Part 1 — CASES.
Reading edition
Dr. BONHAM’S CASE.[111] (From 8 Co. Rep. 114.) Hil. 7 Jac. 1.
Thomas Bonham, doctor in philosophy and physic, brought an action of false imprisonment against Henry Atkins, George Turner, Thomas Moundford, and John Argent, doctors in physic, and John Taylor, and Wm. Bowden yeomen; for that the defendants, the 10 Nov. anno 4 Jacobi, did imprison him, and detain him in prison seven days. The defendants pleaded the letters patent of King H. 8. bearing date the 23 Septemb. anno 10 of his reign, by which he recites, [112]Quod cum Regii officii sui, &c. (quod vide ante p. 7.) But the case at bar doth principally consist on two clauses in the charter. The first, concessimus etiam eisdem presidenti, &c. (quod vide ante p. 10). The second clause is, which immediately follows in these words, præterea voluit, &c. (quod vide ante p. 10.) And afterwards, by act of Parliament made anno [113]14 H. 8. it was enacted, that the said corporation, and every grant, article, and other things in the said letters patent a_100contained and specified, should be approved, granted, ratified, and confirmed, &c. in tam amplo & largo modo prout poterit acceptari, cogitari, et construi per easdem literas patentes. And further it was enacted, that the said six persons named in the said letters patent, as principal of the said college, should elect to them two other of the said college, who should be named electi, and that the said elects should chose one of them to be president, as by the said act appears: and further, they pleaded the act of [114]1 Mariæ, by which it is enacted, Quod quædam concessio, &c. And further it was enacted, “That whensoever the president of the college, or commonalty of the faculty of physic at London for the time being, or such as the said president and college shall yearly, according to the tenor and meaning of the said act, authorize to search, examine, correct, and punish all offenders and transgressors in the said faculty, &c. shall send or commit any such offender or offenders for his or their offence or disobedience, contrary to any article or clause contained in the said grant or act, to any ward, gaol, or prison, &c.” (see p. 26.) And further pleaded, that the said Thomas Bonham, 10 April, 1606, within London, against the form of the said letters patent, and the said acts, exercebat artem medicinæ, non admissus per literas præd’ presidentis & collegii sigillo eorum communi sigillat’ ubi revera præd’ Tho. Bonham fuit minus sufficiens ad artem medicinæ exercend’. By force of which, the said Thomas Bonham, 30 Aprilis 1606, was summoned in London by the censors or governors of the college, ad comparend’ coram præsiden’ & censor’ sive gubernatorib’ collegii præd’ at the college, &c. the 14th day of April next following, super præmissis examinand’. At which day the said Tho. Bonham came before the president and censors, and was examined by the censors de scientiâ suâ in facultate suâ in medicin’ administrand’. a_101Et quia præd’ Thomas Bonham sic examinatus minus apte & insufficienter in præd’ arte medicinæ respondebat, & inventus fuit super examinationem præd’ per præed’ præsident’ censores minus insufficiens & inexpert’ ad artem medicinæ administrand’ ac pro eo quod præd’ Tho. Bonham multoties ante tunc examinatus, & interdictus per præsident’ & censores, de causis præd’ ad artem medicinæ administrand’ per unum mensem et amplius post talem interdictionem facultatem illam in Lond’ præd’ sine licentia, &c. ideo adtunc & ibid’ consideratum fuit per præd’ præsident’ censores, quod præd’ Thomas Bonham pro inobedientia et contempt’ suis præd’ amerciaretur to 100s. in proximis comitiis præd’ præsident’ et collegii persolvend’ et deinceps abstineret, &c. quousque inventus fuerit sufficiens, &c. sub pœna conjiciendi in carcerem si in præmissis delinqueret. And that the said T. Bonham, 20 Octo. 1606, within London did practice physic, and the same day he was summoned by the censors to appear before the president and them, 22 Octob. then next following, at which day Bonham made default: ideo consideratum fuit per præd’ censores, that for his disobedience and contempt he should be amerced to 10l. and that he should be arrested and committed to custody; and afterward, 7 Nov. 1606, the said T. Bonham, at their assembly came before the president and censors, and they asked him if he would satisfy the college for his disobedience and contempt, and submit himself to be examined, and obey the censure of the college, who answered, that he had practised and would practise physic within London, nulla a collegio petita venia, and that he would not submit himself to the president and censors, and affirmed, that the president and censors, had no authority over those who were doctors in the university; for which cause, the said four censors, sc. Dr. Turner, Dr. Moundford, Dr. Argent, and Dr. Dun, then being censors or governors, pro offensis et inobedientia præd’ adtunc & ib’ ordinaverunt & decreverunt, quod præd’ T. Bonham in carcerem mandaretur ib’ remansur’ quousque abinde per præsident’ & censores, seu a_102gubernatores collegii præd’ pro tempore existen’ deliberaretur, and there then by their warrant in writing, under their common seal, did commit the plaintiff to the prison of the Compter of London, &c. absque ballio sive manucapt’ ad custagia & onera ipsius T. Bonham, donec præd’ T. Bonham per præcept’ præsiden’ & censor’ collegii præd’ sive successor’ suor’ liberatus esset; and Dr. Atkins then president, and the censors, and Bowden and Taylor as their servants and by the commandment of the said president and censors, did carry the plaintiff with the warrant, to the gaol, &c. which is the same imprisonment. The plaintiff replied and said, that by the said act of 14 H. 8. it was further enacted, “And where that in the dioceses of England, out of London, it is not like to find alway men able sufficiently to examine (after the statute) such as shall be admitted to exercise physic in them, that it may be enacted in this present Parliament, that no person from henceforth be suffered to exercise or practise physic through England, until such time that he be examined at London by the said president and three of the said elects, and to have from them letters testimonial of their approving and examination, except he be a graduate of Oxford or Cambridge, which have accomplished all things for his form without any grace;” and that the plaintiff, anno Dom. 1595, was a graduate, sc. a doctor in the university of Cambridge, and had accomplished all things concerning his degree for his form without [115]grace, by force whereof he had exercised and practised physic within the city of London until the defendants had imprisoned him, &c. upon which the defendant demurred in law. And this case was often argued by the Serjeants at bar in divers several terms; and now this term the case was argued by the Justices, and the effect of their arguments who argued against the plaintiff (which was divided into three parts) shall be first reported. The first was, whether a doctor of physic of the one university or the other, be by a_103the letters patent, and by the body of the act of 14 H. 8. restrained from practising physic within the City of London, &c. The second was, if the exception in the said act of [116]14 H. 8. has excepted him or not. The third was, that his imprisonment was lawful for his said disobedience. And as to the first, they relied upon the letter of the grant, ratified by the said act of 14 H. 8. which is in the negative, sc. nemo in dictâ civitate, &c. exerceat dictam facultatem nisi ad hoc per prædict’ præsidentem & communitatem, &c. admissus sit, &c. And this proposition is a general negative, but [117]generale dictum est generaliter intelligendum; and nemo excludes all; and therefore a doctor of the one university or the other, is prohibited within this negative word nemo. And many cases were put where negative statutes shall be taken stricte et exclusive, which I do not think necessary to be recited here. Also they said, that the statute of [118]3 H. 8. c. 11. which in effect is repealed by this act of [119]14 H. 8. has a special proviso for the universities of Cambridge and Oxford, which being here left out, doth declare the intention of the makers of the act, that they did intend to include them within this general prohibition, nemo in dictâ civitate, &c. As to the second point they strongly held, that the said latter clause, “and where that in the dioceses of England, out of London,” &c. this clause, according to the words, extends only to places out of London, and so much the rather, because they provided for London before, nemo in dictâ civitate, &c. Also the makers of the act put a distinction betwixt those who shall be licensed to practise physic in London, &c. for they ought to have the admittance and allowance of the president and a_104college in writing, under their common seal; but he who shall be allowed to practise physic throughout England, out of London, ought to be examined and admitted by the president and three of the elects, and so they said, that it was lately adjudged in the King’s Bench, in an information exhibited against the said Dr. Bonham for practising physic in London for divers months. As to the third point they said, that for his contempt and disobedience before them at their assembly in their college, they might well commit him to prison for they have authority by the letters patent and act of Parliament, and therefore for a contempt or misdemeanor before them they may commit him. Also the act of [120]1 M. has given them power to commit them for every offence or disob. contrary to any article or clause contained in the said grant or act. But there is an express negative article in the said grant, and ratif. by the act of 14 H. 8. Quod nemo in dictâ civitate, &c. exerceat, &c. and the defendants have pleaded, that the plaintiff had practised physic in London by the space of one month, &c. and therefore the act of 1 Mariæ has authorised them to imprison him in this case; wherefore they concluded against the plaintiff. But it was argued by Coke Chief Justice, Warburton and Daniel Justices of the Common Pleas, to the contrary. And Daniel Justice conceived, that a doctor of physic, of the one university or the other, &c. was not within the body of the act, and if he was within the body of the act, that he was excepted by the said latter clause; but Warburton argued against him for both the points; and the Chief Justice did not speak to those two points, because he and Warburton and Daniel agreed, that this action was clearly maintainable for two other points, and therefore in this action the Chief Justice omitted to speak to the said two points; but to two other points, he and the said two other Justices, Warburton and Daniel, did speak, sc. 1. a_105Whether the censors have power, for the causes alledged in their bar, to fine and imprison the plaintiff. 2. Admitting that they have power to do it, if they had pursued their power. But the Chief Justice, before he argued the points in law, because much was said in commendation of the doctors of physic of the college in London, and somewhat (as he conceived) in derogation of the dignity of the doctors of the universities, he first attributed much to the doctors of the said college in London, and confessed that nothing was spoke in their commendation which was not due to their merits: but yet that no comparison was to be made between that private college, and either of the universities of Cambridge and Oxford, no more than between the father and his children, or between the fountain and the small rivers which descend from it; the university is alma [121]mater, from whose breasts those of that private college have sucked all their science and knowledge (which I acknowledge to be great and profound) but the law saith, erubescit lex filios castigare parentes: the university is the fountain, and that and the like private colleges are tanquam rivuli, which flow from the mountain, et melius est petere fontes quam sectari rivulos. Briefly, Academiæ [122]Cantabrigiæ & Oxoniæ sunt Athenæ nostræ nobilissimæ, regni soles, oculi & animæ regni, unde religio, humanitas, et doctrina in omnes regni partes uberrimè diffunduntur: but it is true, nunquam sufficiet copia laudatoris, quia nunquam deficiet materia laudis; and therefore these universities exceed and excel all private colleges, quantum inter virburna cupressus. And it was observed that K. H. 8. in his said letters patent and the K. and the Parliam. in the act of 14 H. 8. in making of a law concern. physicians, for the more safety and health of men, therein follow the order of a good physician (Rex [123]enim omn’ artes censetur habere in scrinio pect’ sui) for, medicina est duplex, removens, [124]& promovens; removens morbum, & promovens ad salutem: and therefore five manner a_106of persons (who more hurt the body of man than the disease itself, one of which said of one of their patients, fugiens morbum incidit in medicum) are to be removed; 1. Improbi. 2. Avari, qui medicinam magis [125]avaritiæ suæ causa quam ullius bonæ conscientiæ fiducia profitentur. 3. Malitiosi. 4. Temerarii. 5. Inscii. And of the other part five manner of persons were to be promoted, as appears by the said act, sc. those who were, 1. profound. 2. sad. 3. discreet. 4. groundly learned. 5. profoundly studied. And it was well ordained, that the professors of physic should be profound, sad, discreet, &c. and not youths, who have no gravity and experience; for as one saith, [126]In juvene theologo conscientiæ detrimentum, in juvene legista bursæ detrimentum in juvene medico cœmiterii incrementum. And it ought to be presumed, every doctor of any of the universities to be within the statutes, sc. to be profound, sad, discreet, groundly learned, and profoundly studied, for none can there be master of arts (who is a doctor of philosophy) under the study of seven years, and cannot be doctor in physic under seven years more in the study of physic; and that is the reason that the plaintiff is named in the declaration doctor of Philosophy, and doctor of physic; quia oportet medicum esse philosophum, [127]ubi enim philosophus desinit, medicus incipit: as to the two points upon which the Chief Justice, Warburton and Daniel, gave judgment. 1. It was resolved by them, that the said censors had not power to commit the plaintiff for any of the causes mentioned in the bar; and the cause and reason thereof shortly was, that the said clause, which gives power to the said censors to fine and imprison, doth not extend to the said clause, sc. quod nemo in dictâ civitate, &c. exerceat dictam facultatem, &c. which prohibits every one from practising physic in London, &c. without licence from the president and college; but extends only to punish those who practise physic in London, pro delictis suis in non bene [128]exequendo, a_107faciendo & utendo facultate medicinæ, by fine and imprisonment: so that the censors have not power by the letters patent, and the act, to fine and imprison any for practising physic in London, but only pro delictis suis in non bene exequendo, &c. sc. for ill, and not good use and practice of physic. And that was made manifest by five reasons, which were called vividæ rationes, because they had their vigour and life from the letters patent, and the act itself; and the best [129]expositor of all letters patent, and acts of Parliament, are the letters patent and the acts of Parliament themselves, by construction, and conferring [130]all the parts of them together, [131]Optima statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum statutum; and [132]injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere. The first reason was, that these two were two absolute, perfect, and distinct clauses, and as parallels, and therefore the one did not extend to the other; for the second begins, præterea voluit et concessit, &c. and the branch concerning fine and imprisonment is parcel of the 2d clause. 2. The first clause prohibiting the practice of physic, &c. comprehends four certainties: 1. Certainty of the thing prohibited, sc. practice of physic. 2. Certainty of the time, sc. practice for one month. 3. Certainty of penalty, sc. 5l. 4. Certainty in distribution, sc. one moiety to the King, and the other moiety to the college, and this penalty he who practises physic in London incurs, although he practises and uses physic well, and profitable for the body of man; and on this branch the information was exhibited in the King’s Bench. But the clause to punish delicta in non bene exequendo, &c. on which branch the case at bar stands, is altogether uncertain, for the hurt which may come thereby may be little or great, leve vel grave, excessive or small, &c. and therefore a_108the King and the makers of the act could not, for an offence so uncertain, impose a certainty of the fine, or time of imprisonment, but leave it to the censors to punish such offences, secundum quantitatem delicti, which is included in these words, per fines, amerciamenta, imprisonamenta corporum suorum, et per alias vias rationibiles et congruas. 2. The harm which accrues by non bene exequendo, &c. concerns the body of man; and therefore it is reasonable that the offender should be punished in his body, sc. by imprisonment; but he who practises physic in London in a good manner, although he doth it without licence, yet it is not any prejudice to the body of man. 3. He who practises physic in Lon. doth not offend the statute by his practice, unless he practises it by the space of a month. But the clause of non bene exequendo, &c. doth not prescribe any certain time, but at what time soever he ministers physic non bene, &c. he shall be punished by the said second branch: and the law hath great reason in making this distinction, for divers nobles, [133]gentlemen, and others, come upon divers occasions to London, and when they are here they become subject to diseases, and thereupon they send for their physicians in the country, who know their bodies, and the cause of their diseases; now it was never the meaning of the act to bar any one of his own physician; and when he is here he may practise and minister to another by two or [134]three weeks, &c. without any forfeiture; for any one who practises physic bene, &c. in London (although he has not taken any degree in any of the universities) shall forfeit nothing, unless he practises it by the space of a month; and that was the reason that the time of a month was put in the act. 4. The censors cannot be [135]judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety a_109of the forfeiture, quia [136]aliquis non debet esse Judex in propriâ causâ, imo iniquum est aliquem suæ rei esse judicem; and one cannot be judge and attorney for any of the parties, Dyer 3 E. 6. 65. 38 E. 3. 15. 8 H. 6. 19. b. 20. a. 21 E. 4. 47. a. &c. And it appears in our books, that in many cases, the common law will [137]controul acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void: and therefore in 8 E. 3. 30. a. b. Thomas Tregor’s case on the statute of W. 2. c. 38. & artic’ super chartas, c. 9. Herle [138]saith, some statutes are made against law and right, which those who made them perceiving, would not put them in execution: the stat. of W. 2. [139]c. 21 gives a writ of Cessavit hæredi petenti super hæredem tenent’ & super eos quibus alienatum fuerit hujusmodi tenementum: and yet it is adjudged in 33 E. 3. [140]Cessavit 42. where the case was, two coparceners lords, and tenant by fealty and certain rent, one coparcener had issue and died, the aunt and the niece shall not join in a Cessavit, because the heir [141]shall not have a Cessavit for the cesser in the time of his ancestor, F. N. B. 209. F. and therewith agrees Plow. Com. 110. a. and the reason is, because in a Cessavit the tenant before judgment may render the arrearages and damages, &c. and retain his land, and that he cannot do when the heir brings a Cessavit for the cesser in the time of his ancestor, for the arrearages incurred in the life of the ancestor do not belong to the heir: and because it would be against common right and reason, the common law adjudges the said act of Parliament a_110as to that point void. The statute of [142]Carlisle, made anno 35 E. 1. enacts, that the order of the Cistercians and Augustines, who have a convent and common seal, that the common seal shall be in the keeping of the Prior, who is under the Abbot, and four others of the most grave of the house, and that any deed sealed with the common seal, which is not so in keeping shall be void: and the opinion of the court (in an. 27 H. 6. Annuity 41.) was, that this statute was [143]void, for it is impertinent to be observed, for the seal being in their keeping, the Abbot cannot seal any thing with it, and when it is in the Abbot’s hands, it is out of their keeping ipso facto; and if the statute should be [144]observed, every common seal shall be defeated upon a simple surmise, which cannot be tried. Note reader the words of the said statute at Carlisle, anno 35 E. 1. (which is called Statutum religiosorum) are, Et insuper ordinavit dominus Rex & statuit, quod Abbates Cisterc’ & Præmonstraten’ ordin’ religiosorum, &c. de cætero habeant sigillum commune, et illud in custodia Prioris monasterii seu domus, et quatuor de dignioribus et discretioribus ejusdem loci conventus sub privato sigillo Abbatis ipsius loci custod’ depo, &c. Et si forsan aliqua scripta obligationum, donationum, emptionum, venditionum, alienationum, seu aliorum quorumcunque, contractuum alio sigillo quam tali sigillo, communi sicut præmittit’ custodit inveniant’ a modo sigillat’, pro nullo penitus habeantur omnique careant firmitate. So the statute of 1 E. 6. c. 14. gives chauntries, &c. to the King, saving to the donor, &c. all such rents, services, &c. and the common law controuls it, and adjudges it void as to services, and the donor shall have the rent, as a rentseck, distrainable of common right, for it would be against common right and reason that the [145]King should hold of any, or do service to any of his subjects, 14 Eliz. Dyer 313. and a_111so it was adjudged Mich. 16 & 17 Eliz. in Com’ Banco in [146]Strowd’s case. So if any act of Parliament gives to any to hold, or to have conusans of all manner of pleas arising before him within his manor of D. yet he shall hold no plea, to which he himself is party; for, as hath been said, iniquum est aliquem suæ rei esse judicem. 5. If he should forfeit 5l. for one moiety by the first clause, and should be punished for practising at any time by the second clause, two absurdities should follow, 1. That one should be punished not only twice but many times for one and the same offence. And the divine saith, Quod [147]Deus non agit bis in idipsum; and the law saith, Nemo debet bis puniri pro uno delicto. 2. It would be absurd, by the first clause, to punish practising for a month, and not for a lesser time, and by the second to punish practising not only for a day, but at any time, so he shall be punished by the first branch for one month by the forfeit of 5l. and by the second by fine and imprisonment, without limitation for every time of the month in which he practises physic. [148]And all these reasons were proved by two grounds, or maxims in law; 1. [149]Generalis clausula non porrigitur ad ea quæ specialiter sunt comprehensa: and the case between Carter and [150]Ringstead, Hil. 34 Eliz. Rot. 120. in Communi Banco, was cited to this purpose, where the case in effect was, that A. seized of the manor of Staple in Odiham in the county of Southampton in fee, and also of other lands in Odiham aforesaid in fee, suffered a common recovery of all and declared the use by indenture, that the recoverer should stand seised of all the lands and tenements in a_112Odiham, to the use of A. and his wife, and to the heirs of his body begotten; and further, that the recoverer should stand seised to the use of him, and to the heirs of his body, and died, and the wife survived, and entered into the said manor by force of the said general words; but it was adjudged, that they did not extend to the said manor which was specially named: and if it be so in a deed, a fortiori, it shall be so in an act of Parliament, which (as a will) is to be expounded according to the intention of the makers. 2. [151]Verba posteriora propter certitudinem addita ad priora quæ certitudine indigent sunt referenda. 6 E. [152]3. 12. a. b. Sir Adam de Clydrow Knight, brought a Præcipe quod reddat against John de Clydrow, and the writ was, Quod juste, &c. reddat manerium de Wicomb et duas carucatas terræ cum pertinentiis in Clydrow, in that case the town of Clydrow shall not relate to the manor, quia non indiget, for a manor may be demanded without mentioning that it lies in any town, but cum pertinentiis, although it comes after the town, shall relate to the manor, quia indiget. Vide 3 E. 4. 10. the like case. But it was objected, that where by the second clause it was granted, that the censors should have supervisum et scrutinium, correctionem et gubernationem omnium et singulorum medicorum, &c. they had power to fine and imprison. To that it was answered, 1. That that is but part of the sentence, for by the entire sentence it appears in what manner they shall have power to punish, for the words are, ac punitionem eorum pro delictis suis in non bene exequendo, faciendo, vel utendo illa facultate; so that without question all their power to correct and punish the physicians by this clause is only limited to these three cases, sc. in non bene exequendo, faciendo, vel utendo, &c. Also this word punitionem, is limited and restrained by these words, ita quod punitio eorundem medicorum, &c. sic in præmissis delinquentium, &c. which words, sic in præmissis delinquentium, limit the former words in the first a_113part of this sentence, ac punitionem eorum pro delictis suis in non bene exequendo, &c. 2. it would be absurd, that in one and the same sentence the makers of the act should give them a general power to punish without limitation; and a special manner how they shall punish, in one and the same sentence. 3dly, Hil. 38 Eliz. in a Quo warranto against the Mayor and Commonalty of London, it was held, that where a grant is made to the Mayor and Commonalty, that the Mayor for the time being should have [153]plenum et integrum scrutinium, gubernationem, et correctionem omnium et singulorum mysteriorum, &c. without granting them any court, in which should be legal proceedings, that it is good for search, whereby a discovery may be made of offences and defects, which may be punished by the law in any court, but it doth not give, nor can give them any irregular or absolute power to correct or punish any of the subjects of the kingdom at their pleasure. 2. It was objected, that it is incident to every court created by letters patent, or act of Parliament, and other courts of record, to punish any misdemeanor done in court, in disturbance or contempt of the court, by imprisonment. To which it was answered, that neither the letters patent nor the act of Parliament has granted them any court, but only an [154]authority, which they ought to pursue, as it shall be afterwards said. 2. If any court had been granted them, they could not by any incident authority implicitè granted them, for any misdemeanor done in court, commit him to prison without bail or mainprize, until he should be by the commandment of the president and censors, or their successors, delivered, as the censors have done in this case. 3. There was not any such misdemeanor for which any court might imprison him, for he only shewed his case to them, which, he was advised by his counsel, he might justify, which is not any offence worthy of imprisonment. The second point was, admitting that the censors had power by the act, if they had pursued their authority, or not? And it was a_114resolved by the Chief Justice, Warburton and Daniel, that they had not pursued it for six reasons. 1. By the act, the censors only have power to impose a fine, or amerciament; and the president and censors imposed the amerciament of 5l. upon the plaintiff. 2. The plaintiff was summoned to appear coram presidente et censoribus, &c. et non comparuit, and therefore he was fined 10l. whereas the president had no authority in that case. 3. The fines or amerciaments to be imposed by them, by force of the act, do not belong to them, but to the King, for the King had not granted the fines or amerciaments to them, and yet the fine is appointed to be paid to them, in proximis comitiis, and they have imprisoned the plaintiff for non-payment thereof. 4. They ought to have committed the plaintiff presently, by construction of law, although that no time be limited in the act, as in the statute of W. 2. cap. 11 [155]De servientibus, ballivis, &. qui ad compotum reddend’ tenentur, &c. cum dom’ hujusmodi servientium dederit eis auditores compoti, et contingat ipsos in arrearagiis super compotum suum omnibus allocatis et allocandis, arrestentur corpora eorum, et per testimonium auditorum ejusdem compoti mittantur et liberentur proximæ gaolæ domini Regis in partibus illis, etc. In that case, although no time be limited when the accomptant shall be imprisoned, yet it ought to be done [156]presently, as it is held in 27 H. 6. 8. a. and the reason thereof is given in Fogassa’s case, Plowd. Com. 17. b. that the generality of the time shall be restrained to the present time, for the benefit of him upon whom the pain shall be inflicted, and therewith agrees Plow. Com. 206. b. in Stradling’s case. And a Justice [157]of Peace upon view of the force, ought to commit the offender presently. a_1155. Forasmuch as the censors had their authority by the letters patent and act of Parliament, which are high matters of record, their proceedings ought not to be by parol, & eo potius, because they claim authority to fine and imprison, and therefore, if judgment be given against one in the Common Pleas in a writ of [158]recaption, he shall be fined and imprisoned, but if the writ be vicontiel in the county, there he shall not be fined nor imprisoned, because a writ of the court is not of record, F. N. B. in Recaption; so in F. N. B. 47. a. a plea of trespass vi et armis doth not lie in the county court, hundred court, &c. for they cannot make a record of fine and imprisonment; and regularly they who cannot make [159]a record, cannot fine and imprison. And therewith agrees 27 H. 6. 8. Book of Entries, tit. Account, fol. —. The auditors make a record when they commit the defendant to prison; a Justice of Peace upon view of the force may commit, but he ought to make a record of it. 6. Forasmuch as the act of 14 H. 8. has given power to imprison till he shall be delivered by the president and the censors, or their successors, reason requires that it should be taken strictly, for the liberty of the subject (as they pretend) is at their pleasure: and this is well proved by a judgment in Parliament in this very case; for when this act of 14 H. 8. had given the censors power to imprison, yet it was taken so literally, that the gaoler was not bound to receive such as they should commit to him, and the reason thereof was, because they had authority to do it without any court: and thereupon the statute of 1 Ma. [160]cap 9. was made, that the gaoler should receive them upon a penalty, and yet none can commit any to prison, unless the gaoler receives him: but the first act, for the cause a_116aforesaid, was taken so literally, that no necessary incident was implied. And where it was objected, that this very act of 1 Mar. cap. 9. has enlarged the power of the censors, and they urged it upon the words of the act; it was clearly resolved, that the said act of 1. Mar. did not enlarge the power of the censors to fine or imprison any person for any cause for which he ought not to be fined and imprisoned by the said act of [161]14. H. 8. For the words of the act of Queen Mary are, “according to the tenor and meaning of the said act:” also “shall send or commit any offender or offenders for his or their offence or disobedience, contrary to any article or clause contained in the said grant or act, to any ward, gaol, &c.” But in this case Bonham has not done any thing which appears within this record, contrary to any article or clause contained within the grant or act of 14 H. 8. Also the gaoler who refuses shall forfeit the double value of the fines and amerciaments that any offender or disobedient shall be assessed to pay; which proves that none shall be received by any gaoler by force of the act of 14 H. 8. but he who may be lawfully fined or amerced by the act of 14 H. 8. and that was not Bonham, as by the reasons and causes aforesaid appears. And admitting that the replication be not material, and the defendants have demurred upon it; yet forasmuch as the defendants have confessed in the bar, that they have imprisoned the plaintiff without cause, the plaintiff shall have judgment: and the difference is, when the plaintiff [162]replies, and by his replication it appears that he has no cause of action, there he shall never have judgment: but when the [163]bar a_117is sufficient in matter, or amounts (as the case is) to a confession of the point of the action, and the plaintiff replies, and shews the truth of the matter to enforce his case, and in judgment of law it is not material, yet the plaintiff shall have judgment, for it is true that sometimes the declaration shall be made good by the bar, and sometimes the bar by the replication, and sometimes the replication by the rejoinder, &c. but the difference is, when the declaration wants time, place, or other [164]circumstance, it may be made good by the bar, so of the bar, replication, &c. as appears in 18 E. 4. 16. b. But when the declaration wants substance, no bar can make it good; so of the bar, replication, &c. and therewith agrees 6. E. 4. 2. a good case, and nota there dictum Coke. Vide 18 E. 3. 34. b. 44 E. 3. 7, a. 12 E. 4. 6. 6 H. 7. 10. 7 H. 7. 3. 11 H. 4. 24. &c. But when the plaintiff makes replication, sur-rejoinder, &c. and thereby it appears, that upon the [165]whole record the pl. has no cause of action, he shall never have judgment, although the bar or rejoinder, &c. be insufficient in matter; for the court ought to judge upon the whole record, and every one shall be intended to make the best of his own case. Vide [166]Ridgeway’s case, in the Third Part of my Reports 52. b. and so these differences were resolved and adjudged between [167]Kendal and Helyer, Mich. 25 & 26 Eliz. in the K.’s Bench, and Mich. 29 & 30 Eliz. in the same court, between [168]Gallys and Burbry. And Coke Ch. Just. in the conclusion of his argument observed seven things for the better direction of the president and commonalty of the said college for the future. 1. That none can be punished for practising physic in London, but by forfeiture of 5l. by the month, which is to be recovered by the law. 2. If any practise physic there a_118for a less time than a month, that he shall forfeit nothing. 3. If any person prohibited by the statute offends in non bene exeq’ &c. they may punish him according to the stat. within the month. 4. Those who they may commit to prison by the stat. ought to be commit. [169]presently. 5. The fines which they set, according to the statute, belong to the King. 6. They cannot impose a fine, or imprisonment without a record of it. 7. The cause for which they impose fine and imprisonment ought to be certain, for it is [170]traversable: for although they have letters patent, and an act of Parliament, yet because the party grieved has no other remedy, neither by writ of error, or otherwise, and they are not made Judges, nor a court given them, but have an [171]authority only to do it, the cause of their commitment is traversable in an action of false imprisonment brought against them; as upon the statute of [172]bankrupts, their warrant is under the great seal, and by act of Parliament; yet because the party grieved has no other remedy, if the commissioners do not pursue the act and their commission, he shall traverse, that he was not a bankrupt, although the commissioners affirm him to be one; as this term it was resolved in this court, in trespass between Cutt [173]and Delabarre, where the issue was, whether Will. Cheyney was a bankrupt or not, who was found by the commissioners to be a bankrupt; a fortiori in the case at bar, the cause of the imprisonment is traversable; for otherwise the party grieved may be perpetually, without just cause, imprisoned by them; but the record of a force made by a Justice of Peace is not traversable, a_119because he doth it as Judge, by the statutes of [174]15 R. 2. and 8 H. 6. and so there is a difference when one makes a record as a Judge, and when he doth a thing by special authority, (as they did in the case at bar) and not as a Judge. And afterwards, for the said two last points, judgment was given for the plaintiff, nullo contradicente, as to them. And I acquainted Sir Thomas Fleming, Chief Justice of the King’s Bench, with this judgment, and with the reasons and causes of it, and he well approved of the judgment which we had given: and this is the first judgment on the said branch concerning fine and imprisonment which has been given since the making of the said charter and acts of Parliament, and therefore I thought it worthy to be reported and published.
(See Carthew 492. 6 Mod. 125.)
[For the Pleadings in this Case see 8 Co. Rep. p. 107.]
Dr. Groenvelt vers. Dr. Burwell and others, Censors of the College of Physicians (from 1 Comyns Rep. p. 75)
This was an action of trespass for an assault, battery, wounding and false imprisonment. The defendants as to the beating and wounding, plead not guilty, and as to the residue of the trespass they justify; for that by letters patent dated the 23 of September 10 H. 8 the king granted, that they, viz. the doctors of physick in London, should be a body and perpetual community, per nomen præsidentis & collegii five communitat’ facultat’ medicin’ London’, &c. and that they might make By-Laws; & quod quatour singulis a_120annis eligerentur qui haberent scrutinium correctionem & gubernationem omnium & singulorum dictæ civitatis medicorum & aliorum medicorum forinsecorum facultate illa utentium infra eandem civitatem & suburbia, ac infra septem milliaria in circuitu ejusdem, ac punitionem eorundem pro delictis suis in non bene exercendo, &c. per fines amerciamenta & imprisonamentum corporum suorum; and that these letters patent were confirmed by an act of parliament of 14 H. 8. And that on the 1st of January 8 W. 3. the plaintiff exercised the art of physick in London, and that he administered bad and unwholesome physick to one woman and that the said woman and her husband complained to the defendants, being the censors of the said college; upon which complaint the plaintiff was summoned before them, and upon examination they found him guilty of administering unwholesome physick, by means of which the said woman languished; and thereupon they fined the plaintiff 20l. and made a warrant under their hands and seals to —— —— who was also a defendant, to take the plaintiff; who took him pursuant to such warrant and conveyed him to prison; which is the residue of the trespass of which the plaintiff complains. The plaintiff replies protestando, that there are no such letters patent, and no such act of parliament; and protestando, that the plaintiff did not administer such unwholesome physick; that the defendants of their own wrong committed the trespass; absque hoc quod, that the plaintiff was taken and committed by force of the said warrant: and to this it was demurred. And this case was divers times argued, and many exceptions were taken to the plea and to the replication; and now this term judgment was given for the defendants. And Holt C. J. delivered the opinion of the court; and said, that the rest of the Judges were agreed, that the replication of the plaintiff was ill, and that the plea of the defendants was good. The plaintiff in his replication traverses the taking by the warrant mentioned in the plea of the defendants; and this is ill both in substance and in form; for in point of form he ought not to a_121traverse the taking by force of the warrant, but that there was not any such warrant; for if it were necessary that the arrest of the plaintiff should be by the same warrant that was mentioned before in the pleading that if the defendants had shewn in their plea another warrant than that which was shewn at the time of the arrest, the plaintiff ought not to have said, that he was not taken by this warrant but that there was not any such warrant. But the replication is not good in point of substance; for the plaintiff seems to intend, that the warrant by which he was arrested was unlawful, yet the plaintiff shall not have advantage of it, if there was another warrant which was lawful to take him at the same time; for if there are two warrants, the one lawful and the other unlawful, and the party is taken upon the illegal warrant, yet he who apprehends him may justify himself by the authority of the legal warrant; and this appears by the case Mich 34 Ed. 1 Fitz. Avowry, 232 cited 3 Co. 26. a. If a man takes a distress for a thing for which he has not good cause of distress, but had good cause of distress for another thing; if a replevin is brought, and he comes into court, he may avow for which thing he pleases. Then it was considered whether the plea of the defendants was good; to which it had been objected that it was ill for the uncertainty; for the cause of the commitment being traversable ought to be alleged with certainty. Secondly, That by the plea it appears, that the plaintiff was fined and imprisoned also; the censors (of the college of Physicians the defendants) have authority to impose a fine, and to imprison for non-payment of that fine, or they may imprison for the offence; but they cannot both fine and imprison for the same offence, as in this case; for it does not appear that the imprisonment was for non-payment of the fine but the plaintiff was both fined and imprisoned, and so was twice punished for one offence. Thirdly, the plea does not shew that the plaintiff was one of the college. Fourthly, The plea makes no answer to the assault; it does not shew that there was any assault, or set forth any justification of it. a_122But Holt C. J. said that the Court held the plea to be good, for it goes to the whole declaration; as to the battery and wounding the defendants plead not guilty, as to the residue of the trespass they justify; and the residue of the trespass comprehends the assault, and every other part of the declaration to which the plea (of not guilty) does not extend: and there is no need that the plaintiff should be of the college; for it appears that he exercised his faculty within London and the censors have jurisdiction within London and the suburbs, and seven miles in circumference; and it appears by the words of the Charter, that the censors have power to punish by fine and imprisonment; and how they exercise that authority we do not enquire, as it will be apparent afterwards in the answer to the first objection, and which is the most material one. In answer to the first objection, then, we say, First that the cause of the commitment is not traversable. Secondly if it were traversable, it is set forth with certainty enough. That the cause of commitment is not traversable appears by the authority which the censors have by the act of parliament; for by it they are constituted judges of fact, what is a mal-administration (of medicines) and what is not: and they are judges of record for they have authority to impose fine and imprisonment; and when a new authority is constituted, with power to fine and imprison, the persons invested with such authority are judges of record; for that every thing proves a court to be a court of record, viz. the power of fining and imprisoning; for courts which are not of record can neither set a fine nor commit any one to prison. 8 Co. 38. b. And there it is proved, that the leet can impose a fine, because it is a court of record; and forasmuch as the statute W. 2. c. 11 impowers the auditors to commit the accountant to prison the auditors are thereby made judges of record; as is observed 10 Co. 103. a. 2. Inst. 218. Then the censors being constituted judges of the matter, that which they have done as such they shall not be answerable for; and that a judge shall not be answerable for an act done by him as a judge, appears a_123by 12 Co. 24. and the cases there cited. True it is, that if a justice of(a) peace issue his warrant to imprison the party, or to arrest him until such time as he can be brought before him, or if the commissioners of bankrupts commit a witness for refusing to be examined(a) it may be determined in an action, whether they have pursued their authority or not; for their act in this respect is only ministerial;(b) and the commitment is not intended as a punishment, but only as a mesne process to bring the party to justice, or to make him do his duty. My Lord Coke, it is true, says in Dr. Bonham’s case, 8 Co. 121 a. that the cause of commitment was traversable; but this opinion was there given obiter, and was not essential to the case in judgment; for there the question was, for practising without the licence of the college, for which the party could not be imprisoned; and Dr. Bonham being a graduate in the university, my Lord Coke was carried away by his affection to his Alma Mater so far as to make a resolution in the present point, which was not in the case before him: but my Lord Coke says, that upon a conviction by the censors, they ought to make a record of it, which admits they are judges of record; and then by his own rule there in the case of a justice of peace who made a conviction of a force, and the cases in his other works, their acts (the acts of the justices of the peace) cannot be traversed; and my Lord Coke does not cite any authority in support of his opinion (as to the point now before us). The reason which he gives why the party has no remedy by writ of error or otherwise is of no weight: I grant that a writ of error lies not; for the censors having a new authority by a special act of parliament and their proceedings being directed to be in a summary way there is no need for them to pursue the forms and methods of others courts; and it is sufficient for them to make such summary proceeding as justices of the peace in many cases may do; yet the party is not without remedy for he may have a Certiorari to remove the record of conviction, and then it may be examined and reviewed, to see whether it be a_124pursuant to their authority; for in every case where a new jurisdiction is set up for a special purpose this court by virtue of its original power may award a Mandamus to make them put their authority in execution, and a Certiorari to look into their proceeding whether it be conformable to their authority or not. Thus a Certiorari lies to remove an indictment for felony before the justices of the peace (bro. Eliz. 489. Long’s case) to remove orders before commissioners of sewers, or by justices of the peace who have authority to make conviction of a force in their presence, or for deer-stealing, but although no Certiorari did lie (in the present case) it is not consequential that the cause of their commitment is traversable; for if the parliament intrusts them with a power so great that no act of theirs shall be reversed or reviewed, there is the less reason that their proceeding should be examined or traversed in an action; a jury is not finable for giving a verdict against evidence; and though there are many cases where jurymen have been fined (1) yet Bushel’s case, in which all the others are cited, is sufficient to controul all the rest. Vauq. 135 (a) and if a juror shall not be fined or imprisoned or otherwise punished for refusing to find a man guilty upon apparent and plain evidence, much less shall a judge be liable to censure. In the case (b) of Hammond and Powell, P. 29 Car. 2 an action for false-imprisonment was brought after the resolution in Bushel’s case for his imprisonment (for Hammond was one of the same jury with Bushel and fined 40l. and imprisoned for it at the same time,) and notwithstanding that the fine and imprisonment were illegal yet it was adjudged that the action did not lie for false-imprisonment against the judge or the officer; so a fine imposed by a judge of a court is not traversable as an amercement is. 7 H. 6. 13. a. As to the case between Terry and Huntington Hard. 480 which may be objected; that is good law; for there an action was brought against the commissioners of excise, who had charged a man for the duty upon strong waters, where the liquor made by him was low wine of the a_125first extraction, and the action well lay, for they had exceeded their jurisdiction; for low wines of the first extraction were not chargeable within the act of parliament; and if they had charged a duty upon a liquor not chargeable with it, they were not to be excused for having named it strong waters. If a justice of the peace commits a man for being the Father of a bastard child no action lies against the justice if the man was the father of a bastard otherwise if he had no bastard at all. So the case between Nickols and Walker, Cro. Car. 394, (a) is good law, for there an inhabitant of Tottridge was charged to the poor of Hatfield; and the justices of the peace have power to award a distress, where a person is assessed to the poor of the parish where he hath land or is an inhabitant; but where he is charged to the relief of another parish there the case is beyond their jurisdiction. But if the cause of the commitment were traversable yet the plea of the defendants here is good, for it shews with certainty in what the ill-administration of the physic consisted viz in the use of unwholesome drugs: and although it is not said what drugs he used, it is no matter, for how shall we be informed whether he has shewn them. In an action against a surgeon for an inartificial cure the plaintiff does not shew what plaisters the defendant used. As to what hath been said that the plea does not shew for what malady the medicines were given; it was answered that it would be so much the worse if the medicines were given when the party had not any malady at all. And although it is not said that the witnesses upon whose testimony the fine was imposed were upon oath, yet the plea is sufficient; for it may be that it was not necessary that they should be sworn or if it were needful the omission of it is not such as will make their proceedings void. In such a special jurisdiction in which the proceeding is to be in a summary manner it is not needful to observe all the circumstances which are necessary in other legal proceedings.—Judgment for the defendants.
a_126The College of Physicians versus Dr. West.
(from 10 Mod. 358.)
The Question was, whether a Man, that had taken his Degree of Doctor of Physick, in either of the Universities, might not practise in London, and within seven miles of the same, without a Licence from the College of Physicians.
The Court clear of Opinion, that a Licence from the College was necessary; and that by reason of the Charter of Incorporation, confirmed by 14 & 15 Hen. 8. cap. 5. penn’d in very strong and negative words.
As to the Testimonials granted by the Universities upon a Person’s taking the Doctors Degree; the Court was of Opinion, That these Testimonials might have the Nature of a Recommendation; they might give a Man a fair Reputation, but conferr’d no Right; and consequently all those Statutes, which have confirmed the Privileges of the Universities, could revive or confirm nothing but the Reputation, that this Testimonial might give such Graduates.
And whereas it has been insisted, That by the last Clause of the Statute, it is said, That none shall practise in the Country without a licence from the President and three Elects, unless he be a Graduate of one of the Universities, it was said all the inference from that would be, That possibly two Licences may be necessary where a person is not a Graduate.
In the Case of Dr. Levet, Lord Chief Justice Holt did not think this a Question worth being found specially.
The College of Physicians are without doubt more competent Judges of the Qualifications of a Physician than the Universities, and there may be many good Reasons for taking a particular care of those, that practise Physick in London.
a_127
William Rose’s Case
William Rose, Plaintiff The College of Physicians, London, Defendants
in Error
15th March, 1703.
In the 10th year of Hen. 8. the defendants were incorporated; and, in the letters patent granted for that purpose, which were confirmed by stat. 14 and 15 Hen. 8. c. 5. is, inter alia, the following clause: “Concessimus, etiam eisdem præsidenti et collegio, seu communitati, et successoribus suis, quod nemo in dicta civitate, aut per septem milliaria in circuitu ejusdem, exerceat dictum facultatem, nisi ad hoc perdict, præsidentem et communitatem, seu successores eorum qui pro tempore fuerint, admissus sit per ejudem præsidents et collegii literas sigillo suo communi sigillatas, sub pœna centum solidorum pro quolibet mense, quo non admissus eandem facultatem exercit, dimidium inde nobis et hæred. nostris, et dimidium dicto præsidenti et coll. applicandum.”
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 5l. 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 a_128to 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.
On the other side, it was contended, that by several orders of the college, its members were enjoined to give their advice to the poor gratis; and that not only to such as could come to them for it; but every physician, in his neighbourhood, was obliged to visit the sick poor, at their a_129own lodgings; and therefore the objection, that, if the apothecaries could not administer physic but by the prescript of a physician, the poorer sort of people would be lost for want of proper remedies, had not the least foundation. And, when these orders were observed not to have their full intended effect, on account of the high prices which the apothecaries generally demanded for the remedies prescribed, whereby the poor were deterred from consulting the physician, for fear of the charge of the physic; the college, by a joint stock, erected several dispensaries in town, where, after the physicians had given their advice gratis, the patients might have the physic prescribed, for a third, and generally less, of what the apothecaries used to exact for it; by which expedient, many hundred persons of mean condition, received their cures at a very small expense, and without one farthing profit arising to the physicians. That in cases of sudden and immediate necessity, not only apothecaries, but any other person, might do his best to relieve his neighbour, without incurring the penalty of the law; but there was no reason why the apothecaries, under that pretence, should be permitted to undertake, at leisure, all dangerous diseases; and especially where, as in this city at least, a skilful physician may be as soon had as an apothecary. That, in common or trifling indispositions, the patients themselves were generally their own physicians; and would of course, send for any medicine, of which there had been common experience, for their cure, and which the apothecary might lawfully make up and sell; but, for the apothecary to be permitted to judge of diseases in their beginning, whether slight or not, and to order medicines for the same, would prove both dangerous, and more chargeable. Dangerous, because the most malignant distempers usually begin with apparently inconsiderable symptoms, and are many days before they appear in their proper colours; and, as apothecaries are not bred to have suitable skill, the management thereof ought not to be left to their judgment. And more chargeable, because, be the disease a_130ever so slight, the apothecary will be sure to prescribe largely enough; and should he chance to mistake, then that distemper, which, by the discreet advice of a physician, might, by one proper medicine, have been eradicated at the beginning, runs out into great length, to the extreme hazard and great expense of the patient.
But, after hearing counsel on this writ of error, it was Ordered and Adjudged, that the judgment given in the Queen’s Bench, for the President and College, or Commonalty of the faculty of Physic, London, against the said Wm. Rose, should be reversed.
(From 1 Brown Par. Ca. p. 78.)
The King against the President and College of Physicians. (From 7 Term Rep. p. 282)
This was a rule calling on the president and College or commonalty of physic in London to shew cause why a mandamus should not issue, commanding them to examine C. Stanger, M.D. as to his qualification and fitness to be admitted into the said Corporation as a member or fellow thereof.
* * * * *
Doctor Stanger, after referring to the above statutes (3 Hen. 8: 14 & 15 Hen. 8) and Charter, stated in his affidavit that in 1783 he took a degree of doctor of physic at Edinburgh after a residence there for three years, and after having studied physic there and at other places for many years; that afterwards he went abroad to France, Italy, and Germany, and studied physic there for several years more. That in 1789 he obtained a licence from the college of physicians here in the usual way to practise in London and within seven miles thereof, and that he has a_131practised ever since. That in June 1796 he applied to the president and college at their general meeting to be admitted by them to be a member of their corporation, submitting himself to be previously examined by them concerning his qualification and fitness to be admitted a member of the corporation, which the college refused. Dr. Stanger also added in his affidavit that he was duly qualified and fit to be admitted a member of the college.
The affidavits in answer to the rule disclosed the following (among other) facts. For two hundred years past there have been three classes of persons practising physic in London and seven miles round; the fellows; candidates, persons desirous of becoming members and who have been examined and approved by the president and censors to be candidates for election into the society or fellowship; and the licentiates, who may practise as fully in all respects as fellows and have the same benefits and advantages. Various bye-laws have been made by the college respecting the qualifications of persons to be admitted fellows, one of them so long ago as 1637, by which it was ordained that no person should be admitted a fellow unless he had performed all his exercises and disputations in one of our universities without dispensation, and which has continued ever since with some little alterations. To prevent any mistakes arising from the words “aliquâ Britanniæ Academiâ” in some of the bye-laws respecting this qualification, an explanatory bye-law was made in 1751, in which it was declared that the meaning of the words was that no person should be admitted who was not a Doctor of Physic of Oxford or Cambridge. The bye-laws of the college have been revised and altered since the year 1768. By those now in existence no person can be admitted a fellow unless he has been a candidate for a year, except in certain cases hereafter mentioned. No person can be admitted into the class of candidates unless he has been created a Doctor of Physic in the university of Oxford or Cambridge, or unless he has obtained the same degree in the university of Dublin and has been incorporated a_132into one of the universities of Oxford or Cambridge; nor can any such person be admitted into the class of candidates until after he has been examined as to his knowledge of physic in three of the greater or lesser meetings (called the comitia majora and comitia minora) of the college. After a person has been a candidate for a year, he may be proposed by the president at one of the greater meetings and admitted a fellow, if the majority of fellows consent, without further examination. But by two other bye-laws persons not having the above qualifications may be proposed in one of two ways; by one, the president is enabled once in every other year at the comitia minora to propose one licentiate of ten years standing, who may (if the major part of the comitia minora consent) be proposed by the president at the next comitia majora to be elected a fellow, and if the majority of fellows then present consent, he may then be admitted a fellow. By the other, any one of the fellows may propose any licentiate, of seven years standing and of the age of 36, in the comitia majora to be examined; if the major part of the fellows consent, such licentiate may be examined by the president or vice-president and censors, and if approved by the major part of the fellows then present, he may be proposed at the next comitia majora to be a fellow, and admitted if the majority of the fellows then present consent. The ordinary greater meetings (comitia majora) are holden four times a year, and consist of the president or vice-president and ten fellows at the least. The ordinary lesser meetings (comitia minora) consisting of the president or vice-president registar and censors of the college, are holden once a month. A letter was also inserted in the affidavits written by King Charles the Second to the college not to admit any person who had not had his education in either of our universities of Oxford or Cambridge: but it was admitted in the argument that no notice could legally be taken of this letter. It was also stated in the affidavits that Dr. Stanger, when he was licensed; gave his a_133faith or promise to the college that he would observe the statutes of the college &c. in the usual mode.
Adair Serjt. Law, Chambre, and Christian, argued in support of the rule; and
Erskine, Gibbs, Dampier, and Warren, against it.
The case was argued very much at length on three several days: but it is unnecessary to give a detail of the arguments, as the Court in giving their opinions went into them. The points insisted upon by the counsel in support of the rule were these; 1st. That under the general words of the charter “omnes homines ejusdem facultatis” &c. Dr. Stanger, who came within that description by his license, had an inchoate right, which authorised him to tender himself to the college for examination in order that he might be admitted, if on examination the president and college thought him qualified; though they admitted that the president and college were the sole judges of his fitness. And they referred to the several dicta of Lord Mansfield and Aston J. in R. v. Dr. Askew and others, 4 Burr. 2169; 2202; 2193; 2202. Secondly, That the bye-laws requiring an education at either of our universities or at Dublin were illegal and void, on grounds of public policy, and also on the ground that they superadded a qualification not required by the Charter, 4 Burr. 2198, 9; 2203, 4; and that it narrowed the number of the eligible; R. v. Spencer, 3 Burr. 1827; and R. v. Cutbush, 4 Burr. 2204.
On the other hand it was insisted, 1st. That Dr. Stanger had no right to be examined in order to be a fellow, either as a licentiate, Dr. Archer’s case, 4 Burr. 2203; or as coming within the description “omnes homines ejusdem facultatis” &c.; but that the election into that body was a mere matter of grant or favor, for that the charter evidently marked out two descriptions of persons, the members of the college (the fellows) and all those who practised physic in London or within seven miles thereof, that the former were to superintend the latter; and that if the latter had also a a_134right to be admitted fellows the distinction between the governors and the governed would be destroyed, and the very object of the charter and act of parliament, in giving to the fellows the superintendance of the others practising physic in and about London, would be defeated;—observing that the usage for a long period was in favour of this construction. 2dly, That Dr. Stanger, by giving his faith when he received his licence in 1789, was estopped to object to the bye-laws. But this point was abandoned in the course of the argument; it being considered that he was only bound to observe the bye-laws of the college that were not illegal. 3dly, That the bye-laws were neither against sound policy or law; and instances were alluded to of degrees taken in either of our universities giving privileges to the persons taking them in the other professions. And the counsel observed that the not having taken a degree in one of our universities was not an absolute bar to any person becoming a fellow of the college, there being two modes by which he might gain admission without that qualification.
Lord Kenyon, Ch. J. If in deciding this question it were necessary for us to answer all the arguments that have been urged at the bar, I should have desired further time to consider of the subject; but as the grounds on which I am warranted to determine the case lie in a very narrow compass, and I have formed my opinion upon it, I wish to put the question at rest now. By what fatality it has happened that almost ever since this charter was granted this learned body have been in a state of litigation I know not; and I cannot but lament that the learned Judges in deciding the cases reported in Burrow did not confine themselves to the points immediately before them, and dropped hints that perhaps have invited litigation; though indeed I cannot see what these parties are contending for that is worth the expense and anxiety attending this litigation. The public already have the benefit of the assistance of the licentiates; and their emoluments, the fair fruits of their education and advice, are just the same as those that the fellows of the college a_135receive. We have however been pressed with the authority of those who have preceded us here: no person can have a greater veneration for those characters than I have, and if this point had been decided by them, I should have thought myself bound by their decision. But the cases are unlike. The principal ground on which it was said in 4 Burr. 2199. that the bye-laws of the college were bad was, that “they interfered with their exercising their own judgment, and prevented them from receiving into their body persons known or thought by them to be really fit and qualified;” and if I had found that objection existed in this case, I should have thought it fatal: but in the very sentence in which Lord Mansfield expressed himself as above, he added “such of them indeed as only require a proper education and a sufficient degree of skill and qualification may be still retained.” Two universities have been founded in this country, amply endowed and furnished with professors in the different sciences; and I should be sorry that those who have been educated at either of them should undervalue the benefits of such an education.
In this case it is admitted that a licentiate does not de facto become a fellow of the college: it is admitted that he must be first examined, and that those who are called the College of Physicians are to judge of his fitness. It seems that the appeal here is rather made ad verecundiam, and that Dr. Stanger could not be rejected if he were examined. If the college are not judges of the fitness of the person examined, I do not know who is. Then is this a reasonable test of the fitness of the party? possibly they might have framed a better, though I do not say that they could; but the question here is whether this is a reasonable bye-law? According to the concurrent opinions of all mankind it is. The Legislature have considered that persons who have taken their degrees in our universities are entitled to certain privileges in the church. So if we look into our own profession, those who have been educated at our universities have particular privileges; and though the inns of court are not a_136corporations, yet their regulations shew that this has been considered as reasonable. It is not that a person becomes qualified from keeping his commons within the walls of the inns of court or the universities, but living with those of the profession will probably advance him in the knowledge of that profession for which he is a candidate. Again in the civil law; however competent any particular individual may be from extraordinary endowments or the exertion of superior talents, he must first take his degrees at one of our universities, and afterwards continue a year in a state of probation before he can practise. Those regulations that are adapted to the common race of men are the best: it does not follow that all institutions calculated for the ordinary classes are to be prostrated merely because they stand in the way of some few individuals of superior talents. Then the question is whether this is a reasonable bye-law that requires a degree to be taken at one of our universities, which in general is supposed to be conferred as a reward for talents and learning. If indeed this had been a sine qua non, and it had operated as a total exclusion of every other mode of gaining access to the college, it would have been a bad bye-law: but these bye-laws point out other modes of gaining admission into the college. If Dr. Stanger has all those requisites that qualify a person for that high station, any one of the fellows may now propose him; he may apply to the honourable feelings of the college, to the very same tribunal to which this mandamus (if it were granted) would refer him; for in all events he must submit to their examination and determination. In the profession of the church, we find that the bishops insist on having a testimonial of the person to be ordained signed by a certain number of clergymen; and though the bishops themselves may have the power of judging of the fitness of the person to be ordained it was never doubted but that this was one reasonable test of fitness, even before examination: it is a test to regulate their own conduct. So here I think this is a reasonable test. Therefore on this short ground, without entering a_137into any of the other topics that have been argued, I am of opinion that these are good and reasonable bye-laws, and that we are bound to refuse the writ.
Ashhurst, J. Though this matter has taken a considerable time in the argument, it is now reduced to a narrow compass. The counsel who have argued for the issuing of the mandamus do not contend that a licentiate, as such, does ipso facto become a member or a fellow of the college: they only say that any man who is fit in learning and morals has a right to offer himself for examination, without any superadded qualification; and therefore that the bye-law requiring “that every licentiate, in order to entitle him to offer himself for examination, shall be a doctor of one of the two universities in England or that of Dublin,” is a void bye-law. It is not denied by counsel who have argued for the rule that the corporation have the right of making bye-laws for the regulation of their own body. And Lord Mansfield, on whose authority they ground themselves as in their favour, said in 4 Burr. 2199, “that such bye-laws as only require a proper education and a sufficient degree of skill and qualification may be still retained; that there can be no objection to cautions of this sort; and the rather if it be true that there are some amongst the licentiates unfit to be received into any society.” This brings it then to the question, whether the bye-law now under discussion is or is not to be considered as a bye-law of regulation. It does appear to me that in order to ensure a proper education and a competence in a learning, there cannot be a more likely method than the having spent fourteen years in one of our learned universities, and, after having been examined by persons competent to the subject, having been admitted to a doctor’s degree. This it should seem would prevent in limine the danger of that happening, which Lord Mansfield complains of, namely, of persons being admitted amongst the licentiates unfit to be received into that society. Indeed the Legislature so long ago as the passing of the act of the 14 and 15 Henry 8. seemed to shew their own opinion how a_138much stress ought to be laid on such a kind of test; for there, in speaking of country physicians, the act says, “that no person shall be suffered to exercise or practise in physic through England until such time as he be examined in London by the president and three elects, and have from them letters testimonial of their approving and examination:” but then the act goes on with this exception (viz.) “unless he be a graduate of Oxford or Cambridge, which hath accomplished all things for his form without any grace.” This shews the opinion of the legislative body of that day; and the college might think it a very fit model for their imitation in the formation of the bye-law now under discussion, and that it would prevent them from having their time too much broken in upon by improper applications for examination. I would not be thought to infer that the gentleman now applying is in any degree deficient either in learning or education: but general laws cannot give way to particular cases; and as this law has been of some standing, we must suppose it has been found to be attended with general convenience, and therefore it should be abided by. I therefore concur in the opinion that the rule for a mandamus should be discharged.
Grose, J. This being a motion for a mandamus to a body incorporated by charter, we must see that we are authorised by the charter or the bye-laws to grant the application. On examining the charter, which was confirmed by act of parliament, we find that there was a select body of eight including the president, and an indefinite number of the commonalty. The election of the president is to be made annually by the college; so also is the election of the four censors. The intention of the crown was to put an end to the mischiefs occasioned by the ignorance of the unskilful practitioners; and for that purpose this corporation was created, with power of making bye-laws, of admitting skilful persons to practise physic, and of preventing all others practising: the great object was to admit only those to practise physic who were (to use the language of the act) a_139“profound sad and discreet, groundedly learned and deeply studied in physic.” How or when the fellows are to be chosen or admitted is not directed by the charter: it is left to the discretion of the persons named in the charter under the general power given to them of perpetuating themselves and of making bye-laws. The charter is therefore silent both as to the election of fellows, and as to the examination of them before election: but the examination is incident to the power of election. The charter being silent on these heads, and the college having the power of making bye-laws, they have made bye-laws to ascertain a criterion of fitness of future candidates, by pointing out in some cases the mode of their education, in others the persons by whom they were to be proposed as candidates. One of these bye-laws is objected to as illegal, because it requires a degree to be taken at one of our universities, which (it is contended) is superadding a qualification to those required by the charter: but I think it is only ascertaining a criterion of fitness as has been done most properly in other professions in cases alluded to both at the bar and bench. Then it is said that a licenciate has an inchoate right: if by that Dr. Stanger’s counsel mean that he has one qualification which when added to others may give him a right of admission, I agree with them; but the college are to judge of the other qualifications: if by this inchoate right they mean any thing more, I dissent from them. It is admitted by this application that the college have a right to insist on an examination: and upon what ground? as a test of fitness—but though this right is not expressly given to them by the charter, nor is there a word denoting any obligation either to admit or examine, it is incident to their power of judging who is fit to be admitted. That Lord Mansfield thought that they have such a right incidently is clear from what fell from him in Dr. Askew’s case, in which he said, “It is true that the judgment and discretion of determining upon this skill ability learning and sufficiency to exercise and practise this profession is trusted to the college of physicians: and this a_140Court will not take it from them in the due and proper exercise of it.” The same power that authorises them to judge of fitness also authorises them to regulate the mode by which they shall judge. They think, of which they are much better judges than we can be, that every man who is to be a candidate ought either to have taken his degree at one of our universities or in Dublin, or shall be proposed by one fellow, or by the president. The bye-laws requiring this do not appear to me unreasonable or inconsistent with the character any more than requiring a particular mode of education, and in the case so often alluded to Lord Mansfield thought such bye-laws were good; for when he recommended it to the college to revise their bye-laws, he said “Such of them indeed as only required a proper education and a sufficient degree of skill and qualification may be still retained.” In consequence of that opinion the college have reviewed and altered their bye-laws, requiring in some cases an education at either of our universities or at Dublin, in others permitting a nomination of persons as fit to be examined by men whom they deem worthy of such a trust, considering such degree and nomination merely as tests of the person taking it or named having skill and learning and being fit to be examined. And in making these bye-laws I think that the college have shewn a due attention to discharge their duty to the public and to attain the ends of their institution. Therefore I concur in the opinion already given that this rule ought to be discharged.
Lawrence, J. This is an application for a mandamus to compel the College of Physicians to examine Dr. Stanger in order that he may be admitted a fellow; and the foundation of the application is that he has been admitted to the practise of physic and is one of the homines facultatis within the meaning of the charter; which (it is said) gives him a right to admission, if on examination he shall be found fit; and that all the bye-laws militating against such right are illegal. His counsel have been under the necessity of insisting on the licence giving him a right to examination; for if the a_141being admitted a member of the body be matter of election, it is immaterial whether the bye-laws be good or bad. It seems to me that the insufficiency of the provisions of the statute 3 Hen. 8. probably gave rise to this charter; the object of which was to establish a better mode of determining who were proper persons to be licensed to practise physic, and to prevent the practice of ignorant empirics; and if so, it was not necessary that all men of the faculty should be members of the body. All that was necessary was that it should be composed of a sufficient number of learned and discrete practisers of physic, who should have a power of continuing the succession in such persons as themselves, and that they should license proper persons and restrain unfit persons from the practice of it. If this were the object, is it natural to construe the charter as giving a right to all men of the faculty to become members of this body, when the charter speaks of men of the faculty in a sense contradistinguished from the members of the body; or to suppose that the Crown meant to incorporate all, when the charter was made for the government of some, who, if all were incorporated, could not exist? It is admitted that there were two distinct classes under the charter, and according to Dr. Stanger’s construction one class, that of the governed, would be extinguished. Another mode of construing the charter in the argument was by considering the words omnes homines ejudem facultatis to mean the individual members of the corporation: but if so, there would be no power given to make bye-laws to affect the licentiates; and the clause in the charter that gives the exemption from serving on juries speaks of the person exercising the faculty as contradistinguished from the members of the college; “nec presidens nec aliquis de collegio prædicto medicorum, nec successores sui, nec eorum aliquis exercens facultatem illam.” Therefore it seems to me that the homines facultatis are not the individual members of the college. Then it was said that there might be some persons who might not choose to become corporators, and that this would make a a_142class to be governed: but that is improbable; it is not to be supposed that, as the principal object of the charter was to incorporate those who were skilled in physic and to prevent those from practising who were unfit, they to whom the charter was offered would refuse the advantages of this corporation, especially as the obvious means of constituting a body to consist of all would be to make it compulsory on the physicians to become members, as in the case with companies in some city and corporate towns, of which persons carrying on certain trades are obliged to be free. But seeing that there is in some degree an uncertainty as to the words “homnes ejusdem facultatis,” the usage that has prevailed ought to govern us in the construction of them, especially as the usage perfectly accords with the design of the incorporation. It is said indeed that the usage is in favour of Dr. Stanger’s claim: but that is not so; for there is no proof that before these bye-laws were made any persons were admitted into the body as a matter of right, and we must therefore take it that they came in by election. If Dr. Stanger claim as a matter of right, it must be under the words of the charter “quod ipsi omnesque homines ejusdem facultatis &c.” but if this gave him a right, the college could not resist his claim though he would not submit to examination. And if every homo ejusdem facultatis came within this description of claim, Dr. Archer would have had a right to be admitted. The charter does not say that all the men of the faculty, who on examination shall be found fit, shall be admitted; if it has said any thing in their favor, it has given them the right as soon as they become men of the faculty; it has directed no examination. Suppose by a charter all the weavers of a town were incorporated, they would all have a right to be admitted without any examination. If then all the men of the faculty within the limited district have a right from being men of the faculty, they possess all the fitness that the charter requires. This seems to me to be only a contrivance to get out of Dr. Archer’s case, and to set up a right on the ground of being a licentiate. a_143In the course of the argument it was said that only those were to be admitted who were “profound sad and discrete, groundedly learned and deeply studied in physic:” but if so, it destroys the argument arising from the words “omnes homines ejusdem facultatis.” An argument has also been drawn from the statute 3 Hen. 8:, and it has been said that the persons licensed by that act were the only persons who at the time of the charter were men of the faculty, and that they and the six persons named were meant to be incorporated. But the words of the charter do not extend to all those persons; they are confined to the “homines de et in civitate prædictâ,” that is, to all men of and in the city of London practising physic: but this does not extend to persons practising in other places. Now if that construction had been adopted, it would have excluded the greater part of those who have been members of the college practising physic in Oxford, Cambridge, and other places beyond these limits, as not falling within the description of those persons of whom (according to the construction) the college is to consist.
Taking the whole of the charter and the usage this construction will reconcile all the difficulties; the intention of the Crown was to incorporate the six persons named in the charter and all men practising physic at that time de et in civitate prædictâ; and all those persons were entitled to admission: but the Crown did not intend to give any right to those, who might thereafter become homines facultatis, but intended that the succession should be continued by the power incident to all corporations to elect. Had the charter of incorporation nominated every man authorised to practise physic in London and given no directions as to the succession, they would have been authorised to continue themselves by election as they have done; and the charter has done the same thing in substance by incorporating the same persons by a general reference to their character and situation. This avoids all contradiction; it is consistent with the usage; and according to this construction no one is entitled a_144as a matter of right but only by election. In making such elections there is a trust and duty to keep up the body by a choice of learned men sufficient to answer the purposes of the charter; and if this be done all the interest that the public have is consulted; they have no interest in this or that man being a member of the college: so long as the body is continued and there are proper censors elects and other officers, and so long as proper persons are licensed and improper ones restrained, the objects of the charter as far as concerns the public will be attained. We have been pressed however with the dicta of Lord Mansfield in R. v. Dr. Askew; very great deference is always due to whatever fell from him: but it is sufficient to say that this was not the point then before the Court, the only question there being whether licentiates were of the body.
On the other question respecting the validity of the bye-laws, I can hardly add to what has already been said by the Court; and therefore shall only say that I agree with them in thinking the bye-laws reasonable.
Rule discharged[175].
a_145
Return to a Habeas Corpus. (Goodall. 467)
London. ss. Nos Johannes Warner & Thomas Adams Vic’ Civitat’ London, Serenissimo Domino Regi in brevi huic schedul’ annex’ nominat’ ad diem & locum in eodem brevi content’ Certificamus, quod ante adventum nobis praedict’ brevis scil’ duodecimo die Septembris Anno regni dicti domini Regis nunc Anglie &c. decimo quinto Christoferus Barton in dicto brev’ nominat’ commissus fuit Prisone dom’ Regis scil’ Computator’ scituat’ in Wood Street London prædict’ & in eadem Prisona sub custodia Isaaci Pennington & Johannis Woollaston tunc vic’ Civitat’ praedict’ & in eorum exit’ ab officio suo sub custodia nostra detent’ virtute cujusdam Warranti Otwelli Meverell, Laurentii Wright, Edmund Smith, & Willielmi Goddard in Medicinis Doctor’ & Collegii Medicor’ in London praedict’ custodi praedict’ Computatorii London praedict’ vel ejus deputat’ direct’ Cujus quidem Warranti tenor sequitur in hæc verba.
[A Copy of the Censors Warrant for the Commitment of Empiricks to prison.]