The first Restriction of the common Right that every Person has of learning and exercising any Art in any Place, except where it happens to be restrained by Custom, is the Act of 5 Eliz. c. 4.
The City of London have indeed, by Custom, a Power over the Youth of their City, and a Power of excluding Foreigners from exercising Trades within their City.
11 Rep. 53. Taylors of Ipswich Case, shews the general Law to be, that a person ought not to be restrained in his lawful Mystery.
Private Companies can not make Laws contrary to the General Law or to the Customs of great Cities: though great Cities and Towns may do so. This distinction is mentioned in 6 Mod. 120.[[176]] Cuddon v. Estwick. And he cited the Case of the City of London v. Vanacker, in 1 Ld. Raym. 496. where Holt Ch. J. said that “if the By-Law was for the Benefit of the City, it would be good.”
This By-Law, therefore, is not good, without a particular Custom to support it: for it restrains a Common-Law Right.
The Return does not aver that the understanding the Latin Tongue is a necessary qualification of a Surgeon: And their Art may certainly be performed without it. At least, ’tis no objection to a young Person’s being put out to learn the Art; whatever it might be to the Admission of a Man to practise it.
Besides, “Understanding the Latin Tongue,” is a very indefinite and vague expression: And a very different idea of it would be conceived by different persons; as by Dr. Bentley (for instance) and by a[[177]] Warden of the Surgeons Company.
Bad consequences too, may arise from this By-Law: And if so, it shall not prevail. Godbolt 254. S. C. with that of the Taylors of Ipswich, (there called The Cloth-workers of Ipswich Case.)
If the By-Law is bad, this young man’s not understanding Latin will not cure or help it. However, the By-Law does not expressly forbid such a Person to be admitted: It is not mandatory, but only directory.
Mr. Serjeant Hewit contra, was rising up, to speak in support of the Return,