Dr. Bonham's Case
[114 a] Thomas Bonham, Doctor in Philosophy and Physick brought an action of false imprisonment against Henry Atkins, George Turner, Thomas Moundford, and John Argent, Doctors in Physick, and John Taylor, and William Bowden Yeomen, For that the Defendants, the 10 of Novemb. anno 4 Jacobi, did imprison him, and detain him in prison by the space of 7 days. The Defendants pleaded the Letters Patents of King Henry the 8. bearing date the 23 of Septemb. in the 10 year his reign, by which he reciteth, Quod cum regii officii sui munus arbitrabatur ditionis suae hominum faelicitati omni ratione consulere, id autem vel imprimis fore si improborum conatibus tempestive occurreret, &c. By the same Letters Patents the King granted to John Chambre, Thomas Linacre, Ferdinando de Victoria, John Halswel, John Frances, and Robert Yaxley, quod ipsi omnesque homines ejusdem facultatis de et in civitat’ London sint in re et nomine unum corpus et communitas perpetua, per nomen praesidentis et Collegii, sive communitatis facultatis medicinae London, &c. And that they might make meetings and Ordinances, &c. But the case at Bar dothprincipally consist upon two Clauses in the Charter. The first, Concessimus etiam eisdem praesidenti et Collegio seu Communitati et successoribus suis, quod nemo in dicta Civitate, aut per septem milliaria in circuitu ejusdem, exerceat dictam facultatem Medicinae, nisi ad hoc per dicts praesidents et Communit. seu successores suos, qui tempore fuerint, admissus sit per ejusdem praesidentis et Collegii Literas sigillo suo communi sigillat. sub poena centum |[114 b] solidorum pro quolibet mense quo non admissus eandem facultatem exercuerit, dimidium inde Domino Regi et haeredibus suis, et dimidium dict’ praesidenti et Collegio applicand’, &c. The second clause is, which immediately followeth in these words, Praeterea voluit et concessit pro se et successoribus suis, quantum in se fuit, quod per praesident’Collegium praedict’ Communitat’ pro tempore exist’ et eorum successores imperpetuum, quatuor, singulis annis per ipsos eligerent qui haberent supervisum et scrutinium, correctionem et gubernationem omnium et singulorum dict’ Civitatis Medicorum, utentium facultat’ medicinae in eadem Civitate, ac aliorum Medicorum forinsecorum quorumcunque facultatem illam Medicinae, aliquo modo frequentantium et utentium infra eandem Civitatem et suburbia ejusdem, sive infra septem milliarii in circuitu ejusdem Civitatis, ac punitionem eorundem pro delictis suis in non bene exequend’ faciend’ et uten’ illa: necnon supervisum et scrutinium omnium medicinarum, et earum receptionem per dictos Medicos seu aliquem eorum hujusmodi ligeis dicti nuper Regis pro eorum infirmitatibus curand’ et sanand’ dand’ imponend’, et utend’ quoties et quando opus fuerit, pro commodo et utilitat’ eorundem ligeorum dicti nuper Regis: Ita quod punitio eorundem Medicorum utentium dicta facultate Medicinae sic in praemiss’ delinquentium per fines, amerciamenta et imprisonament’ corporum suorum, et per alias vias rationabiles et congruas exequeretur, as by the said Charter more fully appeareth. And that by force of said Letters Patents, The said John Chambre, Thomas Linacre, &c. and all the men of the same faculty in the said City were unum corpus et communitas perpet’ sive collegium perpetuum. And afterwards by Act of Parliament An. 14 Hen. 8. It was enacted, That the said corporation, and every grant, article, and other things in the said Letters Patents contained and specified, should be approved, granted, ratified, and confirmed, in tam amplo et largo modo prout poterit acceptari, cogitari, et construi per easdem Literas Patentes. And further it was enacted, That the said 6 persons named in the said Letters Patents, as Principal of the said College, and2 others of the said College, who should be named Electi, and that the said Elects should choose one of them to be President, as by the said Act appeareth: And further they pleaded the Act of 1 Mariae, by which it is enacted, Quod quaedam concessio per Literas Patents de incorporatione facta per praedict’ nuper Regem Medicis London. Et omnes clausulae et articuli content’ in eadem concessione approbarentur, concederentur, ratificarentur et confirm’ per praedict’ Parl’; in consideratione cujus inactitat’ fuit authoritate ejusdem Parliamenti. Quod praed’ statut’ et actum Parliamenti in omnibus articulis et clausulis in eodem content’ extunc imposterum starent et continuarent in pleno robore, &c. And further it was enact-|[115 a]-ed, That whensoever the President of the College, or Commonalty of the faculty of Physick of 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 within the same City (the Tower of London except) that then from time to time the Warden, Gaoler, or keeper, &c. shall receive, &c. such person so offending, &c. and the same shall keep at his proper charge, without bail or mainprize, until such time as such offender or disobedient be discharged of the said imprisonment by the said President, and such persons as shall be thereunto authorised, upon pain that all and every such Warden, Gaoler, &c. doing the contrary, shall lose and forfeit the double of such fines and amerciaments as such offender and offenders shall be assessed to pay, by such as the said President and College shall authorise as aforesaid, so that the fine and amerciament be not at any one time above the sum of 20 l., the one moiety to the King, the other moiety to the President and College, &c. And further pleaded, That the said Thomas Bonham the 10th of April, within London, against the form of the said Letters Patents, and the said Acts, exercebat artem Medicinae, non admissus per literas praed’ praesidentis et Collegii sigillo eorum communi sigillat’ ubi revera praed’ Tho. Bonham fuit minus sufficiens ad artem Medicinae exercend’. By force of which, the said Thomas Bonham 30 April 1606, was summoned in London by the Censors or Governours of the College, to appear before the President and Censors, and Governours of the College aforesaid at the College, &c. the 14th day of April next following, super praemissis examinand’. At which day the said Thomas Bonham came before the President and Censors, and was examined by the Censors de scientia sua in facultate sua in Medicin’ administrand’. Et quia praed’ Thomas Bonham sic examinatus minus apte et insufficienter in praed’ arte medicinae respondebat, et inventus fuit super examinationem praed’ per praed’ Praesident’ et Censores minus insufficiens et inexpert’ ad artem Medicinae administrand’ ac pro eo quod praed’ Thomas Bonham multotiens ante tunc examinatus, et interdictus per ipsum praesident’ et Censores, de causis praed’ ad artem medicinae administrand’ per unum mensem et amplius post talem interdictionem facultatem illam in Lond’ praed’ sine licentia, &c. ideo adtunc et ibid’ consideratum fuit per praed. Praesident’ et Censores, quod praed’ Thomas Bonham pro inobedientia et contempt’ suis praed’ amerciaretur to 100s. in proximis comitiis praed’ praesident’ et Collegii persolvend’ et deinceps abstineret, &c. quousque inventus fuerit sufficiens, &c. sub poena |[115 b] conjiciendi in Carcerem si in praemissis delinqueret. And that the said Thomas Bonham, 30 Octob. 1606, within London did practise Physick, and the same day he was summoned by the Censors to appear before the President and them the 22 of Octob. then next following, at which day Bonham made default. Ideo consideratum fuit per praed’ Censores, that for his disobedience and contempt he should be amerced to 10 l. and that he should be arrested and committed to custody, And afterwards 7 Novemb. 1606. the said Thomas Bonham at their assembly came before the President and Censors, and they asked him if he would satisfy the College for his dis-obedience and contempt, and submit himself to be examined; and obey the censure of the College, who answered, That he had practised Physick and would practice Physick within London, asking no leave of the College, 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 4 Censors, scil. Dr. Turner, Dr. Moundforde, Dr. Argent, and Dr. Dun, then being Censors or Governors, pro offensis et inobedientia praed’ adtunc et ib’ ordinaverunt et decreverunt, quod praed’ Thomas Bonham in carcerem mandaretur ib’ remansur’ quousque abinde per praesident’ et censores, seu gubernatores Collegii praed’ 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 Counter in London, &c. without bail or mainprise, at the costs and charges of the said Thomas Bonham, until the said Thomas Bonham by the warrant of the President and Censors of the said college, or their Successors, was delivered. 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 Dioces of England, out of London, it is not like to find always men able sufficiently to examine (after the Statute) such as shall be admitted to exercise Physick in them, that it may be enacted in this present Parliament, That no person from henceforth be suffered to exercise or practise Physick through England, until such time that he be examined at London by the said President and 3 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 grace: And that the Plaintiff, in the year of our Lord 1595. was a Graduate, scil. a Doctor in the University of Cambridge, and had accomplished all things concerning his degree for his form without grace, by force whereof he had exercised and practised Physick within the City of London until the De fendants had imprisoned him, &c. upon which the Defendant did demurr in Law. And this case was often |[116 a] argued by the Serjeants at Bar in diverse 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 Physick of the one University or the other, be by the Letters Patents, and by the body of the Act of 14 H. 8. restrained to practice Physick within the City of London, &c. The second was, If the Exception in the said Act of 14 H. 8 hath excepted him or not. The third was, That his imprisonment was lawful for his said dis-obedience. And as to the first, they did relie upon the Letter of the grant, ratified by the said Act of 14 H. 8. which is in the negative, scil. Nemo in dicta civitate, &c. exerceat dictam facultatem nisi ad hoc per praedict’ praesidentem et communitatem, &c. admissus sit, &c. And this proposition is a general negative, and Generale dictum est generaliter intelligendum; and nemo excludeth 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. Also they said, that the Statute of 3 H. 8 cap. 11. which in effect is repealed by this Act of 14 H. 8. hath 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 thisgeneralprohibition, Nemo in dicta Civitate, &c. As to the two points 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 doth extend only to places out of London and so much the rather, because they purview for London before, Nemo in dicta Civitate, &c. Also the makers of the Act put a distinction betwixt those who shall be licensed to practise Physick 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 Physick throughout England out of London ought to be examined and admitted by the President and 3 of the Elects; and so they said, that it was lately adjudged in the Kings Bench, in an Information exhibited against the said Doctor Bonham for practising of Physick in London for divers Months. As to the third point they said, That for his contempt and dis-obedience before them in their College, they might commit him to prison, for they have authority by the Letters Patents and Act of Parliament, And therefore for his contempt and misdemeanor before them they may commit him. Also the Act of—1 Mariae has given them power to commit them for every offence or dis-obedience 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 ratified by the Act of 14 H.8|[116 b] Quod Nemo in dicta Civitate, &c. exerceat, &c. And the Defendants have pleaded, that the Plaintiff hath practised Physick in London by the space of one moneth, &c. And therefore the Act of 1 Mariae hath authorised them to imprison him in this case; for which cause they did conclude for the Defendants against the Plaintif. But it was argued by Coke Chief Justice, Warburton and Daniel Justices at the Common Pleas, to the contrary. And Daniel conceived, That a Doctor of Physick 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 points, because he and Warburton and Daniel did agree, that this action was clearly maintainable for 2 other points. But to the 2 other points he and the said 2 other Justices, (Warburton) and (Daniel) did speak, Scil. 1. Whether the censors have power for the Causes alleged in their barr, to fine and imprison the Plaintif. 2. Admitting that they have power to doe it, if they had pursued their power. But the Chief Justice before he argued the points in Law, because that much was said in the Commendations of the Doctors of Physick of the said College within 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 within London, and did confess that nothing was spoken, which was not due to their merits; but yet that no Comparison was to be made, between that private College, and any 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 thence: The University is Alma 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 Fountain, et melius est petere fontes quam sectari rivulos. Briefly, Academiae Cantabrigiae et Oxoniae sunt Athenae nostrae nobilissimae regni soles, oculi et animae regni, unde Religio, humanitas, et doctrina in omnes regni partes uberrimé diffunduntur: but it is true, nunquam sufficiet copia laudatoris, quia nunquam deficiet materia laudis; & therefore, these Universities exceed and excell all private Colleges, quantum inter viburna cupressus. And it was observed in the said Letters Patents, and the King, and the Parliament in the Act of 14 H. 8. in making of a Law concerningPhysicians, for the more safety and health of men therein, followeth the order of a good Physician (Rex enim omn’ artes censetur habere inscrinio pect’sui )for, Medicina |[117 a] est duplex, removens, et promovens; removens morbum, et promovens ad salutem; And, therefore, 5. manner of persons (who more hurt the body of men than the disease itself ) are to be removed:—1. improbi. 2. avari, qui medicinam magis avaritiae suae causa quam ullius bonae conscientiae fiducia profitentur. 3. malitiosi. 4. temerarii. 5. inscii. and of the other part, 5. manner of persons were to be promoted, as appeareth by the said Act, scil. those who were, 1., profound, 2. sad, 3. discreet, 4. groundedly learned, 5. profoundly studied. And it was well ordained, That the Professors of Physick should be profound, sad, discreet, &c. and not youths, who have no gravity and experience; for as one saith, In juvene Theologo conscientiae detrimentum, in juvene legista bursae detrimentum, in juvene medico caemiterii incrementum. And it ought to be presumed, every Doctor of any of the Universities to be within the Statutes, scil. to be profound, sad, discreet, groundedly learned, and profoundly studied, for none can there be Master of Arts (who is a Doctor of Philosophie) under the study of 7. years, and cannot be Doctor in Physick under 7. years more in the study of Physick: and that is the cause that the Plaintiff is named in the Declaration, Doctor of Philosophy, and Doctor of Physick, quia oportet Medicum esse Philosophum, ubi enim Philosophus desinit, incipit Medicus. As to the 2. points upon which the Chief Justice, Warburton and Daniel, gave judgment. 1. It was Resolved by them, That the said censors had not the power to commit the Plaintif for any of the Causes mentioned in the barr, and the cause and reason thereof shortly was, That the said clause, which giveth power to the said Censors to fine and imprison, doth not extend to the said Clause, scil. Quod nemo in dicta Civitate, &c. exerceat dictam facultatem, &c. which prohibiteth every one to practise Physick in London, &c. without licence of the President and College; but extendeth only to punish those who practise Physick within London, pro delicitis suis in non bene exequendo, faciendo et utendo facultate Medicinae, by fine and imprisonment: So that the Censors have not power by the Letters Patents, and the Act to fine or imprison any for practising Physick within London, but only pro delictis suis in non bene exequendo, &c. scil. for ill and not good use and practise of Physick. And that was made manifest by 5. reasons, called vividae rationes, because they had their vigour and life from the Letters Patents and the Act itself. And the best Expositor of all Letters Patents, and Acts of Parliament, are the Letters Patents and the Acts of Parliament themselves, by construction, and conferring all the parts |[117 b] together, Optima Statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum Statutum; And In ustum 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 beginneth, Praeterea voluit et concessit, &c. and the branch concerning fine and imprisonment, is parcel of the second clause. 2. The first Clause prohibiting the practicing of Physick, &c. doth comprehend 4. certainties;—1. certainty of the thing prohibited, scil. practice of Physick. 2. Certainty of the time, scil. practice for one moneth. 3. Certainty of penalty, scil. 5 l. 4. Certainty in distribution, scil. one moyety to the King, and the other moyety to the College; and this penalty he who practiseth Physick in London doth incurr, although he practices and uses Physick well, and profitably for the body of man; and upon this branch the Information was exhibited in the Kings Bench. But the clause to punish delicta in non bene exequendo, &c. upon which branch the case at barr stands, is altogether incertain, for the hurt which may comethereby may be little or great, leve vel grave, excessive or small, &c. And therefore the King and the makers of the Act, cannot, for so uncertain offence 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 rationabiles et congruas; 2. The harm which accrueth by non bene exequendo, &c. doth concern the body of man; and, therefore, it is reasonable that the offender should be punished in his body, scil. by imprisonment; but he who practiceth Physick in London in a good manner, although he doth it without leave, yet it is not any prejudice to the body of man. [3. He who practises physic in London 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 time certain, but at what time soever he ministereth Physick non bene, &c. he shall be punished by the said 2. branch: And the Law hath great reason in making this distinction, for divers Nobles, 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 barr any one of his own Physician; and when he is here he may practise and minister Physick to another by 2. or 3. weeks, &c. without any forfeiture; for any one who practiseth Physick well in London (although he has not taken |[118 a] any degree in any of the Universities) shall forfeit nothing, if not that he practise it by the space of a month; and that was the cause, that the time of a month was put in the Act. 4. The Censors, cannot be Judges, Ministers, and parties; Judges, to give sentence or judgment; Ministers to make summons; and Parties, to have the moyety of the forfeiture, quia aliquis non debet esse Judex in propria causa, imo iniquum est aliquem sui 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. 19b. 20a. 21 E. 4. 47a. &c. And it appeareth in our Books, that in many Cases, the Common Law doth controll Acts of Parliament, and somtimes shall adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void; and, therefore, in 8 E. 3. 30 a, b. Thomas Tregor’s Case upon the Statute of West 2. Cap 38. and Artic’ Super Chartas, cap 9. Herle saith, Some Statutes are made against Common Law and right, which those who made them, would not put them in execution: The Statute of West 2. Cap. 21. giveth a Writ of Cessavit haeredi petenti super haeredem tenent’ et super eos quibus alienatum fuerit hujusmodi tenementum: and yet it isadjudged in 33 Edw. 3 Cessavit 42. where the Case was, Two Coparceners Lords and Tenant by Fealty and certain Rent, one Coparcener had issue and dyeth; the Aunt and the Niece shall not join in a Cessavit, because the heir—shall not have a Cessavit for the cesser in the time of his ancestor. F. N. B. 209. F. and therewith agreeth Plow. Com. 110a.; and the reason is, because in a Cessavit the Tenant before Judgment may render the arrearages and damages, and hold his Land again, and that he cannot doe when the heir bringeth a Cessavit for the cesser in the time of his auncestor, for the arrearages incurred in the life of the auncestor do not belong to the heir: and because it shall be against right and reason, the Common Law shall adjudge the said Act of Parliament as to that point void. The Statute of Carlisle, made anno 35 E. 1. enacteth, That the Order of the Cistercians, and Augustines who have a Covent and Common Seal, that the Common Seal shall be in the keeping of the Prior, who is under the Abbot, and 4. 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 (Anno 27 H. 6 Annuity 41.) was, that this Statute was 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 Abbots hands, it is out of their keeping ipso facto; and if the Statute should be observed, every Common Seal shall be defeated upon a simple surmise, which cannot be tryed. Note Reader the words |[118 b] of the said Statute of Carlisle, which was made 35 E. 1. which is called Statutum Religiosorum are, Et insuper ordinavit Dominus Rex et statuit, quod Abbates Cisterc’ et Praemonstraten’ ordin’ religiosorum, &c. de caetero 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, contractuumaliosigilloquam tali sigillo communi sicut praemittit’ custodit’ inveniant’ a modo sigillat’, pro nullo penitus habeantur omnique careant firmitate. So the Statute of 1 E. 6. c. 14. giveth Chauntries, &c. to the King, saving to the Donor, &c. all such rents, services, &c. and the Common Law doth controll it, and adjudges the same void as to services, and the Donor shall have the Rent, as a Rentseck, distrainable of Common right, for it should be against common right and reason that the 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 Common Pleas in Strowd’s case. So if any Act of Parliament giveth to any to hold, or to have Conusans of Pleas of all manner of pleas arising before him within his Mannor of D., yet he shall hold no plea, to which he himself is party; for, as hath been said, iniquum est aliquem suae rei esse judicem. 5. If he should forfeit 5 l. for one month by the first clause, and shall be punished for practising at any time by the second clause, two absurdities would follow, 1. that one should be punished not only twice but many times for one and the same offence. And the Divine saith, Quod Deus non agit bis in idipsum; and the Law saith, Nemo debet bis puniri pro uno delicto. 2. It should be absurd, by the first clause to punish practising for a moneth, and not for lesser time, and by the 2. to punish practising not only for a day, but at any time, so he shall be punished by the first branch for one moneth by the forfeiture of 5 l. and by the 2. by fine and imprisonment, without limitation for every time of the moneth in which anyone doth practise Physick. And all these reasons were proved by two grounds, or Maxims of Law; 1. Generalis Clausula non porrigitur ad ea quae specialiter sunt comprehensa: And the Case between Carter and Ringstead, Hil. 34 Eliz. Rot. 120. in Common Pleas, was cited to this purpose, where the case in effect was, That A. seised of the Mannor 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 Recoveror |[119 a] 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 Mannor by force of the said general words. But it was adjudged, That they did not extend to the said Mannor 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. Verba posteriora propter certitudinem addita ad priora quae certitudine indigent sunt referenda. 6 E 3. 12 a, b. Sir Adam de Clydrow, Knight, brought a praecipe quod reddat against John de Clydrow; and the Writ was, Quod juste, &c. reddat Manerium de Wicombe et duas carucatus terrae cum pertinentiis in Clydrow, in that case the Town of Clydrow shall not relate to the Mannor, quia non indiget, for a Mannor may be demanded without mentioning that it lyeth in any town; but cum pertinentiis, although it cometh after the Town, shall relate to the Mannor, 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 the same is but part of the sentence, for by the entire sentence it appeareth 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 3. cases, scil. 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 praemissis delinquentium, &c. which words, sic in praemissis delinquentium, limit the first words in the first part of this sentence, ac punitionem eorum pro delictis suis in non bene exequendo, &c. 2. It shall be absurd, That in one and the same sentence the makers of the Act shall give them a general power to punish without limitation; and a special manner how they shall punish, in one and the same sentence. 3. Hil. 38 Eliz. in a Quo warranto against the Mayor and Commonalty of London, it was holden, that where a grant is made to the Mayor and Commonalty, that the Mayor for the time being should have plenum et integrum scrutinium, gubernationem, et correctionem omnium et singulorum Mysteriorum, &c. without granting them any Court, in which should be legal proceedings, that the same is good for search, by which 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 |[119 b] Subjects of the kingdom at their pleasures. 2. It was Objected, That it is incident to every Court created by Letters Patents, or Act of Parliament, and other Courts of Record, to punish any misdemeanors done in Court, in disturbance or contempt of the Court, by imprisonment. To which it was answered, That neither the Letters Patents nor the Act of Parliamenthathgranted them any Court, but only an 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 unto them for any misdemeanor done in Court, commit him to prison without bayl or mainprise, until he shall 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, to which he was advised by his Counsel, he may justifie, which is not any offence worthy of Imprisonment.
The Second point. 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 have not pursued it for 6. causes. 1. By the Act the Censors only have power to impose a fine, or amercement; and the President and Censors imposed the amercement of 5 l. upon the Plaintif. 2. The Plaintiff was summoned to appear before the President and Censors, &c. and did not appear and therefore he was fined 10 l. whereas the President hath not any authority in that case. 3. The fines or amercements to be imposed by them by force of the Act, do not belong to them, but to the King, for the King hath not granted the fines or amercements to them, and yet the fine is appointed to be paid to them in proximis Comitiis, and they have imprisoned the Plaintif for nonpayment thereof. 4. They ought to have committed the Plaintif presently by construction of Law, although that no time be limited in the Act, as in the Statute of West 2. cap. 12. De Servientibus, Ballivis, &c. 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 proximae gaolae 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 presently, as it is holden in 27 H. 6. 8 a. and the reason thereof is given in Fogassaes 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 agreeth Plow. Com. 206 b. in Stradling’s |[120 a] case. And a Justice of Peace upon view of the force, ought to commit the offender presently. 5. For as much as the Censors had their authority by the Letters Patents and Act ofParliament, which are high matters of Record, their proceedings ought not to be by word, and so much the rather, because they claimed authority to fine and imprison. And therefore if judgment be given against one in the Common Pleas in a Writ of Recaption, he shall be fined and imprisoned; but if the Writ be Vicontiel in the Countie, there he shall not be fined or imprisoned, because that the Court is not of Record, F. N. B. in bre Recaption. so in F. N. B. 47 a. a plea of Trespasse vi et armis doth not lie in the County Court, Hundred Court, &c. for they cannot make Recordoffineandimprisonment;andregular those who cannot make a Record, cannot fine and imprison. And therewith agreeth 27 H. 6. 8. Book of Entries: 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. Because the Act of 14 H. 8. hath given power to imprison until he shall be delivered by the President and the Censors, or their Successors, reason requireth that same be taken strictly for the liberty of the Subject (as they pretend) is at their pleasure: And the same is proved by a Judgment in Parliament in this Case; For when this Act of 14 H. 8. had given power to the Censors to imprison, yet it was taken so literally, That the Gaoler was not bound to receive them which they committed to him, and the reason thereof was because they had authority to do it without any Court: And thereupon the Statute of 1 Ma. cap. 9. was made, that the Gaoler should receive them upon a pain, and none can be committed to any prison, if the Gaoler cannot receive him: but the first Act, for the cause aforesaid was taken so literally, that no necessary incident was implyed. And where it was objected, that this very Act of 1 Mariae c. 9. hath enlarged the power of the Censors, and upon the word of the Act; It was clearly resolved, that the said Act of 1 Mariae 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 or imprisoned by the said Act of 14 H. 8. For the words of the Act of Queen Marie 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 dis-obedience, contrary to any article or clause contained in the said grant or Act, to any Ward, Gaol, &c. But in this case Bonham hath not done any thing which appeareth within this Record, contrary to any article or clausecontainedwithin the Grant or Act of 14 H. 8. Also the Gaoler who refuseth shall forfeit the double value of |[120 b] the fines and amerciaments that any offender or dis-obedient shall be assessed to pay; which proveth 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 for that was not Bonham, as by the reasons and causes aforesaid it appeareth. And admit 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 Plaintif without cause, the Plaintif shall have Judgement: And the difference is, when the Plaintif doth reply, and by his replication it appeareth that he hath no cause of action, there he shall never have Judgement: But when the Bar is insufficient in matter, or amounteth (as this case is) to a confession of the point of the action, and the Plaintif replieth, and sheweth the truth of the matter to enforce his case, and in judgment of Law it is not material; yet the Plaintiff shall have Judgement; for it is true that sometimes the Count shall be made good by the Bar, and sometimes the Bar by the Replication, and sometimes the Replication by the Rejoynder, &c. But the difference is when the Count wanteth time, place, or other circumstance, it may be made good by the Bar, so of the Bar, Replication, &c. as appeareth in 18 E. 4 16b. But when the Count wanteth substance, no Bar can make it good, so of the Bar, Replication, &c. and therewith agree 6 Edw. 4. 2. a good case, and mark there the words of Choke Vide 18 Edw. 3. 34 b. 44 Edw. 3. 7 a. 12 Edw. 4. 6. 6 Hen. 7. 10. 7 Hen. 7. 3. 11 Hen. 4. 24. &c. But when Plaintiff makes Replication, sur-rejoinder, &c. and thereby it appeareth, that upon the whole matter and Record the Plaintif hath no cause of action, he shall never have judgement, although the Bar or Remainder 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 Rigeway’s case, in the 3 part of my Reports 52 b. And so these differences were resolved and adjudged between Kendall and Helyer, Mich. 25 & 26 Eliz. in the Kings Bench. And Mich. 29 & 30 Eliz. in the same Court, between Gallys and Burbry. And Coke chief Justice, in the conclusion of his argument did, observe 7 things for the better direction of the President and Commonalty of the said College in time to come. 1. That none can be punished for practising of Physick in London, but by forfeiture of 5 l. by the month, which is to be recovered by the Law. 2. If any practise Physick there for a lesse time than a moneth, that he shall forfeit nothing. 3. If any person prohibited by the Statute offend in non bene exeq’, &c. they may punish him according to the Statute within the month. 4. Those who may commit to prison by the Statute ought to commit presently. 5. The fines which they |[121 a] set, according to the Statute, doe belong to the King. 6. They cannot impose a fine, or imprison, without a Record of it. 7. The cause for which they impose fine and imprisonment ought to be certain, for it is traversable; For although they have the Letters Patents and an Act of Parliament, yet because the party grieved hath no other remedy, neither by Writ of Error, or otherwise, and they are not made Judges, nor a Court given to them, but have an authority only to doe, the cause of their commitment is traversable in an action of false imprisonment brought against them; as upon the Statute of Bankrupts, their warrant is under the Great Seal, and by Act of Parliament; yet because the party grieved hath no other remedy if the Commissioners doe 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 and Delabarre, where the issue was, whether William Piercy was Bankrupt or not, who was found by the Commissioners to be a Bankrupt; à 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 one Justice of Peace is not traversable, because he doth it as Judge, by the Statutes of 15 Rich. 2. and 8 Hen. 6. and so there is a difference when one maketh 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, Judgement was given for the Plaintif, nullo contradicente as to them. And I acquainted Sir Thomas Fleming, Chief Justice of the Kings Bench with this Judgement and with the reasons and causes thereof, who approved of the Judgement which we had given: And this is the first Judgement upon the said Branch concerning fine and imprisonment, which hath been given since the making of the said Charter and Acts of Parliament, and therefore I thought it worthy to be Reported and published.