The University of Glasgow 1 v. The Faculty of Physicians and Surgeons [1840] UKHL 1_Rob_397

UKHL

The University of Glasgow 1 v. The Faculty of Physicians and Surgeons

[1840] UKHL 1_Rob_397 · 1840-08-07

Held (affirming the judgment of the Court of Session pronounced on a remit from the House of Lords), (1.) that the Faculty of Physicians and Surgeons of Glasgow are a corporation; (2.) that the adjection of a penalty in the grant of a corporation, for contravention of corporate privileges does not preclude the corporation from the benefit of an interdict; and (3.), that costs in the House of Lords were properly awarded by the Court of Session to the respondent under an authority on remit to determine the question “of the respondents costs relating to this appeal.”

Sequel of the case in Shaw and M'Lean, vol. ii. p. 275.

Lord Ordinary Medwyn.

Statement.

On the 28th of August 1835 the House of Lords pronounced the following judgment:—

Faculty of Physicians and Surgeons of Glasgow, are a corporation, capable in law of possessing and in fact clothed with the rights for which they contend in this action? As also to consider, Whether the right of interdict is taken away by the provision of a penalty made in the grant or letter of gift in the pleadings mentioned? And it is further ordered, that the said Court do determine the question of the respondents costs relating to this appeal, and that they have power to recall or alter the said interlocutors appealed from.”

“It is ordered and adjudged by the Lords spiritual and temporal in parliament assembled, that the said cause be remitted back to the Second Division of the Court of Session in Scotland, with directions to the Judges of that Division to consider, and to take the opinions of the whole Judges of the Court of Session, including the Lords Ordinary, whether the respondents, as the

Footnote

1 12 S., D., & B., p. 9; 15 D., B., & M., and Fac. Coll.

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On the cause returning to the Court of Session, cases on the points remitted for consideration were ordered to be laid before the whole Judges for their opinion, and the following opinion by the consulted Judges was returned:—

Opinion of Court.

Lords President , Gillies , M'Kenzie , Corehouse , Fullerton , Moncreiff , Jeffrey , and Cockburn .—“We have considered the remit from the House of Lords, with the cases subsequently lodged for the parties, and the whole process, and remain of the opinion which we formerly gave, that the respondents in the appeal are a corporation, capable of holding the rights which they now claim.

Their title is a letter of gift or charter from King James the Sixth, dated the 29th November 1599, which was ratified by the Scotch parliament in 1672. Their possession of the character of a corporation and their actings in a corporate capacity for more than two centuries are established by documentary evidence of the fullest and most satisfactory nature, and their title as a corporation has not only been recognized in various judicial proceedings, but specially found and declared by this Court in an appropriate action brought for that purpose.

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The case of the appellants, as it appears to us, derives its only support from the principle which they have adopted of laying entirely out of view the law and practice of Scotland with regard to corporations, and substituting in its stead the law and practice of England in that matter, not as to one point only, but almost every point which they have had occasion to raise. It is true that the corporation law of Scotland has a general resemblance to that of England, as it has to that of many other countries in Europe, for the nature and object of these institutions are the same in all, being originally derived from the civil law, and afterwards modified by feudal rules to suit the form of government and state of society and manners when that system sprung up. But, notwithstanding this general resemblance, the law of each country in details and matters of form has its peculiarities, and in none are they more remarkable than in our own law as contradistinguished from that of England.

Before examining the grant of King James the Sixth, the appellants suggest a doubt whether the term charter is not improperly applied to it, because it passed under the Privy Seal, and not under the Great Seal. This seems to be of little moment, because there is no question what the document is to which both parties refer. We may remark, however, that it forms no part of the definition of a Scotch charter that it is a writ passing under the Great Seal. Taking the term in its most restricted sense, namely, a grant of land, or other heritable right, from a superior to a vassal, nine tenths of the charters in Scotland not only do not pass under the Great Seal, but they pass under no seal at all. With regard

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The charter is granted in favour of Mr. Low, the King's surgeon, and Mr. Hamilton, professor of medicine, that is, physician, ‘and their successors, indwellers

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The appellants maintain that there is no corporation constituted by this charter, and, therefore, that the respondents have no persona standi in judicio, that is, no title to sue or to be sued as a body. This plea is rested on various grounds.

First, It is said that a special denomination is one of the essentialia of a corporation; that where it is erected a name must be given to it; that the King must baptize it; and that the name thus given is indispensable to its existence. In support of this doctrine passages from Coke, Blackstone, and kyd are quoted, excellent authorities, undoubtedly, as to the law of England,

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It appears to have been an early practice for the various trades within burgh to form voluntary societies, for regulating their business and for raising a fund by the contribution of their members. Those societies laid down rules respecting the trial and admission of masters, the number and fees of apprentices, the mode in which the trade was to be carried on, and the like. Further, they were in use to appoint officers to collect their funds, which, before the Reformation, were for the most part applied to defray the expense of an altar dedicated to the patron saint of the craft, and to pay the priest who officiated there. Thus, the surgeons of Edinburgh had an altar dedicated to St. Mungo; the tailors to St. Anne; the weavers to St. Soverane; the waukers to the Saints Mark, Philip, and Jacob, and so forth. The officer who had the charge of the altar was called kirk-master or deacon (an ecclesiastical term); if he collected the contributions he was called quarter-master, because they were paid quarterly; and visitor, if he was appointed to examine the qualifications of the tradesmen or the goodness of their work. But as those were

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The same form was adopted by lords of regality and barons, who had power in their rights from the Crown to erect corporations within their burghs of regality and barony; and it is evident from the present charter that the same style, mutatis mutandis,

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When it is objected, therefore, that the faculty of physicians and surgeons in Glasgow had no special denomination given to them in King James's letter in 1599, or, as it is quaintly said, that they were not baptized, the obvious answer is, that the grant is made to them as the members of a specified calling in a specified place, that is, as physicians and surgeons, being indwellers in Glasgow. They are baptized just as the corporation of surgeons and barbers in Edinburgh were a century before, in their seal of cause, dated in 1505. The petition in that case was presented by the kirk-master and brethren of the surgeons and barbers within the burgh of Edinburgh, and the grant is to them and their successors. Thus also, in the case of the tailors of Edinburgh, the petition was presented by John Steill, kirk-master, George Bell, William Hockburn, and seven others named, “and the laif of the tailors' craft within this burgh;” and the charter confirms the rules of the society “to the said masters and their successors of the said craft.” Thus also, in the case of the butchers of Edinburgh, the petition is given in by “Richard Furde, deykin of the fleshoris for the tyme, Robert Gray and others, principall masters of the said fleshoris craft;” and the council ratify the regulations exhibited to them, without even naming the craft. Thus also the petition of the candlemakers is presented by Robert Taffintoun, Andrew Galloway, and others, craftsmen of the candlemakers of the burgh of Edinburgh, and the seal of cause merely ratifies the regulations. In the case of the weavers or websters the petition is

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A multitude of other instances might be given of the erection of corporations, both in Edinburgh and in the other royal burghs of Scotland, in which the same style was adopted at and previous to that period, and it does not appear to have been changed till a considerable time after the union of the Crowns, when a more correct system of conveyancing in this department was gradually introduced.

It is evident that the charter in question was framed on the same model with the seals of cause then in use. It does not, indeed, narrate a petition presented by Mr. Low, surgeon, and Mr. Hamilton, professor of medicine, and the other surgeons and physicians in Glasgow, probably because there was no voluntary association of the practitioners of those arts in Glasgow, and perhaps no petition was presented by Messrs. Low and Hamilton; but the grant is to those individuals designed or described by the arts which they practised, and their successors, indwellers of the city of Glasgow. No kirk-master is mentioned, because it was subsequent to the reformation; but Low and Hamilton are appointed visitors, the term which, after that event, was often applied to the principal officers of such corporations.

The second objection taken by the appellants is, that there are no ‘incorporating words’ in King James's letter of gift, or words which evince any

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Then it is said by the appellants, that perpetual existence by succession is the essence of a corporate character, and that this grant does not express the mode of electing or continuing the corporate body. We conceive that the provision for continuing the corporate body is clearly expressed, and expressed in the usual and appropriate style of the period. The grant is to Mr. Peter Low, surgeon, and Mr. Robert Hamilton, physician, and their successors, indwellers in the city of Glasgow, that is, all surgeons and physicians legally practising those arts, and residing in that city. No person under the exceptions in the grant was entitled to practise surgery without a licence from the grantees or their successors, or medicine without a licence from a university or the royal physicians; a provision, therefore, is made for the subsistence of the corporation as long as there are surgeons and physicians legally qualified to practise and practising their respective arts in Glasgow, and actually residing there. When Messrs. Steill, Bell, &c., and the rest of the master tailors of Edinburgh petitioned the magistrates and council to confirm the rules which they had made for the practice of the tailor craft, there was no provision in their rules for the election of kirkmasters or visitors, no provision for the nomination of future corporators; neither was the council prayed to grant a power of making other bye-laws. On that petition the council confirm the rules presented to

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In the case of Wallace v. Calder 1 , referred to in the pleadings, the same objection was taken by the suspender, Calder, to the ambiguity of the term ‘successors’ in this grant. It was said, the grant might be construed as personal to Peter Low and Robert Hamilton and their families, provided the successors in their families were of the profession of the original patentees; and a great deal of discussion followed on that plea. But the Court, although they diminished the amount of the fine imposed on Calder, sustained the privileges of the corporation in all respects. More than seventy years have elapsed since it was settled by a decree of this Court in foro contentioso who the successors of the grantee are, and surely it is too late now to stir the question again.

The appellants argue, that no power is conferred by the grant of making bye-laws to regulate the proceedings of the body, but that a power is given, and unlawfully given, to make general laws for surgical practice. The clause is in these terms:—

of thair bretheren, to make statutis for the commoun weill of our subjects anent the saidis airtis, and using thairof faithfullie; and the braikeris thairof to be punishit and unlawit be the visitouris according to their falt.” offenders concerned in making adulterated gold or ‘silver.” in England, of the nature of a ratification by the parliament of Scotland; supposing it to be similar to a private act of the British parliament, or analogous to it. But in Scotland a parliamentary ratification was not a proper law,—it carried no new right,—no person was held to be a party to it,—it was carried through periculo petentis, and was subject to reduction by the Court of Session. This was settled by an act of the legislature as early as the reign of Queen Mary. See statute 1567, cap. 18. and Sir George Mackenzie's observations upon it. If any act of this description, therefore, bears to ratify a preceding grant, and misrecites it, to that extent the act is null; and not only has the Court of Session a right to notice this misrecital, but it is pars judicis to do so. Perhaps a court of law at Westminster might hesitate to find and declare that an English act of parliament, even though a private act, was from the beginning, is now, and will be in all time coming void, null, and of no effect in judgment, or outwith the same. But there is no doubt that the Court of Session can so deal with a Scotch ratification. If the grant is in favour of A., and the ratification in favour of B., A. will take nothing by the ratification, but assuredly neither will B.; for, except in so far as it corresponds with the grant, it is unavailing, unless perhaps, when followed by possession, it may be held a prescriptive title. of a corporation was affected, because part of the corporators dissolved their connexion with it. The surgeons of Edinburgh remain a corporation though the barbers withdrew from it in 1722; and so also the waukers, although the bonnet-makers, who were incorporated with them at the date of their charter, are now a separate craft. of proof to the same effect, particularly with regard to corporate acts performed after the letters of deaconry were resigned. enough to say, that his Lordship did not decide the question, whether the writers to the signet are a corporation or not. He held that he had not materials before him for that purpose. His judgment went on a separate ground altogether, namely, that, whether they were a corporation or not, they had not been sued in that character, and therefore that their action could not be supported. Whether Mr. Erskine was wrong in laying it down as established law in his time that the writers to the signet are a corporation, (for that is necessarily implied in his observations on the College of Justice,) remains yet to be tried.

“That it sall be leisum to the saidis visitouris, with the advice

Footnote

1 Post, p. 423.

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It is the common style in the old seals of cause to represent the rules recited in them for regulating corporate proceedings and the practice of the craft as statutes made for the glory of God, the honour of the realm, the worship of the town, and the profit of our sovereign lord's lieges; and therefore this power of making statutes ‘for the commoun weill’ of the subjects anent the arts in question clearly includes a power of making bye-laws for regulating the corporation; and so it was construed at the time, for the very first acts of the faculty, as appears from the extracts from their minute book, consist in making a series of bye-laws for regulating their corporate proceedings. This expositio contemporanea of the grant is certainly more authoritative than any speculation with regard to its meaning now. Whether it empowered the faculty not only to examine and admit practitioners within their bounds, that is, within the four counties named, but also to lay down rules for their surgical practice after being admitted, may well be doubted; and we are not aware whether such a right was ever claimed. If it had, however unlawful according to English ideas, it would have been no novelty in the law of Scotland; for by King James the Sixth's charter, of the 3d of January 1586, to the goldsmiths of Edinburgh, the corporation is “invested with a power to inspect, try, and regulate all golden and silvern wares, not only in Edinburgh but in all other parts of Scotland, with a right to punish

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It is plain, that as neither Mr. Low nor Mr. Hamilton, the visitors of the corporation, were royal physicians, they and their brethren had no right by the grant to examine and admit physicians, or to grant licences for the practice of physic. A degree from a university, or a licence from the royal physicians, was sufficient for that purpose. But in the ratification in parliament in 1672, which bears to recite the grant of the 29th November 1599, the words quoted are:—

“And that it sail not be leisum to any maner of persones within the foresaidis bounds to exercise medicine without ane testimoniell of ane famous universitie wher medicine is taught, or at leist the persones above mentioned, and their successors, under the pains contained in the said gift.”

Now it is plain that the grant is misrecited here, for nothing is said in it as to the grantees having a power to give testimonials for the exercise of medicine: that was reserved for the universities and the royal physicians. Mr. Low was only a royal surgeon. But it has been suggested to the House of Lords, that the Court of Session were not entitled to say that there is a misrecital in the ratification 1672; that if the grant had been to A., and the parliamentary ratification had been in favour of B., the court had no right to say that the legislature meant A. and not B., and that this act, if it is good for any thing, gives the power to the persons whomsoever it names, and not to those whom the grant of 1599 names. The appellants have made this suggestion to the House of Lords apparently under a misconception, and a very natural one

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Doubts have been entertained whether the ratification, being in favour of the surgeons, apothecaries, and barbers alone, can be of any effect, now that the barbers have withdrawn from the corporation; but it never was held, in Scotland at least, that the existence

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Leaving the construction of the grant, we have next to observe that few cases have occurred, if indeed any one, in which the possession of corporation privileges for nearly two centuries and a half has been proved by such overwhelming evidence. It is unnecessary to recapitulate the proof, for it is distinctly stated in the case for the respondents. The faculty of physicians and surgeons are found making bye-laws, and enforcing them, as early as 1602. They appear in the course of that century to insist in actions as a corporation, and their title is sustained; a list is produced of more than eighty bonds of desistance taken between 1659 and 1701, by parties who attempted to violate their privileges; and that not only where the parties practised in the city of Glasgow, but in every other district to which the grant extends. At least fifteen of these bonds are from individuals practising in the county of Ayr, to which a doubt is now expressed whether their privileges ever did extend. Where bonds of desistance were not granted extrajudicially, the faculty cited the offenders before their own court, and pronounced decrees against them, upon which diligence by horning and caption was raised. A list of seventeen of these decrees is produced between 1725 and 1759, on most of which diligence appears to have followed.

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The appellants attempt to get rid of all this evidence of possession by referring to a letter of deaconry, which the surgeons and barbers obtained from the magistrates and town council of Glasgow in 1656, and they say that this proves the faculty not to have been a corporation before that year. It proves that they were not a burghal corporation, that is, they had not the privileges with regard to the government of the town and other rights which it was in the power of the magistrates and town council to confer. But the town council of Glasgow could not give the faculty a corporate jurisdiction over four counties, or warrant all the corporate acts which were performed within that extensive district at any period, and still less during a period of more than fifty years before the date of the letter of deaconry. It is insinuated that, with the exception of what appears in the minutes to have taken place in 1602, there is no evidence of the faculty acting as a corporation before the date of the letter of deaconry. But that is a mistake. It is proved that the faculty sued as a corporation in 1635, founding exclusively on King James's gift as their title, for the letter of deaconry had not then been granted; and in that action they obtained a decree against all persons within their district practising surgery or medicine contrary to the terms of the grant, and against all judges and magistrates within these bounds to concur in enforcing the grant; and upon this decree general letters of horning were raised at the instance of the faculty. If there was not another document in process, we are of opinion that these signet letters would be decisive with regard to the point of possession. But there is a great mass

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In addition to the title which the respondents have produced, and the continuous possession satisfactorily shown to have followed upon it, the question now under consideration has been repeatedly decided in this Court; and that not only in cases where the rights of the faculty were indirectly recognized, but where the point was distinctly raised and brought before the Court for judgment. It was tried and decided in an action of declarator raised by the faculty in 1691, in which the summons libels upon the gift of James VI., and concludes that the privileges granted by it shall be declared. It was again tried and decided in the suspension at the instance of Calder v. Wallace in 1761, in which almost all the arguments now advanced against the title of the faculty were resorted to. And these were not undefended cases, but judgment was pronounced in foro contentioso. A series of cases followed, in which the rights of the faculty thus established were judicially recognized. So clear was the point considered, that even the appellants themselves did not venture to stir in the Court below previous to the present appeal. We do not think that they were in consequence precluded from recurring to it in the House of Lords, but we are of opinion that the decisions to which we have referred are to be held as precedents settling the law upon the point.

With regard to what fell from Lord Gifford, in the case of the Writers to the Signet v. Graham 1 , it is

Footnote

1 1 W. & S. 538.

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The only other point which we are directed to consider by the remit is, “whether the right of interdict is taken away by the provision of a penalty made in the grant or letter of gift mentioned in the pleadings?” We are clearly of opinion, that the right of interdict is not taken away. When a penalty is imposed to enforce an obligation, no option is given to the party against whom it is directed to get quit of his obligation by paying the penalty. In the language of the law of Scotland the penalty is by and attour performance. It is one mode of enforcing the obligation added to every other mode which would otherwise have been competent. This is so clearly proved by the authorities cited in the respondents case, that we think it unnecessary to enlarge upon the subject.”

The following addition was made by Lord Moncreiff :—

“Although retaining the opinion, or the doubt at least, formerly expressed by me on the general merits of this case, I entirely concur in this opinion on the points embraced by it.”

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Judgment of Court, 7th March 1837.

On the case being advised by the Judges of the Second Division, the following unanimous interlocutor was pronounced on the 7th (signed 9th) March 1837:—

“The Lords having resumed consideration of the cause, with the opinions of the consulted Judges, find, that the respondents in the appeal, as the Faculty of Physicians and Surgeons of Glasgow, are a corporation capable in law of possessing and in fact clothed with the rights for which they contend in this action; and that the right of interdict is not thrown away by the provision of or penalty made in the grant or letter of gift in the pleadings mentioned, and decern and declare accordingly; and adhere, and confirm the interlocutors of Court dated 12th and signed 15th November 1834, and 23d January 1835: Find the Surgeons and the University conjointly liable in the expenses incurred in the House of Lords, and also in the expenses incurred in this Court since the date of the remit by that House.”

Against that interlocutor the University of Glasgow appealed.

Appellants Argument.

Appellants .—The opinions of the consulted judges have proceeded in some degree from a slight misconception of the nature of the question before them; and perhaps in a still greater degree from an undue and ill-founded impression, that, from the nature of the remit, this House intended to apply the principles of English law to the decision of a Scotch case, and have laid down principles of law with regard to corporations, which have been applied for the first time to the present question, and are at variance with constitutional as well

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They assume that the prerogative of the Crown was sufficient to grant a corporation, and that because by the constitutional law of Scotland the King could create a corporation, and invest it with the powers claimed by the letter of 1599, they are entitled at once to arrive at the conclusion, that a corporation was created by the letter of gift of 1599, and that the parties claiming under it are vested with the privileges which they now seek to enforce. On the other hand it is maintained that no corporation was created, and that the intention of the letter of gift, however it may have been abused, was merely to bestow certain personal privileges of examination upon particular individuals, and those who might fill the situations held by them, if such privileges could legally be bestowed upon individuals in succession.

The letter of gift of 1599 specially excluded the right of the visitors, and their successors, to interfere with those individuals practising medicine who possessed the diploma or “testimonial” of a university where medicine is taught, as is proved by the narrative of the letter; which shows that the intention of King James the Sixth

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“The term surgery has been usually employed to signify that part of medicine which treats of the diseases of the human body which are to be cured or alleviated by the hand, by instruments, or external applications.”

And in the case of Steele 2 the Lord Justice Clerk treats surgery as a branch of medicine: he says, “I know that in very many parts of the kingdom the distinction between physicians and surgeons is by no means defined. Nothing is more common than for a person to exercise both professions, and to practise the one is not considered an encroachment on the other. The distinction is much too fine. That accurate chemist Dr. Thomson says,

Footnote

1 Encyc. Brit., voce “Surgery.”

2 See post, p. 419.

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The Court of Session has found the appellants liable in the costs of the previous discussion in this House, under the erroneous impression that it was the intention of this House that these costs should be given if the point remitted was decided by them unfavourably to the appellants. 2

Footnote

1 1 Kyd, Inc., pp. 13, 14; 1 Blackstone, pp. 467, 472–474; Conservators of the River Tone v. Ash , 10 Barn. & C. 349; Writers to the Signet v. Graham , on appeal, 1 Wils. & S. 538; Steele, 26th Feb. 1819, not reported; Kam. Elucid., art. 7. p. 54; Maitland's Hist. of Edin. 294; Jamieson's Dict., “ Craft .”

2 Opinions of Judges of Second Division as to costs of first appeal:—

Lord Glenlee .—“I cannot see how in common justice we can refuse the pursuers expenses, as I see it stated in the defenders case that the question was not properly tried before us formerly. At all times expenses are the pœna temere litigantium. This is a case of temere litigans, and expenses should certainly be given.”

Lord Meadowbank .—“I am entirely of the same opinion.”

Lord Medwyn .—

“When a party does not sufficiently plead a point in the original court, but only in a court of appeal, expenses ought clearly to be given against him, especially if he be in the wrong. We formerly found expenses due in this case, and we are bound to find them anew.”

Lord Justice Clerk .—

“I conceive that the power with regard to the expenses of this discussion, inserted in the remit by the House of Lords, was inserted in order to give us the power to award the expenses, which otherwise, under a remit under such a clause, might have been matter of doubt. I am clear we must find expenses due.”—Rep. in Fac. Coll.

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Respondents Argument.

Respondents .—The unanimous opinion of the Court below affords a distinct explanation in regard to the peculiarities of Scottish law on the subject of corporations; and under the sanction of that opinion the respondents submit, that, even looking at the charter of 1599 by itself, and apart altogether from the explanatory possession which followed, it possesses all the necessary characteristics of a valid Scottish charter of incorporation. Whether it be drawn with that technical precision and fulness which the law of England would require, the respondents cannot say; but it sufficiently contains the requisites of a Scottish charter of incorporation; and it so contains them, that any judgment which would refuse effect to this charter would actually nullify the greater part of the charters on which corporate rights in Scotland at present subsist.

It forms no good objection to the validity of the charter, that no specific name is expressly set forth in it as that by which the corporation was to sue and be sued; for, by the law and practice of Scotland, this was not necessary, and so it is stated in the opinion of the Court below. Neither does it form any valid objection, that there are not in the charter “incorporating words,” or words of technical style, declaring the body to be a corporation. By the law of Scotland it is enough, if, from the whole scope and purview of the deed, the intention to create a corporation be fairly gathered. It is enough if it appear, from the general terms and nature of the deed, of whom the corporation was intended by the founder to consist; and in the present case this was sufficiently done by the bare erection of the craft into a corporation. The provision for continuing the corporate body is clearly expressed, and

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And whilst, even considered by itself, the charter of 1599 is thus to be held a valid charter of incorporation, the respondents are further entitled to maintain that its character as such is at once proved and confirmed by the possession which followed on it, affording both a contemporaneous exposition and a subsequent ratification of more than 200 years. The possession shown to exist is traced, with a distinctness very rarely to be found, back to the year 1602: according to the consulted Judges:—

“Few cases have occurred, if indeed any one, in which the possession of corporation privileges for nearly two centuries and a half has been proved by such overwhelming evidence.”

The respondents are therefore, under the charter 1599, and the possession following thereon, a lawful corporation, possessing the privilege of examining and licensing all persons desirous of practising surgery within the bounds specified in the charter, and of excluding all persons who have not been so examined and licensed from the practice of surgery within these bounds.

It cannot be successfully maintained that the holders

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In opposition to the terms of the charter, the appellants maintain that an exception lies in favour of certain persons from the general rule thus laid down. It is therefore incumbent on them to make good this exception clearly and unequivocally; and this they attempt to do by endeavouring to establish for those holding the degrees of universities, and amongst others of the university of Glasgow, an inherent privilege of practising every where the art in which the degrees are granted, without the party being subjected to interruption or interference from any quarter whatsoever: and as they claim no higher regulæ for the university of Glasgow than belong to other universities, the position of the appellants must be considered to go to this, that whenever a science or art is taught in any university, and a degree in that science or art is granted by the university, the effect of that degree is to enable the holder of it to practise that science or art every where, without its being in the power of any individual or any body of individuals to interfere to prevent him. This, however, is a position submitted to be untenable.

The respondents are entitled to have their rights enforced, by obtaining an interdict against those individuals who practise surgery without being examined and licensed by the faculty. No principle in the law of Scotland is more clearly settled,—and so it has been laid down by the consulted judges,—than that the provision

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Ld. Chancellor's Speech.

The Lord Chancellor .—My Lords, the question in this case was, whether persons holding a degree in the College of Glasgow,—the degree of master in surgery,—are entitled to practise within the bounds of the charter of incorporation granted to the surgeons of Glasgow, without being examined and licensed by the faculty of Glasgow.

My Lords,

it appears that the University of Glasgow have recently granted degrees in surgery. They have

Footnote

1 Respondents Authorities .— College of Physicians v. Levett , 1 Lord Raymond, 472; College of Physicians v. West , 10 Mod. Rep. 353; 1 Kyd, 62–69, 226–254, and 2 Kyd, 50; Surgeons of Glasgow v. Magistrates of Glasgow , 7th July 1694, 1 Fount. 633; App., p. 54, of printed papers; Surgeons of Glasgow v. Calder , 1761, ibid. p. 64; Surgeons of Glasgow v. Dunlop , 1791, ibid. p. 77; Surgeons of Glasgow v. Magistrates of Glasgow , 1791, ibid. p. 74; Magistrates of Glasgow v. Steele , 26th February 1819, ibid. p. 82; Skirring v. Smellie , 17th Jan. 1803; Fac. Coll. xiii. 170; No. 76, Mor. 10921; Fleshers of Canongate v. Wight , 11th Dec. 1835, 14 D., B., & M., p. 135; Blankley v. Winstanley , 3 T. R., p. 279; Magistrates of Dunbar v. The Heritors , 11 S., D., & B., p. 879; 1 Sh. & M'L., p. 184, reversed.

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The title of the corporation which claims a right of licensing persons to practise surgery within certain limits, rests upon a charter or letter of gift of James the Sixth, of date the 29th of November 1599; by which he granted to two persons, described as “professors of medicine,” and their successors, indwellers of the city of Glasgow, certain powers for the purpose of regulating the practice of surgery and medicine. It turns upon the expressions used in that letter, and on what has taken place since that letter, whether the right in question belongs to this corporation. They were by that letter empowered to call before them “all persons professing or using the art of surgery within the bounds specified, to examine them upon their literature, knowledge, and practice, and, if found worthy, to allow and approve them, give them testimonials, and authorize them to practise.” They also were authorized to appoint visitors to inspect the bodies of those who might be hurt or murdered, and to make statutes as to the practice of the art; and by the fourth clause it was provided, that no person should exercise medicine within the bounds of the charter without the testimonial of a famous university where medicine was taught, or a licence from the King's or Queen's physician; and the visitors appointed were empowered to interdict transgressors under certain penalties.

My Lords,

it was very much matter of discussion whether this authorized the corporation to exercise jurisdiction over surgery, it being contended that it was included in and formed part of the science of medicine.

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My Lords,

it does not rest upon that charter, although that is the foundation of the claim of this corporation, for it appears that by the Scotch act of 1672 that charter was confirmed. The enactment was, that it should be confirmed after the form and tenor thereof in all points, in so far as the same gift and the ratification thereof could be extended in favour of the surgeons, apothecaries, and barbers within the said burgh of Glasgow, and their successors, and no further; and his Majesty and estates of parliament declared, that the general ratification should be as valid and sufficient as if the gift were word for word engrossed, notwithstanding the same be not so done.

My Lords,

it does not rest upon that ratification of that act, for in 1691, upon a question arising as to the constitution of this corporation and the extent of their rights and privileges, those rights and privileges were declared by the Court of Session by a declarator of that date 1 in these terms:—

the visitors of the chirurgeons at the time of the said gift, and their successors ever since and in all time coming, had and have right to make rules and statutes anent the dispensing of the said airt, and to ordour the manner of the election of their successors, and also to make rules anent the admission of fit and qualified persons for the practice of the said airt and trade, and to debar all others from the exercise of yrof who are not duly admitted conform to the said rules; and particularlie to debar all such as have not served their apprentisship in the town of Glasgow, or have not married the daughter of one freeman of the said incorporation, and also tryed and found qualified; and to fine all unfreemen exercising the same in the soume of fortie pounds Scots toties quoties.”

“The Lords of Council and Session has found and hereby finds and declares the said chirurgeons of Glasgow their privileges in terms of the foresaid gift and ratification, and possessione of debarring unfreemen lybelled, and particularlie that

Footnote

1 Surgeons of Glasgow v. Magistrates , 1691. See App., p. 54, printed Session Papers in this cause.

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My Lords,

I will not occupy your Lordships time in stating the various suits which since that period have been brought into the Court of Session, further than to state the names of the causes and the years in which they took place; for it does appear that there have been various instances not only of the constant and repeated exercise of the privilege which is claimed by this corporation, but several suits at different periods in the Court of Session in which the right has been acted upon and established. In 1761 there was that which is called the Calder case 1 , in which the right was claimed directly; in 1791, in the case between the Faculty and Alexander Dunlop 1 ; and in 1819 another case 1 , which goes so directly to the point that I will state what was the interlocutor then pronounced. It was an action at the instance of Dr. John Balmanno, president of the faculty

Footnote

1 Ante, p. 423.

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Now, my Lords, that being the state of the decisions, the present contest arose, and when it came before the Second Division of the Court of Session the other Judges were consulted, and six of the learned Judges stated their opinion to be in favour of the rights of this corporation; they joined in the same judgment; one other Judge, Lord Medwyn, concurred in opinion, but he made a separate note, explaining the grounds on which he proceeded. There is certainly the high authority of Lord Moncreiff, who did not differ as to the title

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My Lords,

it appears that the University of Glasgow, though they have been in the constant habit of granting degrees in medicine, have not been in the habit of granting degrees in surgery, so that during the whole period that these two bodies have been acting together, one has been granting degrees in medicine, which is excepted from the grant made to this corporation, inasmuch as those who practise medicine are only called upon to obtain the licence either of the king's or queen's physician, or a degree of some famous university where medicine was taught; but with reference to surgery, there was given to that corporation by that grant the exclusive privilege, and they seem to have exercised the exclusive privilege from the period of that grant till the period when this contest arose, supported by the various decisions to which I have before referred. If, therefore, there had been any conflict of authority between these two bodies, the length of time during which the one had exercised the power and the other had abstained from exercising it would be quite sufficient to enable your Lordships to come to the conclusion as to which of the two bodies ought to be permitted to exercise the right;

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My Lords,

when this case came before your Lordships House in the year 1835, my noble and learned friend (Lord Brougham) was in the House, and the discussion of the case ended in a remit for the purpose of ascertaining two points, and two points only; namely, first, whether this body claiming to be a corporation was a legal corporation, and secondly, whether, as they had a power of imposing a penalty, the power to impose a penalty superseded any right they would otherwise have of applying to the Court of Session for an interdict against parties practising. My Lords, that remit being made to the Court of Session has produced, certainly, very learned opinions from the Judges to whom that question was referred. They have gone at a very great length and with very great learning into the history of this corporation, and the result is, that they have stated an unanimous opinion, that this is a legal corporation according to the law of Scotland, and that, the corporation having the power to raise a penalty of 40 l . Scots, it did not debar them from the right of applying for the protection of their privileges by reference to the Court of Session.

My Lords,

my noble and learned friend will be able to state, (for the remit from this House does not specify, and from any information we have it does not appear,) to what extent the opinion of the House was formed on the other parts of the case. One may, however, assume that the difficulty of the case was limited to those two points on which it was sent back to the Court of Session. If that is so, the opinion of the House has been formerly expressed on the other points,

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Ld. Brougham's Speech.

Lord Brougham .—My Lords, my noble and learned friend has justly stated the grounds upon which the remit was made to the Court below. The doubts which had presented themselves to my mind were shared by a noble and learned friend of mine, not now present, the highest authority upon a question of that sort, inasmuch as he is at the head of that Court which is the visitor of all corporations in this country,—I mean the Lord Chief Justice of the Court of Queen's Bench; and it is the more necessary that I should state this, because by some extraordinary omission in the report of the case, otherwise a very accurate report, in Shaw and M'Lean, I do not see any mention made of the presence of the Lord Chief Justice. By some accident that important circumstance is omitted. Now, the doubts which presented themselves to my mind were as fully shared by my noble and learned friend the Lord Chief Justice, as indeed they must have been by every person, (as my noble and learned friend has just stated,) who viewed this with the eye of an English lawyer.

My Lords,

my noble and learned friend, not now present, felt another difficulty, which I think is now also removed by the statements which have been made by the learned Judges of the Court below, relating to the power of making bye laws. In that I entirely shared. Those bye laws, as they are called, do not at all answer the description of bye laws in this country.

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Another doubt entertained by the Lord Chief Justice was as to the power of the Crown to grant such an exclusive charter, but the manner in which the defect of the original charter has been cured by the statute of 1642 is to be taken into account. I have not had any opportunity of communicating with the Lord Chief Justice upon this subject; if he had an opportunity of perusing the opinions given and the precedents quoted by the learned Judges below, I have not the least doubt that his difficulty would have been got over.

Upon the whole, my Lords, I am of opinion, with my noble and learned friend, that nothing now remains for your Lordships but to affirm this decision. Some difficulty appears to have occurred below upon the questions of costs. The power exercised by the Court below of giving the costs of the appeal may be an extraordinary one, but my impression is that it was with the view, if possible, of preventing the coming here again that that power was given; but be that as it may, I do not think the Court below have at all exceeded the power conferred upon them by that part of the order.

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Judgment.

The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the said interlocutors therein complained of be and the same are hereby affirmed: And it is further ordered, That the appellants do pay or cause to be paid to the said respondents the costs incurred in respect of the said appeal, the amount thereof to be certified by the clerk assistant: And it is also further ordered, That unless the costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the cause shall be and is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the bills during the vacation, to issue such summary process or diligence for the recovery of such costs as shall be lawful and necessary.

Solicitors: Richardson and Connell— Archibald Grahame, Solicitors.