The plaintiff, who was an apothecary, and freeman of _London_, attended one _Seale_, a butcher, in the parish of _Saint Martin in the Fields_, and made up and administered proper medicines to him; but, without any licence from the faculty, and also without the direction of any physician, and without taking or demanding any fee for his advice.
The defendants apprehending this conduct to be an infringement of their privileges, brought their action against the plaintiff, to recover the penalty of 5_l._ _per_ month, under the above clause in their charter; and, on the trial, the jury found a special verdict, stating the charter, the confirmatory statute, and the facts of the case; and submitted to the Court, whether the defendant _Rose_ did practice physic, within the intent of the letters patent and act of Parliament.—And, after this verdict had been three several times argued in the Court of Queen’s Bench, the Judges were unanimously of opinion, that _the facts found did amount to the practising physic, within the meaning of the act of Parliament_; and gave judgment accordingly.
Hereupon, a writ of error in Parliament, was brought to reverse this judgment; and on behalf of the Plaintiff in error, it was argued, that the consequences of it would not only ruin him, but all other apothecaries; as, in case of the affirmance of this judgment, they could not exercise their profession, without the licence of a physician. That the constant usage and practice, which had always been with the apothecary, was conceived to be the best expounder of this charter; and, that therefore, the selling a few lozenges, or a small electuary, to any person asking a remedy for a cold, or in other ordinary or common cases, where the medicines had a known and certain effect, could not be deemed unlawful; or practising as a physician, when no fee was taken or demanded for the same. That the physicians by straining an act made so long ago, endeavoured to monopolize all manner of physic solely to themselves; and if they should succeed in this attempt, it would be attended with many mischievous consequences: For, in the first place, it would be laying a heavy tax on the nobility and gentry, who, in the slightest cases, and even for their common servants, could not have any kind of medicine, without consulting and giving a fee, to a member of the college: It would also be a great oppression upon poor families, who, not being able to bear the charge of a fee, would be deprived of all kind of assistance in their necessities: And, it would prove extremely prejudicial to all sick persons, who, in case of sudden accidents, or new symptoms, happening in the night-time, generally send for the apothecary; but who should not dare to apply the least remedy, without running the hazard of being ruined.