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
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
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
enjoyne all Iudges and Iustices of us our heires and successors to act and performe accordingly any Acte Statute Lawe Vsage or Provision whatsoever to the contrary thereof in any wise notwithstanding AND WEE WILL and by these presents for us our heires and successors Doe ordaine and declare that all and every the Fynes Penalties Forfeitures and Amerciaments hereafter to be sett adjudged imposed or inflicted upon any person or persons whatsoever by force or colour of these presents or of any the Letters Patents or Acts of Parliament aforesaid or by force or colour of any Acts Ordinances Decrees or Constitutions made or to bee made by vertue of these presents or any the Graunts or Authorities aforesaid before any Action bée commenced or any Levy or Execution bee had or made thereof respectively the said severall penalties and forfeitures of Tenn pounds and five pounds per Mensem above mentioned allwayes excepted shall bée reported to and approved of by the Court or Corporation of the said President and Fellowes of the Kings Colledge of Physitians aforesaid to bée held by vertue of these presents or by any fifteene or more of the Fellowes of the same Colledge for the tyme beinge then present att such Court whereof the President or in his absence the Vice-president for the tyme being to bée one and then entered and registred in the Common Register Booke of the same Colledge And that from and after such approbation and entry thereof it shall and may bée lawfull to and for the President and Censors or Vice-president and Censors of the same Colledge of Physitians for the tyme being in the absence of the President or any thrée of them whereof the said President or in his absence the Vice-president for the tyme being to bée one by Warrant under the hand of the said President and Censors or Vice-president and Censors for the tyme being in the absence of the President or any thrée of them whereof the said President or in his absence the Vice-president for the tyme being to bée one duely made and directed to any Officer and Officers of the same Colledge in this behalfe to bée appointed to Commit and send every such person and persons soe offending and on whome any such Fyne Penalty or Amerciament shall be imposed sett or inflicted as aforesaid or by whom any forfeiture shall bée made as aforesaid to any of our Goales or Prisons except our Tower of London within our said Citty of London or the Suburbs thereof for the tyme being there to remayne untill he or they shall pay and satisfie unto the said President and Fellowes of the same Colledge of Physitians and their Successors for the tyme being the severall and respective fyne or fynes penalty or penalties forfeiture or forfeitures Amerciament or Amerciaments for which hee or they respectively shal bee soe Committed or charged as aforesaid or otherwise by like Warrant to levie all and every such fyne and fynes penalty and penalties forfeiture and forfeitures Amerciament and Amerciaments by distresse and sale of any of the Goods and Chattells of any or every such person or persons respectively offending as aforesaid rendering the overplus to bee ymployed and disposed as hereafter in and by these presents is directed PROVIDED allwayes that if any person or persons on whome any Fyne Penalty or Amerciament shall be sett or imposed as aforesaid shall find or conceive himselfe grieved thereby That then it shall and may bee lawfull to and for every such person and persons within one Moneth after such approbation and entry thereof made as aforesaid or sooner to appeale unto such person and persons for his or their releife therein as in and by these presents are hereafter nominated constituted and impowered in that behalfe AND Wée will and by these presents for us our heires and successors Doe make ordeyne constitute and appoint our right trusty and right welbeloved Cosin and Councellor Edward Earle of Clarendon our High Chancellor of England our right trusty and welbeloved Sir Robert Foster Knight Cheife Iustice of our Court of Kings Bench Sir Orlando Bridgman Knight and Baronett Cheife Iustice of our Court of Common Pleas and Sir Matthew Hale Knight Cheife Baron of our Court of Exchequer the present Visitors of the said Colledge and Corporation and the Lord Chancellor of England or Lord Keeper of the Greate Seale of England Lord Cheife Iustice of the said Court of Kings Bench Lord Cheife Iustice of the said Court of Common Pleas and Lord Cheife Baron of the said Court of Exchequer hereafter for the tyme being from tyme to tyme and for ever hereafter Visitors of the same Colledge and Corporation AND Wee doe by these presents for us our heires and successors give and grant unto them the said Visitors hereby constituted and every or any two or more of them full power and authority to receive entertaine heare examine adjudge and determine alter mitigate reverse or confirme all and every such Matter Cause Complaynt Iudgment Decree or Sentence whatsoever which att any time hereafter shall come or bée brought before them or any two or more of them by way of Appeale hereafter to be made by any person or persons whatsoever for or concerning any Fyne Penalty or Amerciament or other matter or thing whatsoever according to the tenor true intent and meaning of these presents as to them or any two or more of them shall seeme just and fitting AND to that end that it shall and may bee lawfull to and for our said Lord High Chancellor of England Lord Cheife Iustice of our said Court of Kings Bench our said Cheife Iustice of our said Court of Common Pleas and our said Cheife Baron of our said Court of Exchequer now being or any two or more of them and to and for all and every other Lord Chancellor of England or Lord Keeper of the Greate Seale of England Lord Cheife Iustice of the said Court of Kings Bench Lord Cheife Iustice of the said Court of Common Pleas and Lord Cheife Baron of the said Court of Exchequer hereafter for the tyme being or any two or more of them from tyme to tyme to send for remove or cause to come before them or any two or more of them all and every such Cause Complaynt Iudgment Decree and Sentence and all or any the proceedings thereof respectively whereupon or wherein any Appeale shall bée made to them or any two or more of them as aforesaid and from tyme to tyme to order and appoint certaine dayes tymes and places for the hearing and adjudging thereof and to summon heare and examine upon Oath or otherwise all and every person and persons that know or can say or testifie any matter of fact or other thing conduceing to the manifestation or discovery of the truth of the matter in question to the end a just and cleare judgment and determination may be had and made therein AND FURTHER to act proceed performe
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
Letters Patents and the Acts themselves by construction and conferring all the parts together Optima Statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum Statutum And injustum est nisi totâ lege inspectâ de una aliqua ejus particula judicare vel respondere The first reason was that these two were two absolute perfect and distinct Clauses and as Parallels and therefore the one did not extend to the other for the second beginneth Praeterea voluit concessit c. and the branch concerning fine and imprisonment is parcel of the second Clause 2. The first Clause prohibiting the practising of Physick c. doth comprehend 4 certainties 1. Certainty of the thing prohibited sc practice of Physick 2. Certainty of the time sc practice for one month 3. Certainty of Penalty sc 5 li. 4. Certainty of distribution sc one Moyety to the King and the other Moyety to the College and this penalty he who practiseth Physick in London doth incur although he practise and use Physick well and profitably for the body of man and upon this branch the Information was exhibited in the Kings Bench. But the Clause to punish delicta in non bene exequendo c. upon which branch the Case at Barr stands is altogether uncertain for the hurt which may come thereby may be little or great leve vel grave excessive or small c. And therefore the King and the makers of the Act cannot for so uncertain offence impose a certainty of fine or time of imprisonment but leave it to the Censors to punish such offences secundum quantitatem delicti which is included in these words per fines amerciamenta imprisonamenta corporum suorum per alias vias rationabiles congruas 2. The harm which accrueth by non bene exequendo c. doth concern the body of man and therefore it is reasonable that the offender should be punished in his body sc by imprisonment but he who practiseth Physick in London in a good manner although he doth it without leave yet it is not any prejudice to the body of man But the clause of Non bene exequendo c. doth not prescribe any time certain but at what time soever he ministreth Physick non bene c. he shall be punished by the said 2 branch And the Law hath great reason in the making of this distinction for divers Nobles Gentlemen and others come upon divers occasions to London and when they are here they become subject to diseases and thereupon they send for their Physicians into the Countrey who know their bodies and the causes of the diseases now it was never the meaning of the Act to barr any one of his own Physician and when he is here he may practise and minister Physick to another by 2 or 3 wéeks c. without any forfeiture for any one who wactiseth Physick well in London although he hath not taken any degree in any of the Vniversities shall forfeit nothing if not that he practise it by the space of a month and that was the cause that the time of a month was put in the Act. 4. The Censors cannot be Iudges Ministers and Parties Iudges to give sentence or Iudgment Ministers to make summons and Parties to have the moyety of the forfeiture quia aliquis non debet esse Judex in propria causa imo iniquum est aliquem suae rei esse Judicem and one cannot be Iudge and Attorney for any of the parties Dyer 3 Ed. 6. 65. 38 E. 3. 15. 8 H. 6. 19 20. 21 E 4. 47. c. And it appeareth in our books that in many Cases the Common Law doth controll Acts of Parliament and sometimes shall adjudge them to be void for when an Act of Parliament is against Common right and reason or repugnant or impossible to be performed the Common Law shall controll it and adjudge such Act to be void and therefore in 8 E. 3. 30. Thomas Tregors Case upon the Statute of West 2. Cap. 38. and Articuli super Chartas Cap. 9. Herle saith Some Statutes are made against Common Law and right which those who made them would not put in execution The Statute of West 2. Cap. 21. giveth a Writ of Cessavit haeredi petenti super haeredem tenent super eos quibus alienatum fuerit hujusmodi tenementum and yet it is adjudged in 33 E. 3. Cessavit 42. where the Case was Two Coparceners Lords and Tenant by Fealty and certain Rent One Coparcener had issue and dyeth the Aunt and the Néece shall not joyn in a Cessavit because that the heir shall not have a Cessavit for the cesser in the time of his ancestor F.N.B. 209. F. And therewith agréeth Plow Com. 110. and the reason is because in a Cessavit the Tenant before Iudgment may render the Arrearages and damages and hold his land again and that he cannot doe when the heir bringeth a Cessavit for the cesser in the time of his Auncestor for the arrearages incurred in the life of the Auncestor do not belong to the heir and because that it shall be against right and reason the Common Law shall adjudge the said Act of Parliament as to that point void The Statute of Carlisle made 35 E. 1. enacteth That the Order of the Cistertians and Augustines who have a Covent and Common Seal that the Common Seal shall be in the keeping of the Prior who is under the Abbot and 4 others of the most grave of the house and that any déed sealed with the Common Seal which is not so in kéeping shall be void and the opinion of the Court Anno 27 H. 6. Annuity 41. was that this Statute was void for it is impertinent to be observed for the Seal being in their kéeping the Abbot cannot seal any thing with it and when it is in the Abbots hands it is out of their kéeping ipso facto and if the Statute should be observed every Common Seal shall be defeated upon a simple surmise which cannot be tryed Note Reader the words of the said Statute of Carlisle which was made 35 E. 1. which is called Statutum Religiosorum are Et insuper ordinavit dominus Rex statuit quod Abbates Cicestr ' Premonstraten ' ordin ' religiosorum c. de caetero habeant Sigillum Commune illud in custodia Prioris Monasterii sui domus quatuor de dignioribus discretioribus ejusdem loci conventus sub privato Sigillo Abbatis ipsius loci custod ' depon ' c. Et si forsan aliqua scripta obligationum donationum emptionum venditionum alienationum seu aliorum quorumcunque contractuum alio sigillo quà m tali sigillo communi sicut praemit ' custodit ' inveniant ' à modo sigillata pro nullo penitus habeantur omnique careant firmitate So the Statute of 1 E. 6. cap. 14. giveth Chauntries c. to the King saving to the donor c. all such rents services
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
the College of Physicians Pasch 7 Car. 1. Rot. 519. Crooke's Reports 3 part p. 256. ERror of a Judgment upon a Demurrer in the Common Bench. The first Error assigned was Because the Record was Ad respondendum Domino Regi Praesidenti Collegii c. Qui tam pro Domino Rege quà m pro seipso sequitur quòd reddat eis Sexaginta libras unde idem Praesidens qui tam c. dicit c. Whereas the Action ought to have béen brought by the President onely qui tam c. and not by the King and President c. Sed non allocatur For being an Original Writ the Writ is most often so and sometimes the other way And they conceived it good both ways But Informations are always that the party qui tam for the King quà m pro seipso sequitur c. Vide Plowd 77. New book of Entries 160. Old Book of Entries 143. 373. The second Error was that the Replication was a departure from the Count for the Count sets forth That King Henry the Eighth anno decimo regni sui incorporavit per le Statut. of decimo quarto Henrici octavi confirmavit the College of Physicians by the name of the President c. that no man should practise Physick in London or within seven miles without licence under the Seal of the College upon the Penalty of 5 li. for every month that he so practised the one moiety unto the King the other unto the President of the College to the use of the said College And for that the Defendant not being allowed c. had practised Physick for twelve months in London the said Action was brought c. The Defendant pleads the Statute of tricesâ—mo quarto Henrici Octavi cap. 8. That every one who hath science and experience of the nature of Herbs Roots and Waters or of the operation of the same by speculation or practice may minister or apply in and to any outward Sore Vncome Wound Aposthumations outward swelling or disease any Herb Oyntments Baths Pultess or Emplasters according to their cunning experience and knowledge c. or drink for the Stone and Strangury or Agues in any part of the Realm without suite vexation c. any Act or Statute to the contrary notwithstanding And that he having skill in the nature of Herbs Roots and Waters by speculation and practice applied to persons requiring his skill Herbs Oyntments Baths Drinks c. to their Sores Vncomes Wounds and for the Stone and Strangury or Agues and to all other diseases in the said Statute mentioned prout ei bene licuit Et quoad aliquam aliam practisationem seu facultatem medicinae aliter vel alio modo quòd non est culpabilis Et de hoc ponit c. And makes his averment Et hoc paratus est verificare The Plaintiff replies and shews the Statute of primo Mariae capite nono which confirms the Charter of Decimo Henrici octavi and the Statute of Decimo quarto Henrici octavi and appoints that it shall be in force notwithstanding any Statute or Ordinance to the contrary And upon this it was demurred because it is a departure for it intitles him by another Act viz. the Statute of primo Mariae which is not mentioned in the Count and therefore 't was assigned for Error But all the Court here conceived That it is no departure because it fortifies the Count and is as to revive the Statute of decimo quarto Henrici octavi if it were repealed in this particular by the Statute of tricesimo quarto Henrici octavi And for that the Case of Woodhead was shewn to the Court Mich. 42 43 Eliz. rot 397. where the President of the College of All-Souls brings an action upon the Case for taking Toll in and shews a Charter of vicesimo sexto Henrici sexti to be discharged of Toll The Defendant pleaded the Act of Resumption of Liberties granted by Henry the sixth made and so the liberty gone The Plaintiff pleaded a reviver of them by the Statute of quarto Henrici septimi And it was held to be no departure but as it were a confession and avoiding The third and principal Error assigned was if the Statute of tricesimo quarto Henrici octavi be not repealed by the Statute of primo Mariae and if not Whether the Defendant hath made a sufficient Iustification And Quoad that whether the said Statute be repealed the Court was not resolved But Richardson Chief Iustice conceived it was repealed by primo Mariae by the general words any Act or Statute to the contrary of the Act of decimo quarto Henrici octavi notwithstanding But I conceived that the Act of tricesimo quarto Henrici octavi not mentioning the Statute of decimo quarto Henrici octavi was for Physicians but the part of the Act of tricesimo quarto Henrici octavi was concerning Chirurgeons and their applying outward Medicines to outward Sores and Diseases And drinks onely for the Stone Strangullion and Ague That Statute was never intended to be taken away by the Act of primo Mariae But to this point Jones and Whitlock would not deliver their opinions But admitting the Statute of tricesimo quarto Henrici octavi be in force yet they all resolved the Defendants Plea was naught and not warranted by the Statute For he pleads That he applied and ministred Medicines Plasters Drinks Ulceribus Morbis Maladiis Calculo Strangurio Febribus aliis in Statuto mentionatis so he leaves out the principal word in the Statute Externis and doth not refer and shew That he ministred Potions for the Stone Strangullion or Ague as the Statute appoints to these thrée Diseases onely and to no other And by his Plea his Potions may be ministred to any other sickness Wherefore they all held his Plea was naught for this cause and that Iudgment was well given against him Whereupon Iudgment was affirmed The President and College of Physicians against John Butler Entred Pasch 4. Caroli cum Brownlow THe President and College of Physicians for themselves and for the King Complain against John Butler by Information and demand 60 li. and declare that H. 8. 34 September in the 14 year of his Reign incorporated them by the name of President and College and Comminalty of the faculty of Physicians in London and granted to them several privileges c. and recite their Patent and confirmation thereof by 14 H. 8. cap. 5. because the Defendant without licence did practise 11 Months contrary to the Statute The Defendant pleaded in Bar and recited the Statute of 34 H. 8. cap. 8. which enacts that any person having knowledge and experience of the nature of Herbs Roots and Waters or of the operation of the same by speculation or practice c. may practise use and administer in and to any outward Sore c. any Herb Oyntment Bath c. according to their cunning in any of
limited by the said Statutes concerning the same and that none whosoever are to meddle therein without our express consent and allowance And for that we are bound by Oth and otherwise charged in dutie and conscience to see the said Statutes duely from point to point observed so much as shall lie in our power so to do and for that intent and purpose have ordained among our selves certaine solemne meetings and assemblies which are in the yeare 16 times at the least only for the sufficient inquirie of the Premises These be to signifie unto you That as we oftentimes find manie offendors in that behalf by intruding themselves into our liberties and that to the great daunger of her Majestie 's Subjects and manifest infringing of her Lawes So among that number so offending it falleth out that no few of your Company are culpable in the same whom we for the most part have hetherto forborne ether to punish or molest and that only for the good will that we have always born to you and your Societie But for that we now see by daily experience that upon our lenitie and sufferance this inconvenience more and more increaseth insomuch that both in credit and otherwise it seemeth to touch us more neere then well can be indured We have therefore thought it good to put you in mynd thereof and therewithall earnestly and freendlie to request you that among your selves some such discreet Order may be taken heerin that the like offence heerafter maie not be committed by them or any of theirs Wherein if we shall perceave you as ready to fulfill our honest request as we are willing to maintain good amytie and concord with you and your Companie we wil be very glad thereof and geve you thanks therfore If not then as we are fully minded to defend our privileges and to deale with the particular Offendors therein as order of Law and our Ordinances in that behalf requireth So we trust the body of your Societie will not be offended therewith And so we bid you most hartelie farewell this 12 of November 1595. In the 38th 1596. Roger Ienkins and Simon Read were both charged for illegal practice The first being a Surgeon by profession denied his being guilty thereof which notwithstanding was proved by his giving judgment upon Urines undertaking cures c. Wherefore he was enjoyned to pay a fine to the College give bond not to practise and interdicted that profession He submitted to the censure of the College and promised to give bond of 40 l. that he would not practise in Physick But that being afterwards proved against him the Censors committed him to prison with Read and others by the authority of the College signed with their Common Seal As for Read he being examined by the Censors in Latin according to the Custome of the College refused to answer in that language being then permitted to answer in English he likewise refused it Being then allowed to answer in writing what account he could give of any disease which he would make choice of he chose a Diarrhoea and being examined what that was he told them it was a flux of the Womb proceeding from gross humours in the Stomach He was judged illiterate and altogether unskilfull in Physick At the same time he was complained of by one Cuckston for undertaking the cure of his wife labouring under Melancholy whom he had bled purged and hanged a paper charm about her neck The Censors fined him 5 l. and committed him to Prison About a month or 5 weeks after Read procures a Letter to the College from a person of Honour in his behalf upon whose account the College agreed to deal favourably with him upon the following conditions 1. That he should release a poor man out of Prison which he laid in Gaol under the knavish pretence of a debt of 〈◊〉 when in truth he owed him nothing the whole profâ—…n being vexatious 2. That he should release another poor man from Prison and further prosecution and restore him 40 â— unjustly taken from him under the pretence of curing his wife 3. That he should be obliged to the College with good Sureties in a bond that he would not practise Physick in London nor within 7 miles of the same Which conditions being performed the Censors order'd his release from Prison and forgave him his fine After this he was summoned a second time before the Censors and charged for illegal practice he confessed it and declared that he could live by no other employment wherefore he was again committed to prison and fined 20 l. propter illicitam suam praxin About 2 months after Ienkins and Read procured a Habeas Corpus from Sir Iohn Popham Lord Chief Justice of England for their appearance before him the full account of which is thus entred in our Register April 8. 1602. There was an assembly of the President Censors and Fellows of the College convened in order to hear and consider what Ienkins and Read whom they had lately committed to prison could say for themselves why they should be discharged they having falsely made complaints of the severity and injustice of the College by which means they had procured a Writ called Corpus cum causa from Sir Iohn Popham Lord Chief Justice of England in order to a full hearing of this cause before him Wherefore the College deputed the Censors to wait upon the Chief Justice to acquaint him with the truth and Justice of their proceedings and to expect his Lordships judgment therein Accordingly they met Ienkins and Read at the Chief Justice's house highly complaining of the wrong done them by the President and Censors of the College by whose authority they were committed to prison for illegal practice and continued there for some weeks One Mr. Harris a Counsellour at Law appeared in behalf of Ienkins and Read The Chief Justice having diligently read over the Statutes of the Kingdom relating to Physick demanded of Ienkins how he durst practise that Art without a Licence from the College Upon which he first denied practice then answered ambiguously and with hesitation At length fearing lest the Chief Justice should give him his Oath he confessed that he had sometimes practised but as he thought not illegally What saith the Judge did you ever procure the College Seal to justify your practice No saith Ienkins but I practised as a Surgeon and in that art the use of inward Remedies is often necessary To which the Chief Justice answered That in such cases a Physician was to be called it being upon no such account lawfull for the Surgeon to invade the Physician 's Province The Counsel for these Empiricks objected that the President and Censors had no authority to commit to Prison but onely to leave their causes to be determined by other Judges The Chief Justice reproved their Counsel and declared that the Authority of the College in committing to prison was very legal and valid Ienkins then complained very much quod
both by Physicians and Patients upon which account he procured the following Letter from the Earl of Exeter To my very loving friends the President and Censors of the College of Physicians Good Mr. President I Have had almost 20 years experience of the civil carriage honesty and sufficiency of my servant John Reeve Apothecary and am confident that in all affairs of his vocation he hath as skilfully carefully and legally demeaned himself as any of his Profession whatsoever Neverthelesse I understand that at sundry times since May last he hath been molested with Messengers from you and the Censors to make his appearance personally before you when by reason of his great sicknesse my self was deprived of his desired attendance in my service and well might you in such case have spared him also But I conceive that the false information of malitious persons against him and the Messengers fond hopes to enforce unnecessary fees from him was the cause of his molestation His service is of such consequence and esteeme with me that he is daily and hourly upon every notice to attend me and I may not want him being well assured of his honest and fair demeanour as well in the affairs of his profession as in all his actions And therefore I desire you to forbeare sending Messengers for him or interrupting him any further wherein you will oblige me who in no wise would see him suffer to acknowledge your respects towards him and rest always Your very loving friend J. Exeter To this Letter the President and Censors returned the following answer Right Honourable WE have in our dutifullest manner received your Honour's Letter written to us the President and Censors of this College in the behalf of John Reeve Apothecary your Honour's servant of whom we are very glad to heare how honest and usefull he hath been to your Honour for the desire we have that your Honour should be well served and should be as glad to have had the like testimony from others of his behaviour towards them wherein how little he hath answered the good opinion that your Honour hath of him your Honour may please to understand by this ensuing report Which is That upon the 19th of January 1637. one Sibyll Butler came before us in our College and declared how John Reeve Apothecary finding her husband inclined to a Consumption and for a moneth before and at that time being afflicted with a continuall scowring did let him bloud and gave him a sleeping pill every other night for 3 weeks together whereupon he dyed and thereupon the said Reeve being convented before us the 26th of the same moneth the accusation was verifyed by witnesses and made soe plaine that he was brought to confesse how he had let the said Butler bloud twice and given him certain pills and other things all of his own head and as he said out of his own Judgment alledging for his so doing that there were Physicians that would not give poore folks Counsell if they wanted money This practice found soe soul and contrary to Art by the Censors in a person that hath no calling or ability to give Physick was the cause of our sending for him which whether it be a molestation or no as he informes your Honour we remit to your Honour's Judgment now that your Honour is truely informed of the truth wherein we humbly desire your Honour to believe us without counterpoising his report with ours and the rather for that we forbeare to aggravate his fault with such circumstances as he knoweth we are able to bring against him if it were not for putting him out of your Honour's favour And for satisfying your Honour and to shew how absolute a power your Honour hath over us and every of us we doe remit to your Honour how farre the same shall be pleased to command us to proceed in the matter of the complaint Onely we are humble Suiters to your Honour to excuse us in the point of calling him before us upon the like occasions except it be at such times as we shall know he is in actual service with your Honour for that this being the due way granted us for the execution of our duty unlesse we shall leave it as a precedent for all other Offenders to decline us we may not remit it being bound by the trust that the State putteth upon us and charged by the continuall commandments of the Kings and Queens of the Realme and other admonitions of the Lords of his Majestie 's honourable Privy Council and lastly tyed by Oath at our entring into these places to look diligently to the abuses committed by bad practisers upon the lives of his Majestie 's Subjects and in which we as yet were never interrupted by any solicitation and soe with our heartiest prayers for your Honour 's long and prosperous estate we humbly take our leaves From our College-house the 28. Decemb. 1638. Bartholomew Vanderlash was accused for practising Physick which he denied but yet confessed that he had given healing draughts Upon which order was given for prosecuting him in the Court of Exchequer After this he was complained of by Dr. Crooke for giving purging pills to a woman in a Fever and Physick to another person for a year and half Dr. Spicer likewise exhibited several informations against him to the President and Censors As likewise one Mrs. Fitten to whom for a small pain and redness in her leg and arme he had given a powder in white Wine which purged her vehemently upward and downward above 25 times and 12 times the next day After which he gave her 4 fluxing pills of which she took onely 2 which caused a salivation for above 20 days for which she was forced to seek ease from Dr. Argent Vanderlash denied not this fact but avouched that he gave her the physick by directions from Dr. Read But because he confessed that he had no bill from the said Doctour the Censors took it for his own practice which they declared to be very bad and sent him to Newgate thereupon with a fine of 20 li. Russel Hutton Surgeon was complained of for giving pills of Turbith Mineral to one afflicted with a Dysury upon which he fell into pissing of bloud ulceration of the mouth and other ill symptomes He was punished 40 s. which if not discharged by the next Censors day he was to be committed to prison for mala praxis Du Pont was accused for prescribing Mercurial powder to several persons who had received great mischief by them One of them having lost 14 teeth Another by a Mercurial fumigation prescribed by him fell into swooning fits lost her teeth and was so dangerously ill that 2 Physicians were called in for her relief Du Pont being taken by the Beadle and brought before the President was released upon his brother's engagement for his appearance before the Censors but he broke his word his brother excusing him that he durst not come lest he should be imprisoned
approved by the next Court and registred before any levy or execution be had thereof and after by Warrant to commit the party untill c. or levy it of his goods The 10 l. and 5 l. per Mensem excepted Appeal to Within one Month after the Fine approved in Court Visitors Constituted Power to receive and determine Appeals c. To the said Visitors or any two of them To remove the Cause before them To summon and swear Witnesses After sentence to remit the Cause All Judgments in such Appeal to stand good and no further relief or appeal after Provided if neglect of prosecution or the Appeal not determined within six Months the President and Censors to proceed as if no Appeal therein To proceed on Judgment in Appeal after remitted as in other case before Appeal Provided that no Offender be questioned but within a year after the Offence committed All Fines and Amerciaments given to the Colledge Except the penalties and forfeitures on Recognizances Power to sue for them and levy them as aforesaid All the Fines charges deducted to go to the poor 6 l. per ann reserved to the King Power to choose a Register His duty Power to choose other Officers To be sworn To put them out again c. To take Recognizances of Offenders * rect President and Censors or to the Vice-president and Censors in the absence of the President or any three To commit such as refuse to enter into Recognizance Goalers to receive and detain the Prisoners Penalty Liberty to take six Bodies yearly for Anatomies Provided they be buried after Liberty to purchase Lands 200 l. per ann Physicians not to be of Juries nor Churchwarden Constable nor Scavenger in London or seven miles distant c. Watch and Ward Bearing and providing Armes Confirmation of all former Grants Not hereby altered To consent to a Bill in Parliament for Confirmation Apothecaries and Grocers made one Corporation 4 Jac. The grounds for this New Charter Empiricks Hurtfull Medicines The Apothecaries separate from the Company of Grocers And made an Incorporation Subject to the Magistracy of the City as well as others The persons first incorporated were these 114. Natural Subjects And their Apprentices Separated from the Grocers And exempt from all Fines Amerciaments c. from the same By the name of the Master Wardens c. made a Body Politick Capable to purchase Lands c. by the same name In Fee-simple For term of years or otherwise To sue and be sued * fuerint To have a Common Seal At pleasure to be broken or altered Power to choose a Master Two Wardens and 21 Assistants To have an Hall or Council-house To keep Court or a Convocation To consult about Statutes Laws Articles c. The Master Wardens c. being 13 in number To make Laws For the Government of the Society In their Orders concerning Medicines to advise with the President and four Censors of the Colledge of Physicians To punish by Fines and Amerciaments To the use of the Master c. Without giving account But to be moderate and not contrary to Law Edm. Phillipps first Master Stephen Higgins and Tho. Fones first Wardens First Assistants To take an Oath before the Attorney-General c. The Master and Wardens to be sworn before the Assistants Power to the Assistants to choose a Master and Wardens Power to choose others in case of death or removal To choose new Assistants And swear them Power to administer the Oath to the Master Wardens c. No Grocer to keep an Apothecaryes shop Vnder the penalty of 5 l. Per Mensem No person to keep a Shop Till he have served seven years Apprentiship No Apprentice to be made free unless allowed by the President or some Physician deputed by him who is to be present at his Examination by the Master and Wardens And be examined * del tam. Power to enter Shops and Houses To search and try Medicines And burn all unwholsome and hurtfull Medicines Officers to be assistant to the Master Wardens c. in their search Power to buy and sell Drugs c Power to purchase Lands c. Power to sell To choose a Clerk Who is also to be sworn Power to choose a Beadle And give him his Oath A saving of the power of the President and Colledge of Physicians and their Authority The Colledge to have the same power in their searches to call the Master and Wardens of the Apothecaryes Company as of the Grocers What Medicines Surgeons may have for their own use * ditionis nostrae * profitebuntur * Suburbiis * medicis * illas * nuper * had endued * morbo * quo * ledebant * ditionis * gravium * earum * del hujusmodi * dicta * authorizat ' * authorizat ' * places * contingeret * Anglicâ— Action of false imprisonment Action of false imprisonment Serj. Harris the younger Term. Trin. ann 8 Car. 1. in B. R. Littleton's reports p. 168. Mich. 4 Car. Stat. 14 H. 8. cap. 5. Stat. 34 H. 8. cap. 8. Stat. 3 H. 8. cap. 11. 1 Mariae c. 9. Stat. 34 H. 8. Stat. 3 H. 8. Stat. 3 H. 8. Pleading Departure Patents Free Trade Penal Statute Information Courts Quarter Sess 21 Jac. c. 4. Informations Information Forfeiture to the Royal Court Action popular Information Stat. 14 H. 8. c. 5. Surgery Stat. 34 H. 8. c. 8. Potions Stat. repeal Stat. 34 H. 8. cap. 8. Stat. 1 Mariae Pleading Replication Departure Novel matter Stat. 37 Eliz. cap. 5. Lit. rep 212. Exposition of the word Medicina Stat. 14 H. 8. Stat. 3 H. 8. cap. 11. Information Stat. 8 E. 4. 31 Eliz. c. 5. Lit. rep p. 246. Statutes General Particular Pleading Confess and avoid Traverse Corporation Name Lit. rep p. 349. London Lond. ss Imprimis London ss A Copy of the Censors Warrant for the commitment of Empiricks to prison