CASES.
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 contained 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’. Et 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 gubernatores 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 the 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 college 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. Whether 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 of 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, faciendo & 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 the 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 of 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 as 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 so 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 Odiham, 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 part 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 resolved 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. 5. 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 aforesaid, 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 is 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 for 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, because 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 annis 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 traverse 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. But 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 by 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 pursuant 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 first 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.
The College of Physicians versus Dr. West.
(from 10 Mod. 358.)