Medical Jurisprudence, Volume 3 (of 3)

by John Ayrton Paris; J. S. M. Fonblanque

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Doctor Stanger, after referring to the above statutes (3 Hen. 8: 14 & 15 Hen. 8) and Charter, stated in his affidavit that in 1783 he took a degree of doctor of physic at Edinburgh after a residence there for three years, and after having studied physic there and at other places for many years; that afterwards he went abroad to France, Italy, and Germany, and studied physic there for several years more. That in 1789 he obtained a licence from the college of physicians here in the usual way to practise in London and within seven miles thereof, and that he has practised ever since. That in June 1796 he applied to the president and college at their general meeting to be admitted by them to be a member of their corporation, submitting himself to be previously examined by them concerning his qualification and fitness to be admitted a member of the corporation, which the college refused. Dr. Stanger also added in his affidavit that he was duly qualified and fit to be admitted a member of the college.

The affidavits in answer to the rule disclosed the following (among other) facts. For two hundred years past there have been three classes of persons practising physic in London and seven miles round; the fellows; candidates, persons desirous of becoming members and who have been examined and approved by the president and censors to be candidates for election into the society or fellowship; and the licentiates, who may practise as fully in all respects as fellows and have the same benefits and advantages. Various bye-laws have been made by the college respecting the qualifications of persons to be admitted fellows, one of them so long ago as 1637, by which it was ordained that no person should be admitted a fellow unless he had performed all his exercises and disputations in one of our universities without dispensation, and which has continued ever since with some little alterations. To prevent any mistakes arising from the words “aliquâ Britanniæ Academiâ” in some of the bye-laws respecting this qualification, an explanatory bye-law was made in 1751, in which it was declared that the meaning of the words was that no person should be admitted who was not a Doctor of Physic of Oxford or Cambridge. The bye-laws of the college have been revised and altered since the year 1768. By those now in existence no person can be admitted a fellow unless he has been a candidate for a year, except in certain cases hereafter mentioned. No person can be admitted into the class of candidates unless he has been created a Doctor of Physic in the university of Oxford or Cambridge, or unless he has obtained the same degree in the university of Dublin and has been incorporated into one of the universities of Oxford or Cambridge; nor can any such person be admitted into the class of candidates until after he has been examined as to his knowledge of physic in three of the greater or lesser meetings (called the comitia majora and comitia minora) of the college. After a person has been a candidate for a year, he may be proposed by the president at one of the greater meetings and admitted a fellow, if the majority of fellows consent, without further examination. But by two other bye-laws persons not having the above qualifications may be proposed in one of two ways; by one, the president is enabled once in every other year at the comitia minora to propose one licentiate of ten years standing, who may (if the major part of the comitia minora consent) be proposed by the president at the next comitia majora to be elected a fellow, and if the majority of fellows then present consent, he may then be admitted a fellow. By the other, any one of the fellows may propose any licentiate, of seven years standing and of the age of 36, in the comitia majora to be examined; if the major part of the fellows consent, such licentiate may be examined by the president or vice-president and censors, and if approved by the major part of the fellows then present, he may be proposed at the next comitia majora to be a fellow, and admitted if the majority of the fellows then present consent. The ordinary greater meetings (comitia majora) are holden four times a year, and consist of the president or vice-president and ten fellows at the least. The ordinary lesser meetings (comitia minora) consisting of the president or vice-president registar and censors of the college, are holden once a month. A letter was also inserted in the affidavits written by King Charles the Second to the college not to admit any person who had not had his education in either of our universities of Oxford or Cambridge: but it was admitted in the argument that no notice could legally be taken of this letter. It was also stated in the affidavits that Dr. Stanger, when he was licensed; gave his faith or promise to the college that he would observe the statutes of the college &c. in the usual mode.

Adair Serjt. Law, Chambre, and Christian, argued in support of the rule; and

Erskine, Gibbs, Dampier, and Warren, against it.

The case was argued very much at length on three several days: but it is unnecessary to give a detail of the arguments, as the Court in giving their opinions went into them. The points insisted upon by the counsel in support of the rule were these; 1st. That under the general words of the charter “omnes homines ejusdem facultatis” &c. Dr. Stanger, who came within that description by his license, had an inchoate right, which authorised him to tender himself to the college for examination in order that he might be admitted, if on examination the president and college thought him qualified; though they admitted that the president and college were the sole judges of his fitness. And they referred to the several dicta of Lord Mansfield and Aston J. in R. v. Dr. Askew and others, 4 Burr. 2169; 2202; 2193; 2202. Secondly, That the bye-laws requiring an education at either of our universities or at Dublin were illegal and void, on grounds of public policy, and also on the ground that they superadded a qualification not required by the Charter, 4 Burr. 2198, 9; 2203, 4; and that it narrowed the number of the eligible; R. v. Spencer, 3 Burr. 1827; and R. v. Cutbush, 4 Burr. 2204.

On the other hand it was insisted, 1st. That Dr. Stanger had no right to be examined in order to be a fellow, either as a licentiate, Dr. Archer’s case, 4 Burr. 2203; or as coming within the description “omnes homines ejusdem facultatis” &c.; but that the election into that body was a mere matter of grant or favor, for that the charter evidently marked out two descriptions of persons, the members of the college (the fellows) and all those who practised physic in London or within seven miles thereof, that the former were to superintend the latter; and that if the latter had also a right to be admitted fellows the distinction between the governors and the governed would be destroyed, and the very object of the charter and act of parliament, in giving to the fellows the superintendance of the others practising physic in and about London, would be defeated;—observing that the usage for a long period was in favour of this construction. 2dly, That Dr. Stanger, by giving his faith when he received his licence in 1789, was estopped to object to the bye-laws. But this point was abandoned in the course of the argument; it being considered that he was only bound to observe the bye-laws of the college that were not illegal. 3dly, That the bye-laws were neither against sound policy or law; and instances were alluded to of degrees taken in either of our universities giving privileges to the persons taking them in the other professions. And the counsel observed that the not having taken a degree in one of our universities was not an absolute bar to any person becoming a fellow of the college, there being two modes by which he might gain admission without that qualification.

Lord Kenyon, Ch. J. If in deciding this question it were necessary for us to answer all the arguments that have been urged at the bar, I should have desired further time to consider of the subject; but as the grounds on which I am warranted to determine the case lie in a very narrow compass, and I have formed my opinion upon it, I wish to put the question at rest now. By what fatality it has happened that almost ever since this charter was granted this learned body have been in a state of litigation I know not; and I cannot but lament that the learned Judges in deciding the cases reported in Burrow did not confine themselves to the points immediately before them, and dropped hints that perhaps have invited litigation; though indeed I cannot see what these parties are contending for that is worth the expense and anxiety attending this litigation. The public already have the benefit of the assistance of the licentiates; and their emoluments, the fair fruits of their education and advice, are just the same as those that the fellows of the college receive. We have however been pressed with the authority of those who have preceded us here: no person can have a greater veneration for those characters than I have, and if this point had been decided by them, I should have thought myself bound by their decision. But the cases are unlike. The principal ground on which it was said in 4 Burr. 2199. that the bye-laws of the college were bad was, that “they interfered with their exercising their own judgment, and prevented them from receiving into their body persons known or thought by them to be really fit and qualified;” and if I had found that objection existed in this case, I should have thought it fatal: but in the very sentence in which Lord Mansfield expressed himself as above, he added “such of them indeed as only require a proper education and a sufficient degree of skill and qualification may be still retained.” Two universities have been founded in this country, amply endowed and furnished with professors in the different sciences; and I should be sorry that those who have been educated at either of them should undervalue the benefits of such an education.

In this case it is admitted that a licentiate does not de facto become a fellow of the college: it is admitted that he must be first examined, and that those who are called the College of Physicians are to judge of his fitness. It seems that the appeal here is rather made ad verecundiam, and that Dr. Stanger could not be rejected if he were examined. If the college are not judges of the fitness of the person examined, I do not know who is. Then is this a reasonable test of the fitness of the party? possibly they might have framed a better, though I do not say that they could; but the question here is whether this is a reasonable bye-law? According to the concurrent opinions of all mankind it is. The Legislature have considered that persons who have taken their degrees in our universities are entitled to certain privileges in the church. So if we look into our own profession, those who have been educated at our universities have particular privileges; and though the inns of court are not corporations, yet their regulations shew that this has been considered as reasonable. It is not that a person becomes qualified from keeping his commons within the walls of the inns of court or the universities, but living with those of the profession will probably advance him in the knowledge of that profession for which he is a candidate. Again in the civil law; however competent any particular individual may be from extraordinary endowments or the exertion of superior talents, he must first take his degrees at one of our universities, and afterwards continue a year in a state of probation before he can practise. Those regulations that are adapted to the common race of men are the best: it does not follow that all institutions calculated for the ordinary classes are to be prostrated merely because they stand in the way of some few individuals of superior talents. Then the question is whether this is a reasonable bye-law that requires a degree to be taken at one of our universities, which in general is supposed to be conferred as a reward for talents and learning. If indeed this had been a sine qua non, and it had operated as a total exclusion of every other mode of gaining access to the college, it would have been a bad bye-law: but these bye-laws point out other modes of gaining admission into the college. If Dr. Stanger has all those requisites that qualify a person for that high station, any one of the fellows may now propose him; he may apply to the honourable feelings of the college, to the very same tribunal to which this mandamus (if it were granted) would refer him; for in all events he must submit to their examination and determination. In the profession of the church, we find that the bishops insist on having a testimonial of the person to be ordained signed by a certain number of clergymen; and though the bishops themselves may have the power of judging of the fitness of the person to be ordained it was never doubted but that this was one reasonable test of fitness, even before examination: it is a test to regulate their own conduct. So here I think this is a reasonable test. Therefore on this short ground, without entering into any of the other topics that have been argued, I am of opinion that these are good and reasonable bye-laws, and that we are bound to refuse the writ.

Ashhurst, J. Though this matter has taken a considerable time in the argument, it is now reduced to a narrow compass. The counsel who have argued for the issuing of the mandamus do not contend that a licentiate, as such, does ipso facto become a member or a fellow of the college: they only say that any man who is fit in learning and morals has a right to offer himself for examination, without any superadded qualification; and therefore that the bye-law requiring “that every licentiate, in order to entitle him to offer himself for examination, shall be a doctor of one of the two universities in England or that of Dublin,” is a void bye-law. It is not denied by counsel who have argued for the rule that the corporation have the right of making bye-laws for the regulation of their own body. And Lord Mansfield, on whose authority they ground themselves as in their favour, said in 4 Burr. 2199, “that such bye-laws as only require a proper education and a sufficient degree of skill and qualification may be still retained; that there can be no objection to cautions of this sort; and the rather if it be true that there are some amongst the licentiates unfit to be received into any society.” This brings it then to the question, whether the bye-law now under discussion is or is not to be considered as a bye-law of regulation. It does appear to me that in order to ensure a proper education and a competence in a learning, there cannot be a more likely method than the having spent fourteen years in one of our learned universities, and, after having been examined by persons competent to the subject, having been admitted to a doctor’s degree. This it should seem would prevent in limine the danger of that happening, which Lord Mansfield complains of, namely, of persons being admitted amongst the licentiates unfit to be received into that society. Indeed the Legislature so long ago as the passing of the act of the 14 and 15 Henry 8. seemed to shew their own opinion how much stress ought to be laid on such a kind of test; for there, in speaking of country physicians, the act says, “that no person shall be suffered to exercise or practise in physic through England until such time as he be examined in London by the president and three elects, and have from them letters testimonial of their approving and examination:” but then the act goes on with this exception (viz.) “unless he be a graduate of Oxford or Cambridge, which hath accomplished all things for his form without any grace.” This shews the opinion of the legislative body of that day; and the college might think it a very fit model for their imitation in the formation of the bye-law now under discussion, and that it would prevent them from having their time too much broken in upon by improper applications for examination. I would not be thought to infer that the gentleman now applying is in any degree deficient either in learning or education: but general laws cannot give way to particular cases; and as this law has been of some standing, we must suppose it has been found to be attended with general convenience, and therefore it should be abided by. I therefore concur in the opinion that the rule for a mandamus should be discharged.