[95]. Doctor Butler was defendant, though first mentioned in this Report, the decision being in the King’s Bench, on error of a judgment in the Common Pleas for the original cause. Coll. of Phys. v Butler, See Sir W. Jones, Rep. 261: Littl. R. 168, 212, 244, 349.
[96]. The letter of John Seale, which induced the College to bring this action, was as follows. “May the 5th, 1704. These are to certify, that I, John Seale, being sick and applying myself to this Mr. Rose the Apothecary for his directions and medicines, in order for my cure; had his advice and medicines from him a year together: But was so far from being the better for them that I was in a worse condition than when he first undertook me; and after a very expensive bill of near £50. was forced to apply myself to the Dispensary at the College of Physicians where I received my cure in about six weeks time, for under forty shillings charge in medicines.” See a Pamphlet published on this case, London 1704, and other works mentioned in Gough’s Topography.
[97]. It does not appear to have been made out in evidence that the constant use and practice had been with the Apothecary, on the contrary, they did not commence practice (except indeed the occasional sale of some simple lozenge or electuary which was never objected to) till after the great fire, when the known residences of the Physicians having been destroyed, their patients were unable to find them, and consequently resorted to the Apothecaries, whose open shops were a sufficient guide to those who needed medical assistance. It is probable also that some laxity arose during the preceding years in which the Plague raged in London, for in times of emergency it would be unreasonable to insist on restrictions which it might be impossible and inhuman to enforce. (Merett’s Short view of Frauds & Abuses, A.D. 1699).
[98]. The trial having taken place in the reign of Queen Anne we should have written Queen’s Bench, but the title of the Court in common use is perhaps best adapted to general comprehension.
[99]. It has been solemnly resolved, that Mala Praxis is a great misdemeanor and offence at common law. 3 Bl. Com. 122: 1 Lord Raym. 214.; an act of grace will include Mala Praxis; for the remedy of the injured party by Action on the Case, vide post.
[100]. See also 1 Lord Raym 454. same Case: Carth 421. 491: Salk 144. 200. 263.
[101]. But query, as this protecting section has expired, are Patent Medicines now exempted from the examination of the Censors?
[102]. Modes of election, unless specially pointed out by Statute or Charter, must depend on Bye-laws and usage. See the King and the Vice-Chancellor of Cambridge, ubi supra, and many other cases of Corporations. The Power of amotion or expulsion is also incident to most Corporate Bodies. See Rex v. the Mayor, Burgesses and Common Council of Liverpool, 2 Burr. R. 724: Rex v. Richardson, 1 Burr. R. 517. We do not find that the College has ever been compelled to execute this painful duty.
[103]. We adopt the apology of the learned reporter both in words and substance; for we are well aware that many of our readers must be heartily tired of this long detail of litigations, which, as we hope, are not again to be required as precedents; yet we have deemed it necessary to give this account of the powers and privileges of those Corporate Bodies, to whom we must at least look for the elucidation of the medical branches of jurisprudence, and from whom we might expect the best execution of the laws respecting the public health, should they ever be in this, as they have been in most other countries, reduced to a regular system of Medical Police.
[104]. It is said that the College have determined not to interfere for the future with the licensing of Midwives; the policy of this resolution is very questionable, for the examination and licensing of persons in all branches of medicine is a public duty imposed upon them, which they are not at liberty to abandon or execute at their pleasure. It may be urged that this branch is rather Surgery than Physic; but as the College have once assumed the jurisdiction, it is doubtful whether they ought to relinquish it. The Surgeons might also disavow their obstetric brethren, and then the matter must revert, as of old, to the Bishops, who cannot be supposed to be the most competent judges of the necessary qualifications. Archbishop Abbot, a very conscientious divine, on a somewhat similar occasion, said “he knew not well how children were made,” and begged time to inform himself on the subject.