to the Council of the Good Town did desire that they would make choice of others to be their Captains and to Supplie their other Offices and Places of that sort and that the Chirurgeons might be Free thereof in all time coming and that they might have the full Imployment and peaceable Possession of all their several Rights Priviledges Immunities and Exemptions granted and Ratified to them and Ratified in manner above-mentioned The said Council of the Good Town of Edinburgh having taken the said Supplication to their consideration did find the samen Just and Reasonable and necessar for the Good of the Leidges and for the Incouragement of the Chirurgeons to the due Tyes of their Callings and therefore did grant to the saids Chirurgeons Free-men of the said Burgh of Edinburgh and their Successors in that Calling that they should be free of all the Offices or any Charge of that kind in all time coming As also that they should have the full Imployment and peaceable Possession of all their other several Rights Privilidges Immunities and Exemptions granted or Ratified to them by the Kings Queens and Parliaments of this said antient Kingdom of Scotland or by the Good Town heretofore in their Favours within the said Good Burgh of Edinburgh or Liberties thereof of whatsomever Date or Dates as if the samen had been Repeated and specially Insert in the said Act and that for them and their Successors Chirurgeons Free-men of the said Burgh in all time coming And did Statue and Ordain that none should Molest them thereintil nor prejudge them of the same in time coming under the Pains and Penalties notwithstanding of any Acts practices or any other thing else to the contrair as the said Act at more length bears Likeas in an Court of Justiciary of the said Kingdom of Scotland holden within the said Burgh of Edinburgh upon the ninth day of March 1674 years by the Right Trustie and well beloved Cousin and Counsellor John Earl of Athole now Marquiss of Athole His Majesties Justice-General of the said Kingdom for the time and Sir James Foulis of Collingtoun Knight Sir Robert Nairn of Strathurd Knight Sir John Baird of Newbyth Knight and Sir Thomas Wallace of Craigie Knight Lords Commissioners of Justiciary John Joissie Deacon of the Chirurgeons of the said Burgh of Edinburgh for the time for himself and in Name behalf of the remanent Members of the Chirurgeons and Chirurgeon Apothecarie within the said Burgh of Edinburgh did present a Petition shewing that notwithstanding of the manifold Liberties Priviledges Immunities Exemptions granted to the said Incorporation of the Chirurgeons in manner above-written Exeemand them from passing upon Assizes and Inquisits Criminal and Civil yet nevertheless several Members of the said Incorporation were daily troubled and molested by the Officers of the Court of Justiciary and Summonds to compear upon Sizes without respect to their exemptions as the said Petition at more length bears The said Lord justice general and Lords Commissioners of Justiciarie having considered the foresaid Petition together with the several rights Exemptions and Ratifications produced for instructing thereof did discharge all Messengers at Arms Macers of Court of Justiciary and other Officers whatsomever from Citing and Summonding of any of the Cherurgeons of the said Burgh of Edinburgh to pass upon Assizes and Inquests in Actions Criminal in time coming and that conform to their Gifts and Rights above specified as an Act of adjournal made thereanent in favours of the saids Cherurgeons more fully bears and sicklike in an other Court of Justiciary holden within the said Burgh of Edinburgh by the said Sir James Foulis Sir Robert Nairn Sir John Lockhart of Castle-hill Sir John Baird and Sir Thomas Wallace above designed Lords Commissioners of Justiciary upon the 29 day of July 1674 years anent criminal Letters raised used and execute at the instance of Margaret Dalmahoy Relict of the deceast James Raâ—stone Glasier in the Cannongate James Margaret Kathrine Agnes and Helen Ralstone his children for themselves and in name and behalf of the remnant Kin and Friends of the said Defunct and his Majesties Trustee Counseller Sir John Nisbet of Dirltoun Knight then His Majesties Advocat for his Highness interest in that matter and William Mason Mason in the Cannongate then Prisoner in the Tolbooth of Edinburgh divers and sundry of the Freemen Cherurgeons of the said Burgh of Edinburgh being called to give their opinion whether the said deceast James Ralstone did die of wounds mentioned in the saids other criminal Letters and they having given in their opinion in Write thereanent it was alleged by the Advocats for the Pursuers that no respect could be had to the foresaid report unless the saids Cherurgeons were compearing personally and Deponing thereanent and therefor craved that the saids Chyrurgeons might be unlawed for their absence unto which it was answered that the Chyrurgeons could not be unlawed nor forced to Depone nor give their Oath anent their opinion they being jurati magistri and so the Oath given at their admission behoved to have credit as to what concerned the skill and faithfull discharge of their Employment the Lords Commissioners of Justiciary having considered the Premisses in respect that the Chyrurgeons cited in that case were not cited as Witnesses to the Fact but to give their opinion upon the quality of the wounds and therefore by their Interloquitor refuse to unlaw and amerciat the absent Chyrurgeons as in the Decreet and Proces led and deduced thereanent and extracted under the Signe and Superscription Manual of Mr. Robert Martine Clerk to the said justice Court at more length is contained and farder His Majestie and Estates of Parliament of this ancient Kingdom of Scotland being conveened in Anno 1670 years and taking to their consideration that the Art of Chirurgerie is an ancient worthy and free Art most necessary for the healths and Lives of the Subjects and that the said Incorporation of the Chirurgeons and Barbours of the said Burgh of Edinburgh are an able and famous incorporation whereby the Leidges have found large experience to their great advantage both in time of Peace and War and that Pharmacie is an ancient free and necessary Art for the health of the Leidges and that the Brotherhood of the Apothecary and Cherurgeon Apothecaries of the Burgh of Edinburgh are an able and famous Brotherhood and have given good proof thereof Therefore and for certain other good causes and considerations his Majestie and the Estates of Parliament by an Act of Parliament dated the 22 day of August 1670 years ratified and approved and for his Majestie and his Successors with advice and consent of the Estates of Parliament perpetually confirmed the whole Acts Gifts Grants Rights Priviledges Liberties Immunities above and after mentioned to wit the said Act made given and granted by the said Provost Baillies and Council of the Burgh of Edinburgh under their common Seal of cause to and in favours of the Chirurgeons and Barbours of
Decreet of Separation The Apothecaries of Edinburgh Against The Chyrurgeons there AT Edinburgh the 24th day of March 1682 years Anent the Libel first intented and pursued before the Provost and Baillies of Edinburgh and thereafter Advocat of consent of both Parties Procurators after-named to the Lords of Council and Session and which Summonds is raised at the instance of Mr. James Nisbet then Deacon of Chyrurgeons of Edinburgh and in name and behalf of the remanent Brethren and Friends Chyrurgeons and Barbers of the said Burgh against Patrick Cunninghame Apothecary in the said Burgh Touching the said Defender his hearing and seeing of himself Unlawed and Fined by Decreet of the saids Baillies for his alledged Operating in Chyrurgery he not being a Freeman of that Trade and Calling as in the said Libel Summonds or Precept raised in the said Matter at more length is contained As also anent the two mutual Summonds and Actions of Declarator raised and pursued before the saids Lords the one thereof being al 's well an Action of Reduction as Declarator at the instance of the said Patrick Cunninghame and haill Freemen Apothecaries in the said Burgh Viz. John Kennedy Visitor James Foulis elder Robert Campbell Hugh Neilson Thomas Dalrymple John Hepburn James Aikenhead John Foulis younger Mr. Alexander Hay Mr. James Macmath James Lothian Freemen Apothecaries Burgesses Gild-brethren of the said Burgh of Edinburgh lawfully entered admitted received to whose great hurt and prejudice in the free Exercise of their Imployment as Apothecaries the Acts Ratifications and other Writs after-mentioned are alledged purchas'd and procured at the least are made use of by the saids Chyrurgions against the saids Apothecaries to the prejudice of the just Priviledges of their Imployment as Apothecaries and their assiduous attendance upon the Kings Subjects their Patients in their saids Imployments as for the Health of his Majesties Subjects is requisite and swa having good and undoubted Right to Pursue the Action of Reduction and Declarttor underwritten against the said Mr. James Nisbet present Deacon of the Chyrungeons Alexander Pennicook John Forrest George Scot James Hopkiâ—k William Semple Robert Kennedy Thomas Scot James Cleiland Thomas Edgar John Carmichael and Peter Norie simple Chyrurgeons and Chyrurgeon Barbers in the said Burgh And sicklike Thomas Kincaid William Borthwick John Joissie Hugh Broun George Stirling David Pringle James Ogilvie Walter Turnbull and James Crawfoord Apocary-Chyrurgeons in the said Burgh and al 's against Sir Thomas Murray of Glendoick then Clerk Register and Mr. Alexander Gibson of Adistoun his Deput and the Provost Baillies and Town-Council of the said Burgh of Fainburgh and Mr. James Rockheid of Innerleith their Town Clerk for their Interests and all others having or pretending to have Interest in the said matter under-written Toutching the said Chyrurgeons and others Defenders in the foresaid Action their bringing with them exhibiting and producing before the saids Lords of Council and Session Imprimis An Ratification alledged past by the pretended Parliament 1641 years whereby certain Priviledges Writs and Rights are alledged ratified to and in favours of the Chyrurgeons of Edinburgh particularly giving them Power to take apprehend and imprison unfreemen Contraveeners of their Priviledges ay and while they enact themselves under the pain 20 pounds Scots toties quoties which Ratification is dated the _____ day of _____ one thousand six hundred and fourty one years foresaid Item An Act of the Town-Council of Edinburgh of the date the _____ day of _____ one thousand six hundred and fourty three years Wherein the applying of Cere-Cloaths are decerned properly to belong to the Chyrurgeons Item Another Act of Town-Council of Edinburgh dated the _____ day of _____ 1655. Whereby the several Distempers therein enumerat in the whole Cure and Accidents of the samine are allowed to Chyrurgeons allenarly Item An Act and Ratification past in favours of the Chyrurgeons in his Majesties late Parliament 1670 years or of whatsoever dates tenor or contents the samine are of to be seen and considered by the saids Lords and to have heard and seen the samine reduced retreated rescinded cassed annulled and decerned and declared to have been from the beginning to be now and in all time-coming null and of none avail force strength nor effect with all that has followed or may follow thereupon and the saids Pursuers reponed and restored in integrum there-against cum omni causa sicklike as if the samine had never been made given nor granted in return natura And whilks Acts Ratifications and others above-written being swa reduced the said Defenders to hear and see it by Decreet of the saids Lords found and declared that it shall be no ways lawful for them to molest and trouble the Pursuers or their Successors in the free exercise of their Calling and Imployments as Apothecaries as they questionably are and formerly have been in use of exercising the samine until the saids Lords shall by the advice and council of disinterested learned and capable Physicians and with a due regard to the Interest of his Majesties Subjects shall in their Decreet to follow thereupon prescrive such Rules and Orders for the regulation and distinguishing of the said two Callings of Apothecaries and Chyrurgeons as the saids Lords shall in Justice and by Advice foresaid think most fit and proper for the health ease and conveniency of his Majesties Subjects and due incouragement preservation and improvement of that so noble and necessary Faculty of Medicine in all the parts and branches thereof in due and beseeming order within this ancient Kingdom And which two Callings of Apothecary and Chyrurgery being sua distinguished by the saids Lords as said is all such Apothecaries and Chyrurgeons who take upon them to use and confound both Callings while as yet undistinguished to hear and see themselves decerned and restricted to make their choice and election which of the saids two Callings they will exercise and practise in time-coming And to hear and see themselves decerned lyable to observe the Rules and Orders sua to be prescrived either as simple Chyrurgeons or simple Appothecaries without confusion of the two Callings in one as should be determined by the saids Lords thereintill as also to hear and see it found and declared that the making and applying of Cerecloaths doth only belong unto the Apothecaries and that the Chyrurgeons ought neither to make or apply the same and al 's that it's lawful and leisum to the Apothecaries to use Phlebotomie when the samen is asked upon occasion of inward distempers and to give Dyetts and Medicaments at all occasions As also to hear and see it found and declared that it shal not be lawfull or competent upon any pretended contraventions of the saids Rules to trouble or molest the members of either calling except they be taken in the Act of contravention per manus injectionen in crimine flagranti as is allowed to and practised by other Trades and Incorporations allenerly And that it it shal
that Pretence that the Case was a Matter of Government and that His Majesty has granted a Signature in Favours of the Chyrurgeon-Apothecaries and that the King's Advocat desires to be Heard in favours of the Chyrurgeon-Apothecaries It was answered the Insinuations are most frivolous And it is strange how any man can please himself or think it possible to delude others with such Conceits and that every little petty Debate betwixt two privat Trades must instantly be a great Question of Government And it were certainly very unsuitable to that Deference and Duty the Lords of Session owes to His Sacred Majesty whose Royal Consideration is taken up with Matters of a Higher Nature to trouble His Majesty with such petty Concerns which are only proper to be Cognosced and Determined by His Majesties Judicatures which are Established for that very end And as to the Signature in favours of the Chyrurgeon Apothecaries it was strange how it comes to be mentioned having already received its Fate before the Lords of Privy Council and it 's great Moderation in the Lords of Session who were so immediatly touched by the Extravagancies of the said Signature not to have taken notice of it before this time And as to these Pretences that the Interlocutor can be of no greater Force than a Law which can only be extended ad casus futuros and cannot prejudge Apprentices who had jus quaesitum by their Indentures to both Employments It was Answered the Comparison is an evident Mistake for the Lords Interlocutor is a Sentence in Jure and a Decision in Point of Right that these two Employments ought to be separate and not confounded in the same person so that it was impossible there would be Jus for the Confusion that being directly inconsistent with the Interlocutor it being certain that the Lords of Session cannot take away Parties Rights neither pro praeterito nor futuro and therefore the Interlocutor by a necessity of Consequence should have effect against the present Masters for the Separation in time coming though the Lords has been pleased so far to indulge them as to allow them to Operat in both during their Lifetimes but there is not the same Reason to extend the same Favour to Apprentices which would indeed evacuat the Interlocutor and the Lords may as well Retrait what they have done as satisfie the unreasonable Clamour of the Chyrurgeon-Apothecaries and neither they nor their Apprentices can pretend to a Jus quaesitum unless they suppose the Interlocutor in Jure is unjust which whatever they think it were a little too petulant to insinuat or express And Laws are of a different nature from Interlocutors in Jure because Laws being inductivi Juris novi are only to be extended ad negotia futura but Interlocutors are Declaratory of Laws already made and of distinct Rights formerly of their own nature established and so does take effect and regulat all Cases which are the Subject of Debates And the Apothecaries humbly desire the Lords to take to their Consideration a former Petition given in by them and at last to put a Period to these Debates and to secure and render their Interlocutor ineffectual in time coming and that it may not be in the power of the Chyrurgeon Apothecaries to elude the same And thereafter there was another Supplication given in to the saids Lords by the saids Apothecaries Chyrurgeon-Barbars of Edinburgh Shewing that where the saids Lords upon Advising of the Declarator Raised by the Petitioners against the Chyrurgeon-Apothecaries has most justly Found and Declared that these should be separat Employments in time coming It followed necessary that the present Chyrurgeon-Apothecaries who were allowed to exercise both Employments dung their Lifetime should not upon the Pretence of the said personal Indulgence be allowed to fall upon Methodso evacuat the said Interlocutor and perpetuat the Confusion of these Employments Tâ—â— therefore the saids Lords would expresly declare That it should not be lawful to the Chyrurgeon-Apothecaries to receive Apprentices but as to one of these Employments and that the Prentices be so looked And that the present Chyrurgeon Apothecaries may be put to Declare which of these Employments they will take themselves to in time coming as to that Point of Booking of Prentices otherways they will receive Prentices one year in Pharmacy and another year in Chyrurgery which is most absurd As likewise That the present Chyrurgeon-Apothecaries may be Restricted to sit at one of the Tables either of the Deaconrie of Chyrurgeons or of the Fraternity of Apothecaries there being no more intended by the Interlocutor than that the present Masters may Operat in both Employments during their Lifetime And whereas the Petitioners were Informed that the Chyrurgeon-Apothecaries of design to evacuat the Interlocutor were to crave that their Apprentices who are already past their Prentiship and Discharged of their Indentures may be allowed to exercise both Employments during their Lifetime The said Pretence is directly inconsistent with the Interlocutor and tends to evacuat the same and continue the Confusion of these Employments and the Indulgence granted to the present Masters is ex gratia and contrare to the common Grounds of Law whereupon the saids Lords has sustained the Declarator for Separation in time coming And the special Considerations that the saids Lords have gone upon as to the present Masters was that they were in possession of both Employments and had long Experience and had Shops fitted with the Materials of Pharmacy and Chyrurgery which special Reasons do not in the least Militat for Apprentices who are not set up many of whom will not be able to be Freemen in the saids Employments these ten or twelve years by the Constitutions of the Burgh and the Acts of the respective Employments Thereafter it was humbly craved That the saids Lords would so Enlarge and Declare in the foresaid Interlocutor That it may not be in the power of the present Chyrurgeon-Apothecaries by their Methods of taking and Breeding of the Prentices in both Employments to evacuat the same and that they may be Restricted to Meet and Conveen only at that Table at which they shall Condescend to Book their Prentices that so these Points of the Separation being once fully cleared the Lords may at their convenience proceed to Advise the other Points that are not yet Determined as the said last Supplication also more fully contains Which first Supplication above written with the Answer made theretâ— by the said Apothecaries and last Bill given in by them in manner above specified being all read in presence of the saids Lords and they having Heard Seen and Considered the samen and being therewith well and ripely Advised the saids Lords Decerned the saids Chyrurgeon-Apothecaries Masters who by the foresaid Interlocutor were allowed the exercise of both Employments during their Lifetime and the three young Men. viz. James Mu rhead John Lauder and Thomas Edgar who by the particular Interlocutors were declared to be in