OF THE POWERS OF THE COLLEGE.
One of the first and most material of the powers and privileges granted to the College by the Acts and Charter to which we have referred (and which the reader will find recited in the Appendix,) is that of recovering from all persons who practise physic in London and within seven miles circuit, without their Licence, or Admission, the sum of five pounds for every month during which they have so practised. This power has been most minutely investigated and determined in the case of Dr. Bonham.[[83]] Coke’s Reports, 123, (see Appendix, p. 62,) which was an action of false imprisonment brought by Thomas Bonham, a Doctor of Physic, of the University of Cambridge,[[84]] against the then President, Censors and some servants of the College; the Defendants justified under the Statute, (14 and 15 H. 8.) setting forth; that the plaintiff practised physic in London, and within seven miles circuit, not being admitted, &c. that being examined he was found insufficient, and forbid to practise,[[85]] but notwithstanding such prohibition, he afterwards practised for a month or more, whereupon they amerced him five pounds, to be paid to them at their next assembly, &c.[[86]] and likewise injoined him to forbear practising any more until he be found sufficient, &c. upon 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 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, as having taken his degree of Doctor of Physic within the University regularly, and so thought himself protected by that Clause in the Act; whereupon the Censors ordered him to prison, which was executed accordingly, and for this imprisonment this action was brought. In this case, Mr. Justice Daniel, thought a Doctor of Physic of either University was not within the body of the act, but suppose him to be within the body, yet he was excepted by the last clause. But Mr. Justice Warburton held the contrary upon both points.[[87]] Chief Justice Coke, (for whose judgment, see Appendix, 26,) said nothing as to either of those points, because all three (who were all the judges present,) agreed, that this action was clearly maintainable for two other points; and they resolved,
1. That 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 said clause, viz. That none in the said City, &c. exercise the said faculty, &c. which prohibits every one from practising Physic in London, &c. without licence of the President and College; but extends only to punish those who practise in London, Pro delictis suis in non bene exequendo faciendo et utendo Facultate Medicinæ, so that their power (of fine and imprisonment) is limited to the ill and not to the good use and practice.[[88]]
2. Admitting that 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 five pounds. 2. The plaintiff was summoned to appear before the President and Censors, and for not appearing was fined five pounds, 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,[[89]] and yet the fine is limited to be paid to themselves, &c. and for nonpayment they have imprisoned him.
4. They ought to have committed the Plaintiff immediately, though no time be limited in this 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. And this is well proved by a judgment in Parliament in the same case; for when this act of 14. Hen. 8. had given the Censors power to imprison, yet it was taken so literally, that the gaoler was not bound to receive such as they should commit to him, because they had authority to imprison without any Court; and thereupon the Statute 1 Mary, cap. 9, was made to compel the gaoler to receive them under a penalty, and yet none can commit to prison unless the gaoler receives him; but the 14 Hen. 8, was taken so literally that no necessary incident was implied.
And it being objected, the 1 Mar. Cap. 9. had enlarged the power of the Censors, as appeared by the words of the act; it was clearly resolved, that it does not enlarge their power to fine and imprison for any matter not within the 14th Hen. 8. the words of the act of Queen Mary, being “according to the tenor and meaning of the said act.” And further, “shall commit any offender, &c. for his, &c. offence or disobedience, contrary to any article or clause contained in the said grant or act to any ward, gaol, &c.” And in this case, it does not appear by the record, that the plaintiff has done any thing contrary to any article or clause within the grant or act of 14th Hen. 8. and for the two last points judgment was given for the plaintiff, Nullo contradicente as to them. Michss. Term. 6 James.
The Lord Chief Justice, Sir Edward Coke, in the conclusion of his argument, observes these seven rules for the better direction of the President and Commonalty of the said College for the future.
1. That none can be punished for practising Physic within London, but by forfeiture of five pounds a month, which is to be recovered by law.
2. If any practise Physic there for less time than a month that 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 this is traversable.[[90]] For though they have Letters Patents and an Act of Parliament, yet inasmuch as the party grieved has no other remedy, neither by writ of error or otherwise, and they are not made judges, nor a court given to them, but have authority only to do it, the cause of their commitment is traversable in action of false imprisonment brought against them.
Chief Justice Holt, in delivering the opinion of the Court, said that notwithstanding the opinion in Dr. Bonham’s case, the charge of male administration of physic is not traversable, and that my Lord Coke’s opinion in that case was but Obiter, and no judicial opinion: besides that he seemed to have been under some transport, because Dr. Bonham was a graduate of Cambridge, his own mother university. And he himself after in the same case says, that if the Censors do convict a man for such offence, they ought to make a record of it; and that, they cannot do unless they are Judges of Record: and then we say their proceedings are untraversable, and they unpunishable for what they do as judges. 12 Mod. 388. Pasc. 12 Will. 3. in the case of Doctor Grenville against the College of Physicians.
That Graduates of the two Universities have no privilege to practise in London, and within seven miles circuit,[[91]] has been repeatedly decided; see Doctor Levet’s case, Lord Raymond’s Rep. 472; The Coll. of Physicians against West 10, Modd 353 and Appx. That by Graduates is meant Graduates in Physic only. See College Questions. Appx.
The case of Doctor Bonham,[[92]] which we have been the more particular in citing as it contains much learning on the subject of our enquiries, and is reported by the first authority of his time, having shown that the College cannot fine or imprison for unlicenced practice, but must proceed by action in the ordinary Courts for the statutable penalty of five pounds a month, we must next show by what name the College ought to sue, for upon this point much difference of opinion and practice appears to have prevailed. In the case of The President and College of Physicians v. Talbois, exceptions were taken that the action should be by the President alone. But per curiam, “being a Corporation, it is natural for them to sue by their name of creation.” 1 Lord Raymond, p. 153. Hil. Term 8 & 9, Will. 3. See also The President and College of Physicians v. Salmon, B. R. Trin. Term 13 Will. 3. 1. Ld. Raym, p. 680; 5 Mod. 327; and this appears to be the best rule. In the previous case of The President of the College v. Tenant. Hill. Term. 11 James, Bulstrode’s Rep. Part. 2, p. 185, the action was brought by the President alone, on which the Judges were divided in opinion, Haughton Justice saying, “he may here well bring the action alone in his own name,” but the Declaration being bad in other respects, the rule of the Court was, Quod querens nil capiat per Billam. The Entry in Rastal, p. 426, is in favour of the doctrine that the President may sue alone, as is also the case of Doctor Laughton v. Gardner, 4 Croke, p. 121. Trin. Term. 4 James, and more especially the consequent case of Doctor Atkins v. Gardner, 2 Croke, 169 Pasc 5 James, where Dr. Laughton having brought an action of debt on the Statute, as President of the College obtained judgment Nisi, but dying before execution, his successor Doctor Atkins, brought a scire facias against the defendant to have execution, it was therefore demurred because the scire facias ought to be brought by the executor or administrator of him who recovered and not by his successor; but the Court held that the successor might well maintain the action, for the suit is given to the College by a private Statute, and the suit is to be brought by the President for the time being, and he having recovered in right of the Corporation, the law shall transfer that duty to the successor of him who recovered and not to his executors. 1 Rolle Abr. 515.
The penalties are to be recovered by action of debt in the President and College v. Salmon; I Ld. Raym, p. 680.[[93]] an exception was taken that the proceeding should be by information at the suit of the king, but the Court decided that where a certain penalty is given by a statute the person to whom, &c. shall have debt by construction of law. Another exception was taken in the same case, that the action ought not to be brought tam quam, no action being given to the king. Sed non allocatur. For per curiam, the precedents are the one way and the other. See Butler v the President Cro. Car. 256. and cases there cited.[[94]]
The words of the Statute of Henry being strongly prohibitory, none may practise physic under any authority, in London and within seven miles without licence of the College; in the College of Physicians v. Bush. 4 Mod. p. 47. the defendant pleaded letters patents of king Charles the second, by which free liberty is given to French protestants to exercise the faculty of Physic in London and Westminster, &c. and that he was a French protestant. Upon demurrer the plea was held ill. For a Charter or Letters Patent cannot vary an act of Parliament.
The next material point to be considered is, what is a practising of Physic within the meaning of the statutes; this would at first sight appear to be a very simple question, but the act of the 34th Hen. 8. which gives liberty to persons not being Surgeons, to administer outward medicines in certain cases, and drinks for the Stone, Strangury, and Ague, created some difficulties; it was pleaded in the case of Doctor Butler against the President of the College, (Cro. Car. 256,) to which plea the President replied by showing the Statute of the 1 Mary, c. 9. which confirms the Charter and Statute of the 14th Hen. 8. and appoints that it shall be in force notwithstanding any Statute or Ordinance to the contrary; on this several questions arose; those which relate to the special pleading of the case we omit, but the interpretation of the Statutes is material; it was doubted first whether the 34th Hen. 8. did repeal any part of the 14th as to Physicians, or whether as the preamble recites, it was directed against Surgeons, and next whether if it were in any degree repealed, the Statute 1st Mary did not revive the 14th and repeal the 34th. “Richardson, chief Justice, conceived it was repealed by primo Mariæ, by the general words, any act or Statute to the contrary, of the act of decimo quarto Henrici Octavi, notwithstanding. But I (“loquitur Croke,”) conceived that the act of tricessimo quarto Henrici Octavi, not mentioning the Statute of decimo quarto Henrici Octavi, was for Physicians; but the part of the act of tricessimo quarto Henrici octavi, was concerning Chirurgions and their applying outward medicines to outward sores and diseases, and drinks only for the Stone, Strangury and Ague; that Statute was never intended to be taken away by primo Mariæ. But to this point, Jones and Whitlock, would not deliver their opinions; but admitting the Statute 34 Hen. 8. be in force, yet they all resolved, the defendant’s[[95]] plea was naught, and not warranted by the Statute; for he pleads, that he applied and ministered medicines, plaisters, drinks, Ulceribus Morbis et Maladiis, Calculo Strangurio, Febribus et aliis in Statuto mentionatis; so he leaves out the principal word in the Statute (Externis), and doth not refer and shew that he ministered potions for the Stone, Strangulation or Ague, as the Statute appoints to these three diseases only and to no other; and by his plea his potions may be ministered to any other sickness; wherefore they all held his plea was naught for this cause, and that judgment was well given against him; whereupon judgment was affirmed.” This case is reported more fully in Brownlow, p. 126. See also Goodall, p. 221 to p. 259.
But though this statute 34 Hen. 8th gave a very considerable latitude to unlicensed practice, the decision of the House of Lords in the case of Rose has rendered it yet more difficult to determine what is a practising of Physic within the statute 14 Hen. 8th.
This case arose on an action in the King’s Bench for practising Physic within seven miles of London without licence; the case upon a special verdict was, that the Defendant being an Apothecary by trade was sent to by John Seale[[96]], then sick of a certain distemper, and he having seen him, and being informed of the said distemper, did without prescription or advice of a Doctor and without any fee for advice, compound and send the said John Seale several parcels of physic as proper for his said distemper, only taking the price of his drugs; and if this were a practising of physic, such as is prohibited by the Statute was the question: and after several arguments the Court at last unanimously agreed, That practising of Physic within this statute consists, 1st, In judging of the disease and its nature, constitution of the patient, and many other circumstances. 2ndly, In judging of the fittest and properest remedy for the disease. And 3dly, In directing and ordering the application of the remedy to the diseased. And that the proper business of an Apothecary is to make and compound, or prepare the prescriptions of the doctor pursuant to his directions. It was also agreed, That the Defendant’s taking upon himself to send physic to a patient as proper for his distemper without taking ought for his pains, is plainly a taking upon himself to judge of the disease and fitness of the remedy, as also the executive or directing part. Et per tot. Cur. The Plaintiff had judgment. 6 Mod. 44. 16 Vin. Abr. 341. Against this judgment the Defendant Rose brought a Writ of Error to the House of Lords, “That judgment having been given in the Queen’s Bench against the now Plaintiff on a special verdict, he humbly hopes the same shall be reversed for these reasons:
“That the consequence of this judgment will entirely ruin the Plaintiff in his trade, and indeed all other Apothecaries, since they can’t (if this judgment be affirmed) use their professions without the prescript or license of a Physician.
“That the constant use and practice[[97]] which has always been with the Apothecary, shall as we humbly hope be judged the best expounder of this Charter: and that selling a few lozenges, or a small electuary, to any asking a remedy for a cold, or in other ordinary or common cases, or where the medicine has known and certain effects, may not be deemed unlawful, or practising as a Physician, when no fee is taken or demanded for the same.
“That the Physicians by straining an Act made so long ago, may not be able to monopolize all manner of Physic solely to themselves; and the rather, for that such a construction will not only be the undoing of the Apothecaries, but also,
“1. A tax on the Nobility and Gentry, who in the slightest cases, even for their servants, can’t then have any kind of medicines, without consulting and giving a fee to one of the College.
“2. An oppression to the poorer families not able to go to the charge of a fee; the suppressing of the Apothecaries being to deprive such poor people and families of all manner of assistance in their necessities.
“3. A certain prejudice to all sick persons on sudden accidents, and new symptoms arising, especially in acute diseases, and in the night, wherein if the Apothecary is called, and shall dare to apply the least remedy, he runs the hazard of being ruined, or the Patient the danger of being lost.”
“For all which, and several other errors in the Record, it is humbly prayed,” &c. &c.
It must be observed that these reasons turn on the policy and not on the law of the question, and would have been better addressed to the House of Peers in their legislative, than in their judicial capacity; the hardship of depriving the Apothecaries of all practice, and the inexpediency of too strictly enforcing the statute of Henry 8th, might have justified an application to the Legislature for an alteration of the law, but they could not warrant even the highest tribunal in the land in departing from the law established by Act of Parliament, and gravely decided by the judges; we must therefore conclude that some better arguments were adduced on the hearing than have been handed down to us by the reporters; for if seeing the patient, judging of the complaint, and administering the proper remedies for it, be not a practising of Physic within the meaning of the statute, we must confess ourselves utterly at a loss to define the practice which is. It is a futile and unworthy subterfuge to allege that no fee is taken for advice, and that the sum charged is only the price of the drugs, for the contrary is evident; the poacher might as well pretend (as has been done) that he sells the basket at his own price, and throws the hare into the bargain, as a compliment to the purchaser,—or the vender of nostrums might attempt to avoid the stamp duty by selling the bottles and giving the physic. We are very far indeed from wishing to put unfair restraints on trade, or to deprive any class of men of the free exercise of their professional abilities, but as the Legislature has deemed it necessary to guard the corporeal health of the people, by enacting that only persons who on examination by a competent authority have been found of sufficient ability shall practise, we have thought it our duty to point out the law as it stands, and if in doing so we are occasionally obliged to hint at defects, we do it in the hope that by drawing abler attention to a neglected subject, we may incidentally give rise to some improvements, beneficial not only to the public at large, but ultimately profitable to those who, at the first glance might think themselves injuriously affected by them.
We have noticed that the reasons alleged by Writ of Error against the judgment of the Court of King’s Bench in the case of The College of Physicians against Rose, do not appear to us to have been legally satisfactory, the judgment of the King’s Bench[[98]] however was reversed, (see 1 Brown’s Parl. Ca. 78. and Appendix, 126), and consequently the greater portion of the practice of Physic has been transferred to the Apothecaries. This was for some time a very serious evil; they who had been educated as mere compounders, suddenly became prescribers of medicine; it is easy to conceive how large a portion of ignorance and empiricism was thus let loose upon the public: the mischief has indeed gradually decreased, as many men of liberal education have entered the field thus enlarged for them, and the natural effect of competition has induced improvement; still something is wanting. In large towns and among the higher and middle classes of society, talent and mediocrity soon find their proper levels; but at a distance in the country, ignorance and imposture may erect their stages at least with impunity, and more than probably with success; we have ourselves heard most lamentable accounts of the mal-practice to which the poor and ignorant have been subjected by low country practitioners and their assistants; for the interpretation of the law which let in the Apothecary to unrestrained practice, could not exclude the apprentice, and we therefore find the shop-boy in cases of emergency visiting and prescribing for his master’s poorer patients.
For these, among other reasons, the Apothecaries’ Company have obtained an Act of Parliament to alter and enlarge the powers of their Charter. “And whereas much mischief and inconvenience has arisen from great numbers of persons in many parts of England and Wales exercising the functions of an Apothecary who are wholly ignorant, and utterly incompetent to the exercise of such functions, whereby the health and lives of the community are greatly endangered; and it is become necessary that provision should be made for remedying such evils; Be it therefore, &c.” This passage, from a Statute solicited by the Apothecaries themselves, will exonerate us from any imputation of illiberal remark; we sincerely hope that the Act will produce the intended benefit, though when we have occasion to treat of it more at large under the head of the Apothecaries Company, we may have occasion to point out some particulars in which we think it might be amended.
We have thus cited the leading cases on unlicensed practice, and the authorities which we have quoted will enable the medical reader desirous of better information, to pursue the enquiry to the fountain head. “Melius est petere fontes quam sectare rivulos.”
The next branch of the jurisdiction of the College is yet more important, as it extends to the control and punishment of Mala Praxis[[99]], whether by persons licensed or unlicensed. On this head the leading case is that of Groenvelt and Burwell[[100]], (1 Comyns 76: 1 Salk 396; see Appendix). A complaint having been made to the College of Physicians, informing them that Dr. Groenvelt had administered Cantharides in powder, he was summoned before the Censors and by them committed for mala Praxis; for this imprisonment he brought his action in the King’s Bench, Trin. 12 Will. 3. from which it appears that “The Censors of the College of Physicians in London are impowered to inspect, govern, and censure all Practisers of Physic in Civitate London and seven miles round, so as to punish by fine, amerciament, and imprisonment. Per Holt Ch. J. the Censors have a judicial Power; for a power to examine, convict, and punish, is judicial, and they are judges of record because they can fine and imprison, and being judges of the matter, what they have adjudged is not traversable.”
In mala Praxis it matters not whether the party offending be a member of the College, a Licenciate, or an unlicensed Practitioner, for the Statute gives jurisdiction over all Physicians whatsoever, “habeant supervisum et scrutinium, correctionem et gubernationem omnium et singulorum dictæ civitatis medicorum utentium facultate Medicinæ in eadem civitate ac aliorum medicorum forensicorum quorumcunque facultatem illam medicinæ aliquo modo frequentantium et utentium infra eandem civitatem et suburbia ejusdem sive infra septem miliaria in circuitu ejusdem civitatis,” and Ch. J. Holt says, “Though a person be not one of the College, yet if he practise Physic within their jurisdiction, he ought to subject himself to the law as well as any other.” 12 Mod 393. And for those who are not Physicians but have assumed the character, they must take it cum onere, and will be estopped from pleading the illegality of their practice when punished for the irregularity of their prescriptions: it is to be wished however that the words of the Charter were more explicit in this particular.
Nor are the Censors liable to any action for error in judgment, for “though the Pills and Medicines were really Salubres Pilulæ et bona Medicamenta, yet no action lies against the Censors; because it is a wrong judgment in a matter within the limits of their jurisdiction, and a judge is not answerable, either to the king or the party, for the mistakes or errors of his judgment, in a matter of which he has jurisdiction: it would expose the justice of the nation, and no man would execute the office upon peril of being arraigned by action or indictment for every judgment he pronounces.” (1 Salk, 397).
“Holt Ch. J. said, it seemed to him that the Censors may tender an oath as a necessary consequence of their judicial power; but said he would give no positive opinion.” Dr. Grenville v Coll. of Phys. 12 Mod. 392. 16 Vin. Ab. 345. the general rule is, that where a statute confers a power, the law supplies all necessary incidents required for its execution.
By the 10th Geo. 1. cap. 20. s. 7. Where any person is condemned by the Censors for not well executing, practising, or using the faculty of Physic, he may within fourteen days after notice appeal to the College, and the judgment given on such appeal shall be final. Sect. 3. of the same act gives a similar right of appeal to Apothecaries. But this Act, as we have before observed, has expired; should its enactments ever be revived, this right of appeal should not be omitted, for it is expedient that some control should be exercised over all summary jurisdictions. To the policy of the 3d and 6th sections we cannot so readily give our assent; the one exempts drugs in merchants warehouses from search, and the other enacts that Patentees for the sole making any medicine shall not be prejudiced thereby. By the first of these the Censors are excluded from some known manufactories of factitious drugs, and an important security is taken away from our export trade, for it is evident that foreigners would more readily buy the drugs which have passed through our hands, if they were assured that their quality had been subjected to strict and competent scrutiny. To Patent Medicines we may be allowed to avow our most decided hostility, and as it is notorious that the greater part of them are not made up according to their specifications, we may without charge of illiberal prejudice claim for the public some security that the preparations which they buy as “mild vegetable extracts,” may not be clandestinely poisoned with Antimony, Mercury, and Arsenic. It may be said that the public have a remedy by the forfeiture of the Patent consequent on the falsehood of the specification, but this can only be effected by an expensive process to which the mere purchaser of a phial of trash may not choose to subject himself, even if he have skill enough to detect the fraud practised upon him.[[101]]
We have thus shown by repeated precedents that none can legally practise Physic in London, or within seven miles circuit of the city, who are not either Fellows or Licenciates of the College, nor can any, except Graduates in Physic of Oxford and Cambridge, lawfully practise in the country, without a similar license; yet, as the Act of Parliament has annexed no specific penalty to the transgression, the only remedy in such case is by indictment for a misdemeanor: for where there is no punishment attached by statute to the violation of a prohibitory clause in an Act of Parliament, this indictment lies. (See 4 Term Rep. 202.)
Unfortunately the history of the College litigations does not cease with their proceedings against unlicensed practitioners; they have also had to contend, on the defensive, with their own Licenciates, who have claimed a full participation in the rights and privileges of the Fellows:[[102]] we hope most earnestly that the question is now at rest, and that the cases we are about to cite may serve as beacons to avoid past errors, not as precedents for future proceedings.
“It would require a volume,” says Sir James Burrows, vol. 4. p. 2186, “to give a full and particular detail of this long contest between the Fellows and the Licenciates; which was litigated with great spirit and eagerness between several very learned and respectable gentlemen of the faculty on both sides. It must not therefore be attempted within the compass of a collection, already perhaps too faulty in this respect[[103]], as being in many instances more minute and circumstantial than may appear absolutely necessary, or at all agreeable to some readers.”
“The substance of it ought not however to be omitted, which was as follows.”
“A rule had been obtained upon the application of Doctor Letch for the College of Physicians to shew cause why a mandamus should not issue, directed to them, commanding them to admit John Letch, Doctor of Physic, to be a member of the College.”
“This Rule was made upon the whole body of the College or Community of the Faculty of Physic of the city of London; and also on the President and Censors of the said College.”
“Mr. Yorke against the Rule, Sir Fletcher Norton for it.”
“The short state of the material facts, with respect to this mandamus, was, that Doctor Letch, who practised as a Man-Midwife,[[104]] was summoned by the College to be examined. He thereupon came in, and was examined thrice at the comitia minora: And after the third of these examinations, he was there balloted for ‘Whether he should be approved of by them or not.’ A dispute arose upon this ballot. The majority of the number of balls appeared to be for approving him: but one of the Censors declared ‘that he had by mistake put in his ball for approbation; which he meant and intended to be against approving him.’ It was proposed to ballot over again, but the President declared this to be an approbation by a majority of votes on the ballot. On Doctor Letch being proposed to the comitia majora, nineteen to three of the members present were against putting the College Seal to his letters testimonial. And he was informed that he was not elected.”
“His Counsel insisted that having been returned sufficient by the comitia minora, he had already acquired an inchoate right to admission, which the Court would enforce the completion of, by mandamus.”[[105]] For the argument and authorities vide Rex v. Askew ubi supra and Appendix.
“Lord Mansfield in his judgment laid down the following among other rules.”
“The Court (i. e. of King’s Bench) has jurisdiction over Corporate Bodies to see that they act agreeably to the end of their institution.”
“Where a party who has a right has no other specific legal remedy, the Court will assist him by issuing this prerogative writ (i. e. mandamus) in order to his obtaining such right.”
“But it is not a writ that is to issue of course, or to be granted merely for asking.”
“The College are obliged in conformity to the trust and confidence placed in them by the Crown and the public, to admit all that are fit; and to reject all that are unfit.”
“The judgment and discretion in determining on skill, learning, and sufficiency to practise physic, is trusted to the College, and the Court will not interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious or biassed; much less warped by resentment or personal dislike.”
“It is possible that other causes of rejection than insufficiency of skill may occur, as badness of morals, for instance; of these the Court will judge.”
“If they should refuse to examine the candidate at all, the Court will oblige them to do it.”
“The power (of admission) remains with the body; and the examination by the President and four Censors is only preparatory, and for the ease of the body at large.”
“Every Fellow may examine and argue with the candidate in the comitia minora though he has no vote there.”
“The delegation to the comitia minora to examine is good.”
“Mr. Justice Aston followed Mr. Justice Yates in saying that Doctor Letch should 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.”
“The comitia majora acted with great moderation in admitting him to another examination.
“Mr. Justice Hewit declined giving any opinion (on a point started in argument) whether London Licenciates are members of 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 within London and seven miles round is a member of 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, Sir Fletcher Norton (afterwards Lord Eardly) moved for a Rule upon Dr. Askew and others (the four then Censors), for them to shew cause why an information in nature of a quo warranto should 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 the whole body, these gentlemen had been elected only by a select body; namely by the Fellows, exclusive of the Licenciates, who demanded 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 Sir Fletcher Norton, Mr. Morton, Mr. Wedderburn (afterwards Lord Roslyn,)[[106]] Serjeant Glynn, Mr. Walker, and Mr. Mansfield (afterwards Chief Justice of the Common Pleas), were heard for the Licenciates, and Mr. Yorke (afterwards Lord Chancellor), Mr. Dunning (afterwards Lord Ashburnham), Serjeant Davy, Mr. Ashurst (afterwards a Judge), and Mr. Wallace for the College, Lord Mansfield delivered his opinion.[[107]] “The question now before us is singly this, Whether the persons applying for the information are Fellows and entitled to vote in the election of Censors. If they are, the election of these Censors, being made in exclusion of their votes, is not 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 these Licenciates are 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 of by-laws and long-usages; and the permission of these Licenciates to practise is not disputed. But I doubt whether this permission to practise, and these letters 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 the Act 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 a right to be admitted into the Fellowship; he has a claim to several exemptions, privileges, and advantages, attendant upon admission into the Fellowship; and not only the candidate himself, if found fit, has a personal right, but the public has also a right to his service; and that not only as a physician, but as a censor, as an elect, as an officer in 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 in London and yet not be Fellows of the College. The President was to overlook not only the College, but also “omnes homines ejusdem facultatis.” So when the College or Corporation were to make by-laws, these by-laws were to relate not only to the Fellows, but to all others practising physic within London or 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, a partial license was granted to an occulist. A person may be fit to practise in one branch who is not fit to practise in another. Licenses have also been granted to women.[[110]] Partial licenses have been given for above 200 years.[[111]] In 1581 notice is taken of three 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 the sense in which their license is given to them and received by them. They cannot avail themselves of their instruments in this way: it would be a cheat upon 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 them ipso facto Fellows, they could not vote in the election of Censors before their admission 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 was obiter) 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. Justice Yates concurred with the Chief, as did Mr. Justice Aston on 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 a liberal manner; 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 faculty within 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, were to be of the community.” He should, however, give no opinion, he said, how it might turn out upon a mandamus.
Mr. Justice Willes, confining himself to the subject in question, concluded, “they cannot before their admission maintain this rule.”
Lord Mansfield and Mr. Justice Yates said they gave no opinion how it might be upon a mandamus.
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, Sir F. Norton and Mr. Norton moved the Court on behalf of Doctor Edward Archer, and Mr. Walker on behalf of Dr. Fothergill, for writs of mandamus, 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 licenses under the by-law of 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 accepted under 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 Doctor Stanger. (7 Term Rep. 282, which as the most recent decision, and for the luminous judgment of Lord Kenyon, we have inserted in the appendix.) This, like the cases in Burrows, was argued by the most celebrated lawyers of the day, Mr. Serjeant Adair, Mr. Law, (afterward Lord Ellenborough) Mr. Chambre, (afterward a Judge) Mr. Christian, (now Chief Justice of Ely) 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 of Chester) against it. The rule for a mandamus was 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 in London and 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]]