Chapter VIII: Part I (1)

1. _Of the College of Physicians._—2. _College of Surgeons._—3. _Society
of Apothecaries._—4. _Medical Liabilities and Exemptions._—5. _Public
Health._—6. _Quarantine Laws._—7. _Medical Police._

1. OF THE COLLEGE OF PHYSICIANS.

IT does not appear that the Professors of Physic were in any way classed, or incorporated, in England, until the year 1522, although we learn from the preamble of the Charter of Henry the Eighth, as well as from the petition of the 9th of Henry the Fifth, that other countries had long before that period established Medical Colleges, having considered such a measure not only as necessary for the encouragement of science, but as highly politic for the preservation of the public health.

England, although destined to take the lead in research and discovery at a later period, was in the sixteenth century far behind her continental neighbours in the field of Science. And with respect to the study and practice of physic, it seems probable that, until after the foundation of the College of Physicians, it had not even assumed the character and dignity of a regular profession; for we find that the very few learned men in that branch, which the annals of the period can furnish, had acquired their knowledge in the foreign universities.

Until the auspicious period of the Reformation, various circumstances contributed to retard the progress of medical science; the first and most considerable of which may be traced to the many monastic establishments[62] with which the country was infested; the Monks are known to have practised physic very extensively, and when the superstitious character of these ages is considered, we shall not feel surprised at the vulgar, and perhaps not the lower order alone, having preferred, to every other medical assistance, the aid of those who arrogated to themselves the immediate assistance of heaven in the preparation and administration of their medicines.

The Alchemists[63] were another, and very numerous class to whom we may justly refer the temporary degradation of the science of medicine. Like their lineal descendants, the Empirics of modern times, their attention was directed to the discovery of an universal specific which should be equally applicable to every disease; and as presumption is ever proportionate to incapacity, we need not be surprised that they should have been eagerly followed by the ignorant of their day, as their successors are by the vulgar of our own; under such circumstances there could have been but little encouragement to men of real learning, and as we find by the recital of the act of 5 _Hen._ 8. c. 6. that there were but twelve regular Surgeons practising in all London, we may safely conclude that the number of legitimate physicians must have been proportionally smaller. The Universities of Oxford and Cambridge had probably from the time of their foundation conferred degrees in medicine, but these do not appear to have carried with them any general privilege or authority; their rights indeed were reserved by the concluding section of the 3d _Hen._ 8, _c._ 11, but in what those rights consisted has not been judicially determined, even though the litigation to which the Act and the subsequent Charter of the College gave rise, would naturally have produced some decision on this point, had the extent of those ancient rights ever been legally defined[64]. We shall not consume any farther time upon this question, for although it might be a subject of some antiquarian curiosity, it would furnish but little matter of professional interest, or practical utility. In the present age the Universities of Oxford and Cambridge are firmly united by a communion of sentiment and interest to the College of Physicians, and physicians are rarely admitted as Fellows[65] of this learned body, unless they have previously graduated in one of the English Universities, or at Trinity College, Dublin, but even in this latter case, it is required that the candidate for admission should have been previously incorporated either into the University of Cambridge or Oxford. That a distinction founded on such a basis should have excited an angry and jealous feeling in the excluded party is not extraordinary; and the authors of the present work hope that they shall stand excused for offering a few remarks upon a subject which they consider vitally interwoven with the best interests of the profession. The arguments which have been so repeatedly urged against the justice, as well as policy, of the Bye-law[66] which thus excludes all, but the graduates of an English University, from the honours of the Fellowship, may be easily refuted, and its salutary tendency, in relation to the interests of the public, as well as to the dignity of the profession, very satisfactorily demonstrated. For the complete knowledge of medicine, as a science, all the collateral lights of natural philosophy and erudition, are required; while for its successful practice as an art, the physician should possess those high qualifications of mind, and have received that moral cultivation which a mere technical education can never bestow. We are willing to admit that “the curative art cannot be learnt on the sequestered banks of the Cam or the Isis, as well as amid the distress and sickness of a great city;” but we assert with equal confidence, that the liberal pursuits, and wholesome discipline of an English university, can best prepare the mind for the full and extensive benefits, which the pupil is afterwards to derive from his professional studies in the metropolis; and if it be essential to encourage a liberal education amongst those who are destined to move in the higher walks of physic, we would ask whether any plan could be derived more likely to ensure our object, than that fair and honourable reward which is held out by this unjustly reviled bye-law of the College of Physicians. It has been urged, that the education of a physician is thus rendered materially and unnecessarily expensive; and that the delay of twelve years, which are required for the full completion of the highest medical degree, proves another great and vexatious hardship;—to all this we reply, that we should politically resist any measure that had the least tendency to divest medical education of its pecuniary sacrifices, and to open the temple to a crowd of needy and half-educated adventurers. Tissot seems to have entertained the same sentiment, and he observes that, for these reasons, no person ought to be allowed to study physic in his native city: the operation of this bye-law will therefore furnish the surest guarantee of professional respectability, and the College of Physicians will continue to enroll names distinguished for science and erudition, men who will cast a lustre on the profession, over which they preside: let then the practitioner in medicine beware how he attempts to depreciate the dignity and importance of this ancient institution, or to deny the rights and privileges to which the corporate body is legally and morally entitled, for to the College of Physicians, as it regards the whole profession of physic, we may address the same emphatic words that Cicero applied to Torquatus with reference to the state, “TIBI, NULLUM PERICULUM ESSE PERSPICIO, QUOD QUIDEM SEJUNCTUM SIT AB OMNIUM INTERITU.”

Nor is the College singular or invidious, as may at first sight appear, in adopting this rule; by far the greater number, if not all, of the Bishops require a similar qualification for the Church; and the Inns of Court, though they do not exclude others, grant some indulgence to members of the University on entering their respective societies, and remit two years of the usual term of probation to those who have taken the degree of Master of Arts or Bachelor of Laws previously to their call to the Bar.

The College of Physicians in London owes its foundation to _Dr. Thomas Linacre_ of All Soul’s, Oxford, one of the physicians to king _Henry_ the 8th, a man of profound learning and most devotedly attached to his profession; having studied at Rome, Bologna, and Florence, (then under the government of _Lorenzo de Medici_, by whom he was encouraged), he naturally imbibed an admiration of the medical schools with which Italy then abounded, and appears to have distinguished himself so much both by his general learning and particular science that he was called to Court as physician to the king, and entrusted by _Henry_ the 7th both with the health and education of his son prince _Arthur_.

The practice of Medicine was about that time, as we have before observed, chiefly engrossed by empirics and monks, who, and especially the latter, easily obtained licences from the bishops in their several dioceses, to whom was committed the authority of examining practitioners in an art of which they could not be competent judges. _Linacre_, through his interest with Cardinal Wolsey, a man most highly and honorably distinguished for his munificent encouragement of learning, obtained in 1518 Letters Patent (_see Appendix_, p. 5,) from _Henry_ the 8th,[67], constituting a Corporate Body of regular Physicians in London, with peculiar privileges hereafter to be specified. _Linacre_[68] (though his name is second in the Letters Patent) was elected the first President of the College, which held its meetings at his house in Knight Rider Street; he was continued in the office during his life, and bequeathed his house to the College at his death; he was distinguished both by his learning and his friendship with learned men, among whom he enjoyed the commendations of _Erasmus_ and _Melancthon_. He died in 1524, in the sixty-fourth year of his age, and was buried in St. Paul’s, where a monument was erected to his memory by _Dr. Caius_, one of the most learned and munificent of his successors. _See Preface to Goodall’s Proceedings of the College: Biog. Britan.: Aikin’s Biog. Mem. of Medicine_: & 6 _Aikin’s General Biography_.

As it cannot be uninteresting to trace the progress of a society through the medium of its principal ornaments, and as the authors owe to _Dr. Caius_ the foundation of that institution in which they commenced those joint chemical studies which have indirectly induced their present undertaking, they do not apologize to the reader for adding a short notice of his life, and of that of _Dr. Harvey_, another considerable benefactor to the College of Physicians.

_Dr. John Caius_, _Kaye_, or _Key_, of Gonville-hall, Cambridge, succeeded _Linacre_ in the Presidency; like him he had travelled in Italy for his improvement in the study of Medicine, and having resided in Padua and Bologna, where he took his Doctor’s degree, and was for some years Greek lecturer, he pursued his travels through Germany and France. After his return to England, he was called to Court as Physician to king _Edward_ the 6th; in 1547 he was made a Fellow of the College of Physicians, the rights and privileges of which he most strenuously asserted and augmented. In 1557 and 1558 he obtained from queen _Mary_, with whom he was a favourite, a licence to advance Gonville-hall into a College, under the name of _Gonville & Caius College_, on the condition of enlarging the institution at his own expense. Of this college he accepted the mastership in 1569, and in order that he might devote his undivided attention to his favourite project, he resigned the Presidency of the College of Physicians in 1565, and completed his new buildings at Cambridge in 1570, at an expense which was very considerable in those days. The mansion of learning, thus raised by his liberality, became the retreat of his old age, and having resigned the mastership, with a disinterestedness equalled only by his munificence, he continued to reside as a Fellow Commoner until the period of his death, which happened in 1573, in the sixty-third year of his age. The laconic epitaph on his monument in Caius College Chapel, FUI CAIUS, is well known. For an account of his many learned works _see Aikin’s Biog. Memoirs of Medicine: 2 Aikin’s General Biog._ and _Goodall’s Proceedings of the College_.

_Dr. William Harvey_, of Gonville and Caius College, Cambridge, to whom we are indebted for the important discovery of the circulation of the blood, was another ornament and benefactor of the College. Like his predecessors he visited France, Germany, and Italy, in order to perfect himself in the science of Medicine; at Padua he studied under the most celebrated Professors of that University, then at the height of its reputation, and in the anatomical school of _Fabricius_ caught the first idea of his great discovery, by attributing their true office to the valves of the veins, exhibited, but not explained, by his master. From this circumstance, the envious of his own time and some foreigners to this day, have attempted to deprive our countryman of the honor of his invention[69]. In 1602 _Harvey_ took his Doctor’s degree at Padua, shortly after which he graduated at Cambridge; in 1616 or 1619 he published his discovery in his Lectures before the College, and like many others suffered in his practice from the reputation of his learning, for men would not then believe that the labours of the closet and dissecting-room were the truest roads to professional skill.

He was however appointed Physician extraordinary to _James_, and subsequently Physician in ordinary to king _Charles_ the 1st; by the latter he was highly esteemed and favoured, having been appointed during the residence of the king at Oxford to the Mastership of Merton College, vacant by the secession of the Warden, _Dr. Brent_, to the Parliamentary party; this appointment however, he did not hold long, being in turn displaced by his predecessor.

Some time about 1652, the College having removed from their ancient house in Knight Rider Street to one at Amen Corner, _Dr. Harvey_ built them a library and public hall, which he granted for ever to the College, with his library and a valuable collection of instruments. _See 1 Stowe’s London_, 131.

In 1654 _Harvey_ was unanimously elected President of the College of Physicians, but he excused himself on account of his age and infirmities; such however was his attachment to that body, best evinced by _donationes inter vivos_, that in 1656 he made over his personal estate in perpetuity for its use. He died in 1658, in the eightieth year of his age; his works were published by the College in 1766, in quarto, to which edition his life is prefixed, to which we refer, as also to _Aikin’s Biog. Mem. of Med._; _Halleri Bibl. Anat._; _Aikin’s Gen. Biog._ and the _Preface to Goodall’s Proceedings_.

We should exceed our limits and wander from our purpose if we entered more fully into the biography of the many celebrated men who have since graced the College[70]; it is enough for us to have directed the reader’s attention by the preceding memoirs to the very rapid improvement which the science of Physic appears to have undergone immediately after its institution. The profession gained much in respectability by their incorporation, which afforded a unity of interest among its legitimate professors, at the same time that it armed them with extraordinary powers against their opponents: it also gave additional means to the learned of mutually communicating their researches and discoveries, at a time when the comparative scarcity of printed books rendered such intercourse doubly valuable. The dissolution of the monasteries, and the consequent dispersion of a host of ecclesiastical empirics, with the destruction of their prejudices and superstitions, as inconsistent with the progress of liberal science, as degrading to religious principle, completed the triumph which the foundation of the College had begun. The consequence is evident. England, which in the beginning of the sixteenth century had been behind all the then civilized world in medical knowledge, finds herself in the commencement of the nineteenth inferior to none in any branch, superior to most in some, and taking a decided lead in all the ramifications into which the science of physic and the sister arts have divided themselves.

This effect however was not produced by the College, without some severe struggles on the part of those who were, or supposed themselves to be, aggrieved by the extraordinary powers granted to the Corporation by the Charter of _Henry_ the 8th; it does not appear whether any of these disputes arose between the granting of the Letters Patent and their confirmation by the statute 14 and 15 _Hen._ 8. _c._ 5. at least no cases remain recorded by any sufficient authorities; it is therefore probable that the College did not attempt any exercise of their new powers until they had received the sanction of Parliament; even the king, (and no one will suspect _Henry_ the 8th of any diffidence of royal prerogative) by using the terms “_quantum in nobis est_,” (see Charter) seems to have been conscious that the powers of fine and imprisonment which he professed to grant, _suo jure_, could only become effective by the ratification of a superior authority.

The restriction of practice to persons examined and licenced by some supposed competent authority was not new. Sir _Wm. Brown_ in his Vindication of the College from the imputation and misrepresentation of their adversary in the case of Dr. _Schomberg_, mentions an Act of Parliament or Ordinance of the 9th _Hen._ 5. (_see Appendix_, _p._ 1.) by which the licencing of physicians is confined to the Universities, and of surgeons to persons duly qualified: and the 3d _Hen._ 8. c. 11. (_see Appendix_, _p._ 3.) somewhat strangely confers on the Bishop of London, and in his absence on the Dean of St. Paul’s, the exclusive power or privilege of licencing physicians and surgeons in the City of London, and within seven miles in compass. It can scarcely be doubted that the provisions of this act as relating to physicians, were repealed by the Act 14 and 15 _Hen._ 8. _c._ 5. confirming the incorporation of the College, for where a power to do a specific thing is given to two distinct persons or bodies by separate Acts, it is a general rule that the last repeals the former, _Quia Leges posteriores Leges priores contrarias abrogant_; yet it is said that a Bishop of London has within a few years professed to grant a licence to practise physic in London and within seven miles thereof. Now, independent of the objection before mentioned, it is evident, even on the construction of the 3. _Hen._ 8. _c._ 11. from which alone the power is derivable, that such licence, if any such were granted, is bad; for the words of the statute are, “calling to him or them (the Bishop and Dean) 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 approved_:” Now if the Bishop cannot find four assessors _so approved_, his authority must cease, for he cannot exercise it without them.

The power of the Archbishop of Canterbury[71] to confer degrees of all kinds (a relic of Papal usurpation transferred to him by statute 25 _Hen._ 8. _c._ 21) has induced a belief that the Archbishop has a power of granting licences to practise physic, and several have been granted accordingly; among others _Wm. Lilly_, the astrologer, was licenced to practise physic, except in London and within seven miles; for his diploma, the wording of which is curious, _see the Appendix_. Now though the Pope may have had the power of granting degrees and licences in physic, the concluding words of the 14th and 15th _Hen._ 8. confirmed by 1st _Mary_, are sufficient to exclude the authority either of the Pope or of the Archbishop, “that no person from henceforth be suffered to exercise or practise in Physic through all 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.” Then as it cannot be pretended that the Archbishop’s licentiate, though he may be a graduate of Oxford or Cambridge, is one who has accomplished all things for his form (_subaudi_ in physic) without any grace, it follows that such degree or licence is void as respects the authority of the College of Physicians.

The provisions of the Act of the 3d _Hen._ 8. could produce no permanent benefit, and we therefore find within seven years, that the continuance of the abuses which it was intended to remedy, was made the foundation of granting its powers to a Corporation better calculated to exercise them; what these powers are we must now investigate somewhat minutely, for it is an essential branch of Medical Jurisprudence to regulate and define the privileges and office of those who are best able to give effect to its institutions.

It may be necessary to premise that though several subsequent Charters[72] have been prepared for or offered to the acceptance of the College of Physicians (as 15 _James_ and 15 _Charles_ 2. for which _see_ Sir _Wm._ _Brown’s_ Vindication, Dr. _Chas. Goodall’s_ Collection, and other works, most of which are enumerated in _Gough’s_ Topography of London), yet the Charter and Statute of _Henry_ the 8th is still the subsisting ground of the rights, privileges, and powers of the Corporation. By their Charter recited in, and confirmed by the 14th and 15th _Hen._ 8. (_see Appendix_, _p._ 7) _John Chambre_, _Thomas Linacre_, _Ferdinando de Victoria_,[73] physicians to the king, and _Nicholas Halsewel_, _John Francis_, and _Robert Yaxley_, physicians, and the rest of the faculty in and of London, are constituted a perpetual college or community, with power annually to choose a President, who is to govern and superintend the College, and all men of the faculty and their practice (_omnes homines ejusdem facultatis et negotia eorundem_,) they are to have perpetual succession and a common seal, with power to hold lands to an amount therein limited (but which has since been enlarged by other Charters) notwithstanding the statute of Mortmain. They may sue and be sued by the name of the President and College or Community of the Faculty of Physic in London (_per nomina Presidentis et collegii seu communitatis facultatis medicinæ Lond’_); they may hold meetings (_congregationes licitas et honestas_) and make bye-laws (_stat’ et ordinationes_) for the good government, superintendance, and correction (_pro salubri gubernatione, supervisu, et correctione_) not only of the College but of all persons exercising the faculty in the city, or within seven miles thereof, (_omnium hominum eandem facultatem in dicta civitate seu per septem miliaria in circuitu ejusdem civitatis exercen’_). And it was granted to the College that none should exercise the faculty of physic within the city, or seven miles thereof, unless they had been admitted by the President and College by letters under their common seal, under the penalty of five pounds (_centum solidorum_) for every month during which such unlicenced person (_non admissus_) should practice; one half of the said penalty to the King, and one half to the President and College. The Charter further directs that the President and College should every year elect four (censors) who should have the superintendance, correction, and government of all persons exercising the faculty of medicine in any manner (_aliquo modo frequentantium et utentium_) in the city, or within seven miles thereof; with powers to punish for mal-practice (_ac punitionem eorund’ pro delictis suis in non bene exequendo, faciendo, et utendo illa_) and with power of superintendance and scrutiny of all medicines and their administration, provided that the punishment should be by fines, amercements, imprisonment, and other reasonable modes (_per fines, amerciamenta, & imprisonamenta, corpor’ suor’ et per alias vias rationab’ et congruas_.) The Charter then directs (_quantum in nobis est_) that the president and fellows of the College, and their successors, should be exempt from and should not be summoned to Assizes, Juries, Inquests, Attaints, _et aliis recognitionibus_, by the Mayor, Sheriffs, or Coroners of the City, even by the king’s writ. It was provided however by the concluding clause that nothing contained in the Charter should prejudice the City of London.

After the recital of the Charter the Statute proceeds to confirm the same “in as ample and large manner as may be taken, thought, and construed,” and directs the election of eight elects, from among whom the president is to be annually chosen.

The concluding section of this act is important, as it evidently repeals so much of the 3 _H._ 8. as refers to physicians, enacting, “that no person from henceforth be suffered to exercise or practise in physic through _England_[74] 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.”[75]

The next Act which concerns the College is the 32d _Hen._ 8. _c._ 40. (_see Appendix, p._ 14) by which it is enacted that the President, Fellows, and Commons of the College, should be discharged from keeping Watch and Ward in the City or its Suburbs, and that they shall not be chosen to the office of Constable, or to any other office in the City or Suburbs, any Order, Custom, or Law, to the contrary notwithstanding; By the second section of this Act the power and office of the Censors, which had been left somewhat undefined by the 14 & 15 _Hen._ 8. is more accurately and fully determined. They are empowered to enter the houses of all Apothecaries in the City, for the purpose _only_ of searching and viewing their wares, drugs, and stuffs, and if any be found defective or corrupted, they may cause them to be burnt, or otherwise destroyed, and a penalty of five pounds,[76] to be recovered by any that will sue for it, is inflicted on apothecaries who obstinately or willingly refuse or deny the four Censors to enter into their houses; a penalty of forty shillings is also inflicted on any Censor, who being elected, shall refuse the oath directed to be taken, or neglect the execution of his office. The oath of the censor, is by this act, directed to be administered by the President of the College. The censors are also obliged to take the oaths of allegiance, supremacy, and abjuration in the Court of Exchequer at Westminster, hence the impropriety, if not illegality, of any Papist or Recusant being elected a Fellow of the College.

By the third and concluding section it is declared, that “forasmuch as the Science of Physick, doth comprehend and contain the knowledge of Surgery,” “any of the said Company or Fellowship of Physicians, being able, chosen, and admitted, by the said President and Fellowship of Physicians,” may practice the Science of Physic in all its members, both in London and elsewhere.

The Statute 34 and 35 _Hen._ 8. _c._ 8, entitled “A Bill that Persons being no common Surgeons, may minister medicines, notwithstanding the Statute,” refers to the 3d _H._ 8. _c._ 11. omitting all mention of the subsequent acts of the 14th, 15th and 32d, which were for the regulation of the Physicians of London, and as this Statute appears to have been directed against the then Surgeons of London, and for the relief of charitable persons, who had ministered to poor people, not taking any thing for their pains and cunning in certain diseases,[77] principally outward, and therefore (in its limited sense) objects of surgery rather than medicine; we shall treat of this act more at large when we enter upon the Charters and Statutes relating to the College of Surgeons. By this act, however, inward medicines are permitted to be administered by persons having knowledge and experience of the nature of herbs, roots and waters, for the stone, strangury or agues.[78] The latter clearly do not come within the description of what would now be called Surgical cases, and therefore so far the exclusive privileges of the physicians are affected by this Statute, yet it appears by the context and interpretation of the act, (_See Butler v. Coll. of Phys._) that such administration must be of herbs, roots or waters only, to poor persons, (_R. Litt. 351,_) and without fee or reward.

The acts of _Henry the 8th_ having been found insufficient in their provisions for the search of apothecaries wares, and other matters, the Statute 1st _Mary_, _sess._ 2. c. 9, (_See Appx. p._ 25,) was enacted, whereby the 14th and 15th _Hen._ 8. _c._ 5, is confirmed and declared to be in full force, any Act, Statute, Law, Custom, or other thing made to the contrary notwithstanding; it was further enacted, that whensoever the President of the College, or such (the Censors) as the President and College shall yearly authorise to search, examine, correct, and punish, all offenders and transgressors in the said faculty, within the said city and precinct, shall commit any such offender to prison, (the Tower of London excepted), the warden or gaoler of such prison is to receive and keep such person or persons at the charges of such person or persons, till discharged by the President and such persons as by the said College shall be authorised; under penalty of double the fine[79] such offender be assessed to pay, so that the same fine do not exceed twenty pounds. By the fifth section, it is provided, that it shall be lawful for the wardens of the grocers (now apothecaries) company, or one of them, to go with the Physicians in their search and view of apothecaries wares; but if the wardens refuse or delay to come, the Physicians may proceed without them; and the penalty of resisting such search is raised to ten pounds; By the concluding section, all Justices, Mayors, Sheriffs, Bailiffs, Constables, and other ministers and officers, shall assist the execution of the said acts, upon pain of running in contempt of her majesty.[80]

By these acts of Parliament, the College of Physicians is regulated to the present day; we have before stated that several Charters, some for limited and some for general purposes, have been granted to the College. In 1520, Queen _Elizabeth_ granted by letters patent the bodies of four malefactors who had been executed for felony, to be taken by the College every year for dissection.[81] Charles the second granted six more “provided they be afterwards buried.” Charter 15 _Char._ 2. _Goodall’s_ Coll. p. 62. This privilege we believe has not lately been claimed, though the present scarcity of bodies for the purposes of instruction would fully justify its revival: nor is there any doubt but that the judges in the exercise of their sound discretion might select some of the more atrocious criminals as proper objects for this additional severity.

In 1562 _King James_, by letters patent, granted to the College, for the sum of six pounds a year, that moiety of the fines to be inflicted by them to which the crown was entitled according to the several acts which we have before cited. Charter 15 _Ja. Goodall’s_ Coll. p. 37.

We do not think it necessary to trouble the reader with the Statutes and Bye Law[82] which the College have made for their own internal Government, pursuant to the power which all Corporations have of making proper regulations to bind their own members, and according to the Statute 14 _and_ 15 _Hen._ 8. by which they are specially authorised so to do; these Statutes have been printed, though not under the sanction of the College.

OF THE POWERS OF THE COLLEGE.

One of the first and most material of the powers and privileges granted to the College by the Acts and Charter to which we have referred (and which the reader will find recited in the Appendix,) is that of recovering from all persons who practise physic in London and within seven miles circuit, without their Licence, or Admission, the sum of five pounds for every month during which they have so practised. This power has been most minutely investigated and determined in the case of _Dr. Bonham_.[83] _Coke’s Reports_, 123, (_see Appendix_, p. 62,) which was an action of false imprisonment brought by _Thomas Bonham_, a Doctor of Physic, of the University of Cambridge,[84] against the then President, Censors and some servants of the College; the Defendants justified under the Statute, (14 and 15 H. 8.) setting forth; that the plaintiff practised physic in London, and within seven miles circuit, not being admitted, &c. that being examined he was found insufficient, and forbid to practise,[85] but notwithstanding such prohibition, he afterwards practised for a month or more, whereupon they amerced him five pounds, to be paid to them at their next assembly, &c.[86] and likewise injoined him to forbear practising any more until he be found sufficient, &c. upon pain of imprisonment; that he continuing still to practise was further fined and ordered to be committed; that being questioned if he would submit to the College, he replied, that he had practised and would practise without leave of the College, and denied that by the Statute they had any authority over him, as having taken his degree of Doctor of Physic within the University regularly, and so thought himself protected by that Clause in the Act; whereupon the Censors ordered him to prison, which was executed accordingly, and for this imprisonment this action was brought. In this case, Mr. _Justice Daniel_, thought a Doctor of Physic of either University was not within the body of the act, but suppose him to be within the body, yet he was excepted by the last clause. But _Mr. Justice Warburton_ held the contrary upon both points.[87] _Chief Justice Coke_, (for whose judgment, _see Appendix_, 26,) said nothing as to either of those points, because all three (who were all the judges present,) agreed, that this action was clearly maintainable for two other points; and they resolved,

1. That the Censors had no power to commit the Plaintiff for any of the causes mentioned in the Bar, because the said clause which gives power to the said Censors to fine and imprison, does not extend to the said clause, viz. _That none in the said City, &c. exercise the said faculty_, &c. which prohibits every one from practising Physic in London, &c. without licence of the President and College; but extends only to punish those who practise in London, _Pro delictis suis in non bene exequendo faciendo et utendo Facultate Medicinæ_, so that their power (of fine and imprisonment) is limited to the ill and not to the good use and practice.[88]

2. Admitting that the Censors had power, yet they have not pursued it. 1. Because the Censors alone have power to fine and imprison, whereas here the President and Censors imposed this fine of five pounds. 2. The plaintiff was summoned to appear before the President and Censors, and for not appearing was fined five pounds, whereas the President had no authority.

3. The fines imposed by them by virtue of this act belong to the king and not to them,[89] and yet the fine is limited to be paid to themselves, &c. and for nonpayment they have imprisoned him.

4. They ought to have committed the Plaintiff immediately, though no time be limited in this act.

5. Their proceedings ought not to be by parol, inasmuch as their authority is by patent and act of parliament, and especially it being to fine and imprison.

6. The Act giving a power to imprison until he be delivered by the President and Censors or their successors, shall be taken strictly, or otherwise the liberty of the subject is at their pleasure. And this is well proved by a judgment in Parliament in the same case; for when this act of 14. _Hen._ 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, because they had authority to imprison without any Court; and thereupon the Statute 1 _Mary_, _cap._ 9, was made to compel the gaoler to receive them under a penalty, and yet none can commit to prison unless the gaoler receives him; but the 14 _Hen._ 8, was taken so literally that no necessary incident was implied.

And it being objected, the 1 _Mar. Cap._ 9. had enlarged the power of the Censors, as appeared by the words of the act; it was clearly resolved, that it does not enlarge their power to fine and imprison for any matter not within the 14th _Hen._ 8. the words of the act of _Queen Mary_, being “_according to the tenor and meaning of the said act_.” And further, “_shall commit any offender, &c. for his, &c. offence or disobedience, contrary to any article or clause contained in the said grant or act to any ward, gaol, &c._” And in this case, it does not appear by the record, that the plaintiff has done any thing contrary to any article or clause within the grant or act of 14th _Hen._ 8. and for the two last points judgment was given for the plaintiff, _Nullo contradicente_ as to them. _Michss. Term._ 6 _James._

The Lord _Chief Justice_, _Sir Edward Coke_, in the conclusion of his argument, observes these seven rules 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 within London, but by forfeiture of five pounds a month, which is to be recovered by law.

2. If any practise Physic there for less time than a month 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 commit to prison by the Statute ought to be committed immediately.

5. The fines which they assess according to the Statute belong to the king.

6. They cannot impose fine or imprisonment without making a record thereof.

7. The cause for which they impose a fine and imprisonment ought to be certain, for this is traversable.[90] For though they have Letters Patents and an Act of Parliament, yet inasmuch as the party grieved has no other remedy, neither by writ of error or otherwise, and they are not made judges, nor a court given to them, but have authority only to do it, the cause of their commitment is traversable in action of false imprisonment brought against them.

_Chief Justice Holt_, in delivering the opinion of the Court, said that notwithstanding the opinion in _Dr. Bonham’s_ case, the charge of male administration of physic is not traversable, and that my _Lord Coke’s_ opinion in that case was but _Obiter_, and no judicial opinion: besides that he seemed to have been under some transport, because _Dr. Bonham_ was a graduate of Cambridge, his own mother university. And he himself after in the same case says, that if the Censors do convict a man for such offence, they ought to make a record of it; and that, they cannot do unless they are Judges of Record: and then we say their proceedings are untraversable, and they unpunishable for what they do as judges. 12 _Mod._ 388. _Pasc._ 12 _Will._ 3. in the case of _Doctor Grenville against the College of Physicians_.

That Graduates of the two Universities have no privilege to practise in London, and within seven miles circuit,[91] has been repeatedly decided; see Doctor _Levet’s_ case, Lord _Raymond’s Rep._ 472; _The Coll. of Physicians against West 10, Modd 353 and Appx._ That by Graduates is meant Graduates in Physic only. _See College Questions. Appx._

The case of _Doctor Bonham_,[92] which we have been the more particular in citing as it contains much learning on the subject of our enquiries, and is reported by the first authority of his time, having shown that the College cannot fine or imprison for unlicenced practice, but must proceed by action in the ordinary Courts for the statutable penalty of five pounds a month, we must next show by what name the College ought to sue, for upon this point much difference of opinion and practice appears to have prevailed. In the case of _The President and College of Physicians v. Talbois_, exceptions were taken that the action should be by the President alone. But _per curiam_, “being a Corporation, it is natural for them to sue by their name of creation.” 1 _Lord Raymond_, p. 153. _Hil. Term_ 8 & 9, _Will._ 3. See also _The President and College of Physicians v. Salmon_, B. R. _Trin. Term_ 13 _Will._ 3. 1. _Ld. Raym_, p. 680; 5 _Mod._ 327; and this appears to be the best rule. In the previous case of _The President of the College v. Tenant. Hill. Term._ 11 _James_, _Bulstrode’s Rep. Part._ 2, _p._ 185, the action was brought by the President alone, on which the Judges were divided in opinion, _Haughton_ Justice saying, “he may here well bring the action alone in his own name,” but the Declaration being bad in other respects, the rule of the Court was, _Quod querens nil capiat per Billam_. The Entry in _Rastal_, _p._ 426, is in favour of the doctrine that the President may sue alone, as is also the case of Doctor _Laughton v. Gardner_, 4 _Croke_, _p._ 121. _Trin. Term._ 4 _James_, and more especially the consequent case of Doctor _Atkins v. Gardner_, 2 _Croke_, 169 _Pasc_ 5 _James_, where Dr. _Laughton_ having brought an action of debt on the Statute, as President of the College obtained judgment _Nisi_, but dying before execution, his successor _Doctor Atkins_, brought a _scire facias_ against the defendant to have execution, it was therefore demurred because the _scire facias_ ought to be brought by the executor or administrator of him who recovered and not by his successor; but the Court held that the successor might well maintain the action, for the suit is given to the College by a private Statute, and the suit 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. 1 _Rolle Abr._ 515.

The penalties are to be recovered by action of debt in _the President and College v. Salmon_; I _Ld._ _Raym_, _p._ 680.[93] an exception was taken that the proceeding should be by information at the suit of the king, but the Court decided that where a certain penalty is given by a statute the person to whom, &c. shall have debt by construction of law. Another exception was taken in the same case, that the action ought not to be brought _tam quam_, no action being given to the king. _Sed non allocatur._ For _per curiam_, the precedents are the one way and the other. See _Butler v the President Cro. Car._ 256. and cases there cited.[94]

The words of the Statute of _Henry_ being strongly prohibitory, none may practise physic under any authority, in London and within seven miles without licence of the College; in _the College of Physicians v. Bush._ 4 _Mod._ _p._ 47. the defendant pleaded letters patents of king Charles the second, by which free liberty is given to French protestants to exercise the faculty of Physic in London and Westminster, &c. and that he was a French protestant. Upon demurrer the plea was held ill. For a Charter or Letters Patent cannot vary an act of Parliament.

The next material point to be considered is, what is a practising of Physic within the meaning of the statutes; this would at first sight appear to be a very simple question, but the act of the 34th _Hen._ 8. which gives liberty to persons not being Surgeons, to administer outward medicines in certain cases, and drinks for the Stone, Strangury, and Ague, created some difficulties; it was pleaded in the case of Doctor _Butler against the President of the College_, (_Cro. Car._ 256,) to which plea the President replied by showing the Statute of the 1 _Mary_, _c._ 9. which confirms the Charter and Statute of the 14th _Hen._ 8. and appoints that it shall be in force notwithstanding any Statute or Ordinance to the contrary; on this several questions arose; those which relate to the special pleading of the case we omit, but the interpretation of the Statutes is material; it was doubted first whether the 34th _Hen._ 8. did repeal any part of the 14th as to Physicians, or whether as the preamble recites, it was directed against Surgeons, and next whether if it were in any degree repealed, the Statute 1st _Mary_ did not revive the 14th and repeal the 34th. “_Richardson_, chief Justice, conceived it was repealed by _primo Mariæ_, by the general words, any act or Statute to the contrary, of the act of _decimo quarto Henrici Octavi_, notwithstanding. But I (“_loquitur Croke_,”) conceived that the act of _tricessimo quarto Henrici Octavi_, not mentioning the Statute of _decimo quarto Henrici Octavi_, was for Physicians; but the part of the act of _tricessimo quarto Henrici octavi_, was concerning Chirurgions and their applying outward medicines to outward sores and diseases, and drinks only for the Stone, Strangury and Ague; that Statute was never intended to be taken away by _primo Mariæ_. But to this point, _Jones_ and _Whitlock_, would not deliver their opinions; but admitting the Statute 34 _Hen._ 8. be in force, yet they all resolved, the defendant’s[95] plea was naught, and not warranted by the Statute; for he pleads, that he applied and ministered medicines, plaisters, drinks, _Ulceribus Morbis et Maladiis, Calculo Strangurio, Febribus et aliis in Statuto mentionatis_; so he leaves out the principal word in the Statute (_Externis_), and doth not refer and shew that he ministered potions for the Stone, Strangulation or Ague, as the Statute appoints to these three diseases only and to no other; and by his plea his potions may be ministered to any other sickness; wherefore they all held his plea was naught for this cause, and that judgment was well given against him; whereupon judgment was affirmed.” This case is reported more fully in _Brownlow_, p. 126. See also _Goodall_, p. 221 to p. 259.

But though this statute 34 _Hen._ 8th gave a very considerable latitude to unlicensed practice, the decision of the House of Lords in the case of _Rose_ has rendered it yet more difficult to determine what is a practising of Physic within the statute 14 _Hen._ 8th.

This case arose on an action in the King’s Bench for practising Physic within seven miles of London without licence; the case upon a special verdict was, that the Defendant being an Apothecary by trade was sent to by _John Seale_[96], then sick of a certain distemper, and he having seen him, and being informed of the said distemper, did without prescription or advice of a Doctor and without any fee for advice, compound and send the said _John Seale_ several parcels of physic as proper for his said distemper, only taking the price of his drugs; and if this were a practising of physic, such as is prohibited by the Statute was the question: and after several arguments the Court at last unanimously agreed, That practising of Physic within this statute consists, 1st, In judging of the disease and its nature, constitution of the patient, and many other circumstances. 2ndly, In judging of the fittest and properest remedy for the disease. And 3dly, In directing and ordering the application of the remedy to the diseased. And that the proper business of an Apothecary is to make and compound, or prepare the prescriptions of the doctor pursuant to his directions. It was also agreed, That the Defendant’s taking upon himself to send physic to a patient as proper for his distemper without taking ought for his pains, is plainly a taking upon himself to judge of the disease and fitness of the remedy, as also the executive or directing part. _Et per tot. Cur._ The Plaintiff had judgment. 6 _Mod._ 44. 16 _Vin. Abr._ 341. Against this judgment the Defendant _Rose_ brought a Writ of Error to the House of Lords, “That judgment having been given in the Queen’s Bench against the now Plaintiff on a special verdict, he humbly hopes the same shall be reversed for these reasons:

“That the consequence of this judgment will entirely ruin the Plaintiff in his trade, and indeed all other Apothecaries, since they can’t (if this judgment be affirmed) use their professions without the prescript or license of a Physician.

“That the constant use and practice[97] which has always been with the Apothecary, shall as we humbly hope be judged the best expounder of this Charter: and that selling a few lozenges, or a small electuary, to any asking a remedy for a cold, or in other ordinary or common cases, or where the medicine has known and certain effects, may not be deemed unlawful, or practising as a Physician, when no fee is taken or demanded for the same.

“That the Physicians by straining an Act made so long ago, may not be able to monopolize all manner of Physic solely to themselves; and the rather, for that such a construction will not only be the undoing of the Apothecaries, but also,

“1. A tax on the Nobility and Gentry, who in the slightest cases, even for their servants, can’t then have any kind of medicines, without consulting and giving a fee to one of the College.

“2. An oppression to the poorer families not able to go to the charge of a fee; the suppressing of the Apothecaries being to deprive such poor people and families of all manner of assistance in their necessities.

“3. A certain prejudice to all sick persons on sudden accidents, and new symptoms arising, especially in acute diseases, and in the night, wherein if the Apothecary is called, and shall dare to apply the least remedy, he runs the hazard of being ruined, or the Patient the danger of being lost.”

“For all which, and several other errors in the Record, it is humbly prayed,” &c. &c.

It must be observed that these reasons turn on the policy and not on the law of the question, and would have been better addressed to the House of Peers in their legislative, than in their judicial capacity; the hardship of depriving the Apothecaries of all practice, and the inexpediency of too strictly enforcing the statute of _Henry_ 8th, might have justified an application to the Legislature for an alteration of the law, but they could not warrant even the highest tribunal in the land in departing from the law established by Act of Parliament, and gravely decided by the judges; we must therefore conclude that some better arguments were adduced on the hearing than have been handed down to us by the reporters; for if seeing the patient, judging of the complaint, and administering the proper remedies for it, be not a practising of Physic within the meaning of the statute, we must confess ourselves utterly at a loss to define the practice which is. It is a futile and unworthy subterfuge to allege that no fee is taken for advice, and that the sum charged is only the price of the drugs, for the contrary is evident; the poacher might as well pretend (as has been done) that he sells the basket at his own price, and throws the hare into the bargain, as a compliment to the purchaser,—or the vender of nostrums might attempt to avoid the stamp duty by selling the bottles and giving the physic. We are very far indeed from wishing to put unfair restraints on trade, or to deprive any class of men of the free exercise of their professional abilities, but as the Legislature has deemed it necessary to guard the corporeal health of the people, by enacting that only persons who on examination by a competent authority have been found of sufficient ability shall practise, we have thought it our duty to point out the law as it stands, and if in doing so we are occasionally obliged to hint at defects, we do it in the hope that by drawing abler attention to a neglected subject, we may incidentally give rise to some improvements, beneficial not only to the public at large, but ultimately profitable to those who, at the first glance might think themselves injuriously affected by them.