LIbrum hunc cui Titulus The Royal College of Physicians of London founded and established by Law c. dignum censemus qui typis mandetur D. Whistler Praeses Tho. Witherley Johan Atfield Edvardus Browne Tho. Alvey Censores THE Royal College OF PHYSICIANS OF LONDON Founded and Established by Law As appears By Letters Patents Acts of Parliament adjudged Cases c. AND An Historical Account of the College's proceedings against Empiricks and unlicensed Practisers in every Princes Reign from their first Incorporation to the Murther of the Royal Martyr King Charles the First By CHARLES GOODALL Dr. in Physick and Fellow of the said College of Physicians LONDON Printed by M. Flesher for Walter Kettilby at the Bishop's Head in St. Paul's Church-Yard 1684. To the Right Honourable FRANCIS LORD GVILFORD Lord Keeper of the Great Seal of England and one of his Majestie 's Most honourable Privy Council My Lord 'T Is now no less than seven years since I adventured the prefixing of your Lordship's name to a Book written in defence of the College of Physicians against a bold and impudent Libell published with design to expose that Learned Society to contempt Since which time I have not onely had the honour of being made one of their Members but have been entrusted with the search of their Records and received encouragement to publish a Collection of their Royal Patents Acts of Parliament Trials with and proceedings against Empiricks that so the Adversaries of this Society might be convinced of the reason and Justice of their actings against those illiterate and vile Impostors whose practice by Act of Parliament is declared to be To the high displeasure of God great infamy to the faculty and destruction of many of the King's Liege people Your Lordship knows very well the grounds which first moved that noble and renowned King Henry 8. in the tenth year of his Reign to constitute this Royal foundation whose Princely wisedom herein was highly approved by Act of Parliament in the 14 15. years of his Reign in which the King's Letters Patents and all and every Graunt Article and other thing contained and specified therein were approved graunted ratified and confirmed About seventeen years after a second Act of Parliament was granted to this Society by the same King of glorious memory for enlarging of their Privileges with the addition of many new ones In the first of Q. Mary being but 29 or 30 years from the 14 15 H. 8. a third Act of Parliament was made in confirmation of the forementioned Statute and many more privileges of great moment were added to the former Queen Elizabeth and King James of ever glorious memory and his Sacred Majesty now Reigning whom God long preserve from all traiterous Associations and Conspiracies of bloud-thirsty and malicious men have by their several Royal Patents granted them farther Liberties Powers and Privileges by reason of the great increase of unskilfull illiterate and unlicensed practisers of Physick in London and within 7 Miles thereof who now my Lord are arrived to that height of impudence not onely in their publick writings but even in the King's Courts of Judicature that they dare adventure to question the Authority of an Act of Parliament though owned as such by those Royal Testimonies already named by the Chief Justices and Judges of the King's Bench and Common Pleas such as Popham Coke Fleming Foster Walmesly Warburton Daniel Williams Tanfield Crook Littleton c. in their several Books of Reports and in their resolutions of several questions relating to the College of Physicians wherein they gave their opinions by an order from K. James directed to the Right honourable Thomas Lord Ellesmere Lord Chancellour of England which opinions are inserted in this book c. by its being printed in several Statute books and Abridgments of the same which were published even in that King's Reign in which they were enacted by Robert Redman Thomas Berthelet Wyllyam Mydylton Thomas Petyt and Thomas Powel Printers to his Most Excellent Majesty and since in all the Statute books and Abridgments that have been Printed to this time Nay more than this In the Rolls Chapel and in the Journal books formerly collected by that famous Antiquary Sir Robert Cotton and preserved by Sir John in his Father's Library and in the Journal books of the Right honourable the Earl of Clarendon which I had the honour to look over I find 36 Acts of Parliament passed in that Session of 14 15 Hen. 8. At the end of the twenty fourth this is inserted Item diverse communes petitiones rem publicam concernentes exhibite erant dicto Domino Regi in Parliamento predicto cum suis responsionibus quarum tenores sequuntur sunt tales Amongst which upon the same Roll the 33th is an Act concerning Physicians and after the 36th is entred the King's Commission to Cardinal Wolsey Printed p. 12. of this book which finisheth that Roll of Parliament In which it is thus expressed Reverendissimus Dominus Legatus Cancellarius Acta omnia in presenti Parliamento pro bono publico edita facta ex mandato Domini Regis recitari publicari jussit Quibus ex ordine per inicia recitatis lectis singulis per Clericum Parliamenti responsione secundum annotationes Regie voluntatis declarativas à dorso scriptas facta c. Add to this that excellent and learned account given by the Lord Chief Justice Hales why the Royal Signature might not be entred by the Clerk of Parliament in his transcript of the Original Rolls under this Act of Parliament and nine others passed in that Session in a late Judgment given against Huybert As likewise the testimony of the Lord Herbert of Cherbury in his excellent book of the Life and Reign of King Henry 8. drawn out of his Majestie 's Records In which he acquaints us with the more famous Statutes enacted in the Parliament of 14 15 Henry 8. amongst which we find this relating to the College of Physicians Now my Lord from these Authorities and many others of the like kind We should be in some hopes that these men being formerly driven from their old plea of 34 35 of Hen. 8. c. 8. An Act made against Surgeons for their unconscionable dealing with their Patients and for giving liberty to all such who practise for Piety and Charity without taking money or gain as appears by a Judgment given against Butler p. 258 and from this their late Plea of Nul tiel Record that our profession might flourish and that as King James hath expressed it in his Royal Patent by rejecting such illiterate and unskilfull Practisers those that were Learned Grave and Profound Practisers in that Faculty should receive more bountifull reward and also the industrious Students of that profession would be the better encouraged in their Studies and endeavours But that we have to deal with a sort of men not of Academical but Mechanick education who being
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
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
time to time authorized for the due execution of the Acts and Statutes in that behalf made upon pain for not giving such aid help and assistance to run in contempt of the King's Majestie his Heirs and Successors Now forasmuch as we have been enformed by the President of the College that there are sundry unskilfull persons within the precincts and limitts aforesaid who doe use and practise the said faculty contrary to the same Statutes of this Realm in that case provided and to the great peril and danger of the lives of many of his Majestie 's subjects These are to will and require you and in his Majestie 's name streightly to charge and command you that henceforth at all time and times you according to the tenour of the said Act be aiding and assisting to the said President and to those that shall be lawfully authorized by the said President and College for the apprehending of all such persons as shall unlawfully use and practise the said faculty within the limits aforesaid contrary to the intent and meaning of the Statutes aforesaid when they or any of them shall give you notice of and require and thereupon to bring them before the said President or those authorised as aforesaid to their College there to be examined and proceeded against as to the Law in that case shall appertain Whereof fail you not as you and every of you will answer the contempt in that behalf made Yeven under our hands at Whitehall the xxiiiith day of July An. Dom. 1609. and in the seventh year of the Reigne of our Sovereign Lord James by the grace of God King of England France and Ireland Defender of the Faith c. and of Scotland the two and fortieth R. Cant. T. Ellesmer Canc. R. Salisbury H. Northampton T. Suffolk W. Knollys J. Stanhope Jul. Caesar Tho. Parry Tho. Fleming Jo. Corbet About 13 years after the King was pleased to send a Letter to the President and Censors of the College requiring them to summon all illegal and ignorant practitioners in order to examine their sufficiency and to punish the insufficient according to the Laws in that case provided The Contents of which are as follow To our trusty and welbeloved the President and Censors of the College of Physicians within our Cittie of London JAMES R. TRusty and welbeloved We greet you well Whereas the Art of Physick by many unlearned men making gain by the profession thereof to the great hurt and prejudice of many of our loving subjects is much abused in many places in this our Realm but especially in our City of London and the Suburbes thereof the government whereof as touching the practice of the said Art and the practitioners thereof being by the Lawes and Statutes of the Realme committed unto you the President and Censors of our College of Physicians and you having also from us by our Letters Patents more ample authority for the suppression and correction of such Delinquents We therefore minding so farre as in us lyeth the speedy reformation of all such abuses and inconveniences do by these presents as heretofore yet more strictly charge and command you the President and Censors aforesaid to call before you all such irregular and ignorant Practitioners as contrary to our Lawes and authority do abuse that Art and to examine their sufficiency and such as you shall find not sufficient to punish for their said practice according to our Lawes in that case provided And whereas we are credibly given to understand that many having been punished and warned by you to desist from any further practice do yet obstinately notwithstanding persist in the former contempt of our Laws and commandments We will and command you that you proceed against such Delinquents with all severity according to the tenor of our said Letters Patents and the due course of our Lawes by fine and imprisonment or by causing them to enter into Recognisances with condition restraining them to offend any more or otherwise as the case shall require and is agreeable to Iustice And our will and pleasure is that such offendors as shall be so imprisoned shall there remaine without being enlarged unlesse it be upon their conformity and submission to you the said President and Censors or other due course of Law Wherein we require all our Iudges and Iustices that they be very carefull and circumspect not to do any thing that may give encouragement to such offendors by enlarging any such too easily without due examination of the causes of their Commitment first calling thereto the President and Censors or some of them to declare the true reasons and causes thereof And whereas we are given to understand that oftentimes upon the sollicitation of some or other friend or person of Quality suiter to you for the sad Delinquents after their conviction you have been moved to wink at their faults and neglect their punishment to the great prejudice of the health of many of our poor subjects Our will and pleasure is and we do hereby streightly charge and command you that henceforth neither for favour friendship or respect of any you forbeare the just censure and punishment due by our Lawes to such Delinquents as you shall answere us on the contrary at your peril and that you require the aide and assistance of the Lord Mayor and Aldermen of our City of London whom by our Letters we have so required to do for your better expedition in the execution of this our Royal will and commandment not doubting but that you with more care will seek to suppresse such intolerable abuses and satisfy our trust in this case committed to you Given under our signet at our Palace of Westminster the second day of July in the twentieth yeare of our reign of England France and Ireland and of Scotland the five and fiftieth At the same time another Letter was sent from the King to the Lord Mayor Aldermen and Justices of London the Copy of which is the following WHereas in the time of our Predecessors of famous memory by several Acts of Parliament as also by our late Charter there hath been sufficient provision and power given and granted to the College of Physicians in London to reforme and suppresse all and singular unlawfull and unlearned practitioners in Physick and hearing neverthelesse that divers unskilfull and unlearned men and women do rashly adventure to enter into the practice of Physick to the great danger and hurt of our subjects We therefore now finding that neither Acts of Parliament nor our Charter heretofore granted have for want of execution wrought such good effects as we wish alwayes for the good of our subjects do by these presents charge you the Lord Mayor Aldermen and Iustices of peace within our City of London and the precincts that with all readynesse you do aide and assist the President and Censors for the time being of our College of Physicians in London or such Officers as the President and the said College
he petitioned that he might answer the College action without an arrest which was granted provided he would find Sureties to answer the College Suit if he were cast at Law Which being done and this Cause appointed to be heard at the King's Bench Bar 6 of the Fellows of the College were deputed to attend there and after this hearing Dr. Harvey the Treasurer and the 4 Censors were desired to take special care in the future management of the College's cause against Butler who had procured a protection from the Lord Chamberlain upon which account 4 of the Fellows were ordered by the President to wait upon his Lordship to take off his protection that the College might proceed in their Suit against him The Lord Chamberlain upon their application declared his readiness to comply with the College's request and ordered his Secretary to write the following reference against Butler The College of Physicians having represented that one George Butler under colour of being sworne an extraordinary Chirurgion to his Majestie doth take upon him to give Physick and practise Chirurgery without either skill or Licence to the apparent prejudice and endangering of the lives of his Majestie 's subjects and thereupon desired leave to take the ordinary course of Law to inhibite his practice and to prevent the danger which may ensue thereby I do hereby declare and publish unto all such as it may concerne that I have and do give free leave and liberty unto the said College to use all lawfull wayes and meanes accustomed in like cases either by arrest or otherwise for the suppressing and prohibiting of the said Butler's further practice in as free and ample manner as if the said Butler had never been sworne the King's servant Whitehall the 25th of November 1626. About 8 months after several fresh complaints of great mischief done by Butler in his practice were exhibited against him As particularly for giving a sleeping potion to one Patient who was sound dead in his sleep The wife of this man thus murthered applied her self to the Censors and desired that Mr. Butler might be punished for professing that which he did not understand which she pressed the more because she said such a man as he might kill many both Body and Soul every one being not so well prepared for death as her husband She desired a Certificate from the College concerning Mr. Butler and his ill practice After this Butler sent a Letter to the President and College which being read was rejected After this a servant of Butler's acquainted the Censors that while she dwelt with him a woman came to him for Cure who within 3 weeks died and was carried away secretly without tolling the Bell or any Minister being called Upon this information Butler endeavoured to imprison this servant using all arts to take her which occasioned her application to the College for their protection complaining of the many injuries she had received from Mr. Butler since her appearing against him Wherefore the President ordered the following Letter to be drawn up and presented to the Lord Chief Justice in her behalf MAy it please your Lordship to understand that the Petitioner on the 7th of Jan. last past came to our College voluntarily to complain of the evil practice of Mr. Butler as is in the petition specified since which time we are certainly informed that he hath laid heavy actions upon her and kept her in prison as is above specified We conceiving the chief grounds of his violent proceedings against her to have risen upon her complaint made to us In consideration of her misery We having noe power to relieve her doe presume humbly to intreat your Lordship to take such course as your Lordship in your wisdome shall think fit that she may obtain the benefit of her Petition After this Dr. Winston signified to the College that Butler sent a petition to him to be presented to the College which he refused Then Butler sent a Letter to the President after which it was agreed that if he paid in the money recovered and due to the College before the Term then the other Suits depending might be suspended if it pleased the President A Letter about this time in the behalf of Butler was brought from the Lord Chief Justice of the Common Pleas by Captain Butler directed to the President and Censors of the College the Contents of which are the following Mr. Doctor Argent I Am informed of a Judgment which is obtained against Mr. Butler at your Suit and the rest of the College of Physicians for 60 l. which I find him very willing and ready to satisfie so far forth as his ability will give leave for the present He will pay half the money in hand and the next some time the next Terme which I conceive is no ill payment his estate considered Therefore I desire you and the rest of your College to take him thus far into your consideration And what you do herein I shall take as done in respect of me who am intreated to write in his favour by some whom I am willing to satisfy in this request appearing to me to be but reasonable and little hurtfull to your selves But to animate him of any other against your Government I neither do nor ever will write Your very assured loving friend Ro. Heath Julii 1. 1633. Captain Butler promised that on Friday 36 l. of the money due from Butler should be paid and desired time till the next Term for the payment of the rest The College took time to consider for a few days and then promised him their answer Upon the Friday aforementioned according to promise Captain Butler brought 36 l. from Mr. Butler to whom by Mr. President 's appointment was given the following note It was ordered by Mr. President and Censors the 5th of July 1633. that Mr. George Butler having sent in 36 l. in part of Payment of the 66 l. due to the College by a judgment given against him in the King's Bench in Easter Term in the 7th year of his Majestie K. Charles 1. his Reign at the request of the Lord Chief justice of the Common Pleas should have time given him for the payment of the other 30 l. till the 20th of November next ensuing and in the mean time all prosecution upon the foresaid judgment should surcease Mrs. Bendwell was complained of by Thomas Audley for undertaking his cure in 3 days though in a Hectick Fever she telling him that she had cured those whom the Doctours had left and could not cure She gave him a Purging drink that wrought day and night and brought him to exceeding weakness He said that about the same time she gave his Laundress physick of whom she had Linen to pawn which she was warned to bring in Complaint was likewise made against her by a man and his wife who had bargain'd with her for a cure and had pawned a dozen of Napkins to raise money for her payment c. She
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
Physitians in the Cittie of London shall be and remayne at all times hereafter for ever persons able and in Lawe capeable to have purchase receive possesse hold and enjoy any Mannors Lands Tenements Liberties Priviledges Franchises Iurisdictions and Hereditaments whatsoever of what name nature qualitie kind or condition soever the same or any of them shall bee to them and their successors in fee and perpetuity or otherwise And alsoe Goods and Chattells and all other things of what name nature quality or kinde soever the same be And alsoe by the same name to give graunt demise alien assigne and dispose the said Mannors Lands Tenements and Hereditaments Goods and Chattells And alsoe to doe and execute all other things lawfull necessary and convenient for the common profitt of the said Colledge And alsoe by the same name of the President Fellowes and Comonalty of the Kings Colledge of Physitians in the Cittie of London They shall and may for ever hereafter pleade and be impleaded answere and be answered unto defend and be defended in all and whatsoever Courts and places and before whatsoever Iudges and Iustices and other Persons and Officers of us our heires and successors in all and singular Actions pleas suites quarrells causes matters and demaunds whatsoever of what name nature qualitie or kind soever the same are or shal bee in the same manner and forme as any other subjects of this our Kingdome of England being persons able and capeable in Law or any other body Corporate or Politique within this our Kingdome may or can have purchase receive possesse give grant demise alien assigne and dispose pleade and be impleaded answere and be answered unto defend and be defended doe performe or execute And alsoe that they and their successors shall and may for ever hereafter have a Common Seale to serve and use for all causes matters things and affaires whatsoever of them and theire successors which shall alwayes bee and remayne in the custody and keeping of the President of the said Colledge of Physitians for the tyme being And that it shall and may bee lawfull to and for the President and Fellowes of the same Colledge or the major part of them for the tyme being to breake alter change or make new the said Seale from tyme to tyme att theire wills and pleasures and as to them shall séeme requisite and fitt AND alsoe from tyme to tyme and att all tymes hereafter to use and dispose of the Common Seale of the said Colledge for the time being in and about all things matters and affaires whatsoever of or concerning the same Colledge and Corporation in such manner as to them shall seeme fitt and requisite AND for the better order rule and governement of the said Colledge and Corporation and the matters and things thereof and the due and orderly correcting and punishing of all offences and offenders within the power and jurisdiction of the same Colledge and Corporation WEE doe by theise presents for us our heires and successors will ordeyne constitute declare and graunt that there bee and for ever hereafter shal bee forty Fellowes of the said Colledge and Corporation hereby constituted And that thereof att present and for ever hereafter there bee one President Tenn Elects and fower Censors duely appointed nominated and chosen to bee and shall bee respectively President Elects and Censors of the same Colledge and Corporation And all the same Fellowes President Elects and Censors respectively to bée and shalbée from tyme to tyme nominated elected and chosen and have being and continuance as such respectively in manner and forme and to all intents and purposes as in and by theise presents is hereafter mentioned and declared AND further We doe by theise presents for us our heires and successors will ordeyne constitute and appoint Sir Edward Alston Knight Sir Francis Prujean Knight Baldwyn Hamey Francis Glisson Peter Salmon George Ent George Bate Alexander Frazier William Stane John Micklethwait Nathan Pagett Jonathan Goddard Edmond Trench John King Thomas Cox Henry Stanley Daniell Whistler Charles Scarburgh Thomas Wharton Christopher Merrett Samuell Collins Luke Rugeley John Wilby Sir William Pettie Knight Christopher Terne Sir John Baber Knight John Hale Edward Greaves Thomas Croydon Gabriell Beauvoir Thomas Wolfe Martin Luellin Sir John Finch Knight Thomas Baynes William Quarterman James Hide Humfry Whitmore Robert Waller Peter Barwicke and Robert Morrison Doctors in Physicke the first and present Fellowes of the same Colledge and Corporation And to bée and continue Fellowes of the same Colledge and Corporation and to hold exercise and enjoy the office or place of Fellowes of and in the same Colledge and Corporation respectively for and dureing theire severall and respective naturall lives unlesse in the meane tyme for evill governement or misbehaving themselves in the same office or place or for Nonresidence otherwise than while they or any of them respectively shal bee or continue in the service of us our heires or successors without Licence under the Seale of the Colledge and Corporation aforesaid or under the Privy Seale of us our heires or successors or for any the like reasonable cause they or any of them respectively shal bee removed AND Wee doe by theise presents for us our heires and successors will ordaine constitute and appoint the said Sir Edward Alston Knight the first and present President of the same Colledge and Corporation And to bee and continue President of the same Colledge and Corporation and to hold exercise and enjoy the same office or place of President of and in the same Colledge and Corporation from the makeing hereof untill the morrowe of the feast of Saint Michaell the Archangell next ensueing the date hereof and from thenceforth untill another President shall bee in due manner elected and sworne according to the tenor true intent and meaning of theise presents AND Wee doe further by theise presents for us our heires and successors will ordeyne constitute and appoint the said Sir Edward Alston Sir Francis Prujean Baldwyn Hamey Francis Glisson George Ent George Bate Alexander Frazier William Stane John Micklethwaite and Nathan Pagett to bee the first and present Elects of the same Colledge and Corporation and to be and continue Elects of the same Colledge or Corporation and to hold exercise and enjoy the office or place of Elects of the same Colledge and Corporation for and dureing theire severall and respective naturall lives unlesse in the meane tyme for any reasonable cause as aforesaid they or any of them shall bee removed AND Wée doe by theise presents will ordaine constitute and appoint the said George Ent John Micklethwaite Daniell Whistler and Christopher Merrett the first and present Censors of the same Colledge and Corporation and to bee and continue Censors of the same Colledge and Corporation and to hold exercise and enjoy the office or place of Censors of and in the same Colledge and Corporation untill the morrowe of
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
young Divine his body to a young Physician and his goods or other estate to a young Lawyer for In Juvene Theologo est Conscientiae detrimentum in Juvene Legislatore bursi decrementum in Juvene Medico Coemeterii incrementum for in these cannot be the privity discretion and profound learning which is in the aged And he denied that the College of Physicians is to be compared to the Vniversity for it is subordinate to that Cantabrigia est Academia nostra nobilissima totius Regni oculus sol ubi humanitas doctrina simul sluunt But he said when he names Cambridge he doth not exclude Oxford but placeth them in equal rank But he would always name Cambridge first for that was his mother And he saith that there is not any time pro non bene faciendo utendo exequendo for this non suscipit magis minus for so a man may grievously offend in one day and therefore in such a Case his punishment shall be by Fines Amerciaments Imprisonments of their Bodies and other ways c. But if they practise well though it be an offence against the Letters Patents and the Statute yet the punishment shall be but pecuniary and he shall not be imprisoned for if he offend the body of a man it is reason that his body shall be punished for Eodem modo quo quis delinquit eodem punietur but if a grave and learned Doctor or other come and practise well in London by the space of thrée wéeks and then departs he is not punishable by the said College though it be without admission for peradventure such a one is better acquainted with the nature and disposition of my body and for that more fit to cure any Malady in that than another which is admitted by the College and he said that it was absurd to punish such a one for he may practise in such manner in despite of the College for all the Lords and Nobles of the Realm which have their private Physicians which have acquaintance with their bodies repair to this City and to exclude those of using their advice were a hard and absurd exposition for the old verse is Corporis auxilium Medico committe sodali And also he said that the said President and College cannot commit any Physician which exerciseth the said faculty without admission for the space of a Month nor bring their Action before themselves nor levy that by any other way or means But ought to have their action or exhibite an Information upon the Statute as it appears by the Book of Entries for they ought to pursue their power which is given to them by the Statute for otherwise the penalty being given the one Moiety to them and the other to the King they shall be Iudges in propria causa and shall be Summoners Sheriffs Iudges and parties also which is absurd For if the King grant to one by his Letters Patents under the great Seal that he may hold Plea although he be a party and if the King doth not appoint another Iudge than the Grantée which is Party the Grant is void though it be confirmed by Parliament as it appears by 8 H. 6. 44 Ed. 3. The Abbot of Reading's Case for it is said by Herle in 8 Ed. 3. 30. Tregor's Case that if any Statutes are made against Law and Right they are null and so are these which make any man Iudge in his own Cause and so in 27 H. 6. Fitz. Annuity 41. that the Statute of Carlisle will that the Order of Cistertians and Augustines which have Covent and Common Seal that the Common Seal shall be in kéeping of the Prior which is under the Abbot and four others which are the most Sages 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 was that this is a void Statute for it is impertinent to be observed seeing when the Seal is in their kéeping the Abbot cannot Seal any thing with it and when it is in the hands of the Abbot it is out of their kéeping ipso facto And if the Statute shall be observed every Common seal shall be defeated by one simple surmise which cannot be tried and for that the Statute was adjudged void and repugnant And so the Statute of Gloucester which gives Cessavit after the Cesser by two years to be brought by the Lessor himself was a good and equitable Statute But the Statute of Westminster 2. Chap. 3. which gives Cessavit to the Heir for Cesser in time of his Ancestor was judged an unreasonable Statute in 33 Ed. 3. for that the Heir cannot have the Arrearages due in the time of his father according to the Statute of Gloucester and for that it shall be void And also the Physicians of the College could not punish any by Fine and also by Imprisonment for no man ought to be twice punished for one offence And the Statute of 1 Mariae doth not give any power to them to commit for any offence which was no offence within the first Statutes and therefore he ought not to be committed by the said Statute of 1 Mariae But admitting that they may commit yet they have mistaken it for they demand the whole hundred shillings and one half of that belongs to the King And also they ought to commit him forthwith as well as Auditors which have authority by Parliament to commit him that is found in Arrearages But if they do not commit him forthwith they cannot commit him afterward as it appears by 27 H. 6. 9. So two Iustices of the Peace may view a force and make a Record of it and commit the offenders to Prison but this ought to be in flagranti Oriente And if he do not commit those immediately upon the View he cannot commit them afterwards And the Physicians have no Court but if they have yet they ought to make a Record of their commitment for so was every Court of Iustice to doe But they have not made any Record of it And Auditors and Iustices of Peace ought to make Records as it appears by the Book of Entries So that admitting that they may commit yet they ought to doe it forthwith But in this case they cannot commit till the party shall be delivered by them for this is against Law and Iustice and no Subject may do it but till he be delivered by due course of Law for the Commitment is not absolute but the cause of it is traversable and for that ought to Iustify for special cause For if the Bishop returns that he refuses a Clerk for that he is Schismaticus inveteratus this is not good but he ought to return the particular matter so that the Court may adjudge of that Though it be a matter of Divinity and out of their science yet they by conference may be informed of it and so of Physick And they cannot make any new Laws
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
those that belong to the practice of Physick See Entries fol. 463. Pl. 3. Action was brought against one for practising of Medicines and for that cause it was necessary to shew what practice this was scil tam per visus c. quà m interiores potiones And there is another action there where one that practised as Surgeon practised ut Medicus that where the Plaintiff suit aegrotus of the Colick the Defendant ut medicus sed indoctus cupidus lucri saith to the Plaintiff that he was troubled with thrée Imposthumations and administred to him medicinam insalubrem intoxicatam whereby the Plaintiff was in danger of his life And in the same book fol. 463. Pl. 1. it is shewn what a Surgeon ought to do Entries fol. 127. and an appeal of Mayhem 46. Pl. 5. Register trespass fol. 139. The Statute 32 H. 8. was apparent that the Iudgment of the Parliament was that Surgery was a member of Physick And he said there were 2 kinds of Surgeons Barber-Surgeons who were incorporated 1 E. 4. and Surgeons onely He agréed that the Statute against the words may be construed by equity as Stradling and Morgan's case but to whom shall this equity extend Posito that it extends to Surgeons yet it never extended to Empiricks Equity against the letter ought to be grounded upon the intention 30 E. 3. 6. 1 H. 6. 3. The Statute of Marlebridge there are negative words as here that no person shall drive a distress out of the County c. vide the Case But posito that a stranger shall distrain c. the equity shall not extend to him So in our Case although a Surgeon be tolerated yet a Stranger shall not invade the liberty of Physicians 2. The Statute of 34 H. 8. doth not restrain that which is within 14 H. 8. but meddles with the mischief mentioned in 32 H. 8. And it appeareth that the intention of 34 H. 8. was not to raise a new profession but to tolerate the old For the Statute is where many give Medicines without money scil for Charity and neighbourhood And the purview is general that such c. But the difference is if any will within his own house or to his friend give Medicines it is not within the Statute But if he make profession and set up a Bill that he can cure such and such diseases it is otherwise Pl. Com. 463. And if the question had béen put to the makers of the Statute whether they would raise a new profession it would have béen denied to be their intention 8 Rep. fol. 129. Exercise of brewing is not every brewing for his own house alone c. but profession thereof And 11 Rep. fol. 23. So here But posito that every one may exercise within 34 H. 8. yet it is not a Repeal of 14 H. 8. but as it were a licence or dispensation therewith c. And if it were yet 1 Mariae repeals all 34 H. 8. that any way impeaches 14 H. 8. If it was made to such purpose at first this Act 1 Mariae takes notice of 14 H. 8. and provides that staret continuaret c. Any Act Statute c. to the contrary And what Statute can be to the contrary but the Statute 34 H. 8 As to the Objection that there wants staret and is onely continuaret insomuch that cannot be of any force it shall be as if it were absent and then continuaret is not only a confirmation but is to remove the impediment which is the Statute 34 H. 8. as it was before And although that this Statute of 1 Mariae is a private Statute yet the substance being pleaded is sufficient But the plea in barr is ill this is Iustification by virtue of a Statute Law the Statute gives the Iustification in this manner that he c. justifie generally The application of Plasters and giving of Potions to Sores Agues Stone Strangury c. talibus morbis and doth not say secundum formam Statuti and therefore shall not be construed pro reddendo singula singulis 15 H. 7. 10. where the construction is made reddendo singula singulis c. This form of pleading is also a new form quoad those c. he justifies and he doth not say this is the same practice whereof the Plaintiff declares And so to force the Plaintiff to a replication when the thing is intire as here that he had exercised facultatem medicinae he cannot sever his plea and justifie these Et quoad alia c. plead Not guilty But he ought to plead as it is said before or traverse absque hoc c. 2. The Plea in Barr consists of 2 points one is a Iustification the other is a Travers Et he shall not have the Iustification si hoc parat est verificare 22 H. 6. 6. There without Travers it is good according to Dyer 167. But when the justification tends to all it is not so 27 H. 6. 10. and it cannot be amended nor no repleader now after demurrer Then let the Replication be as it will when the Barr is ill and the declaration good this should not be answered Vide Dr. Bonham's Case Francis Case and Turner's Case c. Mich. 6 Caroli primi Communi Banco The Iudges in this case gave their Resolution RIchardson Chief Iustice for himself and for the other Iudges said That he would recite the principal points of the Case which be The Plaintiffs declare that the Charter made to the College did inhibit That none shall practise Physick c. without licence c. and that the Defendant contrary thereto had practised by the space of 12 months for which he had forfeited 5 li. for every month which amounts to 60 li. The Defendant pleads the Statute 34 H. 8. that made it lawfull for any skilfull c. to administer outward Plasters c. or Potions c. and as to any other practice he pleaded Non culpabilis The Plaintiffs reply and shew the Statute of 1 Mariae which confirms their first Charter Any Act to the contrary notwithstanding Vpon which the Defendant demurred in Law and our Ioint Resolution is that the Plaintiffs shall recover It hath béen objected against the Iurisdiction of this Court that by the Statute of 21 Jac. this action ought not to be brought here But it is clear that it cannot be brought in any other place than in the Kings Courts of Record at Westminster For the Statute doth not mention in what Court it shall be brought and the Statute 21 Jac. which giveth power to Iustices doth not give any other thing to them but that whereof they have Power and Iurisdiction before and before this they had not any Iurisdiction of this Cause Ergo. Another Objection hath béen made that the Action hath not béen well brought because it ought to be brought in the name of the President onely To which I answer that the Charter it self is that they may
a Warrant from the Lord Chief Justice taken out of Prison and restored to his liberty Wherefore it was ordered that the President and one of the Censors should wait upon the Chief Justice with a Petition from the College to request his favour in defending and preserving the College privileges upon which Anthony submits himself to the College's censure and begs their favour Wherefore it was ordered that he should forthwith pay to the Treasurer of the College the 5 l. due sor his fine which he â—…ed to do and was likewise interdicted practice Not long after he was again accused of practising Physick which he confessed wherefore he was punished 5 l. for practising against the Statutes of the College and his own promise But he resusing to pay it was committed to prison and fined 20 l. About 8 months after order was given by the Censors for prosecuting him at Law he having confessed 3 years practice within the City and his prescribing medicines lately to one that died and to another in great danger After this Anthony's wife petitioned the College that they would deal mercifully with her husband and restore him to his liberty This Petition was rejected it being now out of the College's power to set him at liberty the suit depending being commenced in the Queen's name as well as the College's Wherefore about 2 months after Mrs. Anthony delivered a second Petition to the College with so great importunity and tears that partly upon that account and partly upon the account of Anthony's poverty c. they granted the following Warrant to the Keeper of the Prison Whereas Francis Anthony at the Suite of the President of the College or Comminaltie of the Physicians of the City of London lieth in execution after Iudgment for a certaine summe of money whereof 30 l. are due unto her Majestie and the rest to the said President for the time being and the Comminaltie We the said President and Comminaltie aforesaid are contented for our parts so much as concerneth us to discharge the abovenamed Francis Anthony so that it be no ways prejudicial to her Majestie 's part due upon the said execution Given under the College Seal this 6th of August 1602. Regnique Reginae Elizabethae quadragesimo quarto Two years after Anthony's release from prison Dr. Taylor with 2 Physicians more of the College and some other persons complained against him for prescribing Physick to several Patients amongst which one died upon the use of his remedies another lost all his teeth a third fell into such violent vomitings and looseness that the day after he died and charged his death upon Anthony who had said that when all other remedies failed him he used this as his last and extreme one which in the nature of it would either kill or cure The President and Censors gave order for his prosecution according to Law After which order several fresh complaints were brought against him as his prescribing his Aurum potabile to a Reverend Divine who upon his deathbed complained that this medicine had killed him he falling upon the use of it into an incurable inflammation of his Throat c. In the 43th Richard Edwards a servant of an Apothecary lately dead was charged for practising Physick He confessed that he had given Clysters and other medicines to some sick persons but not of his own invention but such as he had taken from bills on the file he likewise confessed that he had given various remedies to a woman troubled with the Scurvey c. Wherefore he was sent to prison and fined 5 l. A second time practice being proved against him he was fined 40 s. ob illicitam praxin In the 44th Iohn Clark being summoned by the Beadle to appear before the President and Censors to answer what should be charged against him for practising Physick without Licence wrote a Letter to excuse his absence which he said was not occasioned from from any contempt of College authority but from fear of being arrested by some Creditors About 6 months after he appeared and denied that he had practised from the time he was interdicted by the College but confessed that he had exposed to sale some choice waters the composition of which he was required to declare to the Censors upon a certain day appointed for that purpose upon the penalty of a contempt A month after appearing before the Censors he was required to give an account why he sold a Pint of Cinnamon water for 5 l. He answered that the College had no power to examine him that he made use of an extraordinary purging remedy and was master of another for Fevers made out of Mummy communicated to him by Hugo Plat that the book intituled Tuba Apollinis was wrote by him c. He was thrice admonished to think of a better course of life but notwithstanding obstinately persisting to violate the Laws of the Land and privileges of the College was fined 20 l. and ordered commitment to Prison but making his escape out of the custody of the College Officer he procured a Protection from the Lord Chamberlain upon which account the College directed the following Letter to be drawn up and presented by some of their Members to the Right honourable the Lord Chamberlain RIght Honorable and our very good Lord Understanding by the report of Mr. Dr. Forster our President that your Lordship is somewhat hardly conceated towards us and our College about the dealing with one Clark presupposed to be your Lordship's man We are humbly to crave your Lordship's patience and favourable heering till we have made plaine our true and innocent meaning therein May it please you therfore to understand That as we are bound by the Lawes and orders of the Realme and by a solemne Oath taken of every one of us particulerly for the strict observation of the said Orders So also we have had of late her Majestie 's Princely expresse commaundement that we should have a diligent care and circumspection for the punishment and weeding out of all such ignorant persons as under pretence of practising of Physick do mightily abuse her Majestie 's Subjects in that behalf as well to the great endaungering of their lives as also to the manifest exhausting of their goods And for that the numbre of those ill disposed abusers are moe in number then we can well find out and more subtle in their crafty devices then we can well express we have therfore of late obtained my Lord Chiefe Justice's most honorable Warrant for our better assistance in that behalf And now whereas one Clark among others hath been greatly complained of unto us by divers as a notorious offendor and malefactor among the rest and finding his dealing therein to be very offensive and to deserve just blame and correction and the man himself to be very weak and ignorant in the true principles of Physick beside the manifest contempt and breach of our privileges whereunto we are so precisely sworne We could
About 3 months after Dr. Rawlins accused him of illegal and evil practice in that he had undertaken the cure of a person complaining of an Arthritick disease by Unction Sweating Potions Purging Physick c. for which he was fined 5 Marks and obliged to give bond for the payment He paid 3 l. 4 months after and upon his submission was remitted the rest He was again charged by Mr. Patinson for practising Physick upon one Mrs. Blosse which at first he would have excused but then ingenuously confessed it and was onely fined 4 Marks Some time after a fine of 40 s. was imposed upon him de praxi medica illicita mala He notwithstanding persisted in practice confessing that he gave a drink to a Gentlewoman for 3 days to dry up a moisture that he supposed came from her back for which he was fined and committed to prison and though application was made to the College by the Lord Mayor yet the President and Censors would not consent to his release because he was committed pro mala praxi A Petition not long after was presented to the College against him for undertaking a cure for 10 l. of which he had received half and left the Patient worse than he found her He was likewise complained of for mala praxis in Child-bed women c. upon which the Censors interdicted him all practice Mr. Doughton a Surgeon was complained of by Mr. Flud an Attorney for that he had undertaken the cure of his Wife ill of a Maniack distemper for 20 l. and had done her little or no good for after a month or two she relapsed into as bad a condition as formerly But he confessing his fault and having been never before convicted of the like the President and Censors inflicted onely a fine of 40 s. upon him with an admonition that for the future he should not intrude himself into a profession that he understood not After this he was charged with a very inhumane and unskilfull practice upon a woman in labour by which both Mother and Infant perished which was proved against him by the Midwife Wherefore the President and Censors order'd his repayment of 5 l. which he received by agreement and required a bond of 200 l. that he should never profess or practise Midwifery for the future Edward Putman an old German Impostor brought a Letter from the Earl of Exceter in favour of himself Wherefore he was examined leniter tentandi causa by the President and Censors But found so egregiously ignorant that he knew not the definition of a disease nor the several species thereof Wherefore it was agreed by the Censors that out of respect to the Right honourable the Earl of Exceter he should be pardoned for his former Practice but interdicted for the future and that a Letter should be sent to the Earl to acquaint him with the proceedings of the College in this affair Mrs. Sadler being charged of illegal practising Physick she appeared with 3 or 4 of her Neighbours and confessed that she had given some Compositions which by chance might purge twice or thrice but she gave no Medicines This vain excuse of hers deserved a greater punishment but at that time the Censors onely order'd that her Neighbours which she brought along with her should engage on her behalf that she should not practise for the future which they did by subscribing their names to a Paper drawn up for that purpose Philippus Bernardinus an Italian was charged for selling a purging Medicine which he pretended was not brought into England by him but vended for a Merchant to whom he was to give an account but withall confessed that he had given one dose of it to a person sick of a Fever Wherefore he was obliged in a bond of 40 l. to appear at the next Comitia which he did and was by the Censors fined 20 l. and ordered to be imprisoned untill that sum was paid Mrs. Paine a bold and impudent woman was complained of by a Gentlewoman for practising Physick and undertaking the cure of several persons amongst whom was a Son of hers of 13 years old to whom she gave as she said gentle Pills which wrought the same day 40 times and the day after near as many She then anointed the Child's body head and all parts the Stomach onely excepted for 3 days and for 9 days after sweat him with hot tyles never suffering him to go out of his bed Notwithstanding a salivation appeared not but his Jaws and glands swelled so violently that they despaired of the Child's life After this a servant of one Mr. Crowder appeared before the President and Censors testifying that he was sent to Mrs Paine and that she alone without any other advice had undertaken the cure of his Master and had received of him 5 l. which she thought too mean a reward having neglected more valuable Patients at the same time At her first coming to him he was so well that he could walk about his Garden but having taken from her a Vomit and preparatory Medicine and after that been anointed thrice on his head back breast armes and thighs with a Mercurial Ointment he died under her cure She being hereupon summoned to appear before the President and Censors pretended that all she had done was by the order and authority of Dr. Bonham But being a second time cited to appear before them upon a penalty of 40 s. and yet neglecting to come she was fined 10 l. and order given for her commitment to prison with a total prohibition of practice In the 7th year of this King's Reign the following Warrant was sent from the King's Council to the Magistrates of the City of London for the attachment of Empiricks To all Justices Mayors Sheriffs Bailiffs Constables Headboroughs and all other his Majestie 's Officers and Ministers to whom this shall or may appertain within the City of London Suburbes and Liberties thereof and the limitts within mentioned and to every and either of them WHereas by the Laws and Statutes of this Realm power is given to the President of the College or Commonaltie of the faculty of Physick within the City of London and Suburbes thereof and seaven miles compass of the same for the time being or to such as the same President and College for the time being shall according to the Statute in that behalf made authorize to have the fyne search correction and government of all persons using the faculty of Physick within the limits aforesaid and to punish all such as shall unlawfully use or practise the said faculty within the same Precincts contrary to the true intent and meaning of the Statute in that case made with this further authority that all Iustices Mayors Sheriffs Bailiffs Constables and other Ministers and Officers within the City of London and Precinct aforesaid upon request to them made should help aid and assist the President of the said College and all persons by the said President and Commonalty from