“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.”