Medical Jurisprudence, Volume 3 (of 3)
PART I.
STATUTES AND CHARTERS.
STATUTE.
9 _Hen._ 5.
[Cited by Sir Wm. Browne in his Vindication of the College of Physicians. Quarto, London 1753.]
Ex Bundello petitionum de an^o. 9^o. H. 5. in Parliamento.
HEY and most mighty prince noble and worthy lords spirituelx and temporelx and worshipfull comunes, for so moche as a man hath thre things to governe, that is to say soule, body, and worldly goods, the which ought and shulde ben principaly reweled by thre sciences, that ben divinitie, fisyk, and lawe, the soule by divinitie, the body by fisyk, worldly goods by lawe, and those conynges should be used and practised principally by the most connyng men in the same sciences, and most approved in cases necessaries to encrese of virtue, long life, and gouds of fortune, to the worship of God and comyn profit.
But worthi soveraines hit is known to your hey discretion, meny uncunning and unaproved in the aforesaide science practiseth, and specialy in fysyk, so that in this realme is every man be he never so lewed taking upon him practice y suffered to use it to grete harm and slaughtre of many men, where if no man practiced therein but al only connynge men and approved sufficiently y learned in art, filosofye, and fysyk, as it is kept in other londes and roialmes ther shuld many man that dyeth for defaute of helpe lyve, and no man perish by unconning.
Wherefore pleseth to your excellents wysdomes that ought after your soule have no entendance to youre body for the causes abovesaid, to ordaine and make in statute perpetually to be straitly y used and kept. That no man of no manner, estate, degre, or condition, practice in fysyk fro this time forward, bot he have long time y used the scoles of fysyk, having letters testimonialx sufficianty of on of those degrees in the universite in which he took his degree in, under payne of long imprisonement and paying XL lb to the king, and that no woman use the practice of fysyk under the same payne, and that the sherreffs of every shire make inquisition in their tournes if there be any that forfaiteth agens this statuit under a payne reasonable, and thenne that they put this statute in execution without any favoure under the same payne; also lest that they the which ben able to practise in fisyk ben excluded fro practise, the which be not graduated. Pleseth to your hey prudency to send writtes to all the sherriffs of England, that every practysour in fisyk not graduated in the same science, that wole practise forth be wythin on of the universities of this lond by a certain day, that thay that ben able mowe aftre true and strayt examination be received to their degree, and that they that be not able to cese fro the practise into the time they ben able and approved, or for to never more entermete thereof, and that herto also be y set a peyne convenient.
_Dorso._
Responsio hujus petitionis patet in rotulo parliamento dat. 2. dic maij anno regni regis Henr. 5ti. post conquestum nono.
Rot. Parl. 9. H. 5. p. 1. N^o. 11.
Lordinance encontre les entremettours de fysyk et de Surgerie.
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Item pur ouster meschieves et perils qe longement ont continuez dedains le roialme entre les gentz par my ceux quont usez larts et le practik de fisik et surgerye pretendantz foi’ bien et sufficeaument apris de mesmes les arts on de verite non pas estes a grand deceite a le people. Si est ordeinez et assentuz en ceste parlement qe les seigneurs du counseil du roy pur le temps esteantz aient poair per anctoritie de mesme le parlement de faire et mettre tielle ordinaunce et punissement envers ceux persones qe desore evanant vorrant entremetter et user le practik des dits arts et ne sont my hables ne approves en ycelles come app’ent as mesmes les arts cesstasavoir ceux de fisyk en les universities et les surgeons entre les mestres de cell arte et ceo come semblera as ditz seigneurs les plus convenables et necessarie en le cas selonc lour bon advis et discretions pur le surete de le people.
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STATUTE.
3. _Hen._ 8. _c._ 11.
An Act for the appointing Physicians and Surgeons.
‘To the King our Sovereign Lord, and to all the Lords Spiritual and Temporal and Commons in this present Parliament assembled. Forasmuch as the Science & Cunning of Physick & Surgery (to the perfect knowlege whereof be requisite both great Learning and ripe Experience) is daily within this Realm excercised by a great multitude of ignorant Persons, of whom the great part have no manner of Insight in the same, nor in any other Kind of Learning; some also can no Letters on the Book, so far forth, that common Artificers, as Smiths, Weavers, and Women boldly and accustomably take upon them great Cures, and Things of great Difficulty, in the which they partly use Sorcery and Witchcraft, partly apply such Medicines unto the Disease as be very noious, and nothing meet therefore, to the high Displeasure of God, great Infamy to the Faculty, and the grievous Hurt, Damage, and Destruction of many of the King’s liege People, most especially of them that cannot discern the uncunning from the cunning:’ Be it therefore (to the Security and Comfort of all manner People) by the Authority of this present Parliament enacted, That no Person within the City of _London_, nor within Seven Miles of the same, take upon him to exercise and occupy as a Physician or Surgeon, except he be first examined, approved, and admitted by the Bishop of _London_, or by the Dean of _Paul’s_, for the time being, calling to him or them Four Doctors of Physick, and for Surgery other expert Persons in that Faculty, and for the first Examination such as they shall think convenient, and afterward alway Four of them that have been so appointed, upon the Pain of Forfeiture for every Month that they do occupy as Physicians or Surgeons, not admitted nor examined after the Tenour of this Act, of _v. li._ to be imployed the one Half thereof to the Use of our Sovereign Lord the King, and the other Half to any Person that will sue for it by Action of Debt, in which no Wager of Law nor Protection shall be allowed.
II. And over this, That no Person out of the said City, and Precinct of Seven Miles of the same, except he have been (as is aforesaid) approved in the same, take upon him to exercise and occupy as a Physician or Surgeon, in any Diocese within this Realm, but if he be first examined and approved by the Bishop of the same Diocese, or, he being out of the Diocese, by his Vicar General; either of them calling to them such expert Persons in the said Faculties, as their discretion shall think convenient, and giving their Letters Testimonials under their Seal to him that they shall so approve, upon like pain to them that occupy the contrary to this Act (as is above said) to be levied and imployed after the Form before expressed.
III. Provided alway, That this Act, nor any thing therein contained, be prejudicial to the Universities of _Oxford_ or _Cambridge_, or either of them, or to any Privileges granted to them. _Memorand._ That ‘Surgeons be comprised in this Act like as Physicians, for like mischief of ignorant Persons presuming to exercise Surgery.’
STATUTE.
5. _Hen._ 8. _c._ 6.
An Act concerning Surgeons to be discharged of Quests and other things.
‘Sheweth unto your discreet Wisdoms, your Humble Orators the Wardens and Fellowship of the Craft and Mystery of Surgeons enfranchised in the City of _London_, not passing in number Twelve Persons, that whereas they and their Predecessors, from the time that no mind is to the contrary, as well in this noble City of _London_, as in all other Cities and Boroughs within this Realm or elsewhere, for the continual Service and Attendance that they daily and nightly, at all Hours and Times, give to the King’s liege People, for the Relief of the same, according to their Science, have been exempt and discharged from all Offices and Business wherein they should use or bear any manner of Armour or Weapon, and with like Privilege have been intreated as Heralds of Arms, as well in Battles and Fields, as other places, therefore to stand unharnessed and unweaponed, according to the Law of Arms, because they be Persons that never used Feats of War nor ought to use, but only the Business and Exercise of their Science, to the Help and Comfort of the King’s liege People in the time of their Need: And in the aforesaid City of _London_, from the time of their first Incorporation, when they have been many more in number than they now be, were never called nor charged to be on Quest, Watch, nor other Office, whereby they should use or occupy any Armour or defenceable Geer of War, where through they should be unready, and letted to practice the Cure of Men being in Peril;’ Therefore for that there be so small Number of the said Fellowship of the Craft and Mystery of Surgeons, in regard of the great Multitude of Patients that be, and daily chance, and infortune happeneth and increaseth in the foresaid City of _London_, and that many of the King’s liege People suddenly wounded and hurt, for Default of Help in Time to them to be shewed, perish, and so divers have done, as evidently is known, by occasion that your said Suppliants have been compelled to attend upon such Constableship, Watches and Juries, as is aforesaid; be it enacted and established by the King our Sovereign Lord, and the Lords Spiritual and Temporal, and by the Commons, in the present Parliament assembled, and by Authority of the same, That from henceforth your said Suppliants be discharged, and not chargeable of Constableship, Watch, and of all manner of Office bearing any Armour, and also of all Inquests and Juries within the City of _London_: And also that this Act in all things do extend to all Barber Surgeons admitted and approved to exercise the said Mystery of Surgeons, according to the Form of the Statute lately made in that Behalf, so that they exceed not, nor be at one time above the number of Twelve Persons.
STATUTE.
14 _and_ 15 _Hen._ 8. _c._ 5.
The Privileges and Authority of Physicians in _London_.
‘In the most humble wise shew unto your Highness, your true and faithful Subjects and liege Men _John Chambre_, _Thomas Linacre_, _Ferdinandus de Victoria_, your Physicians, and _Nicholas Halsewell_, _John Frances_, and _Robert Yaxley_, and all other men of the same Faculty within the City of _London_, and Seven Miles about, that where your Highness (by your most gracious Letters Patent bearing date at _Westminster_, the xxiii Day of _September_, in the tenth year of your noble Reign) for the Commonwealth of this your Realm, in due exercising and practising of the Faculty of Physick, and the good Ministration of Medicines to be had, hath incorporate and made of us, and of our Company aforesaid one Body and Perpetual Commonalty or Fellowship of the Faculty of Physick, and to have perpetual Succession and common Seal, and to choose yearly a President of the same Fellowship and Commonalty, to oversee, rule and govern the said Fellowship and Commonalty, and all men of the same Faculty, with divers other Liberties and Privileges by your Highness to be granted for the Common Wealth of this your Realm, as in your said most gracious Letters Patents more at large is specified and contained, the Tenour whereof followeth in these Words:—
[_The Charter of Incorporation_].
“Henricus Dei Gratia Rex Angliæ & Franciæ & Dominus Hiberniæ, omnibus ad quos præsentes literæ pervenerint salutem. Cum regii officii nostri munus arbitremur ditionis nostræ hominum fælicitati omni ratione consulere; id autem vel imprimis fore, si improborum conatibus tempestive occuramus, apprime necessarium duximus improborum quoque hominum, qui medicinam magis aviritiæ suæ causa, quam ullius bonæ conscientiæ fiducia, profitebuntur, unde rudi & credulæ plebi plurima incommoda oriantur, audaciam compescere: Itaque partim bene institutarum civitatum in Italia, & aliis multis nationibus, exemplum imitati, partim gravium virorum doctorum Joannis Chambre, Thomæ Linacre, Ferdinandi de Victoria, Medicorum nostrorum, Nicholai Halsewel, Joannis Francisci & Rob Yaxley, medicorum, ac præcipuc reverendissmi in Christo patris, ac domini, dom Thomæ tituli Sanctæ Ceciliæ trans Tiberim sacrosanctæ Romanæ ecclesiæ presbyteri cardinalis, Eboracencis archiepiscopi & regni nostri Angliæ cancellarii clarissimi, precibus inclinati, collegium perpetuum doctorum & gravium virorum, qui medicinam in urbe nostra Londino & suburbis, intraque septem millia passuum ab ea urbe quaqua versus publice exerceant, institui volumus atque imperamus. Quibus tum sui honoris, tum publicæ utilitatis nomine, curæ (ut speramus) erit, malitiosorum quorum meminimus inscientiam temeritatemque, tam suo exemplo gravitateque, suis deterrere, quam per leges nostras nuper editas, ac per constitutiones per idem collegium condendas, punire. Quæ quo facilius rite peragi possint, memoratis doctoribus Joan Chambre, Thomæ Linacre, Ferdinando de Victoria, medicis nostris, Nicholao Halsewel, Joanni Francisco, et Rob Yaxley, medicis, concessimus, quod ipsi, omnesque homines ejusdem facultatis de & in civitate prædicta, sint in re & nomine unum corpus et communitas perpetua sive collogium perpetuum; & quod eadam communitas sive collegium singulis annis in perpetuum eligere possint & facere, de communitate illa aliquem providum virum, & in facultate medicinæ expertum, in præsidentem ejudem collegii sive communitatis, ad supervidend’ recognoscend’ & gabernand’ pro illo anno collegium sive communitatem præd’ & omnes homines ejusdem facultatis & negotia eorundem. Et quod idem præsidens & collegium sive communitas habeant successionem perpetuam & commune sigillum negotiis dict’ communitatis & præsidentis in perpetuum serviturum. Et quod ipsi & successores sui in perpetuum sint personæ habiles & capaces ad perquirendum & possidendum in feodo & perpetuitate terras & tenementa, reditus, & alias possessiones quascunque.”
“Concessimus etiam eis & successoribus suis pro nobis & hæredibus nostris, quod ipsi et successores sui possint perquirere sibi & successoribus suis, tam in dicta urbe quam extra, terras et tenementa quæcunque annuum valorem duodecim librarum non excedent’, Statuto de Alienatione ad manum mortuum non obstante. Et quod ipsi per nomina præsidentis & collegii seu communitatis facultatis medicinæ Lond’ placitari & implaciteri possint coram quibuscunque judicibus in curiis et actionibus quibuscunque. Et quod præd’ præsidens et collegium sive communitas, et corum successores, congregationes licitas & honestas de seipsis, ac stat’ & ordinationes pro salubri qubernatione, supervisu et correctione collegii seu communitatis præd’ & omnium hominum eandem facultatem in dicta civitate, seu per septem milliaria in circuitu ejusdem civitatis exercend’ secundum necessitatis exigentiam, quoties et quanda opus fuerit, facere valeant licite et impune, sine impedimento nostri, hæredum, vel successorum nostrorum, justitiariorum, escaetorum, vicecomitum, & alior’ balivor’ vel ministror’ nostror’ hœred’ vel successor’ nostror’ quorumcunque. Concessimus etiam eisdem præsidenti & collegio, seu communitati, et successoribus suis, quod nemo in dicta civitate aut per septem miliaria in circuitu ejusdem, exerceat dictam facultatem nisi ad hoc per dict’ præsidentem & communitatem, seu successores eorum, qui pro tempore fuerint, admissus sit per ejusdem præsidentis & collegii literas sigillo suo communi sigillatas, sub pœna centum solidorum pro quolibet mense, quo non admissus eandem facultatem exercuit, dimidium inde nobis & hœred’ nostris, & dimidium dicto præsidenti & coll applicandum.”
“Præterea volumus & concedimus pro nobis et successoribus nostris (quantum in nobis) est quod per præsidentem & collegium præd’ communitatis pro tempore existen’ & eorum successores in perpetum, quatuor singulis annis eligantur, qui habeant supervisum & scrutinium, correctionem & qubernat’ omnium & singulor’ dictæ civitatis medicorum utentium facultate medicinæ in eadem civitate, ac aliorum medicorum forinsecorum quorumcunque facultatem illam medicinæ aliquo modo frequentantium & utentium infra eandem civitatem & suburbia ejusdem, sive intra septem miliaria in circuitu ejurd’ civitatis, ac punitionem eorund’ pro delictis suis in non bene exequendo faciendo, & utendo illa; nec non supervisum & scrutinium omnimodarum medicinarum & earum reception’ per dictos medicos, seu aliquem eorum, hujusmodi ligeis nostris pro eorum infirmitatibus curandis & sanandis, dandis, imponendis, & utendis, quoties et quando opus fuerit pro commodo & utilitate eorundem ligeorum nostrorum; ita quod punitio hujusmodi medicorum utentium dicta facultate medicinæ, sic in præmissis delinquent’ per fines, amerciamenta, & imprisonamenta corpor’ suor’ & per alias vias rationab’ & congruas exequatur.
“Volumus etiam & concedimus pro nobis, hæredibus et successoribus nostris (quantum in nobis est,) quod nec præsidens, nec aliquis de collegio præd’ medicorum, nec successores sui, nec eorum aliquis exercens facultatem illam; quoquo modo in futur’ infra civitatem nostram præd’ et suburbia ejusdem, seu alibi, summoneantur aut ponantur neque eorum aliquis summoneatur aut ponatur in aliquibus assisis, juratis, inquestis, inquisitionibus, attinctis, & aliis recognitionibus infra dictam civitatam & suburbia ejusdem, imposterum coram majore ac vicecom’ seu coronatoribus dictæ civitatis nostræ pro tempore existend’ capiendis aut per aliquem officiarium seu ministrum suum, vel officiarios sive ministros suos summonned’, licet eædem juratæ, inquisitiones, seu recognitiones summon’ fuerint super brevi vel brevibus nostris, vel hœredum nostroum, de recto; sed quod dicti magistrati, sive qubernatores, ac communitas facultatis antidictæ & successores sui, & eorum quilibet dictam facultatem exercentes versus nos, hæredes, et successores nostros, ac versus majorem et vicecomites civitatis nostræ præd’ pro tempore existen’ & quoscunque officiarios et ministros suos sint inde quieti, & penitus exonorati in perpetuum per præsentes.”
“Proviso quod litteræ nostræ, seu aliquid in eis content’ non cedent in præjudicium civitatis nostræ Lond’ seu libert’ ejusd’ & hoc absque fine seu feodo pro præmissis, seu sigillat’ præsentium nobis facienda, solvenda, vel aliqualiter reddenda, aliquo statuto, ordinatione, vel actu in contrarium ante hoc tempora facto, edito, ordinato, seu proviso in aliquo non obstante. In cujus rei testimonium has litteras nostras fieri fecimus patentes. Teste meipso apud Westmonasterium xxiij. die Sept’ an’ reg’ nostri x.”
Per ipsum Regem “Et de data præd’ authoritate Parl. TUNSTALL.
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‘And forasmuch that the making of the said Corporation is meritorious, and very good for the Common Wealth of this your Realm, it is therefore expedient and necessary to provide, That no Person of the said Politick Body and Commonalty aforesaid, be suffered to exercise and practice Physick, but only those Persons that be profound, sad, and discreet, groundly learned, and deeply studied in Physick.
‘In consideration whereof, and for the further authorising of the same Letters Patents, and also enlarging of further Articles for the said Common Wealth to be had and made:’ Pleaseth it your Highness, with the assent of your Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, to enact, ordain, and establish, That the said Corporation of the said Commonalty and Fellowship of the Faculty of Physick aforesaid, and all and every Grant, Article, and other Thing, contained and specified in the said Letters Patents, be approved, granted, ratified, and confirmed in the present Parliament, and clearly authorized and admitted by the same, good, lawful, and available to your said Body Corporate, and their Successors for ever, in as ample and large manner as may be taken, thought, and construed by the same; and that it please your Highness, with the assent of your said Lords Spiritual and Temporal and the Commons in this your present Parliament assembled, further to enact, ordain, and establish, That the Six Persons beforesaid in your said most gracious Letters Patents named as Principals, and first named of the said Commonalty and Fellowship, choosing to them Two more of the said Commonalty, from henceforward to be called and cleaped _Elects_; and that the same Elects yearly choose One of them to be President of the said Commonalty, and as oft as any of the Rooms and Places of the same Elects shall fortune to be void, by Death or otherwise, then the Survivors of the said Elects (within Thirty or Forty Days next after the Death of them or any of them) shall choose, name and admit One or mo, as need shall require, of the most cunning and expert Men, of and in the said Faculty in _London_, to supply the said Room and Number of Eight Persons; so that he or they that shall be so chosen, be first by the said Survivors strictly examined after a Form devised by the said Elects, and also by the same Survivors approved.
And where that in Dioceses in _England_, out of _London_, it is not light to find alway Men able sufficiently to examine (after the Statute) such as shall be admitted to exercise Physick in them, that it may be enacted in this present Parliament, That no Person from henceforth be suffered to exercise or practice in Physick through _England_, until such time as he be examined at _London_, by the said President, and three of the said Elects; and to have from the said President or Elects, Letters Testimonials of their approving and Examination, except he be a Graduate of _Oxford_ or _Cambridge_, which hath accomplished all things for his Form, without any Grace.
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32. _Hen._ 8. _c._ 40.
For Physicians and their Privilege.
‘In most humble wise sheweth unto your Majesty, your true and faithful Subjects and liege Men, the President of the Corporation of the Commonalty and Fellowship of the Science and Faculty of Physick in your City of _London_, and the Commons and the Fellows of the same, that whereas divers of them many times having in Cure, as well some of the Lords of your most honourable Council, and divers Times many of the Nobility of this Realm, as many other of your faithful and liege People, cannot give their due Attendance to them, and other their Patients, with such Diligence as their Duty were, and is to do by reason they be many Times compelled, as well within the City of _London_ and Suburbs of the same, as in other Towns and Villages, to keep Watch and Ward, and be chosen to the Office of Constable, and other Offices within the said City and Suburbs of the same, as in other Places within this your Realm, to their great Fatigation and Unquieting, and to the Peril of their Patients, by reason they cannot be conveniently attended:’ It may therefore please your most excellent Majesty, with the Assent of your Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by Authority of the same, to enact, ordain, and establish, That the President of the said Commonalty and Fellowship for the Time being, and the Commons and Fellows of the same, and every Fellow thereof, that now be, or at any time hereafter shall be, their Successors, and the Successors of every of them, at all time and times after the making of this present Act, shall be discharged to keep Watch or Ward in your said City of _London_, or the Suburbs of the same, or any Part thereof; and that they or any of them shall not be chosen Constable, or any other Officer in the said City or Suburbs; and that if at any time hereafter said President for the time being, or any of the said Commons or Fellows for the time being, by any Ways or Means be appointed or elected to any Watch or Ward Office of Constable, or any other Office, within the said City or Suburbs, the same Appointment or Election to be utterly void and of none Effect; any Order, Custom, or Law to the contrary before this Time used in the said City notwithstanding.
II. And that it may please your most Royal Majesty, by the Authority aforesaid, That it may be further enacted, ordained and established, for the common Wealth and Surety of your loving Subjects of this your Realm, in and for the Administration of Medicines to such of your said Subjects as shall have Need of the same, That from henceforth the said President for the Time being, Commons and Fellows, and their Successors may yearly at such time as they shall think most meet and convenient for the same, elect and choose four Persons of the said Commons and Fellows, of the best learned, wisest and most discreet, such as they shall think convenient, and have Experience of the said Faculty of Physick, and that the said four Persons so elected and chosen, after a corporal Oath to them ministered by the said President or his Deputy, shall and may, by virtue of this present Act, have full Authority and Power, as often as they shall think meet and convenient, to enter into the House or Houses of all and every Apothecary, now or at any time hereafter using the Mystery or Craft of Apothecary within the said City, only to search, view and see such Apothecary Wares, Drugs and Stuffs, as the said Apothecaries or any of them have, or at any time hereafter shall have, in their House or Houses; and all such Wares, Drugs and Stuffs, as the said four Persons shall then find defective, corrupted, and not meet nor convenient to be ministered in any medicines for the Health of Man’s Body, the same four Persons calling to them the Warden of the said Mystery of Apothecaries within the said City for that time being, or one of them, shall cause to be brent or otherwise destroy the same, as they shall think meet by their discretion; and if the said Apothecaries or any of them at any time hereafter do obstinately or willingly refuse or deny the said four Persons yearly elected and chosen, as is before said, to enter into their said House or Houses for the Causes, Intent and Purpose before rehearsed; that then they and every of them so offending contrary to this Act, for every time that he or they do so offend, to forfeit C. _s._ the one Half to your Majesty and the other Half to him that will sue for the same by Action of Debt, Bill, Plaint or Information, in any of the King’s Courts, wherein no Wager of Law, Essoin or Protection shall be allowed; and if the said four Persons or any of them so elected and chosen as before is said, do refuse to be sworn, or after his said Oath to him or them administered, do obstinately refuse to make the said Search and View once in the Year, or at such time as they shall think most convenient by their Discretions, having no lawful impediment by Sickness or otherwise, to the contrary; that then for every such wilful and obstinate Default, every of the said four Persons making Default to forfeit forty Shillings.
III. And forasmuch as the Science of Physic doth comprehend, include and contain the knowledge of Surgery, as a special Member and Part of the same, therefore be it enacted, That any of the said Company or Fellowship of Physicians, being able chosen and admitted by the said President and Fellowship of Physicians, may from time to time, as well within the City of _London_, as elsewhere within the Realm, practice and exercise the said Science of Physic in all and every his Members and Parts, any Act, Statute, or Provision made to the contrary notwithstanding.
STATUTE.
32. _Hen._ 8. _c._ 42.
For Barbers and Surgeons.
‘The King our Sovereign Lord, by the advice of the Lords Spiritual and Temporal and the Commons, in this present Parliament assembled, and by the Authority of the same, by all their common Assents, duly pondering among other Things necessary for the Common Wealth of this Realm, that it is very expedient and needful to provide for Men expert in the Science of Physick and Surgery, for the Health of Man’s Body, when Infirmities and Sickness shall happen, for the due Exercise and Maintenance whereof good and necessary Acts be already made and provided; yet nevertheless, forasmuch as within the City of _London_, where Men of great Experience, as well in Speculation as in Practice of the Science and Faculty of Surgery, be abiding and inhabiting, and have more commonly the daily Exercise and Experience of the same Science of Surgery, than is had or used within other Parts of this Realm; and by occasion thereof many expert Persons be brought up under them as their Servants, Apprentices and others, who by the Exercise and diligent Information of their said Masters, as well now as hereafter, shall exercise the said Science within divers other parts of this Realm, to the great Relief, Comfort and Succour of much People, and to the sure Safeguard of their bodily Health, their Limbs and Lives; and forasmuch as within the said City of _London_, there be now two several and distinct Companies of Surgeons, occupying and exercising the said Science and Faculty of Surgery, the one Company being called _The Barbers of London_, and the other Company called _The Surgeons of London_, which Company of Barbers be incorporated to sue and be sued by the Name of Masters or Governors of the Mystery or Commonalty of the Barbers of _London_, by Virtue and Authority of the Letters Patents under the Great Seal of the late King of famous Memory, King _Edward_ the Fourth, dated at Westminster the four and twentieth of _February_, in the first year of his Reign, which afterward, as well by our now most dread Sovereign Lord, as by the right noble and virtuous Prince King _Henry_ the Seventh, Father unto the King’s most excellent Highness now being, were and be confirmed, as by sundry Letters Patents thereof made, amongst other things in the same contained, more at large may appear; and the other Company called the Surgeons, be not incorporate, nor have any manner of Corporation; which two several and distinct Companies of Surgeons were necessary to be united, and made one Body incorporate, to the intent that by their Union and often assembly together, the good and due Order, Exercise, and Knowlege of the said Science or Faculty of Surgery should be as well in Speculation as in Practice, both to themselves, and all other their said Servants and Apprentices, now and hereafter to be brought up under them, and by their Learnings and diligent and ripe Informations, more perfect, speedy and effectual Remedy should be, than it hath been, or should be if the said two Companies of Barbers and Surgeons should continue severed asunder, and not joined together, as they before this time have been, and used themselves not medling together;’ wherefore in consideration of the Premisses, be it enacted by the King our Sovereign Lord, and by the Lords Spiritual and Temporal, and by the Commons in this present Parliament assembled, and by the Authority of the same, That the said two several and distinct Companies of Surgeons, that is to say, both the Barbers and the Surgeons and every Person of them, being a Freeman of either of the said Companies after the Custom of the said City of _London_, and their Successors from henceforth, immediately be united and made one entire and whole body corporate and one Commonalty perpetual, which at all times hereafter shall be called by the name of _Masters or Governors of the Mystery and Commonalty of Barbers and Surgeons of London_, for evermore, and by none other name; and by the same name to implead and be impleaded before all manner of Justices, in all courts, in all manner of Actions and Suits, and also to purchase, enjoy, and to take to them and to their Successors, all manner of Lands, Tenements, Rents, and other Possessions, whatsoever they be; and also shall have a Common Seal, to serve the business of the said Company and Corporation for ever, and by the same name peaceably, quietly, and indefeasably shall have, possess and enjoy to them and to their Successors for ever all such Lands and Tenements, and other Hereditaments whatsoever, which the said Company or Commonalty of Barbers have and enjoy to the Use of the said Mystery and Commonalty of Barbers of _London_; and also shall peaceably and quietly have and enjoy all and singular Benefices, Grants, Liberties, Privileges, Franchises and free Customs, and also all manner of other Things at any time given or granted unto the said Companies of Barbers or Surgeons by whatsoever name or names they or any of them were called, and which they or any of them now have, or any of their Predecessors have had, by Act of Parliament, Letters Patents, of the King’s Highness, or other his most noble Progenitors, or otherwise by any lawful means have had at any time afore this present Act, in as large and ample Manner and Form as they or any of them have, had, might or should enjoy the same, this Union or Conjunction of the said Companies together notwithstanding; and as largely to have and enjoy the Premisses, as if the same were and had been specially and particularly expressed and declared with the best and most clearest Words and Terms in the Law, to all Intents and Purposes, and that all persons of the said Company now incorporate by this present Act, and their Successors, shall be lawfully admitted and approved to occupy Surgery, after the form of the Statute in that case ordained and provided shall be exempt from bearing of Armor, or to be put in any Watches or Inquests; and that they and their Successors shall have the Search, Oversight, Punishment, and Correction, as well of Freemen as of Foreigners for such Offences as they or any of them shall commit or do against the good Order of Barbery or Surgery, as afore this Time among the said Mystery and Company of Barbers of _London_ hath been used and accustomed, according to the good and politick Rules and Ordinances by them made, and approved by the Lord Chancellor, Treasurer and two chief Justices of either Bench, or any three of them after the Form of the Statute in that case ordained and provided.
II. And further be it enacted by the Authority aforesaid, That the said Masters or Governors of the Mystery and Commonalty of Barbers and Surgeons of _London_ and their Successors yearly for ever, after their said Discretions, at their free Liberty and Pleasure, shall and may have and take without Contradiction four persons condemned, adjudged, and put to death for Felony by the due Order of the King’s Laws of this Realm for Anatomies, without any further Suit or Labour to be made to the King’s Highness, his Heirs or Successors of the same; and to make Incision of the same dead bodies, or otherwise to order the same after their said Discretions at their Pleasures for their further and better Knowledge, Instruction, Insight, Learning and Experience in the said Science or Faculty of Surgery; saving unto all Persons their Heirs and Successors all such Right, Title, Interest and demand which they or any of them might lawfully claim or have in or to any of the Lands and Tenements with the Appurtenances belonging unto the said Company of Barbers and Surgeons, or any of them, at any time afore the making of this Act, in as ample Manner and Form as they or any of them had or ought to have had heretofore; any Thing in this present Act comprised to the contrary hereof in any wise notwithstanding.
III. And forasmuch as such Persons using the Mystery or Faculty of Surgery, oftentimes meddle and take unto their Cures and houses such sick and diseased Persons as been infected with the Pestilence Great Pox, and such other contagious Infirmities do use or exercise Barbery, as washing, or shaving or other Feats thereunto belonging which is very perilous for infecting the King’s liege People resorting to their Shops and houses there being washed or shaven: Wherefore it is now inacted, ordained and provided by the Authority aforesaid, That no manner of Person within the City of _London_, Suburbs of the same and one Mile Compass of the said City of _London_, after the feast of the Nativity of our Lord God next coming, using Barbery or Shaving or that hereafter shall use any Barbery or Shaving within the said City of _London_, Suburbs or one mile Circuit of the same City of _London_, he nor they nor none other for them, to his or their Use, shall occupy any Surgery, letting of blood, or any other thing belonging to Surgery; drawing of teeth only except. And furthermore in like manner whosoever that useth the Mystery or Craft of Surgery within the Circuit aforesaid as long as he shall fortune to use the said Mystery or Craft of Surgery, shall in no wise occupy nor exercise the Feat or Craft of Barbery or Shaving, neither by himself, nor by none other for him, to his use or their use: And moreover, that all manner of Persons using Surgery for the time being, as well Freemen as Foreigners, Aliens and Strangers within the said City of _London_, the Suburbs thereof, and one Mile compass of the said City of London, before the Feast of _St. Michael_, the Archangel next coming, shall have an open Sign on the Street side where they shall fortune to dwell, that all the King’s liege People there passing by may know at all times, whither to resort for Remedies in Time of necessity.
IV. And further be it enacted by the Authority aforesaid, That no manner of Person after the said Feast of St. _Michael_ the Archangel next coming, presume to keep any Shop of Barbery or Shaving within the City of _London_, except he be a Freeman of the same Corporation and Company.
V. And furthermore at such Times heretofore accustomed, there shall be chosen by the same Company four Masters or Governors of the same Corporation or Company, of the which four, two of them shall be expert in Surgery, and the other two in Barbery; which four Masters, and every of them, shall have full Power and Authority from Time to Time, during their said Office, to have the Oversight, Search, Punishment and Correction of all such Defaults and Inconveniences as shall be found among the said Company using Barbery or Surgery, as well of Freemen as Foreigners, Aliens or Strangers, within the City of _London_ and the Circuits aforesaid, after their said Discretions; And if any Person or Persons using any Barbery or Surgery at any Time hereafter offend in any of these Articles aforesaid, that then for every Month the said Persons so offending shall lose, forfeit and pay _v. li._ the one Moiety thereof to the King our Sovereign Lord, and the other Moiety to any Person that will or shall sue therefore by Action of Debt, Bill, Plaint or Information in any of the King’s Courts, where no Wager of Law, Essoin or Protection shall be admitted or allowed in the same.
VI. Provided that the said Barbers and Surgeons, and every of them, shall bear and pay Lot and Scot, and such other Charges as they and their Predecessors have been accustomed to pay within the said City of _London_; this Act nor any thing therein contained to the contrary hereof in any wise notwithstanding.
VII. Provided alway, and be it enacted by Authority aforesaid, That it shall be lawful to any of the King’s Subjects, not being Barber or Surgeon, to retain have and keep in his House as his Servant any Person being a Barber or Surgeon, which shall and may use and exercise those Arts and Faculties of Barbery or Surgery, or either of them in his Master’s House, or elsewhere by his Master’s Licence or Commandment; any Thing in this Act above written to the contrary notwithstanding.
34. 35. _Hen._ 8. _c._ 8.
A Bill that Persons being no common Surgeons, may minister Medicines, notwithstanding the Statute.
‘Where in the Parliament holden at _Westminster_, in the third year of the King’s most gracious reign, amongst other things, for the avoiding Sorceries, Witchcraft, and other inconveniencies; it was enacted, That no Person within the City of _London_, nor within seven miles of the same, should take upon him to exercise and occupy as Physician or Surgeon, except he be first examined, approved and admitted by the Bishop of London, and others, under and upon certain Pains and Penalties, in the same Act mentioned: since the making of which Act, the Company and Fellowship of Surgeons of _London_, minding only their own lucres, and nothing the profit or ease of the Diseased or Patient, have sued, troubled, and vexed divers honest Persons, as well Men as Women, whom God hath endued with the knowledge of the nature, kind and operation of certain herbs, roots and waters, and the using and ministering of them to such as been pained with customable Diseases, as Women’s Breasts being Sore, a Pin and the Web in the eye, Uncomes of Hands, Burnings, Scaldings, Sore Mouths, the Stone, Stranguary, Saucelim, and Morphew, and such other like Diseases; and yet the said Persons have not taken any thing for their Pains or Cunning, but have ministered the same to poor People only, for Neighbourhood and God’s sake, and of Pity and Charity; and it is well known, that the Surgeons admitted will do no cure to any Person, but where they shall know to be rewarded with a greater sum or reward than the cure extendeth unto; for in case they would minister their cunning unto sore People unrewarded, there should not so many rot, and perish to Death for lack or help of Surgery, as daily do; but the greatest part of Surgeons admitted been much more to be blamed, than those Persons that they trouble.’
‘For although the most part of the Persons of the said Craft of Surgeons, have small cunning, yet they will take great Sums of Money, and do little therefore; and by reason thereof, they do oftentimes impair and hurt their Patients, rather than do them good.’ In consideration whereof, and for the Ease, Comfort, Succour, Help, Relief, and Health of the King’s poor Subjects, Inhabitants of this Realm, now pained or diseased, or that hereafter shall be pained or diseased.
Be it ordained, established, and enacted, by the Authority of this present Parliament, that at all time from henceforth, it shall be lawful to every Person being the King’s Subject, having knowledge and experience of the nature of Herbs, Roots, and Waters, or of the operation of the same, by Speculation or Practice, within any part of the Realm of _England_, or within any other of the King’s Dominions, to practise, use, and minister in and to any outward Sore, Uncome, Wound, Apostemations, outward Swellings or Disease, any Herb or Herbs, Ointments, Baths, Pultess, and Emplasters, according to their Cunning, Experience and Knowledge, in any of the Diseases, Sores, and Maladies beforesaid, and all other like to the same, or Drinks for the Stone, Stranguary or Agues, without Suit, Vexation, Trouble, Penalty, or loss of their Goods; the foresaid Statute in the foresaid third Year of the King’s Most Gracious Reign, or any other Act, Ordinance, or Statute to the contrary heretofore made in anywise notwithstanding.
1. _Mary_, _c._ 9.
An Act touching the Corporation of Physicians in _London_.
‘Whereas in the Parliament holden at _London_, the fifteenth Day of _April_, in the fourteenth year of the Reign of our late Sovereign Lord, King Henry the Eighth, and from thence adjourned to _Westminster_, the last day of _July_, in the fifteenth year of the Reign of the same king, and there holden, it was enacted, That a certain Grant of Letters Patents of Incorporation, made and granted by our said late king to the Physicians of _London_, and all Clauses and Articles contained in the same Grant, should be approved, granted, ratified and confirmed by the same Parliament.’
For the consideration thereof, be it enacted, by the Authority of this present Parliament, That the said Statute or Act of Parliament, with every Article and Clause therein contained, shall from henceforth stand and continue in full Strength, Force and Effect; any Act, Statute, Law, Custom, or any other thing made had or used to the contrary in any wise notwithstanding.
III. And for the better Reformation of divers Enormities happening to the Commonwealth, by the evil using and undue Administration of Physick, and for the enlarging of further Articles for the better Execution of the things contained in the said Grant enacted;
IV. Be it therefore now enacted, That whensoever the President of the College, or Communalty of the Faculty of Physick of _London_, for the time being, or such as the said President and College shall yearly, according to the Tenor and Meaning of the said Act, authorise to search, examine, correct and punish all Offenders and Transgressors in the said Faculty, within the same City and Precinct in the said Act expressed, shall send or commit any such Offender or Offenders for his or their Offences or Disobedience, contrary to any Article or Clause contained in the said Grant or Act, to any Ward, Gaol or Prison, within the same City and Precinct (the Tower of _London_, except) That then from time to time, the Warden, Gaoler or Keeper, Wardens, Gaolers, or Keepers of the Wards, Gaols and Prisons within the City or Precinct aforesaid, (except before excepted) shall receive into his or their Prisons all and every such Person and Persons so offending, as shall be so sent or committed, to him or them, as is aforesaid; and there shall safely keep the person or persons so committed, in any of their Prisons, at the proper Costs and Charges of the said Person or Persons so committed, without Bail or Mainprise, until such time as such Offender or Offenders or Disobedient be discharged of the said Imprisonment by the said President, and such Persons as by the said College shall be thereto authorised; upon Pain that all and every such Warden, Gaoler and Keeper, doing the contrary, shall lose and forfeit double of such Fine and Amerciament as such Offender and Offenders or Disobedients, shall be assessed to pay, by such as the said President and College shall authorise as aforesaid, so that the same Fine and Amerciament be not at any one time above the sum of xx li. the Moiety thereof to be employed to the use of our Sovereign Lady the Queen, her Heirs and Successors, the other Moiety unto the said President and College: all which forfeitures to be recovered by Action of Debt, Bill, Plaint, or Information, in any of the Queen’s, her Heirs and Successor’s Courts of Record, against any such Warden, Gaoler or Keeper so offending; in which Suit no Essoin, Wager of Law, nor Protection shall be allowed nor admitted for the Defendant.
V. And further, be it enacted by the Authority aforesaid, for the better Execution of the Search and view of Poticary Wares, Drugs and Compositions, according to the Tenor of a Statute made in the xxxii Year of the Reign of the said late King _Henry_ the Eighth, That it shall be lawful for the Wardens of the Grocers, or one of them, to go with the said Physicians in their View and Search, that if the said Warden or Wardens do refuse his or their coming thereunto, forthwith and immediately, when the said President or four of his College elect, as aforesaid, do call upon him or them, that then the said Physicians may and shall execute that Search and View, and the due Punishment of the Poticaries for any their evil and faulty Stuff, according to the Statute last before mentioned, without the Assistance of any of the said Wardens; any Clause in the aforenamed Statute to the contrary hereof notwithstanding. And every such Person or Persons as will or shall resist such Search, shall forfeit for every such resistance Ten Pound; the same Penalty to be recovered in Form aforesaid, without any of the delays aforesaid, to be had in suit thereof.
VI. And further, be it enacted, That all Justices, Mayors, Sheriffs, Bailiffs, Constables, and other Ministers and Officers, within the City and Precincts above written, upon Request to them made, shall help and assist the President of the said College, and all Persons by them from time to time authorised for the due Execution of the said Acts or Statutes, upon Pain for not giving of such Aid, Help, and Assistance, to run in Contempt of the Queen’s Majesty, her Heirs and Successors.
6th & 7th _Will._ 3. _c._ 4.
An Act for exempting Apothecaries from serving the Offices of Constable, Scavenger, and other Parish and Ward Offices, and from serving upon Juries.
‘Whereas the Act of the Apothecary is of great and general Use and Benefit, by reason of their constant and necessary Assistance of his Majesty’s Subjects, which should oblige them solely to attend the Duty of their Professions; yet by reason that they are compelled to serve several Parish, Ward, and Leet Offices, in the Places where they live, and are frequently summoned to serve on Juries and Inquests, which take up great Part of their Time, they cannot perform the Trusts reposed in them as they ought, nor attend the Sick with such Diligence as is required: And whereas, King _JAMES_ the First, by His Letters Patents under the Great Seal of _England_, did incorporate the Apothecaries exercising that Art within _London_, and seven Miles Compass, by the Name of _The Master, Wardens, and Society of the Art and Mystery of the Apothecaries of the City of London_:’
II. Be it therefore enacted, by the King’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That all and every Person and Persons, using and exercising, or that hereafter shall use and exercise, the Art of an Apothecary within the said City of _London_, and seven Miles thereof, being Free of the said Society, and who already have been, or hereafter shall be duly examined of his Skill in the said Mystery, and shall be approved of for the same, and every of them, for so long as he or they shall use and exercise the said Art, and no longer, shall and may at all Times hereafter be freed and exempted from the several Offices of Constable, Scavenger, Overseer of the Poor, and all other Parish, Ward, and Leet Offices, and of and from the being put into or serving upon Juries or Inquests; and if at any Time hereafter any such Person or Persons using the said Art, and being qualified as aforesaid, shall be chosen or elected into any of the said Offices, or returned, required, or appointed to serve in any Jury, Leet, or Inquest, or be disquieted or disturbed by reason thereof, that then such Person or Persons, producing a Testimonial under the common Seal of the said Corporation, of such his Examination, Approbation, and Freedom, to the Person or Persons by whom he shall be so elected or appointed, or by or before whom he shall be so summoned, returned, or required to serve or hold any of the said Offices or Duties, shall be absolutely discharged from the same, and such Nomination, Election, Return, and Appointment, shall be utterly void, and of none Effect; any Order, Custom, Law, or Statute, to the contrary in any wise notwithstanding.
III. And be it further enacted by the Authority aforesaid, That all Persons using and exercising, or that hereafter shall use and exercise the said Art of an Apothecary, within any other Parts of this Kingdom, Dominion of _Wales_, or Town of _Berwick_ upon _Tweed_, and who have been brought up and served, or hereafter shall be brought up and serve in the said Art as an Apprentice, by the Space of seven years, according to the Statute of the fifth of Queen _ELIZABETH_, shall likewise from henceforth be freed and exempted from all and singular the Offices and Duties aforesaid, within the several Counties, Cities, and Places, where they live and inhabit, for so long as he or they shall use and exercise the said Art, and no longer; and if any Person or Persons so qualified shall be elected or chosen into any of the said Offices, or returned to serve in any Jury, Leet, or Inquest, such Nomination, Election, Return, and Appointment, shall be void, unless such Person or Persons shall voluntarily consent and agree to hold such Office, or serve upon such Jury, Leet, or Inquest. Provided always, That nothing herein contained shall be construed to exempt or excuse any Apothecary that is or shall, before the commencement of this Act, be elected or appointed to Serve any of the said Offices, from serving in the said Offices for the usual Time, for which he was so elected and appointed. Provided always, That this Act shall continue for the Space of seven Years, and from thence to the End of the next Session of Parliament, and no longer.
_Continued by_ 1 Ann. st. 1. c. 11.
_Made perpetual by_ 9 Geo. 1. c. 8. § 1.
10. _Geo._ 1. _c._ 20.
An Act for the better viewing, searching and examining of all Drugs, Medicines, Waters, Oils, Compositions, used or to be used for Medicines in all places where the same shall be exposed to sale or kept for that Purpose, within the City of _London_ and Suburbs thereof, or within seven Miles Circuit of the said City.
[_This Act has expired._]
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18. _Geo._ 2. _c._ 15.
An Act for making the Surgeons of _London_ and the Barbers of _London_ two separate and distinct Corporations.
‘Whereas in and by certain Letters Patent, under the Great Seal of _England_, bearing Date the twenty-fourth Day of _February_ in the first Year of the Reign of his then Majesty King Edward the Fourth, after reciting, That the Freemen of the Mystery of Barbers of the City of _London_, using the Mystery or Faculty of Surgery, had for a long Time, exercised and sustained, and still continued to exercise and sustain great Application and Labour, as well about the curing and healing Wounds, Blows and other Infirmities, as in the letting of Blood, and drawing of Teeth; and that by the Ignorance and Unskilfulness of some of the said Barbers, as well Freemen of the said City as of others, being foreign Surgeons, many misfortunes had happened to divers People, by the Unskilfulness of such Barbers and Surgeons, in healing and curing Wounds, Blows, Hurts and other Infirmities; and that it was to be feared, that the like or worse Evils might thereafter ensue, unless a suitable Remedy was speedily provided in the Premisses; his said then Majesty did therefore, at the Supplication of the Freemen of the said Mystery of Barbers, in the said City of _London_, grant to them, amongst other Things, that the said Mystery, and all the Men of the said Mystery of the said City, should be one Body, and one perpetual Community; and that two Principals of the same Commonalty, of the most expert Men in the Mystery of Surgery, might with the Assent of twelve, or eight Persons at the least, of the same Community, every Year elect and make out of the Community two Masters or Governors, being the most expert in the Mystery of Surgery, to oversee, rule and govern the Mystery and Commonalty aforesaid, and all Men of the same Mystery and the Affairs of the same; and that the aforesaid Masters or Governors, and Commonalty, and their Successors, might make Statutes and Ordinances for the Government of the said Mysteries; and that the Masters or Governors for the Time being, and their Successors, should have the Survey, Search, Correction and Government of all the Freemen of the said City, being Surgeons, using the Mystery of Barbers in the same City, and of other Surgeons whatsoever, being Foreigners, practising and using the Mystery of Surgery, within the same City and Suburbs of the same, and the Punishment of them, as well Freemen as Foreigners, for their Offences in not perfectly executing, performing and using that Mystery; and should also have the Survey and Search of all Manner of Instruments, Plaisters and other Medicines, and the Receipts to be given, applied and used by the said Barbers and Surgeons, for the curing and healing of Sores, Wounds, Hurts and such like Infirmities; and that no Barber using the said Mystery of Surgery, within the said City, or Suburbs thereof, or other foreign Surgeon whatsoever, should be in any Manner thereafter admitted to execute, perform and exercise the same Mystery of Surgery, unless he had first been approved of, as well instructed in that Mystery, by the said Masters or Governors, or their Successors, sufficiently qualified in that Behalf; and his said Majesty did further grant, that the said Masters or Governors of the Commonalty of the said Mystery of Barbers, and their Successors, nor any of them, should in any Manner thereafter be summoned or put upon any Assizes, Juries, Inquests, Inquisitions, Attaints or other Recognizances, to be taken within the said City and Suburbs thereof, before the Mayor or Sheriffs, or Coroners of the same City for the Time being, or summoned by any of his Officer or Officers, Minister or Ministers, although such Juries, Inquisitions, or Recognizances, should be summoned upon a Writ or Writs of Right; but that the said Masters or Governors, and Commonalty of the aforesaid Mystery, and their Successors, and every of them, should be thereof acquitted, and wholly discharged for ever; and his said then Majesty thereby further granted unto the aforesaid Masters or Governors, and Commonalty of the said Mystery of Barbers, and to their Successors the following Liberty; to wit, That they at all Times thereafter should and might admit Persons able and sufficiently learned and instructed in the said Mystery of Surgery, and by them approved of in Form, and presented to the Mayor of the said City for the Time being, and no other Persons, or in any other Manner, into the said Mystery of Barber Surgeons, and Liberty of the said City: And whereas by an Act of Parliament made and passed in the thirty-second Year of the Reign of the late King Henry the Eighth, intituled, _For Barbers and Surgeons_, after taking Notice that it was very expedient and needful to provide for Men expert in the Science of Physick and Surgery for the Health of Man’s Body, when Infirmities and Sickness should happen; for the due Exercise and Maintenance whereof, good and necessary Acts had theretofore been made and provided, and that within the City of _London_, Men of great Experience, as well in Speculation as in Practice of the Science and Faculty of Surgery, were abiding and inhabiting, and had more commonly the daily Exercise and Experience of the same Science of Surgery than was had and used within any Parts of the Realm; and by Occasion thereof, many expert Persons were brought up under them as their Servants, Apprentices and others, who by the Exercise and diligent Information of their Masters, might exercise the said Science within divers other Parts of the Realm; to the great Relief, Comfort and Succour of much People, and to the Safeguard of their bodily Health, Limbs and Lives; and reciting, That within the said City of _London_ there were then two several and distinct Companies of Surgeons occupying and exercising the Science and Faculty of Surgery, the one Company being commonly called _The Barbers of_ London, and the other Company called _The Surgeons of_ London; and that the said Company of Barbers were incorporated to sue and be sued by the Name of _Masters or Governors of the Mystery or Commonalty of the Barbers of_ London, by Letters Patent under the Great Seal of King Edward the Fourth, dated the twenty-fourth Day of _February_ in the first Year of his Reign, and which were confirmed by several subsequent Letters Patents in the said Act mentioned and referred to; and that the other Company, called _The Surgeons_, had not any Manner of Corporation; and that the said two several and distinct Companies of Surgeons were necessary to be united and made one Body Corporate, to the Intent that by their Union and often Assembly together, the good and due Order, Exercise and Knowledge in the said Science or Faculty of Surgery, should be, as well in Speculation as in Practice, both to themselves and their Servants and Apprentices, and by their Learning and diligent and ripe Informations, more perfect, speedy and effectual; it was therefore enacted, That the said two several and distinct Companies of Surgeons, that is to say, both the Barbers and the Surgeons, and every Person of them, being a Freeman of either of the said Companies, after the Custom of the said City of _London_, and their Successors, should from thenceforth be immediately united and made one entire and whole Body Corporate, and one Commonalty perpetual, which at all Times thereafter should be called by the Name of _Masters or Governors of the Mystery or Commonalty of Barbers and Surgeons of_ London, and by the same Name to implead and be impleaded before all Manner of Justices in all Courts, in all Manner of Actions and Suits; and also to purchase, enjoy, and take to them and their Successors, Lands, Tenements, Rents and other Possessions whatsoever: And it was also thereby enacted, That they should have a Common Seal to serve for the Business of the said Company and Corporation; and that they should by the same Name, peaceably, quietly and indefeazibly, have, possess, and enjoy, to them and their Successors for ever, all such Lands and Tenements, and other Hereditaments whatsoever, which the said Company or Commonalty of Barbers then had and enjoyed, to the Use of the said Mystery and Commonalty of Barbers of _London_; and should also peaceably and quietly have and enjoy all and singular Benefits, Grants, Liberties, Privileges, Franchises and Free Customs, and also all Manner of other Things at any Time given or granted unto the said Companies of Barbers or Surgeons, by whatsoever Name or Names they or any of them were called, or which they or any of them, or any of their Predecessors, then or theretofore had by Acts of Parliament, Letters Patents or otherwise, by any lawful Means at any Time before the said Act, in as large and ample Manner and Form, as they or any of them, had, might or should enjoy the same, notwithstanding the said Union or Conjunction of the said Companies, and as if the same were and had been specially and particularly expressed and declared, with the best and most clearest Words and Terms of Law, to all Intents and Purposes: And it was thereby also enacted, That all Persons of the said Company incorporated by the said Act, and their Successors, that should be lawfully admitted and approved to occupy Surgery after the Form of the Statute in that case made and provided, should be exempt from bearing of Armour, or to be put in any Watches or Inquests; and that they and their Successors, should have the Search, Oversight, Punishment and Correction, as well of Freemen as of Foreign, for such Offences as they or any of them, should commit against the good Order of Barbery and Surgery, as theretofore among the said Company of Barbers of _London_ had been used and accustomed, according to the Rules and Ordinances by them made and approved of, pursuant to the Statute in that Behalf ordained and provided: And it was thereby further enacted, That no Person within the City of _London_, Suburbs of the same, and one Mile Compass of the said City, using any Barbery or Shaving, should occupy any Surgery, letting of Blood, or any other Thing belonging to Surgery, except Drawing of Teeth only: and that whosoever should use the Mystery or Craft of Surgery within the Circuit aforesaid, should, as long as he should use the said Mystery or Craft, in no wise occupy or exercise the Feat or Craft of Barbery or Shaving: And whereas in and by certain Letters Patents under the Great Seal of _England_, bearing Date the fifteenth Day of _August_ in the fifth Year of the Reign of his late Majesty King Charles the First, reciting the said Act of Parliament of the thirty-second Year of the Reign of King Henry the Eighth; and that the Men of the same Societies, as well from the Time of their said Union and Incorporation as before, respectively had, held, used and enjoyed divers Liberties, Franchises, Immunities, Customs and Preheminences, within the City of _London_, the Suburbs and Liberties thereof, and certain Villages, and Places thereto adjacent, as well on account of the said Act of Parliament, and other Acts of Parliament, as by virtue and on account of divers Charters and Letters Patents made and granted by the late King James the First, and other Kings and Queens of _England_, his said Majesty King Charles the First did thereby grant, ratify and confirm unto the said Masters and Governors of the Mystery and Commonalty aforesaid, and their Successors, all and singular the Manors, Messuages, Lands, Tenements, Customs, Liberties, Franchises, Immunities, Jurisdictions and Hereditaments whatsoever, as well within the City of _London_, the Liberties and Suburbs thereof, as within the Liberties and Precincts therein after mentioned, which the Men of the aforesaid Societies of Barbers and Surgeons, or either of them, then lawfully had, held, used and enjoyed, by reason of any Letters Patents of any the former Kings and Queens of _England_, or by Colour of any lawful Prescription, Use, or Custom, or by any other lawful Means, Rights or Title theretofore had, used or accustomed: And his said late Majesty King Charles the First did thereby give Power to the said Company and Corporation to make Bye-laws for the good Order and Government of the said Society, in such Manner, and under such Restrictions, as is therein mentioned; and to make annual Elections of Masters or Governors of the said Commonalty, whereof two to be Professors in the Art and Science of Surgery; and also to elect and constitute ten of the Freemen of that Society to be Examiners of the Surgeons of _London_, during their Lives: And it was thereby further granted, That no Person or Persons whatsoever, whether a Freeman of the said Society, or a Foreigner, or a Native of _England_, or an Alien, should use or exercise the said Art or Science of Surgery within the said Cities of _London_ and _Westminster_, or either of them, or within the Distance of seven Miles of the said City of _London_, for his or their private Lucre or Profit, (except such Physicians as are therein mentioned) unless the said Person or Persons were first tried and examined in the Presence of two or more of the Masters or Governors of the Mystery and Commonalty aforesaid for the Time being, by four or more of the said Examiners so to be elected and constituted as aforesaid, and by the publick Letters Testimonial of the same Masters or Governors under their Common Seal approved of, and admitted to exercise the said Art Or Science of Surgery, according to the Laws and Statutes of the Kingdom of _England_, under the Penalty in the said Letters Patents mentioned; and that all and every of the said Freemen and Surgeons so examined, approved of, and admitted as aforesaid, might lawfully use and exercise the same Art and Science of Surgery, as well within the Cities of _London_ and _Westminster_, the Liberties and Suburbs thereof, as in any other Cities, Towns, Boroughs and Places whatsoever of the Kingdom of _England_: And it was thereby further granted and provided, That the said Masters and Governors of the Mystery and Commonalty aforesaid, and their Successors, might appoint and have a publick Lecture for the Art and Science of Surgery in their common Hall, or other convenient Place, every Week or otherwise, at the Discretion of the said Masters or Governors and their Assistants, or the major Part of them for the Time being, to be held for the better Instruction and Information in the Principles and Rudiments of the Art and Science of Chirurgery of all and singular as well Freemen as Foreigners, whether native Subjects of _England_ or Aliens, to be entered and admitted as is therein mentioned: And it was thereby also constituted and ordained, That no one, whether a Freeman of the Mystery or Commonalty aforesaid, or a Foreigner, whether a Native of _England_, or an Alien, exercising the Art of Surgery within the Cities of _London_ and _Westminster_, or the Suburbs or Liberties thereof, or within seven Miles of the said City of _London_, should go out from the Port of _London_, or send out any Apprentice, Servant or other Person whomsoever, from the same Port, to execute or undertake the Place or Office of a Surgeon for any Ship, whether in the Service of the Crown, or of any Merchant or others, unless they and their Medicines, Instruments and Chests respectively, were first examined, inspected and allowed by two such Masters or Governors of the Mystery and Commonalty aforesaid for the Time being, as were skilled, knowing and Professors in the same Art of Surgery, under the Penalty therein mentioned: And whereas, since the said Act for Incorporation of the said two Companies, those of the said Company practising Surgery, have from their sole and constant Study of and Application to the said Science, rendered the Profession and Practice thereof of great Benefit to this Kingdom: And whereas the Barbers belonging to the said Corporation are now, and for many Years have been engaged and employed in a Business foreign to, and independent of the Practice of Surgery; and the Surgeons belonging to the same Corporation being now become a numerous and considerable Body, and finding their Union with the Barbers inconvenient in many Respects, and in no Degree conducive to the Progress or Improvement of the Art of Surgery; and that a Separation of the Corporation of Barbers and Surgeons, and making two Corporations of the present united Company of Barbers and Surgeons, will contribute much to the Improvement of Surgery, and thereby become a Matter of publick Utility, are therefore desirous that the Surgeons being Freemen of the said Company, may be made a Corporation separate and distinct from and Independent of the Barbers of and belonging to the said Company;’ May it therefore please your most Excellent Majesty that it may be enacted; and be it enacted by the King’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That the said Union and Incorporation of the Barbers and Surgeons of _London_, made and effected by the said recital Act of the thirty-second Year of King Henry the Eighth, shall from and after the twenty-fourth Day of _June_ one thousand seven hundred and forty-five, be, and the same is hereby dissolved, vacated and declared to be void and of no Effect, and that such of the Members of the said united Company or Corporation, who are Freemen of the said Company, and admitted and approved Surgeons within the Rules of the said Company and Corporation, and their Successors, shall from thenceforth be made, and they are hereby made and constituted a separate and distinct Body Corporate, and Commonalty perpetual, which, at all Times thereafter, shall be called by the Name of _Masters, Governors and Commonalty of the Art and Science of Surgeons of_ London; and by the same Name, shall and may implead and be impleaded before all Manner of Justices in all Courts and in all Manner of Actions and Suits, and purchase, enjoy and take to them, and their Successors, any Lands, Tenements, Rents or Hereditaments, not exceeding the yearly Rent or Value of two hundred Pounds in the whole, without incurring any of the Penalties or Forfeitures of the Statutes of Mortmain.
II. And it is hereby further enacted by the Authority aforesaid, That it shall and may be lawful to and for the said Company or Corporation herein before established and incorporated, from time to time, in the Manner herein after mentioned, to elect, choose, and appoint one principal Master or Governor, two other Governors or Wardens, ten Examiners of Surgeons, and twenty-one Persons to be the Court of Assistants of the said Company or Corporation, to be respectively qualified and admitted in such Manner, and to continue in the said Offices respectively, for such Time and Times respectively, as by the By-laws, Rules, Ordinances, and Constitutions of the said Company or Corporation, shall be, from time to time, ordered, directed, provided and appointed.
III. And it is hereby further enacted, That it shall and may be lawful to and for the Master and Governors of the said Company or Corporation for the Time being, or any two of them, with nine or more of the Members of the said Court of Assistants of the same Company for the Time being, when and as often as to two of the said Master and Governors shall seem meet, to hold Courts and Assemblies, in order to treat and consult about and concerning the Rule, Order, State, and Government of the said Company or Corporation herein before established and incorporated as aforesaid; and also that it shall and may be lawful to and for the said Master and Governors and Court of Assistants so assembled, or the major Part of them, to make, ordain, constitute, establish, ratify, confirm, annul, revoke, or abrogate, from time to time, such By-laws, Ordinances, Rules, and Constitutions, as to them shall seem requisite, profitable, and convenient for the Regulation, Government, and Advantage of the said Company or Corporation; so as such By-laws, Ordinances, Rules, and Constitutions be examined, approved of, and allowed, as by the Laws and Statutes of this Realm is provided and required.
IV. Provided always, and it is hereby enacted and declared, That the several By-laws, Ordinances, Rules, and Constitutions, made and established for the Regulation and Government of the said United Company or Corporation, so far as the same relate to, or concern the Art and Science of Surgery only, and which, on the twenty-third day of _June_ one thousand seven hundred and forty-five, shall be subsisting, and in Force, and shall not be repealed, annulled, or abrogated by virtue of this present Act, shall continue and be in Force; and shall be exercised, observed, and executed by the said Company of Surgeons established and incorporated by this Act, until such Time and Times respectively as the same By-laws, Ordinances, Rules, and Constitutions shall respectively be repealed, annulled, and made void, by virtue and under the Authority of this present Act.
V. Provided also, and it is hereby further enacted and declared, That _John Ranby_ Esquire, Principal Serjeant Surgeon to his Majesty, shall be, and he is hereby constituted and appointed Principal Master or Governor; and that Master _Joseph Sandford_ and _William Cheselden_ Esquire, two of the present Wardens of the said United Company shall be, and they are hereby constituted and appointed, the two other Governors or Wardens of the Company of Surgeons made, established, and incorporated by this Act; and that they shall continue in, and hold, enjoy and exercise the said Offices respectively from the said twenty-fourth Day of _June_, until others shall be elected and appointed to the said Offices respectively, as herein after is mentioned: And also that _Ambrose Dickins_ Esquire, Principal Serjeant Surgeon to his Majesty, _William Petty_ Esquire, _John Shipton_ Esquire, the said _William Cheselden_, _John Freke_, _William Pyle_, _Legard Sparham_, _James Hickes_, and _Peter Sainthill_, who are the present Examiners of Surgeons, together with the said _John Ranby_, shall be, and they are hereby constituted and appointed Examiners of Surgeons for the said Company of Surgeons made, established, and incorporated by this Act; and that they shall respectively continue in, and hold, enjoy, and exercise the said Office of Examiners for and during their natural Lives respectively, or until they shall be respectively removed out of the said Office, pursuant, and according to the By-laws, Rules, and Constitutions of the said Company of Surgeons, established and incorporated by this Act; And also that the said _John Ranby_, _Joseph Sandford_, _William Cheselden_, _Ambrose Dickins_, _William Petty_, and _John Shipton_, _John Hayward_, the said _John Freke_, _William Pyle_, _Legard Sparham_, _James Hickes_, and _Peter Sainthill_, _Noah Roul_, _John Westbrook_, _William Singleton_, and _James Phillips_, and such five other Persons as shall hereafter be elected and appointed for that Purpose, in pursuance of this Act, and as is herein after mentioned, shall be, and they are hereby constituted and appointed the Court of Assistants of the Company of Surgeons made, established and incorporated by this Act; and that they shall continue in, and hold, enjoy, and exercise the said Office during their natural Lives respectively, or until they shall respectively be removed out of the said Office, pursuant and according to the By-laws, Rules, and Constitutions of the same Company.
VI. And it is hereby further enacted, That it shall and may be lawful to and for the said _John Ranby_, _Joseph Sandford_, _William Cheselden_, _Ambrose Dickins_, _William Petty_, _John Shipton_, _John Hayward_, _John Freke_, _William Pyle_, _Legard Sparham_, _James Hickes_, _Peter Sainthill_, _Noah Roul_, _John Westbrook_, _William Singleton_, and _James Phillips_, to meet at or in such Place as the said _John Ranby_, _Joseph Sandford_, and _William Cheselden_, or any two of them, shall appoint, on the first Day of _July_ one thousand seven hundred and forty-five, between the Hours of ten and two of the Clock of the same Day; and then and there to elect, choose, and appoint, out of the Freemen of the said Company or Corporation of Surgeons established and incorporated by this Act, by the Majority of Votes of such of the said sixteen Persons herein before appointed to be of the Court of Assistants, who shall be present at such Meeting, so many other Persons to be of the Court of Assistants of the same Company or Corporation, as will make the Number twenty-one, to continue in the said Office for and during their natural Lives respectively, or until they shall be respectively removed out of the said Office.
VII. And it is further enacted, That the Master, Governors, and Court of Assistants for the Time being, of the said Company of Surgeons made; established, and incorporated by this Act, shall, upon the first _Thursday_ in the Month of _July_ in the Year one thousand seven hundred and forty-six; and on the first _Thursday_ in the Month of _July_ in every succeeding Year, meet at such Place as the Master and Governors of the same Company for the Time being, or any two of them shall appoint; and then and there elect, choose, and appoint, out of their Body, by the Majority of Votes of such of the said Master, Governors, and Court of Assistants, who shall be then present, one Person to be Principal Master or Governor, and two other Persons to be Governors or Wardens of the said Company or Corporation of Surgeons, established and incorporated by this Act, for the then succeeding Year; and then and there also, in like manner, elect, choose, and appoint, out of their own Body, such other Person or Persons, to be Examiner or Examiners of Surgeons, for the same Company, in the Place or Stead of such Examiner or Examiners, as shall have happened to die, or have been removed from the said Office of Examiner, in the then next preceding Year; and also in like manner, elect, choose, and appoint, out of the Freemen of the said Company or Corporation of Surgeons established and incorporated by this Act, such Person or Persons to be of the Court of Assistants of the same Company or Corporation, in the Place and Stead of such Person or Persons who shall have happened to die in, or have been removed from, the said Office of Court of Assistants, in the then next preceding Year.
VIII. And it is hereby further enacted, That the said Company of Surgeons made, established, and incorporated by this Act, and their Successors, and all Persons who shall be Freemen of the same Company or Corporation, shall and may, from time to time, and at all Times for ever hereafter, have, hold, and enjoy all and every such and the same Liberties, Privileges, Franchises, Powers, and Authorities, as the Members of the said United Company or Corporation, being Freemen of the said Company, and admitted and approved Surgeons, within the Rules of the said Company and Corporation, could or might respectively have had, held, and enjoyed, by virtue of the said recited Act of Union or Incorporation, and the said Letters Patent of his said late Majesty King Charles the First respectively, and other the Royal Grants, Charters, and Patents, therein mentioned and referred to, so far as the same relate to the Art or Science of Surgery only, and not otherwise; and that in as full, ample, and beneficial Manner, to all Intents and Purposes, as if the same had in and by this present Act been expressly repeated and re-enacted; and that they, and all such who already have been, or hereafter shall be, examined and approved, pursuant to the Rules of the said Company, shall be entitled to practice freely, and without Restraint, the Art and Science of Surgery, throughout all and every his Majesty’s Dominions; any Law or Custom to the contrary notwithstanding.
IX. And it is hereby further enacted, That from and after the said first Day of _July_ one thousand seven hundred and forty-five, the Examiners of the Company of Surgeons established by this Act shall, and they are hereby required, from time to time, upon Request to them made, to examine every Person who shall be a Candidate to be appointed to serve as a Surgeon, a Surgeon’s Mate, of any Regiment, Troop, Company, Hospital, or Garrison of Soldiers in the Service of his Majesty, his Heirs, or Successors, in like Manner as they do or shall examine any Surgeon or Surgeons to be appointed to serve on Board any Ship or Vessel in the Service of his Majesty, his Heirs or Successors.
X. And it is hereby further enacted by the Authority aforesaid, That all and every Person and Persons, being Freemen of the said Company and Corporation of Surgeons established and incorporated by this Act, and who already have been, or hereafter shall be, examined and approved pursuant to the Rules and Orders of the said Company, and every of them, for so long Time as he and they shall use and exercise the said Art or Science of Surgery, and no longer, shall and may, at all Times hereafter, be freed and exempted from the several Offices of Constable, Scavenger, Overseer of the Poor, and all other Parish, Ward, and Leet Offices, and of and from the being put into or serving upon any Jury or Inquest: And if at any Time hereafter any such Person or Persons, using and Practising the said Art or Science of Surgery, and being qualified as aforesaid, shall be chosen and elected into any of the said Offices, or returned, required, or appointed to serve on any Jury, Leet, or Inquest, or be disquieted or disturbed by reason thereof; that then such Person or Persons, producing a Testimonial, under the Common Seal of the said Corporation, of such his Examination, Approbation, and Freedom, to the Person or Persons by whom he shall be so elected or appointed, or by or before whom he shall be summoned, returned, or required to serve or hold any of the said Offices or Duties, shall be absolutely discharged from the same; and such Nomination, Election, Return, and Appointment, shall be utterly void, and of no Effect; any Order, Custom, Law, or Statute to the contrary in any wise notwithstanding.
XI. Provided always, and be it hereby enacted by the Authority aforesaid, That this Act, or any Thing therein contained, shall not extend, or be construed or taken to prejudice, abridge, or infringe any of the Privileges, Authorities, Powers, Rights, Liberties, or Franchises heretofore granted by any Act or Acts of Parliament, or by any Letters Patents, Charters or Charter of any of his Majesty’s Royal Predecessors, Kings or Queens of _England_, to the President and College, or Commonalty of the Faculty of Physick in _London_.
XII. And it is hereby further enacted by the Authority aforesaid, That such of the Members of the said United Company or Corporation, who are Freemen of the said Company, and are not admitted or approved Surgeons, and their Successors, shall, from and after the said twenty-fourth Day of _June_ one thousand seven hundred and forty-five, be, and they are hereby made and constituted, a Body Corporate, and Commonalty Perpetual, which, at all Times hereafter shall be called by the Name of _The Master, Governors, and Commonalty of the Mystery of Barbers of_ London; and by the same Name shall plead and be impleaded before all manner of Justices, in all Courts, and in all manner of Actions and Suits; and also purchase, enjoy, and take to them, and their Successors, any Lands, Tenements, Rents, or Hereditaments, not exceeding the yearly Rent or Value of two hundred Pounds in the whole, without incurring any of the Penalties or Forfeitures of the Statute of Mortmain.
XIII. And it is hereby further enacted by the Authority aforesaid, That Master _Jonathan Medley_, the present first Master or Governor of the said United Company or Corporation, and Master _Humphrey Negus_, the present third Master or Governor of the said United Company, and such two other Persons as shall hereafter be elected and appointed for that purpose in pursuance of this Act, and as is herein after mentioned, shall be and they are hereby respectively established and confirmed the Master and Governors of the Company or Corporation of Barbers of _London_, established and incorporated by this Act; and shall continue in, and hold, exercise and enjoy the said Offices respectively, until others shall be chosen, elected and appointed in and to the same Offices respectively, pursuant and according to the By-laws, Rules, Orders and Constitutions of the same Company; and also that the said _Jonathan Medley_, _Humphrey Negus_, and _William Parker_, _Luke Maurice_, _John Barnwell_, _John Truelove_, _William Haddon_, _John Negus_, _Edward Boxley_, _Samuel Rutter_, _Robert Scrooby_, _Richard Swithin_, _Edward Colebeck_, _Togarmah Jones_, and _John Guerney_, being fifteen of the present Court of Assistants of the said United Company, and such nine other Persons as shall hereafter be elected and appointed for that Purpose in pursuance of this Act, and as is herein after mentioned, shall be and they are hereby constituted and appointed the Court of Assistants of the Company of Barbers, made, established, and incorporated by this Act; and shall continue in, and hold, enjoy and exercise the said Office during their natural Lives respectively, or until they shall be respectively removed out of the said Office, pursuant and according to the said By-laws, Rules, Ordinances and Constitutions of the said Company of Barbers of _London_.
XIV. And it is hereby further enacted, That it shall and may be lawful to and for the said _Jonathan Medley_, _Humphrey Negus_, _William Parker_, _Luke Maurice_, _John Barnwell_, _John Truelove_, _William Haddon_, _John Negus_, _Edward Boxley_, _Samuel Rutter_, _Robert Scrooby_, _Richard Swithin_, _Edward Colebeck_, _Togarmah Jones_, and _John Guerney_, or the major Part of them, to meet at or in the Hall now belonging to the said United Company, situate in _Monkwell-street_ in the City of _London_, on the twenty-fifth Day of _June_ one thousand seven hundred and forty-five, between the Hours of Nine in the Morning and One in the Afternoon of the same Day, and then and there to elect, choose and appoint out of the Freedom of the said Company or Corporation of the Barbers of _London_, established and incorporated by this Act, by the Majority of the Votes of such of the said fifteen Persons last mentioned, who shall be present at such Meeting, so many other Persons to be of the said Court of Assistants of the said Company or Corporation of the Barbers of _London_, as will make the Number twenty-four, to continue in the said Office respectively for and during their natural Lives, or until they shall be respectively removed out of the said Office; and also that immediately after such Court of Assistants shall be made up the said Number of twenty-four Persons, the said Court of Assistants shall then and there, by the Majority of Votes of such of the said Court of Assistants as shall be then present, elect, choose and appoint from among themselves, two Persons, to be the third and fourth Governors of the said Company or Corporation of the Barbers of _London_, to continue in, hold, exercise and enjoy the said Offices respectively as aforesaid.
XV. And it is hereby further enacted, That it shall and may be lawful for the Master and Governors for the Time being of the said Company or Corporation of Barbers, or any two or more of them, with eleven or more of the Members of the said Court of Assistants for the Time being, when and as often as to two or more of the said Master and Governors shall seem meet, to hold Courts or Assemblies at or in the Hall of the said Company for the Time being, in order to treat and consult about the Rule, State, Order and Government of the said Company or Corporation of Barbers; and also that it shall and may be lawful to and for the said Master and Governors, and Court of Assistants so assembled, or the major Part of them, to make, constitute, ordain, establish, ratify and confirm all or any such By-laws, Ordinances, Rules and Constitutions, as to them shall seem requisite, proper or convenient for the Regulation, Government, Profit or Advantage of the said Company or Corporation of the Barbers of _London_, and the Members thereof, and the same, from time to time, to alter or repeal; so as the By-laws, Ordinances, Rules and Constitutions so to be made and established, shall be examined, approved and allowed, as by the Laws and Statutes of this Realm is provided and required.
XVI. Provided always, and it is hereby enacted and declared, That the several By-laws, Ordinances, Rules and Constitutions, made and established for the Regulation and Government of the said United Company or Corporation, so far as the same do not relate to or concern the Art or Science of Surgery, and which on the said twenty-third Day of _June_ shall be subsisting and in Force, and shall not be repealed, annulled or abrogated by virtue of this present Act, shall continue and be in Force, and shall be exercised, observed and executed by the said Company of Barbers established and incorporated by this Act, until such Time and Times respectively as the same By-laws, Ordinances, Rules and Constitutions shall respectively be repealed, annulled and made void, by Virtue and under the Authority of this present Act.
XVII. And it is hereby further enacted by the Authority aforesaid, That the Master and Governors of the said Company or Corporation of Barbers of _London_ shall be yearly elected and chosen on the second _Thursday_ in _August_, by the Court of Assistants, or the major Part of them, or in such Manner as by the By-laws, Rules, Orders and Constitutions of the same Company or Corporation shall be ordained or provided; and that when and as often as any Member of the said Court of Assistants of the said Company of Barbers shall happen to die or be removed, it shall and may be lawful to and for the surviving Members of the said Court of Assistants, or the major Part of them, to nominate and elect one other Person, being a Freeman of the same Company, to be a Member of the said Court of Assistants, in the Room of the Person so deceased or removed; and the Person so nominated or elected shall continue in, hold and exercise the said Office for and during his natural Life, or until he shall be removed out of the same.
XVIII. And it is hereby further enacted by the Authority aforesaid, That the Master, Governors and Commonalty of the Mystery of Barbers of _London_, hereby made, established and incorporated as aforesaid, and their Successors, and all Persons who shall be free of the same Company or Corporation, shall and may from time to time, and at all Times for ever hereafter, have, hold and enjoy all and every such and the same Liberties, Privileges, Franchises, Powers and Authorities, as the said United Company or Corporation, with respect to every Thing but Surgery, and the Members of the said United Company, occupying the Feat or Craft of Barbery or Shaving, could or might respectively have had, held and enjoyed by virtue of the said recited Act of Union or Incorporation, and Letters Patents of his late Majesty King Charles the First, and other the Royal Grants, Charters and Patents therein respectively mentioned and referred to, so far as the same do not concern or relate to the Art and Science of Surgery; and that in as full, ample and beneficial Manner, to all Intents and Purposes, as if the same had been expressly repeated, set down, and enacted in and by this present Act.
XIX. And it is hereby further enacted by the Authority aforesaid, That the Sum of five hundred and ten Pounds now vested in the said United Company, and which was given and paid to the said United Company by _Edward Arris_, for the Use of the publick Anatomy Lectures on the Muscles, and also the Annuity or yearly Rent-charge of sixteen Pounds given to the said United Company by the Will of _John Gale_ Gentleman, for one Anatomy Lecture, by the name of _Gale’s Anatomy_, and charged upon certain Messuages and Tenements at _Snow Hill_, in the Parish of _Saint Sepulchre_, without _Newgate, London_, shall from and after the said twenty-fourth Day of _June_ one thousand seven hundred and forty-five, be vested in, and be deemed the sole Property, Estate and Effects of the said Company and Corporation of Surgeons established and incorporated by this Act; and that the said Sum of five hundred and ten Pounds be accordingly paid by the said Company or Corporation of Barbers of _London_, out of the Estate and Effects of and now belonging to the said United Company or Corporation, within three Months next after the said twenty-fourth Day of _June_; and that the said Sum of five hundred and ten Pounds, and the said Annuity or yearly Rent-charge of sixteen Pounds _per Annum_, shall be held and enjoyed by the Purposes intended by the Donors thereof respectively; and that from and after the Payment of the said five hundred and ten Pounds by the said Company of Barbers to the said Company of Surgeons, they the said Master, Governors and Commonalty of the Mystery of Barbers of _London_, and their Successors, shall for ever be discharged of and from the said Sum or Gift of five hundred and ten Pounds, and every Part thereof, and of and from the said Annuity or Gift of sixteen Pounds _per Annum_, and every Part thereof, and of and from all Duties and Trusts in respect of the said Gifts, or either of them; and shall, from time to time, be saved harmless and kept indemnified by the said Company of Surgeons, of, from and against the same, and all Actions, Suits, Charges and Expenses which they the said Master, Governors and Commonalty of the Mystery of Barbers of _London_, or their Successors, shall or may, from time to time, be put unto or sustain on account thereof; and all the Rest and Residue of the Real and Personal Estate and Effects of and belonging to the said United Company or Corporation, and the Arms or Ensigns Armorial of the same Company or Corporation, shall from and after the said twenty-fourth Day of _June_ one thousand seven hundred and forty-five, be vested in, and the same are hereby from thenceforth vested in the said Company or Corporation of Barbers of _London_, and their Successors, to and for their own sole and separate Use and Benefit for ever.
XX. And it is hereby further enacted by the Authority aforesaid, That such of the Books, Papers and Writings which now belong to the said United Company of Barbers and Surgeons, and relate to or concern the Surgeons or Surgery only, shall immediately after the said first Day of _July_ one thousand seven hundred and forty-five, be delivered by the said Company of Barbers, established and incorporated by this Act, to the Master and Governors, and Court of Assistants, of the said Company of Surgeons established and incorporated by this Act, or such other Person or Persons as they, or the major Part of them shall, by Writing under their Hands appoint to receive the same, for the use and Benefit of the said Company of Surgeons: And that the Master, Governors, and Courts of Assistants of the same Company of Surgeons, or any of them, or such other Person or Persons as they, or the major Part of them shall, by Writing under their Hands appoint, shall and may, from time to time, and at all seasonable Times, upon reasonable Notice, from and after the first Day of _July_ one thousand seven hundred and forty-five have free Access to, and Liberty to inspect and peruse, in the Hands of such Person or Persons as the said Company of Barbers shall appoint to have the Care and Custody thereof, all the rest of the Books, Papers and Writings, and also all the Charters and Deeds which now belong to the said United Company of Barbers and Surgeons; and from time to time to take such Copies or Extracts of or from the same, or any of them, as the said Master, Governors, and Court of Assistants of the said Company of Surgeons, or the major Part of them, or such other Person or Persons so to be appointed as aforesaid, shall from time to time desire or require; and also that the said Company of Barbers shall, from time to time, and at all Times, upon reasonable Notice, from and after the said first Day of _July_, produce the said last mentioned Books, Papers, Writings, Charters and Deeds, or any of them, at the Expense of the said Company of Surgeons, upon any Trial at Law, or Hearing in Equity, or Examination of Witnesses, or otherwise, where the said Company of Surgeons shall have Occasion to make use thereof, or of any of them, and permit the said Company of Surgeons to make use of the same accordingly.
XXI. Provided always, and it is hereby further enacted by the Authority aforesaid, That every Person who hath been bound Apprentice to any Member of the said United Company, and by the Laws or Custom of the City of _London_, or otherwise, is or would be intitled to his Freedom of the said United Company, and to the Freedom of the said City, in case this present Act had never been made, shall be intitled and admitted to his Freedom in the said Company or Corporation of Surgeons, if his Master is or was an examined Surgeon, or else to his Freedom in the said Company of Barbers; and in either Case shall be intitled and admitted to his Freedom in the said City of _London_; any Law, Usage or Custom to the contrary thereof in any wise notwithstanding.
XXII. And be it further enacted by the Authority aforesaid, That this Act shall be deemed, adjudged and taken to be a Publick Act; and be judicially taken Notice of as such by all Judges, Justices, and other Persons whatsoever, without specially pleading the same.
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55. _Geo._ 3. _c._ 194.
An Act, for better regulating the Practice of Apothecaries throughout _England_ and _Wales_.
Whereas His Majesty King _James_ the First, by Letters Patent, under the Great Seal of _Great Britain_, bearing date the Sixth Day of _December_, in the Fifteenth Year of His Reign, did for himself, his Heirs and Successors, grant unto _William Beese_, and divers other Persons therein named, and to all and singular other Persons whomsoever, brought up and skilful ¡n the Art, Mystery, or Faculty of Apothecaries, and exercising the same Art, Mystery, or Faculty then, being Freemen of the Mystery of Grocers of the City of _London_, or being Freemen of any other Art, Mystery, or Faculty in the said City of _London_ (so as they had been brought up and were expert in the Art or Mystery of Apothecaries), that they, and all such Men of the said Art or Mystery of Apothecaries of and in the said City of _London_ and Suburbs of the same, and within Seven Miles of the said City, might and should be one Body Corporate and Politic, in Substance, Deed, and Name, by the Name of the Master, Wardens, and Society of the Art and Mystery of Apothecaries of the City of _London_; and did ordain and declare, that by the same name they might have perpetual Succession, and have, purchase, possess, enjoy, and retain Manors, Messuages, Lands, Tenements, Liberties, Privileges, Franchises, Jurisdictions, and Hereditaments to them and their Successors, in fee simple and perpetuity, or for term of year or years, or otherwise, howsoever. And also Goods and Chattels, and all other things soever, of what name, nature, kind, quality, or sort soever they should be. And also, that they might grant, demise, alien, assign, and dispose of Manors, Lands, Tenements, and Hereditaments, and do and execute all and singular other Acts and things by the said name. And that by the said name of Master, Wardens, and Society of the Art and Mystery of Apothecaries of the City of _London_, they should and might be able to plead and be impleaded, and might have for ever a common Seal; and the same Seal at their pleasure from time to time might break, change, alter, and new make, as to them should seem best. And his said Majesty did, by his said Letters Patent, ordain and grant unto the said Master, Wardens, and Society of the Art and Mystery of Apothecaries aforesaid, certain Ordinances, Rules and Regulations, to be observed, kept, and maintained by them, as in the said Charter are more fully expressed.
_And whereas_ some of the Clauses and Provisions contained in the said recited Charter, so far as the same regard the said Society of Apothecaries, have been found inadequate for the purposes thereby intended, and it is therefore expedient that the same should be altered, varied, and enlarged, and further and other Provisions made;
May it therefore please Your MAJESTY,
That it may be enacted; _And be it Enacted_ by the KING’S Most Excellent MAJESTY, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this present Parliament assembled, and by the Authority of the same, that the said recited Charter of the Fifteenth Year of the Reign of His Majesty King _James_ the First, and all and every the Powers, Provisions, Penalties, Forfeitures, Regulations, Clauses, matters and things therein contained (save and except such part or parts thereof as are hereby altered, varied, or repealed), shall be, and the same is and are hereby declared to be in full force and virtue, and shall be as good, valid, and effectual, to all intents and purposes whatsoever, as if this Act had not been made.
_And be it further Enacted_, That so much of the said recited Charter as directs, That the said Master and Wardens, and their Successors, or some or one of them, or some Assistants by the Master and Wardens to be appointed and assigned, at fit and convenient times, and in manner and form convenient and lawful, from time to time, as often as to the said Master and Wardens shall seem expedient, shall and may go and enter into any Shop or Shops, House or Houses, Cellar or Cellars, of any Persons whomsoever, using or exercising the Art or Mystery of Apothecaries, or any Part thereof, within the City of _London_, the Liberties or Suburbs thereof, or within Seven Miles of the same City, as well within the Liberty as without, where any Medicines, simple or compound, Wares, Drugs, Receipts, Distilled Waters, Chemical Oils, Syrups, Conserves, Lohocks, Electuaries, Pills, Powders, Lozenges, Oils, Ointments, Plaisters, or any other things whatsoever, which belong or appertain to the Art or Mystery of Apothecaries as is aforesaid, are likely to be found; and to search, survey, and prove if the same Medicines, simple or compound, Wares, Drugs, Receipts, Distilled Waters, Chemical Oils, Syrups, Conserves, Lohocks, Electuaries, Pills, Powders, Lozenges, Oils, Ointments, Plaisters, or any thing or things whatsoever belonging to the Art or Mystery of Apothecaries aforesaid, be and shall be wholesome, medicinable, meet and fit for the cure, health, and ease of His Majesty’s Subjects;
_And also_ so much of the said recited Charter as directs, That the aforesaid Master and Wardens of the Mystery aforesaid, and the said Assistants for the time being, thereunto nominated and appointed by the Master and Wardens, and their Successors from time to time, may have, and by virtue of these Presents, shall have full power and authority to examine and try all and singular Persons professing, using, or exercising, or which hereafter shall profess, use, or exercise the Art or Mystery of Apothecaries, or any part thereof, within the aforesaid City of _London_, the Liberties or Suburbs thereof, or within Seven Miles of the same City, as well within Liberties as without, touching or concerning their and every of their knowledge, skill, and science, in the aforesaid Art or Mystery of Apothecaries, and to remove and prohibit all those from the exercise, use, or practice of the said Art or Mystery, whom hereafter they shall find either unskilful, ignorant, or insufficient, or obstinate, or refusing to be examined by virtue of these Presents, in the Art or Mystery aforesaid. And also all and singular Medicines, Wares, Drugs, Receipts, Distilled Waters, Oils, Chemical Preparations, Syrups, Conserves, Lohocks, Electuaries, Pills, Powders, Lozenges, Oils, Ointments, and Plaisters, and all other things belonging to the aforesaid Art, which they shall find unlawful, deceitful, stale, out of use, unwholesome, corrupt, unmedicinable, pernicious, or hurtful, to burn before the Offender’s Doors. And also to lay, impose, and exact Mulcts, and other Pains and Penalties, by Fines and Amerciaments, upon such Offenders, according to their sound discretions, and the Ordinances by them and their Successors so as aforesaid to be made and appointed, shall be, and the same is hereby repealed.
_And be it further Enacted_, That in lieu and stead thereof, the said Master, Wardens, and Society of Apothecaries for the time being, and their Successors, or any of the Assistants, or any other person or persons properly qualified, as hereinafter is mentioned, to be by the Master and Wardens nominated and assigned, not being fewer in number than Two Persons at the least, shall and may from time to time, and at all seasonable and convenient times, in the day time, as often as to the said Master and Wardens it shall seem expedient, go and enter into any Shop or Shops, of any person or persons whatever, using or exercising the Art or Mystery of an Apothecary in any part of _England_ or _Wales_; and shall and may search, survey, prove, and determine, if the Medicines, simple or compound, Wares, Drugs, or any thing or things whatsoever therein contained, and belonging to the Art or Mystery of Apothecaries aforesaid, be wholesome, meet, and fit for the cure, health, and ease of His Majesty’s Subjects; and all and every such Medicines, Wares, Drugs, and all other things belonging to the aforesaid Art, which they shall find false, unlawful, deceitful, stale, unwholesome, corrupt, pernicious or hurtful, shall and may burn, or otherwise destroy; and also shall and may report to the Master, Wardens, and Assistants of the said Society, the Name or Names of such person or persons as shall be found to have the same in their possession; and the said Master, Wardens, and Assistants, shall and may impose and levy the following Fines and Penalties upon each and every person whose Name shall be so reported to them, as hereinafter mentioned: For the first offence the Sum of Five Pounds; for the second offence the Sum of Ten Pounds; and for the third, and every other offence, the Sum of Twenty Pounds.
_Provided always, and be it Enacted_, That no person to be by the Master, Wardens, and Assistants for the time being, chosen and appointed a Member of the Court of Examiners, or to be by the Master and Wardens nominated and assigned to go and enter into any Shop or Shops, for the purposes aforesaid, within the City of _London_, the Liberties or Suburbs thereof, or within Thirty Miles of the same, shall be deemed to be properly qualified, unless he shall be a Member of the Society of Apothecaries aforesaid, of not less than Ten Years standing; nor shall any person be deemed to be properly qualified to be nominated and assigned to go and enter into any Shop or Shops in any other part of _England_ and _Wales_ for the purposes aforesaid, or to be appointed one of the Five Apothecaries hereinafter mentioned, and directed to be appointed for the purpose of examining Assistants to Apothecaries in compounding and dispensing Medicines, as hereinafter is mentioned, except he shall have been an Apothecary in actual practice for not less than Ten Years at least, previously to his being so nominated, or assigned, or appointed.
_And whereas_ it is the duty of every Person using or exercising the Art and Mystery of an Apothecary, to prepare with exactness, and to dispense such Medicines as may be directed for the sick by any Physician lawfully licensed to practise Physic by the President and Commonalty of the Faculty of Physic in _London_, or by either of the two Universities of _Oxford_ or _Cambridge_; therefore, for the further protection, security, and benefit of His Majesty’s Subjects, and for the better regulation of the practice of Physic throughout _England_ and _Wales_, _Be it Enacted_, That if any Person using or exercising the Art and Mystery of an Apothecary, shall at any time knowingly, wilfully, and contumaciously refuse to make, mix, compound, prepare, give, apply, or administer, or any way to sell, set on sale, put forth, or put to sale to any Person or Persons whatever, any Medicines, compound Medicines, or medicinable Compositions, or shall deliberately or negligently, falsely, unfaithfully, fraudulently, or unduly make, mix, compound, prepare, give, apply or administer, or any way sell, set on sale, put forth, or put to sale to any Person or Persons whatever, any Medicines, Compound Medicines, or Medicinable Compositions, as directed by any Prescription, Order or Receipt, signed with the initials in his own hand-writing, of any Physician so lawfully licensed to practise Physic, such person or persons so offending, shall, upon complaint made within Twenty-one Days by such Physician, and upon conviction of such offence before any of His Majesty’s Justices of the Peace, unless such Offender can shew some satisfactory reason, excuse, or justification in this behalf, forfeit, for the first offence the Sum of Five Pounds; for the second offence the Sum of Ten Pounds; and for the third offence he shall forfeit his Certificate, and be rendered incapable in future of using or exercising the Art and Mystery of an Apothecary, and be liable to the Penalty inflicted by this Act upon all who practise as such without a Certificate, in the same manner as if such party so convicted had never been furnished with a Certificate enabling him to practise as an Apothecary; and such Offender so deprived of his Certificate, shall be rendered and deemed incapable in future of receiving and holding any fresh Certificate, unless the said party so applying for a renewal of his Certificate, shall faithfully promise and undertake, and give good and sufficient Security, that he will not in future be guilty of the like offence.
_And be it further Enacted_, That each and every of them the said Master and Wardens for the time being, may, and they are hereby respectively empowered, by writing under his or their hands, to appoint any one or more of the said Court of Assistants to act as Deputy Master, or as Deputy Wardens, as the case may be, in all matters and things done, or authorized to be done, by the said Master, or the said Wardens, under and by virtue of the said recited Charter, or of this Act, and to remove such Deputy Master, or Deputy Wardens so to be appointed from time to time, as the said Master, or the said Wardens, shall respectively think proper; and all acts, matters, and things which shall be lawfully done by the said Deputy Master or Deputy Wardens so to be appointed as aforesaid, as the case may be, shall be as good, valid, and effectual, as if the same were done and performed by the said Master and Wardens respectively.
_And whereas_ much mischief and inconvenience has arisen, from great numbers of persons in many parts of _England_ and _Wales_ exercising the functions of an Apothecary, who are wholly ignorant, and utterly incompetent to the exercise of such functions, whereby the Health and Lives of the Community are greatly endangered; and it is become necessary that provision should be made for remedying such evils; _Be it therefore further Enacted_, That the said Master, Wardens, and Society of the Art and Mystery of Apothecaries of the City of _London_, incorporated by the said recited Charter of His Majesty King _James_ the First, and their Successors, shall be, and they are hereby appointed and constituted, directed and empowered, for ever to superintend the execution of the provisions of this Act, and to enforce and carry the several regulations and provisions thereof, in relation to the several persons practising the Art or Mystery or Profession of an Apothecary throughout _England_ and _Wales_, and all other the purposes of this Act, into full execution.
_And be it further Enacted_, That no Act of the said Master, Wardens, and Society of Apothecaries, incorporated as aforesaid, for the carrying any of the powers and provisions of this Act into execution, shall be, or be deemed to be good or valid (save and except as to such Acts as shall be done by the said Master, Wardens, and Assistants, or others appointed by them, or any of them, as hereinbefore is provided, in pursuance of the Powers and Authorities hereinbefore given to them to enter into Shops to search for, examine and destroy unwholesome Drugs or Medicines, and also save and except as to such acts as shall be done by the said Court of Examiners, or the major part of them present, or by the Five Apothecaries hereinafter mentioned, or the major part of them present, in pursuance of the authorities hereinafter given to them), unless the same be done at some Assembly or Meeting to be holden by the said Master, Wardens, and Society, in the Hall of the said Society. And that all the Powers and Authorities by this Act granted to, or vested in, the said Master, Wardens, and Society as aforesaid, shall and may from time to time be exercised by the Master, Wardens, and Assistants of the Art and Mystery of Apothecaries aforesaid for the time being, or by the major part of them present, who shall attend at any such Assembly or meeting to be holden as aforesaid (the number present at such Assemblies or Meetings not being less than Thirteen, of which the said Master for the time being shall always be one), and all the Orders and Proceedings of the said Master, Wardens, and Assistants for the time being, or of such major part as aforesaid, shall have the same force and effect, as if the same were made or done by the said Master, Wardens and Society of Apothecaries incorporated as aforesaid.
_And be it further Enacted_, That for the purposes of this Act, so far as the same regards the Examination of Apothecaries, and Assistants to Apothecaries, Twelve Persons properly qualified, as hereinbefore is mentioned, shall be chosen and appointed by the said Master, Wardens, and Assistants for the time being, (who are hereby authorized and empowered to choose and appoint such Persons, and to remove or displace them from time to time, as they the said Master, Wardens, and Assistants for the time being, shall deem adviseable), and such Persons, when so chosen and appointed, or any Seven of them, shall be, and be called the Court of Examiners of the Society of Apothecaries; and such Court of Examiners, or the major part of them present at any meeting, shall have full power and authority, and are hereby authorized and empowered to examine all Apothecaries, and Assistants to Apothecaries, throughout _England_ and _Wales_, and to grant or refuse such Certificate, as hereinafter is mentioned. And such Court of Examiners, or the major part of them, shall, and they are hereby required to meet and assemble in some convenient Room in the Hall of the said Society, once at least in every week, for the purpose of such Examination, and then and there to examine all Persons applying to be examined, and duly qualified so to be by virtue of this Act.
_And be it further Enacted_, That at any such Meetings of the said Examiners, a Chairman shall and may be appointed; and when and so often as it shall so happen that there shall be an equal number of Votes upon any one question (including the Vote of the said Chairman), then and in such case, it shall and may be lawful to and for the said Chairman to give the casting or decisive Vote.
_And be it further Enacted_, That no person shall be capable of acting as an Examiner, under and by virtue of this Act, until he shall have taken and subscribed the following Oath:
“I, _A. B._ do solemnly promise and swear (or, being one of the people called Quakers, do solemnly affirm) that I will faithfully, impartially, and honestly, according to the best of my skill and knowledge, execute the trust reposed in me by the Master, Wardens, and Society of the Art and Mystery of Apothecaries of the City of _London_, as an Examiner, in the Examination of every person who shall come before me to be examined, as to his fitness or qualification to act as an Apothecary, or Assistant to an Apothecary, as the case may be, and that without favour, affection, prejudice, or malice.
“So help me God.”
which Oath, or Affirmation, the said Master, Wardens, or Court of Assistants, or the major part of them, are hereby authorized and required to administer.
_And be it further Enacted_, That all Persons so to be chosen and appointed Examiners as aforesaid, shall continue in Office for the space of One Year from the time of their Appointment, (except in case of Death, or being removed or displaced by the said Master, Wardens, and Assistants as aforesaid). _Provided always_, That it shall and may be lawful to and for the said Master, Wardens, and Assistants, to choose and appoint any such Person or Persons going out of Office, again to be an Examiner or Examiners, as aforesaid, if they the said Master, Wardens, and Assistants, shall deem it adviseable so to do.
_And be it further Enacted_, That in case any Person or Persons so to be chosen, and appointed, shall happen to die during the time he or they shall continue to be an Examiner or Examiners, or be removed or displaced as aforesaid, then it shall and may be lawful for the said Master, Wardens, and Assistants, to choose and appoint any other Person or Persons properly qualified, to be an Examiner or Examiners as aforesaid, in the room of the Person or Persons so dying, or removed, or displaced as aforesaid; and every Person or Persons so chosen and appointed, shall continue in Office for such time and no longer, as the Person or Persons in whose room or stead he or they shall be so chosen and appointed, would have continued in Office.
And to prevent any Person or Persons from practising as an Apothecary, without being properly qualified to practise as such, _Be it further Enacted_, That from and after the First Day of August, One Thousand Eight Hundred and Fifteen, it shall not be lawful for any Person or Persons (except persons already in practice as such), to practise as an Apothecary in any part of _England_ or _Wales_, unless he or they shall have been Examined by the said Court of Examiners, or the major part of them, and have received a Certificate of his or their being duly qualified to practise as such, from the said Court of Examiners, or the major part of them, as aforesaid; who are hereby authorized and required to examine all Person and Persons applying to them, for the purpose of ascertaining the skill and abilities of such person or persons in the Science and Practice of Medicine, and his or their fitness and qualification to practise as an Apothecary; and the said Court of Examiners, or the major part of them, are hereby empowered either to reject such Person or Persons, or to grant a Certificate of such Examination, and of his or their qualification to practise as an Apothecary as aforesaid: _Provided always_, That no Person shall be admitted to such Examination until he shall have attained, the full age of Twenty-one Years.
_Provided always, and be it Enacted_, That no Person shall be admitted to any such Examination for a Certificate to practise as an Apothecary, unless he shall have served an Apprenticeship of not less than Five Years to an Apothecary, and unless he shall produce Testimonials to the satisfaction of the said Court of Examiners, of a sufficient Medical Education, and of a good moral conduct.
_And be it further Enacted_, That every Person intending to qualify himself under the regulations of this Act to practise as an Apothecary, in any part of _England_ or _Wales_, shall give notice to the Clerk of the said Master, Wardens, and Society of Apothecaries as aforesaid, of his intention so to do, who shall notify the same to the said Master, Wardens, and Society of Apothecaries as aforesaid; and the Person so intending to qualify himself, shall present himself at the Meeting held by the said Court of Examiners next succeeding such Notice, and shall undergo such Examination by the said Court of Examiners as aforesaid, or at some other Meeting, as shall or may be appointed and fixed upon by the said Master, Wardens, and Society of Apothecaries, or by the said Court of Examiners, or the major part of them, as aforesaid, for that purpose.
_And be it further Enacted_, That from and after the First Day of August, One Thousand Eight Hundred and Fifteen, it shall not be lawful for any Person or Persons (except the Persons then acting as Assistants to any Apothecaries as aforesaid, and excepting Persons who have actually served an Apprenticeship of Five Years to an Apothecary) to act as an Assistant to any Apothecary, in compounding or dispensing Medicines, without undergoing an Examination by the said Court of Examiners, or the major part of them, or by Five Apothecaries, so to be appointed as hereinafter is mentioned, and obtaining a Certificate of his or their qualification to act as such Assistant, from the said Court of Examiners, or the major part of them, or from the said Five Apothecaries, who are hereby authorized and empowered to examine all persons applying to them for that purpose, and to grant a Certificate of such fitness and qualification.
_And be it further Enacted_, That for the purposes of this Act, it shall and may be lawful to and for the said Master and Wardens for the time being, or to and for the said Court of Examiners, by writing under their hands, from time to time to appoint Five Apothecaries in any County or Counties respectively throughout _England_ and _Wales_ (except within the said City of _London_, the Liberties or Suburbs thereof, or within Thirty Miles of the same), to act for such County or Counties, or any other County or Counties near or adjoining, and to remove or displace them from time to time, as they the said Master and Wardens, or the said Court of Examiners, shall deem adviseable; and such Five Apothecaries so to be appointed respectively, as aforesaid, at any Meeting to be held by them as hereinafter mentioned, shall have full power and authority, and are hereby authorized and empowered to examine, all Assistants to Apothecaries throughout the County or Counties in regard of which such Apothecaries shall have been so appointed as aforesaid, and to grant or refuse such Certificate to every such Assistant to Apothecaries, as hereinbefore is authorized in that behalf; and a Meeting of the said Apothecaries, for the purposes aforesaid, shall be held monthly in the County Town of some one of the Counties for which they shall have been appointed to act as aforesaid; and that no act of such Apothecaries shall be, or be deemed to be good or valid, unless the same be done at some such Meeting; and that all the Powers and Authorities by this Act granted to or vested in such Five Apothecaries, shall and may from time to time be exercised by the major part of them, who shall attend at any Meeting to be holden as above directed, the number of such Apothecaries present at any such Meeting not being less than Three; and all the Orders, Directions, and Certificates of the major part of such Apothecaries present at any such Meeting, shall have the same force and effect as if the same were made, done, or signed by all the said Five Apothecaries for the time being; and at every such Meeting of the said Apothecaries, a Chairman shall and may be appointed, and when, and so often as it shall so happen that there shall be an equal number of Votes upon any one question (including the Vote of the said Chairman) then and in such case, it shall and may be lawful to and for the said Chairman to give the casting, or decisive Vote.
_And be it further Enacted_, That the Sum of Ten Pounds Ten Shillings shall be paid to the said Master, Wardens, and Society of Apothecaries, for every such Certificate as aforesaid, on obtaining the same, by every person intending to practise as an Apothecary within the City of _London_, the Liberties or Suburbs thereof, or within Ten Miles of the same City; and the Sum of Six Pounds Six Shillings by every person intending to practise as an Apothecary in any other part of _England_ or _Wales_ (except the said City of _London_, the Liberties or Suburbs thereof, or within Ten Miles of the said City:) and no person having obtained a Certificate to practise as an Apothecary in any other part of _England_ or _Wales_ (except the said City of _London_, the Liberties or Suburbs thereof, or within Ten Miles of the said City as aforesaid), shall be entitled to practise within the said City of _London_, the Liberties or Suburbs thereof, or within Ten Miles of the said City, unless and until he shall have paid to the said Master, Wardens, and Society, the further Sum of Four Pounds Four Shillings, in addition to the said Sum of Six Pounds Six Shillings so paid by him as aforesaid, and shall have had endorsed on his said Certificate, a Receipt from the said Master, Wardens, and Society, for such additional Sum of Four Pounds Four Shillings; and the Sum of Two Pounds Two Shillings by every Assistant; and the several Sums of Money arising from the granting of such Certificates, shall be applied in manner hereinafter directed.
_And be it further Enacted_, That if any person (except such as are then actually practising as such) shall, after the said First Day of August, One Thousand Eight Hundred and Fifteen, act or practise as an Apothecary in any part of _England_ or _Wales_, without having obtained such Certificate as aforesaid, every person so offending shall for every such Offence, forfeit and pay the Sum of Twenty Pounds; and if any person (except such as are then acting as such, and excepting persons who have actually served an Apprenticeship as aforesaid) shall, after the said First Day of August, One Thousand Eight Hundred and Fifteen, act as an Assistant to any Apothecary, to compound and dispense Medicines, without having obtained such Certificate as aforesaid, every person so offending, shall for every such offence forfeit and pay the Sum of Five Pounds.
_And be it further Enacted_, That no Apothecary shall be allowed to recover any Charges claimed by him in any Court of Law, unless such Apothecary shall prove on the Trial, that he was in practice as an Apothecary prior to, or on the said First Day of August, One Thousand Eight Hundred and Fifteen, or that he has obtained a Certificate to practise as an Apothecary, from the said Master, Wardens, and Society of Apothecaries as aforesaid.
_Provided always, and be it further Enacted_, That if the said Court of Examiners, or the major part of them, having examined any Person or Persons applying to qualify himself or themselves to practise as an Apothecary, or if they, or the said Five Apothecaries so to be appointed for any County or Counties as aforesaid, having examined any Person or Persons applying to qualify himself or themselves to practise as an Assistant to an Apothecary, in compounding and dispensing Medicines, shall see cause to refuse such Certificate as aforesaid, to any such Person or Persons so applying to qualify himself or themselves as an Apothecary or Assistant as aforesaid; yet it shall and may be lawful for such Person or Persons who shall be so refused, to apply at any future time to be again examined, so that such second application by any Person or Persons applying to qualify himself or themselves as an Apothecary, be not within Six Months of such first Examination; and so that such second application by any person or persons applying to qualify himself or themselves as an Assistant, be not within Three Months of such first Examination; and if on such re-examination he or they shall appear to the persons examining, to be then properly qualified, it shall and may be lawful for the said Court of Examiners, or to and for the said Five Apothecaries in any County or Counties as aforesaid, to grant such person or persons so applying, such Certificate as aforesaid.
_Provided always, and be it further Enacted_, That the said Master, Wardens, and Society of Apothecaries, do make annually, and cause to be printed, an exact List of all and every person who shall in that year have obtained a Certificate to practise as an Apothecary, with their respective residences attached to their respective Names.
_And be it further Enacted_, That all and every Sum or Sums of Money which shall be received or arise from the granting of the Certificate of Examination hereinbefore required, shall belong to, and be appropriated and disposed of by the said Master, Wardens, and Society of Apothecaries as aforesaid, in such manner as they shall from time to time direct and deem most expedient.
_And be it further Enacted_, That all Sum and Sums of Money arising from Conviction and recovery of Penalties for Offences committed against the Authorities and Provisions of this Act, shall be applied and disposed of in manner following, (viz.) One Half thereof to the Informer or Informers, and One Half thereof to the said Master, Wardens, and Society of Apothecaries as aforesaid, to be appropriated and disposed of by them in such manner as they shall deem most expedient.
_And be it further Enacted_, That all Penalties and Forfeitures by virtue of this Act imposed, (the manner of levying and recovering whereof is not otherwise hereby particularly directed, shall, if such Penalties and Forfeitures shall exceed the Sum of Five Pounds, be recovered by Action or Suit at Law, in the Name of the Master, Wardens, and Society of the Art and Mystery of Apothecaries of the City of _London_, in any of His Majesty’s Courts of Record in _England_ or _Wales_, wherein no Essoign, Protection, or Wager at Law, or more than one Imparlance shall be allowed); and if such Penalty or Forfeiture shall amount to less than the Sum of Five Pounds, then the same shall be levied and recovered by Distress and Sale of the Goods and Chattels of the Offender, by Warrant under the Hand and Seal of any Justice of the Peace acting for any County, City, Town, or Place where the Offence shall be committed (which Warrant such Justice is hereby empowered and required to grant upon the confession of the Party, or upon the Evidence of any credible Witness upon Oath; and which Oath such Justice is hereby empowered to administer); and the overplus (if any), of the Money arising by such Distress and Sale, shall be returned upon demand to the Owner of such Goods and Chattles, after deducting the Costs and Charges of making, keeping, and selling the Distress; and in case sufficient Distress shall not be found, or such Forfeitures and Penalties shall not be paid forthwith, it shall be lawful for such Justice, and he is hereby authorized and required, by Warrant under his Hand and Seal, to cause the Offender to be committed to the Common Gaol for the County, City, Town, or Place, where the Offence shall be committed, there to remain without Bail or Mainprize for any time not exceeding One Calendar Month, unless such Penalties, and Forfeitures, and Costs, shall be sooner fully paid and satisfied.
_And be it further Enacted_, That where any Distress shall be made for any Sum of Money to be levied by virtue of this Act, the Distress itself shall not be deemed unlawful, nor the Party or Parties making the same be deemed a Trespasser or Trespassers, on account of any defect or want of Form in the Notice or Information, Summons, Conviction, Warrant, or Distress, or other proceeding relating thereto; nor shall the Party or Parties distraining be deemed a Trespasser or Trespassers _ab initio_, on account of any irregularity which shall be afterwards done by the Party or Parties so distraining; but the person or persons aggrieved by such irregularity, may recover full satisfaction for the special damage in an Action upon the Case.
_Provided always, and be it further Enacted_, That nothing in this Act contained shall extend, or be construed to extend, to prejudice, or in any way to affect the trade or business of a Chemist and Druggist, in the buying, preparing, compounding, dispensing, and vending Drugs, Medicines, and Medicinable Compounds, wholesale and retail; but all persons using or exercising the said trade or business, or who shall or may hereafter use or exercise the same, shall and may use, exercise, and carry on the same trade or business in such manner, and as fully and amply to all intents and purposes, as the same trade or business was used, exercised, or carried on by Chemists and Druggists before the passing of this Act.
_Provided always, and be it further Enacted_, That nothing in this Act contained, shall extend or be construed to extend to lessen, prejudice, or defeat, or in any wise to interfere with any of the Rights, Authorities, Privileges, and Immunities heretofore vested in, and exercised and enjoyed by either of the Two Universities of _Oxford_ or _Cambridge_, the Royal College of Physicians, the Royal College of Surgeons, or the said Society of Apothecaries respectively, other than and except such as shall or may have been altered, varied, or amended in and by this Act, or of any Person or Persons practising as an Apothecary previously to the First Day of August, One Thousand Eight Hundred and Fifteen; but the said Universities, Royal Colleges, and the said Society, and all such Persons or Person, shall have, use, exercise, and enjoy all such Rights, Authorities, Privileges, and Immunities, save and except as aforesaid, in as full, ample, and beneficial a manner to all intents and purposes, as they might have done before the passing of this Act, and in case the same had never been passed.
_Provided always, and be it further Enacted_, That no Action or suit shall be brought or prosecuted against any Person or Persons, Body or Bodies Politic, Corporate or Collegiate, for any thing done in pursuance of this Act, after Six Calendar Months next after the fact committed; or in case there shall be a continuation of Damages, then after Six Calendar Months next after the doing or committing such Damage shall have ceased, and not afterwards. And every such Action or Suit shall be laid and brought in the County where the matter in dispute shall arise, and not elsewhere; and the Defendant and Defendants in every such Action or Suit, shall or may, at his, her, or their election, plead specially the General Issue, and give this Act, and the Special Matter, in Evidence, at any Trial to be had thereupon, and that the same was done in pursuance, and by the authority of this Act. And if it shall appear to have been so done, or if any such Action or Suit shall have been brought before Twenty-one Days’ Notice shall have been given, or sufficient satisfaction made or tendered, as aforesaid, or shall be brought in any other County or Place than as aforesaid, then, and in every such case, the Jury shall find for the Defendant or Defendants; and upon such Verdict, or if the Plaintiff or Plaintiffs shall become Nonsuit, or suffer a discontinuance of his, her, or their Action or Suit, after the Defendant or Defendants shall have appeared, or if a Verdict shall pass against the Plaintiff or Plaintiffs, or if upon Demurrer or otherwise, Judgment shall be given against the Plaintiff or Plaintiffs, then the Defendant or Defendants shall have Double Costs, and shall have such remedy for recovering the same, as any Defendant hath for recovering Costs of Suit in any other Cases by Law.
_And be it further Enacted_, That this Act shall be deemed and taken to be a Public Act, and shall be judicially taken notice of as such, by all Judges, Justices, and others, without being specially pleaded.
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A Royal Charter granted to the Apothecaries of London 30 Maii 13 Jacobii.
(From Goodall’s Collection, p. 119.)
Rex omnibus ad quos &c. salutem. Cum antehac per Letteras nostras Paten’ sub magno sigillo nostro Anglie confect’ geren’ dat apud Westm’ nono die Aprilis Anno regni nostri Anglie Francie et Hibernie quarto & Scocie de gratia nostra speciali voluerimus ordinaverimus & concesserimus quod omnes et singuli liberi homines mysterii Grocer’ & Pharmacopol’ civitat’ London & Successores sui deinceps in perpetuum pro meliori ordine gubernatione et regimine hominum myster’ Grocer’ & Pharmacopol’ Civitatis London ac pro utilitate commodo et relevamine bonorum et proborum ac formidine et correctione malorum dolorosorum et improborum forent et essent vigore earundem Litterarum Paten’ unum corpus corporatum et politicum in re facto et nomine per nomen Custod’ & Communitatis myster’ Grocer’ Civitat’ London et eosdem per nomen Custod’ et Communitat’ myster’ Grocer’ Civitat’ London unum corpus corporatum & politicum in re facto et nomine realiter & ad plenum pro nobis heredibus & successoribus nostris per easdem Litteras nostras paten’ adtunc exereximus fecerimus ordinaverimus constituerimus & declaraverimus & quod per idem nomen successionem h’erent perpetuam prout per easdem Litteras nostras Patent’ (inter alia) plenius liquet et apparet. Jam vero quum nobis sit demonstratum ex parte dilectorum subditorum Pharmacopol’ Civitat’ nostre London necnon nobis adfirmatum & approbatum per dilectos nobis Theodorum de Mayerne & Henricum Atkins in Medicinis Doctores Medicos Nostros discretos et fideles Quod hiisce proximis annis quamplurimi empyrici et homines ignari & inexperti in Civitate nostra London ac ejusdem Suburbiis inhabitant et commorantes qui in Pharmacopoli arte & mysterio hand instituti sed in eadem imperiti & rudes quamplurima insalubria nociva falsa corrupta perniciosa faciunt & componunt medicamenta eademque in plurimis hujus regni nostri Anglie partes vendunt & assidue transmittunt in convitium et opprobrium non solum Medicine scientie illius colende Medicorumque hujus regui nostri Anglie literat’ eandem profitentium necnon Pharmacopœiorum Civitat’ nostre London in eadem arte & mysterio educat’ & expert verum eciam in subditor’ nostror’ pericula et assidua vite discrimina. Cumque ad jura nostra regia & regimen supremum pro universos subdit’ nostros singulasque regni nostri partes membra et societates temperamus & complectimur spectat ut pro bono publico & temporum ratione novas Societates atque nova Corpora corporat’ et politica creare erigere instituere & superinducere ad beneplacitum nostrum possumus tam ex personis que prius plane seperat’ & in null’ corpus redact’ & collect’ fuerunt quam ex membris Corporum corporat’ veter’ ubi hoc ad melius regimen populi nostri videbitur expedire. Nos igitur considerantes officii nostri Regii munus esse subditorum nostrorum saluti et bono publico omnibus viis & modis providere & consulere ac nobiscum perpendentes quomodo improborum istorum hominum conatibus tempestive occurramus (de advisament’ Consilii nostri in legibus eruditi) apprime necessarium duximus Pharmacopæios Civitat’ nostra London ab hominibus liberis myster’ Grocer’ ejusdem disunire disgungere separare & dissociare ac easdem Pharmacopœios per seipsos solum et divisum ac ab hominibus liberis myster’ Grocer’ predict’ ad omnes intentiones & proposit’ disunitos & separatos in unum Corpus corporat’ & Politicum erigere creare & constituere ad quos omni futuro tempore incommodorum istorum cura & correctio demandata & commissa foret. Ita tamen ut superior’ ac general’ regimen’ Civitat’ nostre London & Magistrat’ ejusdem in modum aliarum Societat’ subjiciantur. SCIATIS igitur quod nos dilectorum & fidelium Medicor’ nostror’ Theodori de Mayerne & Henrici Atkins necnon Pharmacopœiorum predict’ precibus inclinati potissimum verò ex Regali nostra cura & solicitudine Statum Reipublice promovendi ac bonum publicum procurandi ut Empiricorum & hominum ignor’ & inexpert’ predictor’ inscitia temeritasque compiscatur unde plurima incommoda et pericula rudi & credule plebi assidue oriantur. Ac ut Pharmacopœi inferius nominati tam a predicto Corpore politico liberorum hominum myster’ Grocer’ Civitat’ London quam a quibuscunque aliis corporibus Politicis Societat’ sive Communitat’ quarumcunque aliar’ artium facultat’ sive myster’ in eadem Civitate nostra London disuniantur separentur & disjungantur ac in Corpus unum Politicum & Corporatum per seipsos per nos facti constituti & creari imposterum perpetuis futuris temporibus ad omnia proposita & intentiones sint et remaneant quam pro aliis causis urgentibus nos specialiter moventibus de gra’ nostra speciali ac ex certa scientia & mero motu nostris volumus ac per presentes pro nobis heredibus & successor’ nostris Willielmo Besse, Edmundo Philips (_et_ 114 _aliis nominatis_) ac omnibus aliis personis quibuscunque subditis nostris naturalibus in arte facultate sive mysterio Pharmacopœior’ educat’ & perit’ eandemque artem facultatem sive mysterium hoc tempore exercen’ sive existen’ liberis hominibus myster’ Grocer’ Civitat’ London ac cum eisdem conjunctim & promiscue in unum Corpus corporatum & Communitat’ antehac per nos seu per aliquem vel aliquos Progenitor’ nostrorum fact’ incorporat’ sive constitut’. Quod ipsi et eorum unusquisque una cum omnibus et singulis eorum Apprenticiis qui ante dat’ Presencium coram Custod’ myster’ Grocer’ predict’ seu coram Custod’ sive Magistris aliquar’ aliar’ artium facultat’ sive myster’ in Civitat’ London alicui Pharmacopœio sive aliquibus Pharmacopœiis posuerunt seipsos Apprenticios tam a predicto Corpore Politico & Communitat’ liberorum hominum myster’ Grocer’ predict’ quam ab omnibus aliis Corpor’ Politicis Communitat’ sive Societat’ aliquar’ aliar’ artium facultat’ sive myster’ in Civitat London quibuscunque disuniantur separentur divellantur disjungantur ac dissociantur eosdemque Pharmacopœios & eorum quemlibet ante nominat’ sive mencionat’ una cum omnibus & singulis eorum Apprenticiis predict’ ex regali nostra prerogativa & Jure regio disunimus separamus divellimus disjungimus & dissociamus & eosdem Pharmacopœios una cum omnibus & singulis eorum Apprenticiis predict’ virtute harum Literarum nostrarum Paten’ immunes liberos acquietat’ exoneratos & penitus exemptos (ad omnia proposita et intentiones) quam de et ab omnibus jurament’ Jurisdictionibus Potestat’ Authoritat’ Statut’ Ordinationibus Constitution’ Supervis’ Scrutin’ Summonition’ Convocationibus Conventionibus Regim’ Gubernationibus Correction Impositionibus Taxation’ Collection’ denarion’ solutionibus & Oneribus Finibus amerciament’ imprisonament’ districtionibus penis & penilitat’ quibuscunque Custod’ & Communitat myster’ Grocer’ predict’ pro tempore existen’ aut eorum successor’ quam alior’ quorumcunque Corpor’ Politicor’ Communitat’ sive Societat’ in Civitat’ nostra London & successor’ suorum per presentes volumus esse & remanere deinceps imperpetuum aliquibus Statut’ Act’ Parliament’ Ordination’ Provisionibus Consuet’ Concession’ Confirmation’ Privileg’ Chart’ aut Litteris paten’ nostri vel aliquorum Progenitor’ nostrorum Custod’ & Communitat’ myster’ Grocer’ London predict’ fact’ in contrarium inde non obstant’. Et ulterius de ampliori gra’ nostra speciali & ex certa scientia et mero motu nostris ut ars myster’ sive facultat’ Pharmacopœie jam diu collapsa & despecta melius ad amplitudinem dignam promoveatur pro nobis hered’ & successoribus nostris concedimus per presentes prefatis Willielmo Besse, Edmundo Phillips (&^{ci} * * * ) ac omnibus & singulis aliis personis quibuscunque in arte myster’ sive facultat’ Pharmacopol’ educat’ & perit’ eandemque artem myster’ seu facultatem exercentibus modo existen’ liberis hominibus myster’ Grocer’ predict’ aut existen’ liberis hominibus aliquar’ aliarum artium myster’ sive facultat’ in Civitat’ London (dummodo in arte & facultate Pharmacopol’ educat’ & expert’ fuerint) quod ipsi omnesque hujusmodi liberi homines ejusdem artis myster’ sive facultat’ Pharmacopol’ de et in Civitat predict’ & in suburbiis ejusdem & infra septem miliar’ Civitat’ predict’ sint & erunt unum Corpus corporatum & Politicum in re facto & nomine per nomen Magistr’ Custod’ & Societat’ artis & myster’ Pharmacopol’ Civitat’ London. Ac eos per nomen Magistri Custodum & Societatis artis et myster’ Pharmacopol’ Civitat’ London in unum Corpus corporatum & Politicum in re facto et nomine realiter et ad plenum pro nobis & successor’ nostris erigimus facimus ordinamus constituimus creamus & declaramus per presentes. Et quod per idem nomen successionem habeant perpetuam. Et quod ipsi & successores sui per nomen Magistri Custod’ & Societatis artis mysterii Pharmacopol’ Civitat’ London sint & erunt perpetuis futuris temporibus persone habiles & in lege capaces ac Corpus Corporatum & Politicum & in lege capax ad habend’ perquirend’ possidend’ gaudend’ & retinend’ Maner’ Messuagia terras tenementa libertat’ privileg’ Franches’ Jurisdiction’ & Hereditamenta quecunque cujuscunque generis nominis natur’ qualitat’ vel speciei fuerint sibi & successor’ suis in feodo simplici & perpetuitat’ sive pro termino anni vel annorum aut aliter quocunque modo. Ac etiam bona & Catalla & quascunque alias res cujuscunque nominis nature generis qualitat’ sive speciei fuerint. Necnon ad concedend’ dimittend’ alienand’ assignand’ & disponend’ maner’ terr’ tenementa & hereditamenta & ad omnia & singula al’ fact’ & res faciend’ & exequend’ per nomen predict’. Et quod per idem nomen Magistri Custod’ & Societat’ artis & myster’ Pharmacopol’ Civitat’ myster’ London placitare & implacitari respondere & responderi defendere & defendi valeant & possint in quibuscunque Curiis. Placit’ & locis ac coram quibuscunque Judicibus & Justiciariis ac aliis personis & officiar’ nostris ac heredum & successor’ nostrorum in omnibus & singulis actionibus placitis sect’ querel’ causis mater’ & demand’ quibuscunque cujuscunque sint aut erint generis qualitat’ aut speciei eisdem modo & forma prout aliqui alii ligei nostri Anglie persone habiles & capaces in lege sive aliquod aliud Corpus corporatum et Politicum infra Regnum nostrum Anglie habere perquirere recipere possidere & gaudere retinere dare concedere dimittere alienare assignare & disponere placitare & implacitari respondere & responderi defendere & defendi facere permittere sive exequi possint aut valeant. Et quod iidem Magister Custod’ & Societas artis & mysterii Pharmacopol’ Civitat’ London predict’ habeant imperpetuum Commune Sigillum pro causis & negotiis suis ac successor’ suor’ quibuscunque agend’ deservitur’. Et quod bene liceat & licebit eisdem Magistro Custod’ & Societat’ artis & mysterii Pharmacopol’ London predict’ & successor’ suis sigillum illud ad libitum suum de tempore in tempus frangere mutare & de novo facere prout eis melius fieri videbitur. Et ulterius volumus & ordinamus ac per presentes pro nobis hered’ & successor’ nostris concedimus prefat’ Magistro Custod’ & Societat’ artis & mysterii Pharmacopol’ predict’ & successor’ suis quod de cetero imperpetuum perpetuis futuris temporibus sit & erit unus de Societatis artis & myster’ Pharmacopol’ predict’ in forma in hiis presentibus mencionat’ eligend’ & nominand’ qui nominabitur & vocabitur Magister artis & Societatis predict’ Ac quod similiter sint & erunt duo de Societate artis & myster’ predict’ in forma in his presentibus express’ eligend’ & nominand’ qui erunt & nominabunter Custodes Artis myster’ & societat’ predict’. Ac eciam quod similiter sint & erunt viginti & unus de Societate predict’ in forma in hiis presentibus inferius similiter mencionat’ eligend’ qui erunt & nominabuntur Assistantes Artis & Societatis Pharmacopol’ Civitat’ London ac de tempore in tempus erunt assistentes & auxiliantes Magistro & Custod’ Mysterii & Societat’ predict’ pro tempore existen’ in omnibus causis rebus & materiis dict’ Magr’ & Societat’ tangen’ sive concernen.’ Et ulterius volumus ac per presentes pro nobis hered’ & successoribus nostris concedimus prefatis Magistro Custod’ & Societat’ artis & myster’ Pharmacopol’ Civitat’ London predict’ & successor’ suis quod bene liceat & licebit eisdem Magistro Custod’ & Societat’ & Successor’ suis habere perquirere retinere & appuntare quandam Aulam sive Domum Conciliar’ infra Civitat nostram London Quodque idem Magr’ Custod’ myster’ predict’ vel aliqui duo eorum quorum Magistrum pro tempore existenti unum esse volumus quoties eis opportunum & necessarium fore videbitur convocare & tenere infra eandem Aulam sive domum quandam Curiam sive Convocationem de eisdem Magistro Custod’ & Assistent’ predict’ ad numerum tredecem personarum vel plurium (quorum Magistrum & unum Custod’ myster’ & societat’ predict’ pro tempore existen’ ut prefertur duos esse volumus) ad libitum & licite possint & valeant perpetuis futuris temporibus. Quodque in eadem Curia sive Convocatione tractare referre consultare consulere & decernere valeant & possint de Statutis Legibus Articulis Ordinationibus & Constitutionibus myster’ & societat’ predict’ ac bonum regimen statum & gubernationem eorundem tangen’ & concernen’ juxta eorum sanas discretiones vel juxta sanas discretiones majoris partis eorundem (quoram magistrum & unum Custod’ myster’ & societat’ predict’ pro tempore existen’ duos esse volumus) sic ut prefertur congregat’. Et ulterius volumus ac per presentes pro nobis hered’ & successor’ nostris concedimus prefat’ Magistro Custod’ & Societati artis sive mysterii Pharmacopol’ Civitat’ London & successoribus suis quod Magister Custodes & Assistantes myster’ predict’ pro tempore existen’ ad numerum tredecem personarum vel plurium (quorum predict’ Magistrum pro tempore existen’ unum esse volumus) super Summonitionem publicam inde fiend’ ad hoc congregat’ in Aula sive domo societatis predict’ habeant & habebunt plenam potestatem facultatem & authoritatem condend’ constituend’ ordinand’ & faciend’ de tempore in tempus Leges Statuta Constitutiones Decreta & Ordinationes rationabiliter inscript’ quecunque que eis aut majori parti eorundem (quorum Magistrum myster’ & societatis predict’ pro tempore existen’ unum esse volumus) bona salubria utilia honesta & necessaria juxta eorum sanas discretiones fore videbuntur pro bono regimine & gubernatione eorundem Magisti Custod’ Assisten’ & societatis myster’ Pharmacopol’ predict’ ac omnium & singulorum aliar’ personar’ artem sive myster’ Pharmacopol’ infra Civitat’ London predict’ libertates & suburbia ejusdem ac infra septem Miliaria ejusdem Civitat’ exercent’ & occupant’ ac pro declaratione quo modo & ordine iidem Magister Custodes & Societas ac omnes & singuli Apprenticii Officiar’ & Ministri myster’ & societat’ predict’ in officiis functionibus minister’ Tyrociniis artific’ & negotiis suis infra Civitat’ predict’ ac libertates & suburbia ejusdem ac infra septem miliaria ejusdem Civitat’ sese habebunt gerent & utentur pro uberiori bono publico communi utilitate & bono regimine myster’ & societat’ predict’ ac gubernatione earundem ac rebus & causis aliis quibuscunque myster’ & societat’ predict’ tangen’ seu quoquo modo concernen.’ PROVISO semper quod pro tot & tal’ Ordinationibus que medicamenta aut compositiones & usum earundem concernent’ advocabunt de tempore in tempus President’ & quatuor Censores seu Gubernat’ Colleg’ & Communitat’ Medicorum London aut alios Medicos per Presidentem predict’ nominand’ pro avisamento in hac parte. Quodque iidem Magister et Custodes & Assistantes myster’ predict’ pro tempore existen’ ad numerum tredecim personarum vel plurium (quorum Magistrum myster’ predict’ pro tempore existen’ unum esse volumus) quotiescunque hujusmodi Leges institutiones Jura Ordinationes & Constitutiones fecerint condidirint ordinaverint vel stabiliverint hujusmodi & tales penas punitiones & penelitat’ per fines & amerciamenta vel per eorum utrumque erga & super omnes delinquentes contra hujusmodi Leges Institutiones Jura Ordinationes & Constitutiones sive eorum aliquod sive aliqua qual’ & que eisdem Magistro Custod’ & Assisten myster’ predict’ pro tempore existen’ vel majori parte eorundem (quorum Magistrum myster’ & societatis predict’ pro tempore existen’ unum esse volumus) necessor’ requisit’ & opportun’ pro observatione earum legum ordinationum & constitutionum melius fore videbitur facere ordinare limitare & providere possint. Ac quod iidem Magister Custodes & societas myster’ predict’ & successores sui eadem fines et amerciamenta per ministros proprios eorundem Magistri Custod’ & Societatis pro tempore existem’ per discretionem vel aliter secundum leges & consuetudines regni nostri Anglie levare habere & capere possint & valeant ad usum Magistri Custodum & societat’ predict’ & successor’ suorum absque impedimento nostri heredum & successor’ nostrorum aut alicujus vel aliquorum Officiar’ vel Ministror’ nostror’ heredum vel sucessor’ nostrorum & absque aliquo computo nobis heredibus vel successor’ nostris inde reddend’ seu faciend’. Que omnia & singula Ordinationes Jura & Constitutiones sic (ut prefertur) fiend’ observari volumus sub penis in iisdem continend’. Ita tamen quod leges constitutiones fines & americamenta hujusmodi sint rationabilia & non sint repugnan’ nec contrarian’ legibus Statut’ consuetudinibus sive Juribus regni nostri Anglie. Et pro meliori executione voluntatis & concessionis nostri in hac parte assignavimus nominavimus creavimus & constituimus dilectos nobis predictum Edmund’ Phillips fore & esse primum & modern’ Magistrum artis sive myster’ & societat’ predict’ ac etiam predict’ Stephanum Higgins & Thomam Jones fore & esse primos & modernos Custodes mysterii & societatis predict’ continuand’ in eisdem officiis a dat’ presentium usque ad vicessimum diem Augusti proxim’ sequen’ & deinde quousque tres alii ad officia illa Magistri & Custodum artis sive mysterii & societatis predict’ debito modo electi & perfecti fuerint juxta ordinationes & provisiones in hiis presentibus express’ & declarat’ si iidem Edmundus Phillips, Stephanus Higgins & Thomas Jones tam diu vixerint (nisi interim pro mala gubernatione aut male se gerend’ in ea parte aut pro aliqua alia causa rationabili ab officiis illis amoti erunt aut eorum aliquis amotus erit.) Et assignavimus eciam ac nominavimus creavimus constituimus & fecimus ac per presentes pro nobis heredibus & successoribus nostris assignamus creamus nominamus constituimus & facimus dilectos nobis predict Johannem Wolfgangfumler * * &^{ci} * * in arte & mysterio Pharmacopol’ edoct’ educat’ & expert’ fore’ & esse primos et modernos Assistentes ejusdem mysterii & societatis Pharmacopol’ continuand’ in eisdem officiis & locis durant’ vitis suis naturalibus nisi interim pro mala qubernatione seu male se gerend’ in ea parte aut pro aliqua alia causa rationabili amoti fuerint aut eorum aliqui vel aliquis amotus erit vel amoti erunt. Qui quidem Assistentes mysterii & societat’ predict’ sacrimenta sua corporalia coram Francisco Bacon Milite Attornat’ nostro General’ Henrico Yelverton Milite Solicit’ nostro generali Theodoro de Mayerne & Henrico Atkins in Medicinis Doctoribus & Johanne Towneley Armigero vel coram duobus eorum Quibus quinque vel eorum duobus plenam potestatem & authoritatem sacramenta predict’ Assisten’ myster’ predict’ dare & administrare damus & concedimus per presentes infra quadraginta dies post dat’ presentium ad officia sua predict’ bene & fideliter exequend’ prestabunt. Ac eciam predict’ Magister myster’ predict’ & Custodes myster’ & societat’ predict’ sacramenta sua corporalia coram Assisten’ myster’ predict’ vel majore parte eorundem infra quinquaginta dies post dat’ presentium bene & fideliter ad dictum officium Magistri & Custod’ myster’ & societat’ predict’ exequend’ in omnibus eisdem Officiis tangen’ seu concernen’ prestabunt. Et sic de tempore in tempus toties quoties Magister & Custodes Myster’ & Societatis predict’ elect’ & perfect’ fuer’ antequam ad executionem predict’ Officii admittantur seu eorum aliquis admittatur.
Et ulterius volumus ac per presentes pro nobis hered’ & successor’ nostris concedimus prefat’ Magistro Custod’ & Societati mysterii Pharmacopol’ predict’ & successor’ suis quod Magister Custodes & Assistentes Mysterii & Societatis predict’ pro tempore existen’ & successor’ sui ad numerum tredecim personar’ vel plurium (si tot convenienter congregari possint) de tempore in tempus perpetuis futuris temporibus potestatem & authoritatem habeant & habebunt annuatim & quolibet anno imperpetuum in & super vicessimum diem Augusti vel infra octo dies proxim’ post dictum vicessimum diem Augusti eligend’ & nominand’ Et quod eligere & nominare possint & valeant tres de probioribus & discretioribus hominibus Societatis predict’ quorum unus erit Magister & alteri duo erunt Custodes Mysterii & Societatis predict’ pro uno anno integro tunc proxim’ sequen’ & deinde quosque tres alii probi & discreti homines myster’ predict’ elect’ & prefect’ fuerint juxta Ordinationes & Provisiones in hiis presentibus express’ & declarat’.
Et ulterius volumus & per presentes pro nobis heredibus & successor’ nostris concedimus prefatis Magistro Custod’ & Societati Myster’ Pharmacopol’ Civitat’ London predict’ & Successor’ suis Quod si contigerit Magistrum & Custodes myster’ & Societat’ predict’ aut eorum aliquos vel aliquem aliquo tempore infra unum annum postquam ad Officia Magistri & Custod’ Myster’ & Societatis predict’ sic ut prefertur elect’ & prefect’ fuerint aut eorum aliquis vel aliqui fuerit vel fuerint obire aut ab officiis amoveri (quos quidem Magistrum & Custodes ac eorum quemlibet pro mala gubernatione aut pro aliqua causa rationabili per reliquos Magist’ et Custod’ non offenden’ vel delinquentes & Assistentes myster’ & societatis predict’ pro tempore existen’ ad numerum tredecim personar’ vel plurium de tempore in tempus amobiles esse volumus) quod tunc & toties bene liceat & licebit tantis & tot eorundem Magist’ Custod’ & Assistent’ qui adtunc supervixerint vel remanserint ad numerum tredecim personarum vel plurium ad libitum suum unum alium vel plures alios in Magistrum & Custodem vel Custodes Myster’ & Societatis predict’ eligere & preficere secundum ordinationem & provisionem in hiis presentibus declarat’ ad exequend’ & exercend’ prefat’ officia Magistri & Custod’ myster’ & societatis predict’ usque ad vicessimum diem Augusti tunc proxim’ sequen’ vel infra octo dies ante vicessimum diem Augusti & exinde quousque tres alii probi & discreti homines myster’ & societatis predict’ elect’ & nominat’ erunt juxta ordinationes & provisiones in hiis presentibus declarat’ & express’ & sic toties quoties casus sic acciderit.
Et ulterius volumus ac per presentes pro nobis heredibus & successor’ nostris ordinamus & concedimus prefat’ Magist’ Custod’ & societati mysterii predicti & suceessor’ suis quod quandocunque contigerit aliquem vel aliquos de predict’ viginti & uno Assisten’ pro tempore existen’ myster’ & societatis predict’ obire aut pro aliqua causa rationabili ab officiis suis Assisten’ myster’ & societatis predict’ amoveri (quos quidem Assistentes & eorum quemlibet se non bene gerentes aut gerentem in officiis illis aut pro aliqua alia causa rationabili de tempore in tempus per Magistrum Custod’ & Assisten’ ad numerum tredecim personar’ vel plurium qui adtunc remanserint vel supervixerint amobiles esse volumus) ad libitum suum de tempore in tempus unum alium vel plures alios de probioribus & dignioribus personis existen’ de myster’ & societat predict’ in locum sive loca ipsius Assistentis vel ipsorum assistentium myster’ & societatis predict’ sic mori vel amoveri contingen’ vel contingent’ eligere nominare & preficere ad supplend’ predictum numerum viginti & unius Assistentium predict’. Quodque ille sive illi posquam sic (ut prefertur) elect’ & nominat’ fuerit vel electi & nominati fuerint antequam ad executionem predict’ officii Assistentis vel Assistentium myster’ & societat’ predict’ admittantur sive eorum aliquis admittatur Sacrimentum Corporale super sacrosanct’ Evangel’ coram Magistro & Custod’ Myster’ & Societat’ predict’ pro tempore existen’ ad officia illa recte bene fideliter & honeste exequend’ & ad ea omnia secreta tenend’ que in Cur’ Assisten’ presentia ipsius vel ipsorum erunt communicat’ vel colloquut’ prestabit & prestabunt & sic toties quoties casus acciderit.
Damus insuper ac per presentes pro nobis heredibus & successor’ nostris concedimus prefatis Magistro Custod’ & Societat’ artis & myster’ Pharmacopolar’ predict’ & successor’ suis quod Magister & Custodes myster’ & societat’ predict’ pro tempore existen’ habeant & habebunt plenam potestatem & authoritatem de tempore in tempus ad tradend’ & ministrand’ Sacramentum Corporale super sacrosanct’ Evangelium tam omnibus Magistris Custod’ & Assisten’ myster’ & societat’ predict’ imposterum eligend’ & in eadem officia sive loca ut prefertur admittend’ ac omnibus Offician’ myster’ & societat’ predict’ pro debit’ executione officior’ suor’ recte bene & fideliter in omnibus separatim officia sua tangen’ sive concernen’ quam omnibus Apprenticiis ac aliis liberis hominibus myster’ predict’ quibuscunque.
Et ulterius ut nos subditor’ nostror’ saluti ac bono publico quantum in nobis est consulamus ac ut pericula & incommoda illa assidue accidentia per imperitos & inexpertos dolosos & improbos homines artem Pharmacopol’ predict’ exercen’ melius devitentur volumus & de gratia nostra speciali certa scientia & mero motu nostris per presentes pro nobis heredibus & successor’ suis quod non liceat aut licebit deinceps imposterum alicui persone vel aliquibus personis quibuscunque jam existen’ aut imposterum futuris liberis hominibus myster’ Grocer’ predict’ aut aliquar’ aliar’ artium facultat’ sive myster’ in civitate London ac in eisdem arte facultate sive myster’ educat’ vel educand’ officinam vel shoppam Pharmacopol’ instruere tenere vel habere aut medicamenta quecunque facere miscere condere componere preparare propinare applicare aut administrare aut ulla medicamenta composita aut compositiones medicinales viz aquas distillatas compositas, vel olea chymica, apozemeta, syrapos conservas eclegma, electuaria, condita medicinabilia, pilulas, pulveres, trochiscos, olea, unguenta, emplastra ullo modo divendere propalare edere exercere aut venditioni aliqui personæ vel aliquibus personis quibuscunque exponere aliter quocunque modo arte facultate sive myster’ Pharmacopol’ aut aliqua ejus parte uti aut exercere infra septem miliaria ejusdem Civitat’ sub pena quinque librarum pro quolibet mense quo hujusmodi persona sive persone artem & myster’ Pharmacopol’ (ut prefertur) exerceat aut exerceant contra veram intentionem harum Litter’ Paten’. Que quidem forisfactur’ & penalit’ per districtionem vel per actionem debiti in nomine Custodis Junioris pro tempore existen’ prosequi aut aliter in aliquibus Curiis nostris apud Westm’ de tempore in tempus leventur & recuperentur dimidium inde ad usum predict’ Magistri Custod’ & Societatis myster’ Pharmacopol’ capiend’ & applicand’.
Volumus eciam ac per presentes pro nobis heredibus & successoribus nostris concedimus prefat’ Magistro Custod’ & Societati myster’ Pharmacopol’ Civitat’ London predict’ & successor’ suis quod nulla persona sive persone quecunque officinam aut shopam Pharmacopol’ habeat teneat aut instruat habeant instruant aut artem sive myster’ Pharmacopol’ exerceat aut exerceant aut quecunque medicamenta faciat misceat condat componat preparet propinet applicat administret ant ulla medicamenta composita aut compositiones ullo modo divendere propalare edere exercere aut venundare alicui persone vel aliquibus personis quibuscunque infra Civitatem London & libertat’ ejusdem aut infra septem miliaria ejusdem Civitat’ nisi hujusmodi persona & persone per spatium septem annorum ad minus ut Apprenticius vel Apprenticii cum aliquo vel aliquibus Pharmacopol’ eandem artem exercen’ & libero homine ejusdem mysterii existen’ educat’ instruat’ & edoct’ fuit vel fuerint. Et postquam hujusmodi septem anni servicii sive Tyrocinii (ut prefertur) fuerint elapsi & extract’ Quod tunc unusquisque talis Apprenticius coram Magistro & Custod’ pro tempore existen’ appareat & presentetur. Ac per eosdem Magistrum & Custod’ (advocat’ sibi Presdent’ Collegii seu Communitat’ facultat’ medicine London pro tempore existen’ aut aliquo medico aut aliquibus medicis per dictum Presidentem nominand’ & ad hoc de tempore in tempus assignand’ si super monitionem inde fact’ tal pred’ medicus vel tal’ predicti Medici adesse voluerint vel voluerit & advisament’ cum eodem vel eisdem habit’) circa cognitionem & electionem Simplicium & circa medicament’ preparationem dispensationem tractationem commixtionem & compositionem examenetur probetur tentetur ac per eosdem Medicos Magistrum & Custodes spectatus & approbatus fuerit priusquam officinam Pharmacopol’ habere tenere instruere aut medicamenta quecunque preparare facere permiscere condere componere propinare administrare propalare edere exercere divendere aut venditioni exponere aut aliter quocunque modo artem Pharmacopoli aut aliquem ejusdem partem exercere infra Civitatem London & libertat’ ejusdem aut infra septem miliaria ejusdem Civitat’ presumat.
Ac ulterius de uberiori gratia nostra speciali & ex certa sciencia & mero motu nostris pro meliori regimine & gubernatione omnium & singular’ personarum que modo exercent aut imposterum exercebunt artem sive myster’ Pharmacopol’ Civitat’ London seu suburbia ejusdem vel infra septem miliaria ejusdem Civitatis dedimus & concessimus ac per presentes pro nobis heredibus & successoribus nostris damus & concessimus prefat’ Magistro Custod’ & Societati myster’ Pharmacopol’ Civitat’ London predict’ & successor’ suis Quod Magist’ & Custod’ myster’ predict’ pro tempore existen’ & successores sui de cetero imperpetuum plenam potestatem & authoritatem habeant & habebunt de tempore in tempus capere & habere supervis’ scrutinium examinationem gubernationem & correctionem omnium & omnimod’ tam liberorum hominum quam alior’ quorumcunque uten’ sive exercen’ artem myster’ sive facultat’ Pharmacopol’ aut aliquam (ut prefertur) ejusdem partem infra dictam Civitat’ nostram London libertat’ & suburbia ejusdem Civitat’ tam infra libertates quam extra ubi aliqua persona uten’ sive exercen’ artem mysterium sive facultatem Pharmacopœie aut aliquam ejusdem partem inhabitabit aut commorabit seu inhabitare & commorare contigerit Quodque iidem Magist’ & Custod’ & eorum successores aut eorum aliqui vel aliquis aut aliqui Assisten’ per Magistrum & Custod’ nominand’ & assignand’ temporibus congruis & convenien’ ac modo & forma convenien’ & legitim’ de tempore in tempus quoties iisdem Magistro & Custodibus videbitur expedire ingredi & intrare possint & valeant in aliquam vel aliquis officinam vel officinas shopam vel shopas domum vel domos aliquar’ personar’ sive alicujus persone cujuscunque uten’ sive exercen’ artem sive myster’ Pharmacopol’ aut aliquam ejusdem partem infra Civitat’ London Suburbia & ejusdem libertat’ predict’ aut infra septem miliaria ejusdem Civitat’ tam infra libertat’ quam extra ubi aliqua medicamenta simplicia vel composita merces drogma recept’ aque distillat’ olea chymica syrupi conserve eclegmata electuar’ pilule pulveres trochisci olea unguenta emplastra aut aliqua alia quecunque que ad artem sive mysterium Pharmacopol’ (ut prefertur) pertinent sive spectant probabiliter sive verisimiliter inveniri poterint Et ad supervidend’ scrutinand’ & proband’ si eadem medicamenta simplicia vel composita merces drogma recept’ aque distillat’ olea chymica syrupi conserve eclegmata electuaria pilule pulveres trochisci olea unguenta emplastra aut aliqua alia quecunque ad artem sive mysterium Pharmacopol’ predict’ pertinent’ sint aut erunt bona salubria medicinabilia apta & idonea ad Curam salutem & relevamen subditor’ nostror’ Ac eciam quod prefat’ Magister & Custod’ myster’ predict’ & Assisten’ predict’ pro tempore existen’ ad hoc per Magistrum & Custod’ nominand’ & assignand’ & successores sui de tempore in tempus plenam potestatem & authoritatem habeant & virtute presentium habebunt ad examinand’ & proband’ omnes & singulas personas profiten’ uten’ sive exercen’ aut qui imposterum profitebuntur utentur aut exercebunt artem sive myster’ Pharmacopol’ aut aliquam ejusdem partem infra predict’ Civitat’ London suburbia aut libertates ejusdem aut infra septem miliaria ejusdem Civitat’ tam infra libertates quam extra de & concernen’ eorum cujuslibet cognitione & scientia in predit’ arte sive myster’ Pharmacopol’ Et ad omnes illos quos imposter’ aut imperit’ inscient’ & insufficientes vel ad examinand’ vigore presentium obstinatos & repugnant’ in arte & myster’ predicto invenient ab exercitio usu & pract’ myster’ sive artis predict’ amovend’ & prohibend’ Nec non ad omnia & singula medicamenta merces drogma recept’ aquas distillat’ olea chymica syrupos conservas eclegmata electuaria pilulas pulveres trochiscos olea unguenta & emplastra ceteraque omnia & singula ad artem predict’ pertinentia que falsa illegitima adulterat’ inveterat’ exoleta insalubria corrupta immedicinabilia perniciosa aut nociva inveniunt ante delinquentium fores comburend’ mulctamque eciam ac al’ penas & penalitat’ per fines & amerciamenta in tales delinquentes statuant exponant & exequantur secundum eorum sanas discretiones & ordinationes per ipsos & successores suos sic (ut prefertur) fiend’ & constituend.’
Volentes ac per presentes pro nobis heredibus & successor’ nostris firmiter injungend’ precipientes & mandentes omnibus & singulis Majoribus Justiciar’ Ballivis Constabular’ & omnibus aliis officiar’ ministris & subditis nostris quibuscunque quod sint assistentes auxiliantes & confortantes prefat’ Magistro Custod’ & Assistan’ myster’ & societates Pharmacopol’ predict’ & eorum cuilibet & successor’ suis ad faciend’ gaudend’ habend’ & exequend’ ea omnia & singula per nos prefat’ Magistro Custod’ & Societati & Successor’ suis per has literas nostras Paten’ concess’ & quamlibet sive aliquam inde partem & parcell’.
Et ulterius volumus ac per presentes de ampliori gratia nostra speciali certa scientia & mero motu nostris pro nobis hered’ & successor’ nostris concedimus prefat’ Magistro Custod’ & Societati myster’ Pharmacopol’ Civitat’ London predict’ & successor’ suis Quod ipsi prefati Magist’ Custodes & Societas myster’ Pharmacopol’ predict’ habeant teneant retineant & gaudeant ac habere retinere & gaudere valeant & possint tot tanta talia eadem hujusmodi & consimil’ Franches’ privilegia consuetudines immunitates acquietan’ profima commoditates increment’ advantag’ & emolumenta quecunque in aromatibus Pharmacis Drogmis & aliis rebus & materiis quibuscunque ad artem sive myster’ Pharmacopol’ spectan’ & pertinen’ emend’ mercand’ seu comparan’ quot’ quant’ qual’ & que ac in tam amplis modo & forma prout antehac unquam habuerunt tenuerunt & gavisi fuerunt aut habere gaudere & tenere aliquo modo debuerunt quando cum predict’ liberis hominibus myster’ Grocer’ remanser’ ac unum Corpus corporatum & Politicum promiscue & indivisim cum eisdem fecerunt & fuerunt.
Et ulterius volumus ac per presentes pro nobis heredibus & successor’ nostris concedimus & licentiam specialem liberamque & licitam facultat’ potestatem & authoritatem damus prefat’ Magistro Custod’ & Societati mysterii sive artis Pharmacopol’ predict’ & successor’ suis habend’ recipiend’ & perquirand’ sibi & successor’ suis imperpetuum’ maner’ messuag’ terr’ tenementa prata pascua pastur’ boscos subboscos Rectorias Decim’ reddit’ reversiones & alia hereditamenta quecunque infra regnum nostrum Anglie seu alibi infra dominia nostra tam de nobis heredibus & successor’ nostris quam de aliqua alia persona sive aliquibus aliis personis quicunque (que de nobis hered’ & successor’ nostris non tenentur immediate in Capite vel per servicium militare) dummodo eadem maner’ messuag’ terr’ tenementa prat’ pasc’ pastur’ bosc’ subbosc’ Rector’ decim’ reddit’ reversion’ servic’ & hereditamenta sic per ipsos habend’ recipiend’ & perquirend’ non excedant in toto clarum annuum valorem quadragint’ librarum per ann’ ultra omnia onera & repris’ Statut’ de terr’ & tenementis ad manum mortuam non ponend’ aut aliquo Statuto Actu Ordinatione vel Provisione antehac fact’ ordinat’ sive provis’ aut aliqua alia re causa vel materia quacunque in contrarium inde in aliquo modo non obstan’.
Damus eciam & per presentes pro nobis hered’ & successor’ nostris concedimus cuicunque subdito nostro sive aliquibus subditis nostris hered’ & successor’ nostrorum licentiam specialem liberamque & licitam potestatem facultatem & authoritat’ Quod ipsi sive eorum aliquis sive aliqui maner’ messuag’ terr’ tenementa prat’ pasc’ pastur’ bosc’ subbosc’ Rect’ decim’ reddit’ reversiones servicia & alia hereditamenta quecunque que non tenentur de nobis hered’ & successor’ nostris immediate in Capite vel aliter per servic’ militare prefatis Magistro Custod’ & Societati mysterii predict’ & successor’ suis dare concedere vendere legare vel alienare possint & valeant. Ita quod omnia predict’ Maner’ Messuag’ terr’ tenementa prat’ pasc’ pastur’ bosc’ subbosc’ Rector’ decim’ reddit’ reversiones servicia & alia hereditamenta sic eisdem Magistro Custod’ & Societati myster’ & artis predict’ & successor’ suis virtute presentium dand’ concedend’ legand’ vel alienaud’ non excedant in toto clarum annuum valorem quadragint’ librarum per ann’ ultra omnia onera & repris’ Statut’ de terr’ & tenement’ ad manum mortuam non ponend’ aut aliqua alia re causa vel materia quacunque antehac habit’ fact’ edit’ ordinat’ sive provis’ in contrarium inde in aliquo non obstant’.
Volumus eciam & per presentes pro nobis hered’ & successor’ nostris concedimus prefatis Magistro Custod’ & Societati myster’ sive artis Pharmacopol’ Civitat’ London’ predict’ & successor’ suis Quod prefat’ Magist’ Custod’ & Assisten’ pro tempore existen’ vel eorum successor’ vel major pars eorundem de cetero imperpetuum nominare & eligere possint unum probum & idoneum virum qui erit & nominabitur Communis Clericus Societatis predict’ Quodque talis Clericus antequam ad officium illud exequend’ admittatur Sacramentum Corporale coram Magistro & Custod’ Societatis predicte pro tempore existen’ ad officium illud predictum secundum ejus scienciam in omnibus illud tangen’ recte & fideliter exequend’ prestabit. Et quod post hujusmodi Sacramentum sic prestitum officium illud exerceat & utatur durante beneplacito Magistri Custod’ & Assisten’ societatis predict’ pro tempore existen’ aut majoris partis eorundem quorum Magist’ artis & myster’ predict’ pro tempore existen’ unum esse volumus.
Ac ulterius volumus ac per presentes pro nobis hered’ & successor’ nostris concedimus prefatis Magistro Custod’ & Societati myster’ Pharmacopol’ predict’ & successor’ suis quod prefat’ Magist’ Custodes & Assistentes pro tempore existen’ & eorum successores vel major pars eorundem de tempore in tempus de cetero nominare & eligere possint & valeant unum aptem & idoneum hominem qui erit & nominabitur Bedell’ societatis predict’. Quodque talis Bedell’ sic (ut prefertur) electus & nominat’ antequam ad officium illud exequend’ admittatur Sacramentum Corporale coram Magistro & Custod’ Societatis predict’ pro tempore existen’ ad officium illud predictum in omnibus illud tangen’ recte & fideliter exequend’ prestabit. Et quod post hujusmodi Sacramentum sic prestitum officium illud exerceat & teneat duran’ beneplacito Magistri Custod’ & Assisten’ predict’ & Successor’ suor’ pro tempore existen’ (quorum Magistrum artis & myster’ predict’ pro tempore existen’ unum esse volumus.)
Et denique volumus ac regiam nostram intentionem esse per presentes declaramus quod he Litere nostre paten’ seu aliquod in eis non cedent in prejudicium Presidentis & Collegii sive Communitatis Medicor’ Civitat’ London nec ad eorum Presidentis & Collegii sive Communitatis & Successor’ suor’ Jurisdictionem authoritatem supervis’ aut correctionem in Pharmac’ Civitat’ London tollend’ infringend’ aut dirimend’. Sed quod iidem Presidens & Communitas Medicor’ omnesque & singuli medici de eodem Collegio sive Communitate & Successores sui sicut & Medici Regis Regine & Principum imposserum debeant & pro arbitrio suo possint artem medicam in omnibus suis partibus exercere & insuper gaudebunt utentur & fruentur & gaudere uti & frui valeant & possint eisdem & consimil’ Jurisdictionibus authoritat’ supervis’ & Correctionibus ac omnibus aliis potestatibus privileg’ & libertat’ qualibus unquam antehac Pharmacopol’ usi & gavisi fuerunt & preterea generaliter omnibus aliis authoritatibus privilegiis & potestatabus ipsis quandocunque vel quacunque de causa antehac concess’ ratione vel pretextu aliquar’ Literar’ Paten’ per nos seu per aliquos vel aliquem progenitor’ nostror’ aut ratione vel pretextu alicujus Actus Parliament’ vel aliquor’ Actuum Parliamentor’ aut aliquo alio regali modo quocunque eisdem President’ & Collegio sive Communitat’ Medicor’ & Successor’ suis dat’ concess’ seu confirmat’ Volumus nihilominus & ordinamus per presentes quod in quocunque casu Presidens & Colleg’ habebunt gaudebunt & exercebunt consimilem potestatem & authoritatem advocandi sibi Magistrum & Custodes Pharmacopol’ predict’ Absque eo quod omnino licebit imposterum eisdem Medicis aliquos myster’ Grocer’ predict’ advocare ad hujusmodi scrutinium Aliquo in hujusmodi Statut’ in contrarium in aliquo non obstant’. Proviso eciam quod he Litere nostre Patentes seu aliquod in eisdem concess’ aut content’ non cedent in prejudicium Civitat’ nostre London seu libertat’ ejusdem neque ullo modo derogabunt libertat’ Franches’ Regimin’ Jurisdiction’ aut consuetud’ ejusdem Civitatis.
Et denique volumus & intentionem nostram esse declaramus quod Chirurgi experti & approbati eorum artem facultatem exercere possint omnesque & singuli eorum practica sibi propria uti & frui valeant quantum ad compositionem & applicationem medicamentor’ externor’ solumodo pertinet & spectat. Ita tamen ut ea medicamenta minime vendant aut venditioni aliis exponant secundum morem vulgarem Pharmacopol’ Civitat’ nostre London Eo quod expressa mentio de vero valore annuo aut de certitudine premissor’ sive eorum alicujus aut de aliis donis sive concessionibus per nos seu per aliquem Progenitor’ vel Antecessor’ nostror’ prefat’ Magistro Custod’ & Societati myster’ Pharmacopol’ Civitat’ London predict’ ante hec tempore fact’ in presentibus minime fact’ exist’ seu aliquo Statuto Actu Ordinatione Provisione Proclamatione sive Restrictione in contrarium inde antehac habit’ fact’ edit’ ordinat’ seu provis’ aut aliqua alia re causa vel materia quacunque in aliquo non obstant’. In cujus rei testimonium has Literas nostras fieri facimus Patentes. Teste meipso apud Westm’ Tricessimo die Maii Anno Regni Nostri Anglie Franc’ & Hibernie tertio decimo & Scocie quadragesimo octavo.
Per breve de privato sigillo.
CARTRIGHT.
NOTE. The e for æ in quæ &^c and the c for t in etiam &^c are so printed in our original.
Royal Letter to the College of Physicians.
CHARLES R
Trusty & welbeloved wee greet you well
Whereas we have been informed That there are several pretended Physicians & Doctors graduated in the Universitys beyond the Seas who by indirect means endeavour to be received into that our Royal Colledge as Honorary Fellows, without incorporation into either of our Universities or previous Examination & approbation, according as it is expressly required by y^e Statutes to y^e great prejudice of y^e ffellows of or said Colledge & their Successors & of the Priveledges & immunityes granted to them by or Royal predicessors & orself. Wee having taken the same into or Royal Consideration have thought fit _to signifye or pleasure_ to you, & doe accordingly _direct you_ not to admit any person whatever as a Fellowe of the Society & to enjoy y^e priviledges of or s^d Colledge that hath not had his Education in either of or Universityes of Oxford or Cambridge kept his Act for D^r in Physick & don his Exercises accordingly, or that is not encorporated & licenced there haveing first taken the Oathes of Allegiance & Supremacy, & haveing been by you afterward examined & approved of according to the Statutes. And to the Intent this or pleasure may be the better observed wee doe likewise _hereby require you_ to cause these or Letters to be entered upon the Registe of or said Colledge & so wee bid you ffarewell, Given at or Court at Whitehall Febr. 12^{th} 1674 in the 26^{th} year of or Reighn.
T. WILLIAMSON.
To our trusty and well beloved the Lord Mayor of our City of _London_ for the time being and to the Deputy Lieutenants and Commissioners of the Militia of London and Westminster that now are and hereafter shall be, and to all other Officers and Ministers whom it may concern.
CHARLES R
Whereas in conformity to several Grants and Charters made by our Royal Progenitors Kings of _England_ unto the College of Physicians in our City of _London_, We have been pleased of our especial Grace and favour to confirm all their ancient Privileges and humanities (with the addition of some further Powers and Clauses for the regulation of that faculty) by our Letters Patent bearing date the 26th of March in the 15th year of our Reign; Wherein amongst other things it is expresly provided and by us granted that every Physician who is or shall be a Member of the said College be free and exempt and discharged of and from all Watch and Ward, and of and from bearing and providing Arms within our Cities of _London_ and _Westminster_ or of either of them or within 7 miles compass thereof: We have thought fit hereby to acquaint you therewith and with our pleasure thereupon; Willing and Requiring you in your several Places and Stations to give effectual orders from time to time that the said exemption from Watch and Ward and from bearing and providing Arms be now and hereafter punctually observed in favour of the Members of the said College within the limits aforesaid; And that you suffer them not to be any wise molested on that behalf And for so doing this shall be your Warrant. Given at our Court at _Whitehall_ the 28th day of June 1665 in the seventeenth year of our Reign.
By his Majestie’s Command WILLIAM MORICE.
College Questions resolved by the Lord Chancellor and Judges in the fifth of King _James_ his Reign An. Dom. 1607
The Kings 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 Justice of England and one of his Highnesses most honourable Privy Council, They the said Lord Chancellor and Lord Chief Justice by virtue of the same Letters called unto them Sir Thomas Fleminge Knight, then Lord Chief Baron of his Majesty’s Court of Exchequer, Sir Thomas Walmesley & Sir Peter Warburton, Knights, two of his Majesty’s Justices of the Court of Common Pleas, and Sir David Williams and Sir Laurence Tanfield Knights two of his Majesties Justices of the King’s Bench, and after due consideration had both of the Charter of King Henry the eighth made unto the said President and College of Physicians in the tenth year of his Reign, and several Acts of Parliament thereof made, one in the fourteenth year of the same King, and the other in the first year of Queen Mary, for the ordering and governing of the said College and of all the Practisers in _London_ and seven 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.
Quest. 1. Whether Graduates of Oxford and Cambridge may practise in _London_ or seven 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 licenced 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. 5. of Graduates in the two Universities, 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 misdemeanor therein, they be not subject to the Corporation and Government of the College?
Resp. They all agreed, That they are subject to the Government and correction of the College by an express Clause of the said Charter enacted which giveth to the President and College _Supervisionem Scrutinium, Correctionem & Gubernationem_ as well of all persons using the practise of Medicine within the City &c.
Quest. 4. If they may not practise without admission of the College (as their Letters Patents plainly import) Then whether such Graduates are not subject to the examination, without which there were never any admitted; and without which the admission cannot be approved; because every Graduate is not absolutely good _ipso facto_?
Resp. It was resolved by all That all that practised or should practise Physick either in _London_ or within the compass of seven miles of the same, must submit themselves to the examination of the President and College if they be required thereunto by their authority notwithstanding any licence, allowance or privilege given them in _Oxford_ or _Cambridge_ either by their degree or otherwise.
Concerning Punishment & Correction against Offenders.
Quest. 1. Whether the President and four Censors together, or the Censors alone may not commit to Prison without bail or mainprize all Offenders in the Practice of Physick according to the Statute of _primo Mariæ_ and how long, whether till he have paid such Fine as shall be assessed upon him, or have submitted himself to their Order, and in what manner?——
Resp. They all resolved, That for not well doing using or practising the faculty or Art or Physick or for disobedience or contempts done and committed against any Ordinance made by the College, by virtue and according to the power and authority to them granted, they may commit the Offenders without bail or mainprize, as the words of the Statute are. Which they all resolved, would not be altered or interpreted otherwise than the express words of the Statute are.
Quest. 2. Whether they may not commit to prison for disobedience and contempt of the private Statutes and Ordinances of the College made for the better Government thereof, and for not payment of such reasonable fines as shall be imposed by the President and Censors for maintenance of the said College, among the Members of the same College?
Resp. They all resolved, That the President and College might commit to prison for offences and disobedience done and committed against any lawfull Ordinance made by the said College, and might impose reasonable fines for the breach thereof, and detain the parties committed till these fines were satisfied.
Quest. 3. Whether they may not justly take upon every admission a reasonable sum of money for the better maintenance and defraying of necessary expences, as in other Corporations?
Resp. They all held That they might take such reasonable sums.
Quest. 4. Whether those onely are to be committed that are Offenders in _Non bene exequendo, faciendo & utendo facultate Medicinæ_, as in the Letters Patents; and such as are sufficient and not admitted, are to be sued for 5 li. a month and not be committed?
Resp. They all held That by the Charter and Acts of Parliament they might commit Offenders and Practisers that offended in _non bene exequendo faciendo et utendo facultate_: But for the committing to prison of such as practise (not being admitted by the College) they held it doubtful, for that the Charter and Statute do in that case inflict a punishment of 5 li. a month against such practiser without admittance by the College. But they all resolved, That if the President and College made an Ordinance to prohibit the practising of all without admittance under the common Seal of the said College, That for breach and contempt of this Ordinance, the President and College might both impose a reasonable fine upon the Offender and commit him without bail or mainprize.
Quest. 5. Whether refusal to come to be examined upon warning given be not a sufficient cause of Commitment?
Resp. They all resolved, That if the College do make an Ordinance, That if any Practiser of Physick in _London_ or within 7 miles of the same shall obstinately refuse to be examined by the Censors of the College _in non bene exequendo faciendo & utendo_ the Art of Physick in his Medicines or Receipts that the said President or Censors may commit him to prison, there to remain without bail or mainprize, untill he be delivered by the President and Censors and to forfeit and pay to the said College some reasonable sum of money, That the same Ordinance will be good and lawfull. And if any after shall offend contrary to the said Ordinance, the President and Censors may lawfully commit such Offender to prison, there to remain without bail or mainprize untill he shall be delivered by the said President and Censors.
It pleased the Lord Chancellor to move these Questions to the Judges as material for the execution of the Statutes.
1 Quest. Whether the party committed for unskilful or temerarious practice may have an action of false imprisonment against them, and thereby draw in question or issue the goodness or badness of the Physick?
Resp. All resolved, That the Party so committed was concluded by the sentence and judgement of the 4 Censors of the College of Physicians.
2 Quest. Whether if any not admitted do practise Physick within London or 7 miles of the same but once twice or thrice in one month, be an Offender against the Charter and Statutes of the College?
Resp. All resolved it was, if he be a professed Physician.
These I conceive to be the resolutions of their Lordships and the Judges upon the Questions which I humbly refer to themselves to affirm or disaffirm
John Crook Tho. Foster Tho. Harries
(from Goodall’s Collection, p. 276).
CASES.
DR. BONHAM’S CASE.[111]
(_From_ 8 _Co. Rep._ 114.)
_Hil._ 7 _Jac._ 1.
THOMAS BONHAM, doctor in philosophy and physic, brought an action of false imprisonment against Henry Atkins, George Turner, Thomas Moundford, and John Argent, doctors in physic, and John Taylor, and Wm. Bowden yeomen; for that the defendants, the 10 Nov. _anno_ 4 _Jacobi_, did imprison him, and detain him in prison seven days. The defendants pleaded the letters patent of King H. 8. bearing date the 23 Septemb. _anno_ 10 of his reign, by which he recites, [112]_Quod cum Regii officii sui, &c._ (_quod vide ante p._ 7.) But the case at bar doth principally consist on two clauses in the charter. The first, _concessimus etiam eisdem presidenti, &c._ (_quod vide ante p._ 10). The second clause is, which immediately follows in these words, _præterea voluit, &c._ (_quod vide ante p._ 10.) And afterwards, by act of Parliament made _anno_ [113]14 H. 8. it was enacted, that the said corporation, and every grant, article, and other things in the said letters patent contained and specified, should be approved, granted, ratified, and confirmed, &c. _in tam amplo & largo modo prout poterit acceptari, cogitari, et construi per easdem literas patentes_. And further it was enacted, that the said six persons named in the said letters patent, as principal of the said college, should elect to them two other of the said college, who should be named _electi_, and that the said elects should chose one of them to be president, as by the said act appears: and further, they pleaded the act of [114]1 _Mariæ_, by which it is enacted, _Quod quædam concessio, &c._ And further it was enacted, “That whensoever the president of the college, or commonalty of the faculty of physic at London for the time being, or such as the said president and college shall yearly, according to the tenor and meaning of the said act, authorize to search, examine, correct, and punish all offenders and transgressors in the said faculty, &c. shall send or commit any such 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, or prison, &c.” (see p. 26.) And further pleaded, that the said Thomas Bonham, 10 April, 1606, within London, against the form of the said letters patent, and the said acts, _exercebat artem medicinæ, non admissus per literas præd’ presidentis & collegii sigillo eorum communi sigillat’ ubi revera præd’ Tho. Bonham fuit minus sufficiens ad artem medicinæ exercend’_. By force of which, the said Thomas Bonham, 30 _Aprilis_ 1606, was summoned in London by the censors or governors of the college, _ad comparend’ coram præsiden’ & censor’ sive gubernatorib’ collegii præd’_ at the college, &c. the 14th day of April next following, _super præmissis examinand’_. At which day the said Tho. Bonham came before the president and censors, and was examined by the censors _de scientiâ suâ in facultate suâ in medicin’ administrand’. Et quia præd’ Thomas Bonham sic examinatus minus apte & insufficienter in præd’ arte medicinæ respondebat, & inventus fuit super examinationem præd’ per præed’ præsident’ censores minus insufficiens & inexpert’ ad artem medicinæ administrand’ ac pro eo quod præd’ Tho. Bonham multoties ante tunc examinatus, & interdictus per præsident’ & censores, de causis præd’ ad artem medicinæ administrand’ per unum mensem et amplius post talem interdictionem facultatem illam in Lond’ præd’ sine licentia, &c. ideo adtunc & ibid’ consideratum fuit per præd’ præsident’ censores, quod præd’ Thomas Bonham pro inobedientia et contempt’ suis præd’ amerciaretur to 100s. in proximis comitiis præd’ præsident’ et collegii persolvend’ et deinceps abstineret, &c. quousque inventus fuerit sufficiens, &c. sub pœna conjiciendi in carcerem si in præmissis delinqueret_. And that the said T. Bonham, 20 Octo. 1606, within London did practice physic, and the same day he was summoned by the censors to appear before the president and them, 22 Octob. then next following, at which day Bonham made default: _ideo consideratum fuit per præd’ censores_, that for his disobedience and contempt he should be amerced to 10l. and that he should be arrested and committed to custody; and afterward, 7 Nov. 1606, the said T. Bonham, at their assembly came before the president and censors, and they asked him if he would satisfy the college for his disobedience and contempt, and submit himself to be examined, and obey the censure of the college, who answered, that he had practised and would practise physic within London, _nulla a collegio petita venia_, and that he would not submit himself to the president and censors, and affirmed, that the president and censors, had no authority over those who were doctors in the university; for which cause, the said four censors, _sc._ Dr. Turner, Dr. Moundford, Dr. Argent, and Dr. Dun, then being censors or governors, _pro offensis et inobedientia præd’ adtunc & ib’ ordinaverunt & decreverunt, quod præd’ T. Bonham in carcerem mandaretur ib’ remansur’ quousque abinde per præsident’ & censores, seu gubernatores collegii præd’ pro tempore existen’ deliberaretur_, and there then by their warrant in writing, under their common seal, did commit the plaintiff to the prison of the Compter of London, &c. _absque ballio sive manucapt’ ad custagia & onera ipsius T. Bonham, donec præd’ T. Bonham per præcept’ præsiden’ & censor’ collegii præd’ sive successor’ suor’ liberatus esset_; and Dr. Atkins then president, and the censors, and Bowden and Taylor as their servants and by the commandment of the said president and censors, did carry the plaintiff with the warrant, to the gaol, &c. which is the same imprisonment. The plaintiff replied and said, that by the said act of 14 H. 8. it was further enacted, “And where that in the dioceses of England, out of London, it is not like to find alway men able sufficiently to examine (after the statute) such as shall be admitted to exercise physic in them, that it may be enacted in this present Parliament, that no person from henceforth be suffered to exercise or practise physic through England, until such time that he be examined at London by the said president and three of the said elects, and to have from them letters testimonial of their approving and examination, except he be a graduate of Oxford or Cambridge, which have accomplished all things for his form without any grace;” and that the plaintiff, _anno Dom._ 1595, was a graduate, _sc._ a doctor in the university of Cambridge, and had accomplished all things concerning his degree for his form without [115]grace, by force whereof he had exercised and practised physic within the city of London until the defendants had imprisoned him, &c. upon which the defendant demurred in law. And this case was often argued by the Serjeants at bar in divers several terms; and now this term the case was argued by the Justices, and the effect of their arguments who argued against the plaintiff (which was divided into three parts) shall be first reported. The first was, whether a doctor of physic of the one university or the other, be by the letters patent, and by the body of the act of 14 H. 8. restrained from practising physic within the City of London, &c. The second was, if the exception in the said act of [116]14 H. 8. has excepted him or not. The third was, that his imprisonment was lawful for his said disobedience. And as to the first, they relied upon the letter of the grant, ratified by the said act of 14 H. 8. which is in the negative, _sc. nemo in dictâ civitate, &c. exerceat dictam facultatem nisi ad hoc per prædict’ præsidentem & communitatem, &c. admissus sit, &c._ And this proposition is a general negative, but [117]_generale dictum est generaliter intelligendum_; and _nemo_ excludes all; and therefore a doctor of the one university or the other, is prohibited within this negative word _nemo_. And many cases were put where negative statutes shall be taken _stricte et exclusive_, which I do not think necessary to be recited here. Also they said, that the statute of [118]3 H. 8. c. 11. which in effect is repealed by this act of [119]14 H. 8. has a special proviso for the universities of Cambridge and Oxford, which being here left out, doth declare the intention of the makers of the act, that they did intend to include them within this general prohibition, _nemo in dictâ civitate, &c._ As to the second point they strongly held, that the said latter clause, “and where that in the dioceses of England, out of London,” &c. this clause, according to the words, extends only to places out of London, and so much the rather, because they provided for London before, _nemo in dictâ civitate, &c._ Also the makers of the act put a distinction betwixt those who shall be licensed to practise physic in London, &c. for they ought to have the admittance and allowance of the president and college in writing, under their common seal; but he who shall be allowed to practise physic throughout England, out of London, ought to be examined and admitted by the president and three of the elects, and so they said, that it was lately adjudged in the King’s Bench, in an information exhibited against the said Dr. Bonham for practising physic in London for divers months. As to the third point they said, that for his contempt and disobedience before them at their assembly in their college, they might well commit him to prison for they have authority by the letters patent and act of Parliament, and therefore for a contempt or misdemeanor before them they may commit him. Also the act of [120]1 M. has given them power to commit them for every offence or disob. contrary to any article or clause contained in the said grant or act. But there is an express negative article in the said grant, and ratif. by the act of 14 H. 8. _Quod nemo in dictâ civitate, &c. exerceat, &c._ and the defendants have pleaded, that the plaintiff had practised physic in London by the space of one month, &c. and therefore the act of 1 _Mariæ_ has authorised them to imprison him in this case; wherefore they concluded against the plaintiff. But it was argued by Coke Chief Justice, Warburton and Daniel Justices of the Common Pleas, to the contrary. And Daniel Justice conceived, that a doctor of physic, of the one university or the other, &c. was not within the body of the act, and if he was within the body of the act, that he was excepted by the said latter clause; but Warburton argued against him for both the points; and the Chief Justice did not speak to those two points, because he and Warburton and Daniel agreed, that this action was clearly maintainable for two other points, and therefore in this action the Chief Justice omitted to speak to the said two points; but to two other points, he and the said two other Justices, Warburton and Daniel, did speak, _sc._ 1. Whether the censors have power, for the causes alledged in their bar, to fine and imprison the plaintiff. 2. Admitting that they have power to do it, if they had pursued their power. But the Chief Justice, before he argued the points in law, because much was said in commendation of the doctors of physic of the college in London, and somewhat (as he conceived) in derogation of the dignity of the doctors of the universities, he first attributed much to the doctors of the said college in London, and confessed that nothing was spoke in their commendation which was not due to their merits: but yet that no comparison was to be made between that private college, and either of the universities of Cambridge and Oxford, no more than between the father and his children, or between the fountain and the small rivers which descend from it; the university is _alma [121]mater_, from whose breasts those of that private college have sucked all their science and knowledge (which I acknowledge to be great and profound) but the law saith, _erubescit lex filios castigare parentes_: the university is the fountain, and that and the like private colleges are _tanquam rivuli_, which flow from the mountain, _et melius est petere fontes quam sectari rivulos_. Briefly, _Academiæ [122]Cantabrigiæ & Oxoniæ sunt Athenæ nostræ nobilissimæ, regni soles, oculi & animæ regni, unde religio, humanitas, et doctrina in omnes regni partes uberrimè diffunduntur_: but it is true, _nunquam sufficiet copia laudatoris, quia nunquam deficiet materia laudis_; and therefore these universities exceed and excel all private colleges, _quantum inter virburna cupressus_. And it was observed that K. H. 8. in his said letters patent and the K. and the Parliam. in the act of 14 H. 8. in making of a law concern. physicians, for the more safety and health of men, therein follow the order of a good physician (_Rex [123]enim omn’ artes censetur habere in scrinio pect’ sui_) for, _medicina est duplex, removens, [124]& promovens; removens morbum, & promovens ad salutem_: and therefore five manner of persons (who more hurt the body of man than the disease itself, one of which said of one of their patients, _fugiens morbum incidit in medicum_) are to be removed; 1. _Improbi._ 2. _Avari, qui medicinam magis [125]avaritiæ suæ causa quam ullius bonæ conscientiæ fiducia profitentur._ 3. _Malitiosi._ 4. _Temerarii._ 5. _Inscii._ And of the other part five manner of persons were to be promoted, as appears by the said act, _sc._ those who were, 1. profound. 2. sad. 3. discreet. 4. groundly learned. 5. profoundly studied. And it was well ordained, that the professors of physic should be profound, sad, discreet, &c. and not youths, who have no gravity and experience; for as one saith, [126]_In juvene theologo conscientiæ detrimentum, in juvene legista bursæ detrimentum in juvene medico cœmiterii incrementum._ And it ought to be presumed, every doctor of any of the universities to be within the statutes, _sc._ to be profound, sad, discreet, groundly learned, and profoundly studied, for none can there be master of arts (who is a doctor of philosophy) under the study of seven years, and cannot be doctor in physic under seven years more in the study of physic; and that is the reason that the plaintiff is named in the declaration doctor of Philosophy, and doctor of physic; _quia oportet medicum esse philosophum, [127]ubi enim philosophus desinit, medicus incipit_: as to the two points upon which the Chief Justice, Warburton and Daniel, gave judgment. 1. It was resolved by them, that the said censors had not power to commit the plaintiff for any of the causes mentioned in the bar; and the cause and reason thereof shortly was, that the said clause, which gives power to the said censors to fine and imprison, doth not extend to the said clause, _sc. quod nemo in dictâ civitate_, &c. _exerceat dictam facultatem, &c._ which prohibits every one from practising physic in London, &c. without licence from the president and college; but extends only to punish those who practise physic in London, _pro delictis suis in non bene [128]exequendo, faciendo & utendo facultate medicinæ_, by fine and imprisonment: so that the censors have not power by the letters patent, and the act, to fine and imprison any for practising physic in London, but only _pro delictis suis in non bene exequendo, &c. sc._ for ill, and not good use and practice of physic. And that was made manifest by five reasons, which were called _vividæ rationes_, because they had their vigour and life from the letters patent, and the act itself; and the best [129]expositor of all letters patent, and acts of Parliament, are the letters patent and the acts of Parliament themselves, by construction, and conferring [130]all the parts of them together, [131]_Optima statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum statutum_; and [132]_injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere_. The first reason was, that these two were two absolute, perfect, and distinct clauses, and as parallels, and therefore the one did not extend to the other; for the second begins, _præterea voluit et concessit, &c._ and the branch concerning fine and imprisonment is parcel of the 2d clause. 2. The first clause prohibiting the practice of physic, &c. comprehends four certainties: 1. Certainty of the thing prohibited, _sc._ practice of physic. 2. Certainty of the time, _sc._ practice for one month. 3. Certainty of penalty, _sc._ 5l. 4. Certainty in distribution, _sc._ one moiety to the King, and the other moiety to the college, and this penalty he who practises physic in London incurs, although he practises and uses physic well, and profitable for the body of man; and on this branch the information was exhibited in the King’s Bench. But the clause to punish _delicta in non bene exequendo, &c._ on which branch the case at bar stands, is altogether uncertain, for the hurt which may come thereby may be little or great, _leve vel grave_, excessive or small, &c. and therefore the King and the makers of the act could not, for an offence so uncertain, impose a certainty of the fine, or time of imprisonment, but leave it to the censors to punish such offences, _secundum quantitatem delicti_, which is included in these words, _per fines, amerciamenta, imprisonamenta corporum suorum, et per alias vias rationibiles et congruas_. 2. The harm which accrues by _non bene exequendo, &c._ concerns the body of man; and therefore it is reasonable that the offender should be punished in his body, sc. by imprisonment; but he who practises physic in London in a good manner, although he doth it without licence, yet it is not any prejudice to the body of man. 3. He who practises physic in Lon. doth not offend the statute by his practice, unless he practises it by the space of a month. But the clause of _non bene exequendo, &c._ doth not prescribe any certain time, but at what time soever he ministers physic _non bene, &c._ he shall be punished by the said second branch: and the law hath great reason in making this distinction, for divers nobles, [133]gentlemen, and others, come upon divers occasions to London, and when they are here they become subject to diseases, and thereupon they send for their physicians in the country, who know their bodies, and the cause of their diseases; now it was never the meaning of the act to bar any one of his own physician; and when he is here he may practise and minister to another by two or [134]three weeks, &c. without any forfeiture; for any one who practises physic _bene, &c._ in London (although he has not taken any degree in any of the universities) shall forfeit nothing, unless he practises it by the space of a month; and that was the reason that the time of a month was put in the act. 4. The censors cannot be [135]judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfeiture, _quia [136]aliquis non debet esse Judex in propriâ causâ, imo iniquum est aliquem suæ rei esse judicem_; and one cannot be judge and attorney for any of the parties, Dyer 3 E. 6. 65. 38 E. 3. 15. 8 H. 6. 19. b. 20. a. 21 E. 4. 47. a. &c. And it appears in our books, that in many cases, the common law will [137]controul acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void: and therefore in 8 E. 3. 30. a. b. Thomas Tregor’s case on the statute of W. 2. c. 38. & _artic’ super chartas_, c. 9. Herle [138]saith, some statutes are made against law and right, which those who made them perceiving, would not put them in execution: the stat. of W. 2. [139]c. 21 gives a writ of _Cessavit hæredi petenti super hæredem tenent’ & super eos quibus alienatum fuerit hujusmodi tenementum_: and yet it is adjudged in 33 E. 3. [140]_Cessavit_ 42. where the case was, two coparceners lords, and tenant by fealty and certain rent, one coparcener had issue and died, the aunt and the niece shall not join in a _Cessavit_, because the heir [141]shall not have a _Cessavit_ for the cesser in the time of his ancestor, F. N. B. 209. F. and therewith agrees Plow. Com. 110. a. and the reason is, because in a _Cessavit_ the tenant before judgment may render the arrearages and damages, &c. and retain his land, and that he cannot do when the heir brings a _Cessavit_ for the cesser in the time of his ancestor, for the arrearages incurred in the life of the ancestor do not belong to the heir: and because it would be against common right and reason, the common law adjudges the said act of Parliament as to that point void. The statute of [142]Carlisle, made _anno_ 35 E. 1. enacts, that the order of the Cistercians and Augustines, who have a convent and common seal, that the common seal shall be in the keeping of the Prior, who is under the Abbot, and four others of the most grave of the house, and that any deed sealed with the common seal, which is not so in keeping shall be void: and the opinion of the court (_in an._ 27 H. 6. Annuity 41.) was, that this statute was [143]void, for it is impertinent to be observed, for the seal being in their keeping, the Abbot cannot seal any thing with it, and when it is in the Abbot’s hands, it is out of their keeping _ipso facto_; and if the statute should be [144]observed, every common seal shall be defeated upon a simple surmise, which cannot be tried. Note reader the words of the said statute at Carlisle, _anno_ 35 E. 1. (which is called _Statutum religiosorum_) are, _Et insuper ordinavit dominus Rex & statuit, quod Abbates Cisterc’ & Præmonstraten’ ordin’ religiosorum, &c. de cætero habeant sigillum commune, et illud in custodia Prioris monasterii seu domus, et quatuor de dignioribus et discretioribus ejusdem loci conventus sub privato sigillo Abbatis ipsius loci custod’ depo, &c. Et si forsan aliqua scripta obligationum, donationum, emptionum, venditionum, alienationum, seu aliorum quorumcunque, contractuum alio sigillo quam tali sigillo, communi sicut præmittit’ custodit inveniant’ a modo sigillat’, pro nullo penitus habeantur omnique careant firmitate._ So the statute of 1 E. 6. c. 14. gives chauntries, &c. to the King, saving to the donor, &c. all such rents, services, &c. and the common law controuls it, and adjudges it void as to services, and the donor shall have the rent, as a rentseck, distrainable of common right, for it would be against common right and reason that the [145]King should hold of any, or do service to any of his subjects, 14 Eliz. Dyer 313. and so it was adjudged Mich. 16 & 17 Eliz. in _Com’ Banco_ in [146]Strowd’s case. So if any act of Parliament gives to any to hold, or to have conusans of all manner of pleas arising before him within his manor of D. yet he shall hold no plea, to which he himself is party; for, as hath been said, _iniquum est aliquem suæ rei esse judicem_. 5. If he should forfeit 5l. for one moiety by the first clause, and should be punished for practising at any time by the second clause, two absurdities should follow, 1. That one should be punished not only twice but many times for one and the same offence. And the divine saith, _Quod [147]Deus non agit bis in idipsum_; and the law saith, _Nemo debet bis puniri pro uno delicto_. 2. It would be absurd, by the first clause, to punish practising for a month, and not for a lesser time, and by the second to punish practising not only for a day, but at any time, so he shall be punished by the first branch for one month by the forfeit of 5l. and by the second by fine and imprisonment, without limitation for every time of the month in which he practises physic. [148]And all these reasons were proved by two grounds, or maxims in law; 1. [149]_Generalis clausula non porrigitur ad ea quæ specialiter sunt comprehensa_: and the case between Carter and [150]Ringstead, Hil. 34 Eliz. Rot. 120. _in Communi Banco_, was cited to this purpose, where the case in effect was, that A. seized of the manor of Staple in Odiham in the county of Southampton in fee, and also of other lands in Odiham aforesaid in fee, suffered a common recovery of all and declared the use by indenture, that the recoverer should stand seised 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 seised to the use of him, and to the heirs of his body, and died, and the wife survived, and entered into the said manor by force of the said general words; but it was adjudged, that they did not extend to the said manor which was specially named: and if it be so in a deed, _a 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. [151]_Verba posteriora propter certitudinem addita ad priora quæ certitudine indigent sunt referenda._ 6 E. [152]3. 12. a. b. Sir Adam de Clydrow Knight, brought a _Præcipe quod reddat_ against John de Clydrow, and the writ was, _Quod juste, &c. reddat manerium de Wicomb et duas carucatas terræ cum pertinentiis in Clydrow_, in that case the town of Clydrow shall not relate to the manor, _quia non indiget_, for a manor may be demanded without mentioning that it lies in any town, but _cum pertinentiis_, although it comes after the town, shall relate to the manor, _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 et scrutinium, correctionem et gubernationem omnium et singulorum medicorum, &c._ they had power to fine and imprison. To that it was answered, 1. That _that_ is but part of the sentence, for by the entire sentence it appears in what manner they shall have power to punish, for the words are, _ac punitionem eorum pro delictis suis in non bene exequendo, faciendo, vel utendo illa facultate_; so that without question all their power to correct and punish the physicians by this clause is only limited to these three cases, _sc. in non bene exequendo, faciendo, vel utendo, &c._ Also this word _punitionem_, is limited and restrained by these words, _ita quod punitio eorundem medicorum, &c. sic in præmissis delinquentium, &c._ which words, _sic in præmissis delinquentium_, limit the former words in the first part of this sentence, _ac punitionem eorum pro delictis suis in non bene exequendo, &c._ 2. it would be absurd, that in one and the same sentence the makers of the act should give them a general power to punish without limitation; and a special manner how they shall punish, in one and the same sentence. 3dly, Hil. 38 Eliz. in a _Quo warranto_ against the Mayor and Commonalty of London, it was held, that where a grant is made to the Mayor and Commonalty, that the Mayor for the time being should have [153]_plenum et integrum scrutinium, gubernationem, et correctionem omnium et singulorum mysteriorum, &c._ without granting them any court, in which should be legal proceedings, that it is good for search, whereby a 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 pleasure. 2. It was objected, that it is incident to every court created by letters patent, or act of Parliament, and other courts of record, to punish any misdemeanor done in court, in disturbance or contempt of the court, by imprisonment. To which it was answered, that neither the letters patent nor the act of Parliament has granted them any court, but only an [154]authority, which they ought to pursue, as it shall be afterwards said. 2. If any court had been granted them, they could not by any incident authority _implicitè_ granted them, for any misdemeanor done in court, commit him to prison without bail or mainprize, until he should 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 any court might imprison him, for he only shewed his case to them, which, he was advised by his counsel, he might justify, which is not any offence worthy of imprisonment. The second point was, admitting that the censors had power by the act, if they had pursued their authority, or not? And it was resolved by the Chief Justice, Warburton and Daniel, that they had not pursued it for six reasons. 1. By the act, the censors only have power to impose a fine, or amerciament; and the president and censors imposed the amerciament of 5l. upon the plaintiff. 2. The plaintiff was summoned to appear _coram presidente et censoribus, &c. et non comparuit_, and therefore he was fined 10l. whereas the president had no authority in that case. 3. The fines or amerciaments to be imposed by them, by force of the act, do not belong to them, but to the King, for the King had not granted the fines or amerciaments 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 statute of W. 2. cap. 11 [155]_De servientibus, ballivis, &. qui ad compotum reddend’ tenentur, &c. cum dom’ hujusmodi servientium dederit eis auditores compoti, et contingat ipsos in arrearagiis super compotum suum omnibus allocatis et allocandis, arrestentur corpora eorum, et per testimonium auditorum ejusdem compoti mittantur et liberentur proximæ gaolæ domini Regis in partibus illis, etc._ In that case, although no time be limited when the accomptant shall be imprisoned, yet it ought to be done [156]presently, as it is held in 27 H. 6. 8. a. and the reason thereof is given in Fogassa’s case, Plowd. Com. 17. b. that the generality of the time shall be restrained to the present time, for the benefit of him upon whom the pain shall be inflicted, and therewith agrees Plow. Com. 206. b. in Stradling’s case. And a Justice [157]of Peace upon view of the force, ought to commit the offender presently. 5. Forasmuch as the censors had their authority by the letters patent and act of Parliament, which are high matters of record, their proceedings ought not to be by parol, _& eo potius_, because they claim authority to fine and imprison, and therefore, if judgment be given against one in the Common Pleas in a writ of [158]recaption, he shall be fined and imprisoned, but if the writ be vicontiel in the county, there he shall not be fined nor imprisoned, because a writ of the court is not of record, F. N. B. in Recaption; so in F. N. B. 47. a. a plea of trespass _vi et armis_ doth not lie in the county court, hundred court, &c. for they cannot make a record of fine and imprisonment; and regularly they who cannot make [159]a record, cannot fine and imprison. And therewith agrees 27 H. 6. 8. Book of Entries, tit. Account, fol. —. The auditors make a record when they commit the defendant to prison; a Justice of Peace upon view of the force may commit, but he ought to make a record of it. 6. Forasmuch as the act of 14 H. 8. has given power to imprison till he shall be delivered by the president and the censors, or their successors, reason requires that it should be taken strictly, for the liberty of the subject (as they pretend) is at their pleasure: and this is well proved by a judgment in Parliament in this very case; for when this act of 14 H. 8. had given the censors power to imprison, yet it was taken so literally, that the gaoler was not bound to receive such as they should commit to him, and the reason thereof was, because they had authority to do it without any court: and thereupon the statute of 1 Ma. [160]cap 9. was made, that the gaoler should receive them upon a penalty, and yet none can commit any to prison, unless the gaoler receives him: but the first act, for the cause aforesaid, was taken so literally, that no necessary incident was implied. And where it was objected, that this very act of 1 _Mar._ cap. 9. has enlarged the power of the censors, and they urged it upon the words of the act; it was clearly resolved, that the said act of 1. _Mar._ 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 [161]14. H. 8. For the words of the act of Queen 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 has not done any thing which appears within this record, contrary to any article or clause contained within the grant or act of 14 H. 8. Also the gaoler who refuses shall forfeit the double value of the fines and amerciaments that any offender or disobedient shall be assessed to pay; which proves 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 that was not Bonham, as by the reasons and causes aforesaid appears. And admitting 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 judgment: and the difference is, when the plaintiff [162]replies, and by his replication it appears that he has no cause of action, there he shall never have judgment: but when the [163]bar is sufficient in matter, or amounts (as the case is) to a confession of the point of the action, and the plaintiff replies, and shews the truth of the matter to enforce his case, and in judgment of law it is not material, yet the plaintiff shall have judgment, for it is true that sometimes the declaration shall be made good by the bar, and sometimes the bar by the replication, and sometimes the replication by the rejoinder, &c. but the difference is, when the declaration wants time, place, or other [164]circumstance, it may be made good by the bar, so of the bar, replication, &c. as appears in 18 E. 4. 16. b. But when the declaration wants substance, no bar can make it good; so of the bar, replication, &c. and therewith agrees 6. E. 4. 2. a good case, and _nota_ there _dictum_ Coke. _Vide_ 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 replication, sur-rejoinder, &c. and thereby it appears, that upon the [165]whole record the pl. has no cause of action, he shall never have judgment, although the bar or rejoinder, &c. 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. _Vide_ [166]Ridgeway’s case, in the Third Part of my Reports 52. b. and so these differences were resolved and adjudged between [167]Kendal and Helyer, Mich. 25 & 26 Eliz. in the K.’s Bench, and Mich. 29 & 30 Eliz. in the same court, between [168]Gallys and Burbry. And Coke Ch. Just. in the conclusion of his argument observed seven things for the better direction of the president and commonalty of the said college for the future. 1. That none can be punished for practising physic in London, but by forfeiture of 5l. by the month, which is to be recovered by the law. 2. If any practise physic there for a less time than a month, that he shall forfeit nothing. 3. If any person prohibited by the statute offends _in non bene exeq’ &c._ they may punish him according to the stat. within the month. 4. Those who they may commit to prison by the stat. ought to be commit. [169]presently. 5. The fines which they set, according to the statute, belong to the King. 6. They cannot impose a fine, or imprisonment without a record of it. 7. The cause for which they impose fine and imprisonment ought to be certain, for it is [170]traversable: for although they have letters patent, and an act of Parliament, yet because the party grieved has no other remedy, neither by writ of error, or otherwise, and they are not made Judges, nor a court given them, but have an [171]authority only to do it, the cause of their commitment is traversable in an action of false imprisonment brought against them; as upon the statute of [172]bankrupts, their warrant is under the great seal, and by act of Parliament; yet because the party grieved has no other remedy, if the commissioners do not pursue the act and their commission, he shall traverse, that he was not a bankrupt, although the commissioners affirm him to be one; as this term it was resolved in this court, in trespass between Cutt [173]and Delabarre, where the issue was, whether Will. Cheyney was a bankrupt or not, who was found by the commissioners to be a bankrupt; _a fortiori_ in the case at bar, the cause of the imprisonment is traversable; for otherwise the party grieved may be perpetually, without just cause, imprisoned by them; but the record of a force made by a Justice of Peace is not traversable, because he doth it as Judge, by the statutes of [174]15 R. 2. and 8 H. 6. and so there is a difference when one makes a record as a Judge, and when he doth a thing by special authority, (as they did in the case at bar) and not as a Judge. And afterwards, for the said two last points, judgment was given for the plaintiff, _nullo contradicente_, as to them. And I acquainted Sir Thomas Fleming, Chief Justice of the King’s Bench, with this judgment, and with the reasons and causes of it, and he well approved of the judgment which we had given: and this is the first judgment on the said branch concerning fine and imprisonment which has been given since the making of the said charter and acts of Parliament, and therefore I thought it worthy to be reported and published.
(See Carthew 492. 6 Mod. 125.)
[_For the Pleadings in this Case see 8 Co. Rep. p. 107._]
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Dr. Groenvelt vers. Dr. Burwell and others, Censors of the College of Physicians
(from 1 Comyns Rep. p. 75)
This was an action of trespass for an assault, battery, wounding and false imprisonment. The defendants as to the beating and wounding, plead not guilty, and as to the residue of the trespass they justify; for that by letters patent dated the 23 of September 10 H. 8 the king granted, that they, viz. the doctors of physick in London, should be a body and perpetual community, _per nomen præsidentis & collegii five communitat’ facultat’ medicin’ London’, &c._ and that they might make By-Laws; _& quod quatour singulis annis eligerentur qui haberent scrutinium correctionem & gubernationem omnium & singulorum dictæ civitatis medicorum & aliorum medicorum forinsecorum facultate illa utentium infra eandem civitatem & suburbia, ac infra septem milliaria in circuitu ejusdem, ac punitionem eorundem pro delictis suis in non bene exercendo, &c. per fines amerciamenta & imprisonamentum corporum suorum_; and that these letters patent were confirmed by an act of parliament of 14 H. 8. And that on the 1st of January 8 W. 3. the plaintiff exercised the art of physick in London, and that he administered bad and unwholesome physick to one woman and that the said woman and her husband complained to the defendants, being the censors of the said college; upon which complaint the plaintiff was summoned before them, and upon examination they found him guilty of administering unwholesome physick, by means of which the said woman languished; and thereupon they fined the plaintiff 20l. and made a warrant under their hands and seals to —— —— who was also a defendant, to take the plaintiff; who took him pursuant to such warrant and conveyed him to prison; which is the residue of the trespass of which the plaintiff complains. The plaintiff replies _protestando_, that there are no such letters patent, and no such act of parliament; and _protestando_, that the plaintiff did not administer such unwholesome physick; that the defendants of their own wrong committed the trespass; _absque hoc quod_, that the plaintiff was taken and committed by force of the said warrant: and to this it was demurred. And this case was divers times argued, and many exceptions were taken to the plea and to the replication; and now this term judgment was given for the defendants. And Holt C. J. delivered the opinion of the court; and said, that the rest of the Judges were agreed, that the replication of the plaintiff was ill, and that the plea of the defendants was good. The plaintiff in his replication traverses the taking by the warrant mentioned in the plea of the defendants; and this is ill both in substance and in form; for in point of form he ought not to traverse the taking by force of the warrant, but that there was not any such warrant; for if it were necessary that the arrest of the plaintiff should be by the same warrant that was mentioned before in the pleading that if the defendants had shewn in their plea another warrant than that which was shewn at the time of the arrest, the plaintiff ought not to have said, that he was not taken by this warrant but that there was not any such warrant. But the replication is not good in point of substance; for the plaintiff seems to intend, that the warrant by which he was arrested was unlawful, yet the plaintiff shall not have advantage of it, if there was another warrant which was lawful to take him at the same time; for if there are two warrants, the one lawful and the other unlawful, and the party is taken upon the illegal warrant, yet he who apprehends him may justify himself by the authority of the legal warrant; and this appears by the case Mich 34 Ed. 1 Fitz. Avowry, 232 cited 3 Co. 26. a. If a man takes a distress for a thing for which he has not good cause of distress, but had good cause of distress for another thing; if a replevin is brought, and he comes into court, he may avow for which thing he pleases. Then it was considered whether the plea of the defendants was good; to which it had been objected that it was ill for the uncertainty; for the cause of the commitment being traversable ought to be alleged with certainty. Secondly, That by the plea it appears, that the plaintiff was fined and imprisoned also; the censors (of the college of Physicians the defendants) have authority to impose a fine, and to imprison for non-payment of that fine, or they may imprison for the offence; but they cannot both fine and imprison for the same offence, as in this case; for it does not appear that the imprisonment was for non-payment of the fine but the plaintiff was both fined and imprisoned, and so was twice punished for one offence. Thirdly, the plea does not shew that the plaintiff was one of the college. Fourthly, The plea makes no answer to the assault; it does not shew that there was any assault, or set forth any justification of it. But Holt C. J. said that the Court held the plea to be good, for it goes to the whole declaration; as to the battery and wounding the defendants plead not guilty, as to the residue of the trespass they justify; and the residue of the trespass comprehends the assault, and every other part of the declaration to which the plea (of not guilty) does not extend: and there is no need that the plaintiff should be of the college; for it appears that he exercised his faculty within London and the censors have jurisdiction within London and the suburbs, and seven miles in circumference; and it appears by the words of the Charter, that the censors have power to punish by fine and imprisonment; and how they exercise that authority we do not enquire, as it will be apparent afterwards in the answer to the first objection, and which is the most material one. In answer to the first objection, then, we say, First that the cause of the commitment is not traversable. Secondly if it were traversable, it is set forth with certainty enough. That the cause of commitment is not traversable appears by the authority which the censors have by the act of parliament; for by it they are constituted judges of fact, what is a mal-administration (of medicines) and what is not: and they are judges of record for they have authority to impose fine and imprisonment; and when a new authority is constituted, with power to fine and imprison, the persons invested with such authority are judges of record; for that every thing proves a court to be a court of record, viz. the power of fining and imprisoning; for courts which are not of record can neither set a fine nor commit any one to prison. 8 Co. 38. b. And there it is proved, that the leet can impose a fine, because it is a court of record; and forasmuch as the statute W. 2. c. 11 impowers the auditors to commit the accountant to prison the auditors are thereby made judges of record; as is observed 10 Co. 103. a. 2. Inst. 218. Then the censors being constituted judges of the matter, that which they have done as such they shall not be answerable for; and that a judge shall not be answerable for an act done by him as a judge, appears by 12 Co. 24. and the cases there cited. True it is, that if a justice of(_a_) peace issue his warrant to imprison the party, or to arrest him until such time as he can be brought before him, or if the commissioners of bankrupts commit a witness for refusing to be examined(_a_) it may be determined in an action, whether they have pursued their authority or not; for their act in this respect is only ministerial;(_b_) and the commitment is not intended as a punishment, but only as a mesne process to bring the party to justice, or to make him do his duty. My Lord Coke, it is true, says in Dr. Bonham’s case, 8 Co. 121 a. that the cause of commitment was traversable; but this opinion was there given obiter, and was not essential to the case in judgment; for there the question was, for practising without the licence of the college, for which the party could not be imprisoned; and Dr. Bonham being a graduate in the university, my Lord Coke was carried away by his affection to his Alma Mater so far as to make a resolution in the present point, which was not in the case before him: but my Lord Coke says, that upon a conviction by the censors, they ought to make a record of it, which admits they are judges of record; and then by his own rule there in the case of a justice of peace who made a conviction of a force, and the cases in his other works, their acts (the acts of the justices of the peace) cannot be traversed; and my Lord Coke does not cite any authority in support of his opinion (as to the point now before us). The reason which he gives why the party has no remedy by writ of error or otherwise is of no weight: I grant that a writ of error lies not; for the censors having a new authority by a special act of parliament and their proceedings being directed to be in a summary way there is no need for them to pursue the forms and methods of others courts; and it is sufficient for them to make such summary proceeding as justices of the peace in many cases may do; yet the party is not without remedy for he may have a Certiorari to remove the record of conviction, and then it may be examined and reviewed, to see whether it be pursuant to their authority; for in every case where a new jurisdiction is set up for a special purpose this court by virtue of its original power may award a Mandamus to make them put their authority in execution, and a Certiorari to look into their proceeding whether it be conformable to their authority or not. Thus a Certiorari lies to remove an indictment for felony before the justices of the peace (bro. Eliz. 489. Long’s case) to remove orders before commissioners of sewers, or by justices of the peace who have authority to make conviction of a force in their presence, or for deer-stealing, but although no Certiorari did lie (in the present case) it is not consequential that the cause of their commitment is traversable; for if the parliament intrusts them with a power so great that no act of theirs shall be reversed or reviewed, there is the less reason that their proceeding should be examined or traversed in an action; a jury is not finable for giving a verdict against evidence; and though there are many cases where jurymen have been fined (1) yet Bushel’s case, in which all the others are cited, is sufficient to controul all the rest. Vauq. 135 (a) and if a juror shall not be fined or imprisoned or otherwise punished for refusing to find a man guilty upon apparent and plain evidence, much less shall a judge be liable to censure. In the case (b) of Hammond and Powell, P. 29 Car. 2 an action for false-imprisonment was brought after the resolution in Bushel’s case for his imprisonment (for Hammond was one of the same jury with Bushel and fined 40l. and imprisoned for it at the same time,) and notwithstanding that the fine and imprisonment were illegal yet it was adjudged that the action did not lie for false-imprisonment against the judge or the officer; so a fine imposed by a judge of a court is not traversable as an amercement is. 7 H. 6. 13. a. As to the case between Terry and Huntington Hard. 480 which may be objected; that is good law; for there an action was brought against the commissioners of excise, who had charged a man for the duty upon strong waters, where the liquor made by him was low wine of the first extraction, and the action well lay, for they had exceeded their jurisdiction; for low wines of the first extraction were not chargeable within the act of parliament; and if they had charged a duty upon a liquor not chargeable with it, they were not to be excused for having named it strong waters. If a justice of the peace commits a man for being the Father of a bastard child no action lies against the justice if the man was the father of a bastard otherwise if he had no bastard at all. So the case between Nickols and Walker, Cro. Car. 394, (_a_) is good law, for there an inhabitant of Tottridge was charged to the poor of Hatfield; and the justices of the peace have power to award a distress, where a person is assessed to the poor of the parish where he hath land or is an inhabitant; but where he is charged to the relief of another parish there the case is beyond their jurisdiction. But if the cause of the commitment were traversable yet the plea of the defendants here is good, for it shews with certainty in what the ill-administration of the physic consisted viz in the use of unwholesome drugs: and although it is not said what drugs he used, it is no matter, for how shall we be informed whether he has shewn them. In an action against a surgeon for an inartificial cure the plaintiff does not shew what plaisters the defendant used. As to what hath been said that the plea does not shew for what malady the medicines were given; it was answered that it would be so much the worse if the medicines were given when the party had not any malady at all. And although it is not said that the witnesses upon whose testimony the fine was imposed were upon oath, yet the plea is sufficient; for it may be that it was not necessary that they should be sworn or if it were needful the omission of it is not such as will make their proceedings void. In such a special jurisdiction in which the proceeding is to be in a summary manner it is not needful to observe all the circumstances which are necessary in other legal proceedings.—Judgment for the defendants.
The College of Physicians versus Dr. West.
(from 10 Mod. 358.)
The Question was, whether a Man, that had taken his Degree of Doctor of Physick, in either of the Universities, might not practise in London, and within seven miles of the same, without a Licence from the College of Physicians.
The Court clear of Opinion, that a Licence from the College was necessary; and that by reason of the Charter of Incorporation, confirmed by 14 & 15 Hen. 8. cap. 5. penn’d in very strong and negative words.
As to the Testimonials granted by the Universities upon a Person’s taking the Doctors Degree; the Court was of Opinion, That these Testimonials might have the Nature of a Recommendation; they might give a Man a fair Reputation, but conferr’d no Right; and consequently all those Statutes, which have confirmed the Privileges of the Universities, could revive or confirm nothing but the Reputation, that this Testimonial might give such Graduates.
And whereas it has been insisted, That by the last Clause of the Statute, it is said, That none shall practise in the Country without a licence from the President and three Elects, unless he be a Graduate of one of the Universities, it was said all the inference from that would be, That possibly two Licences may be necessary where a person is not a Graduate.
In the Case of Dr. Levet, Lord Chief Justice Holt did not think this a Question worth being found specially.
The College of Physicians are without doubt more competent Judges of the Qualifications of a Physician than the Universities, and there may be many good Reasons for taking a particular care of those, that practise Physick in London.
_William Rose_, Plaintiff } in _The College of Physicians, London_, Defendants } Error
_15^{th} March, 1703._
In the 10^{th} year of _Hen._ 8. the defendants were incorporated; and, in the letters patent granted for that purpose, which were confirmed by stat. 14 and 15 _Hen._ 8. _c._ 5. is, _inter alia_, the following clause: “_Concessimus, etiam eisdem præsidenti et collegio, seu communitati, et successoribus suis, quod nemo in dicta civitate, aut per septem milliaria in circuitu ejusdem, exerceat dictum facultatem, nisi ad hoc perdict, præsidentem et communitatem, seu successores eorum qui pro tempore fuerint, admissus sit per ejudem præsidents et collegii literas sigillo suo communi sigillatas, sub pœna centum solidorum pro quolibet mense, quo non admissus eandem facultatem exercit, dimidium inde nobis et hæred. nostris, et dimidium dicto præsidenti et coll. applicandum._”
The plaintiff, who was an apothecary, and freeman of _London_, attended one _Seale_, a butcher, in the parish of _Saint Martin in the Fields_, and made up and administered proper medicines to him; but, without any licence from the faculty, and also without the direction of any physician, and without taking or demanding any fee for his advice.
The defendants apprehending this conduct to be an infringement of their privileges, brought their action against the plaintiff, to recover the penalty of 5_l._ _per_ month, under the above clause in their charter; and, on the trial, the jury found a special verdict, stating the charter, the confirmatory statute, and the facts of the case; and submitted to the Court, whether the defendant _Rose_ did practice physic, within the intent of the letters patent and act of Parliament.—And, after this verdict had been three several times argued in the Court of Queen’s Bench, the Judges were unanimously of opinion, that _the facts found did amount to the practising physic, within the meaning of the act of Parliament_; and gave judgment accordingly.
Hereupon, a writ of error in Parliament, was brought to reverse this judgment; and on behalf of the Plaintiff in error, it was argued, that the consequences of it would not only ruin him, but all other apothecaries; as, in case of the affirmance of this judgment, they could not exercise their profession, without the licence of a physician. That the constant usage and practice, which had always been with the apothecary, was conceived to be the best expounder of this charter; and, that therefore, the selling a few lozenges, or a small electuary, to any person asking a remedy for a cold, or in other ordinary or common cases, where the medicines had a known and certain effect, could not be deemed unlawful; or practising as a physician, when no fee was taken or demanded for the same. That the physicians by straining an act made so long ago, endeavoured to monopolize all manner of physic solely to themselves; and if they should succeed in this attempt, it would be attended with many mischievous consequences: For, in the first place, it would be laying a heavy tax on the nobility and gentry, who, in the slightest cases, and even for their common servants, could not have any kind of medicine, without consulting and giving a fee, to a member of the college: It would also be a great oppression upon poor families, who, not being able to bear the charge of a fee, would be deprived of all kind of assistance in their necessities: And, it would prove extremely prejudicial to all sick persons, who, in case of sudden accidents, or new symptoms, happening in the night-time, generally send for the apothecary; but who should not dare to apply the least remedy, without running the hazard of being ruined.
On the other side, it was contended, that by several orders of the college, its members were enjoined to give their advice to the poor _gratis_; and that not only to such as could come to them for it; but every physician, in his neighbourhood, was obliged to visit the sick poor, at their own lodgings; and therefore the objection, that, if the apothecaries could not administer physic but by the prescript of a physician, the poorer sort of people would be lost for want of proper remedies, had not the least foundation. And, when these orders were observed not to have their full intended effect, on account of the high prices which the apothecaries generally demanded for the remedies prescribed, whereby the poor were deterred from consulting the physician, for fear of the charge of the physic; the college, by a joint stock, erected several dispensaries in town, where, after the physicians had given their advice _gratis_, the patients might have the physic prescribed, for a third, and generally less, of what the apothecaries used to exact for it; by which expedient, many hundred persons of mean condition, received their cures at a very small expense, and without one farthing profit arising to the physicians. That in cases of sudden and immediate necessity, not only apothecaries, but any other person, might do his best to relieve his neighbour, without incurring the penalty of the law; but there was no reason why the apothecaries, under that pretence, should be permitted to undertake, at leisure, all dangerous diseases; and especially where, as in this city at least, a skilful physician may be as soon had as an apothecary. That, in common or trifling indispositions, the patients themselves were generally their own physicians; and would of course, send for any medicine, of which there had been common experience, for their cure, and which the apothecary might lawfully make up and sell; but, for the apothecary to be permitted to judge of diseases in their beginning, whether slight or not, and to order medicines for the same, would prove both dangerous, and more chargeable. _Dangerous_, because the most malignant distempers usually begin with apparently inconsiderable symptoms, and are many days before they appear in their proper colours; and, as apothecaries are not bred to have suitable skill, the management thereof ought not to be left to their judgment. And _more chargeable_, because, be the disease ever so slight, the apothecary will be sure to prescribe largely enough; and should he chance to mistake, then that distemper, which, by the discreet advice of a physician, might, by one proper medicine, have been eradicated at the beginning, runs out into great length, to the extreme hazard and great expense of the patient.
BUT, after hearing counsel on this writ of error, it was ORDERED and ADJUDGED, that the judgment given in the Queen’s Bench, for the President and College, or Commonalty of the faculty of Physic, _London_, against the said _Wm. Rose_, should be reversed.
(From 1 Brown Par. Ca. p. 78.)
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The King _against_ the President and College of Physicians.
(From 7 Term Rep. p. 282)
This was a rule calling on the president and College or commonalty of physic in _London_ to shew cause why a mandamus should not issue, commanding them to examine C. Stanger, M.D. as to his qualification and fitness to be admitted into the said Corporation as a member or fellow thereof.
* * * * *
Doctor Stanger, after referring to the above statutes (3 Hen. 8: 14 & 15 Hen. 8) and Charter, stated in his affidavit that in 1783 he took a degree of doctor of physic at _Edinburgh_ after a residence there for three years, and after having studied physic there and at other places for many years; that afterwards he went abroad to _France_, _Italy_, and _Germany_, and studied physic there for several years more. That in 1789 he obtained a licence from the college of physicians here in the usual way to practise in _London_ and within seven miles thereof, and that he has practised ever since. That in _June_ 1796 he applied to the president and college at their general meeting to be admitted by them to be a member of their corporation, submitting himself to be previously examined by them concerning his qualification and fitness to be admitted a member of the corporation, which the college refused. Dr. _Stanger_ also added in his affidavit that he was duly qualified and fit to be admitted a member of the college.
The affidavits in answer to the rule disclosed the following (among other) facts. For two hundred years past there have been three classes of persons practising physic in _London_ and seven miles round; the fellows; candidates, persons desirous of becoming members and who have been examined and approved by the president and censors to be candidates for election into the society or fellowship; and the licentiates, who may practise as fully in all respects as fellows and have the same benefits and advantages. Various bye-laws have been made by the college respecting the qualifications of persons to be admitted fellows, one of them so long ago as 1637, by which it was ordained that no person should be admitted a fellow unless he had performed all his exercises and disputations in one of our universities without dispensation, and which has continued ever since with some little alterations. To prevent any mistakes arising from the words “_aliquâ Britanniæ Academiâ_” in some of the bye-laws respecting this qualification, an explanatory bye-law was made in 1751, in which it was declared that the meaning of the words was that no person should be admitted who was not a Doctor of Physic of _Oxford_ or _Cambridge_. The bye-laws of the college have been revised and altered since the year 1768. By those now in existence no person can be admitted a fellow unless he has been a candidate for a year, except in certain cases hereafter mentioned. No person can be admitted into the class of candidates unless he has been created a Doctor of Physic in the university of _Oxford_ or _Cambridge_, or unless he has obtained the same degree in the university of _Dublin_ and has been incorporated into one of the universities of _Oxford_ or _Cambridge_; nor can any such person be admitted into the class of candidates until after he has been examined as to his knowledge of physic in three of the greater or lesser meetings (called the _comitia majora_ and _comitia minora_) of the college. After a person has been a candidate for a year, he may be proposed by the president at one of the greater meetings and admitted a fellow, if the majority of fellows consent, without further examination. But by two other bye-laws persons not having the above qualifications may be proposed in one of two ways; by one, the president is enabled once in every other year at the _comitia minora_ to propose one licentiate of ten years standing, who may (if the major part of the _comitia minora_ consent) be proposed by the president at the next _comitia majora_ to be elected a fellow, and if the majority of fellows then present consent, he may then be admitted a fellow. By the other, any one of the fellows may propose any licentiate, of seven years standing and of the age of 36, in the _comitia majora_ to be examined; if the major part of the fellows consent, such licentiate may be examined by the president or vice-president and censors, and if approved by the major part of the fellows then present, he may be proposed at the next _comitia majora_ to be a fellow, and admitted if the majority of the fellows then present consent. The ordinary greater meetings (_comitia majora_) are holden four times a year, and consist of the president or vice-president and ten fellows at the least. The ordinary lesser meetings (_comitia minora_) consisting of the president or vice-president registar and censors of the college, are holden once a month. A letter was also inserted in the affidavits written by King _Charles_ the Second to the college not to admit any person who had not had his education in either of our universities of _Oxford_ or _Cambridge_: but it was admitted in the argument that no notice could legally be taken of this letter. It was also stated in the affidavits that Dr. _Stanger_, when he was licensed; gave his faith or promise to the college that he would observe the statutes of the college &c. in the usual mode.
_Adair Serjt. Law_, _Chambre_, and _Christian_, argued in support of the rule; and
_Erskine_, _Gibbs_, _Dampier_, and _Warren_, against it.
The case was argued very much at length on three several days: but it is unnecessary to give a detail of the arguments, as the Court in giving their opinions went into them. The points insisted upon by the counsel in support of the rule were these; 1st. That under the general words of the charter “_omnes homines ejusdem facultatis_” &c. Dr. _Stanger_, who came within that description by his license, had an inchoate right, which authorised him to tender himself to the college for examination in order that he might be admitted, if on examination the president and college thought him qualified; though they admitted that the president and college were the sole judges of his fitness. And they referred to the several dicta of Lord _Mansfield_ and _Aston_ J. in _R._ v. Dr. _Askew_ and others, 4 _Burr._ 2169; 2202; 2193; 2202. Secondly, That the bye-laws requiring an education at either of our universities or at _Dublin_ were illegal and void, on grounds of public policy, and also on the ground that they superadded a qualification not required by the Charter, 4 _Burr._ 2198, 9; 2203, 4; and that it narrowed the number of the eligible; _R._ v. _Spencer_, 3 _Burr._ 1827; and _R._ v. _Cutbush_, 4 _Burr._ 2204.
On the other hand it was insisted, 1st. That Dr. _Stanger_ had no _right_ to be examined in order to be a fellow, either as a licentiate, Dr. _Archer_’s case, 4 _Burr._ 2203; or as coming within the description “_omnes homines ejusdem facultatis_” &c.; but that the election into that body was a mere matter of grant or favor, for that the charter evidently marked out two descriptions of persons, the members of the college (the fellows) and all those who practised physic in _London_ or within seven miles thereof, that the former were to superintend the latter; and that if the latter had also a right to be admitted fellows the distinction between the governors and the governed would be destroyed, and the very object of the charter and act of parliament, in giving to the fellows the superintendance of the others practising physic in and about _London_, would be defeated;—observing that the usage for a long period was in favour of this construction. 2dly, That Dr. _Stanger_, by giving his faith when he received his licence in 1789, was estopped to object to the bye-laws. But this point was abandoned in the course of the argument; it being considered that he was only bound to observe the bye-laws of the college that were not illegal. 3dly, That the bye-laws were neither against sound policy or law; and instances were alluded to of degrees taken in either of our universities giving privileges to the persons taking them in the other professions. And the counsel observed that the not having taken a degree in one of our universities was not an absolute bar to any person becoming a fellow of the college, there being two modes by which he might gain admission without that qualification.
Lord KENYON, Ch. J. If in deciding this question it were necessary for us to answer all the arguments that have been urged at the bar, I should have desired further time to consider of the subject; but as the grounds on which I am warranted to determine the case lie in a very narrow compass, and I have formed my opinion upon it, I wish to put the question at rest now. By what fatality it has happened that almost ever since this charter was granted this learned body have been in a state of litigation I know not; and I cannot but lament that the learned Judges in deciding the cases reported in _Burrow_ did not confine themselves to the points immediately before them, and dropped hints that perhaps have invited litigation; though indeed I cannot see what these parties are contending for that is worth the expense and anxiety attending this litigation. The public already have the benefit of the assistance of the licentiates; and their emoluments, the fair fruits of their education and advice, are just the same as those that the fellows of the college receive. We have however been pressed with the authority of those who have preceded us here: no person can have a greater veneration for those characters than I have, and if this point had been decided by them, I should have thought myself bound by their decision. But the cases are unlike. The principal ground on which it was said in 4 _Burr._ 2199. that the bye-laws of the college were bad was, that “they interfered with their exercising their own judgment, and prevented them from receiving into their body persons known or thought by them to be really fit and qualified;” and if I had found that objection existed in this case, I should have thought it fatal: but in the very sentence in which Lord _Mansfield_ expressed himself as above, he added “such of them indeed as only require a proper education and a sufficient degree of skill and qualification may be still retained.” Two universities have been founded in this country, amply endowed and furnished with professors in the different sciences; and I should be sorry that those who have been educated at either of them should undervalue the benefits of such an education.
In this case it is admitted that a licentiate does not _de facto_ become a fellow of the college: it is admitted that he must be first examined, and that those who are called the College of Physicians are to judge of his fitness. It seems that the appeal here is rather made _ad verecundiam_, and that Dr. _Stanger_ could not be rejected if he were examined. If the college are not judges of the fitness of the person examined, I do not know who is. Then is this a reasonable test of the fitness of the party? possibly they might have framed a better, though I do not say that they could; but the question here is whether this is a reasonable bye-law? According to the concurrent opinions of all mankind it is. The Legislature have considered that persons who have taken their degrees in our universities are entitled to certain privileges in the church. So if we look into our own profession, those who have been educated at our universities have particular privileges; and though the inns of court are not corporations, yet their regulations shew that this has been considered as reasonable. It is not that a person becomes qualified from keeping his commons within the walls of the inns of court or the universities, but living with those of the profession will probably advance him in the knowledge of that profession for which he is a candidate. Again in the civil law; however competent any particular individual may be from extraordinary endowments or the exertion of superior talents, he must first take his degrees at one of our universities, and afterwards continue a year in a state of probation before he can practise. Those regulations that are adapted to the common race of men are the best: it does not follow that all institutions calculated for the ordinary classes are to be prostrated merely because they stand in the way of some few individuals of superior talents. Then the question is whether this is a reasonable bye-law that requires a degree to be taken at one of our universities, which in general is supposed to be conferred as a reward for talents and learning. If indeed this had been a _sine qua non_, and it had operated as a total exclusion of every other mode of gaining access to the college, it would have been a bad bye-law: but these bye-laws point out other modes of gaining admission into the college. If Dr. _Stanger_ has all those requisites that qualify a person for that high station, any one of the fellows may now propose him; he may apply to the honourable feelings of the college, to the very same tribunal to which this mandamus (if it were granted) would refer him; for in all events he must submit to their examination and determination. In the profession of the church, we find that the bishops insist on having a testimonial of the person to be ordained signed by a certain number of clergymen; and though the bishops themselves may have the power of judging of the fitness of the person to be ordained it was never doubted but that this was one reasonable test of fitness, even before examination: it is a test to regulate their own conduct. So here I think this is a reasonable test. Therefore on this short ground, without entering into any of the other topics that have been argued, I am of opinion that these are good and reasonable bye-laws, and that we are bound to refuse the writ.
ASHHURST, J. Though this matter has taken a considerable time in the argument, it is now reduced to a narrow compass. The counsel who have argued for the issuing of the mandamus do not contend that a licentiate, as such, does _ipso facto_ become a member or a fellow of the college: they only say that any man who is fit in learning and morals has a right to offer himself for examination, without any superadded qualification; and therefore that the bye-law requiring “that every licentiate, in order to entitle him to offer himself for examination, shall be a doctor of one of the two universities in _England_ or that of _Dublin_,” is a void bye-law. It is not denied by counsel who have argued for the rule that the corporation have the right of making bye-laws for the regulation of their own body. And Lord _Mansfield_, on whose authority they ground themselves as in their favour, said in 4 _Burr._ 2199, “that such bye-laws as only require a proper education and a sufficient degree of skill and qualification may be still retained; that there can be no objection to cautions of this sort; and the rather if it be true that there are some amongst the licentiates unfit to be received into any society.” This brings it then to the question, whether the bye-law now under discussion is or is not to be considered as a bye-law of regulation. It does appear to me that in order to ensure a proper education and a competence in a learning, there cannot be a more likely method than the having spent fourteen years in one of our learned universities, and, after having been examined by persons competent to the subject, having been admitted to a doctor’s degree. This it should seem would prevent in _limine_ the danger of that happening, which Lord _Mansfield_ complains of, namely, of persons being admitted amongst the licentiates unfit to be received into that society. Indeed the Legislature so long ago as the passing of the act of the 14 and 15 _Henry_ 8. seemed to shew their own opinion how much stress ought to be laid on such a kind of test; for there, in speaking of country physicians, the act says, “that no person shall be suffered to exercise or practise in physic through _England_ until such time as he be examined in _London_ by the president and three elects, and have from them letters testimonial of their approving and examination:” but then the act goes on with this exception (viz.) “unless he be a graduate of _Oxford_ or _Cambridge_, which hath accomplished all things for his form without any grace.” This shews the opinion of the legislative body of that day; and the college might think it a very fit model for their imitation in the formation of the bye-law now under discussion, and that it would prevent them from having their time too much broken in upon by improper applications for examination. I would not be thought to infer that the gentleman now applying is in any degree deficient either in learning or education: but general laws cannot give way to particular cases; and as this law has been of some standing, we must suppose it has been found to be attended with general convenience, and therefore it should be abided by. I therefore concur in the opinion that the rule for a mandamus should be discharged.
GROSE, J. This being a motion for a mandamus to a body incorporated by charter, we must see that we are authorised by the charter or the bye-laws to grant the application. On examining the charter, which was confirmed by act of parliament, we find that there was a select body of eight including the president, and an indefinite number of the commonalty. The election of the president is to be made annually by the college; so also is the election of the four censors. The intention of the crown was to put an end to the mischiefs occasioned by the ignorance of the unskilful practitioners; and for that purpose this corporation was created, with power of making bye-laws, of admitting skilful persons to practise physic, and of preventing all others practising: the great object was to admit only those to practise physic who were (to use the language of the act) “profound sad and discreet, groundedly learned and deeply studied in physic.” How or when the fellows are to be chosen or admitted is not directed by the charter: it is left to the discretion of the persons named in the charter under the general power given to them of perpetuating themselves and of making bye-laws. The charter is therefore silent both as to the election of fellows, and as to the examination of them before election: but the examination is incident to the power of election. The charter being silent on these heads, and the college having the power of making bye-laws, they have made bye-laws to ascertain a criterion of fitness of future candidates, by pointing out in some cases the mode of their education, in others the persons by whom they were to be proposed as candidates. One of these bye-laws is objected to as illegal, because it requires a degree to be taken at one of our universities, which (it is contended) is superadding a qualification to those required by the charter: but I think it is only ascertaining a criterion of fitness as has been done most properly in other professions in cases alluded to both at the bar and bench. Then it is said that a licenciate has an inchoate right: if by that Dr. _Stanger’s_ counsel mean that he has one qualification which when added to others may give him a right of admission, I agree with them; but the college are to judge of the other qualifications: if by this inchoate right they mean any thing more, I dissent from them. It is admitted by this application that the college have a right to insist on an examination: and upon what ground? as a test of fitness—but though this right is not expressly given to them by the charter, nor is there a word denoting any obligation either to admit or examine, it is incident to their power of judging who is fit to be admitted. That Lord _Mansfield_ thought that they have such a right incidently is clear from what fell from him in Dr. _Askew’s_ case, in which he said, “It is true that the judgment and discretion of determining upon this skill ability learning and sufficiency to exercise and practise this profession is trusted to the college of physicians: and this Court will not take it from them in the due and proper exercise of it.” The same power that authorises them to judge of fitness also authorises them to regulate the mode by which they shall judge. They think, of which they are much better judges than we can be, that every man who is to be a candidate ought either to have taken his degree at one of our universities or in Dublin, or shall be proposed by one fellow, or by the president. The bye-laws requiring this do not appear to me unreasonable or inconsistent with the character any more than requiring a particular mode of education, and in the case so often alluded to Lord _Mansfield_ thought such bye-laws were good; for when he recommended it to the college to revise their bye-laws, he said “Such of them indeed as only required a proper education and a sufficient degree of skill and qualification may be still retained.” In consequence of that opinion the college have reviewed and altered their bye-laws, requiring in some cases an education at either of our universities or at _Dublin_, in others permitting a nomination of persons as fit to be examined by men whom they deem worthy of such a trust, considering such degree and nomination merely as tests of the person taking it or named having skill and learning and being fit to be examined. And in making these bye-laws I think that the college have shewn a due attention to discharge their duty to the public and to attain the ends of their institution. Therefore I concur in the opinion already given that this rule ought to be discharged.
LAWRENCE, J. This is an application for a mandamus to compel the College of Physicians to examine Dr. _Stanger_ in order that he may be admitted a fellow; and the foundation of the application is that he has been admitted to the practise of physic and is one of the _homines facultatis_ within the meaning of the charter; which (it is said) gives him a right to admission, if on examination he shall be found fit; and that all the bye-laws militating against such right are illegal. His counsel have been under the necessity of insisting on the licence giving him a right to examination; for if the being admitted a member of the body be matter of election, it is immaterial whether the bye-laws be good or bad. It seems to me that the insufficiency of the provisions of the statute 3 _Hen._ 8. probably gave rise to this charter; the object of which was to establish a better mode of determining who were proper persons to be licensed to practise physic, and to prevent the practice of ignorant empirics; and if so, it was not necessary that all men of the faculty should be members of the body. All that was necessary was that it should be composed of a sufficient number of learned and discrete practisers of physic, who should have a power of continuing the succession in such persons as themselves, and that they should license proper persons and restrain unfit persons from the practice of it. If this were the object, is it natural to construe the charter as giving a right to all men of the faculty to become members of this body, when the charter speaks of men of the faculty in a sense contradistinguished from the members of the body; or to suppose that the Crown meant to incorporate all, when the charter was made for the government of some, who, if all were incorporated, could not exist? It is admitted that there were two distinct classes under the charter, and according to Dr. _Stanger’s_ construction one class, that of the governed, would be extinguished. Another mode of construing the charter in the argument was by considering the words _omnes homines ejudem facultatis_ to mean the individual members of the corporation: but if so, there would be no power given to make bye-laws to affect the licentiates; and the clause in the charter that gives the exemption from serving on juries speaks of the person exercising the faculty as contradistinguished from the members of the college; “_nec presidens nec aliquis de collegio prædicto medicorum, nec successores sui, nec eorum aliquis exercens facultatem illam_.” Therefore it seems to me that the _homines facultatis_ are not the individual members of the college. Then it was said that there might be some persons who might not choose to become corporators, and that this would make a class to be governed: but that is improbable; it is not to be supposed that, as the principal object of the charter was to incorporate those who were skilled in physic and to prevent those from practising who were unfit, they to whom the charter was offered would refuse the advantages of this corporation, especially as the obvious means of constituting a body to consist of all would be to make it compulsory on the physicians to become members, as in the case with companies in some city and corporate towns, of which persons carrying on certain trades are obliged to be free. But seeing that there is in some degree an uncertainty as to the words “_homnes ejusdem facultatis_,” the usage that has prevailed ought to govern us in the construction of them, especially as the usage perfectly accords with the design of the incorporation. It is said indeed that the usage is in favour of Dr. _Stanger’s_ claim: but that is not so; for there is no proof that before these bye-laws were made any persons were admitted into the body as a matter of right, and we must therefore take it that they came in by election. If Dr. _Stanger_ claim as a matter of right, it must be under the words of the charter “_quod ipsi omnesque homines ejusdem facultatis_ &c.” but if this gave him a right, the college could not resist his claim though he would not submit to examination. And if every _homo ejusdem facultatis_ came within this description of claim, Dr. _Archer_ would have had a right to be admitted. The charter does not say that all the men of the faculty, who on examination shall be found fit, shall be admitted; if it has said any thing in their favor, it has given them the right as soon as they become men of the faculty; it has directed no examination. Suppose by a charter all the weavers of a town were incorporated, they would all have a right to be admitted without any examination. If then all the men of the faculty within the limited district have a right from being men of the faculty, they possess all the fitness that the charter requires. This seems to me to be only a contrivance to get out of Dr. _Archer’s_ case, and to set up a right on the ground of being a licentiate. In the course of the argument it was said that only those were to be admitted who were “profound sad and discrete, groundedly learned and deeply studied in physic:” but if so, it destroys the argument arising from the words “_omnes homines ejusdem facultatis_.” An argument has also been drawn from the statute 3 _Hen._ 8:, and it has been said that the persons licensed by that act were the only persons who at the time of the charter were men of the faculty, and that they and the six persons named were meant to be incorporated. But the words of the charter do not extend to all those persons; they are confined to the “_homines de et in civitate prædictâ_,” that is, to all men of and in the city of _London_ practising physic: but this does not extend to persons practising in other places. Now if that construction had been adopted, it would have excluded the greater part of those who have been members of the college practising physic in _Oxford_, _Cambridge_, and other places beyond these limits, as not falling within the description of those persons of whom (according to the construction) the college is to consist.
Taking the whole of the charter and the usage this construction will reconcile all the difficulties; the intention of the Crown was to incorporate the six persons named in the charter and all men practising physic at that time _de et in civitate prædictâ_; and all those persons were entitled to admission: but the Crown did not intend to give any right to those, who might thereafter become _homines facultatis_, but intended that the succession should be continued by the power incident to all corporations to elect. Had the charter of incorporation nominated every man authorised to practise physic in _London_ and given no directions as to the succession, they would have been authorised to continue themselves by election as they have done; and the charter has done the same thing in substance by incorporating the same persons by a general reference to their character and situation. This avoids all contradiction; it is consistent with the usage; and according to this construction no one is entitled as a matter of right but only by election. In making such elections there is a trust and duty to keep up the body by a choice of learned men sufficient to answer the purposes of the charter; and if this be done all the interest that the public have is consulted; they have no interest in this or that man being a member of the college: so long as the body is continued and there are proper censors elects and other officers, and so long as proper persons are licensed and improper ones restrained, the objects of the charter as far as concerns the public will be attained. We have been pressed however with the dicta of Lord _Mansfield_ in _R._ v. Dr. _Askew_; very great deference is always due to whatever fell from him: but it is sufficient to say that this was not the point then before the Court, the only question there being whether licentiates were of the body.
On the other question respecting the validity of the bye-laws, I can hardly add to what has already been said by the Court; and therefore shall only say that I agree with them in thinking the bye-laws reasonable.
Rule discharged[175].
Return to a Habeas Corpus.
(Goodall. 467)
London. ss. _Nos_ Johannes Warner & Thomas Adams _Vic’ Civitat’_ London, _Serenissimo Domino Regi in brevi huic schedul’ annex’ nominat’ ad diem & locum in eodem brevi content’ Certificamus, quod ante adventum nobis praedict’ brevis scil’ duodecimo die Septembris Anno regni dicti domini Regis nunc Anglie &c. decimo quinto_ Christoferus Barton _in dicto brev’ nominat’ commissus fuit Prisone dom’ Regis scil’ Computator’ scituat’ in_ Wood Street London _prædict’ & in eadem Prisona sub custodia_ Isaaci Pennington & Johannis Woollaston _tunc vic’ Civitat’ praedict’ & in eorum exit’ ab officio suo sub custodia nostra detent’ virtute cujusdam Warranti_ Otwelli Meverell, Laurentii Wright, Edmund Smith, & Willielmi Goddard _in Medicinis Doctor’ & Collegii Medicor’ in_ London _praedict’ custodi praedict’ Computatorii_ London _praedict’ vel ejus deputat’ direct’ Cujus quidem Warranti tenor sequitur in hæc verba_.
[A Copy of the Censors Warrant for the Commitment of Empiricks to prison.]
“ss. We _Otwell Meverell_, _Lawrence Wright_, _Edmund Smith_ and _William Goddard_ Doctors in Physick and Censors of the Collage of Physicians in _London_, being chosen by the President and Collage of Physicians aforesaid to govern and punish for this present year all offenders in the faculty of Physick within the City of _London_ and the Suburbs thereof and seven miles compass of the said City, according to the authority in that behalf duly given by certain Letters Patents under the great Seal of _England_ made and granted to the said Collage and Comminalty by the late King of famous memory King Henry the Eighth, bearing the date the 28th day of _September_ in the Tenth year of his Raigne, And one Act of Parliament made in the 14th year of the said late King _Henry_ the Eighth concerning Physicians Whereby the Letters Patents aforesaid and every thing therein are granted and confirmed: And by virtue of the said Act of Parliament and Letters Patents aforesaid and one other Act of Parliament made in the first year of the Raigne of our late Soveraigne Lady Queen _Mary_ intituled _An Act touching the Corporation of Physicians in_ London, did cause to be brought before us the sixth day of this instant _September_ at our Collage house in _Pater noster Rowe_ in _London_ one _Christofer Barton_; and we have examined the said _Christofer Barton_, and upon his examination and other due proofs we have found that the said _Christofer Barton_ hath unskilfully practised the Art of Physick within the City of _London_ and Precinct aforesaid upon the bodies of _Richard Ballady_ of _Aldermary_ Parish _London_, _Michael Knight_ of St. _Buttolphs_ Parish _Aldgate London_ and the child of one _Jane Brigge_ and some others in the month of _January_ in the year 1638, contrary to the Laws in that behalf made and provided; whereupon we have imposed upon the said _Christofer Barton_ a fine of 20_l._ for his evil practice in Physick aforesaid; and we have also for the same cause sent you the body of the said _Christofer Barton_, Willing and requiring you in the King’s Majesties name to receive and keep him in safe custody as Prisoner, there to remain at his own costs and charges without bail or mainprize untill he shall be discharged of the said imprisonment by the President of the said Collage, and by such persons as by the said Collage shall be thereunto authorised according to the Statute in that behalf made, And this our warrant shall be your discharge. Given at the said Collage the eleventh day of September in the 16th year of the Raigne of our Soveraigne Lord King _Charles_.”
Otwell Meverell, Law. Wright, Edmund Smith, William Goddard.
To the Keeper of Woodstreet Compter, London or his Deputy.
Note. This Christopher Barton, like James Leverett a Gardener (whose case and the reference of it by the Court of Star Chamber to the College, are recited in Goodall p. 447) and the more celebrated Valentine Greatrex, was one of those Empirics, half enthusiasts and half imposters, who pretended to perform cures by touching or stroaking.
Doctor Burgess’ Case.
(Goodall’s Proceedings 376)
Doctor _Burgess_ having been in Orders and now practising Physick in _London_, was summoned before the President and Censors to give an account by what authority he practised in this City contrary to the Statute Law of this Kingdom. He ingenuously confessed; Not by any authority, but by the indulgence of the College; and told them he had formerly offered himself to examination, though he had not yet been examined. The President replied, that by a Statute of the College (which was read by the Register) they could not examine admit or permit any to the practice of Physick, who had been in Holy Orders. Besides if the Statutes of the College would allow it He told him an admission to a person that had been so qualified was repugnant to the Statute Laws of the Kingdom and Canons Ecclesiastical. He replied with great temper and candour, that he would not contradict either the one or the other, but lay down practice in _London_. After this he was convened a second time before the President and Censors and interdicted the practice of Physick within the College Liberties, to which he submitted and promised that he would speedily betake himself to the Country. Some of the Fellows of the College were complained of for consulting with him.
Doctor Winterton’s Letter to the President.
My service and best respects remembered.
Master President and my much honoured friend
Whereas I am given to understand that you have heard that the last year I would not give way to two or three for the obtaining a Licence to practise Physick, nor to a Doctor of Leyden to be incorporated with us without giving publick testimony of his abilities, and I further understand that yourself and the whole College are well pleased therewith, I have cause to rejoice: and further thought fit at this time to acquaint you with my real intentions, which I shall eagerly prosecute, if I may have countenance and assistance. I have observed and have grieved to see sometimes a Serving-man sometimes an Apothecary oftentimes Masters of Arts (whereof some have afterwards assumed holy Orders) admitted to a Licence to practice in Physick, or to be incorporated to a Degree without giving any publique testimony of their learning and skill in the Profession. And what hath followed hereupon? The Minister hath neglected his own calling and trespassed upon another’s, not without endangering the Souls of the people of God, and the losse of the Lives of many of the King’s Subjects. The Serving-man and Apothecary upon a Licence obtained have been presently made Doctors by the breath of the people, and Doctors indeed undervalued. Masters of Arts after Licence obtained have taken as I said holy Orders, that if one Profession did faile them another might supply them. And Incorporation being in an instant obtained by a little summe of money which by orderly proceeding (I speake concerning the Doctor’s Degree) would cost 12 years study in the University besides performance of exercises and much expence; It is come to passe, that in the University at this time I doe protest I doe not know any one that intends the study of Physick, and practice thereof according to the Statutes. Chirurgeons and Apothecaries are sought into, and Physicians seldome but in a desperate case are consulted with, when the Patient is ready to dye and in this kind we have too many examples. The consideration of these mischiefs redounding to the Church, Commonwealth, University, and our Profession, hath often troubled me, when I had no power to prevent them. But now seeing it hath pleased God and the King to conferre such power upon me, that without me neither Licence nor Degree in Physick can be obtained at _Cambridge_ (for I have solicited Dr. _Nichols_ and Dr. _Allet_ to joyne with me; and I have prevailed soe farre with them that they will doe nothing without me) I doe intend by the grace of God to give way unto noe man to obtain a Licence or Degree without keeping an Act at the least, &c. unless it shall happen that with some one particular man it shall be dispenced withall by supreme Authority or in some extraordinary case. But all this will be to little purpose, unlesse yourselfe and the College will solicite Dr. _Clayton_, his Majesties Professor at _Oxford_, and others of the faculty there, to doe the like; or rather Petition to my Lord’s Grace of _Canterbury_, who out of his innate goodnesse, and zeale for the good of the Church and Commonwealth, and the honour of the Universities, I am fully perswaded, will grant what you desire, against Apothecaries and Chirurgeons, and all others which without Licence and authority do practise Physick, I could wish there were some course taken; I know there be already good Lawes, if they were put in execution. This much in haste (as you may perceive by my writing) I thought good to signify unto you, out of the grateful respect which I beare unto yourself and the whole College, tending the honour of our common Profession, which I will maintain as much as in me lyes, and vindicate from the invasions of Usurpers and Intruders. I have exceeded I feare the bounds of a Letter, but that you will pardon I hope considering the occasion. And soe with a gratefull acknowledgment of your love and favour towards me and an ingenuous profession of much service I owe unto you, I take my leave, as one that will be ready, upon the least signification, to embrace your commands, and execute them with all alacrity.
Yours in all dutiful respects RALPHE WINTERTON.
From the King’s College in Cambridge, August 25th, 1635.
LILLY’S DIPLOMA.
THE LICENSE OF DR. SHELDON, ARCHBISHOP OF CANTERBURY, GRANTED TO WILLIAM LILLY, THE ASTROLOGER, TO PRACTISE PHYSIC. _Dated A. D. 1670._
“Gilbertus providentia divina Cantuariensis Archiepiscopus totius Angliæ Primas et Metropolitanus, dilecto nobis in Christo _Gulielmo Lilly_ in Medicinis professori, salutem, gratiam, et benedictionem. Cum ex fide digna relatione acceperimus te in arte, sive facultate medicinæ per non modicum tempus versatum fuisse, multisque de salute et sanitate corporis verè desperatis (Deo omnipotente adjuvante) subvenisse, eosque sanasse, nec non in arte predicta multorum peritorum laudabili testimonio pro experientia, fidelitate, diligentia et industria circa curas quas susceperis, peragendas in hujusmodi arte Medicinæ merito commendatum esse, ad practicandum igitur, et exercendum dictam artem Medicinæ in et per totam Provinciam nostram Cant: (_Civitate Lond’ et circuitu septem millarum eidem prox’ adjacen’ tantummodo exceptis_,) ex causis prædictis et aliis nos in hoc per te juste moventibus, præstito primitus per te juramento de agnoscendo Regium supremam potestatem in causis ecclesiasticis et temporalibus ac de renunciando, refutando, et recusando omni, et omni modo jurisdictioni, Potestati, Authontati, et Superioritati, foraneis juxta vim formam et effectum Statui Parlamenti hujus inclyti regni Angliæ liceat et non aliter neque alio modo te admittimus, et approbamus tibique licentiam et facultatem nostras in hac parte, Tenore præsentium quamdiu te bene et laudabiliter gesseris benignè concedimus et elargimur. In cujus rei testimorium sigillum (quo in hac parte utimur) presentibus apponi fecimus. _Dat. Undecimo Die Mensis Octobris, Anno Domini 1670 Nostræque Translationis Anno Octavo._”
(LS) _Radulph Snowe, et_ } Registrarii. _Edm. Sherman._ }
_S. Rich. Lloyd_, Sur.
Vicarii in Spiritualibus Generalis per provinciam Cantuariensem.
It does not appear in the memoirs of Lilly, as written by himself, that he ever made an attempt to acquire the elements of medical science, but was directed in his prescriptions by his astrological art only: but having procured the above license he began to practise more openly, and every Saturday rode to Kingston, where the poorer sort flocked to him from several parts, and received much benefit by his prescriptions, which he gave them freely, and without money; from those that were more able he now and then received a _shilling_, and sometimes an _half-crown_, if they offered it to him, otherwise he demanded nothing.
At the Court at the Queen’s Palace, the 26th of July, 1809. Present,
The King’s Most Excellent MAJESTY.
Archbishop of _Canterbury_. Lord Chancellor. Lord President. Earl of _Liverpool_. Earl of _Harrowby_. Lord _Mulgrave_. Mr. Chancellor of the Exchequer. Mr. Secretary _Canning_. Sir _David Dundas_, K. B. Mr. _Ryder_.
WHEREAS there was this day read at the Board, the humble memorial of Sir LUCAS PEPYS, baronet, Physician to His Majesty, and President of the College or Commonality of the Faculty of Physic in _London_, setting forth, that the said President and College have, with great care, pains, and industry, revised, corrected, and reformed a book by them formerly published, intituled _Pharmacopœia Collegii Regalis Medicorum Londinensis_, prescribing and directing the manner of preparing all sorts of medicines therein contained, together with the true weights and measures by which they ought to be made: which book is now perfected and ready to be published, and, it is conceived, will contribute to the public good of His Majesty’s subjects, by preventing all deceits, differences, and uncertainties in making or compounding of medicines, if, for the future, the manner and form prescribed therein should be practised by Apothecaries and others in their compositions of medicines: the Memorialist therefore most humbly prays, that His Majesty will be graciously pleased to enforce the observance thereof in such manner as to His Majesty shall seem meet:—His Majesty this day took the said memorial into His Royal consideration, and being desirous to provide in all cases for the common good of his people, and being persuaded that the establishing of the general use of the said book may tend to the prevention of such deceits in the making and compounding of medicines, wherein the lives and health of His Majesty’s subjects are so highly concerned, hath therefore thought fit, by and with the advice of His Privy Council, hereby to notify to all Apothecaries and others concerned, to the intent they may not pretend ignorance thereof, that the said book, called _Pharmacopœia Collegii Regalis Medicorum Londinensis_, is perfected and ready to be published: and His Majesty doth therefore strictly require, charge and command all singular Apothecaries and others, whose business it is to compound medicines, or distil oils or waters, or make other extracts, within any part of His Majesty’s kingdom of _Great Britain_ called _England_, dominion of _Wales_, or town of _Berwick-upon-Tweed_, that they, and every of them, immediately after the said _Pharmacopœia Collegii Regalis Medicorum Londinensis_ shall be printed and published, do not compound or make any medicine or medicinal receipt or prescription, or distil any oil or waters, or make other extracts that are or shall be in the said _Pharmacopœia Collegii Regalis Medicorum Londinensis_ mentioned or named, or in any other manner or form than is or shall be directed, prescribed, and set down in the said book, and according to the weights and measures that are or shall be therein limited, except it shall be by the special direction or prescription of some learned Physician in that behalf. And His Majesty doth hereby declare, that the offenders to the contrary, shall not only incur His Majesty’s just displeasure, but be proceeded against for such their contempt and offences, according to the utmost severity of law.
STEPH: COTTERELL.
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33 _Geo._ 2.—_Burrow’s Reports._
Rex _vers._ Master and Wardens of the Company of Surgeons in London.
This was a cause that stood in the Crown-Paper, upon a Return to a _Mandamus_ directed to the Master and Wardens of the Company of SURGEONS of _London_: Reciting a Custom in the said City, “That every Freeman of the said City, using and exercising the Art, Science, or Mystery of _Surgery_ within the said City, hath _a Right_, in respect thereof, _to have and take_ APPRENTICES, of the age of 14 years or upwards, to be educated and instructed in the said Art, Science, or Mystery, for the space of 7 years; which said _Apprentices_ have been used and accustomed to be ADMITTED _and_ BOUND _in the presence or with the consent of the Master and Wardens or some of them_;” And reciting that _Richard Guy_, a Freeman of the said City, and also one of the Freemen of the said Company of Surgeons of the said City, being desirous of taking _Melmoth Guy_, his son, aged 15 years, to be his Apprentice for the Term of 7 years, to be educated and instructed in the said Art, Science, or Mystery of Surgery, had often offered the said _Melmoth Guy_ to be admitted and bound, before the said Master and Wardens or some of them, his said Apprentice for the Term of 7 years, in the said Art, Science, or Mystery, according to the said custom; and that the said _Melmoth Guy_ had also often offered himself to them or some of them, to be admitted and bound before them or some of them, an Apprentice to the said _Richard Guy_ for the said Term, in the said Art, Science, or Mystery; and that the said Master and Wardens had _not permitted_ the said _Melmoth Guy_ to be bound Apprentice to the said _Richard Guy_, for the Term of 7 years, before them or any of them, but have altogether refused and still refuse so to do; and commanding them, immediately and without delay, in due manner to _permit_ the said _Melmoth Guy_ to be ADMITTED and BOUND, before them or some of them, _an Apprentice_ to the said _Richard Guy_, for the Term aforesaid, in the said Art, Science, or Mystery according to the said custom, or signify cause to the contrary.
The Return of the Master and Wardens admits the whole of the custom and facts, to be as they are alledged in the Writ. But they further certify and return, That long before the said _Richard Guy_ offered his said son _Melmoth_, or the said _Melmoth_ offered himself to them or any of them, to be admitted and bound before them or any of them, an Apprentice for the said Term of 7 years, in the said Art, Science, or Mystery of Surgery, according to the custom aforesaid; and after the making of a certain Act of Parliament intitled “An Act for making the Surgeons of _London_, and the Barbers of _London_, two separate and distinct Corporations;” to wit, on the 7th day of _April_ in the Year of our Lord 1748, _at Stationers-hall_ in _London_ aforesaid; _John Freke_, then and there being Master of the said Company of _Surgeons_, and _William Pyle_ and _Legard Sparham_, then being two of the Governors of the said Company of Surgeons, before that time duly elected chosen appointed and sworn into their said respective offices; and also _John Ranby_ esq. _Cæsar Hawkins_ esq. _William Petty_ esq. _Joseph Sandford_, _William Cheseldon_ esq. _James Hicks_, _Peter Sainthill_, _Noah Roul_, _John Westbrook_, _William Singleton_, _James Phillips_, _Joseph Webb_, _Mark Hawkins_, _Christopher Fullagar_, _Edward Nourse_, _John Girle_ esq. and _John Townsend_, being then and there Nine and more of the Members of the Court of Assistants of the said Company of Surgeons before that time duly elected chosen appointed and sworn to be of the said Court of Assistants, did hold a Court and Assembly, at _Stationers-hall London_ aforesaid, in order to treat and consult about and concerning the Rule Order State and Government of the said Company of Surgeons; and that the said _John Freke_, so being then and there Master of the said Company of Surgeons, and the said _William Pyle_ and _Legard Sparham_, so being then and there two of the said Governors of the said Company of Surgeons, and the said _John Ranby_ esq. _Cæsar Hawkins_ esq. &c. &c. &c. so being then and there nine and more of the Members of the said Court of Assistants of that Company, being all then and there duly assembled as aforesaid, did then and there, according to the Form of the Statute in that case made and provided, make ordain constitute and establish a certain BYE-LAW _and_ ORDINANCE, for the Regulation Government and Advantage of the said Company of Surgeons, in the words following. To wit, _Item_, It is _Ordained_ “That _no Member_ of the said Company _shall take_ any Person into his Service, _as his Apprentice_, to be instructed in the Art or Science of Surgery, for any shorter time than 7 years; _which person_ SHALL UNDERSTAND _the_ LATIN _Tongue_; his ABILITY _wherein_ shall, BEFORE _his being bound_, be _tried by the Governors or one of them_. And every Freeman of this Company or Foreign brother shall, within one month next after his entertainment of any Person in order to being his Apprentice, _Present_ such Person before the Governors or two of them, _at a Court to be by them held_; and _there bind_ such Person to him _before the said Governors_, by Indenture; upon pain of forfeiting 20l. of lawful money: And the Clerk of the said Company SHALL NOT BIND any Person who has _not_ been so presented and examined, upon pain of forfeiting the sum of 10_l._ of lawful money and being liable to be removed from his said Office. And no Apprentice shall be turned over from one Master to another, but at a Court in the Presence of the Master and Wardens or one of them: And One Guinea, and no more, shall be paid for the same.”
Which said _Ordinance_ or _By-Law_, so made as aforesaid, after the making thereof as aforesaid, and long before the said _Richard Guy_ had offered the said _Melmoth_, or the said _Melmoth_ had offered himself to be admitted and bound before them or any of them, an Apprentice to the said _Richard Guy_, for the Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, to wit, on the 9th day of the same _April_ in the said year of our Lord 1748, was examined approved and allowed by the Right Honourable _Philip_ Lord _Hardwicke_ the then Lord Chancellor of _Great Britain_, and by Sir _William Lee_ Knt. the then Lord Chief Justice of His Majesty’s Court of King’s Bench, and Sir _John Willes_ Knt. the then Lord Chief Justice of His Majesty’s Court of Common Bench, according to the Form of the Statute in that Case made and provided.
They further return That the said Ordinance or By-Law, so made examined approved and allowed as aforesaid, hath ever since the making examination approbation and allowance thereof as aforesaid, been, and now is in full force and effect, and in no wise annulled revoked and vacated.
They then return That after the making examination approbation and allowance of the said Ordinance or By-Law as aforesaid, and before the Issuing of this Writ, to wit, on the 3d of _May_ in the Year of our Lord 1759, at a certain Court then holden at _Surgeons Hall_ in the _Old Bailey London_, by _Mark Hawkins_ then Master, and _Christopher Fullagar_ and _Edward Nourse_ then Governors of the said Company of Surgeons, (They the said _Mark Hawkins_, _Christopher Fullagar_ and _Edward Nourse_, having before that Time been duly elected chosen appointed and sworn into their said respective Offices, according to the Form of the Statute in that Case made and provided,) came the said _Richard Guy_ before the said Court, and offered and presented his said Son _Melmoth_; And the said _Melmoth_ did then and there offer himself to the said Master and Governors then being at that Court, to be admitted and bound, before them, an Apprentice to the said _Richard Guy_, for the Term of 7 years, in the said Art Science or Mystery of Surgery; And that the said _Melmoth Guy_, being so offered and presented as aforesaid, was then and there _examined_ touching his knowledge in the _Latin_ tongue; And his ability therein, _in Pursuance_ of the Ordinance or By-Law aforesaid, was then and there _fairly_, _candidly_, and _impartially_ TRIED by the said _Edward Nourse_, he the said _Edward_ being then and there one of the Governors of the said Company of Surgeons: And that the said _Melmoth Guy_, UPON _such his Examination_, and _upon his Ability_ in the _Latin Tongue_ being so as aforesaid _tried_ by the said _Edward Nourse_ (so being one of the Governors or Wardens of the said Company as aforesaid) _was found_, NOT _to understand_ the _Latin_ Tongue, but to be WHOLLY IGNORANT _thereof_; and was then and there so ADJUDGED _and declared_ to be, by the said _Edward Nourse_, on such Trial.—Wherefore the said Court could not consent, but did then and there refuse to permit the said _Melmoth Guy_ to be admitted and bound an Apprentice to the said _Richard Guy_, for the Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, UNTIL such Time as the said _Melmoth should understand_ the _Latin_ Tongue, as by the aforesaid Ordinance or By-Law is in that behalf required.
They further return expressly and positively, That the said _Melmoth Guy_, when he was so presented and offered as aforesaid, before the aforesaid Master and Governors or Wardens of the said Company of Surgeons, at the said Court, by them held for the purpose herein before in that behalf mentioned, DID NOT understand the _Latin_ Tongue: but WAS UTTERLY IGNORANT of the same: And that the said _Melmoth Guy_ hath NOT, at any Time before or since his being so examined and tried as to his Ability in the _Latin_ Tongue as aforesaid, _offered himself or been presented_ to the said Company or Governors thereof, or any one of them for the Time being, _to be tried_ as to his ability in the _Latin_ Tongue.
And therefore they cannot permit the said _Melmoth Guy_ to be admitted and bound before them an Apprentice to the said _Richard Guy_ for the said Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, as by the Writ they are commanded.
Mr. _Field pro Rege_ objected and argued “That this was an _insufficient_ Return:” For that the _By-Law_ is a _bad_ one, being made in _Restraint of a natural general and common Right_.
The _first_ Restriction of the common Right that every Person has of learning and exercising any Art in any Place, except where it happens to be restrained by Custom, is the Act of 5 _Eliz._ c. 4.
The City of _London_ have indeed, _by Custom_, a Power over the Youth of their City, and a Power of excluding Foreigners from exercising Trades within their City.
11 _Rep._ 53. _Taylors of Ipswich Case_, shews the _general_ Law to be, that a person ought not to be restrained in his lawful Mystery.
_Private Companies_ can not make Laws contrary to the _General_ Law or to the _Customs_ of great Cities: though great Cities and Towns may do so. This distinction is mentioned in 6 _Mod._ 120.[176] _Cuddon_ v. _Estwick_. And he cited the Case of _the City of London_ v. _Vanacker_, in 1 _Ld. Raym._ 496. where _Holt_ Ch. J. said that “if the By-Law was for the _Benefit of the City_, it would be good.”
This By-Law, therefore, is not good, without a particular Custom to support it: for it _restrains a Common-Law Right_.
The Return does not aver that the understanding the _Latin_ Tongue _is_ a _necessary qualification_ of a Surgeon: And their Art may certainly be performed _without_ it. At least, ’tis no objection to a young Person’s being put out to _learn_ the Art; whatever it might be to the Admission of a Man to _practise_ it.
Besides, “Understanding the _Latin_ Tongue,” is a very _indefinite_ and _vague_ expression: And a very different idea of it would be conceived by different persons; as by _Dr. Bentley_ (for instance) and by a[177] Warden of the Surgeons Company.
Bad consequences too, may arise from this By-Law: And if so, it shall not prevail. _Godbolt_ 254. S. C. with that of _the Taylors of Ipswich_, (there called _The Cloth-workers of Ipswich Case_.)
If the _By-Law is bad_, this young man’s not understanding _Latin_ will _not cure or help_ it. However, the By-Law does _not expressly forbid_ such a Person to be admitted: It is _not mandatory_, but only _directory_.
Mr. Serjeant _Hewit contra_, was rising up, to speak in support of the Return,
But Lord MANSFIELD said it was too plain to argue.
Whereupon, _Per Cur._ RETURN ALLOWED.
MIDWIFE’S OATH.
The Oath to be administered to a Midwife by the Bishop or his Chancellor, when she is licensed to that office, is said to have been as followeth. 2 _Burn Ecc. Law 469._
“You shall swear, first, that you shall be diligent and faithful and ready to help every woman labouring with child, as well the poor as the rich; and that in time of necessity you shall not forsake the poor woman to go to the rich.
“_Item._ You shall neither cause nor suffer any woman to name or put any other father to the child but only him which is the very true father thereof indeed.
“_Item._ You shall not suffer any woman to pretend, feign, or surmise herself to be delivered of a child, who is not indeed; neither to claim any other woman’s child for her own.
“_Item._ You shall not suffer any woman’s child to be murdered, maimed, or otherwise hurt, as much as you may: and so often as you shall perceive any peril or jeopardy, either in the woman, or in the child, in any such wise as you shall be in doubt what shall chance thereof, you shall thenceforth in due time send for other midwives and expert women in that faculty, and use their advice and counsel in that behalf.
“_Item._ You shall not in any wise use or exercise any manner of witchcraft, charm, or sorcery, invocation, or other prayers, than may stand with God’s laws and the King’s.
“_Item._ You shall not give any counsel or minister any herb, medicine, or potion, or any other thing to any woman being with child, whereby she should destroy or cast out that she goeth withal before her time.
“_Item._ You shall not enforce any woman being with child, by any pain or by any ungodly ways or means, to give you any more for your pains or labour in bringing her to bed, than they would otherwise do.
“_Item._ You shall not consent, agree, give, or keep counsel, that any woman be delivered secretly of that which she goeth with, but in the presence of two or three lights ready.
“_Item._ You shall be secret, and not open any matter appertaining to your office, in the presence of any man, unless necessity, or great urgent cause do constrain you so to do.
“_Item._ If any child be dead born you yourself shall see it buried in such secret place, as neither hog, or dog, nor any other beast may come unto it; and in such sort done, as it be not found or perceived, as much as you may: and that you shall not suffer any such child to be cast into the jaques or any other inconvenient place.
“_Item._ If you shall know any midwife using or doing any thing contrary to any of the premises, or in any otherwise than shall be seemly or convenient, you shall forthwith detect, open, or shew the same to me or my Chancellor for the time being.
“_Item._ You shall use yourself in honest behaviour unto the woman, being lawfully admitted to the room and office of Midwife, in all things accordingly.
“_Item._ That you shall truly present to myself or my Chancellor, all such women as you shall know from time to time to occupy and exercise the room of a midwife within my aforesaid diocese and jurisdiction of —— without any licence and admission.
“_Item._ You shall not make or assign any deputy or deputies, to exercise or occupy under you in your absence the office or room of a Midwife, but such as you shall perfectly know to be of right honest and discreet behaviour; and also apt, able, and having sufficient knowledge and experience to exercise the said room and office.
“_Item._ You shall not be privy, or consent, that any priest or other party shall in your absence, or in your company, or of your knowledge or sufferance, baptize any child by any mass, latin service, or prayers, than such as are appointed by the laws of the Church of England; neither shall you consent that any child born by any woman who shall be delivered by you shall be carried away without being baptized in the parish by the ordinary minister where the said child is born, unless it be in case of necessity baptized privately according to the Book of Common Prayer: but you shall forthwith, upon understanding thereof, either give knowledge to me the said Bishop, or my Chancellor for the time being.
“All which articles and charge you shall faithfully observe and keep: So help you God, and by the contents of this book.”
(Book of Oaths.)
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Certificate of the College of Physicians concerning the Midwives of London.
May it please your Lordships,
Upon consideration taken of this petition hereunto annexed, presented unto the President and College of Physicians by the Midwives, We, the College of Physicians, conceiving the said complaint to be grounded upon just grievance, and to conduce to a general good, in the timely prevention of so growing an inconvenience, have particularly informed ourselves concerning the said business, and do certify that the like project was formerly attempted by another, which is now intended by the doctour, and therefore was referred by _K. James_, of blessed memory, to the Lords of the Council, and by their Lordships to the College of Physicians, to certify their opinion thereof; who upon mature deliberation made report to their Lordships of the unfitness of the said proposition, there being no such custom ever used either here or in any other kingdom, Wherefore the same was rejected and died. And whereas we understand that the said Doctour doth ground his complaint upon the insufficiency of Midwives, whom he would undertake to teach, though licensed by your Lordship’s officers, whom we do believe to be as careful in admitting of Midwives as they are in other kingdoms; only we are informed that divers do practise without licence, and some are deputies to others, through whom we probably conceive some abuses to grow, because their abilities and honesty of lives and conversation are not testified upon oath as others are who are licenced. But for adding sufficiently to them by the Doctour’s instruction, he is not otherwise able to instruct them than any other the meanest Fellow of our College, unless he understand it by the use of iron instruments, which Physicians and Chirurgeons may practice if they please; and some do and have done with as good success and dexterity as himself, and therefore there is no necessity of a sole dependance upon him. And it being true that is reported by the Midwives, the Doctour doth often refuse to come to the poor, they being not able to pay him according to his demands; and for the rich he denies them his help until he hath first bargained for great rewards; which besides that they are in themselves dishonest, covetous, and unconscionable courses, they are also contrary to the laws and statutes of our College, to which by oath he is bound. We therefore for this and other reasons we can alledge, conceive his suit to be unreasonable and inconvenient. And so do humbly leave the same to your Lordships’ grave judgments, unto whom his Majesty referred the consideration thereof.
(Goodall’s Proceedings of the College against Empiricks, p. 465.)
59 _Geo._ 3. _c._ 41.
An Act to establish Regulations for preventing Contagious Diseases in _Ireland_. 14th _June_ 1819.
Whereas it has become highly expedient to provide for and secure constant attention to the health and comforts of the inhabitants of _Ireland_, and for the prevention of contagious disease, more especially in the cities and great towns thereof; and that for that purpose officers of health should be annually appointed in all cities and large towns, and that such officers should also be appointed in such towns, parishes, and villages in the country, as shall think it proper or necessary to adopt such a measure; be it therefore enacted by the King’s most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That within one calendar month next after the passing of this Act, and within one calendar month after the twenty-fifth day of _March_ in the year one thousand eight hundred and twenty, and in every subsequent year, in every city and town in _Ireland_, which shall contain one thousand inhabitants, or upwards; and in every city and large town where the Lord Lieutenant, or other Chief Governor or Governors of _Ireland_, shall think fit to direct that this Act shall be carried into effect, the inhabitant householders of each and every parish in such city or town, assembled in vestry, shall and they are hereby required to elect and appoint any number of persons not less than two, and not more than five, to be officers of health for such parish, for the year ending on the twenty-fifth day of _March_ next after such election, and until new officers of health shall be in like manner appointed for such parish for the year ensuing.
II. And be it further enacted, That such officers of health, so to be elected and appointed, shall act in the execution of this Act without any salary, fee, or reward whatsoever; and that the expenses to be incurred by such officers in the execution of their Duties under this Act, not exceeding such sums as shall be specified and determined on, and limited and directed at the vestry to be assembled for the choice of such officers, or at any subsequent vestry to be called by the said officers, shall be raised and levied on the inhabitants of such parish, in such manner and form as other parochial assessments are raised and levied, and shall by the said officers of health be applied to the purposes of this Act; and the expenditure thereof shall be accounted for by the said officers in such manner as other parochial assessments are accounted for, and either at such times as other assessments are accounted for according to law, or at such other times and periods of the year, and as often from time to time as shall be directed at the vestry to be assembled for the appointment of such officers, or at any other vestry to be called by two inhabitants of such parish; and that copies of all such accounts shall once in every year, before the twenty-fifth day of _April_ in each year, be transmitted by such officers of health to such public officer, or office or place in _Dublin_, as shall be from time to time directed by the Lord Lieutenant, or other Chief Governor or Governors of _Ireland_ for the time being, or his or their Chief Secretary.
III. And be it further enacted, That it shall and may be lawful for the inhabitant householders of any parish, town, or place whatever, in vestry assembled, in any part of _Ireland_, to appoint such officers of health for such parish, in case they shall think fit and expedient so to do; and to raise such sum or sums of money, to be levied and accounted as directed by this Act, in like manner as by this Act is required to be done in cities and large towns as aforesaid.
IV. Provided always, and be it enacted, That no person shall be compelled or compellable to act or serve as such officer of health, in any parish or place, for any longer term than one year, nor to act or serve as such officer for any year commencing within three years after the end of any year for which he shall have served as aforesaid.
V. Provided also, and be it enacted, That it shall and may be lawful for the inhabitant householders of any parish in any county, city, town, or place in _Ireland_, to elect the churchwardens of such parish for the time being to be officers of health under this Act, in case they shall think fit so to do; and it shall be lawful for such churchwardens, and they are hereby authorized and required, to act as such officers of health accordingly, under the present provisions of this Act.
VI. Provided also, and be it enacted, That where any city or town as aforesaid, containing one thousand inhabitants, or where the Lord Lieutenant or other Chief Governor or Governors of _Ireland_ shall direct this Act to be carried into execution, in case the inhabitant householders in any parish or parishes in such city or town shall neglect or refuse to elect and appoint such officers of health, within such time as is required by this Act, or as shall be required by any order of such Lord Lieutenant, or other Chief Governor or Governors, it shall and may be lawful for the Justices of the Peace assembled at the Quarter Sessions, or any adjournment thereof, for the county, city, or town within which such parish shall be situate, and the said Justices are hereby authorized and required, to appoint such officers of health in and for such parish, and also at the same time to appoint and limit what sum shall be raised by assessment on such parish for the purposes of this Act, and such sum shall and may be raised and levied accordingly, in like manner as any other parish assessments, and as if the same had been authorised by the vestries of such parishes, and shall be applied and accounted for in the manner herein before directed.
VII. And be it further enacted, That it shall and may be lawful for any one or more of the persons so to be appointed officers of health, and he and they is and are hereby authorized, empowered, and required to cause and direct all streets and lanes, and all yards and courts adjoining thereto, and all houses let in several tenements and room-keepers, and the yards, gardens, or places belonging to such houses, to be cleansed and purified, and all nuisances prejudicial to health to be removed therefrom; and all public sewers to be cleansed, and where necessary, to be covered over, and all lodgments of standing water to be filled up or drained off; and also to cause and direct all other matters and things to be done for the ventilation, fumigation, and cleansing of any house whatever, in which fever or other contagious distemper shall have occurred, and for the washing and purifying the persons and clothes of the inhabitants of every such house, as shall appear to any such officer of health to be indispensably necessary for the preservation and security of the inhabitants of such parish against the danger of contagion, unless due precautions shall have previously been taken for such purposes by the inhabitants of such house; and it shall be lawful for all constables and peace officers, and they are hereby authorized, empowered, and required, to be aiding and assisting to such officers of health in the doing all matters and things whatsoever in the execution of this Act.
VIII. And be it further enacted, That in any parish or parishes in any city or town where any such officers of health shall be appointed as aforesaid, and where no power or authority is or shall be vested in or given to Magistrates or Corporation of such city or town, to regulate the sweeping and cleansing of the streets therein, and the collecting and disposing of the dirt, dung, and filth of the said streets, and also in any city or town whatever, where the scavengers or other persons who shall be entrusted with or contract for the cleansing and sweeping of the streets, under the direction of the Magistrates or Corporation or not, shall neglect or omit to cleanse and sweep the streets and lanes of such city or town, twice at least in every week, it shall and may be lawful for such officers of health to cause and direct such streets to be swept and cleansed, and the dirt, dung, and filth collected from the same to be sold and disposed of, and the produce thereof to be applied for the purposes of this Act, and in diminution of the charge on the parish for which such officers shall be appointed: provided always, that in all cases where the Magistrates or Corporation of any city or town have or shall have power and authority to regulate the sweeping or cleansing of the streets, or where any scavenger or other person shall be appointed or shall have contracted for that purpose, the said officers of health shall give twenty-four hours notice to the chief magistrate of such city or town, and to the scavenger or other person contracting for the cleansing of such streets, of the neglect or omission to sweep and cleanse the same; and that at the expiration of such twenty-four hours, in case the said streets shall not be duly swept and cleansed, it shall be lawful for the said officers of health to cause the same to be swept and cleansed, and the produce thereof to be disposed of as aforesaid, any act, charter, law, usage or custom to the contrary notwithstanding.
IX. And for the preventing the danger of contagion and other evils, from the unrestrained intercourse of strolling beggars, vagabonds, and idle poor persons seeking relief; be it enacted, That from and after the passing of this Act, it shall and may be lawful for any one Justice of Peace within his jurisdiction, or any churchwarden of any parish in any city, town, or place in _Ireland_, or for any officer of health appointed in any parish in pursuance of this Act, and they are hereby respectively empowered and required, to apprehend all idle poor persons, men, women, or children, and all persons who may be found begging or seeking relief, or strolling or wandering as vagabonds within any parish or place, and to direct and cause all such idle persons, beggars, and vagabonds to be removed and conveyed out of and from such parish and place, in such manner and to such place as the nature of the case may require; and it shall and may be lawful for any such Justice of the Peace, upon his own view, or upon the complaint of any churchwarden or officer of health to commit any such strolling beggar or vagabond, or idle poor person, to any Bridewell or House of Correction, or other public place of confinement, for any time not exceeding twenty-four hours previous to their removal or departure out of such parish; and it shall and may be lawful for any churchwarden or officer of health in such parish, during such period of twenty-four hours, to cause the persons and clothes of such idle poor persons, beggars, or vagabonds so committed, to be washed and cleansed; and it shall be lawful for the Justices of any county, city, or town assembled at any Quarter Sessions or adjournment thereof, to constitute and appoint any suitable unoccupied building to be a Bridewell or place of confinement for such idle persons, beggars, and vagabonds, with the consent and approbation of the owner of such house or building, and to apply to and agree with such owner for such purpose accordingly; and every beadle, constable, and peace officer within their respective districts or jurisdictions, shall be and are hereby required to be assistant to the said Justices of Peace, churchwardens, and officers of health, in such apprehension, and confinement, and treatment of such idle poor persons, beggars, and vagabonds, pursuant to the provisions of this Act.
X. And be it further enacted, That if any person or persons shall resist or oppose any Justice of Peace, churchwarden, or officer of health, in the execution of the powers of this Act, or in the doing or performing of any matter or thing in the execution of this Act, every such person or persons so guilty of resisting or opposing shall, on conviction thereof before any two Justices of Peace or Magistrates within their jurisdiction, on the oath or affirmation of any one or more credible witness, or on the confession of the party so offending, incur such penalty, not less than ten shillings nor more than five pounds, as such Justices of Peace or Magistrates shall in their discretion think proper to adjudge and inflict; or in failure of making payment of such fine, such offenders shall and may be committed to the Common Gaol or House of Correction for any time not exceeding three calendar months; and no such conviction shall be quashed for informality, nor shall be removed or removable by _certiorari_ or otherwise, nor subject to any appeal whatever.
XI. And be it further enacted, That if any action shall be brought against any person or persons for any thing done in the execution of any of the powers or duties by this act given or required, the defendant or defendants may in every such suit plead the general issue, and give this act and the special matter in evidence; and in every case where the plaintiff or plaintiffs in such suit shall fail, the court in which such suit shall be carried on shall award costs to the defendant or defendants.
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14 _Geo._ 3. _c._ 49.
An Act for regulating Mad-Houses.
Whereas, many great and dangerous abuses frequently arise from the present state of Houses kept for the reception of Lunaticks, for want of regulations with respect to the persons keeping such houses, the admission of Patients into them, and the Visitation by proper persons of the said Houses and Patients: And whereas the law, as it now stands, is insufficient for preventing or discovering such abuses; may it therefore please your Majesty that it may be enacted; and be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That, from and after the Twentieth day of November One thousand seven hundred and seventy-four, if any person or persons, in that part of _Great Britain_ called _England_, the dominion of _Wales_, or town of _Berwick upon Tweed_, shall, upon any pretence whatsoever, conceal, harbour, entertain, or confine, in any house or place, kept for the reception of Lunaticks, more than one Lunatick, at any one time, without having such Licence for that purpose as is herein-after directed, (except such Lunaticks as are committed by the Lord High Chancellor of _Great Britain_, or Lord Keeper, or Commissioners for the Custody of the Great Seal for the time being), every such person shall, for every such offence, forfeit and pay the sum of Five hundred Pounds.
And, in order that proper persons may be appointed for visiting such houses as shall be licenced and kept for the reception of Lunaticks, within the cities of _London_ and _Westminster_, and within seven miles of the same, and within the county of _Middlesex_, be it further enacted by the authority aforesaid, That the President and Fellows of the Royal College of Physicians in _London_ for the time being, at a general meeting of the said College, to be held upon the last day of _September_, or if that day falls upon Sunday, then upon the first day of _October_, in every year, shall elect Five Fellows of the said College for granting such Licences as aforesaid, within the said cities of _London_ and _Westminster_, and within seven miles of the same, and within the said county of _Middlesex_, according to the directions of this act; and the said Five Fellows, so elected, shall be and are hereby declared to be, Commissioners for granting such Licences within the limits aforesaid, for the year then next ensuing; provided that two, at least, of the said Fellows, to be so elected, shall be persons who have not acted as Commissioners for the preceding year; and that no person whatsoever shall be capable of being elected, or of acting as a Commissioner, for more than three years successively.
And be it further enacted, That in case, at any time of election there shall not be found a sufficient number of Fellows qualified or willing to act as Commissioners, the said President and Fellows are hereby required, upon every such deficiency, to elect one or more from among the Licenciates to supply the same.
And be it further enacted by the authority aforesaid, That as often as any of the Commissioners, to be elected as aforesaid, shall die, or refuse to act, the said President is hereby required to call a meeting of the said Fellows, within fourteen days next after such death or refusal shall be known to the said President, in order to elect a Commissioner in the room of every Commissioner who shall so die, or refuse to act; and every Commissioner so to be elected, shall be, and is hereby vested with the same power and authority, in all respects whatsoever, as the Commissioner in whose place he shall be chosen was vested with.
And be it further enacted, That every person who shall be elected a Commissioner to act within the cities of _London_ and _Westminster_, and within seven miles of the same, and within the county of _Middlesex_, as aforesaid, shall, within ten days after such election, take the following Oath; (that is to say),
I _A. B._ do swear, That I will faithfully and impartially execute all the trusts committed unto me, by virtue of an Act of Parliament, made in the Fourteenth year of the reign of King _George_ the Third, intituled, _An Act for regulating Mad-houses_; and that I will not, directly or indirectly, give notice, or cause notice to be given to the Keeper, or person having the care of any house or place licensed for the reception of Lunaticks, of the time of visitation of such house or place.
_So help me_ GOD.
Which Oath it shall and may be lawful for the President of the College of Physicians for the time being to administer to every such Commissioner, so to be elected as aforesaid, upon the day he shall be so elected, or within ten days afterwards: And in case any person who shall be elected a Commissioner as aforesaid, and who shall be summoned by the President of the said College to attend the said President to take the said oath, at such time as shall be mentioned in such summons, shall refuse or neglect to attend, or attending, shall refuse to take the said oath, he shall forfeit and pay the sum of Five Pounds, to be applied to the use of the said College.
And be it further enacted by the authority aforesaid, That the said Commissioners, so to be elected as aforesaid, or any three or more of them, shall meet in the hall, or some other convenient place in the said College, as often as they shall think fit, so as such meetings do not interfere with the meetings of the Board of Censors, nor with any other general meeting of the College of Physicians; and that at all meetings of the said Commissioners to be holden for the purposes of this act, the Commissioner who is of the longest standing in the College shall be Chairman.
And be it further enacted, That the Treasurer of the said College for the time being shall be the Treasurer for the purposes of this act; and that the said Commissioners, or any three or more of them, shall at some meeting, to be holden within fourteen days next after they shall be elected as aforesaid, chuse and appoint a proper person to be their Secretary for the year then ensuing; and such Secretary shall be paid such salary or gratuity, for his trouble and attendance in the execution of his office, by the said Treasurer, as the said Commissioners, or any three or more of them, shall order and direct; and every such Secretary shall, at the next meeting of the said Commissioners after he shall be so appointed, take the following Oath:
I _A. B._ do swear, That I will faithfully execute all such trusts as shall be committed to my charge, as Secretary to the Commissioners for executing an Act of Parliament, made in the fourteenth Year of the reign of King _George_ the Third, intituled, _An Act for regulating Mad-houses_; and that I will keep secret all such matters as shall come to my knowledge, in the execution of my office, (except when required to divulge the same by legal authority).
_So help me_ GOD.
And be it further enacted, That the said Commissioners, or any three or more of them, shall meet annually on the third _Wednesday_ in the month of _October_, or within ten days afterwards, in order to grant Licences to persons for keeping houses for the reception of Lunaticks for one year, from the twentieth day of _November_ then next ensuing, within the said cities of _London_ and _Westminster_, and within seven miles of the same, and within the said county of _Middlesex_; but notice of the place, and of the day and hour of every meeting for granting such Licences, shall always be published three several times in the _London Gazette_, before the day of meeting for granting any such Licences, (which Licences they are hereby required to grant to all persons who shall desire the same); and all Licences to be granted by the said commissioners shall be duly stamped with a five shillings stamp, and shall be under the hands and seals of three or more of the said commissioners, for each of which Licences there shall be paid to the said secretary, by the person applying to take out the same, the sums following; (that is to say), for each and every house wherein there shall be kept any number of Lunaticks, not exceeding ten, the sum of ten pounds; and for each and every house wherein there shall be kept above ten, the sum of fifteen pounds, and no more, over and above what shall have been paid for the said stamp; which money shall be paid over by the said secretary to the treasurer; and the further sum of six shillings and eightpence, and no more shall be paid on every such licence to the said secretary for his fee.
Provided always, That no one Licence shall authorise any person or persons to keep more houses than one for the reception of Lunaticks; nor shall any Licence, to be granted by virtue of this act, continue in force for any longer time than for one year.
And be it further enacted by the authority aforesaid, That no commissioner, to be appointed as aforesaid, shall, directly or indirectly, during the time he shall be a commissioner, be interested in keeping any house for the reception of Lunaticks, upon pain of forfeiting, for such offence, the sum of fifty pounds.
And be it further enacted, That the president of the said College of Physicians for the time being shall, and is hereby required to cause summons to be sent to the said several commissioners, requiring them to attend at the first meeting after they shall be appointed commissioners, as aforesaid; all which summons shall be sent by the beadle, or such other person belonging to the said College, as the said president shall think proper; and shall be left at the respective houses, or usual places of abode, of each commissioner.
Provided nevertheless, That in case any two commissioners shall, at any time or times, think proper to call a meeting of the said commissioners, such two commissioners may themselves cause the like notice to be given, and to be sent, in manner aforesaid, to the other commissioners, requiring their attendance at such time and place as shall be expressed in such notice.
Provided always, That at all meetings of the said commissioners in the execution of this act, in case of an equality of votes, the chairman shall have the casting vote.
And be it further enacted, That the said commissioners, or any three or more of them, either by themselves or with their secretary, as they shall think fit, shall, and they are hereby required, once at least in every year, and whenever required by the Lord High Chancellor, or Lord Keeper, or Commissioners for the custody of the Great Seal, or by the Lord Chief Justice of the Court of King’s Bench, or by the Lord Chief Justice of the Court of Common Pleas, for the time being, to visit and inspect all such houses as shall have been licensed by them, as aforesaid, between the hours of eight and five in the day-time; and may, in like manner, at any other time or times, within the hours aforesaid, visit and inspect all such houses as often as they, or any three or more of them, shall think necessary, and shall have, at all such times, liberty and power to continue in such house, and to examine the persons confined as Lunaticks therein, for such time as they shall think proper.
And be it further enacted, That the said commissioners, or their secretary, shall, at every such visitation, make minutes, in writing, of the state and condition of all such houses which they shall so visit, as to the care of the patients therein, and all such other particulars as they shall think deserve their notice, together with their observations thereupon; all which minutes shall, within one week next after such visitation, be by the said secretary entered, by way of report, in a register to be kept by him in the said College of Physicians for that purpose, and the same shall be read to, and signed by, the said commissioners, or any three or more of them, at their next meeting: but no minute which tends to impeach the character of any house shall be so entered, unless such minute shall have been previously signed by three or more of the said commissioners who shall have been present at such visitation; and in case the commissioners, upon their visitation, shall discover any thing that, in their opinion, shall deserve censure or animadversion, they shall, in that case, report the same: and such part of their report, and no more, shall be hung up in Censor’s room of the College, to be perused and inspected by any person who shall apply for that purpose.
And be it further enacted, That in case the keeper of any house or place for the reception of Lunaticks, within the cities of _London_ or _Westminster_, or within seven miles distance thereof, or within the county of _Middlesex_, shall refuse all or any of the said commissioners, at the time of their visitation, admittance into such house or place as aforesaid, with or without their secretary, the master or keeper of such house or place shall, for such offence, forfeit his licence.
And be it further enacted, That the said commissioners, or any three or more of them, shall, from time to time, cause an exact account to be kept of all their proceedings; and all such accounts shall be entered in the same register as the minutes taken at their visitations are directed to be entered as aforesaid; and the said register shall be lodged in the College of Physicians in a strong chest or box, which said chest or box shall be under the care of the beadle or house-keeper belonging to the said College, and shall be carefully locked up, from time to time, by the secretary to the said commissioners, and the key thereof kept by such secretary; which said register shall be deemed to belong to the said commissioners, and the key of the said chest or box shall be delivered over to every succeeding secretary, whenever the former secretary shall go out of office, and be kept by such succeeding secretary in manner aforesaid, for the use of the said commissioners.
Provided always, That the president of the said College shall have liberty to inspect the said register, from time to time, as often as he shall think proper, provided such inspection be made at the College, and in the presence of the secretary to the said commissioners.
And be it further enacted, That if any person shall apply to one of the commissioners, in order to be informed whether any particular person or persons have been confined in any of the said licensed houses, and the said commissioners shall think it reasonable to permit such inquiry to be made, and shall sign an order, directed to the secretary for that purpose; he, the said secretary, is hereby required, upon the receipt of such order, to make search upon his papers: and if it shall appear upon such search, that the person or persons so enquired after have been confined in any of the said houses, the said secretary shall immediately acquaint the persons so applying with the name of the keeper in whose house, and also the names of those by whose direction and advice, such person or persons have been so confined.
And be it further enacted, That the said treasurer shall, and is hereby required to pay to each of the commissioners for every time they shall, in obedience to this act, or any requisition therein contained, visit and inspect any such licensed house or place, as aforesaid, within the limits aforesaid, the sum of one guinea; and shall also pay and discharge all such reasonable expenses of the said commissioners as they shall, from time to time, incur in the execution of this act; and the said treasurer is hereby required, from time to time, to keep an exact and true account of all monies by him received and disbursed in relation to this act, and shall enter such account in a book to be kept for that purpose; which book shall be lodged in the box or chest where the register of the proceedings of the said commissioners is directed to be kept, as aforesaid: which accounts shall be produced to the president of the said college, when required by the said president and elects, to be examined and settled by them; and if, upon such examination, the said accounts shall appear to be just and reasonable, the same shall be allowed and signed by the said president, and at least four of the elects, and shall be by the said president reported, together with the other accounts, at the next General Meeting of the said college; and the said account, being so allowed, signed, and reported, shall be a full discharge to the said treasurer for so much money as shall in such account appear to have been disbursed by him, on account of the execution of this act.
And, in order that the said commissioners may know when any patient is received into any such licensed house or place, as aforesaid, be it further enacted by the authority aforesaid, That the keeper of every such licensed house or place within the said cities of _London_ and _Westminster_, and within seven miles of the same, and within the said county of _Middlesex_, is hereby required, within the space of three days after any patient shall be received into any such licensed house or place, (except such pauper lunaticks as shall happen to be sent there by parish officers), to cause notice thereof to be given to the secretary to the said commissioners, which notice shall contain the name of every such person received as a lunatick into such house or place, the name or names, and place or places of abode, of the person or persons by whose direction such lunatick was sent to such house or place, and also the name and place of abode of the physician, surgeon, or apothecary, by whose advice such direction was given; all which notices shall be sent sealed up, directed _To the Secretary to the Commissioners for licensing Houses for the Reception of Lunaticks, to be left with the Beadle of the College of Physicians in London_; all which notices the said beadle is hereby directed to receive, and to deliver to the said secretary, within two days after the same shall come to his hands; and the secretary is hereby required to file and preserve all such notices, and also to enter, or cause a copy or extract thereof to be entered, in the register, within two days after the receipt of such notices; and every keeper of any such licensed house or place, who shall admit, harbour, entertain, or confine, any person as a lunatick, without having an order, in writing, under the hand and seal of some physician, surgeon, or apothecary, that such person is proper to be received into such house or place as a lunatick, or shall receive any lunatick into any such house or place, having such order, and shall not give notice thereof to the secretary of the said commissioners, within the time, and in the manner aforesaid, shall forfeit and pay the sum of One hundred pounds.
And, in order that such houses or places for the reception of lunaticks as are not situated within the limits aforesaid may be put under some regulation, be it further enacted, That no house, which is not within the said city of _London_, or within seven miles of the same, or within the said county of _Middlesex_, shall be kept for the reception of more than one lunatick, unless such house or place shall be licensed by the Justices of the Peace, at some Quarter Sessions of the Peace to be holden for the county or place wherein such house or place shall be situated.
And be it further enacted, That the Justices of the Peace, at any General Quarter Sessions of the Peace, to be holden for any such County or Place, are hereby authorised and required to grant Licenses to such person and persons as shall apply for that purpose, such person or persons paying for each License the sums following; (that is to say), for each and every house, wherein there shall be kept any number of lunaticks, not exceeding ten, the sum of Ten Pounds, and no more; and for each and every house, wherein there shall be kept above the number of ten lunaticks, the sum of Fifteen Pounds, and no more; and that no one License shall authorise any person or persons to keep more houses than one for the reception of lunaticks, nor shall any such License be granted for any longer term than for one year; and the said Justices shall, at the time of granting such Licenses as aforesaid, nominate and appoint two Justices of the Peace for the said County, and also one Physician, to visit and inspect all such houses as shall be licensed by such Justices as aforesaid; and the said Justices and Physicians, so nominated and appointed, or any two of them, whereof the Physician to be one, may, and are hereby authorised and impowered to visit, in the day-time, every house so licensed, within the County where such house or place shall be so licensed, as often as they shall think fit.
And be it further enacted, That the said Justices and Physicians, so nominated, or such of them as shall visit any licensed house as aforesaid, may, at every visitation, if they think necessary, make, or cause to be made, minutes, in writing, of the state and condition of every house which they shall visit, as to the care of the patients therein, and all such other particulars as they shall think deserve their notice, together with their observations thereupon; all which minutes shall be entered, by way of report, in a Register to be kept for that purpose, by the Clerk of the Peace for the County where such house or houses shall be licensed as aforesaid, a copy whereof shall, from time to time, be sent by the said Clerk of the Peace to the Secretary to the said Commissioners, to be by him inserted in a separate Register; which Register shall be kept in the same box, and in the same manner, as the Register belonging to the said Commissioners is herein-before directed to be kept; and the said Clerk of the Peace shall be paid such sum and sums of money for his trouble in the execution of this Act as the said Justices shall order and direct; and all money to be paid for such Licenses as shall be granted by the said Justices of the Peace, as aforesaid, shall be paid to the Clerk of the Peace, as aforesaid, who shall keep an account thereof, in a book or books to be kept for that purpose, and shall account for the same to the said Justices, as often as he shall be required so to do; and all expenses attending the execution of this Act, (except within the cities of _London_ and _Westminster_, and within seven miles thereof, and also except within the said County of _Middlesex_), shall be defrayed out of such money as aforesaid, in such manner as the said Justices shall, from time to time, within their respective Counties, order and direct.
And be it further enacted, That at such General Quarter Session, when such Justices and Physician shall be appointed as aforesaid, the Clerk of the Peace shall take the like Oath as is appointed by this Act to be taken by the Secretary of the Commissioners.
And be it further enacted, That in case the keeper of any house or place for the reception of lunaticks, not being within the said city of _London_ or _Westminster_, or within seven miles of the same, or within the said County of _Middlesex_, shall, in the day-time, refuse the said Justices and Physician, on such visitation, admittance, at any time or times, into such house or place as aforesaid, the master or keeper of such house or place shall, for such offence, forfeit his License.
And be it further enacted by the Authority aforesaid, That the keeper of any house or place for the reception of lunaticks, not being within the said city of _London_ or _Westminster_, or within seven miles of the same, or within the said County of _Middlesex_, shall, and is hereby required, to give such notice, as aforesaid, of the receipt of every such lunatick (except such pauper lunaticks as shall happen to be sent there by parish officers) to the Secretary to the Commissioners, at the College of Physicians aforesaid, within the space of fourteen days from the time of such lunatick’s being received into any such house or place; and every keeper of any such licensed house or place, who shall admit, harbour, entertain, or confine, any person as a lunatick, without having an order in writing, under the hand and seal of some Physician, Surgeon, or Apothecary, that such person is proper to be received into such house or place as a lunatick, or shall receive any lunatick into any such house or place, having such order, and shall not give notice thereof to the Secretary of the said Commissioners, within the time, and in the manner aforesaid, shall forfeit and pay the sum of One hundred pounds.
And be it further enacted, That no such License shall be granted as aforesaid, either by the said Commissioners or Justices of the Peace, as aforesaid, unless upon granting such License, the person to whom such License is granted shall enter into recognizance to the king’s Majesty, his heirs and successors, in the sum of One hundred pounds, with two sufficient securities, each in the sum of Fifty pounds, or one sufficient security in the sum of One hundred pounds, under the usual conditions, for the good behaviour of such person during the time for which such License shall be granted.
And be it further enacted by the Authority aforesaid, That the Lord High Chancellor of _Great Britain_, or Lord Keeper, or the Commissioners for the Custody of the Great Seal, or the Lord Chief Justice of the Court of King’s Bench, or the Lord Chief Justice of the Court of Common Pleas, for the time being, may, at any time or times, by any written order, directed to the Commissioners appointed by this Act, or to the Justices of the Peace and Physician, appointed Visitors, at any General Quarter Session, require the said Commissioners, or any three or more of them, or the said Visitors, or any two of them, to visit or inspect any house or houses so licensed; and also to make a report to him or them, touching such matters as they shall, in such orders, be directed to inquire into, or as they shall think deserving his or their Lordships notice; and the said Lord High Chancellor, or Lord Keeper, or Commissioners for the Custody of the Great Seal, or Lord Chief Justice of the Court of King’s Bench, or the Lord Chief Justice of the Court of Common Pleas, may also, at any time or times, by a like order, send for, and inspect the Register or Registers so to be kept as aforesaid; and may summon and examine all or any of the persons concerned in the execution of this Act, as often as shall be thought necessary and proper; and in case they, or any of them, shall not obey all such orders as aforesaid, within two days after the receipt of the same, and shall not shew sufficient cause to the contrary, every person, so offending, shall be deemed guilty of a contempt of the Court of Chancery, Court of King’s Bench, or Court of Common Pleas, as the case may be.
Provided always, and it is hereby declared, That nothing in this Act contained shall extend, or be construed to extend, to any of the publick hospitals within this kingdom.
And whereas it is not intended by this Act to give the keepers of any house or houses, so to be licensed as aforesaid, or any other person concerned in confining any of his Majesty’s subjects therein, any new justification from their being able to prove that the persons so confined have been sent there by such direction and advice as are required by this Act; be it therefore declared and enacted, That in all proceedings that shall be had under His Majesty’s Writ of _Habeas Corpus_, and in all indictments, informations, and actions, that shall be preferred and brought against any person or persons, for confining or ill-treating any of His Majesty’s subjects, in any of the said houses, the parties complained of shall be obliged to justify their proceedings according to the course of the common law, in the same manner as if this Act had not been made.
And be it further enacted by the Authority aforesaid, That all penalties and forfeitures which shall be incurred within the said cities of _London_ or _Westminster_, or within seven miles of the same, or within the said County of _Middlesex_, for offences against this Act, shall and may be sued for and recovered in any of the Courts of Record at _Westminster_, by Action of Debt, Bill, Plaint, or Information, by the President of the said College for the time being, in the name of the Treasurer belonging to the said College, at any time within six calendar months after the offence committed; and all such penalties and forfeitures, when recovered, shall and are hereby directed to be paid to the said Treasurer; and shall be applied (except such penalties and forfeitures as are otherwise directed to be applied by this Act) in manner following; (that is to say), one moiety of all such penalties and forfeitures shall go to the informer, and the other moiety towards defraying the expenses attending the execution of this Act: And all penalties and forfeitures which shall be incurred for offences against this Act, not within the said cities of _London_ or _Westminster_, or within seven miles of the same, or within the said County of _Middlesex_, shall and may be sued for and recovered by Action of Debt, Bill, Plaint, or Information, by and in the name of the Clerk of the Peace for the County where any such offence shall be committed; and all such penalties and forfeitures, when recovered, shall be applied, one moiety to the informer, and the other moiety for defraying the expenses attending the execution of this Act, within such County.
And be it further enacted, That if any Action or Suit shall be commenced or brought against any person or persons, for any thing done in pursuance of this Act, the same shall be commenced within six calendar months next after the fact committed; and shall be laid or brought in the county, city, or place, where the cause of Action shall have arisen, and not elsewhere; and the defendant or defendants, in every such Action or Suit, shall and may, at his election, plead specially, or the general issue, Not Guilty; and give this Act, and the special matter, in evidence, at any trial to be had thereupon, and that the same was done in pursuance and by the authority of this Act: And if the same shall appear to be so done, or that such Action or Suit shall be brought in any other county, city, or place, or shall not have been commenced within the time before limited for bringing the same; that then the jury shall find a verdict for the defendant or defendants; and, upon a verdict being so found, or if the plaintiff or plaintiffs shall be nonsuited, or discontinue his, her, or their Action or Suit, after the defendant or defendants shall have appeared; or if, upon demurrer, judgment shall be given against the plaintiff or plaintiffs, then the defendant or defendants shall recover treble costs, and have such remedy for recovering the same as any defendant or defendants hath or have in any other cases by law.
And be it further enacted, That this Act shall be deemed and taken to be a Public Act; and be judicially taken notice of as such, by all Judges, Justices, and other persons whomsoever, without specially pleading the same.
And be it further enacted by the Authority aforesaid, That this Act shall continue in force for the term of Five Years, and from thence to the end of the then next Session of Parliament.
REPORT.
The Select Committee appointed to consider the validity of the doctrine of Contagion in the Plague; and to report their observations thereupon, together with the Minutes of the Evidence taken before the House: Have considered the matters to them preferred, and have agreed upon the following Report.
Your Committee being appointed to consider the validity of the received doctrines concerning the nature of contagious and infectious diseases, as distinguished from other epidemics, have proceeded to examine a number of medical gentlemen, whose practical experience or general knowledge of the subject appeared to your Committee most likely to furnish the means of acquiring the most satisfactory information. They have also had the evidence of a number of persons whose residence in infected countries, or whose commercial or official employments enabled them to communicate information as to facts, and on the principle and efficacy of the laws of Quarantine; all the opinions of the medical men whom your Committee have examined, with the exception of two, are in favour of the received doctrine, that the Plague is a disease communicable by contact only, and different in that respect from Epidemic fever; nor do your Committee see any thing in the rest of the evidence they have collected, which would induce them to dissent from that opinion. It appears from some of the evidence, that the extension and virulence of the disorder is considerably modified by atmospheric influence; and a doubt has prevailed whether under any circumstance, the disease could be received and propagated in the climate of Great Britain. No fact whatever has been stated to show, that any instance of the disorder has occurred, or that it has ever been known to have been brought into the Lazarettos for many years: but your Committee do not think themselves warranted to infer from thence, that the disease cannot exist in England; because in the first place, a disease resembling, in most respects, the Plague, is well known to have prevailed here in many periods of our history, particularly in 1665-6: and further, it appears that in many places, and in climates of various nature, the Plague has prevailed after intervals of very considerable duration.
Your Committee would also observe, down to the year 1800, Regulations were adopted, which must have had the effect of preventing goods infected with the Plague from being shipped directly for Britain; and they abstain from giving any opinion on the nature and application of the Quarantine regulations, as not falling within the scope of enquiry to which they have been directed; but they see no reason to question the validity of the principles upon which such regulations appear to have been adopted.
_14th June, 1819._
Chorley, M. D. _v._ Bolcot, executor.
(From 4 T. R. p. 317.)
The plaintiff, who was a physician living at _Doncaster_, brought this action for fees, for attending a considerable time on the defendant’s testator, who lived at some little distance from the town; and the evidence was, that at _Doncaster_ and its neighbourhood there was no certain rule about fees, but the general practice was for a physician to receive two guineas a week for his attendance. The plaintiff obtained a verdict at the last assizes at _York_; to set aside which _Wood_ obtained a rule _nisi_ last term, on the ground that no action lay for a physician’s fees any more than for a barristers.
_Cockell_, Serj. and _Chambre_, now shewed cause; observing that though this point had been ruled several times at _nisi prius_ against such a claim, yet it had never been solemnly decided, nor was there any authority in the books for putting the claim of a physician’s fees upon the same footing as those of a barrister. In the latter case it might originally have been proper that no temptation should be held out to countenance injustice: but in the former it would be equally impolitic that those who are frequently put to expense in attending patients at a distance, and who are liable to make reparation to those who may suffer by their want of skill, should not be certain of a just and honourable reward. The regulation with regard to barristers is founded on grounds of public policy, as appears by the passage in _Tacitus_, to which Mr. J. _Blackstone_ refers; but they are totally inapplicable to the case of physicians. And in that very passage in _Tacitus_ it is taken for granted that the latter were entitled to a remuneration, because their situation was dissimilar to that of advocates. Besides in this case there is an additional reason why the plaintiff should recover, as there is understood to be a general stipulated acknowledgment for a physician’s attendance at the place where this transaction arose.
Lord KENYON, Ch. J. I remember a learned controversy some years ago as to what description of persons were intended by the _Medici_ at _Rome_; and it seemed to have been clearly established by Dr. _Mead_, that by those were not meant physicians, but an inferior degree amongst the professors of that art, such as answer rather the description of surgeons amongst us. But at all events it has been understood in this country that the fees of a physician are honorary, and not demandable of right. And it is much more for the credit and rank of that honorable body, and perhaps for their benefit also, that they should be so considered. It never was yet heard of that it was necessary to take a receipt upon such an occasion. And I much doubt whether they themselves would not altogether disclaim such a right as would place them upon a less respectable footing in society than that which they at present hold.
_Per Curiam._
Rule absolute.
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Lipscombe _v._ Holmes, esq.
(From Campbell.)
This was an action for work and labour as a surgeon, and for curing the defendant and several persons of his family, of divers diseases and maladies, under which they had respectively laboured and languished. The defendant pleaded the general issue, and paid 3_l_ 13_s_ 6_d_ into court.
The first defence set up was, that the plaintiff was a physician, and therefore could not maintain an action for his fees. It appeared that he wrote prescriptions, was called “_Doctor_,” and signed himself M. D.
_Park_ said he should shew, that at the time when the visits were paid, for which the action was brought, the plaintiff was only a surgeon; and that he had not taken out his diploma as a physician till long after.
Lord _Ellenborough_.—If a person passes himself off as a physician, he must take the character _cum onere_. When he brings an action for visits paid by him as a physician, I will give him credit for being so, and tell him he must trust to the honour of his patients. Whether the plaintiff had or had not a diploma when he attended the defendant, is immaterial. Whatever he was, if he at that time wrote prescriptions and added M. D. to his name, he must be nonsuited.
_Park_ then produced the rule for paying money into court, which his lordship thought removed the objection, and admitted the plaintiff’s right to sue as a surgeon.
It was afterwards agreed to withdraw a juror.
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Slater _v._ Baker and Stapleton, C. B.
(From 2 Wils. R. 359.)
Special action upon the case, wherein the plaintiff declares that the defendant _Baker_ being a surgeon, and _Stapleton_ an apothecary, he employed them to cure his leg which had been broken and set, and the callous of the fracture formed; that in consideration of being paid for their skill and labour, &c. they undertook and promised, &c. but the defendants not regarding their promise and undertaking, and the duty of their business and employment, so ignorantly and unskilfully treated the plaintiff, that they ignorantly and unskilfully broke and disunited the callous of the plaintiff’s leg after it was set, and the callous formed, whereby he is damaged. The defendants pleaded not guilty, whereupon issue was joined, which was tried before the Lord Chief Justice _Wilmot_, and a verdict found for the plaintiff, damages £500. The substance of the evidence for the plaintiff at the trial was, first a surgeon was called, who swore that the plaintiff having broken both the bones of one of his legs, this witness set the same, that the plaintiff was under his hands nine weeks, that in a month’s time after the leg was set, he found the leg was healing and in a good way; the callous was formed, there was a little protuberance, but not more than usual; upon cross examination he said he was instructed in surgery by his father, that the callous was the uniting the bones, and that it was very dangerous to break or disunite the callous after it was formed.
_John Latham_ an apothecary swore he attended the plaintiff nine weeks, who was then well enough to go home, that the bones were well united, that he was present with the plaintiff and defendants, and at first the defendants said the plaintiff had fallen into good hands; the second time he saw them all together the defendants said the same, but when he saw them together a third time there was some alteration, he said the plaintiff was then in a passion, and was unwilling to let the defendants do any thing to his leg; he said he had known such a thing done as disuniting the callous, but that had been only when a leg was set very crooked; but not where it was straight.
A woman called as a witness, swore that when the plaintiff came home he could walk with crutches, that the defendant _Baker_ put on to the plaintiff’s leg an heavy steel thing that had teeth, and would stretch or lengthen the leg, that the defendants broke the leg again, and three or four months afterwards the plaintiff was still very ill and bad of it.
The daughter of the plaintiff swore, that the defendant _Stapleton_ was first sent for to take off the bandage from the plaintiff’s leg; when he came he declined to do it himself, and desired the other defendant _Baker_ might be called in to assist; when _Baker_ came he sent for the machine that was mentioned; plaintiff offered to give _Baker_ a guinea, but _Stapleton_ advised him not to take it then, but said they might be paid all together when the business was done; that the third time the defendants came to the plaintiff, _Baker_ took up the plaintiff’s foot in both his hands and nodded to _Stapleton_, and then _Stapleton_ took the plaintiff’s leg upon his knee, and the leg gave a crack when the plaintiff cried out to them and said, “you have broke what nature had formed;” _Baker_ then said to the plaintiff _You must go through the operation of extension_, and _Stapleton_ said we have consulted and done for the best.
Another surgeon was called and swore, that in cases of crooked legs after they have been set, the way of making them straight is by compression and not by extension, and said he had not the least idea of the instrument spoken of for extension; he gave _Baker_ a good character, as having been the first surgeon of _St. Bartholomew’s_ hospital for twenty years, and said he had never known a case where the callous had deossified.
Another surgeon was called who swore, that when the callous is formed to any degree, it is difficult to break it, and the callous in this case must have been formed, or it would not have given a crack, and said extension was improper, and if the patient himself had asked him to do it, he would have declined it, and if the callous had not been hard he would not have done it without the consent of the plaintiff, that compression was the proper way, and the instrument improper; he said the defendant _Baker_ was eminent in his profession. Another surgeon was called who swore, that if the plaintiff was capable of bearing his foot upon the ground, he would not have disunited the callous if he had been desired by him, but in no case whatever without consent of the patient; if the callous was loose it was proper to make the extension to bring the leg into a right line. A servant of the plaintiff swore the plaintiff had put his foot upon the ground three or four weeks before this was done.
The counsel for the defendants at the trial, for _Baker_, relied upon the good character which was given him, and objected there was no evidence to affect the other defendant _Stapleton_ the apothecary; but the Lord Chief Justice thought there was such evidence against both the defendants as ought to be left to the jury, as the nodding, the advising _Baker_ not to take the guinea offered to him by the plaintiff, besides the apothecary first proposed sending for _Baker_; the plaintiff was in no pain before they extended his leg, and he only sent to _Stapleton_ to have the bandage taken off: the Lord Chief Justice asked the Jury whether they intended to find the damages against both the defendants, and they found £500 against them jointly, and he said he was well satisfied with the verdict.
It was now moved that the verdict ought to be set aside because the action is upon a joint contract, and there is no evidence of a joint undertaking by both defendants; the plaintiff sends for _Stapleton_ to take off the bandage who declines doing it, and says, I do not understand this matter, you must send for a surgeon; accordingly _Mr. Baker_ is sent for, who enters upon the business as a surgeon unconnected with _Stapleton_, who, it does not appear, ever undertook for any skill about the leg, so the jury have found him guilty without any evidence. That _Baker_ has been above twenty years the first surgeon in _St. Bartholomew’s_ hospital, reads lectures in surgery and anatomy, and is celebrated for his knowledge in his profession as well as his humanity; and to charge such a man with ignorance and unskilfulness upon the records of this court is most dreadful; all the witnesses agreed Mr. _Baker_ doth not want knowledge, therefore this verdict ought not to stand. 2dly, It was objected that the evidence given does not apply to this action, which is upon a joint contract; the evidence is that the callous of the leg was broke without the plaintiff’s consent; but there is no evidence of ignorance or want of skill, and therefore the action ought to have been trespass _vi & armis_ for breaking the plaintiff’s leg without his consent; all the surgeons said they never do any thing of this kind without consent, and if the plaintiff should not be content with the present damages, but bring another action of trespass _vi & armis_, could this verdict be pleaded in bar? the court without hearing the counsel for the plaintiff gave judgment for him.
_Curia_: 1st, It is objected that this is laid to be a joint undertaking, and therefore it ought to be proved, and we are of opinion that it ought; the question therefore is, whether there is any evidence of a joint undertaking; we are of opinion there is; Mr. _Stapleton_ declines acting alone, but in concurrence with Mr. _Baker_ attends the plaintiff every time any thing is done, and assists jointly with Mr. _Baker_; this appears in evidence, and is sufficient, for there is no occasion to prove an express joint contract, promise or undertaking; when an offer is made to _Baker_ of a guinea, _Stapleton_ says, you had better be paid all at last; they both attended plaintiff together every time, and _Stapleton_ said, we have consulted and done for the best; when the plaintiff complained of what they had done, _Stapleton_ considered himself as one of the persons to join in the cure of the leg, for he put his hand on the knee when _Baker_ nodded, and then the bone cracked; he is the original person aiding in this matter, and there is no ground for this objection. When we consider the good character of _Baker_, we cannot well conceive why he acted in the manner he did; but many men very skilful in their profession have frequently acted out of the common way for the sake of trying experiments; several of the witnesses proved that the callous was formed, and that it was proper to remove the plaintiff home; that he was free from pain and able to walk with crutches; we cannot conceive what the nature of the instrument made use of is; why did _Baker_ put it on when he said that plaintiff had fallen into good hands, and when plaintiff only sent for him to take off the bandage, it seems as if Mr. _Baker_ wanted to try an expedient with this new instrument.
_2dly_, It is objected that this is not the proper action, and that it ought to have been trespass _vi & armis_; in answer to this, it appears from the evidence of the surgeons that it was improper to disunite the callous without consent; this is the usage and law of surgeons; then it was ignorance and unskilfulness in that very particular, to do contrary to the rule of the profession, what no surgeon ought to have done; and indeed it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put himself in such a situation as to enable him to undergo the operation; it was objected this verdict and recovery cannot be pleaded in bar to an action of trespass _vi & armis_ to be brought for the same damage; but we are clear of opinion it may be pleaded in bar. That the plaintiff ought to receive a satisfaction for the injury, seems to be admitted; but then it is said the defendants ought to have been charged as trespassers _vi & armis_; the court will not look with eagle’s eyes to see whether the evidence applies exactly or not to the case, when they can see the plaintiff has obtained a verdict for such damages as he deserves, they will establish such verdict if it be possible. For any thing that appears to the court this was the first experiment made with this new instrument, and if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants in general may be as skilful in their respective professions as any two gentlemen in _England_, yet the court cannot help saying that in this particular case they have acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons.
Judgment for the plaintiff _per totam curiam_.
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Seare _against_ Prentice.
_From 8 East._
This was an action on the case brought by the plaintiff, a shoemaker, against the defendant, whom he employed as a surgeon, for negligently, ignorantly, and unskilfully reducing a dislocated elbow and fractured arm of the plaintiff, of which he had undertaken the cure. The cause was tried before _Heath_ J. at the last assizes at _Hertford_; and a verdict having been given for the defendant under the direction of the learned Judge; that direction was now impeached, and a rule _nisi_ for setting aside the verdict and granting a new trial was moved for by _Gurney_, upon the ground that there was evidence laid before the jury of the _unskilful_ treatment of the plaintiff by the defendant; but that they were told by the learned Judge, that unless _negligence_ were proved, they could not examine into the _want of skill_: and the evidence, he now admitted, did not substantiate the charge of _negligence_, though it proved the want of skill. And he referred to _Slater_ v. _Baker_[178], to shew that an action lay against a surgeon for ignorance and unskilfulness in his profession: and to _Bull, N. P. 73._ where the general rule is laid down, that in all cases where a damage accrues to another by the negligence, ignorance, or misbehaviour of a person in the duty of his trade or calling, an action on the case will lie: as if a farrier kill my horse by bad medicines, or refuse to shoe, or prick him in the shoeing.
The Court granted a rule _nisi_. And now, upon the Judge’s Report being read, the case appeared to be this:
The plaintiff’s brother-in-law proved, on his behalf, that on the 2d of _April_ 1805, the defendant attended the plaintiff, who had fallen from a horse, and told the defendant that his arm was broken: the defendant said that he thought the arm, which was swollen, was not broken, and applied vinegar to it, and bound it with tape. That the plaintiff was under the defendant’s care for ten weeks without being cured: he could not bend his arm or work at his trade. That he then applied to Mr. _Kingston_, another surgeon, and after some time could work, and put his arm to his head. On cross-examination the same witness proved that the defendant was first sent for at night, and came directly; that he regularly attended the plaintiff every day but one till the latter applied to Mr. _Pidcock_, another surgeon, who, about nine or ten days after the accident, attended and assisted with the defendant in setting the elbow. Mr. _Kingston_, the surgeon, then proved that in _July_ 1805 the plaintiff was brought to him a cripple in his arm, one bone of which was broken obliquely below the elbow. That the plaintiff’s arm was almost straight; he could not turn his wrist, and had no motion in his elbow. That the witness broke the callous and set it again, and made (what the witness himself described as) a very fine cure, which was spoken of about the country. He imputed the failure of the defendant in his attempt to cure the plaintiff to _negligence and carelessness_: an apprentice boy (he said) might have known better: that the bone might have been set within five hours after the accident; though he admitted that the swelling, if much, must first be reduced, which might take a fortnight. And he recommended the plaintiff to bring an action. He also spoke to a conversation with the defendant, who considered it as a very difficult dislocation to reduce; and said that he would make a compensation to the plaintiff. The learned Judge told the jury that the gist of the action was negligence; of which direct evidence might be given; or it might be inferred by the jury, if the defendant had proceeded without any regard to the common ordinary rules of his profession, _That unskilfulness alone, without negligence, would not maintain the action_. And that he was at a loss to state to the jury what degree of skill ought to be required of a village surgeon. But that, whether or not his direction were accurate in this respect, at any rate the witness _Kingston_ imputed only _negligence_ and _carelessness_ to the defendant and _Pidcock_, in not discovering the fracture of the bone of the arm when they reduced the dislocated elbow; which there was no doubt was properly reduced: and that considering all the circumstances of the case, he did not think that such gross negligence was imputable to the defendant as to make him liable in damages to the plaintiff. The report concluded by stating that the jury found a verdict for the defendant, much to the Judge’s satisfaction; who intimated that the vaunting language of the witness _Kingston_ must have diminished his credit with the jury.
_Shepherd_ Serjt. and _Espinasse_ were now to have shewn cause: but though all the Court seemed to be satisfied, as well now as when the rule was moved for, that the action well lay for unskilfulness in the profession of a surgeon; yet upon a revision of the evidence as reported, they asked of the plaintiff’s counsel what evidence there was of _want of skill_ in the defendant; _Kingston_, the surgeon, only imputing to him _negligence_ and _carelessness_; which the learned Judge had stated to be a ground of action, and had left to the jury for their consideration; but which the jury had negatived; as indeed the evidence well warranted them in doing.
_Gurney_, in support of the rule, said, that it was to be collected from the whole of _Kingston’s_ evidence that he imputed want of skill to the defendant; and that was shewn by the expression used by him, that an apprentice boy might have known better. That so much skill at least was required of a surgeon as to be able to tell whether or not an arm was broken, or an elbow dislocated. But it was enough that the question of want of skill was wholly withdrawn from the consideration of the jury.
Lord _Ellenborough_ C. J. The surgeon who was examined specifically imputed the failure of the cure to _negligence_ and _carelessness_, whatever other expression he may have used in the manner of giving his evidence, upon which the learned Judge has commented. Therefore, however we may differ from the learned Judge, as I certainly do, in thinking that an ordinary degree of skill is necessary for a surgeon who undertakes to perform surgical operations; which is proved by the case in _Wilson_, and indeed by all analogous authorities; in the same manner as it is necessary for every other man to have it in the course of his employment; as the farrier who undertakes to cure any horse must have common skill at least in his business, and that is implied in his undertaking: and although I am ready to admit that a surgeon would be liable for _crassa ignorantia_, and would be justly responsible in damages for having rashly adventured upon the exercise of a profession, without the ordinary qualification of skill, to the injury of a patient: yet the question did not arise upon the evidence in this case; for no want of skill was imputed to the defendant: and therefore the opinion of the learned Judge upon that point does not affect the merits of the verdict upon the evidence in the cause.
The other Judges concurred; and _Grose_ J. referred to 3 _Blac. Com._ (_ch._ 9. _p._ 163, 4.) as confirming the general doctrine.
Rule discharged.
APPENDIX.