Medical Jurisprudence, Volume 1 (of 3)

by John Ayrton Paris; J. S. M. Fonblanque

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.