“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.”