Dr. Bonham's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1616 |
| Date | 01 January 1616 |
| Court | Court of the King's Bench |
English Reports Citation: 77 E.R. 646
King's Bench Division
[113 b] dr. bonham's case. Hil. 7 Jac. 1. In an action for false imprisonment, brought against the President and Censors of the College of Physicians and Others, the defendants justified under the charter for the incorporation of the college, and the stat. 14 and 15 Hen. 8. cap. 5. by which the charter is confirmed, and the stat. 1 Mary. cap. 9. enlarging the power of the censors, and set forth that the plaintiff practised physic not being admitted, &c. : that being examined, he was found insufficient, and forbidden to practise : but, notwithstanding such prohibition, he afterwards practised for a month or more, whereupon they amerced him 51. to be paid to them at their next assembly, &c. and likewise enjoined him to forbear practising any more until he be found sufficient, &c. under pain of imprisonment: that he continuing still to practise, was further fined and ordered to be committed : that being questioned, if he would submit to the said college ? he replied, that he had practised and would practise without leave of the college ; and denied that by the statute they had any authority over him, he having taken his degree of Doctor of Physic, within the university, regularly; whereupon the censors ordered him to prison, which was executed accordingly. The plaintiff in his replication shewed the clause in the Act upon which he relied, and averred that he had taken the degree of Doctor of Physic in the University of Cambridge, and practised physic in the City of London as he well might: upon demurrer to this replication judgment was give for the plaintiff. Resolved,-1. The censors had no power to commit the plaintiff for any of the causes mentioned in the bar. Because the said clause which gives power to the said censors to fine and imprison does not extend to the clause, " That none in the said city, &c, exercise the said faculty, &c." which clause prohibits every one from practising in London, &c. without licence of the president and college, but extends only to punish those who practise in London, pro delidis .mis in nan bene exequendo, faciendo, et utendo facilitate medicince, so that their power is limited to the ill and not to the good use and practice. 2. Admitting the censors had power, yet they have not pursued it;-1. Because the censors alone have power to fine and imprison whereas here the president and censors imposed this fine of 51. 2. The plaintiff was summoned to appear before the president and censors, and for not appearing was fined 51., whereas the president had no authority. 3. The fines imposed by them by virtue of this Act belong to the King and not to them, and yet the fine is limited to be paid to themselves, &c. and for nonpayment they have imprisoned sco. RBP.ma. bonham's case 647 him. 4. They ought to have committed the plaintiff immediately, although no time be limited in the Act. 5. Their proceedings ought not to be by parol inasmuch as their authority is by patent and Act of Parliament, and especially it being to fine and imprison. 6. The Act giving a power to imprison until he be delivered by the president and censors, or their successors, shall be taken strictly, or otherwise the liberty of the subject is at their pleasure. *1. None can be punished for practising physic within London, but by forfeiture of 51. a month, which is to be recovered by the law. 2. If any practise physic there for leas time than a month, he shall forfeit nothing. 3. If any person prohibited by the statute offend in non bene exequendo, &c. they may punish him according to the statute within the month. 4. Those whom they commit to prison by the statute ought to be committed immediately. 5. The fines which they assess according to the statute belong to the King. 6. They cannot impose fine or imprisonment without making a record thereof. 7. The cause for which they impose a fine and imprisonment ought to be certain; for it is traversable.* S. C. 1 Brown. 255. Garth. 192. 6 Mod. 125. Skinner 568. 4 Inst. 251. 2 Brown. 255, 256, &c. 1 Ld. Eaym. 454. Com. Dig. Phy. A. Vin. Ab. Phys. A. 4 Burr. 2188. [114 a] 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 William Bowclen, yeomen ; for that the defendants, the 10th November 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 23 September anno 10 of his reign, by which he recites, Quod cum Regii officii sui munus arbitrabatur ditionis suce houiimtm failicitati muni raiione consulere, id autem vel imp'imis fore si improborum conatibus tempeslive occurreret, Ac. And by the same letters patent, the King granted to John Chambre, Thomas Liuacre, Ferdinando de Victoria, John Halswel, John Frances, and Robert Yaxley, quod ipsi omnesque homines ejusdem facultatis de et in civitaf London sint in re et nomine ununi corpus et mmmunitas perpelua, per nomen pnesidentis et collegii, sive cmnnmni-tatis facultatis medicines London, &c. And that they might make meetings and ordinances, &c. But the case at Bar doth principally consist on two clauses in the charter. The first, concessimus etiam eisclem prcesidenti et collegia seu communitati et successoribus suis, quod nemo in dicta dvitate, aut per septem milliaria in circuitu ejusdem, exerceat dictam facultatem medicince, nisi ad hoc per diet' prcesident' et communit seu successores suoh, qui tempore fuerint, culmissus sit per ejusdem prce.si-dentis et collegii literas sigillo suo communi sigillat' sub pcena centum [114 b] solidorum pro quolibet mense quo non culmissus eandem facultatem exercuerit, dimid' vn.de dom' Regi et hceredibus suis, et dimidium diet prcesidenti et collegia applicand', &c. The second clause is, which immediately follows in these words, prceterea volutt et concessit pro se et successoribus suis, quantum in se fuit, quod per prcesident' collegium prcedict' r.ommunitat' pro tempore exist et eorum successores imperpetuum, qucituor, singulis annis per ipsos eligerent qui haberent supervisum et scrutinium, correctionein et gubernationem omnium et singulorum diet civitatis medicorum, utentium facultat' medicince in eadem dvitate, ac aliorum medicorum forinsecorum quarumcunque facultatem illam medicince, aliquo modo frequentantium et utentium infra eandem civitatem et suburbia ejusdem, sive infra septan milliarii in circuitu ejusdem ciititatis, ac punitionem eorundem pro delictis suis in non bene exequend' faeiend' et uten' ilia: necnon supervisum et scrutinium omnium medicinarum, et earum receptionem per dictos Medicos seu alw/uem eorum hujusmodi ligeis dicti nuper Regis pro eorum infirmitatibus curand' et sanand' eland' imponend, et utend' quoties et quando opus fuerit, pro commodo et utilitat' em-undem ligeorum dicti nuper Regii: ita quod punitio eorundem medicorum utentium dicta facultate medicince sic in prcemiss' delinquentium per fines, amerciamenta et imprisonament' corporum siiorum, et per alias vias rationabiles et congruas exequeretur, prout by the said charter plenius liquet. Et quod virtute prced' literarum patentium prced' J. Ghambre, Tho. Linacre, &c. et omnes homines ejusdem facultatis in civit' prced' fuer' unum corpus et comrnunitas perpet' sive collegium perpetuum. And 648 bonham's case s oo. rep. us a. afterwards by Act of Parliament made anno (a) 14 Hen. 8., ib 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 tarn amplo et largo modo prout potent acceptari, cogilari, et construi per easdtm 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 others of the said college, who should be named eledi, and that the said elects should choose one of them to be president as by the said Act appears: and further they pleaded the Act of (b) Marite, by which it was enacted, Quod qucedam concessio per literas patentes de incorporatione facto, per prcedict' nuper Regem medicis London. Et (mines clausulce et articuli content' in eadem concessions approbarentur, concederentur, ratijicarentur et con/inn' per predict' ParV ò in considerations cu.jus inuditat' fuit authoritate ejusdem Parliamenti. Quod prced' statuf et actum Parliamenti in omnibus articulis et dausulis in eodem content' extunc imposterum starent et continuarent in plena robore, &c. And further it was enact-[115 a]-ed, " 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 within the same city (the Tower of London except) that then from time to time the warden, gaoler, or keeper, &c. shall receive, ifec. such person so offending, &c. and the same shall keep at hia proper charge, without bail or maitiprize, 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 amerciamerit be not at any one time above the sum of 201., the one...
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