THomas Bonham brought an Action of falseAction of false impri­sonment. Imprisonment against Doctor Alkins and divers other Doctors of Physick: The Defen­dants justified, that King H. 8. Anno Decimo of his Reign, founded a Colledge of Physicians, and plea­ded the Letters Patents of their Corporation: And that they have Authority by that to choose a President, &c. as by the Letters Patents, &c. and then pleads the Statute of 32. H. 8. chapt. 40. and that the said Doctor A [...]kins was chosen President, according to the said Act and Letters Patents, and where by the said Act and Letters Patents it is pro­vided that none shall practise in the City of London or the Suburbs of that; or within seven miles of the said City, or exercise the faculty of Physick, if he be not to that admitted by the Letters of the President and Colledge, sealed with their common Seal, under the Penalty of a hundred shillings, for every Moneth (that he not [Page 80] being admitted) shall exercise the said faculty; further we will and grant for us and Our Succes­sors, that by the President and Colledge of the Society for the time being, and for their Succes­sors for ever, that they may choose four every year, that shall have the overseeing, and searching, correcting, and governing, of all in the said City being Physicians, using the faculty of Medicines in the said City, and other Physicians abroad whatsoever using the faculty of Physicking by any means frequenting and using, within the City or Suburbs thereof, or within seven miles in com­pass of the said City, and of punishing them for the said offences, in not well executing, making and using that: And that the punishment of those Physicians using the said faculty, so in the premises offending, by Fines, Amercements, Im­prisonments of their Bodies, and by other rea­sonable and fitting waies shall be executed: Note the preamble of these Letters Patents is, Quod cum [...]regii officii nostri munus arbitremur, ditionis nostrae, Hominum felicitati omniratione Consulere: Id autem vel inprimis fore, si improborum conaminibus tempe­stive occurramus, apprime necessarium fore deximus, improborum quoque hominum, qui medicinam magis avaritiae suae causa, quam ullius bonae conscientiae fidu­cia profitebuntur unde Rudi & credulae plebi plurima incommoda oriuntur, audaciam compescere. And that the Plaintiff practised in London, without admis­sion of the Colledge, and being Summoned to ap­pear at the Colledge, and examined if he would give satisfaction to the Colledge according to the [Page 81] said Letters Patents and Statute, he answered that he had received his decree to be Doctor of Phy­sick by the University of Cambridge, and was al­lowed by the University to practise, and confest that he had practised within the said City, and as he conceived, it was lawful for him to practise there, that upon that the said President and Com­monalty fined him to a hundred shillings, and for not paying that and his other contempt, commit­ted him to prison, to which the Plaintiff replied as aforesaid, and upon this demurrer was joyned: And Harris for the Defendant, saith, that this hathSerjeant Har­ris the youn­ger. been at another time adjudged in the Kings Bench, where the said Colledge imposed a Fine of five pound upon a Doctor of Physick which practised in London without their admission, and for the non payment of that, brought an Action of Debt, and adjudged that it lay well, and that the Sta­tute of 32. H. 8. extends as well to Graduats, as to others, for it is general, and Graduats are not excepted in the Statute, nor in the Letters Patents, and all the mischiefs intended to be redressed by this, are not expressed in that, and the Statute shall not be intended to punish Impostors only, but all other which practise without examina­tion and admittance; for two things are necessa­ry to Physicians, that is, learning and experience, and upon that there is the proverb, Experto crede Roberto: And the Statute intends that none shall practise here but those which are most learned and expert, more then ordinary: And for that the Statute provides, that none shall practise here [Page 82] without allowance and examination by the Bishop of London and the Dean of Pauls, and four learned Doctors: But in other places the examination is referred only to the Bishop of the Diocess, and the reason of the difference is, for that, that London is the heart of the Kingdome: And here the King and his Court, the Magistrates and Judges of the Law, and other Magistrates are resident, and with this agreed the government of other well go­verned Cities in Italy and other Nations, as it appears by the preamble of the said Letters Pa­tents: and it appears by the Statute, that this was not intended to extend to Impostors only, for that the word Impostor is not mentioned in the Sta­tute: And the Statute provides that they shall be punished, as well for doing and using, as for ill using: And also it is provided that the Statute of 1. Marie 1. Parliament, chap. 9. That the Guar­dians, Goalers, or Keepers of the Wards, Goals, and Prisons within the City and Precinct of that, shall receive unto his Prison all such person and persons so offending which are sent or committed to them, and those safely shall keep without Bayl, till the party so committed, shall be discharged by the said President, or other person by the said Colledge to that authorised, by which it appears, that the Goalers, Keepers of Prisons, have power to retain such which are committed: That then the President shall have power to commit, for things Implyed are as strong as things Expressed; as it appears by the Com. Stradling and Morgans Case: and also in the Earl of Leicesters Case, [Page 83] where it is agreed, that Joynture before Cover­ture cannot be waved, and this is implyed within the Statute of 27. H. 8. And so the Statute of 2. Ed. 6. Provides that after seven years Tythes shall be paid, by which it is Collected by Im­plication, that during seven years, Tythes shall not be paid; and so he prayed Judgement for the Defendants.

Dodridge Serjeant of the King, for the Plaintiff said, that the Statute of [...]4 H. 8. chap. 5. and the Letters Patents give power to four Censors to pu­nish for ill executing, doing, and using the fa­culty of a Physician, and the Plantiff was not charged for ill executing of it, doing or using: But it is averred, where Revera the Plaintiff was nothing sufficient to exercise the said Art, and being examined, less apt to answer, and thereup­on they forbade him, and being sent for and not appearing, was amerced five pound, and order that he should be Arrested, and being Arrested, upon his appearance, being examined if he would submit himself to the said Colledge; he answer­ed and confessed, that he had practised within the said City, being a Doctor of Physick as afore­said, as well to him it was lawful, and that he would practise here again, for which he was committed to Prison: So that he was amerced for his contempt in the using of the said Art, and committed to Prison for his answer upon his examination: And he conceived that there are two questions considerable.

[Page 84]First, if the Colledge may restrain a Doctor of Physick of his practise in London.

Secondly, admitting that they may, then if these are the causes for which they may commit by their Letters Patents; the first reason is drawn from the Letters Patents, and the said Statutes, in which he said that the intent of the King was theWalter. end of his work: And this intent shall be ex­pounded for three reasons apparent in the words contained in the Grant.

First, Intempestive conatibus occurrere.

Secondly, Improborum Hominum, qui medicinam magis avaritiae suae causa, quam ullius bonae Con­scientiae fiducia profitebantur, audaciam Compescere.

Thirdly, which would invite learned men to practise here, and for that would, quod collegium [...] Doctorum & graviorum virorum qui me­dicinament in urbe nostra Londino & suburbibus in­fra septem millia passuum in urbe quaquaversus, publice Exerceant institui volumus & imperanus: And further he said, that there are three sorts of men, which meddle with the Body of a man.

First, is the learned man which reads all Books extant, and his knowledge is speculative, and by that he knew the nature of all simples.

And the second is practive, the knowledge of which is only his experience, he may give Proba­tum est: But the ignorance of the cause of the disease, and the nature of the things which he ap­plies for the cure of that.

And the third is an Impostor, which takes upon him the knowledge which he hath not, and eve­ry of them the Colledge may punish, for Male [Page 85] utendo, faciendo vel exequendo, by what they will: And this was not the first care which was had, for in the 9. H. 5. was a private Act made for Physicians, by which there is great regard to them which are learned and educated in the Uni­versity: And for that the Act provides that they shall not be prejudicial to any of the Universi­ties of Oxford and Cambridge, and with this agrees 3. H. 8. 11. and the priviledges of them, and the Docti & graves homines, mentioned in the Letters Patents, are the learned men mentioned in the Act, for the Statute provides that they shall punish ac­cording to these Statutes, and late edicts: And by the former Lawes the Universities, that their priviledges were excepted, and by their former Statutes, the Letters Patents ought to be directed, for it is referred them: Also the Statutes of this Realm have alwaies had great respect to the Graduats of the Universities, and it is not with­out cause, for Sudavit & Alsit, and hath no other reward but this degree which is Doctor, and for that the Statute of 21. H. 8. prefers Graduates, and provides that Doctors of Divinity or Bache­lors shall be capable of two Benefices with Cure without dispensation: And so 13. Eliz. provides that none shall be presented to a Benefice above the value of thirty pound per annum, if he be not a Doctor or Bachelor of Divinity: And to the objection, that none shall practise in London or seven miles circuit of it without license, that this clause shall be expounded according to the mat­ter, and to that he agreed, for the other branches [Page 86] of the Statute are made to cherish grave and learned men, and for that it shall not be intended, that this branch was made for the punishment of those, but of others which the Statute intended to punish.

And to the second objection, that every Do­ctor is not the learned and grave man intended within the Statute, for the knowledge of many of them is only speculative without practise, to that he answered, that all their Study is practise, and that if they have no practise of themselves, then they attend upon others which practise, and apply themselves to know the nature of Sim­ples.

And to the third objection, that in London ought to be choice men, for the Statute appoints that they shall be examined by the Bishop, and Dean, and four others at least, and for that there is a more strict course for them, then in other places, to that it is agreed: But he said that in the Uni­versity there is a more strict course then this, for here he ought to be publickly approved by many after he hath been examined and answered in the Schooles to divers questions, and allowed by the Congregation-house: And 35. H. 6. 55. Doctor is no addition, but a degree, (quia grada­tim & progressione Doctrinae provenit, to that, and that Doctor is teacher, and that he was first taught by others as Scholars, afterwards he is Master, and Doctor dicitur à docendo, quia docere permittitur, and they are called Masters of their faculty, and that the Original of Doctor came [Page 87] of the Synagogue of Jewes, where there were Do­ctors of Law; and it appears that they had their ce­remonies in time of H. 1. And when a man brings with him the Ensign of Doctrine, there is no rea­son that he should be examined again, for then if they will not allow of him, he shall not be al­lowed, though he be a learned and grave man, and it was not the intent of the King to make a Mono­poly of this practise.

And to the second point that he propounded, it seems that the Justification is not good, which is, Quia non comparuit upon Summons, he was amerced, and ordered that he shall be arrested, and being arrested, being examined if he would submit himself to the Colledge, he answered that he was a Doctor, and had practised and would practise within the said City, as he conceived he might lawfully do, and for that shewing of this case he was committed to prison; and he concei­ved two things upon the Charter.

First, That it doth not inhibit a Doctor to practise, but punisheth him for ill using, exerci­sing, and making, and may imprison the Empe­rick and Impostor, and so prayed Judgement for the Plaintiff; and after in Hillary Term, in the same year, this case was argued by all the Ju­stices, of the Common Bench, and at two seve­ral daies, and the first day it was argued by Foster, Daniell, and Warburton, Justices, at whose Arguments I was not present, but Foster ar­gued against the Plaintiff, and Daniell and War­burton with him, and that the Action of false im­prisonment [Page 88] was well maintainable. And the se­cond day the same case was argued again by Walmesley Justice, and Coke chief Justice, and Walmesley argued as followeth, that is, that theWalmesley. Statute of 3. H. 8. was in the negative, that no person within the City of London or seven miles of that, take upon him to exercise or occupy, as Physician or Chirurgeon, &c. And he doth not know in any case where the words of the Statute are negative, that they admit any Interpretation against that but one only, and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County, and the beasts distrained drive into another County, in which case though that the words are negative, yet if the Lord distrain in one Country, he may drive his beasts to his Mannor in another County, of which the Lands, in which the distress was taken, were held, but it is equity and reason in this case, that the Statute should admit such exception, for it is not of malice, but for that, that the Beasts may remain within his Fee, but in the principal case there is not the like reason nor Equity. And also the King H. 8. in his Letters Patents recites as followeth, that is, Cum Regii officii nostri munus arbitremur, ditionis nostrae hominum selicitati omni ratione consulere, id autem vel imprimis fore, si Im­proborum conatibus tempestive occurremus, apprime ne­cessarium duximus improborum quoque hominum, qui medicinam magis avaritiae suae causa quam ullius bonae conscientiae fiducia profitebantur, &c. By which it appears, that it is the office of a King to survey [Page 89] his Subjects, and he is as a Physician to cure their Maladies, and to remove Leprosies amongst them, and also to remove all fumes and smels, which may offend or be prejudicial to their health, as it appears by the several Writs in these several cases provided, and so if a man be not right in his Wits, the King is to have the Protection and Govern­ment of him, lest he being infirm, waste, or con­sume his Lands or Goods, and it is not sufficient for him that his Subjects live, but that they should live happily, and discharges not his Office, if his Subjects live a life, but if they live and flourish, and he hath care as well of their Bodies as of their Lands and Goods, for Health for the Body is as necessary as vertue to the minde, and th [...] King H. 8. to express his extraordinary care of his Subjects made the said Act, in the third year of his Reign, which was the beginning of his Es­sence, to that purpose, and by the Common Law, any Physician which was allowed by the Univer­sity might practise and exercise the said faculty within any place within England, without any dispensation, examination or approbation of any, but after the making of the said Act made in the third year of King H. 8. none may practise, exer­cise, or occupy as Physician or Chirurgeon with­in the City of London and seven miles of that, if he be not first examined, approved, and ad­mitted by the Bishop of London, and the Dean of Pauls for the time being, calling to them, four Doctors of Physick or Chirurgeons▪ &c, And that no practiser may occupy or exercise the said fa­culty [Page 90] out of the said Precincts, if he be not first examined, approved, and admitted by the Bishop of the Diocess, or in his absence, by his Vicar ge­neral, every of them calling unto him such expert persons in the said faculty, as their discretions think covenient, and the reason of this difference as he conceived, was for that, that in this City, and the said Precincts, the King and all his Coun­cel, and all the Judges and Sages of the Law, and divers other men of quality and condition, live and continue, and also the place is more subject unto Infection, and the aire more pestiferous, and for that there is more necessity, that greater care, diligence, and examination be made of those which practised here in London and the Precincts aforesaid, then of those which practise in other places of the Realm, for in other places the peo­ple have better air, and use more exercise, and are not so subject to Infection, and for that there is no cause that such care should be used for them, for they are not in such danger, and in the Statute there is not any exception of the Universities nor of those which are Graduats there, and for that they shall be tryed by the said Act, and the Sta­tute of 14. H. 8. chapter 5. only excepts those which are Graduats of Oxford or Cambridge which have accomplished all things for the form with­out any Grace; and if this Exception shall be in­tended to extend to others, then all the Universi­ty shall be excepted by that, and such exception was too general; and over he said, that the Plaintiff gave absurd and contemptous answer, [Page 91] when he being cited before them, said that he would not be ruled nor directed by them (being such grave and learned men,) and for that, that he hath practised against the Statute he was wor­thily punished and commited, for it should be a vain Law if it did not provide punishment for them that offend against that; and Bracton saith, Nihil est habere Leges, si non sit unus qui potest Leges tueri, and for this here are four grave and discreet men to desend and maintain the Law, and to pu­nish all Offenders against that, according to the Statute, by Imprisonment of their Bodies and other reasonable waies, and the said four men have the search as well of those men, as of other Mediciners, and the Statute of 1. Marie provides that the Keepers of Prisons, shall receive all which are committed by the said four grave and learned men, and though there be great care com­mitted to them by the said Statute, and the said Letters Patents, yet there is a greater trust repo­sed in them then this, for we commit to them our lives, when we receive physick of them, and that not without cause, for they are men of Gravity, Learning, and Discretion; and for that they have power to make Lawes, which is the Office of the Parliament, for those which are so learned may be trusted with any thing; and for the better making of these, they have power to assemble all the Commons of their Corporation, and the King al­lowes of that by his Letters Patents, for it is made by a Congregation of wise, learned, and discreet men, and the Statute of 1. Marie inflicts punish­ment [Page 92] upon Contempts, and not for any other of­fences, and they held a Court, and so may com­mit as every other Court may for a contempt of common right, without Act of Parliament, or In­formation, or other legal form of proceeding upon that, as it appears by 7. H. 6. for a con­tempt committed in a Leet, the Steward commit­ted the Offender to Prison; and it was absurd to conceive that the Statute will allow of com­mitment without cause, and it is a marvelous thing that when good Lawes shall be made for our health and wealth also, yet we will so pinch upon them, that we will not be tried by men of experience, practise, and Learning, but by the University, where a man may have his Degree by grace without merit, and so for these reasons he concluded that this Action is not maintaina­ble.

Coke chief said, that the Cause which was plea­dedCoke. for, that the Plaintiff was committed, was for that, that he had exercised Physick within the City of London by the space of a Moneth, and did not very fitly answer, for which it was ordained by the Censors that he should pay a hundred shillings, and that he should forbear his practise, and that he did not forbear, and then being warned of that, and upon that being summoned to appear, did not appear, and for that it was or­dained, that he should be arrested, and that after he was summoned again; and then he appeared, and denied to pay the hundred shillings, and he said that he would practise, for he was a Doctor [Page 93] of Cambridge, and upon that it was ordained that he should be committed, till he should be delive­red by the Doctors of the Colledge, and upon this was the Demurrer joyned, and in pleading the Plaintiff said, that he was a Doctor of Philoso­phy and Physick, upon which the Lord took oc­casion to remember a saying of Galen, that is, ubi Philosophia desinit, ibi medicina incipit, and he said the only question of this case depends not up­on the payment of the said hundred shillings, but upon the words of the Letters Patents of the King, and the said two Statutes, the words of which are Concessimus eidem praesidenti, &c. Quod nemo in dicta Civitate, aut per septem milliaria in circuitu ejusdem exerceat dictam facultatem, nisi ad hoc per dictum praesidentem & communitatem seu suc­cessores, eorum qui pro tempore fuerint, admissus sit, per ejusdem praesidentis & Collegii literas sigillo suo com­muni sigillatas sub paena centum solidorum pro quolibet mense quo non admissus eandem facultatem exercuit, dimidium inde nobis, & haeredibus nostris, & dimi­dium dicto praesidenti & Collegio applicandum, & prae­terea volumus & concedimus pro nobis, &c. Quod per praesidentem & Collegium communitat [...] pro tem­pore existent. & eorum successores in perpetuum, quatuor singulis annis per ipsos eligantur, qui habe­ant supervisum, scrutinium, & correctionem & gu­bernationem omnium & singulorum dictae Civitatis medicorum utentium facultate, medicinae in eadem Ci­vitate, ac aliorum medicorum, forinsecorum quorum­cunque facultatem illam medicinae, aliquo▪ modo fre­quentantium & utensium infra eandem civitatem & [Page 94] suburbia ejusdem vel septem milliaria in circuitu ejus­dem Civitatis ac punitionem eorundem pro delectis suis, in non bene exequendo, faciendo & utendo illa, nec non supervisum & scrutinium hujusmodi medicorum & eorum receptionum, per praedictos medicos sive ali­quem eorum hujusmodi legeis nostris pro eorum Infir­mitatibus curandis & sanandis, dandis imponendis & utendis quoties & quando opus fuerit, procommodo & utilitate eorundem legiorum nostrorum; Ita quod punitio hujusmodi medicorum utentium dicta facultate medicinae sic in praemissis delinquentium, per Fines, Amerciamenta, Imprisonamenta corporum suorum & per alias vias rationabiles & Congruas exequantur, as it appears in Rastal Physicians 8018, 392. So that there are two distinct Clauses.

The first, if any exercise the said Faculty by the space of a Moneth without admission by the President, &c. shall forfeit a hundred shillings for every Moneth be that good or ill, it is not ma­terial, the time is here only material, for if he exercise that for such a time, he shall forfeit as aforesaid.

The second clause is, that the President, &c. shall have Scrutinium Medicorum, &c. & punitio­nem eorum pro delictis suis in non bene faciendo, utendo & exequendo, &c. And for that the President and the Colledge may commit any delinquent to Pri­son: And this he concluded upon the words of the Statute, and he agreed with Walmesley, that the King hath had extraordinary care of the health of the Subjects. Et Rex censetur habere omnes Artes inscrinio pectoris, and he hath here pursued the [Page 95] Course of the best Physicians, that is, Removens & promovens, removens Improbos illos, qui nulli bonae conscientiae fiducia profitebantur & audaces, & pro­movens ad sanitatem: And for that the Physician ought to be profound, grave, discreet, grounded in learning, and soundly studied, and from him cometh the medicine, which is removens & promo­vens.

And it is an old rule, that a man ought to take care, that he do not commit his Soul to a young Divine, his Body to a young Physician, and his Goods or other Estate to a young Lawyer, for in Juvene Theologo est Conscientiae detrimentum; in Juvene Legislatore bursi detrimentum, & in Juvene Medico Coemeterii incrementum, for in these cannot be the privity, discretion, and profound learning which is in the aged: And he denied that the Colledge of Physicians is to be compared to the University, for it is subordinate to that, Cantabrigia est Acade­mia nostra nobilissima totius Regni oculus, & sol ubi humanitas & doctrina simul fluunt: But he said, when he names Cambridge he doth not exclude Oxford, but placeth them in equal Rank: But he would alwaies name Cambridge first, for that was his Mother: And he saith that there is not any time, Pro non bene faciendo, utendo & exequendo, for this non suscipit Majus & Minus, for so a man may grievously offend in one day, and for that in such a case, his punishment shall be by Fines, Amerce­ments, Imprisonments of their Bodies, and other waies, &c. But if practise well, though it be not an offence against the Letters Patents and the [Page 96] Statutes yet the punishment shall be but pecuniary, and shall not be Imprisoned, for if he offend the Body of a man, it is reason that his Body shall be punished, for Eodem modo quo quis delinquit, eodem punietur, but if a grave and learned Doctor or other, come and practise well in London by the space of three weeks and then departs, he is not punishable by the said Colledge, though that be without admission, for peradventure such a one is better acquainted with the nature and disposition of my Body, and for that more fit to cure any Malady in that then another which is admitted by the Colledge, and he said that it was absurd to punish such a one, for he may practise in such manner in despite of the Colledge, for all the Lords and Nobles of the Realm, which have their private Physicians, which have ac­quaintance with their Bodies, repair to this City, and to exclude those of using their advice, were a hard and absurd exposition, for the old verse is,

And also he said that the said President and Col­ledge cannot commit any Physician, which exer­ciseth the said faculty without admission, for the space of a Moneth, nor bring their Action before themselves, nor levy that by any other way or means: but ought to have their Action or exhibit an Information upon the Statute, as it appears by the Book of Entries, for they ought to pursue their power which is given to them by the Statute, for otherwise the penalty being given, the one Moity to them, and the other to the King, they [Page 97] shall be Judges in Propria causa, and shall be Sum­moners, Sheriffs, Judges, and Parties also, which is absurd; for if the King grant to one by his Letters Patents under the Great Seal, that he may hold Plea, although he be party and if the King doth not ap­point another Judge, then the Grantee which is party, the Grant is void, though that it be confir­med by Parliament, as it appears by 8. H. 6. 44. Ed. 3. The Abbot of Readings Case, for it is said by Herle in 8. Ed. 3. 30. Tregores Case, that if any Statutes, are made against Law and Right, and so are these, which makes any man Judge in his own cause, and so in 27. H. 6. Fitz. Annuity 41. that the Statute of Carlile will that the order of Cistertians and Augustines, which have Covent and Common Seal, that the Common Seal shall be in keeping of the Prior, which is under the Ab­bot, and four others which are the most Sages 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 that this is a void Statute, for it is imperttinent to be ob­served, being the Seal in their keeping, the Ab­bot cannot Seal any thing with it, and when that it is in the hands of the Abbot, it is out of their keeping, ipsofacto: And if the Statute shall be ob­served, every common Seal shall be defeated by one simple surmise, which cannot be tried, and for that the Statute was adjudged void, and re­pugnant: And so the Statute of Glocester which gives Cessavit after Cesser by two years to be brought by the Lessor himself, was a good and [Page 98] equitable Statute: But the Statute of Westminster 2. chap. 3. which gives Cessavit to the Heir for Ces­ser in time of his Ancester, and that, that was judged an unreasonable Statute in 33. Ed. 3. for that, that the Heir cannot have the arrearages due in the time of his Father, according to the Statute of Glocester, and for that it shall be void: And also the Physicians of the Colledge, could not punish any by Fine and also by Imprisonment, for no man ought to be twice punished for one offence, and the Statute of 1. Mariae doth not give any power to them to commit for any offence w^ch ▪ was no offence within the first Statutes, & for that he ought not to be committed by the said Statute of 1. Mariae: But admitting that they may commit, yet they have mistaken it, for they demand the whole hundred shillings, and one half of that be­longs to the King: And also they ought to com­mit him forthwith, as well as Auditors which have Authority by Parliament, to commit him which is found in arrearages: But if he do not commit him forthwith, they cannot commit him after­ward, as it appears by 27. H. 6. 9. So two Ju­stices of the Peace may view a force and make a Record of that, and commit the offenders to Pri­son, but this ought to be in Flagranti Oriente: and if he do not commit those immediately upon the view, he cannot commit them afterwards, and the Physicians have no Court, but if they have, yet they ought to make a Record of their commitment, for so was every Court of Justice: But they have not made any Record of that: And [Page 99] Auditors and Justices of Peace, ought to make Records, as it appears by the Book of Entries: So that admitting that they may commit, yet they ought to do it forthwith, but in this case they cannot commit till the party shall be deliver­ed by them, for this is against Law and Justice; and no Subject may do it, but till he be delivered by due course of Law, for the commitment is not absolute, but the cause of that is traversable, and for that ought to justifie for special cause; for if the Bishop returns that he refuses a Clerk, for that he is Schismaticus Inveteratus, this is not good, but they ought to return the particular matter: So that the Court may adjudge of that: Though it be a matter of Divinity and out of their Sci­ence, yet they by conference may be informed of it, and so of Physick: And they cannot make any new Lawes, but such only which are for the bet­ter government of the old; and also he said plain­ly, that it appears by the Statute of 1. Mariae: That the former Statutes shall not be taken by equity, for by these the President and Commons have power to commit a Delinquent to Prison, and this shall be intended, if they shall be taken by equity, that every Goaler ought to receive him which is so committed: But when it is provided by 1. Mariae, specially that every Goa­ler shall receive such offenders: That by this ap­pears, that the former Statute shall not be taken by equity: And so he concluded, that Judge­ment shall be entred for the Plaintiff, which was done accordingly.

[Page 100] Coke in the conclusion of his argument ob­served these 7. things for the better direction of the President and Comminalty of the said Col­ledge for the time to come. 1. That none may be punished for practise of Physick in London but by the forfeiture of 5 l. a Month, which is to be recovered by Law. 2. If any one pra­ctise Physick there less then a Moneth, that he shall forfeit nothing. 3. If any person prohi­bited by the Statute offend in non bene exequen­do, &c. they may punish him according to the Statute within the Month. 4. Those whom they may commit to prison by the Statute ought to be committed presently. 5. The fines which they impose according to the Statute belong to the King. 6. They may not impose a fine or imprisonment without Record thereof. 7. The cause for which they impose fine or imprison­ment must be certain.

UPon the complaint of divers persons against the said Barton for practising of Physick, the said Barton was sent for by a Messenger of his Majesties Chamber, who appearing before the President and Censors the 6. of Septemb. 1639. and many things being laid to his charge, yet for some reasons he was bound with sureties to ap­pear again before them the 4. of October follow­ing; And he then also appearing was for the Causes in the Censors Warrant expressed, com­mittedBartons Com­mitment. to the Prison of Woodstreet-Compter London, where he remained till the 19. of October follow­ing, never having by all that time petitioned the Colledge for his liberty; and then by vertue of a Writ of hab. Corpus, which he had sued forth of the Kings-Bench, he was carried with his Cause to the Kings-Bench Bar at Westminster. The Copy of which Warrant and the return thereof here immediately ensueth.

Nos Johannes Warner & Thomas▪ Adams vic. Ci­vit. London ss. [...] Sheriffs. R [...] ­turn. London, Serenissimo Dno Regi in brevi huis schedul. annex. noiat ad diem & locum in eodem bri. content. [Page 102] certificamus, quod ante adventum nob. predct. bris scilt. duodecimo die Sept. Anno Regni dci. Dni Regis nunc Angl. &c. decimo quinto Christophorus Barton in dco. bri noiat. comissus fuit prisone Dni Regis scilt. Com­putator. situat. in Woodstreet London predct. & in eadem prisona sub Custodia Isaaci Pennington & Jo­hannis Wollaston tunc vic. Civit. predct. & in eorum exit ab officio suo, sub custodia nr. detent. virtute cu­jusdam Warranti Otwelli Meverell, Laurentii Wright, Edmundi Smith, & Willmi Goddard in Medicinis Dctor. et Censor. Collegii Medicor. in London. sub si­gillo Coi. Collegii Medicor. London pred. Custod. predct. computorii London predct. vel ejus deputat. direct. cu­jus quidem Warranti tenor sequitur in haec verba.

ss. We Otwell Meverell, Lawrence Wright, Ed­mund Colledge Warrant. Smith, and William Goddard, Doctors in Phy­sick and Censors of the Colledge of Physicians in London being chosen by the President and Col­ledge of Physicians aforesaid to govern and punish for this present year all Offendors 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 to us duly given by certain Letters Patents under the Great Seal of England made and granted to the said Colledge and Comminalty by the late King of famous memory King Henry the 8^th bearing date the 23. day of September in the tenth year of his reign; and one Act of Parliament made in the 14. year of the reign of the said late King Henry the 8^th concerning Physicians, where by the Letters Patents aforesaid and every thing [Page 103] therein are granted and confirmed. And by ver­tue of the said Act of Parliament and Letters Pa­tents aforesaid, and one other Act of Parliament made in the first year of the reign of our late So­veraign 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 Colledge-house in Pater noster-Row in London, one Christopher Bar­ton, and we have examined the said Christopher Barton, and upon his examination and other due proofs, we have found that the said Christopher 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 S. Botolphs Parish Aldgate London, and the Childe of one Jane Bigge, and some others, in the moneth of Ja­nuary in the year 1638. contrary to the Lawes in that behalf made and provided; whereupon we have imposed upon the said Christopher Bar­ton a Fine of 20 l. for his evil practise in Phy­sick aforesaid; And we have also for the same cause sent you the Body of the said Christopher Barton, willing and requiring you in the Kings Majesties name to receive and keep him in safe custody as prisoner, there to remain at his own costs and charges without bay [...] or mainprize un­till he shall be discharged of his said imprison­ment by the President of the said Colledge, and by such persons as by the said Colledge shall be there unto authorised according to the Statute in [Page 104] that behalf made, and this our Warrant shall be your discharge. Given at the said Colledge the eleventh day of September in the fifteenth year of the Reign of our Sovereign Lord King Charles.

Otwell Meverell, Edm. Smith, Lawr. Wright, William Goddard.

To the Keeper of Woodstreet Compter London, or his Deputy.

To Mr. John Penyall one of the Messengers of his Majesties Chamber in Ordinary to execute this Warrant:

Et haec est causa accepcois & detenconis prefati Christophori Barton in prisona predct. sub custodia nra corpus Cujus quidem Christophori coram prefat. Dno Rege apud Westm. parat. habemus.

Being at the Bar the said 19. of October, for that the Lord chief Justice Sir John Bramston was not present, the other Judges present would not ac­cept of Bayl, which the said Barton tendred, but suspended the matter untill Tuesday the 22. of October following, Barton for that time was re­turned back; and coming to the Bar again on the said Tuesday with his Councel and Bayl, the Lord Bramston being then present, my Lord de­manded the return of the warrant, which was neglected by the Clerks of the Court, and left in the Crown Office in the Temple, so my Lord would not proceed, but respited the cause untill Thursday the 24. of October following, when all parties appearing with Councel on both sides, the Warrant and Return was read, and the Cause debated, and there the Court plainly declared, [Page 105] that he should not be bayled, it being against the Law, and the Letter of the Warrant grounded upon the Statutes. Then it was desired by Bar­tons Councel, that he might go over to the Kings-Bench, which also was denied, because he was committed originally to the Compter in Woodstreet, as appeared by the Warrant, and so Barton was remanded by the Court to the said Compter, and willed if he would have Liberty to submit to theBarton remit­ted to pri­son. Colledge and make his peace there: Barton being in Custody of the Serjeant that carried him up to the Bar e [...]ibited his humble Petition to the President and Censors the 25. of October signed with his own hand for abatement of part of his Fine and for his enlargement, submitting in all things unto them; whereupon the President and Dr. Meverell one of the Censors▪ were contented to abate the half of his Fine of 20 l. and to ac­cept of 10 l. the one half to be paid in hand (which was paid) and the other half at our La­dy day next. And so upon the 29. of October signed his discharge and set him at liberty, he being put again before his enlargement into the said prison.

ERror of a Judgment upon a Demurrer in the Com­mon-Bench. The first Error assigned was be­cause the Record was, Ad respondendum Domino Regi & Praesidenti Collegii &c. Qui tam pro Domino Rege, quam pro seipso sequitur quod reddat eis sexa­ginta libras, unde idem Praesidens qui tam &c. di­cit, &c. Whereas the Action ought to have been brought by the President only, qui tam, &c. and not by the King and President, &c. sed non allocatur: For being an Original Writ, the Writ is most of­ten so, and sometimes the other way: And they conceived it good both waies. But Informations are alwaies, that the party qui tam for the King, quam pro seipso sequitur, &c. Vide Plowd. 77. new Book of Entries, 160. old Book of Entries, 143. 373. The second Er­ror was, that the Replication was a departure from the Count; For the Count sets forth, That King Henry the eighth, anno decimo Regni sui incorporavit [Page 107] (& per le Statut of decimo quarto Henrici octavi con­firmavit) the Colledge of Physicians by the name of the President, &c. that no man should practise Physick in London, or within seven miles, without Licence under the Seal of the Colledge, upon penalty of 5 l. for every moneth that he so practised, the one moity unto the King, and the other unto the President of the Colledge, to the use of the said Colledge, And for that the Desendant not being allowed, &c. had pra­ctised Physick for twelve months in London, The said Action was brought, &c. The Defendant pleads the Statute of tricesimo quarto Henrici octavi cap. 8. That every one who hath Science and experi­ence of the nature of Herbs, Roots and Waters, or of the operation of the same by speculation or practise, may minister or apply in and to any outward Sore, Un­come, Wound, Aposthumations, outward Swelling or Disease; any Herb, Oyntments, Baths, Pultes, or Im­plaisters, according to their cunning experience and knowledge, &c. or Drink for the Stone and Strangu­ry, in any part of the Realm, without suit, vexation, &c. any Act or Statute to the contrary notwithstan­ding. And that he having skill in the nature of Herbs, Roots, and Waters, by speculation and practise, applied to persons requiring his skill, Herbs, Ointments, Baths, Drinks, &c. to their Sores, Uncomes, Wounds, and for the Stone and Strangury, or Agues, and to all other Diseases in the said Statute mentioned, prout ei benelicuit. Et quoad aliquam aliam practisationem seu facultatem medicinae aliter vel alio modo quod non est culpabilis. Et de hoc ponit, &c. And makes his averment, Et [Page 108] hoc paratus est verificare, The Plaintiff replies, and shews the Statute of primo Mariae capite nono, which confirms the Charter of decino Henrici octavi, and the Statute of decimo quarto Henrici octavi, and appoints that it shall be in force, not­withstanding any Statute or Ordinance to the contrary. And upon this it was demurred, be­cause it is a departure; for it intitles him by ano­ther Act, viz. the Statute of primo Mariae, which is not mentioned in the Count: and therefore 'twas assigned for Error. But all the Court here conceived, That it is no departure; Because it fortifies the Count, and is as to revive the Sta­tute of decimo quarto Henrici octavi, if it were re­pealed in this particular by the Statute of tricesi­mo quarto Henrici octavi: And for that the Case of Woodhead was shewn to the Court, Mich. 42. & 43. Eliz. rot. 397. where the President of the Colledge of All-Souls, bringing an Action upon the Case for taking Toll in, and shews a Charter of vicesimo sexto Henrici sexti to be dis­charged of Toll, the Defendant pleaded the Act of Resumption of Liberties granted by Henry the sixth, made, and so the Liberty gone. The Plaintiff pleaded a Reviver of them by the Statute of quarto Henrici septimi: And it was held to be no departure, but as it were a confession and avoiding. The third and principal Error as­signed was, if the Statute of tricesimo quarto Hen­rici octavi, be not repealed by the Statute of primo Mariae, and if not, Whether the Defendant hath made a sufficient Jusification? And quoad that, [Page 109] Whether the said Statute be repealed, the Court was not resolved. But Richardson, Chief Justice, conceived it was repealed by primo Mariae, by the general words, any Act or Statute to the contrary, of the Act of decimo quarto Henrici octavi notwithstan­ding. But I conceived, that the Act of tricesimo quarto Henrici octavi, not mentioning the Statute of decimo quarto Henrici octavi, was for Physicians: but the part of the Act▪ of trices▪ quar. Henrici octavi, was concerning Chirurgeons, and their applying outward Medicines to outward Sores and Dis­eases: And Drinks only for the Stone, Strangul­lion and Ague; That Statute was never intended to be taken away by the Act of primo Mariae. But to this point Jones and Woitlock, would not deli­ver their Opinions, But admitting the Statute of tricesimo quarto Henrici octavi, be in force, yet they all resolved, the Defendants Plea was naught, and not warranted by the Statute; for he pleads, That he applied and ministred Medicines, Plaisters, Drinks, ulceribus, Morbis & Maladiis, Calculo, Strangurio, Febribus, & aliis in Statuto mentionatis; so he leaves out the principal word in the Statute (Externis.) And doth not refer and shew, That he ministred potions for the Stone, Strangullion or Ague, as the Statute appoints to these three Dis­eases only, and to no other. And by his Plea his Potions may be ministred to any other sickness; wherefore they all held his Plea was nought for this cause, and that Judgment was well given against him; Whereupon Judgment was affir­med.

DEbt upon the Statute 14. H. 8. cap. 5. by the(4) Plaintiff, as President of the Colledge of Physicians in London, and of the Corporation of Physicians there: For that the Defendant used the Art of Physick in London, without Licence from the Colledge there, against the Statute, and their Charter: For which he demanded 5 l. for eve­ry moneth, being the penalty given by the Statute: The Defendant pleaded the Statute of 34. H. 8. which enables every one to practise Physick or Chirurgery, being skilful therein, notwithstan­ding any Act to the contrary. The Plaintiff replies, and shewes the Statute primo Mar. cap. 9. which confirms their Charter, and every Article thereof to stand in force; Any Act, Statute, Law, or Custome to the contrary notwithstanding. Hereupon the Defendant demurred; First, because this general clause in this Law doth not restrain the Statute of 34. H. 8. Secondly, that this pleading is a departure: For it ought to have been shewn before. Stephens argued for the Plaintiff. First, [Page 111] That the Act of 34. H. 8. is repealed by the Sta­tute of of Prim. Mar. Quoad the Colledge of Phy­sicians in London, as fully as if it had been by ex­press words recited and repealed: For when it confirms the Charter of 14. H. 8. and appoints, that it, and every part thereof shall stand, and be available: The Statute of 34. H. 8. cannot stand with it, Quia leges posteriores leges priores con­trarias abrogant, 4. Ed. 4. Porters Case Co. 1. fol, 25. Secondly, That it is not any departure: Because there is not any new matter; but matter pleaded in reviving of the former, or fortifica­tion thereof: And a Record was shewn, Mich. 10. & 11. Eliz. betwixt Bomelins & ..... where the Record was in the same manner as this Record is; and there the Plaintiff had Judgement: Wherefore, &c. And there being none on the Defendants part to argue, The Court upon hearing of the Record, gave rule, that Judg­ment should be entred for the Plaintiff, un­less, &c.

Scir. fac. Upon a Judgment in Debt upon the( [...]) Statute 14. H. 8. by Doctor Langhton Presi­dent of the Colledge of Physicians in London, who died before execution had; and thereupon the successor brought a Scir. fac. to have execution; It was thereupon demurred, because the Scir. fac. ought to be brought by the Executor or Admini­strator of him who recovered, and not by the suc­cessor. But upon hearing of the Record, without argument, the Court held, that the successor might well maintain the Action; For the Suit is given to the Colledge by a private Statute: And the Suite is to be brought by the President for the time being; And he having recovered in right of the Corporation, the Law shall transfer that du­ty to the successor of him who recovered, and not to his Executors: The Action being brought, for that he practised Physick in London without Li­cence of the Colledge of Physicians, against the Statute of 14. H. 8. Wherefore it was adjudged for the Plaintiff.

AT a Trial had at Guild hall before Justice Nicholas, Nov. 27. 1656. upon an Infor­mation, it was found for Barker upon these words in the Information mislaid (by Letters of the said President and Comminalty Sealed) whereas the words of the Charter are, Sealed by the Seal of the Presi­dent and Colledge.

Barkers Councel at the Bar pressed it upon the witnesses whether they gave Barker money for ad­vice only, or for Physick only, or both; They said that he only sold his Medicines as Apothecaries and any Free-man of London might do. Our Witnesses swore that Barber took their money for both.

Serjeant Maynard then urged that the King never gave his assent to this Charter as appeareth (said he) by the Rolls of that Session of Parlia­ment, a Copy whereof he brought into the Court. And the reason then assigned was be­cause the usual words le Ray le veult were not sub­scribed to this Act. But Mr. Finch desired that point might be put upon demur in Law after trial, Serjeant Maynard then waved the point.

After this trial, search was made for the Act upon the Physicians Charter at the Tower of Lon­don, but found that there were no Acts kept there, made since the reign of H. 7.

Then search was made at the Clerk of the Par­liaments Office at Westminster, but not one Act of that Sessions of Parliament nor any other from [Page 123] the 7. to the 22. of Hen. 8. found there, for most of the Acts kept there concern only particular actions or persons.

But at the Rolls this Charter was found, and that none of that part of the Act which is in Eng­lish in the Book of Statutes was there set down in writing, but the bare words of the Charter only, at the end whereof these words, but plain­ly in another hand (huc usque) were written, and after all this a good large space in the parchment wholly blank left as it seems to inscribe the rest of the Act.

After this Charter these words subscribed per ipsum regem, &c. which words as it appears by all other Acts passed in the same Roll, and as Mr. Clay­ton one of the keepers of the Parliament Rolls told me, in all other Acts made it manifest were pas­sed by the King himself being personally present in Parliament.

Upon farther search at the Rolls, I found the Act of Parliament its self, and had it exemplified under the Seal Dec. 18. 1658. So that the Char­ter its self is in one Roll, and the Act of Parlia­ment in another distinct Roll.

Now as to that objection, that these words le Roy le veult are not subscribed to this Act concer­ning Physicians, I answer, that neither were these words subscribed to some Acts preceding this, nor to any that followed it. And at the end of all this Roll 'tis said, the King having heard all the Acts recited and read, did confirm them, and comman­ded the Parliament to see them all observed.

[Page 124] Rastals and Poultons Statute Books, our Charter and Exemplification have all of them per Nomina Praesidentis Collegii seu Communitatis, &c. But in Bonhams Case in Cooks Reports 'tis per Nomina Prae­sidentis & Collegii. 'Twas the opinion of two of our Councel that Et would make a variation and nonsuit consequently. They both said that for the Tithes of London, and Magna Charta, there was no­thing extant but prescription.

If a Statute be special, particular, or private (as this of the Colledge is) then if any man will have benefit by or make use of it, or will charge another upon it, he must plead and shew the Sta­tute at large, vide Shepard in folio pag. 917. Crom­pton, fol. 15. 1617.

Lord chief Baron Steele at a Plea holden at Kingston upon Trent 1655. the Action being laid in Nomine Praesidentis Collegii seu Communitatis, &c. and the Defendants pleading it ought to run ac­cording to Cooks Reports, in Nomine Praesidentis & Collegii, salved it thus, by saying there was to be put a Comma after. Praesidentis, betwixt it and Collegii, and so did tantamount to Praesidis & Collegii.

At a Trial at Guild-hall against Trigge for ill practise, Judgment for Trigge, because the Colledge could not prove what Medicines he gave, for he made his Medicines privately himself.

Blank for ill practise fined by the Censors 20 l. and upon a habeas corpus was remitted to prison, and paid the Fine. Ann. l. 2. pag. 186.

Trigge fined by the Censors for a Paracentesis 20 l. sent to Newgate, and paies the 20 l.