Physitians in the Cittie of London shall be and remayne at all times hereafter for ever persons able and in Lawe capeable to have purchase receive possesse hold and enjoy any Mannors Lands Tenements Liberties Priviledges Franchises Iurisdictions and Hereditaments whatsoever of what name nature qualitie kind or condition soever the same or any of them shall bee to them and their successors in fee and perpetuity or otherwise And alsoe Goods and Chattells and all other things of what name nature quality or kinde soever the same be And alsoe by the same name to give graunt demise alien assigne and dispose the said Mannors Lands Tenements and Hereditaments Goods and Chattells And alsoe to doe and execute all other things lawfull necessary and convenient for the common profitt of the said Colledge And alsoe by the same name of the President Fellowes and Comonalty of the Kings Colledge of Physitians in the Cittie of London They shall and may for ever hereafter pleade and be impleaded answere and be answered unto defend and be defended in all and whatsoever Courts and places and before whatsoever Iudges and Iustices and other Persons and Officers of us our heires and successors in all and singular Actions pleas suites quarrells causes matters and demaunds whatsoever of what name nature qualitie or kind soever the same are or shal bee in the same manner and forme as any other subjects of this our Kingdome of England being persons able and capeable in Law or any other body Corporate or Politique within this our Kingdome may or can have purchase receive possesse give grant demise alien assigne and dispose pleade and be impleaded answere and be answered unto defend and be defended doe performe or execute And alsoe that they and their successors shall and may for ever hereafter have a Common Seale to serve and use for all causes matters things and affaires whatsoever of them and theire successors which shall alwayes bee and remayne in the custody and keeping of the President of the said Colledge of Physitians for the tyme being And that it shall and may bee lawfull to and for the President and Fellowes of the same Colledge or the major part of them for the tyme being to breake alter change or make new the said Seale from tyme to tyme att theire wills and pleasures and as to them shall séeme requisite and fitt AND alsoe from tyme to tyme and att all tymes hereafter to use and dispose of the Common Seale of the said Colledge for the time being in and about all things matters and affaires whatsoever of or concerning the same Colledge and Corporation in such manner as to them shall seeme fitt and requisite AND for the better order rule and governement of the said Colledge and Corporation and the matters and things thereof and the due and orderly correcting and punishing of all offences and offenders within the power and jurisdiction of the same Colledge and Corporation WEE doe by theise presents for us our heires and successors will ordeyne constitute declare and graunt that there bee and for ever hereafter shal bee forty Fellowes of the said Colledge and Corporation hereby constituted And that thereof att present and for ever hereafter there bee one President Tenn Elects and fower Censors duely appointed nominated and chosen to bee and shall bee respectively President Elects and Censors of the same Colledge and Corporation And all the same Fellowes President Elects and Censors respectively to bée and shalbée from tyme to tyme nominated elected and chosen and have being and continuance as such respectively in manner and forme and to all intents and purposes as in and by theise presents is hereafter mentioned and declared AND further We doe by theise presents for us our heires and successors will ordeyne constitute and appoint Sir Edward Alston Knight Sir Francis Prujean Knight Baldwyn Hamey Francis Glisson Peter Salmon George Ent George Bate Alexander Frazier William Stane John Micklethwait Nathan Pagett Jonathan Goddard Edmond Trench John King Thomas Cox Henry Stanley Daniell Whistler Charles Scarburgh Thomas Wharton Christopher Merrett Samuell Collins Luke Rugeley John Wilby Sir William Pettie Knight Christopher Terne Sir John Baber Knight John Hale Edward Greaves Thomas Croydon Gabriell Beauvoir Thomas Wolfe Martin Luellin Sir John Finch Knight Thomas Baynes William Quarterman James Hide Humfry Whitmore Robert Waller Peter Barwicke and Robert Morrison Doctors in Physicke the first and present Fellowes of the same Colledge and Corporation And to bée and continue Fellowes of the same Colledge and Corporation and to hold exercise and enjoy the office or place of Fellowes of and in the same Colledge and Corporation respectively for and dureing theire severall and respective naturall lives unlesse in the meane tyme for evill governement or misbehaving themselves in the same office or place or for Nonresidence otherwise than while they or any of them respectively shal bee or continue in the service of us our heires or successors without Licence under the Seale of the Colledge and Corporation aforesaid or under the Privy Seale of us our heires or successors or for any the like reasonable cause they or any of them respectively shal bee removed AND Wee doe by theise presents for us our heires and successors will ordaine constitute and appoint the said Sir Edward Alston Knight the first and present President of the same Colledge and Corporation And to bee and continue President of the same Colledge and Corporation and to hold exercise and enjoy the same office or place of President of and in the same Colledge and Corporation from the makeing hereof untill the morrowe of the feast of Saint Michaell the Archangell next ensueing the date hereof and from thenceforth untill another President shall bee in due manner elected and sworne according to the tenor true intent and meaning of theise presents AND Wee doe further by theise presents for us our heires and successors will ordeyne constitute and appoint the said Sir Edward Alston Sir Francis Prujean Baldwyn Hamey Francis Glisson George Ent George Bate Alexander Frazier William Stane John Micklethwaite and Nathan Pagett to bee the first and present Elects of the same Colledge and Corporation and to be and continue Elects of the same Colledge or Corporation and to hold exercise and enjoy the office or place of Elects of the same Colledge and Corporation for and dureing theire severall and respective naturall lives unlesse in the meane tyme for any reasonable cause as aforesaid they or any of them shall bee removed AND Wée doe by theise presents will ordaine constitute and appoint the said George Ent John Micklethwaite Daniell Whistler and Christopher Merrett the first and present Censors of the same Colledge and Corporation and to bee and continue Censors of the same Colledge and Corporation and to hold exercise and enjoy the office or place of Censors of and in the same Colledge and Corporation untill the morrowe of
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
enjoyne all Iudges and Iustices of us our heires and successors to act and performe accordingly any Acte Statute Lawe Vsage or Provision whatsoever to the contrary thereof in any wise notwithstanding AND WEE WILL and by these presents for us our heires and successors Doe ordaine and declare that all and every the Fynes Penalties Forfeitures and Amerciaments hereafter to be sett adjudged imposed or inflicted upon any person or persons whatsoever by force or colour of these presents or of any the Letters Patents or Acts of Parliament aforesaid or by force or colour of any Acts Ordinances Decrees or Constitutions made or to bee made by vertue of these presents or any the Graunts or Authorities aforesaid before any Action bée commenced or any Levy or Execution bee had or made thereof respectively the said severall penalties and forfeitures of Tenn pounds and five pounds per Mensem above mentioned allwayes excepted shall bée reported to and approved of by the Court or Corporation of the said President and Fellowes of the Kings Colledge of Physitians aforesaid to bée held by vertue of these presents or by any fifteene or more of the Fellowes of the same Colledge for the tyme beinge then present att such Court whereof the President or in his absence the Vice-president for the tyme being to bée one and then entered and registred in the Common Register Booke of the same Colledge And that from and after such approbation and entry thereof it shall and may bée lawfull to and for the President and Censors or Vice-president and Censors of the same Colledge of Physitians for the tyme being in the absence of the President or any thrée of them whereof the said President or in his absence the Vice-president for the tyme being to bée one by Warrant under the hand of the said President and Censors or Vice-president and Censors for the tyme being in the absence of the President or any thrée of them whereof the said President or in his absence the Vice-president for the tyme being to bée one duely made and directed to any Officer and Officers of the same Colledge in this behalfe to bée appointed to Commit and send every such person and persons soe offending and on whome any such Fyne Penalty or Amerciament shall be imposed sett or inflicted as aforesaid or by whom any forfeiture shall bée made as aforesaid to any of our Goales or Prisons except our Tower of London within our said Citty of London or the Suburbs thereof for the tyme being there to remayne untill he or they shall pay and satisfie unto the said President and Fellowes of the same Colledge of Physitians and their Successors for the tyme being the severall and respective fyne or fynes penalty or penalties forfeiture or forfeitures Amerciament or Amerciaments for which hee or they respectively shal bee soe Committed or charged as aforesaid or otherwise by like Warrant to levie all and every such fyne and fynes penalty and penalties forfeiture and forfeitures Amerciament and Amerciaments by distresse and sale of any of the Goods and Chattells of any or every such person or persons respectively offending as aforesaid rendering the overplus to bee ymployed and disposed as hereafter in and by these presents is directed PROVIDED allwayes that if any person or persons on whome any Fyne Penalty or Amerciament shall be sett or imposed as aforesaid shall find or conceive himselfe grieved thereby That then it shall and may bee lawfull to and for every such person and persons within one Moneth after such approbation and entry thereof made as aforesaid or sooner to appeale unto such person and persons for his or their releife therein as in and by these presents are hereafter nominated constituted and impowered in that behalfe AND Wée will and by these presents for us our heires and successors Doe make ordeyne constitute and appoint our right trusty and right welbeloved Cosin and Councellor Edward Earle of Clarendon our High Chancellor of England our right trusty and welbeloved Sir Robert Foster Knight Cheife Iustice of our Court of Kings Bench Sir Orlando Bridgman Knight and Baronett Cheife Iustice of our Court of Common Pleas and Sir Matthew Hale Knight Cheife Baron of our Court of Exchequer the present Visitors of the said Colledge and Corporation and the Lord Chancellor of England or Lord Keeper of the Greate Seale of England Lord Cheife Iustice of the said Court of Kings Bench Lord Cheife Iustice of the said Court of Common Pleas and Lord Cheife Baron of the said Court of Exchequer hereafter for the tyme being from tyme to tyme and for ever hereafter Visitors of the same Colledge and Corporation AND Wee doe by these presents for us our heires and successors give and grant unto them the said Visitors hereby constituted and every or any two or more of them full power and authority to receive entertaine heare examine adjudge and determine alter mitigate reverse or confirme all and every such Matter Cause Complaynt Iudgment Decree or Sentence whatsoever which att any time hereafter shall come or bée brought before them or any two or more of them by way of Appeale hereafter to be made by any person or persons whatsoever for or concerning any Fyne Penalty or Amerciament or other matter or thing whatsoever according to the tenor true intent and meaning of these presents as to them or any two or more of them shall seeme just and fitting AND to that end that it shall and may bee lawfull to and for our said Lord High Chancellor of England Lord Cheife Iustice of our said Court of Kings Bench our said Cheife Iustice of our said Court of Common Pleas and our said Cheife Baron of our said Court of Exchequer now being or any two or more of them and to and for all and every other Lord Chancellor of England or Lord Keeper of the Greate Seale of England Lord Cheife Iustice of the said Court of Kings Bench Lord Cheife Iustice of the said Court of Common Pleas and Lord Cheife Baron of the said Court of Exchequer hereafter for the tyme being or any two or more of them from tyme to tyme to send for remove or cause to come before them or any two or more of them all and every such Cause Complaynt Iudgment Decree and Sentence and all or any the proceedings thereof respectively whereupon or wherein any Appeale shall bée made to them or any two or more of them as aforesaid and from tyme to tyme to order and appoint certaine dayes tymes and places for the hearing and adjudging thereof and to summon heare and examine upon Oath or otherwise all and every person and persons that know or can say or testifie any matter of fact or other thing conduceing to the manifestation or discovery of the truth of the matter in question to the end a just and cleare judgment and determination may be had and made therein AND FURTHER to act proceed performe
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
shall appear These are therefore to will and require you to appoint some three Physicians of your Society of good reputation as well for their learning as otherwise who together with the Physicians of the said Lady Arabella shall presently repayre unto the Tower and there view and search the Corps of the said Lady and to return joyntly their opinion unto me of the nature of the disease whereof she dyed that we may acquaint his Majestie therewithall And so I bid you heartily farewell From the Court at Whitehall this 27th of Sept. 1615. Your loving friend Ralphe Winwood According to the King's command some Physicians of the College met at the Tower and upon a diligent inspection of the body of the Lady Arabella were of an opinion that the cause of this noble Lady's death was a long chronical sickness that the species of her disease was a Cachexie which daily encreasing partly by her own neglect and partly by her aversation to medicine did at length bring her into a confirmed indisposition of her Liver and extreme leanness from which causes death must needs ensue This testimony was signed by the President Register and four Fellows of the College Iohn Bartley a practiser in Physick was accused by an Apothecary for ill practice after which upon a Censors day a Reverend Divine with his Wife made complaint that this Bartley having through ignorance and unskilfulness prescribed a very violent Medicine to their daughter had thereby hastened her death An exact relation of all the particulars with the names of the persons present drawn up in writing and signed with both their hands they offered to the Censors earnestly desiring that the Officers of the College would take cognisance thereof and by their censure give them all the assistance they could they intending to prosecute Bartley and bring him to trial for the death of their daughter The sum of their Narrative was this That the said Bartley being by certain Women recommended to them and having bargained for the cure and received part of the money in hand he gave their daughter amongst other Medicines a remedy which both vomited and purged her notwithstanding she had long laboured under an old Cough from which time she began visibly to sink and died in a few days after The Censors considering on the one hand the prayers and tears of the Parents and on the other hand Bartley's not being present to answer for himself thought they should do what became them if they condemned the fact for mala praxis as it stood reported in the Narrative In the 11th of this King's Reign the following Warrant was sent to the Apothecaries from the King's Council requiring them to deliver to the President and Censors the Bills of all illegal Practisers To all the Apothecaries within the City of London and the Suburbs thereof THese shall be in his Majestie 's name straightly to command you that upon the coming of the President and Censors of the College of Physick in London to your shops or houses you deliver unto them without any delay or excuse all such Bills and Receipts as you have of any Practitioners not licensed by the College Whereunto though you be bound by the Laws of the Land yet we have thought fit upon some causes known unto us now by these our Letters to command you to do the same April 22. 1613. G. Cant. Pembroke Ellesmere Canc. Ro. Rochester Jul. Caesar Gilb. Shrewsbury E. Wotton Th. Parry Dr. Brouuart a Leyden Physician was charged for practising Physick in London c. contrary to Law He replyed that it was necessity that obliged him to practise and that he was ignorant of the College authority The President told him that practising without licence was entring upon the lawfull possession of others against all right and reason But because he had behaved himself modestly he was respectfully dismissed He requested a connivence from the College if he might not have their admission The President told him that neither the one or the other was to be granted without examination About two months after he applied himself to the President and Censors and desired that they would permit him to enjoy the privileges granted him by the University and therefore He would put on the hat of honour as he called it which the University had put on him and not stand bare The President told him that it was their custome and a good one too that men should be examined uncovered and that this honour was not so much paid to the President and Censors as to the College in which they under the King's Majesty bore the Character of Magistrates He therefore pulling off his hat told them that he had been a Doctour four years and professed Physick in his own Country and in France The President demanded how that appeared and whether he had any Patent or Letters Testimonial which he not then being able to produce having left them as he said in his own Country the President told him that he could neither practise nor proceed any further towards the procuring a Licence till he brought his Patent and then afterwards must be examined which he refused But when he understood that it was unavoidable He took out of his pocket the King's Letter wrote to the President and College in his favour After which he was again summoned to appear before the President and Censors and being by them examined he was permitted to practise One Brown a Surgeon was complained of for giving internal Medicines in affections of the Eyes which was proved against him and he fined 50 s. which if not paid in fourteen days he was to be imprisoned but this he prevented by paying his fine to the Treasurer of the College at the time appointed William Blanke Chandler confessed his practising of Physick yet owned he understood no Latin but thought he had learning for it He was interdicted practice and threatned fine and imprisonment if found guilty for the future Not long after he was accused and confessed his giving of Medicines to one who he said had a convulsion of the Stomach with infection of the Liver and raised his Lungs into his Throat which he brought down by applying a Tench to his back He said that he may must and will purge as others did Wherefore for his ill and unlawfull practice the Censors committed him to the Compter with a Mulct of 40 s. which he paid and was released within three days He was again convented and declared that he practised but in trifles as Fevers He prescribed to one man a Medicine compounded of Cordials Purgatives and Opiates Being charged with giving a Vomit he said that all accusations against him were as the witnesses against Christ that in three days he would destroy the Temple and build it again and to answer before the President and Censors was but as to Herod and the rest that would harden their hearts For erecting of Figures he confessed he used it As for Surgery being
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
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
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
those that belong to the practice of Physick See Entries fol. 463. Pl. 3. Action was brought against one for practising of Medicines and for that cause it was necessary to shew what practice this was scil tam per visus c. quà m interiores potiones And there is another action there where one that practised as Surgeon practised ut Medicus that where the Plaintiff suit aegrotus of the Colick the Defendant ut medicus sed indoctus cupidus lucri saith to the Plaintiff that he was troubled with thrée Imposthumations and administred to him medicinam insalubrem intoxicatam whereby the Plaintiff was in danger of his life And in the same book fol. 463. Pl. 1. it is shewn what a Surgeon ought to do Entries fol. 127. and an appeal of Mayhem 46. Pl. 5. Register trespass fol. 139. The Statute 32 H. 8. was apparent that the Iudgment of the Parliament was that Surgery was a member of Physick And he said there were 2 kinds of Surgeons Barber-Surgeons who were incorporated 1 E. 4. and Surgeons onely He agréed that the Statute against the words may be construed by equity as Stradling and Morgan's case but to whom shall this equity extend Posito that it extends to Surgeons yet it never extended to Empiricks Equity against the letter ought to be grounded upon the intention 30 E. 3. 6. 1 H. 6. 3. The Statute of Marlebridge there are negative words as here that no person shall drive a distress out of the County c. vide the Case But posito that a stranger shall distrain c. the equity shall not extend to him So in our Case although a Surgeon be tolerated yet a Stranger shall not invade the liberty of Physicians 2. The Statute of 34 H. 8. doth not restrain that which is within 14 H. 8. but meddles with the mischief mentioned in 32 H. 8. And it appeareth that the intention of 34 H. 8. was not to raise a new profession but to tolerate the old For the Statute is where many give Medicines without money scil for Charity and neighbourhood And the purview is general that such c. But the difference is if any will within his own house or to his friend give Medicines it is not within the Statute But if he make profession and set up a Bill that he can cure such and such diseases it is otherwise Pl. Com. 463. And if the question had béen put to the makers of the Statute whether they would raise a new profession it would have béen denied to be their intention 8 Rep. fol. 129. Exercise of brewing is not every brewing for his own house alone c. but profession thereof And 11 Rep. fol. 23. So here But posito that every one may exercise within 34 H. 8. yet it is not a Repeal of 14 H. 8. but as it were a licence or dispensation therewith c. And if it were yet 1 Mariae repeals all 34 H. 8. that any way impeaches 14 H. 8. If it was made to such purpose at first this Act 1 Mariae takes notice of 14 H. 8. and provides that staret continuaret c. Any Act Statute c. to the contrary And what Statute can be to the contrary but the Statute 34 H. 8 As to the Objection that there wants staret and is onely continuaret insomuch that cannot be of any force it shall be as if it were absent and then continuaret is not only a confirmation but is to remove the impediment which is the Statute 34 H. 8. as it was before And although that this Statute of 1 Mariae is a private Statute yet the substance being pleaded is sufficient But the plea in barr is ill this is Iustification by virtue of a Statute Law the Statute gives the Iustification in this manner that he c. justifie generally The application of Plasters and giving of Potions to Sores Agues Stone Strangury c. talibus morbis and doth not say secundum formam Statuti and therefore shall not be construed pro reddendo singula singulis 15 H. 7. 10. where the construction is made reddendo singula singulis c. This form of pleading is also a new form quoad those c. he justifies and he doth not say this is the same practice whereof the Plaintiff declares And so to force the Plaintiff to a replication when the thing is intire as here that he had exercised facultatem medicinae he cannot sever his plea and justifie these Et quoad alia c. plead Not guilty But he ought to plead as it is said before or traverse absque hoc c. 2. The Plea in Barr consists of 2 points one is a Iustification the other is a Travers Et he shall not have the Iustification si hoc parat est verificare 22 H. 6. 6. There without Travers it is good according to Dyer 167. But when the justification tends to all it is not so 27 H. 6. 10. and it cannot be amended nor no repleader now after demurrer Then let the Replication be as it will when the Barr is ill and the declaration good this should not be answered Vide Dr. Bonham's Case Francis Case and Turner's Case c. Mich. 6 Caroli primi Communi Banco The Iudges in this case gave their Resolution RIchardson Chief Iustice for himself and for the other Iudges said That he would recite the principal points of the Case which be The Plaintiffs declare that the Charter made to the College did inhibit That none shall practise Physick c. without licence c. and that the Defendant contrary thereto had practised by the space of 12 months for which he had forfeited 5 li. for every month which amounts to 60 li. The Defendant pleads the Statute 34 H. 8. that made it lawfull for any skilfull c. to administer outward Plasters c. or Potions c. and as to any other practice he pleaded Non culpabilis The Plaintiffs reply and shew the Statute of 1 Mariae which confirms their first Charter Any Act to the contrary notwithstanding Vpon which the Defendant demurred in Law and our Ioint Resolution is that the Plaintiffs shall recover It hath béen objected against the Iurisdiction of this Court that by the Statute of 21 Jac. this action ought not to be brought here But it is clear that it cannot be brought in any other place than in the Kings Courts of Record at Westminster For the Statute doth not mention in what Court it shall be brought and the Statute 21 Jac. which giveth power to Iustices doth not give any other thing to them but that whereof they have Power and Iurisdiction before and before this they had not any Iurisdiction of this Cause Ergo. Another Objection hath béen made that the Action hath not béen well brought because it ought to be brought in the name of the President onely To which I answer that the Charter it self is that they may
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
same He accordingly brought the ensuing Letter My good friends I Understand by this bearer Tho Cooke that he is by your command in custody of a Messenger for some occasions best known to your selves upon which you have enjoyned him to repayre to me to make submission which accordingly he hath fully and fairely done with much sorrow and for my part I remit and forgive all offences to me and desire with your savours he may be freed and so wishing you all happinesse I rest Your loving friend Ka. Knyvett This 2d of March 1638. In the 5th year of this King's reign several Empiricks pretending their Protection from Court the President and Censors presented the following Petition against them to the Lord Chamberlain To the Right Honourable Philip Earl of Pembroke and Montgomery Lord Chamberlain to his Majesty The humble Petition of the President and Censors of the College of Physicians Sheweth THat whereas there are diverse Empiricks which contrary to Law and conscience presume to practise Physick in and about the City of London as one Butler a Glover Trigge a Lastmaker Buggs one of the Queen of Bohemia's Players sometimes an Apothecary One Hill one Blagden one Blank a Pewterer and one Sir Saunder Duncombe a Pensioner to his Majestie with diverse others against whom the College cannot take the benefit of their Charter and his Majestie 's Laws by reason that they shrowd themselves under the colour of being his Majestie 's servants The Petitioners humbly beseech your Lordship in tender regard of the health and safety of his Majestie 's subjects to give them leave to take the ordinary course of Law for the suppressing of the unlawfull practice of the aforesaid Empiricks and all others that shall assume the like boldnesse And they shall pray c. To this Petition the following answer was returned None of the persons complained of in this Petition nor any other are admitted to his Majestie 's service to intitle them to the practice of Physick against the Charter of the College and his Majestie 's Laws And therefore if the Petitioners conceive that they have cause of Suit having acquainted the partyes interested with my reference they may freely take the benefit of his Majestie 's Laws for their relief Pembroke and Montgomery Febr. 7. 1630. Humphrey Beven Chymist was complained of for giving a Vomit to one Royston's daughter who in the time of her vomiting fell into convulsions and died After this he was accused for giving a Medicine to Mrs. Lane on a knife's point upon the taking of which she voided clods of bloud upwards and next day her gums were made black thereby and so she fell to spitting and spawling till she died The President and Censors did not think this business fit for them to censure and therefore it was referred to the Courts of Justice Thomas Bowden Surgeon confessed that he directed severl Medicines as Purges Diet-drinks c. to a Patient for the Morbus Gallicus and thought it lawfull he being so taught by his Master The Censors examining the case could not discover it to be a Gonorrhoea impura but onely a strain gotten by a fall which caused the running of the reins The practice having been 2 or 3 years past the Censors inflicted no other punishment upon him but onely discommuned him untill he submitted to the College which was done by the consent of all the Fellows and signified by the Beadle to all their Members About the same time one Flud an Apothecary was likewise discommuned who afterwards submitted himself to the College and craved a release from their interdiction which was granted he paying the mulct of 20 s. Mr. Sweno Clark and Executour to one Mr. William Turner presented a Petition against Mr. Clapham an Apothecary for giving physick to the said Mr. Turner whose bills of charges he presented Mr. Clapham appeared to whom Mr. President declared the complaint made against him concerning his practising Physick upon one Mr. Turner and of his suing the Patient's Executours and required him to produce what Doctours bills he had in that case Mr. Clapham answered that he had Dr. Peter Moyden alias Muden his Bills even from September 1630. till the latter end of March following which Dr. Moyden was sometime his fellow-servant in Mr. Garret's house but afterwards fell to the study of Physick He confessed that the Doctour never was with Mr. Turner onely saw his urines at Mr. Clapham's shop and was instructed by him of the disease He saith farther that Mr. Turner much despised Physick and Physicians yet relied upon him and was content at the last that Dr. Bruart should be brought to him who came as he said too late Margaret Woodman dwelling in Alhallows in the Wall who kept Mr. Turner in his sickness saith that Mr. Clapham did usually look upon Mr. Turner's urines causing them often to be turned sometimes liking and sometimes disliking them and that all the time she was with him which was 10 weeks she knew of no other Doctour but Mr. Clapham and she saith farther that by his bathing and medicining him his Legs did not onely swell but that his Toes rotted and his Legs became extremely noisome Mr. William Kerbye in Maiden lane Merchant saith that Mr. Turner being taken with a giddiness fell and by his fall hurt his Hip for which he did advise him to use Counsel and he answered he used Mr. Clapham who was his old acquaintance but Mr. Kerbye wishing him to use better Counsel he said that Mr. Clapham told him he had the Counsel of a Doctour and further saith that then he could use his armes well and that even to his death almost he had his senses well and he saith that he told Mr. Turner that Mr. Clapham had received of him 50 li. to which he answered that he had had of him twice as much And he saith that Mr. Bruart coming to him said he was called too late Mr. Henry Shelberrye Scr. faith that Mr. Turner had his fall about the 7th of October last to whom Mr. Turner said he feared the swimming of his head of which he had a fit 20 years ago coming from Paul's and he asked Mr. Turner whose Counsel he used he said Mr. Clapham was his ancient Apothecary and one that knew his body well yet that he had moneys from him for a Doctour Mr. Slater saith that he was with Mr. Turner the day he dyed and that he heard Mr. Turner's Maid blame Mr. Clapham who she said had received of her Master in his sickness well near 100 li. Mr. Clapham saith that if he would have taken 5 li. or 6 li. for his Bill that then this complaint had not been made Mr. Clapham neglecting to attend the Censors upon due warning they gave Mr. Sweno the following Certificate upon mature deliberation WHereas Mr. William Sweno Executor to one Mr. William Turner deceased in April last hath complained to us the President and Censors of the College of Physicians in London of
approved by the next Court and registred before any levy or execution be had thereof and after by Warrant to commit the party untill c. or levy it of his goods The 10 l. and 5 l. per Mensem excepted Appeal to Within one Month after the Fine approved in Court Visitors Constituted Power to receive and determine Appeals c. To the said Visitors or any two of them To remove the Cause before them To summon and swear Witnesses After sentence to remit the Cause All Judgments in such Appeal to stand good and no further relief or appeal after Provided if neglect of prosecution or the Appeal not determined within six Months the President and Censors to proceed as if no Appeal therein To proceed on Judgment in Appeal after remitted as in other case before Appeal Provided that no Offender be questioned but within a year after the Offence committed All Fines and Amerciaments given to the Colledge Except the penalties and forfeitures on Recognizances Power to sue for them and levy them as aforesaid All the Fines charges deducted to go to the poor 6 l. per ann reserved to the King Power to choose a Register His duty Power to choose other Officers To be sworn To put them out again c. To take Recognizances of Offenders * rect President and Censors or to the Vice-president and Censors in the absence of the President or any three To commit such as refuse to enter into Recognizance Goalers to receive and detain the Prisoners Penalty Liberty to take six Bodies yearly for Anatomies Provided they be buried after Liberty to purchase Lands 200 l. per ann Physicians not to be of Juries nor Churchwarden Constable nor Scavenger in London or seven miles distant c. Watch and Ward Bearing and providing Armes Confirmation of all former Grants Not hereby altered To consent to a Bill in Parliament for Confirmation Apothecaries and Grocers made one Corporation 4 Jac. The grounds for this New Charter Empiricks Hurtfull Medicines The Apothecaries separate from the Company of Grocers And made an Incorporation Subject to the Magistracy of the City as well as others The persons first incorporated were these 114. Natural Subjects And their Apprentices Separated from the Grocers And exempt from all Fines Amerciaments c. from the same By the name of the Master Wardens c. made a Body Politick Capable to purchase Lands c. by the same name In Fee-simple For term of years or otherwise To sue and be sued * fuerint To have a Common Seal At pleasure to be broken or altered Power to choose a Master Two Wardens and 21 Assistants To have an Hall or Council-house To keep Court or a Convocation To consult about Statutes Laws Articles c. The Master Wardens c. being 13 in number To make Laws For the Government of the Society In their Orders concerning Medicines to advise with the President and four Censors of the Colledge of Physicians To punish by Fines and Amerciaments To the use of the Master c. Without giving account But to be moderate and not contrary to Law Edm. Phillipps first Master Stephen Higgins and Tho. Fones first Wardens First Assistants To take an Oath before the Attorney-General c. The Master and Wardens to be sworn before the Assistants Power to the Assistants to choose a Master and Wardens Power to choose others in case of death or removal To choose new Assistants And swear them Power to administer the Oath to the Master Wardens c. No Grocer to keep an Apothecaryes shop Vnder the penalty of 5 l. Per Mensem No person to keep a Shop Till he have served seven years Apprentiship No Apprentice to be made free unless allowed by the President or some Physician deputed by him who is to be present at his Examination by the Master and Wardens And be examined * del tam. Power to enter Shops and Houses To search and try Medicines And burn all unwholsome and hurtfull Medicines Officers to be assistant to the Master Wardens c. in their search Power to buy and sell Drugs c Power to purchase Lands c. Power to sell To choose a Clerk Who is also to be sworn Power to choose a Beadle And give him his Oath A saving of the power of the President and Colledge of Physicians and their Authority The Colledge to have the same power in their searches to call the Master and Wardens of the Apothecaryes Company as of the Grocers What Medicines Surgeons may have for their own use * ditionis nostrae * profitebuntur * Suburbiis * medicis * illas * nuper * had endued * morbo * quo * ledebant * ditionis * gravium * earum * del hujusmodi * dicta * authorizat ' * authorizat ' * places * contingeret * Anglicâ— Action of false imprisonment Action of false imprisonment Serj. Harris the younger Term. Trin. ann 8 Car. 1. in B. R. Littleton's reports p. 168. Mich. 4 Car. Stat. 14 H. 8. cap. 5. Stat. 34 H. 8. cap. 8. Stat. 3 H. 8. cap. 11. 1 Mariae c. 9. Stat. 34 H. 8. Stat. 3 H. 8. Stat. 3 H. 8. Pleading Departure Patents Free Trade Penal Statute Information Courts Quarter Sess 21 Jac. c. 4. Informations Information Forfeiture to the Royal Court Action popular Information Stat. 14 H. 8. c. 5. Surgery Stat. 34 H. 8. c. 8. Potions Stat. repeal Stat. 34 H. 8. cap. 8. Stat. 1 Mariae Pleading Replication Departure Novel matter Stat. 37 Eliz. cap. 5. Lit. rep 212. Exposition of the word Medicina Stat. 14 H. 8. Stat. 3 H. 8. cap. 11. Information Stat. 8 E. 4. 31 Eliz. c. 5. Lit. rep p. 246. Statutes General Particular Pleading Confess and avoid Traverse Corporation Name Lit. rep p. 349. London Lond. ss Imprimis London ss A Copy of the Censors Warrant for the commitment of Empiricks to prison