Medical Jurisprudence, Volume 1 (of 3)

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

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.

“Thus by the especial grace and favour of the Kings and Queens of England, the College of Physicians have been freed from bearing and providing arms: and though some particular member may of late have been summoned upon that account by the Lieutenancy, yet upon producing his Majesty’s patent and asserting his Sovereign’s natural right in dispensing with a Corporation of men from bearing and providing arms, which was an inherent prerogative in the Crown; and therefore an Act of Parliament was made in 13 Car. 2. 6. positively declaring, That the sole and supreme power, government, command and disposition of all the Militia, and of all forces by sea and land, &c. is, and by the laws of England ever was, the undoubted right of his Majesty and his royal predecessors, they were freed from any further trouble. An instance of which we lately had in the case of Dr. Newell, then candidate of the College of Physicians; who, anno 1680, was summoned to appear before the Lieutenancy of London for not bearing and providing arms. Upon which summons, attending with the Patent 15 Car. Secundi Regis nunc.” The Lieutenancy on debate desired a copy of the exempting part of the patent, that they might consult with their counsel. On the next committee-day they told him they were satisfied that the words of the Patent were sufficient to exempt the members of the College from bearing and providing arms, and desired that a list of them might be given in under the College Seal, which was accordingly done.

Sir Francis Pemberton, Sir Edmund Saunders, and Mr. Holt, lawyers of whose celebrity it is unnecessary to speak, being consulted on the same point, answered.

Sir F. P. I conceive his Majesty may, by his Patent, excuse the College from finding arms if he think fit.

Sir E. S. The Patent doth discharge the Physicians from bearing or providing of arms, notwithstanding the Militia Act.

Mr. H. I conceive by the Patent all the members of the College are exempted from being at any charge towards the Militia.

But in the case of Sir Hans Sloane against Lord William Pawlett, Lord Chief Justice Parker was of opinion, that the King by his prerogative could not dispense with an Act of Parliament which was made for the public good of the whole nation; “but admitting that he could exempt them (the Physicians) from personal duties, yet it cannot be inferred from thence, that he might exempt them from being contributory to others to perform those duties which are required by an Act of Parliament, especially where the subject has an interest that such duties should be performed, or a loss if they should not; and the better opinion seemed to be that the King could not exempt in such cases. That in the principal case, the contribution to be made to the finding a man with arms to serve in The Militia, is a charge upon the lands, as well as on the persons of the owners; and if this charter of exemption should be good, it would encrease the charge on all the lands of persons not exempted, which would be a very great damage to such persons, because the physicians who are exempted are a considerable body of men in every county, for which reason it would be very hard if the King had power to lessen the tax imposed upon one man, and charge it on another. Besides the King cannot exempt in any case where the subject has an interest.” (See 8 Mod. p. 11.) Therefore when it is intended to exempt Medical practitioners from the burthen of any Militia Act, it is necessary that they should be specifically mentioned.