year all Offendors in the Faculty of Physick within the City of London and the Suburbs thereof and seven miles compass of the said City according to the authority in that behalf to us duly given by certain Letters Patents under the Great Seal of England made and granted to the said Colledge and Comminalty by the late King of famous memory King Henry the 8th bearing date the 23. day of September in the tenth year of his reign and one Act of Parliament made in the 14. year of the reign of the said late King Henry the 8th concerning Physicians where by the Letters Patents aforesaid and every thing therein are granted and confirmed And by vertue of the said Act of Parliament and Letters Patents aforesaid and one other Act of Parliament made in the first year of the reign of our late Soveraign Lady Queen Mary intituled An Act touching the Corporation of Physicians in London Did cause to be brought before us the sixth day of this instant September at our Colledge-house in Pater noster-Row in London one Christopher Barton and we have examined the said Christopher Barton and upon his examination and other due proofs we have found that the said Christopher Barton hath unskilfully practised the Art of Physick within the City of London and Precinct aforesaid upon the bodies of Richard Ballady of Aldermary Parish London Michael Knight of S. Botolphs Parish Aldgate London and the Childe of one Jane Bigge and some others in the moneth of January in the year 1638. contrary to the Lawes in that behalf made and provided whereupon we have imposed upon the said Christopher Barton a Fine of 20 l. for his evil practise in Physick aforesaid And we have also for the same cause sent you the Body of the said Christopher Barton willing and requiring you in the Kings Majesties name to receive and keep him in safe custody as prisoner there to remain at his own costs and charges without bayâ— or mainprize untill he shall be discharged of his said imprisonment by the President of the said Colledge and by such persons as by the said Colledge shall be there unto authorised according to the Statute in that behalf made and this our Warrant shall be your discharge Given at the said Colledge the eleventh day of September in the fifteenth year of the Reign of our Sovereign Lord King Charles Otwell Meverell Edm. Smith Lawr. Wright William Goddard To the Keeper of Woodstreet Compter London or his Deputy To Mr. John Penyall one of the Messengers of his Majesties Chamber in Ordinary to execute this Warrant Et haec est causa accepcois detenconis prefati Christophori Barton in prisona predct sub custodia nra corpus Cujus quidem Christophori coram prefat Dno Rege apud Westm parat habemus Being at the Bar the said 19. of October for that the Lord chief Justice Sir John Bramston was not present the other Judges present would not accept of Bayl which the said Barton tendred but suspended the matter untill Tuesday the 22. of October following Barton for that time was returned back and coming to the Bar again on the said Tuesday with his Councel and Bayl the Lord Bramston being then present my Lord demanded the return of the warrant which was neglected by the Clerks of the Court and left in the Crown Office in the Temple so my Lord would not proceed but respited the cause untill Thursday the 24. of October following when all parties appearing with Councel on both sides the Warrant and Return was read and the Cause debated and there the Court plainly declared that he should not be bayled it being against the Law and the Letter of the Warrant grounded upon the Statutes Then it was desired by Bartons Councel that he might go over to the Kings-Bench which also was denied because he was committed originally to the Compter in Woodstreet as appeared by the Warrant and so Barton was remanded by the Court to the said Compter and willed if he would have Liberty to submit to the Barton remitted to prison Colledge and make his peace there Barton being in Custody of the Serjeant that carried him up to the Bar eâ—â—â—ibited his humble Petition to the President and Censors the 25. of October signed with his own hand for abatement of part of his Fine and for his enlargement submitting in all things unto them whereupon the President and Dr. Meverell one of the Censors were contented to abate the half of his Fine of 20 l. and to accept of 10 l. the one half to be paid in hand which was paid and the other half at our Lady day next And so upon the 29. of October signed his discharge and set him at liberty he being put again before his enlargement into the said prison Termino Trinitatis anno octavo Caroli Regis in Banco Regis Crokes Reports the First Part. Butler versus the President of the Colledge of Physicians Pasc 7. Car. rot 519. ERror of a Judgment upon a Demurrer in the Common-Bench The first Error assigned was because the Record was Ad respondendum Domino Regi Praesidenti Collegii c. Qui tam pro Domino Rege quam pro seipso sequitur quod reddat eis sexaginta libras unde idem Praesidens qui tam c. dicit c. Whereas the Action ought to have been brought by the President only qui tam c. and not by the King and President c. sed non allocatur For being an Original Writ the Writ is most often so and sometimes the other way And they conceived it good both waies But Informations are alwaies that the party qui tam for the King quam pro seipso sequitur c. Vide Plowd 77. new Book of Entries 160. old Book of Entries 143. 373. The second Error was that the Replication was a departure from the Count For the Count sets forth That King Henry the eighth anno decimo Regni sui incorporavit per le Statut of decimo quarto Henrici octavi confirmavit the Colledge of Physicians by the name of the President c. that no man should practise Physick in London or within seven miles without Licence under the Seal of the Colledge upon penalty of 5 l. for every moneth that he so practised the one moity unto the King and the other unto the President of the Colledge to the use of the said Colledge And for that the Desendant not being allowed c. had practised Physick for twelve months in London The said Action was brought c. The Defendant pleads the Statute of tricesimo quarto Henrici octavi cap. 8. That every one who hath Science and experience of the nature of Herbs Roots and Waters or of the operation of the same by speculation or practise may minister or apply in and to any outward Sore Uncome Wound Aposthumations outward Swelling or Disease any Herb Oyntments Baths Pultes or Implaisters according to their cunning experience
them so to be produced to testifie as aforesaid an Oath or Oathes To give 〈◊〉 Oath and him and them to swear upon the holy Evangelists to testifie and declare the truth of his and their knowledge concerning the said offenders in the premises and their said misdemeanors and offences or otherwise to examine him or them without oath as they shall think fit And that if any such person or persons as shall be thought fit as aforesaid to declare and testifie concerning the said offences upon reasonable summons and warning given as aforesaid shall wilfully make default and shall not accordingly appear before the said President and Colledge or Comminalty and their Successors or the said Censors or any three of them or if he or they shall appear and yet nevertheless shall refuse to take such oath or oathes as shall be then offered or tendred unto him or them as aforesaid or otherwise shall refuse to be examined without oath or shall refuse to make answer to such questions as shall be then asked or demanded of him or them by the said President and Colledge or Comminalty and their Successors or the said Censors or any three of them concerning his or their knowledge touching the said offences and misdemeanors or any of them or any other matter or thing concerning the same or the discovery thereof then every such person and persons shall for every such default or refusal as aforesaid forfeit and pay to the said President and Colledge or Comminalty and their Successors the sum of Twenty shillings of lawful English money And we do further of our especial grace certain knowledge and mere motion for us our heirs and successors give and grant unto the said President and Colledge or Comminalty and their Successors That the said four Censors for the Censors search time being or any three of them shall and may have full and absolute power and lawfull authority at all time and times when and as often as to them as aforesaid shall seem meet and convenient at fit and reasonable times to enter into the house shop cellar vault workhouse or warehouse or any other rooms of the house of any Apothecary Druggist Distiller and Seller of Waters Oyls or other compositions for the ends aforesaid or of any other person or persons that now doth or hereafter shall put or set to sale any Medicine Drugs Waters Oyls or Stuff fit apt or used or pretended to be fit apt or used for Medicines within the foresaid City or Suburbs of London or within seven miles thereof and then and there to search view try examine and see the said Medicines Wares Drugs Waters Oyls Medicines and Stuffs of such Apothecaries Druggists Distillers Preparers or Sellers of Waters Oyls or Medicines or other person or persons as aforesaid and to examine them upon oath or without oath as they shall think best concerning the receipts and compositions thereof and all such Medicines Wares Drugs Waters Oyls and Stuffs as the said four Censors or any three of them as aforesaid shall finde or conceive to be defective corrupted or not meet not convenient to be ministred or used in medicine for the health of mans body the said four Censors or three of them shall or may take burn or otherwise destroy the same or cause to be taken burned or otherwise destroyed according to their discretions And we do further for us our Heirs and Successors Power to Convent Apothecaries c. give and grant unto the said President or Colledge and Comminalty and their Successors that the said four Censors for the time being or three of them shall and may have full and absolute power and authority at all times when and as often as to them shall be thought meet and reasonable to send for summon convent and cause to appear before them the said four Censors for the time being or any three of them at such times and places within the foresaid City and Suburbs of London or within seven miles thereof all or any such Apothecaries Druggists Distillers Preparers and Sellers of such Waters Oyls or Medicines as aforesaid or any other person or persons whatsoever using the Art or Mystery of an Apothecary or Druggist or the Trade or Craft of a Distiller Preparer or Seller of Waters Oyls or Medicines or that shall put or set to sale any Stuff Drugs Waters Oyls Medicines or other things whatsoever apt fit or used for Medicine either simple or compound within the foresaid City and Suburbs of London or within seven miles from the same And if any such person or persons so summoned or warned as aforesaid upon reasonable summons and garnishment to him or them made in that behalf shall not accordingly make his or their personal appearance before the said Censors for the time being or any three of them at such time and place as by the said Censors or any three of them is or shall be reasonably limited and appointed Then we do by these presents declare that it shall and may be lawful to and for the foresaid four Censors for the time being or any three of them to impose and inflict such reasonable penalty fine and amerciament upon every such person or persons so making default of appearance as the said four Censors or any three of them shall think meet in that behalf So as such fine or amerciament for any one such default exceed not the sum of Twenty shillings of lawful English money And if any person or persons summoned as Bad Medicines aforesaid shall make his or their personal appearance before the aforesaid four Censors for the time being or any three of them at such time or place as is or shall be limited and appointed and then and there it shall appear unto the said fonr Censors or any three of them that the said person or persons so appearing then or of late did put or set to sale keep or retain in his or their shop or shops house or houses any wares drugs waters oyls medicines or stuffs defective corrupted and not meet or convenient to be ministred in medicine for the health of mans body or that any such person or persons so summoned and appearing as aforesaid then or of late did make or compound or deliver out any medicine either simple or compounded differing from and not agreeable in name nature and quantity unto the prescript or direction delivered unto the said person or persons before the making compounding or delivery of the said medicine then the said four Censors for the time being or any three of them shall have full power and authority to impose a reasonable penalty fine and amerciament upon all and every person and persons so offending so as the same penalty fine or amerciament for any one default or offence exceed not at any one time the sum of Three pounds of lawful English money And further to imprison such offender untill he have made satisfaction and payment of the same fine so imposed
had made done provided and ordained by the said President and Colledge or Comminalty and their Successors or the greater part of them assembled together in their said Hall which said Register so to be named elected and made as aforesaid shall be and continue in the said office and place for and during the will and pleasure only of the said President and Colledge or Comminalty and their Successors or the greater part of them whereof the President to be one The said Register first taking his corporal Oath upon the holy Evangelists before the His Oath said President and four Censors for the time being or any three of them whereof the President to be one for the doing and performing of his true and faithful service to them in the said office and place from time to time And we do likewise will and for us our heirs and successors do by these presents grant unto the said President and Colledge or Comminalty and their Successors that they and their Successors or the greater part of them assembled in their said Hall shall and may from time to time when and as often as to them shall seem meet ordain Power to elect Officers make constitute and appoint such and so many other fit and meet officer or officers minister or ministers as to the said President and Colledge or Comminalty and theis Successors or the greater part of them shall be thought fit and necessary for their service and benefit unto all and every which said officers or ministers it shall be lawful to the said President and Colledge or Comminalty and their Successors or to the Censors or any three of them assembled together To give Oathes in their said Hall to administer and give oathes upon the said holy Evangelists for the due performance and execution of his and their office and place And the same Register and all and every other officer and minister by them to be elected made constituted or appointed as aforesaid from time to time upon reasonable and just cause to remove expell and put out of his and To expell their said offices and places and to elect and put others into his and their rooms and places when and as often as to the said President and Colledge or Comminalty and their Successors or the greater part of them shall seem meet and convenient And furher we do for us our heirs and successors give and grant unto the said President and Colledge or Comminalty and their successors That it shall and may be lawful to and for the said President and four Censors for the time being or any three of them whereof the President to be one to cause such persons which shall be convented for any the offences aforesaid and To take bonds of 100 l. to practise no more to his Majesties use shall be found offenders therin to become bound to us our heirs or successors and to our use in one or more several recognizances in such sum as they shall think fit not exceeding the sum of One hundred pounds with conditions for restraining them to offend any more in that behalf as to the President and four Censors or any three of them shall seem meet And if such person shall refuse to become so bound by such recognizance with such condition That then it shall and may be lawful to and for the said President and four Censors or any three of them wereof the President to be one to commit such Or to imprison such refusers person to prison and him to detain in prison until he shall become bound in such recognizance with such conditions as aforesaid And we do further of our especial favour certain knowledge and mere motion for us our heirs and successors give and grant unto the foresaid President and Colledge or Comminalty and their Successors special Licence free and lawfull liberty power and authority to acquire To purchase Lands purchase receive and take unto the said President and Colledge or Comminalty and their Successors Mannors Lands Tenements Tithes Rents Reversions and Hereditaments of or from any person or persons whatsoever not exceeding in the whole the clear yearly value of One hundred Marks of lawful English money above all charges and reprises So as the same Mannors Lands Tenements Tithes Rents Reversions and Hereditaments by vertue hereof to be acquired and purchased be not holden of us our heirs or successors immediately in chief or by Knights service or of any other person or persons by Knights service the Statute of alienation in Mortmayne or any other statute law ordinance or provision to the contrary thereof in any wise notwithstanding And we do further give and grant for us our heirs and successors unto the foresaid President and Colledge or Comminalty and their Successors that all and every Physician and Physicians that now is or are or that hereafter shall be elected admitted and made a Member of the foresaid Colledge or Comminalty shall from time to time be wholly and absolutely freed exempted and discharged of and from providing and bearing of any Armour or other munition within our Coll. freed from providing or bearing Arms. said City of London and the Liberties thereof or within seven miles compass as aforesaid Any Statute Act Ordinance Constitution or Usage to the contrary in any wise notwithstanding And we do further for us our heirs and successors A general Grant give and grant to the foresaid President and Colledge or Comminalty and their Successors and by these presents declare and manifest our pleasure for ever to be That the said President and Colledge or Comminalty and their Successors shall and may have take receive use exercise and enjoy all and singular the gifts grants liberties priviledges immunities freedomes benefits advantages profits commodities power ability and authority herein before mentioned or otherwise by any other former Letters Patents given granted or confirmed unto the President and Colledge or Comminalty or any of them without the lett hinderance interruption or disturbance of us our heirs or successors or of any the officers or Ministers of us our heirs or successors or of any other person or persons whatsoever And further of our like especial grace certain This Patent to be confirmed next Parliament knowledge and meer motion we will and for us our heirs and successors do promise and grant to and with the said President and Colledge or Comminalty and their Successors by these presents That at the next Parliament or Session of Parliament of us our heirs or successors to be holden within this our Realm of England We our heirs or successors will give and grant our Royal and free assent and consent to any Act Bill or Petition by the said President and Colledge or Comminalty or their successors or any of them in the same Parliament or Session of Parliament to be exhibited or preferred and by the Lords Spiritual and Temporal and the Comminalty of the said Parliament to be approved
and for their Successors for ever that they may choose four every year that shall have the overseeing and searching correcting and governing of all in the said City being Physicians using the faculty of Medicines in the said City and other Physicians abroad whatsoever using the faculty of Physicking by any means frequenting and using within the City or Suburbs thereof or within seven miles in compass of the said City and of punishing them for the said offences in not well executing making and using that And that the punishment of those Physicians using the said faculty so in the premises offending by Fines Amercements Imprisonments of their Bodies and by other reasonable and fitting waies shall be executed Note the preamble of these Letters Patents is Quod cum â—â—regii officii nostri munus arbitremur ditionis nostrae Hominum felicitati omniratione Consulere Id autem vel inprimis fore si improborum conaminibus tempestive occurramus apprime necessarium fore deximus improborum quoque hominum qui medicinam magis avaritiae suae causa quam ullius bonae conscientiae fiducia profitebuntur unde Rudi credulae plebi plurima incommoda oriuntur audaciam compescere And that the Plaintiff practised in London without admission of the Colledge and being Summoned to appear at the Colledge and examined if he would give satisfaction to the Colledge according to the said Letters Patents and Statute he answered that he had received his decree to be Doctor of Physick by the University of Cambridge and was allowed by the University to practise and confest that he had practised within the said City and as he conceived it was lawful for him to practise there that upon that the said President and Commonalty fined him to a hundred shillings and for not paying that and his other contempt committed him to prison to which the Plaintiff replied as aforesaid and upon this demurrer was joyned And Harris for the Defendant saith that this hath Serjeant Harris the younger been at another time adjudged in the Kings Bench where the said Colledge imposed a Fine of five pound upon a Doctor of Physick which practised in London without their admission and for the non payment of that brought an Action of Debt and adjudged that it lay well and that the Statute of 32. H. 8. extends as well to Graduats as to others for it is general and Graduats 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 only 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 the proverb Experto crede Roberto And the Statute intends that none shall practise here but those which are most learned and expert more then 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 only to the Bishop of the Diocess and the reason of the difference is for that that London is the heart of the Kingdome And here the King and his Court the Magistrates and Judges of the Law and other Magistrates are resident and with this agreed the government of other well governed Cities in Italy and other Nations as it appears by the preamble of the said Letters Patents and it appears by the Statute that this was not intended to extend to Impostors only for that the word Impostor is not mentioned in the Statute And the Statute provides that they shall be punished as well for doing and using as for ill using And also it is provided that the Statute of 1. Marie 1. Parliament chap. 9. That the Guardians Goalers or Keepers of the Wards Goals and Prisons within the City and Precinct of that shall receive unto his Prison all such person and persons so offending which are sent or committed to them and those safely shall keep without Bayl till the party so committed shall be discharged by the said President or other person by the said Colledge to that authorised by which it appears that the Goalers Keepers of Prisons have power to retain such which are committed That then the President shall have power to commit for things Implyed are as strong as things Expressed as it appears by the Com. Stradling and Morgans Case and also in the Earl of Leicesters Case where it is agreed that Joynture before Coverture cannot be waved and this is implyed within the Statute of 27. H. 8. And so the Statute of 2. Ed. 6. Provides that after seven years Tythes shall be paid by which it is Collected by Implication that during seven years Tythes shall not be paid and so he prayed Judgement for the Defendants Dodridge Serjeant of the King for the Plaintiff said that the Statute of â—4 H. 8. chap. 5. and the Letters Patents give power to four Censors to punish for ill executing doing and using the faculty of a Physician and the Plantiff was not charged for ill executing of it doing or using But it is averred where Revera the Plaintiff was nothing sufficient to exercise the said Art and being examined less apt to answer and thereupon they forbade him and being sent for and not appearing was amerced five pound and order that he should be Arrested and being Arrested upon his appearance being examined if he would submit himself to the said Colledge he answered and confessed that he had practised within the said City being a Doctor of Physick as aforesaid as well to him it was lawful and that he would practise here again for which he was committed to Prison So that he was amerced for his contempt in the using of the said Art and committed to Prison for his answer upon his examination And he conceived that there are two questions considerable First if the Colledge may restrain a Doctor of Physick of his practise in London Secondly admitting that they may then if these are the causes for which they may commit by their Letters Patents the first reason is drawn from the Letters Patents and the said Statutes in which he said that the intent of the King was the Walter end of his work And this intent shall be expounded for three reasons apparent in the words contained in the Grant First Intempestive conatibus occurrere Secondly Improborum Hominum qui medicinam magis avaritiae suae causa quam ullius bonae Conscientiae fiducia profitebantur audaciam Compescere Thirdly which would invite learned men to practise here and for that would quod collegium 〈◊〉 Doctorum graviorum virorum qui medicinament in urbe nostra Londino suburbibus infra septem millia passuum in urbe quaquaversus publice Exerceant institui volumus imperanus And further he said that
their Maladies and to remove Leprosies amongst them and also to remove all fumes and smels which may offend or be prejudicial to their health as it appears by the several Writs in these several cases provided and so if a man be not right in his Wits the King is to have the Protection and Government of him lest he being infirm waste or consume his Lands or Goods and it is not sufficient for him that his Subjects live but that they should live happily and discharges not his Office if his Subjects live a life but if they live and flourish and he hath care as well of their Bodies as of their Lands and Goods for Health for the Body is as necessary as vertue to the minde and thâ— King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reign which was the beginning of his Essence to that purpose and by the Common Law any Physician which was allowed by the University might practise and exercise the said faculty within any place within England without any dispensation examination or approbation of any but after the making of the said Act made in the third year of King H. 8. none may practise exercise or occupy as Physician or Chirurgeon within the City of London and seven miles of that if he be not first examined approved and admitted by the Bishop of London and the Dean of Pauls for the time being calling to them four Doctors of Physick or Chirurgeons c And that no practiser may occupy or exercise the said faculty out of the said Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar general every of them calling unto him such expert persons in the said faculty as their discretions think covenient and the reason of this difference as he conceived was for that that in this City and the said Precincts the King and all his Councel and all the Judges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject unto Infection and the aire more pestiferous and for that there is more necessity that greater care diligence and examination be made of those which practised here in London and the Precincts aforesaid then of those which practise in other places of the Realm for in other places the people have better air and use more exercise and are not so subject to Infection and for that there is no cause that such care should be used for them for they are not in such danger and in the Statute there is not any exception of the Universities nor of those which are Graduats there and for that they shall be tryed by the said Act and the Statute of 14. H. 8. chapter 5. only excepts those which are Graduats of Oxford or Cambridge which have accomplished all things for the form without any Grace and if this Exception shall be intended to extend to others then all the University shall be excepted by that and such exception was too general and over he said that the Plaintiff gave absurd and contemptous answer when he being cited before them said that he would not be ruled nor directed by them being such grave and learned men and for that that he hath practised against the Statute he was worthily punished and commited for it should be a vain Law if it did not provide punishment for them that offend against that and Bracton saith Nihil est habere Leges si non sit unus qui potest Leges tueri and for this here are four grave and discreet men to desend and maintain the Law and to punish all Offenders against that according to the Statute by Imprisonment of their Bodies and other reasonable waies and the said four men have the search as well of those men as of other Mediciners and the Statute of 1. Marie provides that the Keepers of Prisons shall receive all which are committed by the said four grave and learned men and though there be great care committed to them by the said Statute and the said Letters Patents yet there is a greater trust reposed in them then this for we commit to them our lives when we receive physick of them and that not without cause for they are men of Gravity Learning and Discretion and for that they have power to make Lawes which is the Office of the Parliament for those which are so learned may be trusted with any thing and for the better making of these they have power to assemble all the Commons of their Corporation and the King allowes of that by his Letters Patents for it is made by a Congregation of wise learned and discreet men and the Statute of 1. Marie inflicts punishment upon Contempts and not for any other offences and they held a Court and so may commit as every other Court may for a contempt of common right without Act of Parliament or Information or other legal form of proceeding upon that as it appears by 7. H. 6. for a contempt committed in a Leet the Steward committed the Offender to Prison and it was absurd to conceive that the Statute will allow of commitment without cause and it is a marvelous thing that when good Lawes shall be made for our health and wealth also yet we will so pinch upon them that we will not be tried by men of experience practise and Learning but by the University where a man may have his Degree by grace without merit and so for these reasons he concluded that this Action is not maintainable Coke chief said that the Cause which was pleaded Coke for that the Plaintiff was committed was for that that he had exercised Physick within the City of London by the space of a Moneth and did not very fitly answer for which it was ordained by the Censors that he should pay a hundred shillings and that he should forbear his practise and that he did not forbear and then being warned of that and upon that being summoned to appear did not appear and for that it was ordained that he should be arrested and that after he was summoned again and then he appeared and denied to pay the hundred shillings and he said that he would practise for he was a Doctor of Cambridge and upon that it was ordained that he should be committed till he should be delivered by the Doctors of the Colledge and upon this was the Demurrer joyned and in pleading the Plaintiff said that he was a Doctor of Philosophy and Physick upon which the Lord took occasion to remember a saying of Galen that is ubi Philosophia desinit ibi medicina incipit and he said the only question of this case depends not upon the payment of the said hundred shillings but upon the words of the Letters Patents of the King and the said two Statutes the words of which are Concessimus
for gain and all and every other person and persons practising in the same faculty or using the art or mystery of an Apothecary or the trade or craft of a Druggist Distiller Preparer or seller of any Oyls Waters or Medicines as aforesaid or that shall sell or put to sale any Stuff Drugs Oyls Waters or Medicines or other thing whatsoever fit apt and used or pretended to be fit apt and used for Medicines either simple or compounded at or in any place or places within the foresaid City and Suburbs of London or within seven miles of the same by fines amerciaments and imprisonments and by other lawful waies and means according as the nature and quality of his or their offence or offences in the premisâ—s shall deserve or require And we do further of our like especial Power of the Censors to summon examine and fine grace certain knowledge and meer motion for us our heirs and successors give and grant unto the foresaid President and Colledge or Comminalty and their Successors and do by these presents declare our will and pleasure to be That the said four Consors of the foresaid Physitians not licensed Colledge for the time being or any three of them for ever hereafter when and as often as to the â—aid Censors or any three of them shall seem meeâ— and convenient shall have full power and authority to send for summon convent and cause to appear and come before them the said four Câ—nsors for the time being or any three of them all and every Physician and Physicians practiser and practisers in the said Faculty of Physick within the foresaid City and Suburbs of London or within seven miles thereof at such times and places as by the said Censors or any three of them shall be reasonably limited prefixed and appointed and to examine them concerning their skill or practise of the said faculty of Physick and their manner of practise therein And if any Physician Penalty for not appearing or practiser in the said Faculty of Physick upon reasonable summons and garnishment to be made and given in that behalf shall make default and not appear before the said Censors or any three of them at such time and place as by the said Censors or any three of them shall be reasonably limited prefixed and appointed or shall refuse to answer or to be examined as aforesaid that then Or refusing to answer and so often the said four Censors for the time being or any three of them shall and may lawfully assess and impose a reasonable penalty fine or amerciament upon every or any such delinquent or offender for every several default of appearance made upon several summons or for every several refusal to answer or to be examined as aforesaid at several times upon several appearances made so as the same penalty fine or amerciament so to be imposed for any one default of appearance or refusal to answer or to be examined as aforesaid do not at any one time exceed the sum of forty shillings of currant English money and if any person or persons so summoned or warned as aforesaid do make his or their personal appearance before the foresaid Censors at such time and place as is or shall be limited and appointed as aforesaid and it shall then and there appear unto the said Censors that such person or persons hath or have ministred or prescribed Medicines or Physick unto any person or Penalty of Practisers without licence by the Gensors persons or hath or have practised in the said faculty of Physick at any one or more time or times within the foresaid City or Suburbs of London or within seven miles thereof without admission and license first had and obtained of and from the said President and Colledge or Comminalty or their Successors by Letters Testimonial under their Common Seal according to the meaning of the Letters patents before mentioned then it shall and may be lawful to and for the said four Censors or any three of them to assess and impose a reasonable penalty fine or amerciament upon every such person and persons so practising for every such his and their offence and default in that behalf so as the same exceed not the sum of three pounds of lawful English money and to Three pounds imprison him by the space of seven daies or under Imprisonment 7. daies for such his offence and not to detain him in prison any longer unless he shall not have made satisfaction and payment of the same Fine so imposed upon him for the same offence in which case it shall be lawful to detain him in prison untill the same fine be satisfied And if it shall then and there appear unto the said Censors or any three of them as aforesaid that any such person or persons so making his or their appearance hath at any time administred or prescribed any noysome unwholsome or unfit medicine or physick For bad practise unto any person or persons within the limits aâ—oresaid then the said Censors shall and may from time to time punish the said delinquent or offender by reasonable amerciament fine or imprisonment according unto their discretions to be by them imposed as aforesaid so as the same fine do not exceed the sum of Ten pounds and so as Ten pounds the imprisonment for such offence exceed not the space of fourteen daies unless it shall be for non-payment of such fine for which it shall be lawful to detain such offender in prison untill the same fine be satisfied And to the end that the said offenders in the premises may be the better Discovery of offenders known and discovered and may be for their said misdemeanors and offences duly and condignly punished according to the merits of their said offences We do therefore of our more abundant grace certain knowledge and meer motion for us our heirs and successors give and grant unto the said President and Colledge or Comminalty and their Successors full power and lawful authority that it shall and may be lawful to and for the said President and Colledge or Comminalty and their Successors by any precept or process to be made under their Common Seal to summon and warn any person or persons whatsoever whom they shall know or think meet being any Apothecary Chirurgeon Druggist or imployed in or about ministring of any physick or medicines or attendant or servant upon any that shall have received physick or medicines to declare testifie or prove against any such delinquent or offender in the premises his or their misdemeanors or offences upon reasonable summons and warning to appear and come before the said President and Colledge or Comminalty and their Successors or the said Censors or any three of them to be examined touching his or their knowledge of the said offenders and their misdemeanors and offences in the premises and upon his or their appearance made as aforesaid to administer and give to him or
sealed with the Common Seal which is not so in keeping shall be void and the opinion of the Court that this is a void Statute for it is imperttinent to be observed being the Seal in their keeping the Abbot cannot Seal any thing with it and when that it is in the hands of the Abbot it is out of their keeping ipsofacto 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 Glocester which gives Cessavit after 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 Ancester and that that was judged an unreasonable Statute in 33. Ed. 3. for that that the Heir cannot have the arrearages due in the time of his Father according to the Statute of Glocester and for that it shall be void And also the Physicians of the Colledge 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 for that 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 which is found in arrearages But if he do not commit him forthwith they cannot commit him afterward as it appears by 27. H. 6. 9. So two Justices of the Peace may view a force and make a Record of that 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 Justice But they have not made any Record of that And Auditors and Justices 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 do it forthwith but in this case they cannot commit till the party shall be delivered by them for this is against Law and Justice 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 that is traversable and for that ought to justifie for special cause for if the Bishop returns that he refuses a Clerk for that he is Schismaticus Inveteratus this is not good but they 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 Lawes but such only 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 Goaler ought to receive him which is so committed But when it is provided by 1. Mariae specially that every Goaler shall receive such offenders That by this appears that the former Statute shall not be taken by equity And so he concluded that Judgement shall be entred for the Plaintiff which was done accordingly Coke in the conclusion of his argument observed these 7. things for the better direction of the President and Comminalty of the said Colledge for the time to come 1. That none may be punished for practise of Physick in London but by the forfeiture of 5 l. a Month which is to be recovered by Law 2. If any one practise Physick there less then a Moneth 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 whom they may commit to prison by the Statute ought to be committed presently 5. The fines which they impose according to the Statute belong to the King 6. They may not impose a fine or imprisonment without Record thereof 7. The cause for which they impose fine or imprisonment must be certain The Proceedings of the Colledge against Christopher Barton Weaver UPon the complaint of divers persons against the said Barton for practising of Physick the said Barton was sent for by a Messenger of his Majesties Chamber who appearing before the President and Censors the 6. of Septemb. 1639. and many things being laid to his charge yet for some reasons he was bound with sureties to appear again before them the 4. of October following And he then also appearing was for the Causes in the Censors Warrant expressed committed Bartons Commitment to the Prison of Woodstreet-Compter London where he remained till the 19. of October following never having by all that time petitioned the Colledge for his liberty and then by vertue of a Writ of hab Corpus which he had sued forth of the Kings-Bench he was carried with his Cause to the Kings-Bench Bar at Westminster The Copy of which Warrant and the return thereof here immediately ensueth Nos Johannes Warner Thomas Adams vic Civit London ss â— Sheriffs Râ—â—â—turn London Serenissimo Dno Regi in brevi huis schedul annex noiat ad diem locum in eodem bri content certificamus quod ante adventum nob predct bris scilt duodecimo die Sept. Anno Regni dci Dni Regis nunc Angl. c. decimo quinto Christophorus Barton in dco bri noiat comissus fuit prisone Dni Regis scilt Computator situat in Woodstreet London predct in eadem prisona sub Custodia Isaaci Pennington Johannis Wollaston tunc vic Civit. predct in eorum exit ab officio suo sub custodia nr detent virtute cujusdam Warranti Otwelli Meverell Laurentii Wright Edmundi Smith Willmi Goddard in Medicinis Dctor et Censor Collegii Medicor in London sub sigillo Coi Collegii Medicor London pred Custod predct computorii London predct vel ejus deputat direct cujus quidem Warranti tenor sequitur in haec verba ss We Otwell Meverell Lawrence Wright Edmund Colledge Warrant Smith and William Goddard Doctors in Physick and Censors of the Colledge of Physicians in London being chosen by the President and Colledge of Physicians aforesaid to govern and punish for this present
the Colledge as much immunity as in any sort to the Chirurgeons Whereupon the Court desired a Catalogue of the Members of the Colledge in number then 41. which was immediately done that others not of the Colledge might not delude them and so claim priviledge Hereupon ordered a dispensation of the Colledge from bearing of Arms and also a precept then awarded by the Major and Court to commit all other Physicians or Chirurgeons refusing to bear or find arms who were not by the Colledge allowed or Chirurgeons licenced according to form L. 2. Annal. pag. 17 18. Rot Parl. 32 H. 6. M. 17. REx adversa valetudine laborans de assensu Consilii sui assignavit Joannem Arundel Joannem Saceby W. Haâ—cliffe medicos Robertum Warren Joan Marshal Chirurgos ad libere ministrandum exequendum in circa personam suam Inprimis viz. quod licitè valeant moderare sibi dietam suam quod possint ministrare potiones syrupos Confectiones laxativas medicinas clysteria supositoria caput purgia gargarismata lealnen epithemata fomentationes embrocationes capitis rasuram unctiones emplastra cerata ventosa cum scarificatione vel sine Emorodorum Scarificationes c. Dante 's singulis in mandatis quod in executione praemissorum sint intendentes c. Upon this four things are to be observed 1. That no Physick ought to be given to the King without good warrant 2. This Warrant ought to be made by advice of his Councel 3. They ought to minister no other Physick then that is set down in writing 4. That they may use the aid of those Chirurgeons named in the Warrant but of no Apothecary but to prepare and do all things themselves c. And the reason of all this is the precious regard had of the health and safety of the King which is the head of the Common-wealth Cokes institutes pars 4. pag. 251. Physicians Chirurgeons soient sages en lour faculties eyent sans les consciences cy que rien ne ent failli a faire cure silz ne scavoyent a bone chiefe mitter ou silz a bon chiefe scavâ—yent entre-mettent nequidant follement ou negligentment issent que ilz mittont froid pur chaude ou le revers ou trop peu de cure ou nemi mitter un due diligence nosmement en arsons ad abscissions que sont defend a faire forsque al peril des mesters si lour patients morerent ou perdent memorie en tiels cases sont ilz homicides ou Mayhemers Mirror cap. 4. § de Homicide verb daut ' part To Our trusty and welbeloved the President and Censors of the Colledge of Physicians within the City of London JAMES REX TRusty and welbeloved We greet you well Whereas the Art of Physick by many unlearned men making gain by the profession thereof to the great hurt and prejudice of many of Our loving subjects is much abused in many places of this Our Realm but especially in our City of London and the Suburbs thereof the government whereof as touching the practise of the said Art and the practitioners thereof being by the Lawes and Statutes of the Realm committed unto you the President and Censors of our Colledge of Physicians and you having also from us by our Letters Patents more ample authority for the suppression and correction of such delinquents We therefore minding so far as in us lieth the speedy reformation of all such abuses and inconveniences do by these presents as heretofore yet more strictly charge and command you the President and Censors aforesaid to call before you all such irregular and ignorant practitioners as contrary to our Lawes and authority do abuse that Art and to examine their sufficiency and such as you shall find not sufficient to punish for their bad practise according to our Lawes in that case provided And Whereas we are credibly given to understand that many having been punished and warned by you to desist from any further practise do yet obstinately notwithstanding persist in their former contempt of our Lawes and commandments We will and command you that you proceed against such delinquents with all severity according to the tenor of our said Letters Patents and the due course of our Lawes by fine and imprisonment or by causing them to enter into recognizance with condition restraining them to offend any more or otherwise as the case shall require and shall be agreeable to justice And our will and pleasure is that such offenders as shall be so imprisoned shall there remain without being enlarged unless it be upon their conformity and submission to you the said president and Censors or other due course of Law wherein we require all our Judges and Justices that they be very careful and circumspect not to do any thing that may give encouragement to such offenders by enlarging any such too easily or without due examination of the causes of their commitment first calling thereto the said President and Censors or some of them to declare the true reasons and causes thereof And whereas we are given to understand that oftentimes upon the solicitation of some or other friend or person of quality sutor to you for the said delinquents after their conviction you have been moved to wink at their faults and neglect their punishment to the great prejudice of the health of many our poor subjects Our will and pleasure is and we do hereby straightly charge and command you that henceforth neither for favour friendship or respect of any you forbear the just censure and punishment due by our Lawes unto such delinquents as you shall answer to us on the contrary at your peril and that you require the aid and assistance of the Lord Major and Aldermen of our City of London whom by our Letters we have so required to do for your better expedition in the execution of this our Royal Will and Commandment not doubting but that you with more care will seek to suppress such intolerable abuses and satisfie our trusts in this case committed to you Given under our Signet at our Pallace of Westminster the second day of July in the twentieth year of our Reign of England France and Ireland and of Scotland the five and fiftieth The Kings Councel about the same time send a Warrant for Attachment of Empericks directed to all Justices of Peace Mayors Sheriffs Baileys Constables Headboroughs and all other his Majesties Officers and Ministers within the City of London and seven miles Butler made extraordinary Chirurgeon to the King was permitted by the Lord Keeper to be sued Annal. pag. 97. Blank had a Habeas Corpus 1637. but by the Judges was sent back to prison having been fined by the Censors 20 l ob malam praxia though he had Letters Patents from the Archbishop of Canterbury A Brief of what King James granted and defective in former Grants 1. THat whereas they were by the former Act enabled to keep Courts and Convocations and thither to convent and there to punish offenders but had no certain place limited now they have power to purchase a Hall peculiar for that purpose 2. Whereas they are by the former Act inabled to purchase only 12 l. revenue to the said Colledge now they have power by the Letters Patents to purchase to the value of 100 Marks per annum 3. Whereas the Colledge is authorised of old by suite to recover from all practisers in Physick without approbation from the Colledge 5 l. a moneth By the last Letters Patents they are authorised to punish such offenders contempt in not coming to the Colledge upon the President and Censors Warrants or in refusing to answer being come by a Fine of 40 s. and imprisonment till they have paid the same And for practising without License upon conviction they may fine the offenders in 3 l. and imprison them for seven daies and untill they have paid such fines 4. Whereas of old the Colledge might punish evil practitioners in Physick within their Limits by a Fine of 20 l. By their new Grant they may examine for Witnesses against them upon oath Chirurgeons and Apothecaries and Druggists And the Servants and Attendants upon the Sick and no others and fine them 20 s. for refusing to come or answer before them and upon conviction they may fine evill Practisers in Physick 10 l. and imprison them for 14. daies and until they pay the same Fine 5. Whereas of old the Physicians had power to search the Shops and Ware-houses of all Apothecaries Druggists Distillers and Sellers of Medicines and finding unwholsome Drugs and Medicines to burn them By their new Grant they are authorised to fine such offenders in 3 l. and to commit them untill they pay the same 6. Whereas of old the one half of all Fines to be imposed by the Colledge were granted to the said Incorporation in their new Grant all the said Fines are granted to them paying to the King his Heirs and Successors yearly 6 l. 7. In the new Grant the President and Censors are enabled to take Recognizances to the Kings Majesty of Offenders convicted of unlawful or evil practise with condition that they shall not commit like future offences and to imprison them if they refuse to be so bound 8. In the new Grant the Collegiates are freed from bearing or finding of Arms because they are subject to serve in person both in the Kings Armies and in his Fleets upon occasion 9. His Majesty promiseth his Royal Assent for enacting this Patent the next Parliament