“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.
OF ACTIONS BY MEDICAL PRACTITIONERS.
A Physician cannot maintain an action for his fees, for they are honorary, and not demandable of right; “and it is much more for the credit and rank of that body, (the physicians) and perhaps for their benefit also that they should be so considered; and I much doubt, says Lord Kenyon, whether they themselves would not altogether disclaim such a right, as would place them upon a less respectable footing in society, than that which they at present hold.” Chorley against Bolcot, 4 T. R. 317, see Appendix. It was contended in this case, that there was no authority in the books for placing physicians and barristers fees[[137]] on the same footing; the regulation with regard to barristers being founded on grounds of public policy, as appears by a passage in Tacitus to which Mr. Justice Blackstone refers; in which passage it is taken for granted that Medici[[138]] were entitled to a remuneration, because their situation was dissimilar to that of advocates.[[139]]
But though a physician cannot recover his fees by process of law, yet pro concilio impenso et impendendo is a good and valuable consideration for an annuity; (9 Co. Rep. 50: 7 Co. Rep. 10. 28.) And this was formerly a very frequent mode of remuneration for professional services both in law and physic, though at the present day it does not frequently occur.
If a bond, bill, or note were given for medical attendance, the consideration would be good, though the original fees could not have been recovered. A distinction might we think be drawn between the fees of a physician and his travelling expenses, which are frequently considerable; but the case of Chorley and Bolcot, before cited, is against it.