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
satisfaction and payment of the same fyne soe imposed upon him for the same offence AND FORASMUCH as Wee are well satisfied in our selfe and hold it most reasonable and requisite that a like care and consideration should bée had and taken of all our good subjects inhabiting or resident in other the Diocesses and parts of this our Realme of England not herein abovementioned nor provided for in matters concerning the good and health of their bodies which to effect and to the end that the abuses and irregularities abovementioned may in those parts bee seasonably corrected or tymely prevented and none but able learned and well qualified persons admitted to exercise and practise in Physicke in the parts of this our Kingdome without our said Citty of London and Westminster and the lymitts of seaven miles aforesaid OUR WILL AND PLEASURE is And Wée doe by theise presents for us our heires and successors Grant Constitute and Ordeyne that all and every person and persons whatsoever now or hereafter willing or desirous to exercise or practise Physicke in any the parts of this our Kingdome without the Citties and lymitts aforesaid Doe and shall before hée or they or any of them respectively make any open profession thereof Offer and submitt themselves to the examination and tryall as to their severall abilities and qualifications requisite in that faculty of the President and Elects or Vice-president and Elects in the absence of the President of the Colledge aforesaid or any foure of them for the tyme being whereof the President or in his absence the Vice-president for the tyme being to bée alwayes one To the end that such person and persons as on such Examination or Tryall shall appeare to bée able and qualified for the exercise of that faculty may bée approved and allowed of by testimoniall in writing under the particular hands of the persons respectively so examining and approveing them AND WEE DOE hereby will and require and by theise presents for us our heires and successors give and grant unto the President and Elects of the Colledge aforesaid and in the absence of the President to the Vice-president and Elects of the same Colledge for the tyme being or any foure of them whereof the President or in his absence the Vice-president for the tyme being to bée one from tyme to tyme to receive send for and call before them all and every such person and persons that is or shall be willing or desirous or shall begynn or venture to exercise or practise in the said faculty of Physicke within any the parts of this our Realme of England without the Citty and lymitts aforesaid And them and every of them well faithfully and exactly to examine and make tryall of their severall and respective qualifications and abilities as to the said faculty of Physicke and the exercise and practice thereof And to allowe lycence and approve of such and soe many of them as shall bée by the said Examiners respectively as aforesaid adjudged able and qualified for that profession And thereupon to make and give unto them and every of them soe approved of as aforesaid a testimoniall in writing under the hands of the Examiners respectively as aforesaid AND alsoe to refuse suppresse and reject all and every such person and persons as to the said Examiners respectively appointed as aforesaid shall from tyme to tyme appeare to be insufficient or not duely qualified for the exercise of that faculty AND FURTHER by all just and lawfull wayes and meanes possible in the future to the utmost of their power to prevent or tymely to reforme and correct the abuses irregularities and enormities aforesaid in all and every the parts of this our Realme without our said Citty of London and Westminster and lymitts of seaven miles aforesaid AND our further will and pleasure is And Wee doe by these presents for us our heires and successors Graunt Constitute and Ordayne that noe person or persons whatsoever Except hee or they bee a Graduate or Graduates of Oxford or Cambridge which have or hath accomplished all things for his or their forme without any grace shall doe or may from henceforth exercise or practise or bee permitted to exercise or practise in the said Art or Faculty of Physicke in any part or parts of this our Realme of England without our said Citty and the lymitts aforesaid untill he or they respectively shall be examined tryed and approved of as aforesaid and have and receive a Testimoniall thereof in writing as aforesaid upon paine of forfeiting of five pounds of lawfull money of England unto the said President Fellowes and Comonalty of the Colledge aforesaid and their Successors for every Moneth wherein any such person or persons shall soe exercise or practise in the said Art or Faculty of Physicke as aforesaid being not duely examined and approved of or haveing not had or received his Testimoniall as aforesaid All and every such forfeiture summe and summes of money to be had and recovered in such manner and by such wayes and meanes as the said penalty or forfeiture of Tenn pounds the Moneth for practising without lycence within our said Citty of London or seaven myles thereof as aforesaid is ought or may bee had sued for obteyned or recovered And in which Actions Suite or Suites to bee had brought or prosecuted noe Essoyne wager of Lawe or protection shall or ought to bée admitted or allowed for or to any Defendant or Defendants therein AND WEE WILL and for us our heires and successors Doe hereby graunt that the Playntiffe and Playntiffs in all and every Action and Actions Bill Suite Plaint or Information hereafter brought or to bée brought exhibited or prosecuted for the recovery and obteyneing of the said severall paynes or forfeitures of Tenn pounds the Moneth and five pounds the Moneth any or either of them wherein such Playntiffe or Playntiffs shall or ought to have recover or obteyne his or their Iudgment therein respectively shall have and recover his and theire reasonable Costs of suite to bée from tyme to tyme taxed and assessed by the Iudge Iudges or Iustices of the Court wherein such Action or Actions Bill Playnt or Information shall be brought or prosecuted as aforesaid and shall alsoe have his and theire Execution and Executions for the same in such manner to all intents and purposes as in any Action of debt Case or Trespass is now used or ought to bée had given or done in any of our Courts of Record att Westminster And that the Defendant and Defendants in every such Action and Suite Bill Playnt or Information wherein Iudgment is or ought to bee given for such Defendant or Defendants shall have and recover his and theire Costs of suite in such manner as in any Action or Actions of Debt Case or Trespasse is nowe used or ought to bée had or given in any of our Courts aforesaid AND WEE DOE hereby for us our heires and successors impower and
Westm ' usque diem Jovis prox ' post octabas sancti Hillarii de Judicio suo de super premissis audiendo c. eo quod Cur ' domini Regis hic inde nondum c. Ad quem diem coram domino Rege apud Westm ' ven ' partes predicte per Attornat ' suos predictos Et quia Cur ' domini Regis hic de Judicio suo de super premissis predictis reddend ' nondum advisatur dies ulterius inde dat' est partibus predictis coram domino Rege apud Westm ' usque diem Mercurii prox ' post xviij Pasche de Judicio inde audiend ' c. eo quod Cur ' domini Regis hic inde nondum c. Ad quem diem coram domino Rege apud Westm ' ven ' partes predicte per Attorn ' suos predictos Et quia Cur ' domini Regis hic de Judicio suo de super premissis predictis reddend ' nondum advisatur dies ulterius inde dat' est partibus predictis coram domino Rege apud Westm ' usque diem Veneris prox ' post Crastinum Sancte Trinitat ' extunc prox ' sequen ' de Judicio inde audiendo eo quod Cur ' domini Regis hic inde nondum c. Ad quem diem coram domino Rege apud Westm ' ven ' partes predicte per Attorn ' suos predictos Super quo visis per Cur ' domini Regis hic plenius intellectis omnibus singulis premissis maturaque deliberatione inde habita pro eo quod videtur Cur ' domini Regis hic quod placitum predictum per predictum Thomam Langton qui tam c. superius replicando placitat ' materiaque in eodem content ' bon ' sufficien ' in lege existit ad actionem ipsius Thome Langton qui tam c. versus predictum Edm ' habend ' manutenend ' Ideo cons est quod predictus Thomas Langton qui tam c. recuperet versus prefat ' Edm ' debitum predictum Unde dominus Rex habeat unam medietatem Et predictus Thomas Langton qui tam c. Collegium predictum habeant alteram medietatem juxta formam Literar ' Paten ' predictar ' Statut ' predict ' Quodque idem Thomas Langton qui tam c. recuperet versus predictum Edm ' sex libras tresdecim solidos quatuor denarios pro dampnis suis que sustinuit tam occasione detentionis debiti predicti quam pro mis custagiis suis per ipsum circa sectam suam in hac parte apposit ' eidem Thome Langton qui tam c. per Cur ' domini Regis hic ex assensu suo adjudicat ' Et predictus Edmundus in misericord ' c. Postea scilicet die Sabbati prox ' post octab ' Sancti Martini Anno regni domini Jacobi nunc Regis Anglie sexto coram eodem domino Rege apud Westm ' ven ' predictus Presidens per Attorn ' suum predictum Et cogn ' se esse satisfactum per predictum Edm ' Gardiner de tota parte sua debiti predicti de dampnis predictis que ad ipsum President ' pertinet Ideo ipse idem Edmundus de tota parte ill ' de dampnis illis sit quiet ' c. Quod quidem Recordum coram nob ' sic habitum duximus exemplificand ' In cujus rei testimonium has Literas nostras fieri fecimus Patentes Teste Thoma Flemynge apud Westm ' undecimo die Februarii Anno regni nostri Anglie Franc ' Hibernie sexto Et Scotie quadragesimo secundo Byng Byng Dr. Langton versus Gardiner Croke 's Reports 2 d Part p. 121. DEBT upon the Statute 14 H. 8. cap. 5. by the Plaintiff as President of the Colledge of Physicians in London and of the Corporation of Physicians there For that the Defendant used the Art of Physick in London without Licence from the Colledge there against the Statute and their Charter For which he demanded 5 l. for every month being the penalty given by the Statute The Defendant pleaded the Statute of 34 H. 8. which enables every one to practise Physick or Surgery being skilfull therein notwithstanding any Act to the contrary The Plaintiff replies and shews the Statute Primo Mar. cap. 9. which confirms their Charter and every Article thereof to stand in force any Act Statute Law or Custome to the contrary notwithstanding Hereupon the Defendant demurred First because this general clause in this Law doth not restrain the Statute of 34 H. 8. Secondly that this pleading is a departure For it ought to have been shewn before Stephens argued for the Plaintiff First That the Act of 34 H. 8. is repealed by the Statute of prim Mar. quoad the Colledge of Physicians in London as fully as if it had been by express words recited and repealed For when it confirms the Charter of 14 H. 8. and appoints that it and every part thereof shall stand and be avayleable the Statute of 34 H. 8. cannot stand with it Quia leges posteriores leges priores contrarias abrogant 4 Ed. 4. Porter's Case Co. 1. fol. 25. Secondly that it is not any departure Because there is not any new matter but matter pleaded in reviving of the former or fortification thereof And a Record was shewn Mich. 10 and 11 Eliz. betwixt Bomelins and where the Record was in the same manner as this Record is And there the Plaintiff had Iudgment Wherefore c. And there being none on the Defendants parts to argue The Court upon hearing of the Record gave rule That Iudgment should be entred for the Plaintiff unless c. Dr. Atkins versus Gardiner Croke 's Reports 2 d Part p. 159. SCir fac Vpon a Iudgment in Debt upon the Statute 14 H. 8. by Dr. Langton President of the Colledge of Physicians in London who died before execution had and thereupon the Successor brought a Scir fac to have Execution It was thereupon demurred because the Scir fac ought to be brought by the Executor or Administrator of him who recovered and not by the Successor But upon hearing of the Record without argument the Court held That the Successor might well maintain the Action For the suite is given to the Colledge by a private Statute And the suite is to be brought by the President for the time being And he having recovered in right of the Corporation the Law shall transferr that duty to the Successor of him who recovered and not to his Executors The Action being brought for that he practised Physick in London without Licence of the Colledge of Physicians against the Statute of 14 H. 8. Wherefore it was adjudged for the Plaintiff A Recovery against Dr. Bonham according to the Exemplification 13 Febr. 6 Jacobi JACOBUS dei gratia Anglie Scotie Franc ' Hibernie Rex fidei defensor c. Omnibus ad quos presentes Litere nostre
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
but such onely which are for the better government of the old And also he said plainly that it appears by the Statute of 1 Mariae That the former Statutes shall not be taken by Equity for by these the President and Commons have power to commit a delinquent to Prison and this shall be intended if they shall be taken by Equity that every Gaoler ought to receive him which is so committed But when it is provided by 1 Mariae specially that every Gaoler shall receive such Offenders by this it appears That the former Statute shall not be taken in Equity And so he concluded that Iudgment shall be entred for the Plaintiff which was done accordingly College of Physicians versus Butler Sir William Jones's Reports p. 261. THe President of the College and Comminalty of the faculty of Physick London brought debt against one George Butler The Writ was quòd reddat Domino Regi Praesidenti Collegii ac Comminal ' facultat ' Medicor ' London Qui tam pro Domino Rege quà m pro seipso sequitur 60. li. quas eis debet And the Declaration was in the name of the said President by the said name qui tam pro Domino Rege quà m pro seipso sequitur c. which contained the Charter of H. 8. made Anno Regni sui 10. and confirmed by Act of Parliament Anno Regni sui 14. as it is contained in the Statute of 14 H. 8. and that the said Defendant minimè ponderans the said Statute or the Penalty thereof exercised the faculty of Physick in London although he was not admitted so to do by the President and the College or Comminalty of the faculty of Physick London by the space of 12 months before the said Action brought per quod actio accrevit eidem Domino Regi dicto Praesidenti qui tam pro dicto Domino Rege quam pro seipso sequitur c. ad exigend ' habend ' of the said Defendant pro dicto Domino Rege eodem Praesidente Colleg ' praedict ' 60 li. videlicet 5 li. pro quolibet mense praedict ' 12 Mensium praedict ' Tamen Desendens praedicto Domino Regi Praesidenti non reddidit unde the said President said that he was damnified to the value of 100 li. The Defendant pleaded the Statute of 34 H. 8. whereby liberty is given to every one of the Kings Subjects that hath knowledge and experience of the nature of Herbs Roots Waters or the operation of them by speculation or practice to exercise apply and administer to any external ulcer wound apostumation outward tumor sive morbo alicui alio any Herb Ointment Bath Pultess or Plaster according to the experience and science of the said diseases or other Maladies eisdem consimil or Potion pro calculo Strangury vel febr without any impediment any Statute or other thing to the contrary And saith that he was a Subject and having experience and science by speculation and practice in the nature of Herbs Roots and Waters applied and ministred to divers of the Kings subjects Herbs Ointment Bath Pultess Plasters and Potion to Vlcers Diseases Maladies Strangury and Ague talibus aliis morbis illis consimilibus prout ei bene licuit And to the residue pleaded Not guilty The Plaintiff replied to the first Plea and pleaded the Statute of 1 Mariae whereby the said Charter and the said Act of 14 H. 8. was confirmed in the whole Whereupon the Defendant demurred and shewed for cause of Demurrer that the Replication was a departure from the Declaration And upon Argument in the Common Pleas Iudgment was given by the opinion of all the Iudges for the Plaintiff and thereupon Error was brought in the Kings Bench. Two Errors were assigned the one was the departure the second was because that the Writ was in the name of the King and the President and the Declaration was in the name of the Informer also And after argument at the Bar by Council on both sides the Iudges delivered their opinions The Chief Iustice began and then Jones Whitlock and Crook They all said that Iudgment ought to be affirmed First they agréed that the Writ and Declaration were good and although some Precedents be that upon a penal Law the Writ be to answer the Informer qui tam pro seipso quà m pro Domino Rege sequitur Yet they thought that the most proper and better way of a Writ was to answer the King and Informer for the debt was given to them by moieties therefore it is not so proper to demand all for the Informer and yet to have a several judgment for the King and the Informer for the moieties and so is Partridge and Crokers case in the Comment But when it is by information there it shall be that the Informer informs for the King and himself Another exception was taken to the Writ because it is in the name of the President and not of the College also And also it was contrary in the end of the Declaration where it is said unde actio accrevit to the said King and President for to have 60 li. of the Defendant For the King one Moiety and for the President and College the other Moiety But it was adjudged by the Court that notwithstanding it was good for First although the Incorporation was by the name of President and College notwithstanding the suite is by the Charter given to the President and there may be a Corporation by one name to purchase lands and otherwise yet it shall sue by another name 11 E. 1. a Corporation was by the name of Master Wardens Brothers and Sisters of Rouncevill and by the said Patent it is said they should sue by the name of Master and Wardens of Rouncevill 2. Although that the Action is given by way of suite to the President onely yet the Recovery and money recovered shall be to the President and College therefore the Conclusion for to have the money to the President and College was held good The 3. point was resolved that the Plea in Bar was not good for the liberty given is disjunctive for outward medicines to use Plasters Oyntment Bathes c. and for 3 diseases to wit the Stone Strangury and Agues onely yet they jumble all together that he ministred the Ointments and Potions to all the said Maladies which cannot be for he may not administer a Potion unless to the said 3 diseases and no other 4. It was resolved that it was not any departure but that the Replication was subsequent and pursuant to the Declaration But for the main matter they said nothing to wit whether the Statute of 1 Mariae took away the force of the Statute of 34 H. 8. for they gave their Iudgment upon the Bar by reason it was naught Onely Crook spake to this point and it séemed to him that the Statute of 34 H. 8. is not repealed or avoided by 1 Mariae Butler versus the President of
use in his house according to receipts and therefore be not within the Statute 14 H. 8. And if a Gentleman had such receipts and made use of them for those diseases shall he be within this Statute 2. Admit that these diseases be within 14 H. 8. yet 34 H. 8. takes them out of 14 H. 8. clearly and for other things the Statute is onely in force as upon the Statute of 32 H. 8. in Knight's Case there the Stat. of Marlebridge is taken away although it be not named and although the words of 32 H. 8. be in the Affirmative 3. Vpon the pleading of the Statute 1 Mariae that recites 14 H. 8. it is said that in this Statute the words of pleading were continuaret the word staret being omitted that which continued in force ought to be in force at the same time which is but a confirmation of the Statute as it was at the time of the making of 1 Mariae and the Stat. 14 H. 8. is onely recited and some new privileges may be added to this confirmation but cannot be but of a thing which was in esse before 27 H. 8. 2. An Infant grants an Advowson and at full age confirms it the confirmation is void because the grant was void 21 H 7. 1. 12 E. 4. 59. And the Countess of Leicesters case in the Commentaries The reason of the recital of 14 H. 8. was for the addition of some new privileges scil that Gaolers should not permit prisoners to escape committed by the which they might do unpunished before and that all Kéepers of Prisons in London except the Lieutenant of the Tower ought to receive them that shall be committed which they might have refused before 2. Being but a confirmation for the greater part it shall not be a reviver for the lesser part As if Tenant for life of 20 Acres grant his estate in one Acre to I. S. and he in Reversion confirm the estate of tenant for life in all the 20 Acres to the Lessée and his heirs this is a confirmation but of the 19 Acres and although I. S. attorn yet his Acre doth not pass by way of Grant of the Reversion because that he this confirmation for the greater part 18 E. 3. 8. Husband tenant for life and the estate of the husband is confirmed to him and his wife and to their heirs the wife takes nothing and yet the husband is the man that ought to attorn if it would amount to a grant of the Reversion 3. This Statute of 1 Mariae doth not extend to repeal 34 H. 8. in any part because that 34 H. 8. is a general act and the Iudges ought to take notice thereof but 1 Mariae is a particular Statute and therefore doth not repeal the other which is general without express words Vide Holland's case For the point of special demurrer the replication wants form In all replications you ought to confess and avoid or traverse the barr here is implied an avoidance but no confession thereof 34 H. 8. 22. 7 H. 6. 2. where there is an avoidance but no confession therefore ill Lastly here is a departure Stat. de 14 H. 8. remains in force for all diseases but the Stone Strangury and Agues and for them their action lies upon the Stat. 1 Mariae and not upon 14 H. 8. therefore they ought to have named this Statute at the beginning 2 Ass 6. 37 H. 6. 5. 21 H. 7. 18. And for answer to the Iudgment cited in B. R. there the Iudgment was general and 1 Mariae was there pleaded with these words staret continuaret but here it is continuaret which is nonsense And I have credibly heard the case there was not defended omnino but onely argued for the Plaintiff Wherefore upon the whole matter he prayed judgment for the Defendant Davenport è contra Exception hath béen taken to the person that brought the action that the action was not brought according to the name of the College scil by the President and College but by the President onely 8 Report Dr. Bonham's case and although the words of the Statute be that the Action shall be brought by the President and College yet all Suites shall be in the name of the President And so be the Precedents Mich. 5 Jac. rot 299. and Mich. 5 Jac. rot 438. 11 H. 7. 12. 18. where a Charter of Corporation may be granted that they shall not be sued by any other name than their Corporation For the matter in law he said that he would observe the course in 3 Rep. 7. Haydon's case 1. What the Common Law was before the Statutes 2. The mischief to be remedied 3. What remedy is appointed by Parliament 4. The true reason of this remedy The common law before 3 H 8. was that every one might exercise any lawfull trade But there is a different consideration betwéen the practice of Physick and other Mechanick Trades In Mechanick Trades if any one undertake a thing and doth not doe it duly an Action upon the case lieth But in the practice of Physick it is otherwise for the mischief that falls upon the party takes away the remedy scil the death of the Patient by the unskilfulness of the Physician And for this inconvenience was 3 H. 8. cap. 11. made which Statute did not redress the mischief sufficiently because that the allowance or disallowance of Physicians was not referred to Competent Iudges for the fitness of every person should be tried by them which be experienced in the same kind as 8 H. 7. the Ordinary tries whether a Parson sit idoneus ad Ecclesiam but here the Bishop is to be Iudge of the skilfulness of Physicians Another imperfection in this Statute is that the penalty is given and to be recovered by every one that will sue and therefore the care was in no person and also there was not sufficient care for practisers in London There was care that none should practise c. in the negative but what care was there in the affirmative Sir George Farmars case 8 rep 126. Then came the Statute of 10 and the Statute of 14 H. 8. which do not extend to every one that giveth Physick but to him that professeth the practice thereof It hath béen said that 14 H. 8. doth not extend to restrain the practice of those diseases but they confess that they be within the letter of the Statute but not within the meaning but by the Common Law they be taken to be within Physick The Common Law takes notice of a Physician and Surgeon but for an Empirick he is not known to the Law See the Entries fol. 187. A Physician may have debt for his fées so may a Surgeon without doubt but where is there any precedent for an Empirick or Herbalist to have action An Assumpsit he may have but not debt Knowledge of Herbs pertains to Physicians and so of Waters for who can judge of Baths but Physicians and
of Parliament wanting the Royal Assent 267. The Court replied and shewed the different method of passing Acts of Parliament with the difference betwixt Statute Rolls and Rolls of Parliament 268. The Royal Assent not entred till after H. 5. in the Statute Rolls ibid. The Record brought by the College was not a Transcript of the bill upon which the Answer of the King was written but a Transcript of the Entry which was made upon the Statute Roll upon which it is not necessary that the Royal Assent should be entred and why 269. The 14 15 H. 8. appears by the Record certified to be a good Act of Parliament 270. The Royal Assent was entred at the end of that Session 271. If the Certificate be false the Defendant may bring his Action against the Clerk of Parliament or the Clerk in Chancery 271. The court of Kings Bench cannot cause the Parliament Rolls themselves to be brought into Court ibid. The second objection made by Huybert's Council was That the Issue was whether there was such a Record and that is to be tried by the Record it self now here the tenour of the Record was only certified and not the Record it self ibid. The Court answered that upon the Issue of Nul tiel Record a Certificate of the tenour was sufficient to prove the Issue 272 273. Iudgment entred for the College against Huybert 273. Needham The College declares against him upon an Action of Debt 273. His plea double 273 274. The College demurred and why 274. Iudgment entred against him ibid. Empiricks how described in the 3 H. 8. p. 1 2. not known to the Law neither can they have action 252. One set in the Pillory 306. Another set on Horse-back with his face to the Horse-tail the same tail in his hand as a bridle with a collar of Iordans about his neck ibid. The President and College bound by solemn Oath and conscience to prosecute them 318 321 325 328 330 352 353 387 412. A warrant sent from K. James his Council to the Magistrates of London for their Attachment 370. The Kings Letter to the President and Censors requiring them to put the Laws in execution against Empiricks 372. the King's Letter directed to the Lord Mayor Aldermen and Iustices of London requiring them to assist the President and Censors in suppressing Empiricks and illegal Practisers 374. Keepers of Prisons prosecuted for suffering any of them to make their escape 329 361 403 421. they ought not to practise Physick in prison 314. they cannot be bailed 344 345 469 470. How the College proceeded against them when they procured protections 338 339 352 355 391 423 424. They were summoned to appear upon penalty 354 355 369. punished for exposing bills purging diet-drinks purging confections or tables of the virtue of their Medicines 333 363 364 365 368 369 442 470 471. Several of them examined and rejected 315 323 324 326 331 334 337 342 364 368. their dangerous and evil practice 315 323 331 332 333 334 335 351 355 357 365 367 368 389 391 392 402 421 425 441. their unconscionable dealings 335 352 366 369 391 394 397 419 420 439 445 446. their egregious ignorance and knavery 322 326 330 334 337 354 355 384 385 390 395 399 400 404 405 421 445 446 467. Interdicted practice 322 323 333 337 346 347 356 364 368 384 389 394 395 405 422. Required to give bonds not to practice 314 315 316 319 322 323 324 325 326 332 333 334 342 347 349 355 368 375 386 387 401 420. Letters testimonial granted against them 332 392 403 442. Some of them fined others fined and committed to prison 313 314 315 316 319 320 322 323 324 325 326 327 333 334 337 338 341 342 349 352 354 356 357 365 369 384 385 387 388 391 401 404 413 420 422 439 446 466 467. Sued or prosecuted by the College 147 161 162 221 225 229 259 261 273 275 305 308 310 313 314 319 339 356 387 388 391 393 394 421. they may be sued for 2 years practice 419. Countrey Empiricks sued or prosecuted by the College 309 310 313 314. What the Common Law against Empiricks was before Acts of Parliament were made against them 251. F. Fellows of the College Forty constituted by the last Patent 70. the names of them 40. they were to continue for life if not removed for cause 71. How to be chosen 77. Power to amove any of them 78. they are to be sworn duly to execute 80. to take the Oaths of Obedience and Supremacy ibid. Fines All fines forfeitures and amerciaments to be approved by the next College Court and registred before any levy is made c. the 10 l. and 5 l. excepted 100 101. An appeal may be made to Visitors appointed by the King within one month after the fine is approved 101 102. These Visitors are to receive and determine appeals c. 102 103 104 105 106. H. Hospital of Christ Church No Physician should be chosen into that Foundation but one approved by the College 418. L. Licence A Licence from the Elects will not justice practice in London 362 471. The Bishop's licence cannot do it 471 472. the College's licence not to be allowed to those who have been in Holy Orders 376 401 443. Their obtaining a Licence is a general detriment 443 444. M. Midwives A Petition presented by them to the College 463. The College's Answer to their Petition which was by them delivered to the Archbishop 465. O. Oaths of Obedience and Supremacy to be taken by the President Fellows and Officers of the College 80. Power given to the Elects or to any two of them to administer these Oaths to the President 81. The President to administer them to the Fellows and all Officers 82. P. Physicians By whom to be allowed for City and Countrey 2 3 8 12. All Physicians practising in the several Dioceses out of London Graduates excepted must be examined by the President and 3 of the Elects 12. they are to be licensed by the President and Elects or any four of them 96. they are first to be examined and if able to be approved by Letters testimonial under the hands of the Elects 97. Power given to the President and Elects to summon examine and give testimonials and to reject unfit persons 97. None are to practise in the Countrey till they be licensed under pain of 5 l. per mens and how to be recovered 98. None to practise in London or within 7 miles of the same without licence under their Seal 8 9 343 344 345. Practice of Physick what is to be esteemed such 281. President of the College His office and duty 7 8. Power allowed him to make a Vice-President 74 75. He is to be sworn duly to execute his office 80. to take the Oaths of obedience and Supremacy ibid. to administer them to the Fellows and all College Officers 80 81 82. R. Register made by Patent 55 109. He is to be
and doe by all such just and lawfull wayes and meanes as shall be requisite or necessary for the better and speedier effecting of the premises in all things according to the best of their Iudgments and to the truth of the matter appeareing before them AND FURTHER that it shall and may bée lawfull to and for the said Visitors or any two or more of them for the tyme being from tyme to tyme and att any tyme after such cause or matter heard or determined by them or any two of them as aforesaid to remitt and certifie back again to the said President Fellowes and Cominalty of the said Colledge of Physitians their judgment and proceedings therein respectively To the end that due execution and proceeding may bée had and made thereupon according to the tenor true intent and meaning of these presents AND Wee will and by these presents for us our heires and successors doe constitute ordaine declare and graunt that all and every Iudgment Sentence and Decree hereafter made or to bée made by the Visitors aforesaid or any two or more of them upon any Appeale or Appeales of in or concerning the premises shalbée and stand firme and good and bée binding and concluding to all and every person and persons party and parties concerned therein respectively and noe further or other Appeale or releife to bée had sought made or given therein in any Court of Lawe or Equity or elsewhere or otherwise however PROVIDED allwayes and Wée will and by these presents for us our heires and successors doe constitute ordaine and grant that in case of neglect or delay of prosecution of any Appeale or Appeales hereafter to bée had or made in the premisses according to the tenor of these presents or that Iudgment Decree or Sentence bee not from tyme to tyme had and obtayned in all and every such Appeale and Appeales at the prosecution of the partie or parties respectively soe Appealing within six Moneths after every such Appeale or Appeales from tyme to tyme respectively made That then and in every such Case it shall and may bee lawfull to and for the President Fellowes and Commonalty of the Colledge aforesaid and their Successors and to and for the said President and Censors or Vice-president and Censors of the same Colledge for the tyme being in the absence of the President or any three of them as is above mentioned to act and proceed in and upon every such Matter Cause Iudgment Sentence or Decree on which such Appeale or Appeales shall bee soe made as aforesaid and neglected delayed or not determined in tyme by the Visitors as aforesaid in such manner and to all intents and purposes as if such Appeale or Appeales had never byn or byn made Any thinge in these presents conteyned to the contrary thereof in any wise notwithstanding AND WEE DOE by these presents for us our heires and successors further graunt constitute and ordeyne that itt shall and may bee lawfull to and for the President Fellowes and Cominalty of the Colledge of Physitians aforesaid and their Successors and to and for the President and Censors or Vice-president and Censors of the same Colledge for the tyme being in the absence of the President or any three of them as is above mentioned to act doe and proceed by way of Action Distresse Imprisonment or otherwise in and upon all and every matter cause and thing judgment sentence and decree whatsoever hereafter to bee made given ratified or confirmed by the Visitors aforesaid or any twoe or more of them in or upon any Appeale or Appeales to them to bée made as aforesaid and by them from tyme to tyme remitted as aforesaid in such and the like manner to all intents and purposes as by these presents they or any of them may or are impowered to doe in the same or the like Cases when noe Appeale or Appeales shall bée had or made therein Any thing in these presents conteyned to the contrary thereof in any wise notwithstanding PROVIDED alsoe and our will and pleasure is That noe person or persons whatsoever shall att any tyme hereafter bee ympeached sued fyned amerced or otherwise punished by vertue of these presents or for any offence or other matter cause or thing whatsoever therein specified or conteyned unlesse hee or they respectively bee from tyme to tyme impeached sued fyned amerced or otherwise questioned or punished for such his or their offence or other matter cause or thing aforesaid within one whole yeare next after the same shall be committed or done or such person or persons lyable to bée questioned or punished for the same AND WEE DOE further of our especiall grace certaine knowledge and meere motion for us our heires and successors give and grant unto the said President Fellowes and Cominalty of the Kings Colledge of Physitians aforesaid and their Successors all and singular the Fynes Amerciaments Penalties and Forfeitures and every of them by virtue of these presents or any Act of Parliament hereafter to bee made in pursuance or Confirmation thereof or of any the Letters Patents or Acts of Parliament Ordinances Decrees or Impositions aforesaid hereafter to bee assessed forfeited sett or imposed upon any Physitian or Practizer of Physicke as aforesaid or to bee forfeited sett or imposed upon any Apothecary Druggist or other person or persons whatsoever for or by reason of any misdemeanor offence contempt or default whatsoever before in or by these presents or any the Letters Patents Acts of Parliament Ordinances Decrees or Impositions mentioned or specified to bee ymployed and disposed as hereafter in and by these presents is declared The penalties and forfeitures of the Recognizances hereafter in and by these presents mentioned and directed to bee taken in the name of us our heires and successors allwayes excepted AND that the said President Fellowes and Cominalty of the Colledge of Physitians aforesaid and their Successors shall and may by the name of the President Fellowes and Cominalty of the Kings Colledge of Physitians in the Citty of London att all tymes hereafter and from tyme to tyme in any of our Courts of Record according to the due course of Lawe sue for recover levy and take execution of and for the said Fynes Amerciaments Penalties and Forfeitures and every or any part thereof or otherwise levy or obtaine the same and every part thereof Except the said penalties and forfeitures of Tenn pounds and five pounds per Mensem by Imprisonment of the Bodies or distresse and sale of the Goods of the persons offending as aforesaid in manner and forme aforesaid AND FURTHER Wée will and hereby doe order and direct that all and every summe and summes of money had made accrewing or ariseing by or out of the same Fynes Forfeitures Penalties and Amerciaments any or all of them other then the said forfeitures of Tenn pounds per Mensem and five pounds per Mensem the just and reasonable charges and
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
of the Diocess The reason of the difference is for that London is the heart of the Kingdom And here the King and his Court the Magistrates and Iudges of the Law and other Magistrates are resident And with this agrées 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 onely 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 by the Statute of 1. Mary 1 Parliament Chap. 9. That the Gardians Gaolers or Kéepers of the Wards Gaols and Prisons within the City and Precinct of it shall receive into their Prisons all such person and persons so offending which are sent or committed to them and those safely shall kéep without Bail till the party so committed shall be discharged by the said President or other person by the said College to that authorised By which it appears that the Gaolers and Kéepers of Prisons have power to retain such which are committed That then the President shall have power to commit for things implied are as strong as things expressed as it appears by the Com. Stradling and Morgans Case And also in the Earl of Leicester's Case where it is agréed that Ioynture before Coverture cannot be waved and this is implied within the Statute of 27 H. 8. And so the Statute of 2 E. 6. provides that after seven years Tithes shall be paid by which it is collected by Implication that during seven years Tithes shall not be paid And so he prayed Iudgment for the Defendants Dodridge Serjeant of the King for the Plaintiff said That the Statute of 24 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 Plaintiff 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 thereupon they forbad him and being sent for and not appearing he 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 lawfull 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 College may restrain a Doctor of Physick of his Practice 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 end of his work And this intent shall be expounded for thrée Reasons apparent in the words contained in the Grant First Tempestivè improborum Conatibus occurrere Secondly Improborum hominum qui Medicinam magis avaritiae suae causâ quà m ullius bonae conscientiae fiduciâ profitebuntur audaciam compescere Thirdly which would invite learned men to practise here Collegium perpetuum doctorum gravium virorum qui Medicinam in Urbe nostra Londino Suburbiis infra septem millia passuum ab urbe quaquaversus publicè exerceant institui volumus imperamus And further he saith that there are thrée sorts of men which meddle with the body of a man The First is the Learned man which reads all books extant and his knowledge is speculative and by that he knew the nature of all Simples The second is Practick the knowledge of which is onely his experience he may give probatum est but is ignorant of the cause of the disease and the nature of the things which he applies for the cure of it And the third is an Impostor which takes upon him the knowledge which he hath not And every of these the College may punish for Malè utendo faciendo vel exequendo by which way they will And this was not the first care which was had for in the 9 H. 5. was a private Act made for Physicians by which there is great regard to them which are learned and educated in the Vniversity And for that the Act provides that they shall not be prejudicial to any of the Vniversities of Oxford and Cambridge and with this agrées 3 H. 8. 11. and the priviledge of them And the Docti graves homines mentioned in the Letters Patents are the learned men mentioned in the Act for the Statute provides that they shall punish according to these Statutes and late Edicts And by the former Laws the Vniversities and their priviledges were excepted and by their former Statutes the Letters Patents ought to be directed for it is referred to them Also the Statutes of this Realm have always had great respect to the Graduates of the Vniversities and it is not without cause for sudavit alsit and hath no other reward but this Degrée which is Doctor And for that the Statute of 21 H. 8. prefers Graduates and provides that Doctors of Divinity or Batchelors shall be capable of two Benefices with Cure without dispensation And so 13 Eliz. provides that none shall be presented to a Benefice above the value of thirty pound per annum if he be not a Doctor or Batchelor of Divinity And to the objection that none shall practise in London or seven miles circuit of it without licence that this clause shall be expounded according to the matter and to that he agréed for the other branches of the Statute are made to cherish grave and learned men and therefore it shall not be intended that this branch was made for the punishment of those but of others which the Statute intended to punish And to the second Objection that every Doctor is not the learned and grave man intended within the Statute for the knowledge of many of them is onely speculative without practice to that he answered That all their study is practice and that if they have no practice of themselves then they attend upon others which practise and apply themselves to know the nature of Simples And to the third Objection that in London ought to be choice men for the Statute appoints that they shall be examined by the Bishop and Dean and four others at least and for that there is a more strict course for them than in other places to that it is agréed But he said that in the Vniversity there is a more strict course than this for here
he ought to be publickly approved by many after he hath béen examined and answered in the Schools to divers questions and allowed by the Congregation house And 35 H. 6. 55. Doctor is no addition but a Degrée quia gradatim progressione Doctrinae provenit to that and that Doctor is Teacher and that he was first taught by others as a Scholar and afterwards he is Master and Doctor dicitur à docendo quia docere permittitur and they are called Masters of their faculty and that the original of Doctor came of the Synagogue of Iews where there were Doctors of Law and it appears that they had their Ceremonies in the time of H. 1. And when a man brings with him the Ensign of doctrine there is no reason that he should be examined again for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practice And to the second point that he propounded it séems that the justification is not good which is Quia non comparuit upon summons he was amereed and ordered that he should be arrested and being arrested and examined if he would submit himself to the College he answered that he was a Doctor and had practised and would practise within the said City as he conceived he might lawfully do and for that shewing of this Case he was committed to prison And he conceived two things upon the Charter First that it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and secondly that it impowers to imprison the Empirick and Impostor And so prayed Iudgment for the Plaintiff And after in Hilary Term in the same year this Case was argued by all the Iustices of the Common Bench two several days The first day it was argued by Foster Daniel and Warburton Iustices at whose arguments I was not present but Foster argued against the Plaintiff and Daniel and Warburton with him that the action of false imprisonment was well maintainable And the second day the same Case was argued again by Walmesley Iustice and Coke Chief Iustice and Walmesley argued as followeth that is That the Statute of 3 H. 8. was in the negative that no person within the City of London or seven miles thereof take upon him to exercise or occupy as Physician or Chirurgeon c. And he doth not know in any Case where the words of the Statute are negative that they admit any interpretation against that but one onely and that is the Statute of Marlebridge Chap. 4. which provides that no Lord shall distrain in one County and the beast distrained drive into another County In which case though the words are negative yet if the Lord distrain in one County he may drive the beasts to his Mannor in another County of which the lands in which the distress was taken were held But it is equity and reason in this Case that the Statute should admit such exception for it is not of Malice but that the beasts may remain within his fée But in the principal Case there is not the like reason nor equity And also the King H. 8. in his Letters Patents recites as followeth that is Cùm regii officii nostri munus arbitremur ditionis nostrae hominum felicitati omni ratione consulere id autem vel imprimis fore si improborum conatibus tempestivè occurramus apprimè necessarium duximus improborum quoque hominum qui Medicinam magis avaritiae suae causâ quà m ullius bonae conscientiae fiduciâ profitebuntur c. By which it appears that it is the office of a King to survey his Subjects and he is as a Physician to cure their maladies and to remove Leprosies amongst them and also to remove all fumes and smells 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 he discharges not his office if his Subjects live a life but if they live and flourish and he hath cure as well of their bodies as of their lands and goods for health for the body is as necessary as virtue to the mind And the 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 Vniversity 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 Surgeon within the City of London and seven miles thereof 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 convenient And the reason of this difference as he conceived was for that in this City and the said Precincts the King and all his Councill and all the Iudges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject to infection and the air more pestiferous and therefore there is more necessity that greater care diligence and examination be made of those which practised here in London and the Precincts aforesaid than of those that 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 therefore 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 Vniversities nor of those which are Graduates there and therefore they shall be tried by the said Act and the Statute of 14 H. 8. Chap. 5. onely excepts those which are Graduats of Oxford or Cambridge which have accomplished all things for their form without any Grace and if this exception shall be intended to extend to others then all the Vniversities shall be excepted by it and such exception was too general And over he said that the Plaintiff gave absurd and contemptuous answer when he being cited
sued upon the Stat. 5 Eliz. cap. 4. for using any Art or Mystery in which the party hath not béen brought up c. shall be sued and prosecuted in the General Sessions or Assize of the same County where the offence shall be committed If such offence be committed in Middlesex the suite may be in the Courts at Westminster for the intent was onely to limit the County and not such Courts And so he prayed Iudgment for the Defendant Bramston contra for the Plaintiff And as to the last exception that the Information doth not lie in this Court he answered that it cannot be before Iustices of Oyer and Terminer nor ever was so For although the words do not limit this at Westminster yet there is another thing in the case that limits this And this ground is also in Gregories Case and that is that the King ought to have Moiety of the forfeiture and therefore it ought to be where the King's Attorney may better attend 2. This is not an Action popular but given onely to the College and it is a debt to them for which they may sue by Original And it was never the meaning of the Statute to put them to sue before Iustices of Oyer and Terminer or of Assize and so revera the Statute speaks onely of popular Actions upon penal Laws and such which Informers may have But before he came to matter in Law he took exceptions to the Barr for if it was insufficient and no Barr to the Declaration then if it were admitted that the Replication is bad yet the declaration being good the Plaintiff shall have Iudgment thereupon Butler pleaded 34 H. 8. to enable him to practise but when he declares what manner of practice he used he hath excéeded the licence of this Statute by his own Confession and sheweth such practice as is within the 14 H. 8. The words of the 34 be That he may minister to any outward Sore or Swelling or any the like c. and that he may give drinks for the Stone Strangury and Agues Butler shewed that he had experience in Herbs and that he gave Oyntments Plasters Poultesses and Potions to Sores Maladies the Stone Strangury Fevers and such like Potions by the 34 be restrained to 3 Cases But he confesseth that he gave them not onely in those 3 Cases but in others and the party was afflicted with outward Sores Stone Strangury and Agues were common known diseases But others as outward Sores may be with inward distempers more dangerous wherewith he ought not to meddle And he ought to have pleaded in another manner also for he saith Diseases Fevers and such like and the words such like ought to refer to outward Sores not to other diseases And he sheweth that he gave Potions and this ought to have béen with an Anglicè drinks as with Carduus Benedictus Century Possett But the Statute doth not allow Potions Also the word is Agues and he saith Fevers and there is a great difference betwéen Agues and Fevers Agues have intermission Fevers none and a Fever may so inféeble a man that it is not fit that such as Butler give him Physick But he ought to have said Febribus Anglicè Agues And then if the Plaintiff hath made a good declaration and the Defendant an insufficient barr if the Plaintiff upon his replication destroy his declaration he shall not have Iudgment But if the barr be insufficient and the replication onely vain and idle he shall have Iudgment upon his declaration 8 Rep. Dr. Bonham's Case the main point adjudged And 6 Rep. Francis Case the difference is taken where the replication was not well and made bad as to matter in Law It was said 34 H. 8. doth not meddle with the 14 H. 8. And it is plain that the 34 H. 8. did not intend to meddle but with Surgeons for it recites the mischief of their covetousness and therefore it appeareth that it was not the meaning of the Statute to take any thing from the Physicians But the purview of the Statute 34. meddles with the 14 H. 8. that was a cause of 1 Mariae for if credit may be given to Mr. Butler it gives liberty to every one that hath skill in Herbs to minister Potions Outward applications appertain to Surgeons but the giving of Potions appertain to Physicians for Potions plainly be Physick and then 34. takes therefrom that which was given to the College by the 14 H. 8. and if it be permitted that they may give Potions for the Stone c. all the abuses before remedied shall be restored This being in the purview of 34 H. 8. 1 Mariae was made and repeals all that the 34 H. 8. hath taken away from 14 H. 8. And I do agrée if two Statutes be made in the affirmative and the latter controll the former such construction shall be made that both may stand But if the last be Negative either in words or intention the former shall be repealed And here be such words that it is not possible that the other should stand 1 Mariae the words be that it confirms 14 H. 8. so that it shall be in force in every Clause And it is all one as if the words of 14 H. 8. had béen contained within this Stat. 1 Mariae And then how can the 14. and 34. stand together Also the very purpose of this Stat. 1 Mariae is to repeal 34 H. 8. For the rule Dyer 347. is that when 2 Statutes be and one séems to cross the other in substance and no Clause de non obstante in the latter exposition shall be made so as both may stand together if it may be But here is such a Clause notwithstanding any Statute c. and the purpose is apparent to repeal the 34 H. 8. in that part which giveth liberty to unskilfull ignorant persons to practise Physick And 1 Mariae doth stand upon 2 parts 1. It is a confirmation of 14 H. 8. 2. It gives the College further privilege And this part of the Statute were vain and idle if 34 H. 8. as to Physick were not repealed and some such thing was in the minds of the makers of 1 Mariae when they say any Statute to the contrary notwithstanding and there is not any Stat. after the 14. that impeaches this but the Stat. of 34. 2. It cannot be any departure here And I agrée the reasons before But the replication here maintains the title in the declaration and is no new matter and if it were yet it is raised by the barr and then it ought to be allowed in the replication For the Statute of 14 H. 8. being good untill 34. then the Stat. 1 Mariae restores and maintains 14 H. 8. 21 H. 7. 18. A Feoffment was pleaded in barr the Plaintiff shews that he that made the Feoffment was within Age the Defendant rejoyns that there was a custome that Infants of such an age there might make
part for we labour only for part so that 14. is in force as it was at first in every branch thereof notwithstanding 34 H. 8. for 1 Mariae restored this and that which the 14. gives is Medicines not as it is generally to be intended and so to include Chirurgery but all that was proper to Physicians 34 H. 8. although it allow men to give Medicines yet it is at their perils for if a man die under their hands it is as it was at Common Law By the Statute of 34. to repeal all of 14. which was contrary to 34. which does not in the least name the 14. yet it is repealed for so much as concerns Agues c. The Statute of 33 H. 8. for trial of Treason is repealed And after by 1 Mariae our Case is a far stronger Case that every Clause shall be in force notwithstanding any Statute c. these words ought not to be void if by construction they may be made to stand and no Statute withstands this Statute but 34 H. 8. and therefore all which this Statute takes away ought to be restored He confessed the case put of Confirmation of 32 H. 8. Statute of Wills that this doth not take away the Stat. of 34. for it is but an explanation and one being confirmed the other is confirmed And it is plain that the 13 Eliz doth not take away 1 Eliz. for it was in the affirmative and commenced after and therefore it is expounded not to extend to the Bishop As the Statute of contra formam collationis doth not include the Bishop as it was there adjudged And he cited Langton's Case where this point which is the point of departure was adjudged and 10 and 11 Eliz. rot 248. B. R. action by the College versus Eliheus Cornelius and upon these very points Iudgment was given for the College Also the Barr is ill Allow the Statute of 34. were in force yet the Iustification is ultra that which the Statute gives and took the same exception as before 2. There is a departure which was so ruled in Langton's Case and is so in reason Also this is a proper departure when a man relinquishes the title upon which he grounds himself and betakes himself to another And we have not made a departure our title is 14 H. 8. which makes good the Letters Patents then if you repeal the Letters Patents we ought to repeal the 14 H. 8. and it would be absurd for us to commence with 1 Mariae for then we ought to have recited all the Statutes 37 H. 6. 5. 21 H. 7. 25. 18. If a man avow for rent granted by I. S. the other saith that I. S. had nothing in the Land at the time of the Grant the other shews that he was seifed to his use this is a departure for his title to the first was by the Common Law and therefore seeing the Statute was his title it ought to have béen shewed But in our Case the Statute 1 Mariae is not our title to the action but onely removes the impediment 6 H. 7. 8. A condition is pleaded in destruction of a Feoffment and a release pleaded to destroy the condition and no departure but the Feoffment stands with a good title So in our Case Hill 4 Jac. intrat H. 3. Jac. Bagshaw versus Gower Trespass for chasing his Cattle 14 Maii 1 Jac. The Defendant Iustifies as an Estray and that 16 Maii 1 Jac. he delivered them The Plaintiff replies that 15 Maii he laboured and worked them upon which the Defendant demurres This was no departure but the working maintained the Trespass done 14. and made him Trespasser ab initio Mich. 23 24 Eliz. C. B. rot 2297. Pledal and Clark Trespass for chasing his Cattle in Barkshire the Defendant justifies damage fezant the Plaintiff replies that afterwards he drove them into another County scil Oxford c. and sold them the Defendant demurred and the declaration was in Barkshire yet the sale made him a wrong doer ab initio Where the Replication maintains the title and onely removes the impediment it is good Pasch Jac. B. R. Action upon the Case Wood and Hankford for disturbing him of Toll and intitles himself by Letters Patents of H. 6. The Defendant pleads 28 H. 6. which restores all Franchises The Plaintiff replies 4 H. 7. which revives the first Statute and adjudged no departure for if he pleadeth the resumption and the reviver if there were 20 he ought to plead all Then in our case all is gone and we know not whether he ought to justifie one kind or other 3. For the Iurisdiction This Court is most proper for the Informer and he cited Gregories Case and said If the King might elect to sue in what Court he pleased the Informer might also But however it is out of the Statute of 21 Jac. The title is for the ease of the Subject The preamble c. 18 Eliz. cap. 5. there it appeareth that the common Informer ought to inform in proper person the College was never so nor cannot and in common Information there ought to be the day of the Information c. and there is not any day here 25 Eliz. 12. Knevet informed against Butcher and afterwards was non-suited for which the Defendant prayed to have Costs c. and there the Plaintiff alledged that he was not a common Informer insomuch that this was the first Information that he ever exhibited yet ruled against him insomuch that it was upon a penal law where every one may have the action But in our case it is not so because this is no such Information or Informer within the Statute 40 Eliz. Agar informs against Cavendish and others upon the Statute of 8 E. 4. for Liveries which appoints the Information in C. B. B. Reg. and that they may sue as many as they will and the Exchequer is not named there but inferiour Courts be and Iudgment was given for the Informer But after in a Writ of Error brought it was adjudged that the Information doth not lie in the Exchequer but they resolved that the King might have sued there and therefore the Iudgment shall be good to intitle the King to the intire sum forfeited Richardson said that it was a hard case to prove the King may sue in any Court and he cited 14 E. 3. Countess of Kent's case 40 Ass 35. the King may sue for Spiritual matters in the Temporal Court as a Legacy c. Hill 36 Eliz. rot 135. Hammond Informant upon a penal Statute and died and upon motion by the Attorney General Iudgment was given for one Moiety for the King notwithstanding And the difference betwixt this and Agar's Case that in this case the Informer was well intitled to a Moiety but there not Statutes which take away Iurisdictions of the Courts at Westminster ought to be taken strictly Mich. 44 45 Eliz. Buck informs in the Exchequer for transporting of raw hides in Middlesex
plead and be impleaded by the name of President onely and the Action shall be brought by that name by which the King enables them to bring their Action and to plead and to be impleaded as 11 H. 7. 27 28. is so that here is a good action and well grounded and by a good name And as to the Plea in Barr it is insufficient because he hath not pleaded according to the Statute For his plea ought to have béen applyed to the Statute for by the Statute the power there given is to administer to outward Sores or Diseases any Ointments Plasters c. and other like and this ought to be according to the skill and knowledge And here the Defendant saith that he had knowledge in the nature of Herbs Roots and Waters c. and did apply Oyntments Potions c. for the Stone c. and such other diseases and he ought to have said according to his knowledge in those diseases and not in other like c. 2. The Administration ought to have béen to outward Tumours c. and here outward is omitted and he hath pleaded generally whereby his plea goeth to the whole and so mistaken 3. Where potions may be applied to the Stone Strangury and Agues the Defendant hath pleaded Potions pro ulceribus morbis c. talibus consimilibus which is a more large Authority than the Statute limits And for these the plea is ill It is a rule that a plea ought to be issuable but this is not as it is pleaded for the Defendant here ought to have distinguished his plea and have justified in part as in applying outward Plasters c. to outward Diseases and Potions to Stone Strangury and Ague As to the Replication it hath béen objected that it is a departure To which I say that if any new matter be pleaded it is a departure but here is none For the Replication which supports and inforces the Declaration is by the Statute 1 Mariae and this could not have béen alledged in the Declaration and there was no reason to shew the Statute 1 Mariae untill the Statute of 34 H. 8. was pleaded by the Defendant And as to the matter in law that is how far the Statute of 34 H. 8. gave liberty against the Statute 14 H. 8. to what persons and for what things is the Question And upon consideration of all the law of 34 H. 8. we be of opinion that this Statute doth not reach neither in Words nor in Intent and meaning to give liberty to any person that practises or exercises for lucre and profit and it is apparent by the preamble and the Statute also that this was made principally against Chirurgeons which were covetous c. And therefore the Statute hath limited who should practise and for what diseases and the parties licensed thereby were those which were good honest people as old Women and such as would give neighbourly Physick for charity and piety and not such as look for gain thereby as Empiricks that do not doe any thing for piety and charity So that this Statute excludes all those that take any money or gain And this Statute which was intended against Surgeons in truth helps them for it gives to them liberty to give Pills and Potions as well as to apply outward Medicines to outward diseases and such construction shall be made And Surgery is onely that which is to be done with the hand c. And moreover we be of opinion that if this Statute of 34 H. 8. had abridged the Statute 14 H. 8. yet that the Statute of 1 Mariae hath setled all on foot again of 14 H. 8. in as large manner as it ever was before for it concludes any Act to the contrary notwithstanding And it was made to suppress unskilfull men But this Statute of 34 H. 8. and Dr. Langton's case Mich. 3 Jac. B. R. rot 438. versus Gardiner is express in this point yet there the plea was better than this is And yet after it had depended 3 years judgment was given against the Defendant With this he concluded and commanded Iudgment to be entred for the Plaintiff against the Defendant College of Physicians against Bugge In magno Rotulo de Anno xxiii Regis Caroli in Item Adhuc Item Item Res London PRaesidens Colleg ' Communitas Medicor ' Lond ' deb ' 27 li. 10 s. de medietate 55 li. versus Johannem Bugge de Parochia Ecclesiae Christi London recuperat ' per Judicium Cur ' quia exercuit facultatem Medicin ' ibidem per spatium xi mens integr ' non existen ' admiss ad exercend ' occupand ' dict' facultat ' medicin ' per Praesident ' Collegium seu Communitat ' facultat ' Medicin ' London literis sigillo suo communi sigillat ' contra formam Statuti in hujusmodi casu edit ' provis super ipsos onerat ' virtute Ordinis hujus Scacc ' Dat' tertio Julii Anno 15 Regis Caroli But the said sum of 27 li. 10 s. is allowed to the President and College of the faculty of Physick within the City of London by Letters Patents under the Great Seal of England bearing date the eighth day of October in the fifteenth year of the late King James of England and of Scotland the Fifty first and by Iudgment of the Barons of this Court of Publick Exchequer entred amongst the Records of Easter Term in the Seventh year of the Reign of the late King Charles in the Custody of the first Remembrancer there Roll the xxiiii And they are quitt Ex. by He. Croke Clerk of the Pipe D. Termino Sancti Michaelis anno regni Domini Caroli secundi nunc Regis Angliae c. xxvii rot 530. MEmorand ' quod die Sabbati prox ' posttres septimanas Sancti Michaelis isto eodem Termino coram domino Rege apud Westm ' ven ' Praesidens Collegium seu Communitas facultat ' Medicinae London qui tam pro domino Rege quà m pro seipsis sequuntur per Franc ' Scot Attorn ' suum protuler ' hic in Cur ' dicti domini Regis tunc ibidem quandam billam suam versus Adrianum Huybert alias Hybert in custod ' Marr ' c. de placito debiti Et sunt pleg ' de prosequend ' scilicet Johannes Doe Ricardus Roe Quae quidem billa sequitur in haec verba ss London ss Presidens Collegium seu Communitas facultat ' medicinae London qui tam pro domino Rege quam pro seipsis sequuntur queruntur de Adriano Huybert alias Hybert in custod ' Marr ' Maresc ' domini Regis coram ipso Rege existen ' de placito quòd reddat eidem domino Regi ac praefat ' Praesident ' Collegio seu Communitati qui tam c. centum libras legalis Monet ' Angl ' quas eis debet injuste detinet pro eo videlicet quòd cum Henricus Octavus nuper Rex Angliae per literas
of the College Resp They all agréed That they are subject to the government and correction of the College by an express clause of the said Charter enacted which giveth to the President and College Supervisionem Scrutinium Correctionem Gubernationem as well of all persons using the practice of Medicine within the City c. Quest 4. If they may not practise without admission of the College as their Letters Patents plainly import Then whether such Graduates are not subject to the examination without which there were never any admitted and without which the admission cannot be approved because every Graduate is not absolutely good ipso facto Resp It was resolved by all That all that practised or should practise Physick either in London or within the compass of 7 miles of the same must submit themselves to the examination of the President and College if they be required thereunto by their authority notwithstanding any licence allowance or privilege given them in Oxford or Cambridge either by their degrée or otherwise Concerning Punishment and Correction against Offenders Quest 1. Whether the President and four Censors together or the Censors alone may not commit to Prison without bail or mainprize all Offenders in the practice of Physick according to the Statute of primo Mariae and how long whether till he have paid such Fine as shall be assessed upon him or have submitted himself to their Order and in what manner Resp They all resolved That for not well doing using or practising the faculty or Art of Physick or for disobedience or contempts done and committed against any Ordinance made by the College by virtue and according to the power and authority to them granted they may commit the Offenders without bail or mainprize as the words of the Statute are Which they all resolved could not be altered or interpreted otherwise than the express words of the Statute are Quest 2. Whether they may not commit to prison for disobedience and contempt of the private Statutes and Ordinances of the College made for the better government thereof and for not payment of such reasonable Fines as shall be imposed by the President and Censors for maintenance of the said College among the Members of the same College Resp They all resolved That the President and College might commit to prison for offences and disobedience done or committed against any lawfull ordinance made by the said College and might impose reasonable Fines for the breach thereof and detain the parties committed till these Fines were satisfied Quest 3. Whether they may not justly take upon every admission a reasonable sum of money for the better maintenance and defraying of necessary expences as in other Corporations Resp They all held That they might take such reasonable sums Quest 4. Whether those onely are to be committed that are offenders in Non bene exequendo faciendo utendo facultate Medicinae as in the Letters Patents and such as are sufficient and not admitted are to be sued for 5 li. a month and not be committed Resp They all held That by the Charter and Acts of Parliament they might commit Offenders and Practisers that offended in Non bene exequendo faciendo utendo facultate But for the committing to prison of such as practise not being admitted by the College they held it doubtfull for that the Charter and Statute do in that case inflict a punishment of 5 li. a month against such practiser without admittance by the College But they all resolved That if the President and College made an Ordinance to prohibit the practising of all without admittance under the Common Seal of the said College That for breach and contempt of this Ordinance the President and College might both impose a reasonable Fine upon the Offender and commit him without bail or mainprise Quest 5. Whether refusal to come to be examined upon warning given be not a sufficient cause of Commitment Resp They all resolved That if the College do make an Ordinance That if any practiser of Physick in London or within 7 miles of the same shall obstinately or wilfully refuse to be examined by the Censors of the College in non bene exequendo faciendo utendo the art of Physick or his Medicines or Receipts that the said President and Censors may commit him to prison there to remain without bail or mainprise untill he be delivered by the President and Censors and to forfeit and pay to the said College some reasonable sum of money That the same Ordinance will be good and lawfull And if any after shall offend contrary to the said Ordinance the President and Censors may lawfully commit such Offender to prison there to remain without bail or mainprise untill he shall be delivered by the said President and Censors It pleased the Lord Chancellor to move these questions to the Judges as material for the execution of the Statutes 1. Quest Whether the party committed for unskilfull or temerarious practice may have an Action of false imprisonment against them and thereby draw in question or issue the goodness or badness of the Physick Resp All resolved That the party so committed was concluded by the sentence and Iudgment of the 4 Censors of the College of Physicians 2. Quest Whether if any not admitted do practise Physick within London or 7 Miles of the same but once twice or thrice in one month be an offender against the Charter and Statutes of the College Resp All resolved he was if he be a professed Physician These I conceive to be the resolutions of their Lordships and the Judges upon the Questions which I humbly refer to themselves to affirm or disaffirm John Crook Tho. Foster Tho. Harries A brief account of the College of Physicians Case drawn up in relation to their finding of Arms keeping of Watch and Ward or bearing any Parish offices IN the roth year of King H. 8. the Physicians of London and within 7 miles of the same upon many important reasons mentioned in their Royal Patent were made a Body Corporate and endowed with many privileges which in the 14th and 15th of his Reign were confirmed by Act of Parliament In the 32th of the same King's Reign several additional privileges were granted them by a second Act of Parliament by which they were discharged from keeping any Watch and Ward or being chosen to any Office in London or the Suburbs thereof and were thereby enabled to practise Surgery as well as Physick in the said City c. By which clause they were entituled to the privilege granted the Surgeons of being discharged from bearing Arms c. by the 5 H. 8. 6. In the 1 Q. M. 9. their Charter was a second time confirmed by Act of Parliament and additional Privileges granted to them Which privileges with a freedom from finding Arms were continued to them without interruption till 1588 and it being then a time of most imminent and publick danger the Lord Mayor of London and Court
sworn for the true performance of his Office 56 110. S. Seventh Son The cheats of one who pretended himself a Seventh Son with an Historical account of the College's proceedings with him 446 447 c. Statutes or Acts of Parliament how to be expounded 247 248. The difference betwixt Statute Rolls and Rolls of Parliament 268. By whom Statutes were formerly drawn up 268 269. Statutes relating to Physick or Surgery 3 H. 8. c. 11. p. 1. 5. H. 8. c. 6. 3. 14 15 H. 8. c. 5. 5. 32 H. 8. c. 40. 17. 32 H. 8. c. 42. 20. 34 35 H. 8. c. 8. 28. 1 Q. M. Ses 2. c. 9. 30. The 3 H. 8. repealed in effect by the 14 15 H. 8. 185. repealed by the 34 H. 8. 230 231. Its imperfections 252. The 14 15. H. 8. Thirty six Acts passed in the same Session of Parliament when this was made 16. confirmed by the first of Q. Mary 229. It repeals the 3 H. 8. in 3 main points 238. not restrained by the 34 35 H. 8. 253 254 258. The 34 35 H. 8. whether repealed or not is disputable 227 230 236 238 250. This Act extends onely to Surgeons 235 258. It gives liberty onely to those who practise for Piety and Charity excluding all that take money or gain 258. Surgeons By whom to be allowed for City and Countrey 2 3. Exempt from being Constables bearing Armour keeping Watch and Ward c. 3 4 5. The Authority and liberty of Barbers and Surgeons being made of one Company 21. By whom and when the Barbers of London were incorporated ibid. The benefits like to ensue by joyning the Barbers and Surgeons into one Company 22. The Barbers and Surgeons made one Company and incorporated ibid. The Barbers and Surgeons in London exempt from bearing of Arms or being in Watches or Inquests 24. Surgeons may yearly take 4 condemned persons for Anatomies ibid. No Barber in London shall use Surgery 25. No Surgeon in London shall use the craft of Shaving 26. Every Surgeon in London shall have a Sign at his door ibid. None shall be a Barber in London but a Freeman of the Company ibid. Four Wardens shall be chosen and their authority ibid. The forfeiture of offenders 27. Any person may keep a Barber or Surgeon as his servant ibid. Any person being no common Surgeon may minister outward medicines 28. By what means the Surgeons of London have abused the Statute of the 3 H. 8. c. 11. for their own gain ibid. It shall be lawfull for any person to cure outward Sores notwithstanding the Statute of 3 H. 8. c. 11. 29. A Letter sent to the Surgeons from the College requiring them to abstain from the practice of Physick 340. They are not to give inward medicines 315 316 343 344. Their endeavours to procure Letters Patents and an Act of Parliament to prescribe inward medicines in Wounds Vlcors and French Pox 359 c. The College's resentment thereof 361. A second attempt of theirs to procure Licence to administer Physick in all cases Chirurgical 406. Interdicted practice 348 363 367 422. Required to give bond not to practise 332 341 368 423. Discommuned 425. Fined or Fined and imprisoned by the Censors 315 319 331 332 333 340 341 348 349 355 365 367 375 384 395 413 422 438 446. T. Trials of the College against Empiricks è contrà Versus Gardiner pag. 147.  Versus Dr. Bonham 164.  Dr. Bonham versus the College 178 220.  versus Butler 221.  Butler versus the College 225.  versus Butler 229.  versus Bugge 259.  versus Huybert 261.  versus Needham 273.  Trials of the College against Empiricks c. Versus Bourne 275. Harder Merry Stone U. Vniversities Dr. Bonham's case The College's Declaration against him for practising Physick in London without licence 164. Dr. Bonham's Plea 171. The President 's reply viz. that his plea was invalid 175. Dr. Bonham justifies it ibid. Iudgment given by the Court of Kings Bench for the College against Dr. Bonham 177. He brings an Action of false imprisonment against the College 178 202. The College's Plea ibid. Bonham's reply 183 203. The College demurs and why 184. The Iudges divided in their opinions 184 186 209. Why Iudgment was entred for Dr. Bonham 188 189 196 201 220. Their Privileges secured in the 3 H. 8. p. 3. They may not practise in London c. 184 185 204 211 212 277 335 336 364. Summoned to give an account of medicines prescribed in London 377. Why they are subject to the examination correction and government of the College 278. Some of them rejected upon examination 315 348 350 362 376. Interdicted practice 334 350 364 366 377 383 409 419. gave bond not to practise 347 349. Sued or 〈◊〉 by the College 164 178 202 314 335 350 351 366 367 376 418 419 471. Fined or fined and imprisoned 334 348 350 362 363 366 376 407 409 438 47◠THE END 3 H. 8. c. 11. 14 15 H. 8. c. 5. 32 H. 8. c. 42. 1 Q. M. Ses 2. c. 9. K. James and K. Charles 2. in their Royal Patents Inconveniencies ensuing by ignorant Persons practising Physick or Surgery By whom every Physician and Surgeon shall be allowed A. Physician or Surgeon allowed by the Bishop of the Diocess The Privileges of Oxford and Cambridge The causes why Surgeons have been exempt from bearing of Armour or other Services Surgeons discharged of Enquests c. The Surgeons of London shall be exempt from being Constables bearing of Armour or to be put in Watches or Inquests A body Corporate of the faculty of Physick within London and 7 miles compass * rect nostrimunus A perpetual College of Physicians erected and granted in London and the Suburbs * Medicinam * Francisci A Prefident of the College and his office and duty The College shall have perpetual Succession and a Common Seal They shall be of ability to purchase Land They may sue and be sued They may make lawfull Assemblies and Ordinances for Government No man shall practise Physick in London or 7 miles thereof unless he be allowed Four Physicians of London shall be yearly chosen to have the oversight of the others * earum Physicians shall not be summoned on Juries in London The King's Letters Patents and every Article therein confirmed There shall be Eight Elects of the Physicians of London Physicians in other places must be examined by the President and 3 of the Elects * ostendit certis * ferme * assiden * Supple quà m Temporalibus * Modestiae * eidem * tempe * evid * excellenti †fine * tum * penitus * prodeundi Priviledges granted to Physicians in London The Physicians in London shall be discharged to bear certain Offices there Four Physicians shall be chosen yearly to search Apothecary-wares in London The forfeiture of an Apothecary that refuseth to have his house searched Stat. 1 M. 9. The