33 Geo. 2.—Burrow’s Reports.
Rex vers. Master and Wardens of the Company of Surgeons in London.
This was a cause that stood in the Crown-Paper, upon a Return to a Mandamus directed to the Master and Wardens of the Company of Surgeons of London: Reciting a Custom in the said City, “That every Freeman of the said City, using and exercising the Art, Science, or Mystery of Surgery within the said City, hath a Right, in respect thereof, to have and take Apprentices, of the age of 14 years or upwards, to be educated and instructed in the said Art, Science, or Mystery, for the space of 7 years; which said Apprentices have been used and accustomed to be ADMITTED and BOUND in the presence or with the consent of the Master and Wardens or some of them;” And reciting that Richard Guy, a Freeman of the said City, and also one of the Freemen of the said Company of Surgeons of the said City, being desirous of taking Melmoth Guy, his son, aged 15 years, to be his Apprentice for the Term of 7 years, to be educated and instructed in the said Art, Science, or Mystery of Surgery, had often offered the said Melmoth Guy to be admitted and bound, before the said Master and Wardens or some of them, his said Apprentice for the Term of 7 years, in the said Art, Science, or Mystery, according to the said custom; and that the said Melmoth Guy had also often offered himself to them or some of them, to be admitted and bound before them or some of them, an Apprentice to the said Richard Guy for the said Term, in the said Art, Science, or Mystery; and that the said Master and Wardens had not permitted the said Melmoth Guy to be bound Apprentice to the said Richard Guy, for the Term of 7 years, before them or any of them, but have altogether refused and still refuse so to do; and commanding them, immediately and without delay, in due manner to permit the said Melmoth Guy to be ADMITTED and BOUND, before them or some of them, an Apprentice to the said Richard Guy, for the Term aforesaid, in the said Art, Science, or Mystery according to the said custom, or signify cause to the contrary.
The Return of the Master and Wardens admits the whole of the custom and facts, to be as they are alledged in the Writ. But they further certify and return, That long before the said Richard Guy offered his said son Melmoth, or the said Melmoth offered himself to them or any of them, to be admitted and bound before them or any of them, an Apprentice for the said Term of 7 years, in the said Art, Science, or Mystery of Surgery, according to the custom aforesaid; and after the making of a certain Act of Parliament intitled “An Act for making the Surgeons of London, and the Barbers of London, two separate and distinct Corporations;” to wit, on the 7th day of April in the Year of our Lord 1748, at Stationers-hall in London aforesaid; John Freke, then and there being Master of the said Company of Surgeons, and William Pyle and Legard Sparham, then being two of the Governors of the said Company of Surgeons, before that time duly elected chosen appointed and sworn into their said respective offices; and also John Ranby esq. Cæsar Hawkins esq. William Petty esq. Joseph Sandford, William Cheseldon esq. James Hicks, Peter Sainthill, Noah Roul, John Westbrook, William Singleton, James Phillips, Joseph Webb, Mark Hawkins, Christopher Fullagar, Edward Nourse, John Girle esq. and John Townsend, being then and there Nine and more of the Members of the Court of Assistants of the said Company of Surgeons before that time duly elected chosen appointed and sworn to be of the said Court of Assistants, did hold a Court and Assembly, at Stationers-hall London aforesaid, in order to treat and consult about and concerning the Rule Order State and Government of the said Company of Surgeons; and that the said John Freke, so being then and there Master of the said Company of Surgeons, and the said William Pyle and Legard Sparham, so being then and there two of the said Governors of the said Company of Surgeons, and the said John Ranby esq. Cæsar Hawkins esq. &c. &c. &c. so being then and there nine and more of the Members of the said Court of Assistants of that Company, being all then and there duly assembled as aforesaid, did then and there, according to the Form of the Statute in that case made and provided, make ordain constitute and establish a certain Bye-Law and Ordinance, for the Regulation Government and Advantage of the said Company of Surgeons, in the words following. To wit, Item, It is Ordained “That no Member of the said Company shall take any Person into his Service, as his Apprentice, to be instructed in the Art or Science of Surgery, for any shorter time than 7 years; which person SHALL UNDERSTAND the Latin Tongue; his Ability wherein shall, BEFORE his being bound, be tried by the Governors or one of them. And every Freeman of this Company or Foreign brother shall, within one month next after his entertainment of any Person in order to being his Apprentice, Present such Person before the Governors or two of them, at a Court to be by them held; and there bind such Person to him before the said Governors, by Indenture; upon pain of forfeiting 20l. of lawful money: And the Clerk of the said Company SHALL NOT BIND any Person who has not been so presented and examined, upon pain of forfeiting the sum of 10l. of lawful money and being liable to be removed from his said Office. And no Apprentice shall be turned over from one Master to another, but at a Court in the Presence of the Master and Wardens or one of them: And One Guinea, and no more, shall be paid for the same.”
Which said Ordinance or By-Law, so made as aforesaid, after the making thereof as aforesaid, and long before the said Richard Guy had offered the said Melmoth, or the said Melmoth had offered himself to be admitted and bound before them or any of them, an Apprentice to the said Richard Guy, for the Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, to wit, on the 9th day of the same April in the said year of our Lord 1748, was examined approved and allowed by the Right Honourable Philip Lord Hardwicke the then Lord Chancellor of Great Britain, and by Sir William Lee Knt. the then Lord Chief Justice of His Majesty’s Court of King’s Bench, and Sir John Willes Knt. the then Lord Chief Justice of His Majesty’s Court of Common Bench, according to the Form of the Statute in that Case made and provided.
They further return That the said Ordinance or By-Law, so made examined approved and allowed as aforesaid, hath ever since the making examination approbation and allowance thereof as aforesaid, been, and now is in full force and effect, and in no wise annulled revoked and vacated.
They then return That after the making examination approbation and allowance of the said Ordinance or By-Law as aforesaid, and before the Issuing of this Writ, to wit, on the 3d of May in the Year of our Lord 1759, at a certain Court then holden at Surgeons Hall in the Old Bailey London, by Mark Hawkins then Master, and Christopher Fullagar and Edward Nourse then Governors of the said Company of Surgeons, (They the said Mark Hawkins, Christopher Fullagar and Edward Nourse, having before that Time been duly elected chosen appointed and sworn into their said respective Offices, according to the Form of the Statute in that Case made and provided,) came the said Richard Guy before the said Court, and offered and presented his said Son Melmoth; And the said Melmoth did then and there offer himself to the said Master and Governors then being at that Court, to be admitted and bound, before them, an Apprentice to the said Richard Guy, for the Term of 7 years, in the said Art Science or Mystery of Surgery; And that the said Melmoth Guy, being so offered and presented as aforesaid, was then and there examined touching his knowledge in the Latin tongue; And his ability therein, in Pursuance of the Ordinance or By-Law aforesaid, was then and there fairly, candidly, and impartially TRIED by the said Edward Nourse, he the said Edward being then and there one of the Governors of the said Company of Surgeons: And that the said Melmoth Guy, UPON such his Examination, and upon his Ability in the Latin Tongue being so as aforesaid tried by the said Edward Nourse (so being one of the Governors or Wardens of the said Company as aforesaid) was found, NOT to understand the Latin Tongue, but to be WHOLLY IGNORANT thereof; and was then and there so ADJUDGED and declared to be, by the said Edward Nourse, on such Trial.—Wherefore the said Court could not consent, but did then and there refuse to permit the said Melmoth Guy to be admitted and bound an Apprentice to the said Richard Guy, for the Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, Until such Time as the said Melmoth should understand the Latin Tongue, as by the aforesaid Ordinance or By-Law is in that behalf required.
They further return expressly and positively, That the said Melmoth Guy, when he was so presented and offered as aforesaid, before the aforesaid Master and Governors or Wardens of the said Company of Surgeons, at the said Court, by them held for the purpose herein before in that behalf mentioned, DID NOT understand the Latin Tongue: but WAS UTTERLY IGNORANT of the same: And that the said Melmoth Guy hath NOT, at any Time before or since his being so examined and tried as to his Ability in the Latin Tongue as aforesaid, offered himself or been presented to the said Company or Governors thereof, or any one of them for the Time being, to be tried as to his ability in the Latin Tongue.
And therefore they cannot permit the said Melmoth Guy to be admitted and bound before them an Apprentice to the said Richard Guy for the said Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, as by the Writ they are commanded.
Mr. Field pro Rege objected and argued “That this was an insufficient Return:” For that the By-Law is a bad one, being made in Restraint of a natural general and common Right.