore had made used ordayned or provided to the contrary in any wise notwithstanding NEVERTHELESS Wee will and our intent and meaning is That the said President and Colledge or Comminaltie and their Successors shall answere and paie to us our heires and successors for and in respect of the fines amerciaments penaltyes forfeytures and summes of money herein before mentioned and by these Presents to them graunted as aforesaid the yearely rent of sixe pounds of lawfull money of England at the receipt of our Exchequer at Westminster at the feasts of the Annunciation of the blessed Virgin Marie and St. Michaell the Archangell by even and equall portions Any thing herein conteyned to the contrary notwithstanding Although expresse mention of the true yearely value or certainty of the premises or any of them or of any other guifts or graunts by us or any of our Progenitors or Predecessors to the foresaid President and Colledge or Comminaltie heretofore made in these presents is not made Or any Statute Act Ordinance Provision Proclamation or Restraint to the contrary thereof heretofore had made ordayned or provided Or any other matter cause or thing whatsoever to the contrary in any wise notwithstanding IN WITNESS whereof Wee have caused these our Letters to be made Patents WITNESS our selfe at Westminster the eighth daie of October in the fifteenth yeare of our raigne of England France and Ireland and of Scotland the one and fiftieth Per breve de privato Sigillo Young Irr. in Memorand ' Scaccarii de anno octavo Regis nostri Caroli viz. inter Record ' de Termino Sancti Michaelis Ro. ex parte Rememorat ' dicti Domini Regis A Royall Charter granted to the Colledge of Physicians in London 26 Martii 15 Car. 2. CHARLES THE SECOND by the grace of God King of England Scotland Fraunce and Ireland defender of the faith c. To all to whom theise presents shall come greeting WHEREAS our most noble and renowned Predecessor King Henry the eighth late King of this our Realme of England in his princely wisdom deepely considering and by the example of forreigne well governed States and Kingdomes truly understanding how profitable beneficiall and acceptable it would be unto the whole Bodie of this Kingdome of England to restrayne and suppresse all such persons as would take upon themselves to be practisers in the facultie of Physicke being illiterate and altogether unskilfull in that facultie rather propounding unto themselves theire private gaine with the detriment of his Majesties subjects than to give relief in time of necessity And likewise duely considering that by the rejecting of those illiterate and unskilfull practizers those that were learned grave and profound practisers in that facultie And alsoe the industrious Students of that profession would bee the better incouraged and inabled in theire studies and endeavours For which and many other weightie motives causes and considerations our said Royall and Princely Predecessor King Henry the eighth by his Letters Patents bearing date at Westminster the three and twentieth day of September in the tenth yeare of his Raigne of his especiall grace and princely favour did erect found and establishe a Colledge Comonaltie or Incorporation of Physitians in the Cittie and Suburbs of London and for seaven miles every way in distanee from the same to bee remayne and have existence for ever And by the same Letters Patents our aforesaid noble Predecessor did further give and graunt unto John Chambre Thomas Linacre Ferdinando de Victoria Nicholas Halsewell John Francis and Robert Yaxley then learned discreet and profound practisers in the said facultie of Physick in the aforesaid Cittie of London that they and all of the said facultie of Physick of and in the aforesaid Cittie of London should for ever from thenceforth bee in name and deed One body Comonaltie and Colledge AND further by the same Letters Patents did give and graunt unto the said Colledge and Comonaltie full power abilitie and authoritie for ever annually to elect and make one of the said Colledge or Comonaltie to bee President of the said Colledge Corporation and Comonaltie And that the same President soe elected and made and the said Colledge and Comonaltie should have perpetuall succession and a Common Seale for the behoofe and benefitt of the said President Colledge and Comonaltie and their Successors for ever And alsoe by the said Letters Patents did further give and graunt unto the said President Colledge and Comonaltie and their Successors divers and sundry other liberties priviledges immunities power abilitie and authoritie not onely to and for the benefitt advantage and comodity of the aforesaid President Colledge and Comonaltie and theire Successors but alsoe for the more certaine and easier discovery speedy restraint and certaine repressing of the before mentioned unskilfull and illiterate practizers in the facultie of Physick aforesaid as by the same Letters Patents remayneing of Record amongst other things therein conteyned more plainely and fully it doth and may appeare WHICH said Letters Patents and all and every
before the morrowe of the feast day of Saint Michaell the Archangell next ensueing theire or any of theire respective election or elections or in the meane tyme shall happen to be putt out or removed for cause as aforesaid That then and in every such case it shall and may bée lawfull to and for the said President and Fellowes of the said Colledge att a Court to bée holden in convenient tyme after the death or removall of every or any of the said Censors of the Colledge aforesaid to assemble and meete in the Common Hall or other place aforesaid and then and there to elect nominate and choose any one or more of the Fellowes of the same Colledge for the tyme being to be Censor and Censors of the same Colledge in the place and roome of such Censor and Censors as shall be then vacant by death or removall as aforesaid Which person and persons so nominated and chosen being duely sworne according to the contents of theise presents shall bée and continue Censor and Censors of the same Colledge for and dureing such tyme and in such manner as the person or persons in whose roome or place hée or they shall bée soe chosen should or ought to have beene or continued by virtue of theise presents subject alwayes to bée removeable for reasonable cause as aforesaid AND WEE doe further will and ordaine That the Elects of the said Colledge shall bée chosen out of the Fellowes of the same Colledge in manner and forme following that is to say In case of death or due removall of any the Elects of the said Colledge hereby constituted or of any the Elects of the said Colledge hereafter by virtue of theise presents to be elected nominated and chosen the President and Elects of the same Colledge for the tyme beeing or any five of them whereof the President for the tyme beeing to bée allwayes one from tyme to tyme and att any tyme after such death or deaths removall or removalls respectively shall and may assemble and meete at their said Common Hall or other convenient place in our said Cittie of London and then and there elect nominate and choose any of the then Fellowes of the said Colledge into the place or places of such and soe many of the said Elects as shall bée then voyd by death or removall as aforesaid Which persons soe to bée chosen being duely sworne according to the tenour of theise presents shall bée and continue Elects of the said Colledge dureing their respective lives unlesse for reasonable cause they shall bée removed as aforesaid AND WEE DOE further will and ordeyne that the Fellowes of the said Colledge shall bée chosen out of the Comonaltie of the said Colledge in manner and forme following that is to say In case of death or due removall of any of the Fellowes abovementioned and hereby constituted or of any of the Fellowes of the said Colledge hereafter by virtue of theise presents to be nominated or chosen the President and Fellowes of the same Colledge shall and may from tyme to tyme and att any tyme after such death or deaths removall or removalls respectively assemble and meete att a Court to be holden in theire Common Hall or other convenient place as aforesaid and then and there elect nominate and choose any one or more such and soe many of the most learned and able persons skilled and experienced in the said facultie of Physicke then of the Comonalty or Members of the said Colledge and Corporation to bée Fellowe and Fellowes of the same Colledge and Corporation in the place and places of such and soe many of the said Fellowes of the said Colledge and Corporation as shall bée then voyd by death or removall as aforesaid Which persons soe to be chosen beeing duely sworne according to the tenour of theise presents shall bée and continue Fellowes of the said Colledge dureing theire respective lives unlesse for reasonable cause they shall bée removed as aforesaid AND WEE WILL and by theise presents for us our heires and successors doe give and graunt unto the President Fellowes and Comonaltye of the Kings Colledge of Physitians aforesaid and their successors that it shall and may be lawfull for the President and Fellowes of the said Colledge att any Court or Courts to bée holden att theire Common Hall or other convenient place from tyme to tyme and as often as occasion shall require to summon heare and admonish any of the said Fellowes Elects and Censors of the same Colledge And for cause of evil Governement Non-residence otherwise then as aforesaid without Licence under the Seale of the said Colledge and Corporation or under the Privy Seale of us our heires or successors as aforesaid or for misbehaveing themselves in theire respective places or any other just or reasonable cause from tyme to tyme to expell and amove any of the same Fellowes Elects or Censors from his and theire respective place and places in the same Colledge And after due publication and entry made thereof in the Register of the same Colledge and Corporation from tyme to tyme to proceede to new Elections to supply the place or places of such person or persons soe removed or expelled according to the provision above mentioned and the tenour of theise presents AND WEE WILL and hereby declare That neither the President Vice-president Elects or Censors or any of them for the tyme being by colour of any double capacitie as such and alsoe Fellowes of the said Colledge and Corporation shall have or give more or other then each severall and respective person his or their severall and respective voyce in all or any Election or Elections or other matter or thing whatsoever directed or graunted or to be done or acted by virtue of theise presents Except onely in such case and cases where the voyces shall happen to bée even and equall And then and in every such case wherein the President or in his absence the Vice-president of the said Colledge and Corporation for the tyme beeing is to bee one We will and by theise presents for us our heires and successors doe Ordeyne and Graunt that the President or in his absence the Vice-president of the said Colledge and Corporation for the tyme being shall have and give a casting voyce to the end that all Elections matters and debates relateing to the said Colledge and Corporation may the more easilie certeinely and peaceablie bee settled and determined AND Wee will and further by theise presents for us our heires and successors doe Ordaine and Establish That all and every the Fellowes and alsoe the President Elects and Censors above named and hereby constituted and every of them And alsoe all and every the Fellowes President or Vice-president Elects and Censors and other Officers and Ministers whatsoever of the Colledge and Corporation aforesaid hereafter by virtue of theise presents to be nominated and elected and every of them shall severally and respectively take his and
and doe by all such just and lawfull wayes and meanes as shall be requisite or necessary for the better and speedier effecting of the premises in all things according to the best of their Iudgments and to the truth of the matter appeareing before them AND FURTHER that it shall and may bée lawfull to and for the said Visitors or any two or more of them for the tyme being from tyme to tyme and att any tyme after such cause or matter heard or determined by them or any two of them as aforesaid to remitt and certifie back again to the said President Fellowes and Cominalty of the said Colledge of Physitians their judgment and proceedings therein respectively To the end that due execution and proceeding may bée had and made thereupon according to the tenor true intent and meaning of these presents AND Wee will and by these presents for us our heires and successors doe constitute ordaine declare and graunt that all and every Iudgment Sentence and Decree hereafter made or to bée made by the Visitors aforesaid or any two or more of them upon any Appeale or Appeales of in or concerning the premises shalbée and stand firme and good and bée binding and concluding to all and every person and persons party and parties concerned therein respectively and noe further or other Appeale or releife to bée had sought made or given therein in any Court of Lawe or Equity or elsewhere or otherwise however PROVIDED allwayes and Wée will and by these presents for us our heires and successors doe constitute ordaine and grant that in case of neglect or delay of prosecution of any Appeale or Appeales hereafter to bée had or made in the premisses according to the tenor of these presents or that Iudgment Decree or Sentence bee not from tyme to tyme had and obtayned in all and every such Appeale and Appeales at the prosecution of the partie or parties respectively soe Appealing within six Moneths after every such Appeale or Appeales from tyme to tyme respectively made That then and in every such Case it shall and may bee lawfull to and for the President Fellowes and Commonalty of the Colledge aforesaid and their Successors and to and for the said President and Censors or Vice-president and Censors of the same Colledge for the tyme being in the absence of the President or any three of them as is above mentioned to act and proceed in and upon every such Matter Cause Iudgment Sentence or Decree on which such Appeale or Appeales shall bee soe made as aforesaid and neglected delayed or not determined in tyme by the Visitors as aforesaid in such manner and to all intents and purposes as if such Appeale or Appeales had never byn or byn made Any thinge in these presents conteyned to the contrary thereof in any wise notwithstanding AND WEE DOE by these presents for us our heires and successors further graunt constitute and ordeyne that itt shall and may bee lawfull to and for the President Fellowes and Cominalty of the Colledge of Physitians aforesaid and their Successors and to and for the President and Censors or Vice-president and Censors of the same Colledge for the tyme being in the absence of the President or any three of them as is above mentioned to act doe and proceed by way of Action Distresse Imprisonment or otherwise in and upon all and every matter cause and thing judgment sentence and decree whatsoever hereafter to bee made given ratified or confirmed by the Visitors aforesaid or any twoe or more of them in or upon any Appeale or Appeales to them to bée made as aforesaid and by them from tyme to tyme remitted as aforesaid in such and the like manner to all intents and purposes as by these presents they or any of them may or are impowered to doe in the same or the like Cases when noe Appeale or Appeales shall bée had or made therein Any thing in these presents conteyned to the contrary thereof in any wise notwithstanding PROVIDED alsoe and our will and pleasure is That noe person or persons whatsoever shall att any tyme hereafter bee ympeached sued fyned amerced or otherwise punished by vertue of these presents or for any offence or other matter cause or thing whatsoever therein specified or conteyned unlesse hee or they respectively bee from tyme to tyme impeached sued fyned amerced or otherwise questioned or punished for such his or their offence or other matter cause or thing aforesaid within one whole yeare next after the same shall be committed or done or such person or persons lyable to bée questioned or punished for the same AND WEE DOE further of our especiall grace certaine knowledge and meere motion for us our heires and successors give and grant unto the said President Fellowes and Cominalty of the Kings Colledge of Physitians aforesaid and their Successors all and singular the Fynes Amerciaments Penalties and Forfeitures and every of them by virtue of these presents or any Act of Parliament hereafter to bee made in pursuance or Confirmation thereof or of any the Letters Patents or Acts of Parliament Ordinances Decrees or Impositions aforesaid hereafter to bee assessed forfeited sett or imposed upon any Physitian or Practizer of Physicke as aforesaid or to bee forfeited sett or imposed upon any Apothecary Druggist or other person or persons whatsoever for or by reason of any misdemeanor offence contempt or default whatsoever before in or by these presents or any the Letters Patents Acts of Parliament Ordinances Decrees or Impositions mentioned or specified to bee ymployed and disposed as hereafter in and by these presents is declared The penalties and forfeitures of the Recognizances hereafter in and by these presents mentioned and directed to bee taken in the name of us our heires and successors allwayes excepted AND that the said President Fellowes and Cominalty of the Colledge of Physitians aforesaid and their Successors shall and may by the name of the President Fellowes and Cominalty of the Kings Colledge of Physitians in the Citty of London att all tymes hereafter and from tyme to tyme in any of our Courts of Record according to the due course of Lawe sue for recover levy and take execution of and for the said Fynes Amerciaments Penalties and Forfeitures and every or any part thereof or otherwise levy or obtaine the same and every part thereof Except the said penalties and forfeitures of Tenn pounds and five pounds per Mensem by Imprisonment of the Bodies or distresse and sale of the Goods of the persons offending as aforesaid in manner and forme aforesaid AND FURTHER Wée will and hereby doe order and direct that all and every summe and summes of money had made accrewing or ariseing by or out of the same Fynes Forfeitures Penalties and Amerciaments any or all of them other then the said forfeitures of Tenn pounds per Mensem and five pounds per Mensem the just and reasonable charges and
become bound in such Recognizance with such condition as aforesaid AND WEE WILL and by these presents for us our heires and successors doe enjoyne order and commaund all and every Warden Goaler and Keeper Wardens Goalers and Keepers of our Wards Goales and Prisons within our said Citty of London and the limitts and precincts aforesaid Except before excepted that they and every of them doe from tyme to tyme yeild and give all due obedience and observance to the said President and Censors or Vice-president and Censors of the Colledge aforesaid for the tyme being in the absence of the President and to all and every such Warrant and Warrants as by them or any three of them for the tyme being whereof the said President or in his absence the Vice-president to bee one shall by virtue of these presents or any the Letters Patents or Acts of Parliament aforesaid bee duely made and directed to any the Wardens Goalers or Keepers of our Prisons aforesaid or any of them And that they and every of them doe and shall receive into his or their Custody in such prison or prisons whereof he or they shall then bee Warden Goaler or Keeper all and every such person and persons as by vertue of such Warrant or Warrants shall bee sent or committed to him or them and there shall safely keepe every such person and persons so Committed in any of their Prisons att the proper costs and charges of the said person or persons soe Committed without Bayle or Mainprise according to the tenor forme and effect of such Warrant and Warrants untill such person or persons shall bée duely discharged upon paine that all and every such Warden Goaler or Keeper doeing the contrary shall loose and forfeit the double of all and every such Fyne or Fynes Amerciament and Amerciaments summe and summes of money for which or Non-payment whereof such person or persons respectively were or shall bee soe Committed as aforesaid PROVIDED that any such Fyne Amerciament or Summe of money bée not att any one tyme above the summe of Twenty pounds The one moyety thereof to bée ymployed to the use of us our heires and successors and the other moyety to the said President and Fellowes of the Kings Colledge of Physitians aforesaid to and for the use of the poore aforesaid and to bée disposed and distributed as aforesaid AND all the same forfeitures to bée recovered by Action of debt Bill Playnt or Information in any Court of Record of us our heires or successors against any such Warden Goaler or Keeper soe offending in which suite noe Essoyne wager of Law nor Protection shall bee allowed or admitted for the Defendant AND WEE DOE FURTHER of our especiall grace certaine knowledge and meere motion for us our heires and successors give and graunt unto the said President Fellowes and Cominalty of the Kings Colledge of Physitians and their Successors that itt shall and may be lawfull to and for the President and Fellowes of the same Colledge for the tyme being and their Successors yearely and every yeare for ever hereafter att their frée liberty and pleasure to have and take att once or severall tymes without contradiction the dead Bodies of six severall persons of Men or Woemen condemned adjudged and putt to death for Felony or other offence by the due course and order of the Lawes of this our Realme within our said Citty of London or our Countyes of Middlesex and Surrey or either of them for Anatomies without any further Surte Lycence or Commission to or from us our heires or successors to bee had made or obteyned for the same And from tyme to tyme to make incision of the same dead bodyes or otherwise to order the same after their discretions att their liberty and pleasures for their further and better knowledge instruction insight learning and experience in the faculty and science of Physicke and Chirurgery PROVIDED allwayes and We will and direct that all and every such dead body and bodies had taken or used for or as Anatomies bée from tyme to tyme after such use made thereof as aforesaid decently buryed att the costs and charges of the said President and Fellowes and their Successors AND Wée doe further of our especiall favour certaine knowledge and meere motion for us our heires and successors give and grant unto the said President Fellowes and Cominalty of the Kings Colledge of Physitians and their Successors speciall lycence free and lawfull liberty power and authority to acquire purchase receive and take unto the said President Fellowes and Cominalty of the same Colledge and their Successors for ever to the use of them and their Successors for ever And alsoe to all and every other person and persons full and free power lycence and authority to give graunt and convey unto them the said President Fellowes and Cominalty of the Colledge aforesaid and their Successors for ever to the use of them and their Successors for ever any Mannors Messuages Lands Tenements Tythes Rents Reversions and Hereditaments soe as the same doe not exceed in the whole the cleare yearly value of Two hundred pounds above all charges and reprises The Statute of Alienation in Mortmaine or any other Statute Act Law Ordinance or Provision heretofore made ordeyned or provided or any other matter cause or thing to the contrary in any wise notwithstanding And this without any Writt or Writts of Ad quod dampnum or other Licence or Letters Patents Inquisitions or Mandates of us our heires or successors to bée had made prosecuted sued for or obteyned in that behalfe AND WEE WILL and by these presents for us our heires and successors Doe give and graunt unto the said President Fellowes and Comonalty of the Kings Colledge of Physitians and their Successors That all and every Physitian and Physitians that now is or are or that hereafter shall bee Elected Admitted and made a Member of the same Colledge shall from tyme to tyme be wholly and absolutely freed exempt and discharged of and from serving or appearing in any Iury or Iuries for the tryall of any matter or cause or takeing finding or executing of any Commission or Inquisition whatsoever and of and from being or chosen to bee Churchwarden Constable Scavenger or any such or the like Officer or Officers And of and from the undertakeing execution and exercise of all and every the same and such like Office and Offices Place and Places and every of them And alsoe of and from all Watch and Ward and of and from beareing and providing Armes within our Citties of London or Westminster or either of them or any the Suburbs or Liberties of the same Citties or either of them or within seaven miles compasse thereof AND in case they or any of them shall att any tyme hereafter by any wayes or meanes bee designed appointed nominated or chosen into or to undergoe or beare or performe any of the said Office or Offices Place
or Places Duety or Dueties or any of them within our said Citties or the Suburbs or Liberties thereof or lymitts aforesaid That all and every such designation appointment nomination and election shall bee utterly void and of none effect any Statute Act Ordinance Constitution Order Custome or Law to the contrary thereof in any wise notwithstanding AND Wee doe further for us our heires and successors give and graunt unto the said President Fellowes and Commonalty of the said Kings Colledge of Physitians aforesaid and their Successors AND by these presents declare and manifest our pleasure for ever to bee That the said President Fellowes and Cominalty and their Successors shall and may have take hold receive use exercise and enjoy all and singular the Guifts Graunts Liberties Priviledges Immunities Freedomes Benefitts Advantages Proffitts Comodities Power Ability and Authority herein before mentioned or by any Act or Acts of Parliament heretofore given graunted or confirmed unto the President Colledge or Cominalty aforesaid or any of them and not hereby altered changed made void or nulled without the lett hinderance interruption or disturbance of us our heires or successors or of any the Officers or Ministers of us our heires or successors or of any other person or persons whatsoever And that as fully and amply to all intents and purposes as the said President Colledge or Cominalty or any the Members thereof or any of them had used exercised or enjoyed or may might could or ought to have had used exercised or enjoyed the same or any thereof AND FURTHER of our like especiall grace certaine knowledge and meere motion WEE WILL and for us our heires and successors Doe promise and graunt to and with the said President Fellowes and Cominalty of the Kings Colledge of Physitians aforesaid and their Successors by these presents that in the present or next Parliament or Session of Parliament of us our heires or successors now held or hereafter to bee called and held within this our Realme of England Wee our heires and successors will give and graunt our Royall and free assent and consent to any Act Bill or Petition by the said President Fellowes and Cominalty or their Successors or any of them in Parliament as aforesaid to bee exhibited or preferred and by the Lords Spirituall and Temporall and the Commonalty of the said Parliament to bee approved and assented unto for the better inabling authorising and investing of the said President Fellowes and Commonalty and their Successors to and with the severall Graunts Powers Priviledges Authorities Exemptions Immunities and other matters and things to them in or by these presents given graunted or confirmed or intended to bee to them given graunted or confirmed according to our gracious intent and meaning herein before specified and expressed AND FURTHER Wée will and by these presents for us our heires and successors Doe graunt unto the said President Fellowes and Cominalty of the Kings Colledge of Physitians aforesaid and their Successors that these our Letters Patents and all and singular the Guifts Graunts Authorities Powers Priviledges and Immunities and other things herein conteyned shall bée good firme avayleable and effectuall in the Law to the intents and purposes aforesaid And shall bée in all and every of our Courts of Record and elsewhere had taken construed and adjudged most strongly against us our heires and successors and most benignely favourably and beneficially to and for the said President Fellowes and Cominalty and their Successors any Statute Act Ordinance Custome Vsage Guift Grant or any other matter or thing heretofore had made used ordeyned or provided to the contrary in any wise notwithstanding ALTHOUGH EXPRESSE MENTION of the true yearely value or certainty of the Premisses or of any of them or of any other Guifts or Graunts by us or any of our Progenitors or Predecessors heretofore made to the said President Fellowes and Cominalty of the Kings Colledge of Physitians aforesaid in these presents is not made or any Statute Act Ordinance Provision Proclamation or Restriction heretofore had made enacted ordeyned or provided or any other matter cause or thing whatsoever to the contrary thereof in any wise notwithstanding IN WITNESS whereof Wée have caused these our Letters to bée made Patents WITNESS our selfe att Westminster the Sir and twentieth day of March in the Fifteenth yeare of our Raigne By the King HOWARD A Royall Charter granted to the Apothecaryes of London 30 Maii 13 Jacobi REX omnibus ad quos c. salutem Cùm antehac per Litteras nostras Paten ' sub magno sigillo nostro Anglie confect ' geren ' dat' apud Westm ' nono die Aprilis Anno regni nostri Anglie Francie Hibernie quarto Scocie de gratia nostra speciali voluerimus ordinaverimus concesserimus quod omnes singuli liberi homines mysterii Grocer ' Pharmacopol ' Civitat ' London Successores sui deinceps imperpetuum pro meliori ordine gubernatione regimine hominum myster ' Grocer ' Pharmacopol ' Civitatis London ac pro utilitate commodo relevamine bonorum proborum ac formidine correctione malorum dolosorum improborum forent essent vigore earundem Litterarum Paten ' unum Corpus corporatum politicum in re facto nomine per nomen Custod ' Communitatis myster ' Grocer ' Civitat ' London eosdem per nomen Custod ' Communitat ' myster ' Grocer ' Civitat ' London unum corpus corporatum politicum in re facto nomine realiter ad plenum pro nobis heredibus successor ' nostris per easdem Litteras nostras Paten ' adtunc erexerimus fecerimus ordinaverimus constituerimus declar averimus quod per idem nomen successionem h'erent perpetuam prout per easdem Litteras nostras Paten ' inter alia pleniùs liquet apparet Jam verò quum nobis sit demonstratum ex parte dilectorum subditorum nostrorum Pharmacopol ' Civitat ' nostre London necnon nobis affirmatum approbatum per dilectos nobis Theodorum de Mayerne Henricum Atkins in Medicinis Doctores Medicos nostros discretos fideles Quod hiisce proximis annis quamplurimi Empirici homines ignari inexperti in Civitate nostra London ac ejusdem Suburbiis inhabitant commorantur qui in Pharmacopoli arte mysterio haud instituti sed in eadem imperiti rudes quamplurima insalubria nociva falsa corrupta perniciosa faciunt componunt medicamenta eademque in plurimas hujus regni nostri Anglie partes vendunt assidue transmittunt in convitium opprobrium non solùm Medicine sciencie illius colende Medicorúmque hujus regni nostri Anglie literat ' eandem profitentium necnon Pharmacopoeiorum Civitat ' nostre London in eadem arte mysterio educat ' expert ' verùm eciam in subditor ' nostror ' pericula assidua vite
of Physick in London but by forfeiture of 5 li. by the month which is to be recovered by the Law 2. If any practise Physick there for a less time than a month that he shall forfeit nothing 3. If any person prohibited by the Statute offend in non bene exequendo c. they may punish him according to the Statute within the month 4. Those who may commit to prison by the Statute ought to commit presently 5. The fines which they set according to the Statute belong to the King 6. They cannot impose a fine or imprison without a Record of it 7. The cause for which they impose fine and imprisonment ought to becertain for the same is traversable For although they have the Letters Patents and an Act of Parliament yet because the party grieved hath not other remedy neither by Writ of Error or otherwise and they are not made Iudges nor a Court given to them but have an authority onely so to doe the cause of their commitment is traversable in an action of false imprisonment brought against them as upon the Statute of Bankrupts their Warrant is under the great Seal and by Act of Parliament yet because the party grieved hath 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 betwéen Cutt and Delabarre where the issue was Whether William Piercy was bankrupt or not who was found by the Commissioners to be a bankrupt à 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 one Iustice of Peace is not traversable because he doth the same as Iudge by the Statutes of 15 R. 2. and 8 H. 6. and so there is a difference when one maketh a Record as a Iudge and when he doth a thing by a special authority as they did in the Case at Bar and not as a Iudge And afterwards for the said two last points Iudgment was given for the Plaintiff nullo contradicente And I acquainted Sir Thomas Fleming Chief Iustice of the Kings Bench with this Iudgment and with the reasons and causes thereof who approved of the Iudgment which we had given And the same is the first judgment upon the said Branch concerning fine and imprisonment which hath béen given since the making of the said Charter and Acts of Parliament and therefore I thought it worthy to be reported and published Dr. Bonham's Case as reported by Brownlow and Goldesborough Trinity 7 Jac. 1609. in the Common Bench. THomas Bonham brought an Action of false imprisonment against Dr. Atkins and divers other Doctors of Physick The Defendants justified that King H. 8. Anno Decimo of his Reign founded a College of Physicians and pleaded the Letters Patents of the Corporation And that they have authority by that to chuse a President c. as by the Letters Patents c. and then plead the Statute of 32 H. 8. Cap. 40. And that the said Doctor Atkins was chosen President according to the said Act and Letters Patents And by the said Act and Letters Patents it is provided That none shall Practise in the City of London or the Suburbs of it or within seven miles of the said City or exercise the faculty of Physick if he be not thereto admitted by the Letters of the President and College sealed with their Common Seal under the penalty of a hundred shillings for every month that he not being admitted shall exercise the said faculty Further we will and grant for us and our Successors to the President and College of the Society for the time being and their Successors for ever that they may chuse four every year that shall have the overseeing and searching corecting and governing of all in the said City being Physicians using the faculty of Medicine in the said City and of other Physicians abroad whatsoever the faculty of Physicking by any means frequenting and using within the said City or Suburbs thereof or within seven miles in compass of the said City and of punishing them for their offences in not well executing making and using it And that the punishing of those Physicians using the said faculty so in the Premisses offending by fines amerciaments imprisonments of their bodies and by other reasonable and fitting ways shall be executed Note the Preamble of these Letters Patents is Quòd cùm regii officii nostri munus arbitremur ditionis nostrae hominum foelicitati omni ratione consulere Id autem vel imprimis fore si improborum conaminibus tempestivè occurramus apprimè necessarium fore duximus improborum quoque hominum qui medicinam magis avaritiae suae causâ quà m ullius bonae conscientiae fiduciâ profitebuntur unde rudi credulae plebi plurima incommoda oriuntur audaciam compescere And that the Plaintiff practised in London without admission of the College and being summoned to appear at the College and examined if he would give satisfaction to the College according to the said Letters Patents and Statute he answered that he had received his Degrée to be Doctor of Physick by the Vniversity of Cambridge and was allowed by the Vniversity to practise and confest that he had practised within the said City and as he conceived it was lawfull for him to practise there That upon that the said President and Commonalty fined him to a hundred shillings and for not paying of that and his other contempt committed him to Prison To which the Plaintiff replyed as aforesaid and upon this demurrer was joyned And Harris for the Defendants saith That this hath béen at another time adjudged in the King's bench where the said College imposed a fine of five pound upon a Doctor of Physick which practised in London without their admission and for the non-payment of it brought an action of debt and adjudged that it lay well and that the Statute of 32 H. 8. extends as well to Graduates as to others for it is general and Graduates are not excepted in the Statute nor in the Letters Patents and all the mischiefs intended to be redressed by this are not expressed in that and the Statute shall not be intended to punish Impostors onely but all other which practise without examination and admittance For two things are necessary to Physicians that is learning and experience and upon that there is a Proverb Experto crede Roberto And the Statute intends that none shall practise here but those which are most learned and expert more than ordinary And for that the Statute provides that none shall practise here without allowance and examination by the Bishop of London and the Dean of Pauls and four learned Doctors But in other places the examination is referred onely to the Bishop
before them said that he would not be ruled nor directed by them being such grave and learned men And for that he hath practised against the Statute he was worthily punished and committed for it should be a vain Law if it did not provide punishment for them that offend against it And Bracton saith Nihil est habere Leges si non sit unus qui potest Leges tueri and for this here are four grave and discréet men to defend and maintain the Law and to punish all Offenders against it according to the Statute by imprisonment of their bodies and other reasonable ways and the said four men have the search as well of those men as of other Medicines And the Statute of 1 Mary provides that the Kéepers of Prisons shall receive all which are committed by the said four learned and grave 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 than 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 Laws 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 allows of that by his Letters Patents for it is made by a congregation of wise learned and discréet men and the Statute of 1 Mary inflicts punishment upon contempts and not for any other offences And they hold 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 Procéeding thereupon as it appears by 7 H. 6. for a contempt committed in a Léet 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 marvellous thing that when good Laws shall be made for our health and wealth also yet we will so pinch upon them that we will not be tryed by men of experience practice and learning but by the Vniversity where a man may have his Degrée by grace without merit And so for these reasons he concluded that this action is not maintainable Coke Chief Iustice said That the Cause which was pleaded why the Plaintiff was committed was for that he had exercised Physick within the City of London by the space of a month 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 practice 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 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 College 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 Chief Iustice took occasion to remember a saying of Galen that is Ubi Philosophia desinit ibi Medicina incipit and he said the onely 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 eidem Praesidenti c. Quòd nemo in dicta Civitate aut per septem milliaria in circuitu ejusdem exerceat dictam facultatem nisi ad hoc per dictum Praesidentem communitatem seu Successores eorum qui pro tempore fuerint admissus sit per ejusdem Praesidentis Collegii literas sigillo suo communi sigillatas sub poena centum solidorum pro quolibet mense quo non admissus eandem facultatem exercuerit dimidium inde nobis haeredibus nostris dimidium dicto Praesidenti Collegio applicandum Et praeterea volumus concedimus pro nobis c. Quòd per Praesidentem Collegii communitatem pro tempore existentes eorum Successores in perpetuum quatuor singulis annis per ipsos eligantur qui habeant supervisum scrutinium correctionem gubernationem omnium singulorum dictae Civitatis Medicorum utentium facultate Medicinae in eadem Civitate ac aliorum Medicorum forinsecorum quorumcunque facultatem illam Medicinae aliquo modo frequentantium utentium infra eandem Civitatem Suburbia ejusdem sive septem milliaria in circuitu ejusdem Civitatis ac punitionem eorundem pro delictis suis in non bene exequendo faciendo utendo illa nec non supervisum scrutinium omnium medicinarum earum receptionum per praedictos Medicos sive aliquem eorum hujusmodi ligeis nostris pro eorum infirmitatibus curandis sanandis dand ' imponend ' utend ' quoties quando opus fuerit pro commodo utilitate eorundem ligeorum nostrorum Ita quod punitio hujusmodi medicorum utentium dictâ facultate medicinae sic in praemissis delinquentium per Fines Amerciamenta Imprisonamenta corporum suorum per alias vias rationabiles congruas exequatur as it appears in Rastal Physicians 8018. 392. So that there are two distinct Clauses The first if any exercise the said faculty by the space of a month without admission by the President c. he shall forfeit a hundred shillings for every month be that good or ill it is not material the time is here onely material for if he exercise it for such a time he shall forfeit as aforesaid The second Clause is that the President c. shall have Scrutinium Medicorum c. punitionem eorum pro delictis suis in non bene faciendo utendo exequendo c. And for that the President and the College may commit any delinquent to Prison And this he concluded upon the words of the Statute and he agreed with Walmesly that the King hath had extraordinary care of the health of his Subjects Et Rex censetur habere omnes Artes in scrinio Pectoris and he hath here pursued the course of the best Physicians that is Removens promovens removens improbos illos qui nullius bonae conscientiae fiduciâ profitebuntur audaces promovens ad sanitatem And for that the Physician ought to be profound grave discréet grounded in learning and soundly studied and from him cometh the Medicine which is removens promovens And it is an old Rule that a man ought to take care that he do not commit his Soul to a
young Divine his body to a young Physician and his goods or other estate to a young Lawyer for In Juvene Theologo est Conscientiae detrimentum in Juvene Legislatore bursi decrementum in Juvene Medico Coemeterii incrementum for in these cannot be the privity discretion and profound learning which is in the aged And he denied that the College of Physicians is to be compared to the Vniversity for it is subordinate to that Cantabrigia est Academia nostra nobilissima totius Regni oculus sol ubi humanitas doctrina simul sluunt But he said when he names Cambridge he doth not exclude Oxford but placeth them in equal rank But he would always name Cambridge first for that was his mother And he saith that there is not any time pro non bene faciendo utendo exequendo for this non suscipit magis minus for so a man may grievously offend in one day and therefore in such a Case his punishment shall be by Fines Amerciaments Imprisonments of their Bodies and other ways c. But if they practise well though it be an offence against the Letters Patents and the Statute yet the punishment shall be but pecuniary and he shall not be imprisoned for if he offend the body of a man it is reason that his body shall be punished for Eodem modo quo quis delinquit eodem punietur but if a grave and learned Doctor or other come and practise well in London by the space of thrée wéeks and then departs he is not punishable by the said College though it be without admission for peradventure such a one is better acquainted with the nature and disposition of my body and for that more fit to cure any Malady in that than another which is admitted by the College and he said that it was absurd to punish such a one for he may practise in such manner in despite of the College for all the Lords and Nobles of the Realm which have their private Physicians which have acquaintance with their bodies repair to this City and to exclude those of using their advice were a hard and absurd exposition for the old verse is Corporis auxilium Medico committe sodali And also he said that the said President and College cannot commit any Physician which exerciseth the said faculty without admission for the space of a Month nor bring their Action before themselves nor levy that by any other way or means But ought to have their action or exhibite an Information upon the Statute as it appears by the Book of Entries for they ought to pursue their power which is given to them by the Statute for otherwise the penalty being given the one Moiety to them and the other to the King they shall be Iudges in propria causa and shall be Summoners Sheriffs Iudges and parties also which is absurd For if the King grant to one by his Letters Patents under the great Seal that he may hold Plea although he be a party and if the King doth not appoint another Iudge than the Grantée which is Party the Grant is void though it be confirmed by Parliament as it appears by 8 H. 6. 44 Ed. 3. The Abbot of Reading's Case for it is said by Herle in 8 Ed. 3. 30. Tregor's Case that if any Statutes are made against Law and Right they are null and so are these which make any man Iudge in his own Cause and so in 27 H. 6. Fitz. Annuity 41. that the Statute of Carlisle will that the Order of Cistertians and Augustines which have Covent and Common Seal that the Common Seal shall be in kéeping of the Prior which is under the Abbot and four others which are the most Sages of the house and that any Déed sealed with the Common Seal which is not so in kéeping shall be void and the opinion of the Court was that this is a void Statute for it is impertinent to be observed seeing when the Seal is in their kéeping the Abbot cannot Seal any thing with it and when it is in the hands of the Abbot it is out of their kéeping ipso facto And if the Statute shall be observed every Common seal shall be defeated by one simple surmise which cannot be tried and for that the Statute was adjudged void and repugnant And so the Statute of Gloucester which gives Cessavit after the Cesser by two years to be brought by the Lessor himself was a good and equitable Statute But the Statute of Westminster 2. Chap. 3. which gives Cessavit to the Heir for Cesser in time of his Ancestor was judged an unreasonable Statute in 33 Ed. 3. for that the Heir cannot have the Arrearages due in the time of his father according to the Statute of Gloucester and for that it shall be void And also the Physicians of the College could not punish any by Fine and also by Imprisonment for no man ought to be twice punished for one offence And the Statute of 1 Mariae doth not give any power to them to commit for any offence which was no offence within the first Statutes and therefore he ought not to be committed by the said Statute of 1 Mariae But admitting that they may commit yet they have mistaken it for they demand the whole hundred shillings and one half of that belongs to the King And also they ought to commit him forthwith as well as Auditors which have authority by Parliament to commit him that is found in Arrearages But if they do not commit him forthwith they cannot commit him afterward as it appears by 27 H. 6. 9. So two Iustices of the Peace may view a force and make a Record of it and commit the offenders to Prison but this ought to be in flagranti Oriente And if he do not commit those immediately upon the View he cannot commit them afterwards And the Physicians have no Court but if they have yet they ought to make a Record of their commitment for so was every Court of Iustice to doe But they have not made any Record of it And Auditors and Iustices of Peace ought to make Records as it appears by the Book of Entries So that admitting that they may commit yet they ought to doe it forthwith But in this case they cannot commit till the party shall be delivered by them for this is against Law and Iustice and no Subject may do it but till he be delivered by due course of Law for the Commitment is not absolute but the cause of it is traversable and for that ought to Iustify for special cause For if the Bishop returns that he refuses a Clerk for that he is Schismaticus inveteratus this is not good but he ought to return the particular matter so that the Court may adjudge of that Though it be a matter of Divinity and out of their science yet they by conference may be informed of it and so of Physick And they cannot make any new Laws
but such onely which are for the better government of the old And also he said plainly that it appears by the Statute of 1 Mariae That the former Statutes shall not be taken by Equity for by these the President and Commons have power to commit a delinquent to Prison and this shall be intended if they shall be taken by Equity that every Gaoler ought to receive him which is so committed But when it is provided by 1 Mariae specially that every Gaoler shall receive such Offenders by this it appears That the former Statute shall not be taken in Equity And so he concluded that Iudgment shall be entred for the Plaintiff which was done accordingly College of Physicians versus Butler Sir William Jones's Reports p. 261. THe President of the College and Comminalty of the faculty of Physick London brought debt against one George Butler The Writ was quòd reddat Domino Regi Praesidenti Collegii ac Comminal ' facultat ' Medicor ' London Qui tam pro Domino Rege quà m pro seipso sequitur 60. li. quas eis debet And the Declaration was in the name of the said President by the said name qui tam pro Domino Rege quà m pro seipso sequitur c. which contained the Charter of H. 8. made Anno Regni sui 10. and confirmed by Act of Parliament Anno Regni sui 14. as it is contained in the Statute of 14 H. 8. and that the said Defendant minimè ponderans the said Statute or the Penalty thereof exercised the faculty of Physick in London although he was not admitted so to do by the President and the College or Comminalty of the faculty of Physick London by the space of 12 months before the said Action brought per quod actio accrevit eidem Domino Regi dicto Praesidenti qui tam pro dicto Domino Rege quam pro seipso sequitur c. ad exigend ' habend ' of the said Defendant pro dicto Domino Rege eodem Praesidente Colleg ' praedict ' 60 li. videlicet 5 li. pro quolibet mense praedict ' 12 Mensium praedict ' Tamen Desendens praedicto Domino Regi Praesidenti non reddidit unde the said President said that he was damnified to the value of 100 li. The Defendant pleaded the Statute of 34 H. 8. whereby liberty is given to every one of the Kings Subjects that hath knowledge and experience of the nature of Herbs Roots Waters or the operation of them by speculation or practice to exercise apply and administer to any external ulcer wound apostumation outward tumor sive morbo alicui alio any Herb Ointment Bath Pultess or Plaster according to the experience and science of the said diseases or other Maladies eisdem consimil or Potion pro calculo Strangury vel febr without any impediment any Statute or other thing to the contrary And saith that he was a Subject and having experience and science by speculation and practice in the nature of Herbs Roots and Waters applied and ministred to divers of the Kings subjects Herbs Ointment Bath Pultess Plasters and Potion to Vlcers Diseases Maladies Strangury and Ague talibus aliis morbis illis consimilibus prout ei bene licuit And to the residue pleaded Not guilty The Plaintiff replied to the first Plea and pleaded the Statute of 1 Mariae whereby the said Charter and the said Act of 14 H. 8. was confirmed in the whole Whereupon the Defendant demurred and shewed for cause of Demurrer that the Replication was a departure from the Declaration And upon Argument in the Common Pleas Iudgment was given by the opinion of all the Iudges for the Plaintiff and thereupon Error was brought in the Kings Bench. Two Errors were assigned the one was the departure the second was because that the Writ was in the name of the King and the President and the Declaration was in the name of the Informer also And after argument at the Bar by Council on both sides the Iudges delivered their opinions The Chief Iustice began and then Jones Whitlock and Crook They all said that Iudgment ought to be affirmed First they agréed that the Writ and Declaration were good and although some Precedents be that upon a penal Law the Writ be to answer the Informer qui tam pro seipso quà m pro Domino Rege sequitur Yet they thought that the most proper and better way of a Writ was to answer the King and Informer for the debt was given to them by moieties therefore it is not so proper to demand all for the Informer and yet to have a several judgment for the King and the Informer for the moieties and so is Partridge and Crokers case in the Comment But when it is by information there it shall be that the Informer informs for the King and himself Another exception was taken to the Writ because it is in the name of the President and not of the College also And also it was contrary in the end of the Declaration where it is said unde actio accrevit to the said King and President for to have 60 li. of the Defendant For the King one Moiety and for the President and College the other Moiety But it was adjudged by the Court that notwithstanding it was good for First although the Incorporation was by the name of President and College notwithstanding the suite is by the Charter given to the President and there may be a Corporation by one name to purchase lands and otherwise yet it shall sue by another name 11 E. 1. a Corporation was by the name of Master Wardens Brothers and Sisters of Rouncevill and by the said Patent it is said they should sue by the name of Master and Wardens of Rouncevill 2. Although that the Action is given by way of suite to the President onely yet the Recovery and money recovered shall be to the President and College therefore the Conclusion for to have the money to the President and College was held good The 3. point was resolved that the Plea in Bar was not good for the liberty given is disjunctive for outward medicines to use Plasters Oyntment Bathes c. and for 3 diseases to wit the Stone Strangury and Agues onely yet they jumble all together that he ministred the Ointments and Potions to all the said Maladies which cannot be for he may not administer a Potion unless to the said 3 diseases and no other 4. It was resolved that it was not any departure but that the Replication was subsequent and pursuant to the Declaration But for the main matter they said nothing to wit whether the Statute of 1 Mariae took away the force of the Statute of 34 H. 8. for they gave their Iudgment upon the Bar by reason it was naught Onely Crook spake to this point and it séemed to him that the Statute of 34 H. 8. is not repealed or avoided by 1 Mariae Butler versus the President of
the Diseases Sores and Maladies aforesaid and all other like the same and drinks for the Stone Strangury or Agues And that he for the space of 30 years had experience of the nature of Herbs c. and so according to the Statute And as to any practice aliter vel alio modo Non Culpabilis Vpon which Issue was taken But to the institution upon the Statute the Plaintiff replies that it was enacted 1 Mariae cap. 9. that the Statute of 14 H. 8. with every Article and Clause therein shall stand and continue still in full strength force and virtue Any Act Statute c. made to the contrary notwithstanding And upon this the Defendant demurred and assigned for Cause that the Replication was a departure Henden for the Defendant and he argued 3 points First that the Statute of 34 H. 8. stands good notwithstanding the Statute of 1 Mariae and is not taken away thereby but is still in as good force as if the Statute 1 Mariae had never béen made By the Letter of 1 Mariae it is plain that it was but a Confirmation of the 14 H. 8. for it approves and ratifies the same and then the 34 is not touched thereby And he cited the Countess of Leicester's Case in Plow Com. A man is attainted of Treason which is confirmed by Parliament this Confirmation does not repeal any thing done after the Attainder 2. This Statute of 14 H. 8. doth not extend to the practice of Physick limited by the 34 H. 8. But this is left at large out of 14 H. 8. which he proves first upon the reason and ground upon which the 34 H. 8. was made and this was not to meddle with the 14 H. 8. cap. 5. but to repeal 3 H. 8. cap. 11. which Statute provides generally for the practice of Physick and Surgery for any part of Surgery may attend upon Physick and that none may practise there without allowance of the Bishop of London calling to him 4 Doctors Now the Statute of 14 H. 8. repeals this in three main points as to the practice of Physick but doth not meddle with Surgery or external applications Then follows the Statute of 34 H. 8. and prescribes a form to them to which the 14 doth not extend to wit by outward applications 2. Because that the Statute of 34 recites the Stat. of 3 H. 8. whereby power was given as aforesaid and repeals it then if the Statute 34 intended that this was within 14 it might have repealed this as well as the Statute 3. But because that Surgery was clearly out of the Statute of 14. it repeals the 3 H. 8. and allows 14. 3. The mischief repealed by the 34. for what end was it made It repeals no misdemeanors of Physick but of Surgeons which out of Covetoufness restrain all persons which may apply outward Medicines and so abuse the privilege given to them so that 34. saith that every person may apply outward Medicines such as require not an Apothecary as for the Stone Strangury c. so that the 14 extends to Physick made by Apothecaries 4. If this were within the 14. there is a branch within 34 that repeals 14. to this purpose Any other Act to the contrary notwithstanding But he conceived the 14. doth not extend to the Statute of 3. because it repeals this expresly and for suretiship sake all others Secundo Admit the Statute of 1 Mariae take away the practice of Physick given by 34 H. 8. then the replication is a departure 14 H. 8. gives pain and forfeiture against every one who c. 34. enlargeth the liberty of practising of Physick in certain cases 1 Mariae takes away 34. and maintains 14 H. 8. But 1 Mariae ought to have béen contained within the Declaration upon these reasons 1. The Letters Patents to the College without the Aid and Confirmation of the Act of Parliament had béen void and he cited 11 Rep. Taylor of Ipswich Case Every graunt that restrains frée trade or exercise of a faculty is void And Mich. 3 Jac. rot 438. B. R. Langton's Case was adjudged accordingly that the Letters Patents without the Act of Parliament shall be void If the 14 H. 8. then had béen repealed and 1 Mariae had revived it the Information ought to be exhibited upon 1 Mariae because that it is a new Law or it shall be a departure 2. Whatsoever is alledged in the Replication by the Plaintiff which is new matter and hath not béen alleged in the declaration is a departure and the same reason of the Bar and Rejoynder But the Statute of 1 Mariae if it extends to reviving is new matter Dyer 167. Debt upon obligation and the Defendant pleads a Release c. see the Case Ass pl. 86. Trespass for Battery alleged to be done 17 E. 3. The Defendant pleads a Release the Plaintiff replies it was by Dures this is a Departure which is our Case in effect for here is new matter And Fulmerston's and Steward's Case Pl. Com. 105. b. in Trespass the Defendant pleaded a release by the Abbot for 50 years the Plaintiff replied and shewed the Stat. of 31 H. 8. which enacts that all such Lands shall be in the same condition as they then were before the other part of the Statute which makes Releases good for 21 years and so relies upon that this is a departure 6 H. 7. 8. If the Replication inforce the declaration it is not a departure but if it contain new matter it is a departure 3. The body of the Information is likewise insufficient and cannot lie in this Court for the Letters Patents give the forfeiture of 5 li. for a Month for practising without licence and do not limit where the action shall be brought to recover it nor the Court where the suit shall be and therefore one may sue in any Court 6 Eliz. Dyer 36. cited in the 6 Rep. Gregorie's Case If it be in any Court of Record it shall be intended of the Courts at Westminster but if it be left at large then they may sue in any Court. And the same diversity is taken in Kelloway 3 H. 8. as it is there Cited If one may sue in another Court then as before Iustices of Oyer and Terminer or Iustices of Assize The Stat. 21 Jac. cap. 4. which limits and confines all Actions and Informations upon Penal Statutes which before 21 Jac. might have béen before Iustices of Assize of Oyer and Terminer c. shall afterwards be brought onely within the proper County And although divers Informations have béen brought by the College of Physicians upon this Statute yet they were before the Statute of 21 Jac. But I do not deny if the offence had béen done in Middlesex that then the Information might be here notwithstanding the Statute 21 Jac. as in 5 Jac. Beane and Dedges Case or by the 21 Eliz. cap. 5. it is enacted that any Action to be
Feoffments and no departure And so it is in our case 3. In all Cases if the matter be new if it inforce and pursue the declaration it may be in the replication and so we should have shewed the Stat. 1 Mariae in our Declaration and by the same reason we should have shewed the Stat. 34 H. 8. but the Action is for practising of Physick generally and when the other justifies a special practice and traverses the general practice then was the proper and fit time to shew the Statute of 1 Mariae which repeals the Stat. 34 H. 8. upon which the justification is made And Trin. 6 Jac. B. R. which was Commenced Mich. 3 Jac. rot 458. Langton and Gardiner's Case this very point of the departure was debated by the Iustices and resolved no departure for there the case was the same as ours But it was not shewed for cause of Demurrer c. the departure for it is not necessary inasmuch as the Stat. of 37 Eliz. Cap. 5. excepts popular actions and all suites upon penal Statutes Et adjorn ' THe same Term it was afterwards argued by Hedley for the Defendant That all these 3 Statutes may well stand together by reasonable Construction Leges posteriores priores contrarias abrogant But the averment ought to be there upon contrarias But otherwise if upon reasonable construction they may stand they ought and this contrariety ought to be in matter not in special words general words cannot repeal particular For general and particular cannot be contrary Statutes ought to be expounded by the meaning which ought to be found out partly by the words partly by the mischief they intend to remedy First where the Stat. 14. by these words facultates medicinae includes Chirurgery and it séems that this word Medicina includes external medicines as well as internal 3 H. 8. cap. 11. this was made for Physick and for Surgery to remedy all abuses in them and the examination of them that shall be permitted to practice was done by the Bishop who was Physician for the Soul And they conceived that he would have more care of the body Afterwards came the Statute of 14 H. 8. which doth not repeal this Statute in express words but yet in meaning is contrary But they may stand together by Construction For the first is that he shall not practise without licence of the Bishop the second that he cannot practise without licence of the College and therefore ought to have licence of both But this was never the meaning of 34 H. 8. there it is taken that Chirurgery was not within the Stat. 14 H. 8. but there it is outward Medicines which prove Medicina to include Surgery In this Statute they perceived that those persons licensed did much hurt for licentiâ sumus deteriores and that they were as Butchers in Lent which be licensed that sell the worst and dearest meat and for this intent for such diseases where the cause was well known they might practise to do more than contemplation this Stat. gives licence for such diseases After comes the Stat. 1 M. which never intended to repeal 34 H. 8. and restore licences But the Statute was made to give the College more privilege than they had by the Stat. 14. seil that they might commit without Bail or Mainprize But it recites 14. and confirms the same but they never intended to repeal 14. And they confirmed their liberties such as were in force and the 34. is but an exposition of 14. And although 1 Mariae confirm 14. and all Articles Clauses c. yet it ought to be intended all Clauses in force The Statute of maintenance recites that all former Statutes now in force shall be put in execution And if those words now in force were not there yet shall it be so expounded 4 E. 3. 3 4. there were divers Statutes concerning imposition upon Wine and there the Iudges agréed that they ought so to expound them that they may stand no non obstante being But it is objected that there is a non obstante I confess there is a general non obstante any Law whatsoever c. But it ought to be a special non obstante to repeal The Stat. 1 Eliz. was made for the Leases of Bishops after the 13 Eliz. doth not take away 1 Eliz. and yet there is a general non obstante and the Bishop is included amongst Ecclesiastical persons The Marquess of Winchester's Case A man Attainted by Parliament and that he shall forfeit all his Lands notwithstanding all Statutes to the contrary yet the force of the Statute de donis is not taken away by the non obstante But after the Statute 26 H. 8. that all inheritances shall be forfeited notwithstanding any Law c. yet the force of the Common Law is not taken away for a right of action is not by this forfeited Co. 6. Gregorie's Case This general Law doth not repeal a particular Law for Weavers which is a stronger Case than this of ours 21 Jac. Stat. made for Bankrupts recites that all Statutes concerning Bankrupts shall be put in execution it ought to be intended all Statutes that were then in force and not those which be repealed and the confirmation of a thing which is void is void And therefore such part of 14. which was made void by 34. cannot be confirmed As to the exception to the Barr the Barr in substance is good although he might have pleaded Not Guilty yet he may plead the special matter and it concludes absque hoc that he is guilty aliter vel alio modo he hath not justified more than the Statute warrants for thereby he administred drinks and in Latine it cannot be otherwise translated than by the word Potiones 2. The word in the Statute is Agues and he justifies Febribus and although that Febris comprehend both c. yet there is no other particular word that signifies Ague wherefore it is well As for the departure admit 34. is repealed then 1 Mariae ought to be mentioned in the declaration As if a Statute be made for 7 years and after by another Act it is made perpetual the declaration ought to be upon the last Statute And this is not properly a departure for a departure is to be a barr but this is no Cause of Action in the declaration and it is not like to the Case 21 H. 7. 18. 3. For the lying of the Information it is within the letter and the meaning of 21 Jac. It was objected that the words in the Statute be all actions which a Common Informer may have Although the words séem to import so yet there be words after which make this plain by any person whatsoever then it is within the meaning for it was made for the ease of the subject and all the Physicians in England ought to be examined and approved by the College at London Finch Recorder 1 Mariae hath altered 34 H. 8. in
remove presentments upon which process may be awarded in this Court The Reason why 't is not sufficient to plead the Tenor of Letters Patents or to shew or produce to the Court the Tenor of Letters Patents as in Pages case is resolved is because the Letters Patents are the private conveyance of a particular person and therefore he must plead and shew forth and produce to the Court the Letters Patents themselves and the Tenor thereof was not sufficient at the Common Law But upon nul tiel Record pleaded a Certificate of the Tenor onely and not of the Record it self hath always béen held a sufficient proof of that issue and the Tenor certified is to be filed in this Court and to remain here always to this purpose onely viz. as a proof of this issue but the Record it self remains where it was before to be made use of for any purposes that may happen hereafter The rest of the Iudges were of the same opinion and so Iudgment was given for the Plaintiff De Termino Sanctae Trinitatis Anno 28 Car. secundi 1676. Banco Regis The King and the President and College of Physicians Plaintiffs against Marchamont Needham Defendant THe President and the College qui tam c. brought an action of debt upon the Statute of 14 H. 8. cap. 5. for so much money against the Defendant for practising Physick for so many months without licence of the College whereby he was to forfeit 5 li. per month one moiety thereof to the King and the other moiety to the President and College The Defendant pleaded as to part of the money in the Declaration mentioned nul tiel Record as the said Act of Parliament and as to the Residue of the money the Defendant pleaded nil debet The Plaintiffs demurred to the Barr. The cause of the demurrer was for that the Defendant's plea was double viz. it contained two matters one whereof alone would go in answer to the whole money in the Declaration mentioned and would of it self be a good and full Barr to the Plaintiffs Action in case the said matter be true as the Defendant alledgeth and that is the matter of nul tiel Record and therefore the pleading of nul tiel Record to part onely and the pleading of other matter viz. nil debet to the residue makes the Defendant's plea in Barr to be vicious and to be an ill plea in Law The Councel for the Defendant did then object that the Plaintiffs Declaration is naught 't is an action of debt brought by the President and College qui tam c. upon the Statute and an action of debt doth not lie the Plaintiffs should have brought an information upon the Statute and not an Action of debt upon the Statute for the Statute doth not give an action of debt and therefore an action of debt doth not lie Twisden Iustice answered that an action of debt doth lie by equity and construction of the Statute Jones Iustice said that in the Statute of Tithes in 3 Ed. 6. no action of debt is mentioned and yet an action of debt lies upon that Statute and so here Thereupon Rule was given by the Court that Iudgment should be entred for the Plaintiffs In Mich. Term. Anno Car. secundi xxvi THe College brought their Action against John Bourne to which he pleaded nil debet and upon tryal of the Cause at Guild-Hall before Iudge Twisden the Plaintiffs recovered 40 li. Trin. xxxv Car. secundi THe President and College c. brought an Action of Debt upon the Statute of the 14 of H. 8. against Frederick Harder for practising Physick and thereupon had a Verdict against him at Westm for 25 li. which he paid and the Costs that were taxed The same Term they had a Verdict against Nathaniel Merry for 40 li. and against Richard Stone for 45 li. College Questions resolved by the Lord Chancellor and Judges in the fifth of King James his Reign An. Dom. 1607. THe King 's most Excellent Majesty having directed his Letters to the Right honourable Thomas Lord Ellesmere Lord Chancellor of England and to Sir John Popham Knight Lord Chief Iustice of England and one of his Highness's most honourable Privy Council They the said Lord Chancellor and Lord Chief Iustice by virtue of the same Letters called unto them Sr. Thomas Fleminge Knight then Lord Chief Baron of his Majestie 's Court of Exchequer Sir Thomas Walmesley and Sr. Peter Warburton Knights two of his Majestie 's Iustices of the Court of Common Pleas and Sir David Williams and Sir Laurence Tanfield Knights two of his Majesties Iustices of the King's Bench and after due consideration had both of the Charter of King H. 8. made unto the said President and College of Physicians in the tenth year of his Raign and several Acts of Parliament thereof made one in the 14 year of the same King and the other in the first year of Q. Mary for the ordering and governing of the said College and of all the Practisers in London and 7 Miles compass did on the first of May 1607. at the house of the said Lord Chancellor called York house resolve the several questions hereafter mentioned as is expressed under every Question Tho. Harries These Questions were resolved as is expressed under every question by the right honorable the Lord Chancellor of England Lord Chief Iustice of England the Lord Chief Baron of the Exchequer Iustice Walmesley Iustice Warburton Iustice Williams and Iustice Tanfield being assembled by the King's Majestie 's appointment to examine view and consider of the Charters Statutes and Laws made for the government of the College of Physicians in London and the Practisers of Physick there the first day of May 1607. at the house of the Lord Chancellor Quest 1. Whether Graduates of Oxford and Cambridge may practise in London or 7 miles compass of the same without licence under the said College Seal by virtue of the clause in the end of the Statute of 14 H. 8. and whether that clause hath not relation to the Statute of 3 H. 8. onely or how far it doth extend Resp All resolved that no Graduate that is not admitted and licensed by the President and College of Physicians under their Common Seal could practise in London or within 7 miles compass of the same Quest 2. Whether by Graduates Graduates in Physick onely are to be understood Resp They resolved That the exception in the Statute of 14 H. 8. cap. of Graduates in the two Vniversities is to be understood onely 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 7 miles of the same without examination But not in London nor within the said Circuit of 7 miles Quest 3. If Graduates not admitted to practise in London practise there whether for evil practice or misdemeanour therein they be not subject to the Correction and government
hidden Arts of Magick and Astrology for which reason he was highly admired by some Ladies of Quality who were very bountifull to him But in truth he was a very wretched Knave and formerly well known to the College for many of his wicked and knavish Impostures and at this very time by the command and at the instance of some persons of Quality was in prison out of which that he might free himself he personated the Physician to the right Reverend Bishop of Durham who being sent by him as appears by his Lordship's Letter to the College He was by the Censors found most egregiously ignorant as appears by the following examination a Copy of which with the College's answer to the Bishop's Letter was sent by Sir William Paddy the Contents of which are the following To the Right Reverend Father in God the Lord Bishop of Duresme one of the Lords of his Majestie 's most honourable Privy Council Right Reverend and our especial good Lord ACcording to your Honours order signifyed unto us by your Letter to take Mr. Lambe into our examination who was brought before us the 18th of this December It may please your Honour to understand that we have attended the performance thereof with all the duty and care we could And for that we conceived your Honour's pleasure was and so likewise our own Statutes doe direct us that he should be entreated with favour rather than otherwise We therefore caused him to be opposed though contrary to our custome in that language wherein alone he is good and further in the easiest way of Physick and Chirurgery that we could think of The brief of which examination and of his answers we have sent herewith to your Honour that your Honour may see the particulars of our proceedings with him and from what confession of his owne and from what other evidences besides it comes that by the sentence of the College Mr. Lambe stands convict and guilty of all manner of infufficiency and ignorance in this faculty Whereof that your Honour hath been pleased to require to be certified from us and to that end hath caused the Offender to be brought hither as the true and proper place of his trial as an Act intended by your Honour to advance the cause of learning We do acknowledge our selves to be ever most highly bounden to your Honour and in our most dutifull manner do give your Honour most humble thanks therefore Almighty God keep your Honour in long prosperity At our College house the 19th of this December Your Honours humbly at commandment Io. Argent Pres Sim. Fox Regist Othowell Meverell Fr. Herrin Robert Fludd Helkiah Crooke The Examination of Iohn Lambe before the College of Physicians as it was sent to the Bishop of Duresme 1. Being asked of his beginning in Physick and of the means how he came by his knowledge and whether his bringing up were that way or no and required to reade a little in a Latine Galen He answereth that he never had taken to that study that he makes no profession thereof but that he lives by making Gentlemen merry nor understandeth Latine 2. Being asked by what signs he knows a disease and how to cure it He answereth he knoweth no signs but onely as he is told by the party and for cure that he is not wont to use any thing but a few outward things and sometimes a little pulvis sanctus which from the Apothecaries he hath learned to be a Purge 3. Being asked in Astrology what house he looketh unto to know a disease or the event of it and how the Lord Ascendant should stand thereto He answereth he looks for the sixth house which being disproved he saith he understands nothing therein but what he hath out of Caliman and being asked what books he hath read in that Art he saith he hath none but Caliman 4. Being asked how he knows an Apoplexy and how he cures it He answereth he knows nothing unless he be told nor doth use any thing for cure but a few Oils and Unguents and that for satisfaction onely 5. Being asked in Chirurgery What is a Revulsion or Derivation He answereth he knoweth not the terms 6. Being charged with contradiction that in the College he confesseth himself ignorant and denieth practice whereas in his examination by the Lord Bishop of Durham he made shew of long experience and sufficience and of having done many great cures as by his Lordship's Letter appeareth He answereth that he did not profess any such thing to his Lordship and that he craves mercy of the College and that they would not be the cause of his undoing 7. Being pressed from the notoriousness of his practice and publick fame that goes of him and the great resort made unto him He answereth it is without his desert that he cannot hinder comers to him and that all he did was trifles and fooleries and babbles to get a little money Dr. Alexander Leighton being required by the Censors to give an account by what authority he practised Physick He told them by virtue of his Doctour's degree which he had taken at Leyden under Professour Heurnius He was charged as being in Presbyter's orders and asked why he did not stick to his Ordination He excepted against the Ceremonies yet owned himself a Preacher and acknowledged his practising of Physick In several parts whereof he was examined but giving no satisfaction and being perverse as to Ecclesiastical affairs He was by the President and Censors interdicted practice After this endeavouring to procure a Licence it was denied him because in Holy orders the Statutes of the College declaring that none such should be admitted into the College or permitted to practise Wherefore he was a second time forbidden practice But he still persisting to practise in London or within 7 miles was arrested and afterwards censured tanquam infamis he having been censured in the Star-Chamber and lost his ears Ellin Rix was complained of by Mrs. Lee for her boy dead of a consumption Rix having promised her in 14 days to make him sound and bargained for 3 li. she had 15 s. aforehand and arrested her for the rest She gave this boy purging drinks once a day for 7 days together and twice a day for 7 days more But the boy dyed in a fortnight after She likewise complained of her for promising an absolute cure to her husband in 14 days of a dead Palsie she had of him 3 li. and was to have as much more upon cure She confessed practice and was censured imprisonment with a mulct of 5 li. and required to give bond that she would not practise for the future She lay in prison for 14 days then endeavoured her enlargement by Habeas Corpus which being denied and being referred to the Censors she was then willing to pay part of her fine presently and the rest shortly after and give a bond of 20 l. with security to the King that she would not practise for
his hand and not by the drinks and liquours he gave This he understood by his mother who wished him having a scald head to stroke his head with his own hand whereby he was cured And therefore sometimes he used onely his hand sometimes he gave Wine whereinto he dipped his finger that the people might have somewhat to take but the virtue came from his hand Barton was censured to pay 20 l. and to remain a prisoner in Woodstreet Compter till released by the President where he continued till the 19th of October following never having all that time petitioned the College for his liberty And then by virtue of a Writ of Habeas Corpus which he had sued forth of the King's Bench he was carried with his cause to the King's Bench Bar at Westminster The Copy of which Warrant and the Return thereof here immediately ensue 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 ' nominat ' commissus fuit Prisone dom ' Regis scil ' Computator ' scituat ' in Woodstreet London praedict ' in eadem Prisona sub custodia Isaaci Pennington Johannis Woollaston tunc vic' Civitat ' praedict ' in eorum exit ' ab officio suo sub custodia nostra detent ' virtute cujusdam Warranti Otwelli Meverell Laurentii Wright Edmundi Smith Willielmi Goddard in Medicinis Doctor Censor ' Collegii Medicor ' in London sub sigillo communi Collegii Medicor ' London praedict ' custodi praedict ' Computatorii London praedict ' vel ejus deputat ' direct ' Cujus quidem Warranti tenor sequitur in hec verba ss We Otwell Meverell Laurence Wright Edmund Smith and William Goddard Doctors in Physick and Censors of the College of Physicians in London being chosen by the President and College 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 to us duly given by certain Letters Patents under the great Seal of England made and granted to the said College and Comminalty by the late King of famous memory King Henry the Eighth bearing date the 23th 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 College 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 Iane Bigge and some others in the month of Ianuary 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 Kings 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 his said imprisonment by the President of the said College and by such persons as by the said College shall be thereunto authorised according to the Statute in that behalf made And this our Warrant shal be your discharge Given at the said College the eleventh day of September in the 15th year of the Raigne of our Soveraigne Lord King Charles Otwell Meverell Law Wright Edm. Smith William Goddard To the Keeper of Woodstreet Compter London or his Deputy To Mr. John Penyall one of the Messengers of his Majestie 's Chamber in Ordinary to execute this Warrant ET hec est causa acceptionis detentionis praefati Christoferi Barton in Prisona praedict ' sub custodia nostra Corpus cujus quidem Christoferi coram praefat ' domino Rege apud Westm ' parat ' habemus Being at the Bar the said 19th of October for that the Lord Chief Justice Sir Iohn Brampston was not present the other Judges present would not accept of bail which the said Barton tendered but suspended the matter untill Tuesday the 12th of October following Barton for that time was returned back and coming to the Bar again on the said Tuesday with his Councel and Bail the Lord Brampston 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 24th 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 Bailed it being against the Law and the Letter of the Warrant grounded upon the Statutes Then it was desired by Barton's Councel that he might go over to the King's Bench which also was denied because he was committed originally to the Compter and willed if he would have liberty to submit to the College and make his peace there Barton being in custody of the Serjeant that carried him up to the Bar exhibited 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 29th of October signed his discharge and set him at liberty he being put again before his enlargement into the said Prison Mr. President gave order that upon the commitment of any Offender the name of the
of Parliament wanting the Royal Assent 267. The Court replied and shewed the different method of passing Acts of Parliament with the difference betwixt Statute Rolls and Rolls of Parliament 268. The Royal Assent not entred till after H. 5. in the Statute Rolls ibid. The Record brought by the College was not a Transcript of the bill upon which the Answer of the King was written but a Transcript of the Entry which was made upon the Statute Roll upon which it is not necessary that the Royal Assent should be entred and why 269. The 14 15 H. 8. appears by the Record certified to be a good Act of Parliament 270. The Royal Assent was entred at the end of that Session 271. If the Certificate be false the Defendant may bring his Action against the Clerk of Parliament or the Clerk in Chancery 271. The court of Kings Bench cannot cause the Parliament Rolls themselves to be brought into Court ibid. The second objection made by Huybert's Council was That the Issue was whether there was such a Record and that is to be tried by the Record it self now here the tenour of the Record was only certified and not the Record it self ibid. The Court answered that upon the Issue of Nul tiel Record a Certificate of the tenour was sufficient to prove the Issue 272 273. Iudgment entred for the College against Huybert 273. Needham The College declares against him upon an Action of Debt 273. His plea double 273 274. The College demurred and why 274. Iudgment entred against him ibid. Empiricks how described in the 3 H. 8. p. 1 2. not known to the Law neither can they have action 252. One set in the Pillory 306. Another set on Horse-back with his face to the Horse-tail the same tail in his hand as a bridle with a collar of Iordans about his neck ibid. The President and College bound by solemn Oath and conscience to prosecute them 318 321 325 328 330 352 353 387 412. A warrant sent from K. James his Council to the Magistrates of London for their Attachment 370. The Kings Letter to the President and Censors requiring them to put the Laws in execution against Empiricks 372. the King's Letter directed to the Lord Mayor Aldermen and Iustices of London requiring them to assist the President and Censors in suppressing Empiricks and illegal Practisers 374. Keepers of Prisons prosecuted for suffering any of them to make their escape 329 361 403 421. they ought not to practise Physick in prison 314. they cannot be bailed 344 345 469 470. How the College proceeded against them when they procured protections 338 339 352 355 391 423 424. They were summoned to appear upon penalty 354 355 369. punished for exposing bills purging diet-drinks purging confections or tables of the virtue of their Medicines 333 363 364 365 368 369 442 470 471. Several of them examined and rejected 315 323 324 326 331 334 337 342 364 368. their dangerous and evil practice 315 323 331 332 333 334 335 351 355 357 365 367 368 389 391 392 402 421 425 441. their unconscionable dealings 335 352 366 369 391 394 397 419 420 439 445 446. their egregious ignorance and knavery 322 326 330 334 337 354 355 384 385 390 395 399 400 404 405 421 445 446 467. Interdicted practice 322 323 333 337 346 347 356 364 368 384 389 394 395 405 422. Required to give bonds not to practice 314 315 316 319 322 323 324 325 326 332 333 334 342 347 349 355 368 375 386 387 401 420. Letters testimonial granted against them 332 392 403 442. Some of them fined others fined and committed to prison 313 314 315 316 319 320 322 323 324 325 326 327 333 334 337 338 341 342 349 352 354 356 357 365 369 384 385 387 388 391 401 404 413 420 422 439 446 466 467. Sued or prosecuted by the College 147 161 162 221 225 229 259 261 273 275 305 308 310 313 314 319 339 356 387 388 391 393 394 421. they may be sued for 2 years practice 419. Countrey Empiricks sued or prosecuted by the College 309 310 313 314. What the Common Law against Empiricks was before Acts of Parliament were made against them 251. F. Fellows of the College Forty constituted by the last Patent 70. the names of them 40. they were to continue for life if not removed for cause 71. How to be chosen 77. Power to amove any of them 78. they are to be sworn duly to execute 80. to take the Oaths of Obedience and Supremacy ibid. Fines All fines forfeitures and amerciaments to be approved by the next College Court and registred before any levy is made c. the 10 l. and 5 l. excepted 100 101. An appeal may be made to Visitors appointed by the King within one month after the fine is approved 101 102. These Visitors are to receive and determine appeals c. 102 103 104 105 106. H. Hospital of Christ Church No Physician should be chosen into that Foundation but one approved by the College 418. L. Licence A Licence from the Elects will not justice practice in London 362 471. The Bishop's licence cannot do it 471 472. the College's licence not to be allowed to those who have been in Holy Orders 376 401 443. Their obtaining a Licence is a general detriment 443 444. M. Midwives A Petition presented by them to the College 463. The College's Answer to their Petition which was by them delivered to the Archbishop 465. O. Oaths of Obedience and Supremacy to be taken by the President Fellows and Officers of the College 80. Power given to the Elects or to any two of them to administer these Oaths to the President 81. The President to administer them to the Fellows and all Officers 82. P. Physicians By whom to be allowed for City and Countrey 2 3 8 12. All Physicians practising in the several Dioceses out of London Graduates excepted must be examined by the President and 3 of the Elects 12. they are to be licensed by the President and Elects or any four of them 96. they are first to be examined and if able to be approved by Letters testimonial under the hands of the Elects 97. Power given to the President and Elects to summon examine and give testimonials and to reject unfit persons 97. None are to practise in the Countrey till they be licensed under pain of 5 l. per mens and how to be recovered 98. None to practise in London or within 7 miles of the same without licence under their Seal 8 9 343 344 345. Practice of Physick what is to be esteemed such 281. President of the College His office and duty 7 8. Power allowed him to make a Vice-President 74 75. He is to be sworn duly to execute his office 80. to take the Oaths of obedience and Supremacy ibid. to administer them to the Fellows and all College Officers 80 81 82. R. Register made by Patent 55 109. He is to be