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.