We do not think it necessary to trouble the reader with the Statutes and Bye Law[[82]] which the College have made for their own internal Government, pursuant to the power which all Corporations have of making proper regulations to bind their own members, and according to the Statute 14 and 15 Hen. 8. by which they are specially authorised so to do; these Statutes have been printed, though not under the sanction of the College.
OF THE POWERS OF THE COLLEGE.
One of the first and most material of the powers and privileges granted to the College by the Acts and Charter to which we have referred (and which the reader will find recited in the Appendix,) is that of recovering from all persons who practise physic in London and within seven miles circuit, without their Licence, or Admission, the sum of five pounds for every month during which they have so practised. This power has been most minutely investigated and determined in the case of Dr. Bonham.[[83]] Coke’s Reports, 123, (see Appendix, p. 62,) which was an action of false imprisonment brought by Thomas Bonham, a Doctor of Physic, of the University of Cambridge,[[84]] against the then President, Censors and some servants of the College; the Defendants justified under the Statute, (14 and 15 H. 8.) setting forth; that the plaintiff practised physic in London, and within seven miles circuit, not being admitted, &c. that being examined he was found insufficient, and forbid to practise,[[85]] but notwithstanding such prohibition, he afterwards practised for a month or more, whereupon they amerced him five pounds, to be paid to them at their next assembly, &c.[[86]] and likewise injoined him to forbear practising any more until he be found sufficient, &c. upon pain of imprisonment; that he continuing still to practise was further fined and ordered to be committed; that being questioned if he would submit to the College, he replied, that he had practised and would practise without leave of the College, and denied that by the Statute they had any authority over him, as having taken his degree of Doctor of Physic within the University regularly, and so thought himself protected by that Clause in the Act; whereupon the Censors ordered him to prison, which was executed accordingly, and for this imprisonment this action was brought. In this case, Mr. Justice Daniel, thought a Doctor of Physic of either University was not within the body of the act, but suppose him to be within the body, yet he was excepted by the last clause. But Mr. Justice Warburton held the contrary upon both points.[[87]] Chief Justice Coke, (for whose judgment, see Appendix, 26,) said nothing as to either of those points, because all three (who were all the judges present,) agreed, that this action was clearly maintainable for two other points; and they resolved,
1. That the Censors had no power to commit the Plaintiff for any of the causes mentioned in the Bar, because the said clause which gives power to the said Censors to fine and imprison, does not extend to the said clause, viz. That none in the said City, &c. exercise the said faculty, &c. which prohibits every one from practising Physic in London, &c. without licence of the President and College; but extends only to punish those who practise in London, Pro delictis suis in non bene exequendo faciendo et utendo Facultate Medicinæ, so that their power (of fine and imprisonment) is limited to the ill and not to the good use and practice.[[88]]
2. Admitting that the Censors had power, yet they have not pursued it. 1. Because the Censors alone have power to fine and imprison, whereas here the President and Censors imposed this fine of five pounds. 2. The plaintiff was summoned to appear before the President and Censors, and for not appearing was fined five pounds, whereas the President had no authority.
3. The fines imposed by them by virtue of this act belong to the king and not to them,[[89]] and yet the fine is limited to be paid to themselves, &c. and for nonpayment they have imprisoned him.
4. They ought to have committed the Plaintiff immediately, though no time be limited in this act.
5. Their proceedings ought not to be by parol, inasmuch as their authority is by patent and act of parliament, and especially it being to fine and imprison.
6. The Act giving a power to imprison until he be delivered by the President and Censors or their successors, shall be taken strictly, or otherwise the liberty of the subject is at their pleasure. And this is well proved by a judgment in Parliament in the same case; for when this act of 14. Hen. 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, because they had authority to imprison without any Court; and thereupon the Statute 1 Mary, cap. 9, was made to compel the gaoler to receive them under a penalty, and yet none can commit to prison unless the gaoler receives him; but the 14 Hen. 8, was taken so literally that no necessary incident was implied.
And it being objected, the 1 Mar. Cap. 9. had enlarged the power of the Censors, as appeared by the words of the act; it was clearly resolved, that it does not enlarge their power to fine and imprison for any matter not within the 14th Hen. 8. the words of the act of Queen Mary, being “according to the tenor and meaning of the said act.” And further, “shall commit any offender, &c. for his, &c. offence or disobedience, contrary to any article or clause contained in the said grant or act to any ward, gaol, &c.” And in this case, it does not appear by the record, that the plaintiff has done any thing contrary to any article or clause within the grant or act of 14th Hen. 8. and for the two last points judgment was given for the plaintiff, Nullo contradicente as to them. Michss. Term. 6 James.