Chapter IX: Part I (2)

We have noticed that the reasons alleged by Writ of Error against the judgment of the Court of King’s Bench in the case of _The College of Physicians against Rose_, do not appear to us to have been legally satisfactory, the judgment of the King’s Bench[98] however was reversed, (_see_ 1 _Brown’s Parl. Ca._ 78. _and Appendix_, 126), and consequently the greater portion of the practice of Physic has been transferred to the Apothecaries. This was for some time a very serious evil; they who had been educated as mere compounders, suddenly became prescribers of medicine; it is easy to conceive how large a portion of ignorance and empiricism was thus let loose upon the public: the mischief has indeed gradually decreased, as many men of liberal education have entered the field thus enlarged for them, and the natural effect of competition has induced improvement; still something is wanting. In large towns and among the higher and middle classes of society, talent and mediocrity soon find their proper levels; but at a distance in the country, ignorance and imposture may erect their stages at least with impunity, and more than probably with success; we have ourselves heard most lamentable accounts of the mal-practice to which the poor and ignorant have been subjected by low country practitioners and their assistants; for the interpretation of the law which let in the Apothecary to unrestrained practice, could not exclude the apprentice, and we therefore find the shop-boy in cases of emergency visiting and prescribing for his master’s poorer patients.

For these, among other reasons, the Apothecaries’ Company have obtained an Act of Parliament to alter and enlarge the powers of their Charter. “And whereas much mischief and inconvenience has arisen from great numbers of persons in many parts of England and Wales exercising the functions of an Apothecary who are wholly ignorant, and utterly incompetent to the exercise of such functions, whereby the health and lives of the community are greatly endangered; and it is become necessary that provision should be made for remedying such evils; Be it therefore, &c.” This passage, from a Statute solicited by the Apothecaries themselves, will exonerate us from any imputation of illiberal remark; we sincerely hope that the Act will produce the intended benefit, though when we have occasion to treat of it more at large under the head of the _Apothecaries Company_, we may have occasion to point out some particulars in which we think it might be amended.

We have thus cited the leading cases on unlicensed practice, and the authorities which we have quoted will enable the medical reader desirous of better information, to pursue the enquiry to the fountain head. “_Melius est petere fontes quam sectare rivulos._”

The next branch of the jurisdiction of the College is yet more important, as it extends to the control and punishment of _Mala Praxis_[99], whether by persons licensed or unlicensed. On this head the leading case is that of _Groenvelt and Burwell_[100], (1 _Comyns_ 76: 1 _Salk_ 396; _see Appendix_). A complaint having been made to the College of Physicians, informing them that Dr. _Groenvelt_ had administered Cantharides in powder, he was summoned before the Censors and by them committed for _mala Praxis_; for this imprisonment he brought his action in the King’s Bench, _Trin._ 12 _Will._ 3. from which it appears that “The Censors of the College of Physicians in London are impowered to inspect, govern, and censure all Practisers of Physic in _Civitate_ London and seven miles round, so as to punish by fine, amerciament, and imprisonment. Per _Holt_ Ch. J. the Censors _have a judicial Power_; for a power to examine, convict, and punish, is judicial, and they are judges of record because they can fine and imprison, and being judges of the matter, what they have adjudged is not traversable.”

In _mala Praxis_ it matters not whether the party offending be a member of the College, a Licenciate, or an unlicensed Practitioner, for the Statute gives jurisdiction over all Physicians whatsoever, “_habeant supervisum et scrutinium, correctionem et gubernationem omnium et singulorum dictæ civitatis medicorum utentium facultate Medicinæ in eadem civitate ac aliorum medicorum forensicorum quorumcunque facultatem illam medicinæ aliquo modo frequentantium et utentium infra eandem civitatem et suburbia ejusdem sive infra septem miliaria in circuitu ejusdem civitatis_,” and Ch. J. _Holt_ says, “Though a person be not one of the College, yet if he practise Physic within their jurisdiction, he ought to subject himself to the law as well as any other.” 12 _Mod_ 393. And for those who are not Physicians but have assumed the character, they must take it _cum onere_, and will be estopped from pleading the illegality of their practice when punished for the irregularity of their prescriptions: it is to be wished however that the words of the Charter were more explicit in this particular.

Nor are the Censors liable to any action for error in judgment, for “though the Pills and Medicines were really _Salubres Pilulæ et bona Medicamenta_, yet no action lies against the Censors; because it is a wrong judgment in a matter within the limits of their jurisdiction, and a judge is not answerable, either to the king or the party, for the mistakes or errors of his judgment, in a matter of which he has jurisdiction: it would expose the justice of the nation, and no man would execute the office upon peril of being arraigned by action or indictment for every judgment he pronounces.” (1 _Salk_, 397).

“_Holt_ Ch. J. said, it seemed to him that the Censors may tender an oath as a necessary consequence of their judicial power; but said he would give no positive opinion.” _Dr. Grenville_ v _Coll. of Phys._ 12 _Mod._ 392. 16 _Vin. Ab._ 345. the general rule is, that where a statute confers a power, the law supplies all necessary incidents required for its execution.

By the 10th _Geo._ 1. _cap._ 20. _s._ 7. Where any person is condemned by the Censors for not well executing, practising, or using the faculty of Physic, he may within fourteen days after notice appeal to the College, and the judgment given on such appeal shall be final. Sect. 3. of the same act gives a similar right of appeal to Apothecaries. But this Act, as we have before observed, has expired; should its enactments ever be revived, this right of appeal should not be omitted, for it is expedient that some control should be exercised over all summary jurisdictions. To the policy of the 3d and 6th sections we cannot so readily give our assent; the one exempts drugs in merchants warehouses from search, and the other enacts that Patentees for the sole making any medicine shall not be prejudiced thereby. By the first of these the Censors are excluded from some known manufactories of factitious drugs, and an important security is taken away from our export trade, for it is evident that foreigners would more readily buy the drugs which have passed through our hands, if they were assured that their quality had been subjected to strict and competent scrutiny. To Patent Medicines we may be allowed to avow our most decided hostility, and as it is notorious that the greater part of them are not made up according to their specifications, we may without charge of illiberal prejudice claim for the public some security that the preparations which they buy as “_mild vegetable extracts_,” may not be clandestinely poisoned with Antimony, Mercury, and Arsenic. It may be said that the public have a remedy by the forfeiture of the Patent consequent on the falsehood of the specification, but this can only be effected by an expensive process to which the mere purchaser of a phial of trash may not choose to subject himself, even if he have skill enough to detect the fraud practised upon him.[101]

We have thus shown by repeated precedents that none can legally practise Physic in London, or within seven miles circuit of the city, who are not either Fellows or Licenciates of the College, nor can any, except Graduates in Physic of Oxford and Cambridge, lawfully practise in the country, without a similar license; yet, as the Act of Parliament has annexed no specific penalty to the transgression, the only remedy in such case is by indictment for a misdemeanor: for where there is no punishment attached by statute to the violation of a prohibitory clause in an Act of Parliament, this indictment lies. (See 4 _Term Rep._ 202.)

Unfortunately the history of the College litigations does not cease with their proceedings against unlicensed practitioners; they have also had to contend, on the defensive, with their own Licenciates, who have claimed a full participation in the rights and privileges of the Fellows:[102] we hope most earnestly that the question is now at rest, and that the cases we are about to cite may serve as beacons to avoid past errors, not as precedents for future proceedings.

“It would require a volume,” says Sir _James Burrows_, vol. 4. p. 2186, “to give a full and particular detail of this long contest between the Fellows and the Licenciates; which was litigated with great spirit and eagerness between several very learned and respectable gentlemen of the faculty on both sides. It must not therefore be attempted within the compass of a collection, already perhaps too faulty in this respect[103], as being in many instances more minute and circumstantial than may appear absolutely necessary, or at all agreeable to some readers.”

“The substance of it ought not however to be omitted, which was as follows.”

“A rule had been obtained upon the application of Doctor _Letch_ for the College of Physicians to shew cause why a mandamus should not issue, directed to them, commanding them to admit _John Letch_, Doctor of Physic, to be a member of the College.”

“This Rule was made upon the whole body of the College or Community of the Faculty of Physic of the city of London; and also on the President and Censors of the said College.”

“Mr. _Yorke_ against the Rule, Sir _Fletcher Norton_ for it.”

“The short state of the material facts, with respect to this mandamus, was, that Doctor _Letch_, who practised as a Man-Midwife,[104] was summoned by the College to be examined. He thereupon came in, and was examined thrice at the _comitia minora_: And after the third of these examinations, he was there balloted for ‘Whether he should be _approved of by them_ or not.’ A dispute arose upon this ballot. The majority of the number of balls _appeared_ to be for approving him: but one of the Censors declared ‘that he had by mistake put in his ball for approbation; which he meant and intended to be against approving him.’ It was proposed to ballot over again, but the President declared this to be an approbation by a majority of votes on the ballot. On Doctor _Letch_ being proposed to the _comitia majora_, nineteen to three of the members present were against putting the College Seal to his letters testimonial. And he was informed that he was not elected.”

“His Counsel insisted that having been returned sufficient by the _comitia minora_, he had already acquired an inchoate right to admission, which the Court would enforce the completion of, by mandamus.”[105] For the argument and authorities vide _Rex_ v. _Askew_ _ubi supra_ and _Appendix_.

“Lord _Mansfield_ in his judgment laid down the following among other rules.”

“The Court (i. e. of King’s Bench) has jurisdiction over Corporate Bodies to see that they act agreeably to the end of their institution.”

“Where a party who has a right has no other specific legal remedy, the Court will assist him by issuing this prerogative writ (i. e. _mandamus_) in order to his obtaining such right.”

“But it is not a writ that is to issue of course, or to be granted merely for asking.”

“The College are obliged in conformity to the trust and confidence placed in them by the Crown and the public, to admit all that are fit; and to reject all that are unfit.”

“The judgment and discretion in determining on skill, learning, and sufficiency to practise physic, is trusted to the College, and the Court will not interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious or biassed; much less warped by resentment or personal dislike.”

“It is possible that other causes of rejection than insufficiency of skill may occur, as _badness of morals_, for instance; of these the Court will judge.”

“If they should refuse to examine the candidate at all, the Court will oblige them to do it.”

“The power (of admission) remains with the body; and the examination by the President and four Censors is only preparatory, and for the ease of the body at large.”

“Every Fellow may examine and argue with the candidate in the _comitia minora_ though he has no vote _there_.”

“The delegation to the _comitia minora_ to examine is good.”

“Mr. Justice _Aston_ followed Mr. Justice _Yates_ in saying that Doctor _Letch_ should rather have applied for a mandamus requiring the College to grant him a license to practise within London and seven miles of it, than for a mandamus to admit him as a member.”

“The _comitia majora_ acted with great moderation in admitting him to another examination.

“Mr. Justice _Hewit_ declined giving any opinion (on a point started in argument) whether London Licenciates are _members_ of the College or not; though he hinted, that the more he thought of it, the more he doubted it.”

“We should go a great way if we should say ‘that a Licenciate to practise within _London_ and seven miles round is a _member_ of the College’.”

The Rule was accordingly discharged by the unanimous opinion of the
Court.

But the matter did not rest here; the notion that the Licenciates were entitled to be considered as Members of the College, under the term Commonalty or otherwise, gained ground; and accordingly two terms after the original argument and judgment, Sir _Fletcher Norton_ (afterwards Lord _Eardly_) moved for a Rule upon Dr. _Askew_ and others (the four then Censors), for them to shew cause why an information in nature of a _quo warranto_ should not be granted against them, to shew by what authority they acted as Censors of the College of Physicians.

The objection was, that whereas the election ought to be by the _whole_ body, these gentlemen had been elected only by a _select_ body; namely by the Fellows, _exclusive_ of the Licenciates, who _demanded admittance_; which was refused them by the Fellows, on pretence of their having no business there, upon that occasion.

After an argument on three several days, during which Sir _Fletcher Norton_, Mr. _Morton_, Mr. _Wedderburn_ (afterwards Lord _Roslyn_,)[106] Serjeant _Glynn_, Mr. _Walker_, and Mr. _Mansfield_ (afterwards Chief Justice of the Common Pleas), were heard for the Licenciates, and Mr. _Yorke_ (afterwards Lord _Chancellor_), Mr. _Dunning_ (afterwards Lord _Ashburnham_), Serjeant _Davy_, Mr. _Ashurst_ (afterwards a Judge), and Mr. _Wallace_ for the College, Lord _Mansfield_ delivered his opinion.[107] “The question now before us is singly this, Whether the persons applying for the information _are Fellows_ and _entitled to vote_ in the election of Censors. If they are, the election of these Censors, being made in _exclusion_ of their votes, is _not good_. If they are not Fellows, and have no right to vote in the election of Censors, then this election stands unimpeached.”

The question is, “Whether these _Licenciates_ are Socii, or Collegæ, or Fellows,” which are synonimous terms.

The facts are not disputed: and there is no doubt about the law. It has been admitted on both sides that there has been a great number of _by-laws_ and _long-usages_; and the permission of these Licenciates _to practise_ is not disputed. But I doubt whether this _permission to practise_, and these _letters testimonial_, can amount to an admission into the Fellowship of the Corporation or College. Nothing can make a man a Fellow of the College without the _Act of the College_. The power of examining, and admitting after examination, was not an arbitrary power, _but a power coupled with a trust_. They are bound to admit every person whom upon examination they think to be fit to be admitted, within the description of the Charter and the Act of Parliament which confirms it. The person who comes within that description has a _right_ to be admitted into the _Fellowship_; he has a claim to several exemptions, privileges, and advantages, attendant upon admission into the _Fellowship_; and not only the candidate himself, if found fit, has a personal right, but the _public_ has also a right to his service; and that not only as a physician, but as a censor, as an elect, as an _officer_ in the offices to which he will upon admission become eligible.[108] They have power not only by their charter, but by the law of the land, to make fit and reasonable by-laws, subject to certain qualifications. It appears from the Charter and the Act of Parliament, that the Charter had an idea of persons who might practise physic in _London_ and yet not be Fellows of the College. The President was to overlook _not only_ the College, but also “_omnes homines ejusdem facultatis_.” So when the College or Corporation were to make by-laws, these by-laws were to relate _not only_ to the Fellows, but to _all others_ practising physic within _London_ or seven miles of it.

Then let us see how the usage was.

In 1555 they must have had a probationary license before admission into the College. Afterwards it was to be a probation for four years before admission. The College might grant such probationary licenses, with some reason, and agreeably to their Institution. This shews that some licenses were granted to persons not Fellows of the College. The 3 H. 8 takes away all former privileges.[109] In 1561, a _partial_ license was granted to an occulist. A person may be fit to practise in _one_ branch who is _not_ fit to practise in _another_. Licenses have also been granted to _women_.[110] _Partial_ licenses have been given for above 200 years.[111] In 1581 notice is taken of _three classes_: Fellows, Candidates, and Licenciates. The licenses probably took their rise from that illegal by-law (now at an end) which restrained the number of Fellows to twenty.

This being premised, let us inquire “Who these gentlemen are that are now applying to the Court.”

They are persons who set up a title directly contrary to the _sense_ in which their license is given _to_ them and received by them. They cannot avail themselves of their instruments in this way: it would be a _cheat_ upon the College. And they have acquiesced many years under this license given them by the College, as merely a license to practise.

But even supposing them to have a right to be Fellows, yet, as it is clear that the license does not make them _ipso facto_ Fellows, they could not vote _in the election_ of Censors _before their_ admission to the Fellowship; and therefore the exclusion of their votes cannot impeach this election.

I am of opinion “that this rule ought to be discharged.”

His Lordship (but this was _obiter_) then made some comment on the statutes and by-laws of the College; and recommended their revisal under the best advice, saying, “I see a source of great dispute and litigation in them as they now stand.”[112]

Mr. Justice _Yates_ concurred with the Chief, as did Mr. Justice _Aston_ on some points; but upon the construction of the Charter and Act of Parliament, he thought that in grants of this kind, the construction ought to be made in a _liberal_ manner; and this grant includes “_Omnes homines ejusdem facultatis de et in civitate prædictâ_,” and the application to Parliament for the Act of 14 and 15 H. 8. to confirm the Charter is made by the six persons particularly named in it, “_and all other men of the same faculty_ within the City of London and seven miles about.” It seemed to him that the idea was “that all persons duly qualified, who took testimonials under the College seal, were to be of the community.” He should, however, give no opinion, he said, how it might turn out upon a _mandamus_.

Mr. Justice _Willes_, confining himself to the subject in question, concluded, “they cannot before their admission maintain this rule.”

Lord _Mansfield_ and Mr. Justice _Yates_ said they gave no opinion how it might be upon a _mandamus_.

The Court were unanimous in discharging the rule.

The hint thrown out by three of the Judges was followed up by the Licenciates. On Thursday, 17th Nov. 1768, Sir _F. Norton_ and Mr. _Norton_ moved the Court on behalf of Doctor _Edward Archer_, and Mr. _Walker_ on behalf of Dr. _Fothergill_, for writs of _mandamus_, to oblige the College to admit these two Licenciates, with an intention to try the question “whether the Licenciates had a right to be admitted Fellows;” and that litigation lasted till June 1771. But they only came round to the same point which had been already determined, as above; for these two gentlemen had accepted licenses _under the by-law_ of 1737, and the Court were of opinion “that they ought not afterwards to desert it, and treat it as null and void; and set up a right of admission under the Charter, upon the foundation of this very license which they had accepted _under the by-law_, upon the supposition that the by-law was a bad one.” So that the return was allowed, upon that objection to their claim. And the intended question remained unsettled. See 5 Burr. 2740, where also will be found the form of the mandamus and the return.[113]

The last case on this subject is that of Doctor _Stanger_. (7 Term Rep. 282, which as the most recent decision, and for the luminous judgment of Lord _Kenyon_, we have inserted in the appendix.) This, like the cases in _Burrows_, was argued by the most celebrated lawyers of the day, Mr. Serjeant _Adair_, Mr. _Law_, (afterward Lord _Ellenborough_) Mr. _Chambre_, (afterward a Judge) Mr. _Christian_, (now Chief Justice of _Ely_) having argued in support of the rule; and Mr. _Erskine_, (afterward Chancellor) Mr. _Gibbs_, (Chief Justice C. P.) Mr. _Dampier_, (a Judge) and Mr. _Warren_, (now Chief Justice of _Chester_) against it. The rule for a _mandamus_ was discharged;[114] it may therefore now be considered as a resolved point of law, that a Doctor of Physic, who has been licensed by the College of Physicians to practise physic in _London_ and within seven miles, cannot claim as a matter of right to be examined in order to his being admitted a Fellow of the College. The College, who have power by their Charter (confirmed by Act of Parliament) to make by-laws, have made by-laws respecting the qualifications of persons to be admitted; by them it is ordained that no person shall be admitted into the class of candidates before admission into the College, unless he has taken a degree of M. D. at Oxford, Cambridge, or Dublin, except in two cases: in one of those cases the President may propose in every other year a Doctor of Physic of a certain standing, and if he be approved by the College, he may be admitted a Fellow; in the other, any Fellow may propose a Doctor of Physic of a certain age and standing, and if approved at certain meetings he may be admitted a Fellow. And it was ruled that these were reasonable by-laws.

The following may now be considered as the legal classes of Physicians. 1st. The actual members of the College of Physicians, divided into their several denominations of President, Elects, and Fellows.

2d. Those who, being graduates of the universities of Oxford and Cambridge, are licensed to practise by the College in London and within seven miles during their respective periods of probation, previous to becoming Fellows; these are Candidates who, being Doctors of Physic, have undergone their examination for the Fellowship, and at the end of one year are capable of becoming members or Fellows of the College; and inceptor Candidates,[115] who being Bachelors of Physic aspire to the Fellowship.

3d. The medical graduates of our two Universities.

4th. The Licenciates who are admitted by the College to practise in London and within seven miles, and the extra Licenciates who are admitted to practise in the country but not within the privileged district of the College.

These are the laws respecting Physicians as a body Corporate; we have not added their Statutes as they are separately printed, although they have never been published by the authority of the College. It now remains for us to notice their rights as individuals, the exemptions to which they are entitled, and the actions to which they are liable.[116]

2. OF THE COLLEGE OF SURGEONS.

THE present College of Surgeons owes its existence to the Act of the 18th _Geo._ 2. _c._ 15. (_see Appendix_, p. 30), by which the Surgeons of London are separated from the Barbers, with whom they had been made one Company and Body Corporate, by the 32nd _Hen._ 8. _c._ 40. (_see Appendix_, p. 14),[117] previous to which period (A. D. 1540) the Surgeons had no incorporation; they had indeed petitioned for and obtained an Act of Parliament under the name of the Wardens and Fellowship of the craft and mystery of Surgeons enfranchised in London, stating their number not to exceed twelve persons, to which number the relief from “quests and other things” granted by the Act (5th _Hen._ 8. _c._ 6. _see Appendix_, p. 5), is limited; but it is evident by the preamble to the 32nd _Hen._ 8. that they, though called a Company, “be not incorporate nor have any manner of corporation” previous to that period. The examination of Surgeons, as that of Physicians also, had been confided to the bishops (3 _Hen._ 8. _c._ 11.), nor does it appear that the subsequent Act of _Henry_ remedied this defect. By the 18th _Geo._ 2. however they have been made a separate and distinct Body Corporate and Commonalty, under the name of _Masters, Governors, and Commonalty of the art and science of Surgeons of LONDON_, by which name they may sue and be sued; (_Appendix_, p. 39). All liberties, privileges, franchises, powers, and authorities, which they might have enjoyed under the united Company and their Act of Parliament, or under the Letters Patent of _Charles_ the 1st, or the other Royal Grants, Charters, and Patents, therein mentioned and referred to, so far as they relate to the science of Surgery, are confirmed to them (§ 8. _Appendix_, p. 43). Now the Charter of _Charles_ the 1st, as recited in the preamble of this Act, grants that “no person or persons whatsoever, whether a freeman of the said society or a foreigner, or a native of England, or an alien, should use or exercise the said art or science of Surgery within the said cities of _London_ and _Westminster_ or either of them, or within the distance of seven miles of the said city of London, for his or their private lucre or profit, (except such Physicians as are therein mentioned) unless the said person or persons were first tried and examined in the presence of two or more of the Masters or Governors of the mystery and commonalty aforesaid for the time being, by four or more of the said examiners so to be elected and constituted as aforesaid and by the publick Letters Testimonial of the same Masters or Governors under their common seal approved of and admitted to exercise the said art or science of Surgery, according to the laws and statutes of the kingdom of _England_, under the penalty in the said Letters Patent mentioned.”[118]. (_see Appendix_, p. 36). The same Charter provides “That no one, whether a freeman of the mystery or commonalty aforesaid, or a foreigner, whether a native of England, or an alien, exercising the art of Surgery within the cities of _London_ and _Westminster_ or the suburbs or liberties thereof, or within seven miles of the said city of _London_, should go out from the port of _London_, or send out any apprentice, servant, or other person whomsoever, from the said port, to execute or undertake the place or office of a Surgeon for any ship, whether in the service of the Crown, or of any merchant or others, unless they and their medicines, instruments and chests respectively, were first examined, inspected, and allowed by two such Masters or Governors of the mystery and commonalty aforesaid for the time being, as were skilled, knowing and professors in the same art of Surgery, under the penalty therein mentioned;” (_see Appendix_, p. 37). And the Act (§ 9. _Appendix_, p. 44,) following the same principle, enacts “That from and after the said first day of July, One thousand seven hundred and forty-five, the Examiners of the Company of Surgeons established by this Act shall, and they are hereby required, from time to time upon request to them made, to examine every person who shall be a candidate to be appointed to serve as a Surgeon or a Surgeon’s mate, of any regiment, troop, company, hospital or garrison of soldiers in the service of his Majesty, his heirs or successors, in like manner as they do or shall examine any Surgeon or Surgeons to be appointed to serve on board any ship or vessel in the service of his Majesty, his heirs or successors.”

By section 3, (_see Appendix_, p. 39,) the College is empowered to hold Courts and Assemblies and to make By-laws, Ordinances, Rules, and Constitutions for the government of the Corporation, and those of the united Company concerning Surgery are declared to be in force till repealed. (§ 4. p. 40). By section 11 (_see Appendix_, p. 45,) it is provided that nothing contained in the Act shall abridge or infringe any of the privileges, authorities, &c. of the College of Physicians.

These are the Acts of Parliament which at present regulate the profession of a Surgeon; it is evident that they are imperfect, as they do not give any power to restrain and punish ignorant pretenders, who without the slightest qualification assume this dangerous and difficult branch of practice, and most especially in the country. We are aware that any attempt of the medical Corporations to obtain an increase of their power, would create much outcry among those who are interested in the perpetuation of existing abuses; but we will hope that the public safety will be preferred to the private views of empirics; and that a due system of examination, license, and restriction of surgical practice throughout England, will shortly receive the sanction of the legislature.

We have only found one reported case of any consequence in which the College of Surgeons have been parties. In _Rex v. the Master and Wardens of the Company of Surgeons in London_, it was determined that a By-law requiring apprentices to have a competent knowledge of the Latin language, is good and reasonable; (_see_ 2 _Bur._ 892. _and Appendix_). Continual attempts have been made to decry the value of classical attainment in the medical professor; the legal authorities however agree that the Corporations have the right of prescribing a due course of education as a necessary preliminary to admission; and we sincerely hope that these learned bodies will never abandon this principle, that none shall be admitted to the higher honors of their profession, who are not possessed of the ordinary acquirements of gentlemen.

In the year 1800 the Surgeons of London obtained a new Charter from his late Majesty, which after reciting the previous Charters and Acts of Parliament which we have noticed, proceeds thus: “And whereas we are informed that the said Corporation of Master Governors and Commonalty of the art and science of Surgeons of London, hath become and now is dissolved,” &c. therefore His Majesty was pleased to incorporate the members of the late Company, and all such persons who, since the dissolution thereof, have obtained Letters Testimonial, &c. and confirmed to such new Corporation all gifts, grants, liberties, privileges, and immunities, possessions real and personal, &c. granted or confirmed by any previous Charter or Act of Parliament.

We confess ourselves at a loss to trace either the mode or date of the alleged dissolution; the Act of the 18th _Geo._ 2. is explicit as to the creation of a College of Surgeons, and we consequently find them recognised in the character of a Corporation in the cited case _Rex v. the Master and Wardens_ (_Appendix_ p. 153), which was tried in the 33d of _Geo._ 2.; but as the College have themselves admitted the fact, we must take it for granted that the recital is correct; how far the Charter of _Geo._ 3. unconfirmed by an Act of Parliament can revive their ancient rights may be a most material question; but as we are of opinion that the rights of this body should rather be increased than diminished we do not at present enter into it, in the hope that the defect, if it exist, will be shortly remedied by the Legislature.[119].

3. OF THE SOCIETY OF APOTHECARIES.[120]

In 1666 the Apothecaries and Grocers were united in one Company by Charter of the 4th of _James_ the First, but this union did not long continue, for in 1615, by Charter of the 13th of the same king,[121] the Companies were again separated (see _Goodall_’s collect. p. 119. _Appendix_ 71.) This was done upon the representation of some of the Apothecaries, backed by the approval of Doctors _Mayerne_ and _Atkins_, then the King’s physicians, by whose interest and solicitation this new Charter appears to have been obtained. The Letters Patent, after reciting the Charter of the 4th of the King, and that many empirics and ignorant persons had taken upon themselves the art and mystery of Pharmacoplists, compounding hurtful, corrupt and pernicious drugs, declared that the Apothecaries of and within seven miles compass of the City of London should thenceforth be separated from the Grocers, and be made a Corporation, under the names of the Master, Wardens and Society of the art and mystery of Pharmacopolists in London, to sue and be sued as other Corporations; to have a common seal, and power to purchase and hold lands in fee simple or for years. To be subject however to the magistracy of the City of London, as other City companies. None but natural born subjects to be members. The Company or Society is enabled to elect a Master, two Wardens, and twenty-one Assistants, in the manner prescribed, to have a hall or council house, to keep a court or convocation to consult on statutes, laws, articles, &c. The power of making By-Laws for the government of the society is vested in the Master, Wardens and Assistants, or thirteen of them (of whom the Master must be one), on public summons; provided however that in all orders concerning medicines and their composition they should consult with the President and Censors of the College of Physicians, or with some other physicians named for that purpose by the President. They have power to punish by fines and amercements to the use of the Company, without giving account, but such fines must be moderate and not contrary to law. The first Master (_Edm. Phillips_), Wardens and Assistants[122] are named in the Letters Patents, with special direction as to the manner in which they are to take their respective oaths of office, and the future election of Master and Wardens is vested in the Assistants, who have also the sole power of filling up vacancies in their own number, whether caused by death, removal or otherwise; with power to administer the oath of office, as well to every Master and Warden as to every newly elected Assistant. No Grocer or other person whatsoever may keep an Apothecaries shop for the compounding medicines, &c. till he have served seven years apprenticeship to some Apothecary, nor can such Apprentice be made free unless allowed by the President of the College of Physicians,[123] or some Physician or Physicians deputed by him, who is or are to be present at the examination by the Master and Wardens (if upon notice such Physician or Physicians shall be unwilling to attend.) The Company have power to enter the shops and houses of all persons following the mystery of Apothecaries, both in the City and suburbs, to search and try medicines, and to burn all unwholesome and hurtful medicines before the doors of the delinquents, in which all civil officers are to give them all necessary assistance; this power is however to be without prejudice to the rights and privileges of the President of the College of Physicians, who are to enjoy all powers and authorities as before[124], and especially to have the same power in their searches to call the Master and Wardens of the Apothecaries Company as of the Grocers. Lastly, the practice of Surgeons is confirmed, so that they do not vend medicines after the manner of Apothecaries.

This Charter was lately confirmed (except as therein altered) by Act of Parliament, 55 _Geo._ 3. _c._ 194. By this Statute the Company’s former power of search for unwholesome medicines is repealed, and in lieu thereof the Master, Wardens and Society of Apothecaries, or any of the Assistants, or any other person or persons properly qualified to be by the Master and Wardens assigned, not being fewer in number than two, shall, as often as to the said Master and Wardens may seem expedient, enter in the day time, any shop of any person using the art and mystery of an Apothecary in any part of _England_ or _Wales_, and search if the medicines, simple or compound, Wares, Drugs, or any thing whatsoever therein contained and belonging to the art or mystery of Apothecaries, be wholsome, meet and fit for the cure, health, and ease of his Majesty’s subjects; and all and every such medicines, wares, drugs, and all other things belonging to the aforesaid art, which they shall find false, unlawful, deceitful, stale, unwholsome, corrupt, pernicious or hurtful, shall and may burn, or otherwise destroy, reporting the name of the offender to the Master, Warden and Assistants, who may impose and levy on such person the following fines; for the first offence five pounds, for the second offence ten pounds, and for the third and every other offence the sum of twenty pounds. No person to be nominated to search drugs, or chosen to the Court of Examiners within the City of London, or thirty miles of the same, unless he be a member of the Society of Apothecaries, of not less than ten years standing; nor in any other part of England and Wales, or to be one of the five Apothecaries hereinafter mentioned, except he shall have been an Apothecary in actual practice for not less than ten years previously to his being so nominated or appointed. “And whereas, it is the duty of every Person using or exercising the art and mystery of an apothecary, to prepare with exactness and to dispense such medicines as may be directed for the sick by any Physician, lawfully licensed to practise Physic by the President and Commonalty of the Faculty of Physic in London, or by either of the two Universities of Oxford or Cambridge; therefore” if any person using the mystery of an Apothecary shall refuse to compound or administer or deliberately or negligently, falsely or unfaithfully mix, compound, or administer any medicines ordered by any lawful Physician by any prescription signed with his initials, such person on complaint made within twenty-one days by such Physician,[125] and upon conviction of such offence before any of his Majesty’s Justices of the Peace, unless such offender can shew some satisfactory reason, excuse, or justification in this behalf, forfeit for the first offence five pounds, for the second offence ten pounds, and for the third offence he shall forfeit his certificate, and be rendered incapable in future of using the art and mystery of an apothecary and shall be deemed incapable of receiving any fresh certificate until he shall faithfully promise and undertake and give good and sufficient security, that he will not in future be guilty of the like offence.[126] The Master and Wardens may from time to time appoint deputies to act for them. The Master, Wardens, and Society of Apothecaries are appointed to carry this act into execution throughout England and Wales, but no act of the Master, Wardens, &c. shall be valid (except the search of drugs, &c. as before mentioned, the acts of the Court of Examiners, and of the five Apothecaries hereinafter mentioned) unless the same be done at some meeting to be holden in the hall of the Society. The powers granted to the Master, Wardens and Society, to be exercised by the Master, Wardens and Assistants for the time being, or the major part of them present; the number present at such assemblies not to be less than thirteen, of which the Master must be one. Twelve persons properly qualified shall be chosen and appointed by the Master, Wardens and Assistants (who may also remove or displace them from time to time as they may deem advisable) and such twelve persons, or any seven of them, shall be and be called the Court of Examiners of the Society of Apothecaries and shall have full power to examine all Apothecaries and Assistants to Apothecaries throughout England and Wales, and to grant or refuse certificates; this Court is to meet once a week at the Halls, a chairman to be appointed who in case of equality (his own vote included) shall have a casting vote. The Master, Wardens or Court of Assistants are to administer a prescribed oath of office[127] to the Examiners. The Examiners remain in office one year (except in cases of removal) and may be reappointed; in case of death the successor remains in office only to such time as his predecessor would have done. After the fifth of August, 1815, it shall not be lawful for any person (except persons already in practice) to practise as an Apothecary in any part of England or Wales, unless he shall have been examined by the said Court of Examiners and have received a certificate of his being duly qualified to practise as such; no person to be admitted to examination until he shall have attained the full age of twenty-one years, nor unless he shall have served an apprenticeship of not less than five years to an Apothecary and shall produce testimonials to the satisfaction of the Court of Examiners, of a sufficient medical education and of a good moral conduct. Persons intending to qualify are to give notice to the Clerk. It shall not be lawful for any person (except persons then acting as Assistants and except persons who have actually served an apprenticeship of five years[128] to an Apothecary) to act as Assistant to any Apothecary in compounding or dispensing medicines without undergoing an examination by the Court of Examiners (or by five Apothecaries hereinafter mentioned) and obtaining a certificate of his qualifications. The Master and Wardens or Court of Examiners may from time to time appoint Five Apothecaries[129] in any county throughout England and Wales (except within the city of London and thirty miles circuit) to act for such county in examining Apothecaries and their Assistants, for which purpose they shall hold monthly meetings in the county town, three to be a quorum and the Chairman in case of equality to have a casting vote. The sums to be paid for Certificates to be as follows; Ten pounds ten shillings to be paid to the Master, Wardens, &c. for Certificate to practise within London or ten miles circuit, and Six pounds six shillings for any other part of England or Wales, in which case the Certificate may be afterwards enlarged to London, &c. on payment of Four pounds four shillings. Any person practising (except persons in actual practice as before mentioned) without a Certificate shall for every such offence forfeit Twenty pounds, and Assistants (except as aforesaid) Five pounds. And no Apothecary shall be allowed to recover any charges claimed by him in any court of law, unless he shall prove that he was in practice on or before the first of August 1815, or that he has obtained his Certificate. Persons refused a Certificate to practise may apply again.[130] The Master, Wardens, &c. are to publish an annual list of all persons who in that year have obtained Certificates. The monies arising from Certificates to be at the disposal of the Master, Wardens, &c.; the penalties, one half to the informer and one half to the Master, Wardens, &c. Fines and penalties above Five pounds to be recovered by action at law in the name of the Master, Wardens and Society of the art and mystery of Apothecaries of the city of London; and if the fine or penalty be less than Five pounds, then the same shall be levied by distress warrant under the hand and seal of any Justice of the Peace acting for the city, county, town, or place where the offence was committed; and the distress is not to be held unlawful for want of forms. But this act is not to affect chemists or druggists,[131] nor in any way to interfere with, lessen, prejudice or defeat any of the rights, authorities, privileges and immunities of the two Universities of Oxford and Cambridge, the Royal College of Physicians, the Royal College of Surgeons, or the said Society of Apothecaries. Actions against any Corporation for any thing done under this act to be brought within six months, and in the county in which the dispute shall arise; defendants may plead the general issue. The jury shall find for the defendants if such action have been brought without twenty-one days notice, and on verdict for the defendants or the plaintiff suffering discontinuance or nonsuit, they the defendants shall have double costs. This act to be deemed a public act.

Such is the general outline of the act under which the Society of Apothecaries have obtained a very considerable addition to their ancient powers (for the act itself we refer the reader to the _Appendix_); we are convinced that much public benefit may arise from a diligent use and exertion of these authorities, and from what we know of the parties now entrusted with them, we do not anticipate any evil from the mode or motives of their execution.

We do not think it necessary to enter into the details of the By-laws of this Society, nor into their character as a trading Corporation; we may however remark that the quality of the medicines supplied by them to the Navy and East India Company, has been very generally approved; too much care cannot be taken to secure the purity and propriety of the assortments exported for the use of our gallant defenders; nor is there any good reason why the army should not be supplied under the same or a similar system; we do not mean that the Apothecaries Company should have an absolute monopoly of medicines for the public service, for such a grant would defeat the end proposed, but if under a fair and open competition they can furnish the necessary supplies of an equal quality and price with their rivals in trade, there are reasons of public expediency which would turn the scale in favor of a fixed and permanent Corporation, in preference to the individuals however respectable, whose trading may be more subject to accidents and vacillations.

We must not conclude our account of the Society of Apothecaries, without noticing the splendid botanic garden at Chelsea, which, for a period of a century and a half, they have possessed and carefully maintained: and it is worthy of remark, that this is the only depository of exotic and indigenous plants, in the vicinity of the metropolis, which belongs to any public body. From the account of this establishment by Mr. Field,[132] its early history appears to be involved in considerable obscurity; the company however were mere lessees of the ground, until the fee and inheritance of the estate, together with the manor of Chelsea, was purchased from Lord Cheyne by Sir Hans Sloane; when this distinguished naturalist and physician, by deed, containing certain covenants[133] hereafter mentioned, gave the society full possession of, and a permanent interest in, the garden. The society do not appear to have been insensible to the liberal conduct of Sir Hans Sloane; a marble statue of their benefactor, executed by Michael Ryebrach, at the cost of £250, was erected by them in 1737, and it remains as a lasting memorial of his munificence, and of their gratitude.

4 OF THE EXEMPTIONS AND LIABILITIES OF MEDICAL PRACTITIONERS.

Physicians, Surgeons, and Apothecaries have been exempted from the performance of various civil duties by several Acts and Charters, and those exemptions which were at first limited, have by custom become so general, that they may now be considered as legally established.

By the 14 and 15 _Hen._ 8. _c._ 5. that part of the Charter of the College of Physicians, which exempts them from being summoned to or placed on any assizes, juries, inquests, inquisitions, attaints, _et aliis recognitionibus_, even in pursuance of the King’s writ, is confirmed by Statute; and by the 32 _Hen._ 8. _c._ 40. they, and as it may appear the Licenciates also, (under the name of Commons,) are discharged from keeping watch and ward, from serving the office of constable,[135] or any other office within the city of London and the suburbs, any order, custom or law to the contrary notwithstanding.[136]

The Corporation of the city of London, however, appear to have been unwilling to acquiesce in these exemptions, grounding themselves probably on their own Charters and Privileges, and on the reservation of their rights in the concluding clause of the Charter of the College. We find, therefore, that the members of the College were frequently harassed by being elected to parochial offices, and being called upon to find arms, and to keep watch and ward.

In 1588, “Being then a time of most imminent and public danger, the Lord Mayor of _London_ and Court of Aldermen charged the College with arms, whereupon they applied themselves to Queen _Elizabeth_ and her Council; upon which Secretary _Walsingham_ wrote a letter to the Lord Mayor and Aldermen of London, that they should no more trouble the College, but permit them to live quietly, and free from that charge. After this they met with no further trouble or molestation till the reign of King _James_; at which time the College being charged with arms, Sir _William Paddy_ pleaded their privilege before Sir _Thomas Middleton_, Lord Mayor, and a full Court of Aldermen, and Sir _Henry Montague_, Recorder.” “The Recorder then perusing every branch of the Statutes recited by Sir _William Paddy_, with the reasons by him urged; and opening every part thereof at large, did conclude, that the Act of Parliament did extend to give the College as much immunity as in any sort to the Chirurgeons. Hereupon the Court desired a list of the members of the College, which was immediately given them, and an order entered for a dispensation to the College from bearing of arms; and also a precept was then awarded by the Mayor and Court, to commit all other Physicians or Surgeons, refusing to bear or find arms, who were not of the College allowed, or Chirurgeons licensed according to form.”

“About three years after this debate, King _James_ granted the College his Royal Charter, wherein he confirms all former statutes and patents given them by his royal progenitors, and therein granted, To all and every Physician of the College to be wholly and absolutely free from providing or bearing of any armour or other munition, &c. any act or statute to the contrary notwithstanding.”

_Charles_ the Second also by his Charter granted the same exemptions in very full terms, and sent a letter to the Lord Mayor of London (for which see _Appendix_) commanding the observance of these privileges.