“Every Fellow may examine and argue with the candidate in thecomitia minorathough he has no votethere.”
“The delegation to thecomitia minorato examine is good.”
“Mr. JusticeAstonfollowed Mr. JusticeYatesin saying that DoctorLetchshould rather have applied for a mandamus requiring the College to grant him a license to practise within London and seven miles of it, than for a mandamus to admit him as a member.”
“Thecomitia majoraacted with great moderation in admitting him to another examination.
“Mr. JusticeHewitdeclined giving any opinion (on a point started in argument) whether London Licenciates aremembersof the College or not; though he hinted, that the more he thought of it, the more he doubted it.”
“We should go a great way if we should say ‘that a Licenciate to practise withinLondonand seven miles round is amemberof the College’.”
The Rule was accordingly discharged by the unanimous opinion of the Court.
But the matter did not rest here; the notion that the Licenciates were entitled to be considered as Members of the College, under the term Commonalty or otherwise, gained ground; and accordingly two terms after the original argument and judgment, SirFletcher Norton(afterwards LordEardly) movedfor a Rule upon Dr.Askewand others (the four then Censors), for them to shew cause why an information in nature of aquo warrantoshould not be granted against them, to shew by what authority they acted as Censors of the College of Physicians.
The objection was, that whereas the election ought to be by thewholebody, these gentlemen had been elected only by aselectbody; namely by the Fellows,exclusiveof the Licenciates, whodemanded admittance; which was refused them by the Fellows, on pretence of their having no business there, upon that occasion.
After an argument on three several days, during which SirFletcher Norton, Mr.Morton, Mr.Wedderburn(afterwards LordRoslyn,)[106]SerjeantGlynn, Mr.Walker, and Mr.Mansfield(afterwards Chief Justice of the Common Pleas), were heard for the Licenciates, and Mr.Yorke(afterwards LordChancellor), Mr.Dunning(afterwards LordAshburnham), SerjeantDavy, Mr.Ashurst(afterwards a Judge), and Mr.Wallacefor the College, LordMansfielddelivered his opinion.[107]“The question now before us is singly this, Whether the persons applying for the informationare Fellowsandentitled to votein the election of Censors. If they are, the election of these Censors, being made inexclusionof their votes, isnot good. If they are not Fellows, and have no right to vote in the election of Censors, then this election stands unimpeached.”
The question is, “Whether theseLicenciatesare Socii, or Collegæ, or Fellows,” which are synonimous terms.
The facts are not disputed: and there is no doubt about the law. It has been admitted on both sides that there has been a great number ofby-lawsandlong-usages; and the permission of these Licenciatesto practiseis not disputed. But I doubt whether thispermission to practise, and theseletters testimonial, can amount to an admission into the Fellowship of the Corporation or College. Nothing can make a man a Fellow of the College without theAct of the College. The power of examining, and admitting after examination, was not an arbitrary power,but a power coupled with a trust. They are bound to admit every person whom upon examination they think to be fit to be admitted, within the description of the Charter and the Act of Parliament which confirms it. The person who comes within that description has arightto be admitted into theFellowship; he has a claim to several exemptions, privileges, and advantages, attendant upon admission into theFellowship; and not only the candidate himself, if found fit, has a personal right, but thepublichas also a right to his service; and that not only as a physician, but as a censor, as an elect, as anofficerin the offices to which he will upon admission become eligible.[108]They have power not only by their charter, but by the law of the land, to make fit and reasonable by-laws, subject to certain qualifications. It appears from the Charter and the Act of Parliament, that the Charter had an idea of persons who might practise physic inLondonand yet not be Fellows of the College. The Presidentwas to overlooknot onlythe College, but also “omnes homines ejusdem facultatis.” So when the College or Corporation were to make by-laws, these by-laws were to relatenot onlyto the Fellows, but toall otherspractising physic withinLondonor seven miles of it.
Then let us see how the usage was.
In 1555 they must have had a probationary license before admission into the College. Afterwards it was to be a probation for four years before admission. The College might grant such probationary licenses, with some reason, and agreeably to their Institution. This shews that some licenses were granted to persons not Fellows of the College. The 3 H. 8 takes away all former privileges.[109]In 1561, apartiallicense was granted to an occulist. A person may be fit to practise inonebranch who isnotfit topractise inanother. Licenses have also been granted towomen.[110]Partiallicenses have been given for above 200 years.[111]In 1581 notice is taken ofthree classes: Fellows, Candidates, and Licenciates. The licenses probably took their rise from that illegal by-law (now at an end) which restrained the number of Fellows to twenty.
This being premised, let us inquire “Who these gentlemen are that are now applying to the Court.”
They are persons who set up a title directly contrary to thesensein which their license is giventothem and received by them. They cannot avail themselves of their instruments in this way: it would be acheatupon the College. And they have acquiesced many years under this license given them by the College, as merely a license to practise.
But even supposing them to have a right to be Fellows, yet, as it is clear that the license does not make themipso factoFellows, they could not votein the electionof Censorsbefore theiradmission to the Fellowship; and therefore the exclusion of their votes cannot impeach this election.
I am of opinion “that this rule ought to be discharged.”
His Lordship (but this wasobiter) then made some comment on the statutes and by-laws of the College; and recommended their revisal under the best advice, saying, “I see a source of great dispute and litigation in them as they now stand.”[112]
Mr. JusticeYatesconcurred with the Chief, as did Mr. JusticeAstonon some points; but upon the construction of the Charter and Act of Parliament, he thought that in grants of this kind, the construction ought to be made in aliberalmanner; and this grant includes “Omnes homines ejusdem facultatis de et in civitate prædictâ,” and the application to Parliament for the Act of 14 and 15 H. 8. to confirm the Charter is made by the six persons particularly named in it, “and all other men of the same facultywithin the City of London and seven miles about.” It seemed to him that the idea was “that all persons duly qualified, who took testimonials under the College seal, wereto be of the community.” He should, however, give no opinion, he said, how it might turn out upon amandamus.
Mr. JusticeWilles, confining himself to the subject in question, concluded, “they cannot before their admission maintain this rule.”
LordMansfieldand Mr. JusticeYatessaid they gave no opinion how it might be upon amandamus.
The Court were unanimous in discharging the rule.
The hint thrown out by three of the Judges was followed up by the Licenciates. On Thursday, 17th Nov. 1768, SirF. Nortonand Mr.Nortonmoved the Court on behalf of DoctorEdward Archer, and Mr.Walkeron behalf of Dr.Fothergill, for writs ofmandamus, to oblige the College to admit these two Licenciates, with an intention to try the question “whether the Licenciates had a right to be admitted Fellows;” and that litigation lasted till June 1771. But they only came round to the same point which had been already determined, as above; for these two gentlemen had accepted licensesunder the by-lawof 1737, and the Court were of opinion “that they ought not afterwards to desert it, and treat it as null and void; and set up a right of admission under the Charter, upon the foundation of this very license which they had acceptedunder the by-law, upon the supposition that the by-law was a bad one.” So that the return was allowed, upon that objection to their claim. And the intended question remained unsettled. See 5 Burr. 2740, where also will be found the form of the mandamus and the return.[113]
The last case on this subject is that of DoctorStanger. (7 Term Rep. 282, which as the most recent decision, and for the luminous judgment of LordKenyon, we have inserted in the appendix.) This, like the cases inBurrows, was argued by the most celebrated lawyers of the day, Mr. SerjeantAdair, Mr.Law, (afterward LordEllenborough) Mr.Chambre, (afterward a Judge) Mr.Christian, (now Chief Justice ofEly) having argued in support of the rule; and Mr.Erskine, (afterward Chancellor) Mr.Gibbs, (Chief Justice C. P.) Mr.Dampier, (a Judge) and Mr.Warren, (now Chief Justice ofChester) against it. The rule for amandamuswas discharged;[114]it may therefore now be considered as a resolved point of law, that a Doctor of Physic, who has been licensed by the College of Physicians to practise physic inLondonand within seven miles, cannot claim as a matter of right to be examined in order to his being admitted a Fellow of the College. The College, who have power by their Charter (confirmed by Act of Parliament) to make by-laws, have made by-laws respecting the qualifications of persons to be admitted; by them it is ordained that no person shall be admitted into the class of candidates before admission into the College, unless he has taken a degree of M. D. at Oxford, Cambridge, or Dublin, except in two cases: in one of those cases the President may propose in every other year a Doctor of Physic of a certain standing, and if he be approved by the College,he may be admitted a Fellow; in the other, any Fellow may propose a Doctor of Physic of a certain age and standing, and if approved at certain meetings he may be admitted a Fellow. And it was ruled that these were reasonable by-laws.
The following may now be considered as the legal classes of Physicians. 1st. The actual members of the College of Physicians, divided into their several denominations of President, Elects, and Fellows.
2d. Those who, being graduates of the universities of Oxford and Cambridge, are licensed to practise by the College in London and within seven miles during their respective periods of probation, previous to becoming Fellows; these are Candidates who, being Doctors of Physic, have undergone their examination for the Fellowship, and at the end of one year are capable of becoming members or Fellows of the College; and inceptor Candidates,[115]who being Bachelors of Physic aspire to the Fellowship.
3d. The medical graduates of our two Universities.
4th. The Licenciates who are admitted by the College to practise in London and within seven miles, and the extra Licenciates who are admitted to practise in the country but not within the privileged district of the College.
These are the laws respecting Physicians as a body Corporate; we have not added their Statutes as they are separately printed, although they have never been published by the authority of the College. It now remains for us to notice their rights as individuals, the exemptions to which they are entitled, and the actions to which they are liable.[116]