United Kingdom House of Lords Decisions

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:—

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

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¹ Post, p. 423.

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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.”

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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offenders concerned in making adulterated gold or ‘silver.”

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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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.

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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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.

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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of proof to the same effect, particularly with regard to corporate acts performed after the letters of deaconry were resigned.

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

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¹ 1 W. & S. 538.

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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.

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.”