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
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
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
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
Parliament was dissolved or prorogued In H. 6 's time the former method was altered and then Bills continentes formam Actus Parliamenti were first used to be brought into the House The Bills were before they were brought into the House ready drawn in the Form of an Act of Parliament and not in the Form of a Petition as before Vpon which Bills 't was written by the Commons Soit baile al Seigneurs and by the Lords Soit baile al Roy and by the King Le Roy le voet All this was written upon the Bill and the Bill thus endorsed was to remain with the Clerk of the Parliament and he was to enter the Bill thus drawn at first in the Form of an Act of Parliament or Statute upon the Statute Rolls without entring of the Answer of the King Lords and Commons upon the Statute Roll. And then issued out Writs to the Sheriffs with transcripts of the Statute Rolls viz. of the Bill drawn at first in the Form of a Statute and without the answer of the King Lords and Commons to the Bill to proclaim the Statutes Now this Record which is before us in Court upon the Mittimus is not a transcript of the Bill upon which the answer of the King Lords and Commons was written but it is a transcript of the Entry which was made upon the Statute Roll upon which Roll it is not necessary that the Royal Assent must be entred And though oftentimes the Royal Assent hath béen entred by the Clerk upon the Statute Rolls yet 't is not necessary that it should be there to make a good Statute it having béen before upon the Bill There be many Statutes which have not the Royal Assent to them entred upon the Statute Rolls This objection would destroy half the Acts of Parliament that be If in the body of the Statute it self the consent of the King Lords and Commons doth not appear 't is a void Statute 't is felo de se As in the case of 4 H. 7. fol. 18. which case is cited in Hobarts reports fol. 111. in the case there betwéen the King and the Lord Hunsdon and the Countess Dowager of Arundel and the Lord William Howard upon an Act of Attainder of a particular person the consent of the Commons did not appear in it and therefore saith the book all the Iudges held clearly that it was no Act and therefore he was restored And yet it doth not hold true generally that in the body of the Act the thrée Assents must particularly appear especially in cases of Ancient Statutes The reason is because the Forms of drawing up and wording ancient Statutes were very various as 8 Cook Prince's Case King Edw. 3. authoritate Parliamenti grants by an instrument in Form of a Charter yet 't is there held that it was a Statute And this very Act here in question of 14 H. 8. hath always béen taken to be a good Act as in Dr. Bonham's case in the 8 report and in the 4 Inst and in Dr. Butler's case in Cro. Car. and in Jones's report But further Hales said that in this case here the Court is bound up to give Iudgment upon the Record that is certified unto the Court And by the Record certified it appears to the Court that it is a good Act of Parliament for in the Certificate made to the Court the thrée Assents of the King Lords and Commons are contained in the body of the Act. There be other Satutes of the same Sessions of Parliament viz. in 14 H. 8. which be as our Statute is viz. without the Royal assent upon the Roll of the Statute as the Act about the marrying of the Six Clerks cap. 8. and the Act of the Port of Southampton cap. 13. and other Statutes of the same Sessions and yet they have not béen ever questioned and in truth the Royal Assent was at the end of the Bills of that Sessions If the Defendant thinks that the certificate here is false it being of an Act of Parliament whenas he thinks there is no such Act The party grieved by such false Certificate is to take his remedy by way of Action upon the Case against the Person that made such false Certificate as the Clerk of the Parliament or the Clerk in Chancery but the Defendant cannot be admitted here in this Court to averr contrary to the Record certified and so to relieve himself this way for we have no power over those Records we cannot cause the Parliament Rolls themselves to be brought into this Court we take them to be as they are certified unto us Then the Counsel for the Defendant made a second objection viz. The issue here is whether there be such a Record or no and this issue is to be tried by the Record it self For all Records are of that high nature that they can be tried onely by themselves Now here the Tenor of the Record onely is certified and not the Record it self and therefore the issue here is not sufficiently proved by the Plaintiffs in Law And Pages case in the 5 rep was cited where 't is resolved that the Tenor of a Record is not pleadable at Common Law that 't is not sufficient at Common Law to shew forth to the Court the Tenor of Letters Patents but that the Letters Patents themselves must be produced to the Court 'T is the Record it self onely that is pleadable and not the Tenor thereof and by consequence 't is the Record it self that must be certified here to prove this issue of nul tiel Record and a Certificate of the Tenor onely is not sufficient Hales the Lord Chief Iustice answered that though the Tenor of a Record be not pleadable yet upon the issue of nul tiel Record the Tenor of the Record is sufficient to prove that issue the Tenor thereof being sent by way of Mittimus into the Court where the issue is depending upon that particular purpose onely Nul tiel Record may well be pleaded to a private Act of Parliament but it cannot be pleaded to a publick Act of Parliament the reason of the difference is for that the Court is bound to take notice of publick Acts of Parliament but not of private ones When execution may be awarded upon the Record certified there a Certificate of the Tenor is not sufficient because no execution can be granted upon a Tenor onely the reason thereof is this if execution might be upon the Tenor then two executions might be viz. one upon the Tenor in one Court the other upon the Record it self in the other Court and 't would be against reason that two executions should be for the same thing But where the Writ which commands the Court below to certifie a Record doth also tie up the hands of that Court from awarding any execution there a Certificate of the Tenor onely is sufficient as in some cases of Writs of Error upon Iudgment given in other Courts The like of Certiorari's to
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
published which are drawn as it were by another Hippocrates from his most exact and nice observation of Diseases and their symptomes to which are added most judicious Natural Hypotheses and Curative Indications deduced from them He hath given such an exact History of all acute Diseases from the beginning of 1661 to 1680. that there is scarcely a Sentence to be found therein which is not of moment Several weighty observations are likewise taken notice of by this sagacious Physician which other Authors have omitted as particularly the several constitutions of the Air specifically different which depend not upon the manifest qualities thereof but upon some inexplicable causes and produce Diseases as specifically different which Constitutions after some time give place one to another and are accompanied with a peculiar and specifically different Fever both as to its symptomes and cure These Fevers he calls Stationary distinguishing them from the Sporadique or Intercurrent Fevers depending upon the manifest qualities or alterations of the Air The Ptyalisme that attends adult persons and the Diarrhoea which usually accompanies Children in the Flox-Pox The day when the Ptyalisme ordinarily ceaseth with the danger ensuing thereupon The great tendency to symptomatical sweats in the distinct Pox Convulsions in Children before the eruption of the Small Pox which he observeth to be the usual prognostick of a mild distemper The Mania or Frenzy following Agues with the different Cure it requires The Jaundise observable at the going off of the Colica Hysterica The limpid Vrine which he asserts to be the most universal and pathognomonick sign of Hysterical and Hypochondriacal affections which diseases do frequently assume the shape of Nephritick and Colical distempers yet are really different both in their original and cure with many of the like kind dispersed throughout this Book and his Epistolary Dissertations de Variolis confluentibus Affectione Hystericâ Lue Venereâ Podagrâ Hydrope which I am now forced to omit as also the Lives and Works of several great and learned Men heretofore Members of the College such as Dr. Gilbert Wotton Muffet Gwynne Turner Paddy Atkins Mayerne Prujean Bates c. and many now living who have not onely merited a remarque in this Epistle but very highly of the Publick But I hope this present omission will be pardoned this Epistolary Discourse being onely by way of Specimen to a more full and complete History intended In short I cannot question but to see this learned Society flourish maugre all its adversaries which was contrived by Royal wisdom and Founded in Royal bounty which hath enjoyed such great and learned Men in every Age which is now happy in so wise and prudent Governours and blessed with such Learned Grave and Profound Practisers in the Faculty of Physick that there seems to be a Transmigration of the Soul of the immortal Harvey and other Great Men into many of the Members now flourishing Which that it may ever continue so is and ever shall be Most Honoured Collegues the earnest and hearty desire of Your most Affectionate Collegue and devoted Humble Servant Charles Goodall PROCEEDINGS Against Empiricks c. In K. Henry 8 's Reign IN the 33 year of this King's Reign Iohn Wisdam and Iohn Lister were sued by the College in the Court of Exchequer for practising Physick against the Statutes of the Kingdom Judgment was given against Wisdam for 10 li. and against Lister for 30 li. About the same time one Hammon compounded with the College and engaged not to practise Physick for the future Several corrupted Druggs and Medicines were burnt in this King's Reign by the order and in the presence of the Censors of the College PROCEEDINGS Against Empiricks c. In K. Edward 6's Reign IN this King's Reign several Practisers of Physick were examined by the College and found so unfit for the practice of that Art that they were rejected Others were punished according to publick Statutes and others Fined In the fourth year of this King's Reign in the month of September one Grig a Poulterer of Surrey taken among the people for a Prophet in curing of divers diseases by words and prayers and saying he would take no money c. was by command of the Earl of Warwick and others of the Council set on a Scaffold in the town of Croidon in Surrey with a Paper on his breast wherein was written his deceitfull and hypocritical dealings And after that on the Eight of September set on a Pillory in Southwark being then our Lady Fair there kept and the Mayor of London with his Brethren the Aldermen riding through the Fair the said Grig asked them and all the Citizens forgiveness Of the like counterfeit Physician saith Stow have I noted in the Summary of my Chronicles Anno 1382. to be set on Horse-back his face to the Horse-tail the same tail in his hand as a bridle a Collar of Jordans about his neck a Whetstone on his breast and so led through the City of London with ringing of basons and banished Whereunto I had added saith the forementioned Author as followeth Such deceivers no doubt are many who being never trained up in Reading or Practice of Physick and Chirurgery do boast to doe great Cures especially upon Women as to make them straight that before were crooked corbed or crumped in any part of their bodies c. But the contrary is true for some have received Gold when they have better deserved the Whetstone PROCEEDINGS Against Empiricks c. In Q. Mary 's Reign IN the second year of this Queen's Reign a great number of Empirical Impostors were prosecuted and punished by the Censors of the College amongst whom was one Charles Cornet a Flemming an impudent and ignorant Buffoon who would not be restrained from his ill practices with the bills of his condemnation affixed at the corners of streets nor yet with imprisonment it self being patronized by Hugh Weston Dean of Westminster and Roger Chamley The College nevertheless by virtue of the Laws and favour of the Lord Chancellor several of the Nobility and the King's Physicians Dr. Roper and Dr. Vaughan prosecuted him with all vigour and care whereby he was forced not onely to flee the Town in spight of Weston and Chamley but likewise out of those privileged places where he had shelter'd himself first in St. Martins in London and after in Westminster They being also imprisoned who in St. Martins had afforded him a retreat The Censors did likewise cause his unwholsome and sophisticated remedies to be burnt in the open Markets at Westminster After the College had thus diligently prosecuted some of these Empiricks and forced others to flee the City and Suburbs they conceived it would highly conduce to the welfare and safety of the Kingdom if they extended their Authority to other parts thereof Upon which account they drew up the following Letter pursuant to the Acts of Parliament and Judgment of the most learned Rastal and Walpole Serjeants at Law and Sir Robort
Interdicted practice 310 364 440. required to give bond not to practise 354. discommuned 375 438 440 443. Certificates given by the Censors against practising Apothecaries 427 471. Sued for practice 415 416 417 418. Fined or fined and imprisoned for the same 333 340 351 354 364 375 403 406 407. Their Apprentices not to be examined but at the College 439. Refused examination when not first examined by their own Company 466. Arms Collegiates discharged from bearing or providing Arms 58 115 282 323 378. C. Cambridge Dr. Winterton Professor of Physick there refused to give Licences to some and incorporation to a Leyden Dr. and why 443 444. He resolved against giving any Licences without keeping an Act 444. Cases reported Dr. Bonham's by Coke p. 178. by Brownlow 202. Butler's by Jones 221. Croke 225. Littleton 229. Huybert's  267. Needham's  273. Censors They are yearly to be chosen out of whom and by whom 9 70 75. Their office and power to examine persons and medicines 9 44 49 88. Their power to search Apothecaries shops and to burn or destroy corrupt or defective medicines 18 19 33 49 92 305 308. To punish for making bad medicines or not according to Physicians prescriptions 49 50 51 95. To summon Apothecaries c. to testifie against illegal practisers and to punish them upon refusal 47 48 50 90 91 93 94. To supervise practisers and to summon censure or punish any of them offending 44 45 86 87. To impose fines 9 32 44 46 50 51 84 89 91 94 95 279 280. To imprison 9 31 32 44 46 50 84 89 95 111 112 279 280 343 344. In what cases they have power to fine and imprison and in what not 188 189 195 207 215 216 217 279 280. How the first of Q. Mary hath enlarged their power 198. Several things to be observed for their better direction 200 219. They may commit to prison upon refusing examination if an ordinance of the College be made to that purpose 280 281. No Action of false imprisonment can lie against them for committing for unskilfull or temerarious practice 281. They may sue for two years practice 419. The form of a Censors Warrant to imprison 467 468. To discharge from prison 351. They are sworn duly to execute their Office 80. They are to take the Oaths of Obedience and Supremacy ibid. They may be removed and for what causes 76 78. Charter of H. 8. why granted p. 6 7. recited in other Charters and in trials with Empiricks 38 39 62 63 148 164. Charter of Q. Elizabeth 35. Charter of K. James why granted 40. The King promised to consent to a bill in Parlament for confirmation thereof 59. Charter of our present Sovereign K. Charles 2. why granted and at whose humble petition 66 67. The King promised to consent to a bill in Parliament for confirmation thereof 116. Charter of K. James to the Apothecaries 119. College of Physicians why and when made a Body Corporate within London and 7 miles thereof p. 6 7 10 11 37 38 62 148. They shall have perpetual succession and a common Seal 8 68 69. They shall be of ability to purchase lands 8 57 68 114. They may sue and be sued 8 42 68 107. They may make lawfull Assemblies and Ordinances for Government 8 53 54 83. None shall practise Physick in London or 7 miles unless he be admitted by the College 8 9 85. Not to be summoned on Iuries and to be exempted from watch and ward and all Parish Offices 10 17 18 115. To have a Hall 53 82. To have a Register 55 109. To appoint other Officers and to give them an Oath 56 110. To remove them upon just cause 56 110. Power to take Recognizances to the King 57 110 111. The King's moiety given to the College 43 106. All fines given to the College 51 52 106. 6l per an to be paid into the Exchequer for and in respect of the King's moiety and fines c. 60 108. The College hath power to remove any of the Elects Censors or Fellows and why 56 78. Not less than 15 can make a College 83. Any of the Physicians in London may practise Surgery 20. Power to punish by fine or imprisonment 84. Their Charter confirmed by Acts of Parliament Royal Patents and adjudged Cases 11 31 35 39 40 41 64 115 116 152 159 163 164 169 172 180 197 205 215 221 229 230 245 250 276. All fines except 10 l. and 5 l. per mens to go to the poor charges first deducted 107 108. Copies of several of their Declarations agianst Empiricks and illegal practisers 147 164 178 202 261. Their Declaration may be in the name of the President and not of the College and yet good 223 225 251 256. They may either bring their Action or exhibite an Information 217 229. This information may lie in any of the King's Courts of Westminster notwithstanding the Statute of the 21 K. Jac. c. 4. 233 234 243 256. The College may imprison for breach of private Statutes and impose reasonable fines thereupon and continue Delinquents in prison till paid 279. They may take a reasonable Sum upon admissions 279. A Letter writ by them against the admission of Dr. Saul to be the Queen's Physician 357. Their opinion required about the death of a Noble Lady 381. About a Patent to be granted for the cure of Ruptures 395. About a person suspected to be poisoned 428. Concerning one pretending great cures as being the seventh Son 446 447 c. E. Elects Eight appointed by Act of Parliament p. 11. Their power what 11 12. Ten appointed by the last Charter 70. their names 71. They may be removed and why 77 78. They should take the Oaths of Obedience and Supremacy 80. Elections They are duly to be made 72. Each Fellow hath his single voice 79. Where voices are even a casting voice is allowed the President ibid. Empiricks Their several pleas 154 222 265. Butler's plea for practice was the 34 35 H. 8. c. 8. p. 222 226 229. The College's Answer 222 226 229. Butler demurrs and why 222 226 230. Errours assigned by him 222 223 225. Iudgment given against him 222 223 224 228 259. How Butler exceeded the licence of the 34 35 H. 8. p. 234. Gardiner's plea the same 154 156. The President 's reply 157. He pleads the insufficiency of that answer 158. The President defends it ibid. A judgment given against Gardiner by the Court of Kings Bench upon the Charter of 10 H 8. and the Statutes confirming it 159. He moves for an arrest of judgment and why 161 162 163. The Court upon hearing the Record adjudged for the College 163. Huybert The College's Declaration against him 261 267. His plea viz. that the 14 15 H. 8. was no Statute 265 267. The College's reply 265. The Record of the 14 15 H. 8. brought out of Chancery to the Court of King's Bench by Mittimus 267. Huybert's Council objected that this was no Act
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
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