use in his house according to receipts and therefore be not within the Statute 14 H. 8. And if a Gentleman had such receipts and made use of them for those diseases shall he be within this Statute 2. Admit that these diseases be within 14 H. 8. yet 34 H. 8. takes them out of 14 H. 8. clearly and for other things the Statute is onely in force as upon the Statute of 32 H. 8. in Knight's Case there the Stat. of Marlebridge is taken away although it be not named and although the words of 32 H. 8. be in the Affirmative 3. Vpon the pleading of the Statute 1 Mariae that recites 14 H. 8. it is said that in this Statute the words of pleading were continuaret the word staret being omitted that which continued in force ought to be in force at the same time which is but a confirmation of the Statute as it was at the time of the making of 1 Mariae and the Stat. 14 H. 8. is onely recited and some new privileges may be added to this confirmation but cannot be but of a thing which was in esse before 27 H. 8. 2. An Infant grants an Advowson and at full age confirms it the confirmation is void because the grant was void 21 H 7. 1. 12 E. 4. 59. And the Countess of Leicesters case in the Commentaries The reason of the recital of 14 H. 8. was for the addition of some new privileges scil that Gaolers should not permit prisoners to escape committed by the which they might do unpunished before and that all Kéepers of Prisons in London except the Lieutenant of the Tower ought to receive them that shall be committed which they might have refused before 2. Being but a confirmation for the greater part it shall not be a reviver for the lesser part As if Tenant for life of 20 Acres grant his estate in one Acre to I. S. and he in Reversion confirm the estate of tenant for life in all the 20 Acres to the Lessée and his heirs this is a confirmation but of the 19 Acres and although I. S. attorn yet his Acre doth not pass by way of Grant of the Reversion because that he this confirmation for the greater part 18 E. 3. 8. Husband tenant for life and the estate of the husband is confirmed to him and his wife and to their heirs the wife takes nothing and yet the husband is the man that ought to attorn if it would amount to a grant of the Reversion 3. This Statute of 1 Mariae doth not extend to repeal 34 H. 8. in any part because that 34 H. 8. is a general act and the Iudges ought to take notice thereof but 1 Mariae is a particular Statute and therefore doth not repeal the other which is general without express words Vide Holland's case For the point of special demurrer the replication wants form In all replications you ought to confess and avoid or traverse the barr here is implied an avoidance but no confession thereof 34 H. 8. 22. 7 H. 6. 2. where there is an avoidance but no confession therefore ill Lastly here is a departure Stat. de 14 H. 8. remains in force for all diseases but the Stone Strangury and Agues and for them their action lies upon the Stat. 1 Mariae and not upon 14 H. 8. therefore they ought to have named this Statute at the beginning 2 Ass 6. 37 H. 6. 5. 21 H. 7. 18. And for answer to the Iudgment cited in B. R. there the Iudgment was general and 1 Mariae was there pleaded with these words staret continuaret but here it is continuaret which is nonsense And I have credibly heard the case there was not defended omnino but onely argued for the Plaintiff Wherefore upon the whole matter he prayed judgment for the Defendant Davenport è contra Exception hath béen taken to the person that brought the action that the action was not brought according to the name of the College scil by the President and College but by the President onely 8 Report Dr. Bonham's case and although the words of the Statute be that the Action shall be brought by the President and College yet all Suites shall be in the name of the President And so be the Precedents Mich. 5 Jac. rot 299. and Mich. 5 Jac. rot 438. 11 H. 7. 12. 18. where a Charter of Corporation may be granted that they shall not be sued by any other name than their Corporation For the matter in law he said that he would observe the course in 3 Rep. 7. Haydon's case 1. What the Common Law was before the Statutes 2. The mischief to be remedied 3. What remedy is appointed by Parliament 4. The true reason of this remedy The common law before 3 H 8. was that every one might exercise any lawfull trade But there is a different consideration betwéen the practice of Physick and other Mechanick Trades In Mechanick Trades if any one undertake a thing and doth not doe it duly an Action upon the case lieth But in the practice of Physick it is otherwise for the mischief that falls upon the party takes away the remedy scil the death of the Patient by the unskilfulness of the Physician And for this inconvenience was 3 H. 8. cap. 11. made which Statute did not redress the mischief sufficiently because that the allowance or disallowance of Physicians was not referred to Competent Iudges for the fitness of every person should be tried by them which be experienced in the same kind as 8 H. 7. the Ordinary tries whether a Parson sit idoneus ad Ecclesiam but here the Bishop is to be Iudge of the skilfulness of Physicians Another imperfection in this Statute is that the penalty is given and to be recovered by every one that will sue and therefore the care was in no person and also there was not sufficient care for practisers in London There was care that none should practise c. in the negative but what care was there in the affirmative Sir George Farmars case 8 rep 126. Then came the Statute of 10 and the Statute of 14 H. 8. which do not extend to every one that giveth Physick but to him that professeth the practice thereof It hath béen said that 14 H. 8. doth not extend to restrain the practice of those diseases but they confess that they be within the letter of the Statute but not within the meaning but by the Common Law they be taken to be within Physick The Common Law takes notice of a Physician and Surgeon but for an Empirick he is not known to the Law See the Entries fol. 187. A Physician may have debt for his fées so may a Surgeon without doubt but where is there any precedent for an Empirick or Herbalist to have action An Assumpsit he may have but not debt Knowledge of Herbs pertains to Physicians and so of Waters for who can judge of Baths but Physicians and
c. and the Common Law doth controll it and adjudge the same void as to services and the donor shall have the Rent as a Rent-seck distr of Common right for it should be against Common right and reason that the King should hold of any or do service to any of his Subjects 14 Eliz. Dyer 313. And so was it adjudged Mich. 16 and 17 Eliz. in the Common Pleas in Stroud's Case So if any Act of Parliament giveth to any to hold or to have Conusans of Pleas of all manner of Pleas arising before him within his Mannor of D. yet he shall hold no Plea to which himself is party for as hath béen said iniquum est aliquem suae rei esse judicem 5. If he shall forfeit 5 li. for one month by the first clause and shall be punished for practising at any time by the second clause two absurdities would follow 1. That one should be punished not onely twice but many times for one and the same offence And the Divine saith Quòd Deus non agit bis in idipsum and the Law saith Nemo debet bis puniri pro uno delicto 2. It should be absurd by the first clause to punish practising for one month and not for lesser time and by the 2. to punish practising not onely for a day but at any time so he shall be punished by the first branch for one month by the forfeiture of 5 li. and by the 2. by fine and imprisonment without any limitation for every time of the month in which any one doth practise Physick And all these reasons were proved by 2 grounds or Maxims of Law 1. Generalis Clausula non porrigitur ad ea quae specialiter sunt comprehensa And the Case between Carter and Ringstead Hill 34 Eliz. rot 120. in the Common Pleas was cited to this purpose where the Case in effect was That A. seized of the Mannor of Staple in Odiham in the County of Southampton in Fée and also of other lands in Odiham aforesaid in Fée suffered a common Recovery of all and declared the use by Indenture That the Recoverer should stand seized of all the lands and tenements in Odiham to the use of A. and his wife and to the heirs of his body begotten and further that the Recoverer should stand seized to the use of him and to the heirs of his body and died and the wife survived and entred into the said Mannor by force of the said general words But it was adjudged That they did not extend to the said Mannor which was specially named and if it be so indéed à fortiori it shall be so in an Act of Parliament which as a Will is to be expounded according to the intention of the makers 2. Verba posteriora propter certitudinem addita ad priora quae certitudine indigent sunt referenda 6 E. 3. 12. Sir Adam de Clydrow Knight brought a Praecipe quod reddat against I. de Clydrow and the writ was Quod juste c. reddat Manerium de Wicombe duas carucatas terrae cum pert in Clydrow in that case the Town of Clydrow did not relate to the Mannor quia non indiget for a Mannor may be demanded without mentioning that it lieth in any Town but cum pertinentiis although that it cometh after the Town shall relate to the Mannor quia indiget Vide 3 E. 4. 10. the like case But it was objected That where by the second clause it was granted that the Censors should have supervisum scrutinium correctionem gubernationem omnium singulorum Medicorum c. they had power to fine and imprison To that it was answered 1. That the same is but part of the sentence for by the entire sentence it appeareth in what manner they shall have power to punish for the words are ac punitionem eorum pro delictis suis in non bene exequendo saciendo seu utendo illâ facultate so that without question all their power to correct and punish the Physicians by this clause i ̄s onely limited to 3 cases scil in non bene exequendo faciendo vel utendo c. Also this word punitionem is limited and restrained by these words Ita quòd punitio eorundem Medicorum c. sic in praemissis delinquentium c. which words sic in praemissis delinquentium limit the first words in the first part of this sentence ac punitionem eorum pro delictis in non bene exequendo 2. It shall be absurd That in one and the same sentence the makers of the Act shall give them a general power to punish without limitation and a special manner how they shall punish in one and the same sentence 3 Hil. 38 Eliz. in a Quo Warranto against the Mayor and Commonalty of London it was holden That where a Grant is made to the Mayor and Commonalty that the Mayor for the time being should have plenum integrum scrutinium gubernationem correctionem omnium singulorum Mysteriorum c. without granting to them any Court in which should be legal procéedings that the same is good for search by which discovery may be made of offences and defects which may be punished by the Law in any Court but it doth not give nor can give them any irregular or absolute power to correct or punish any of the Subjects of the Kingdom at their pleasures 2. It was objected That it is incident to every Court created by Letters Patents or Act of Parliament or other Courts of Record to punish any misdemeanors done in Court in disturbance or contempt of the Court by imprisonment To which it was answered That neither the Letters Patents nor the Act of Parliament hath granted to them any Court but onely an authority which they ought to pursue as it shall be afterwards said 2. If any Court had béen granted to them they could not by any incident authority implicitè granted unto them for any misdemeanor done in Court commit him to prison without bail or mainprise untill he shall be by the commandment of the President and Censors or their Successors delivered as the Censors have done in this case 3. There was not any such misdemeanor for which the Court might imprison him for he onely shewed his case to them which he was advised by his Councel he may justifie which is not any offence worthy of imprisonment The second point Admitting that the Censors had power by the Act if they have pursued their authority or not And it was resolved by the chief Iustice Warburton and Daniel that they have not pursued it for 6 causes 1. By the Act the Censors onely have power to impose a fine or amercement and the President and Censors do impose the amercement of 5 li. upon the Plaintiff 2. The Plaintiff was summoned to appear before the President and Censors c. and did not appear and therefore he was fined 10 li. whereas the President hath not any
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
he ought to be publickly approved by many after he hath béen examined and answered in the Schools to divers questions and allowed by the Congregation house And 35 H. 6. 55. Doctor is no addition but a Degrée quia gradatim progressione Doctrinae provenit to that and that Doctor is Teacher and that he was first taught by others as a Scholar and afterwards he is Master and Doctor dicitur à docendo quia docere permittitur and they are called Masters of their faculty and that the original of Doctor came of the Synagogue of Iews where there were Doctors of Law and it appears that they had their Ceremonies in the time of H. 1. And when a man brings with him the Ensign of doctrine there is no reason that he should be examined again for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practice And to the second point that he propounded it séems that the justification is not good which is Quia non comparuit upon summons he was amereed and ordered that he should be arrested and being arrested and examined if he would submit himself to the College he answered that he was a Doctor and had practised and would practise within the said City as he conceived he might lawfully do and for that shewing of this Case he was committed to prison And he conceived two things upon the Charter First that it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and secondly that it impowers to imprison the Empirick and Impostor And so prayed Iudgment for the Plaintiff And after in Hilary Term in the same year this Case was argued by all the Iustices of the Common Bench two several days The first day it was argued by Foster Daniel and Warburton Iustices at whose arguments I was not present but Foster argued against the Plaintiff and Daniel and Warburton with him that the action of false imprisonment was well maintainable And the second day the same Case was argued again by Walmesley Iustice and Coke Chief Iustice and Walmesley argued as followeth that is That the Statute of 3 H. 8. was in the negative that no person within the City of London or seven miles thereof take upon him to exercise or occupy as Physician or Chirurgeon c. And he doth not know in any Case where the words of the Statute are negative that they admit any interpretation against that but one onely and that is the Statute of Marlebridge Chap. 4. which provides that no Lord shall distrain in one County and the beast distrained drive into another County In which case though the words are negative yet if the Lord distrain in one County he may drive the beasts to his Mannor in another County of which the lands in which the distress was taken were held But it is equity and reason in this Case that the Statute should admit such exception for it is not of Malice but that the beasts may remain within his fée But in the principal Case there is not the like reason nor equity And also the King H. 8. in his Letters Patents recites as followeth that is Cùm regii officii nostri munus arbitremur ditionis nostrae hominum felicitati omni ratione consulere id autem vel imprimis fore si improborum conatibus tempestivè occurramus apprimè necessarium duximus improborum quoque hominum qui Medicinam magis avaritiae suae causâ quà m ullius bonae conscientiae fiduciâ profitebuntur c. By which it appears that it is the office of a King to survey his Subjects and he is as a Physician to cure their maladies and to remove Leprosies amongst them and also to remove all fumes and smells which may offend or be prejudicial to their health as it appears by the several Writs in these several Cases provided And so if a man be not right in his Wits the King is to have the protection and Government of him lest he being infirm waste or consume his Lands or Goods And it is not sufficient for him that his Subjects live but that they should live happily and he discharges not his office if his Subjects live a life but if they live and flourish and he hath cure as well of their bodies as of their lands and goods for health for the body is as necessary as virtue to the mind And the King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reign which was the beginning of his Essence to that purpose And by the Common Law any Physician which was allowed by the Vniversity might practise and exercise the said faculty within any place within England without any dispensation examination or approbation of any but after the making of the said Act made in the third year of King H. 8. none may practise exercise or occupy as Physician or Surgeon within the City of London and seven miles thereof if he be not first examined approved and admitted by the Bishop of London and the Dean of Pauls for the time being calling to them four Doctors of Physick or Chirurgeons c. And that no practiser may occupy or exercise the said faculty out of the said Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar General every of them calling unto him such expert persons in the said faculty as their discretions think convenient And the reason of this difference as he conceived was for that in this City and the said Precincts the King and all his Councill and all the Iudges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject to infection and the air more pestiferous and therefore there is more necessity that greater care diligence and examination be made of those which practised here in London and the Precincts aforesaid than of those that practise in other places of the Realm for in other places the people have better air and use more exercise and are not so subject to infection and therefore there is no cause that such care should be used for them for they are not in such danger And in the Statute there is not any exception of the Vniversities nor of those which are Graduates there and therefore they shall be tried by the said Act and the Statute of 14 H. 8. Chap. 5. onely excepts those which are Graduats of Oxford or Cambridge which have accomplished all things for their form without any Grace and if this exception shall be intended to extend to others then all the Vniversities shall be excepted by it and such exception was too general And over he said that the Plaintiff gave absurd and contemptuous answer when he being cited
before them said that he would not be ruled nor directed by them being such grave and learned men And for that he hath practised against the Statute he was worthily punished and committed for it should be a vain Law if it did not provide punishment for them that offend against it And Bracton saith Nihil est habere Leges si non sit unus qui potest Leges tueri and for this here are four grave and discréet men to defend and maintain the Law and to punish all Offenders against it according to the Statute by imprisonment of their bodies and other reasonable ways and the said four men have the search as well of those men as of other Medicines And the Statute of 1 Mary provides that the Kéepers of Prisons shall receive all which are committed by the said four learned and grave men And though there be great care committed to them by the said Statute and the said Letters Patents yet there is a greater trust reposed in them than this for we commit to them our lives when we receive Physick of them and that not without cause for they are men of gravity learning and discretion and for that they have power to make Laws which is the office of the Parliament for those which are so learned may be trusted with any thing and for the better making of these they have power to assemble all the Commons of their Corporation and the King allows of that by his Letters Patents for it is made by a congregation of wise learned and discréet men and the Statute of 1 Mary inflicts punishment upon contempts and not for any other offences And they hold a Court and so may commit as every other Court may for a contempt of Common Right without Act of Parliament or Information or other legal form of Procéeding thereupon as it appears by 7 H. 6. for a contempt committed in a Léet the Steward committed the offender to Prison and it was absurd to conceive that the Statute will allow of Commitment without cause And it is a marvellous thing that when good Laws shall be made for our health and wealth also yet we will so pinch upon them that we will not be tryed by men of experience practice and learning but by the Vniversity where a man may have his Degrée by grace without merit And so for these reasons he concluded that this action is not maintainable Coke Chief Iustice said That the Cause which was pleaded why the Plaintiff was committed was for that he had exercised Physick within the City of London by the space of a month and did not very fitly answer for which it was ordained by the Censors that he should pay a hundred shillings and that he should forbear his practice and that he did not forbear and then being warned of that and upon that being summoned to appear did not appear and for that it was ordained that he should be arrested and that after he was summoned again and then he appeared and denied to pay the hundred shillings and said that he would practise for he was a Doctor of Cambridge and upon that it was ordained that he should be committed till he should be delivered by the Doctors of the College and upon this was the Demurrer joyned And in pleading the Plaintiff said that he was a Doctor of Philosophy and Physick upon which the Lord Chief Iustice took occasion to remember a saying of Galen that is Ubi Philosophia desinit ibi Medicina incipit and he said the onely question of this Case depends not upon the payment of the said hundred shillings but upon the words of the Letters Patents of the King and the said two Statutes the words of which are Concessimus eidem Praesidenti c. Quòd nemo in dicta Civitate aut per septem milliaria in circuitu ejusdem exerceat dictam facultatem nisi ad hoc per dictum Praesidentem communitatem seu Successores eorum qui pro tempore fuerint admissus sit per ejusdem Praesidentis Collegii literas sigillo suo communi sigillatas sub poena centum solidorum pro quolibet mense quo non admissus eandem facultatem exercuerit dimidium inde nobis haeredibus nostris dimidium dicto Praesidenti Collegio applicandum Et praeterea volumus concedimus pro nobis c. Quòd per Praesidentem Collegii communitatem pro tempore existentes eorum Successores in perpetuum quatuor singulis annis per ipsos eligantur qui habeant supervisum scrutinium correctionem gubernationem omnium singulorum dictae Civitatis Medicorum utentium facultate Medicinae in eadem Civitate ac aliorum Medicorum forinsecorum quorumcunque facultatem illam Medicinae aliquo modo frequentantium utentium infra eandem Civitatem Suburbia ejusdem sive septem milliaria in circuitu ejusdem Civitatis ac punitionem eorundem pro delictis suis in non bene exequendo faciendo utendo illa nec non supervisum scrutinium omnium medicinarum earum receptionum per praedictos Medicos sive aliquem eorum hujusmodi ligeis nostris pro eorum infirmitatibus curandis sanandis dand ' imponend ' utend ' quoties quando opus fuerit pro commodo utilitate eorundem ligeorum nostrorum Ita quod punitio hujusmodi medicorum utentium dictâ facultate medicinae sic in praemissis delinquentium per Fines Amerciamenta Imprisonamenta corporum suorum per alias vias rationabiles congruas exequatur as it appears in Rastal Physicians 8018. 392. So that there are two distinct Clauses The first if any exercise the said faculty by the space of a month without admission by the President c. he shall forfeit a hundred shillings for every month be that good or ill it is not material the time is here onely material for if he exercise it for such a time he shall forfeit as aforesaid The second Clause is that the President c. shall have Scrutinium Medicorum c. punitionem eorum pro delictis suis in non bene faciendo utendo exequendo c. And for that the President and the College may commit any delinquent to Prison And this he concluded upon the words of the Statute and he agreed with Walmesly that the King hath had extraordinary care of the health of his Subjects Et Rex censetur habere omnes Artes in scrinio Pectoris and he hath here pursued the course of the best Physicians that is Removens promovens removens improbos illos qui nullius bonae conscientiae fiduciâ profitebuntur audaces promovens ad sanitatem And for that the Physician ought to be profound grave discréet grounded in learning and soundly studied and from him cometh the Medicine which is removens promovens And it is an old Rule that a man ought to take care that he do not commit his Soul to a
Feoffments and no departure And so it is in our case 3. In all Cases if the matter be new if it inforce and pursue the declaration it may be in the replication and so we should have shewed the Stat. 1 Mariae in our Declaration and by the same reason we should have shewed the Stat. 34 H. 8. but the Action is for practising of Physick generally and when the other justifies a special practice and traverses the general practice then was the proper and fit time to shew the Statute of 1 Mariae which repeals the Stat. 34 H. 8. upon which the justification is made And Trin. 6 Jac. B. R. which was Commenced Mich. 3 Jac. rot 458. Langton and Gardiner's Case this very point of the departure was debated by the Iustices and resolved no departure for there the case was the same as ours But it was not shewed for cause of Demurrer c. the departure for it is not necessary inasmuch as the Stat. of 37 Eliz. Cap. 5. excepts popular actions and all suites upon penal Statutes Et adjorn ' THe same Term it was afterwards argued by Hedley for the Defendant That all these 3 Statutes may well stand together by reasonable Construction Leges posteriores priores contrarias abrogant But the averment ought to be there upon contrarias But otherwise if upon reasonable construction they may stand they ought and this contrariety ought to be in matter not in special words general words cannot repeal particular For general and particular cannot be contrary Statutes ought to be expounded by the meaning which ought to be found out partly by the words partly by the mischief they intend to remedy First where the Stat. 14. by these words facultates medicinae includes Chirurgery and it séems that this word Medicina includes external medicines as well as internal 3 H. 8. cap. 11. this was made for Physick and for Surgery to remedy all abuses in them and the examination of them that shall be permitted to practice was done by the Bishop who was Physician for the Soul And they conceived that he would have more care of the body Afterwards came the Statute of 14 H. 8. which doth not repeal this Statute in express words but yet in meaning is contrary But they may stand together by Construction For the first is that he shall not practise without licence of the Bishop the second that he cannot practise without licence of the College and therefore ought to have licence of both But this was never the meaning of 34 H. 8. there it is taken that Chirurgery was not within the Stat. 14 H. 8. but there it is outward Medicines which prove Medicina to include Surgery In this Statute they perceived that those persons licensed did much hurt for licentiâ sumus deteriores and that they were as Butchers in Lent which be licensed that sell the worst and dearest meat and for this intent for such diseases where the cause was well known they might practise to do more than contemplation this Stat. gives licence for such diseases After comes the Stat. 1 M. which never intended to repeal 34 H. 8. and restore licences But the Statute was made to give the College more privilege than they had by the Stat. 14. seil that they might commit without Bail or Mainprize But it recites 14. and confirms the same but they never intended to repeal 14. And they confirmed their liberties such as were in force and the 34. is but an exposition of 14. And although 1 Mariae confirm 14. and all Articles Clauses c. yet it ought to be intended all Clauses in force The Statute of maintenance recites that all former Statutes now in force shall be put in execution And if those words now in force were not there yet shall it be so expounded 4 E. 3. 3 4. there were divers Statutes concerning imposition upon Wine and there the Iudges agréed that they ought so to expound them that they may stand no non obstante being But it is objected that there is a non obstante I confess there is a general non obstante any Law whatsoever c. But it ought to be a special non obstante to repeal The Stat. 1 Eliz. was made for the Leases of Bishops after the 13 Eliz. doth not take away 1 Eliz. and yet there is a general non obstante and the Bishop is included amongst Ecclesiastical persons The Marquess of Winchester's Case A man Attainted by Parliament and that he shall forfeit all his Lands notwithstanding all Statutes to the contrary yet the force of the Statute de donis is not taken away by the non obstante But after the Statute 26 H. 8. that all inheritances shall be forfeited notwithstanding any Law c. yet the force of the Common Law is not taken away for a right of action is not by this forfeited Co. 6. Gregorie's Case This general Law doth not repeal a particular Law for Weavers which is a stronger Case than this of ours 21 Jac. Stat. made for Bankrupts recites that all Statutes concerning Bankrupts shall be put in execution it ought to be intended all Statutes that were then in force and not those which be repealed and the confirmation of a thing which is void is void And therefore such part of 14. which was made void by 34. cannot be confirmed As to the exception to the Barr the Barr in substance is good although he might have pleaded Not Guilty yet he may plead the special matter and it concludes absque hoc that he is guilty aliter vel alio modo he hath not justified more than the Statute warrants for thereby he administred drinks and in Latine it cannot be otherwise translated than by the word Potiones 2. The word in the Statute is Agues and he justifies Febribus and although that Febris comprehend both c. yet there is no other particular word that signifies Ague wherefore it is well As for the departure admit 34. is repealed then 1 Mariae ought to be mentioned in the declaration As if a Statute be made for 7 years and after by another Act it is made perpetual the declaration ought to be upon the last Statute And this is not properly a departure for a departure is to be a barr but this is no Cause of Action in the declaration and it is not like to the Case 21 H. 7. 18. 3. For the lying of the Information it is within the letter and the meaning of 21 Jac. It was objected that the words in the Statute be all actions which a Common Informer may have Although the words séem to import so yet there be words after which make this plain by any person whatsoever then it is within the meaning for it was made for the ease of the subject and all the Physicians in England ought to be examined and approved by the College at London Finch Recorder 1 Mariae hath altered 34 H. 8. in
part for we labour only for part so that 14. is in force as it was at first in every branch thereof notwithstanding 34 H. 8. for 1 Mariae restored this and that which the 14. gives is Medicines not as it is generally to be intended and so to include Chirurgery but all that was proper to Physicians 34 H. 8. although it allow men to give Medicines yet it is at their perils for if a man die under their hands it is as it was at Common Law By the Statute of 34. to repeal all of 14. which was contrary to 34. which does not in the least name the 14. yet it is repealed for so much as concerns Agues c. The Statute of 33 H. 8. for trial of Treason is repealed And after by 1 Mariae our Case is a far stronger Case that every Clause shall be in force notwithstanding any Statute c. these words ought not to be void if by construction they may be made to stand and no Statute withstands this Statute but 34 H. 8. and therefore all which this Statute takes away ought to be restored He confessed the case put of Confirmation of 32 H. 8. Statute of Wills that this doth not take away the Stat. of 34. for it is but an explanation and one being confirmed the other is confirmed And it is plain that the 13 Eliz doth not take away 1 Eliz. for it was in the affirmative and commenced after and therefore it is expounded not to extend to the Bishop As the Statute of contra formam collationis doth not include the Bishop as it was there adjudged And he cited Langton's Case where this point which is the point of departure was adjudged and 10 and 11 Eliz. rot 248. B. R. action by the College versus Eliheus Cornelius and upon these very points Iudgment was given for the College Also the Barr is ill Allow the Statute of 34. were in force yet the Iustification is ultra that which the Statute gives and took the same exception as before 2. There is a departure which was so ruled in Langton's Case and is so in reason Also this is a proper departure when a man relinquishes the title upon which he grounds himself and betakes himself to another And we have not made a departure our title is 14 H. 8. which makes good the Letters Patents then if you repeal the Letters Patents we ought to repeal the 14 H. 8. and it would be absurd for us to commence with 1 Mariae for then we ought to have recited all the Statutes 37 H. 6. 5. 21 H. 7. 25. 18. If a man avow for rent granted by I. S. the other saith that I. S. had nothing in the Land at the time of the Grant the other shews that he was seifed to his use this is a departure for his title to the first was by the Common Law and therefore seeing the Statute was his title it ought to have béen shewed But in our Case the Statute 1 Mariae is not our title to the action but onely removes the impediment 6 H. 7. 8. A condition is pleaded in destruction of a Feoffment and a release pleaded to destroy the condition and no departure but the Feoffment stands with a good title So in our Case Hill 4 Jac. intrat H. 3. Jac. Bagshaw versus Gower Trespass for chasing his Cattle 14 Maii 1 Jac. The Defendant Iustifies as an Estray and that 16 Maii 1 Jac. he delivered them The Plaintiff replies that 15 Maii he laboured and worked them upon which the Defendant demurres This was no departure but the working maintained the Trespass done 14. and made him Trespasser ab initio Mich. 23 24 Eliz. C. B. rot 2297. Pledal and Clark Trespass for chasing his Cattle in Barkshire the Defendant justifies damage fezant the Plaintiff replies that afterwards he drove them into another County scil Oxford c. and sold them the Defendant demurred and the declaration was in Barkshire yet the sale made him a wrong doer ab initio Where the Replication maintains the title and onely removes the impediment it is good Pasch Jac. B. R. Action upon the Case Wood and Hankford for disturbing him of Toll and intitles himself by Letters Patents of H. 6. The Defendant pleads 28 H. 6. which restores all Franchises The Plaintiff replies 4 H. 7. which revives the first Statute and adjudged no departure for if he pleadeth the resumption and the reviver if there were 20 he ought to plead all Then in our case all is gone and we know not whether he ought to justifie one kind or other 3. For the Iurisdiction This Court is most proper for the Informer and he cited Gregories Case and said If the King might elect to sue in what Court he pleased the Informer might also But however it is out of the Statute of 21 Jac. The title is for the ease of the Subject The preamble c. 18 Eliz. cap. 5. there it appeareth that the common Informer ought to inform in proper person the College was never so nor cannot and in common Information there ought to be the day of the Information c. and there is not any day here 25 Eliz. 12. Knevet informed against Butcher and afterwards was non-suited for which the Defendant prayed to have Costs c. and there the Plaintiff alledged that he was not a common Informer insomuch that this was the first Information that he ever exhibited yet ruled against him insomuch that it was upon a penal law where every one may have the action But in our case it is not so because this is no such Information or Informer within the Statute 40 Eliz. Agar informs against Cavendish and others upon the Statute of 8 E. 4. for Liveries which appoints the Information in C. B. B. Reg. and that they may sue as many as they will and the Exchequer is not named there but inferiour Courts be and Iudgment was given for the Informer But after in a Writ of Error brought it was adjudged that the Information doth not lie in the Exchequer but they resolved that the King might have sued there and therefore the Iudgment shall be good to intitle the King to the intire sum forfeited Richardson said that it was a hard case to prove the King may sue in any Court and he cited 14 E. 3. Countess of Kent's case 40 Ass 35. the King may sue for Spiritual matters in the Temporal Court as a Legacy c. Hill 36 Eliz. rot 135. Hammond Informant upon a penal Statute and died and upon motion by the Attorney General Iudgment was given for one Moiety for the King notwithstanding And the difference betwixt this and Agar's Case that in this case the Informer was well intitled to a Moiety but there not Statutes which take away Iurisdictions of the Courts at Westminster ought to be taken strictly Mich. 44 45 Eliz. Buck informs in the Exchequer for transporting of raw hides in Middlesex
which was found to be in another County And the Statute of 31 Eliz. cap. 5. is that in an Information upon a Penal Statute the offence shall not be laid to be done in any other County than where it was done and that the Defendant may traverse and alledge that the offence was committed in another County And because the Defendant did not plead that the offence in this case was done in another County it was adjudged for the Plaintiff and afterwards affirmed in Error and difference taken where in the pleading it appeareth it was done in another County and where not Hill 16 Jac. C. B. rot 850. Grimston versus Molineux for Recusancy of his wife and the Question was in the Information there because the 31 Eliz. Enacts that the offence given shall be laid in the proper County and it was ruled that this was out of the Statute for it is not an offence in doing but in not doing in omitting and not committing and the information lyeth there for Recusancy notwithstanding the conceit in Co. cap. de Recusancy And Mich. 16 Jac. rot 658. B. R. Presses Case was so resolved and that the Statute extends onely to Indictment and so he concluded for the Plaintiff PAsch 5 Car. primi this Case was argued again Athow for the Defendant And before his argument he would shew what was Surgery and what a Surgeon might do It appeareth by 32 H. 8. that licence of Physick comprehends all Physick upon which I collect that 14 H. 8. and the Letters Patents of the College do not extend to Surgery By those Letters Patents and Statute all the Physicians be a body politick and if this extends to Surgery then all the Surgeons in London be of the Corporation of the Physicians which they be not but a distinct Company and out of their Iurisdiction and government And Surgeons for their practice shall not be punished although they practise without licence But the said Statute and Patent extend to the learned part of Physick for the knowledge of Physick is a learned art and therefore the Statute was made to restrain unlearned men and there is more learning in judging rightly of the disease than in curing thereof for sometimes 2 or 3 diseases be in the body at the same time and that which cureth the one may increase the other wherefore there the learning of Physick appears in applying such remedy as may cure both together But for the exercise of Surgery knowledge of the Nature of Herbs c. is sufficient It hath béen said that for outward diseases they are allowed But I answer that for the Stone and Strangury and Ague there néeds no great skill to discover them and then the cure of them is more by experience and practice than learning And I have heard of a Physician that went 100 miles to know a Medicine for those diseases of an old Woman who had long time experience thereof And drinks for Agues Strangury c. is Surgery and not Physick properly And this appeareth by the Statute of 3 H. 8. 34 H. 8. In 3 H. 8. Physick and Surgery be both joyned together but in the allowance of them the Bishop ought to call Physicians to allow Physicians but Surgeons to allow Surgeons Now 34 H. 8. proves that all that the Defendant hath done is Surgery There is the recital of the Statute of 3 H. 8. and then it is said that the Company of Surgeons c. have troubled and vexed divers c. who are indued with the knowledge of ministring to such as be pained with customable diseases c. where there is not one word of Physicians Then if Surgeons may do this the College cannot restrain them or correct them that do this Another part of the Statute of 14 H. 8. is that no person ought to be suffered to practise but he that is professed sage discréet and learned It may be said that under colour of ministring of these drinks to Agues c. one may minister them to other diseases Also I confess that an Ague is attending upon sundry great diseases and for these Agues they cannot give drinks but to single Agues that do not accompany other diseases they may and of these is our Iustification and if he hath ministred to others there is a fair Issue tendered by which it may be tried Stone Strangury and Ague were never within the Stat. 14. H. 8. The exposition of the Statute ought to be according to the intent which is to be collected out of the preamble or body or other words therein and sometimes out of the mischief intended to be thereby remedied Morgan's case Pl. Com. upon 7 E. 6. is an example above all where it is adjudged that this Statute extends only to the Receivers of the King which is collected out of the Act and by other words in the Statute insomuch that the receivers of common persons cannot take any money for receipt c. And the mischief was that no poor men shall have pensions of the King upon the Statute of dissolution of Monasteries And it would be a great mischief if they upon non-payment always should complain to the King which mischief cannot be in case of a common person because they may distrain for non-payment So the Statute 34 H. 8. the preamble body and all the words in the Statute be against Chirurgeons But the exposition 2 E. 4. 18. upon the Statute of Prerogative and so Statutes of Wills gives power to devise lands in soccage of any inheritance and this doth not extend to Lands in Tail although the Act of explanation had not béen made but the Iudges would have made the same exposition because that Lands in Tail cannot be demisable at the Common Law But they would have expounded that Lands in Tail ought a third part of them be allotted to descend upon the heirs because that they may descend And so if it should be doubtfull whether 14 H. 8. extend to Agues and Strangury the Statute 34 H. 8. expounds it that it will not be denied but that Surgeons may cut for the Stone and if Ague or c. break in Vlcers c. they may without question cure them by the same reason they may cure these Diseases inwardly if they can 1. 14 H. 8. is a particular Statute and particular Statutes shall not extend much beyond their words but general Statutes which be for the good of the Commonwealth shall be construed largely and by equity 12 E. 4. 20. 1 H. 6. 5. upon the Statute 1 H. 7. there the Statutes construed by equity be general for the good of the Common-wealth But this Statute of 14 H. 8. is made for the good of Physicians that none shall practise but themselves and it is a particular Statute and therefore construed strictly as appeareth by Dr. Bonham's case Those drinks for the Stone and Agues c. be but stilled Waters or Beer mingled with Herbs which every one may