Grose, J. This being a motion for a mandamus to a body incorporated by charter, we must see that we are authorised by the charter or the bye-laws to grant the application. On examining the charter, which was confirmed by act of parliament, we find that there was a select body of eight including the president, and an indefinite number of the commonalty. The election of the president is to be made annually by the college; so also is the election of the four censors. The intention of the crown was to put an end to the mischiefs occasioned by the ignorance of the unskilful practitioners; and for that purpose this corporation was created, with power of making bye-laws, of admitting skilful persons to practise physic, and of preventing all others practising: the great object was to admit only those to practise physic who were (to use the language of the act) “profound sad and discreet, groundedly learned and deeply studied in physic.” How or when the fellows are to be chosen or admitted is not directed by the charter: it is left to the discretion of the persons named in the charter under the general power given to them of perpetuating themselves and of making bye-laws. The charter is therefore silent both as to the election of fellows, and as to the examination of them before election: but the examination is incident to the power of election. The charter being silent on these heads, and the college having the power of making bye-laws, they have made bye-laws to ascertain a criterion of fitness of future candidates, by pointing out in some cases the mode of their education, in others the persons by whom they were to be proposed as candidates. One of these bye-laws is objected to as illegal, because it requires a degree to be taken at one of our universities, which (it is contended) is superadding a qualification to those required by the charter: but I think it is only ascertaining a criterion of fitness as has been done most properly in other professions in cases alluded to both at the bar and bench. Then it is said that a licenciate has an inchoate right: if by that Dr. Stanger’s counsel mean that he has one qualification which when added to others may give him a right of admission, I agree with them; but the college are to judge of the other qualifications: if by this inchoate right they mean any thing more, I dissent from them. It is admitted by this application that the college have a right to insist on an examination: and upon what ground? as a test of fitness—but though this right is not expressly given to them by the charter, nor is there a word denoting any obligation either to admit or examine, it is incident to their power of judging who is fit to be admitted. That Lord Mansfield thought that they have such a right incidently is clear from what fell from him in Dr. Askew’s case, in which he said, “It is true that the judgment and discretion of determining upon this skill ability learning and sufficiency to exercise and practise this profession is trusted to the college of physicians: and this Court will not take it from them in the due and proper exercise of it.” The same power that authorises them to judge of fitness also authorises them to regulate the mode by which they shall judge. They think, of which they are much better judges than we can be, that every man who is to be a candidate ought either to have taken his degree at one of our universities or in Dublin, or shall be proposed by one fellow, or by the president. The bye-laws requiring this do not appear to me unreasonable or inconsistent with the character any more than requiring a particular mode of education, and in the case so often alluded to Lord Mansfield thought such bye-laws were good; for when he recommended it to the college to revise their bye-laws, he said “Such of them indeed as only required a proper education and a sufficient degree of skill and qualification may be still retained.” In consequence of that opinion the college have reviewed and altered their bye-laws, requiring in some cases an education at either of our universities or at Dublin, in others permitting a nomination of persons as fit to be examined by men whom they deem worthy of such a trust, considering such degree and nomination merely as tests of the person taking it or named having skill and learning and being fit to be examined. And in making these bye-laws I think that the college have shewn a due attention to discharge their duty to the public and to attain the ends of their institution. Therefore I concur in the opinion already given that this rule ought to be discharged.

Lawrence, J. This is an application for a mandamus to compel the College of Physicians to examine Dr. Stanger in order that he may be admitted a fellow; and the foundation of the application is that he has been admitted to the practise of physic and is one of the homines facultatis within the meaning of the charter; which (it is said) gives him a right to admission, if on examination he shall be found fit; and that all the bye-laws militating against such right are illegal. His counsel have been under the necessity of insisting on the licence giving him a right to examination; for if the being admitted a member of the body be matter of election, it is immaterial whether the bye-laws be good or bad. It seems to me that the insufficiency of the provisions of the statute 3 Hen. 8. probably gave rise to this charter; the object of which was to establish a better mode of determining who were proper persons to be licensed to practise physic, and to prevent the practice of ignorant empirics; and if so, it was not necessary that all men of the faculty should be members of the body. All that was necessary was that it should be composed of a sufficient number of learned and discrete practisers of physic, who should have a power of continuing the succession in such persons as themselves, and that they should license proper persons and restrain unfit persons from the practice of it. If this were the object, is it natural to construe the charter as giving a right to all men of the faculty to become members of this body, when the charter speaks of men of the faculty in a sense contradistinguished from the members of the body; or to suppose that the Crown meant to incorporate all, when the charter was made for the government of some, who, if all were incorporated, could not exist? It is admitted that there were two distinct classes under the charter, and according to Dr. Stanger’s construction one class, that of the governed, would be extinguished. Another mode of construing the charter in the argument was by considering the words omnes homines ejudem facultatis to mean the individual members of the corporation: but if so, there would be no power given to make bye-laws to affect the licentiates; and the clause in the charter that gives the exemption from serving on juries speaks of the person exercising the faculty as contradistinguished from the members of the college; “nec presidens nec aliquis de collegio prædicto medicorum, nec successores sui, nec eorum aliquis exercens facultatem illam.” Therefore it seems to me that the homines facultatis are not the individual members of the college. Then it was said that there might be some persons who might not choose to become corporators, and that this would make a class to be governed: but that is improbable; it is not to be supposed that, as the principal object of the charter was to incorporate those who were skilled in physic and to prevent those from practising who were unfit, they to whom the charter was offered would refuse the advantages of this corporation, especially as the obvious means of constituting a body to consist of all would be to make it compulsory on the physicians to become members, as in the case with companies in some city and corporate towns, of which persons carrying on certain trades are obliged to be free. But seeing that there is in some degree an uncertainty as to the words “homnes ejusdem facultatis,” the usage that has prevailed ought to govern us in the construction of them, especially as the usage perfectly accords with the design of the incorporation. It is said indeed that the usage is in favour of Dr. Stanger’s claim: but that is not so; for there is no proof that before these bye-laws were made any persons were admitted into the body as a matter of right, and we must therefore take it that they came in by election. If Dr. Stanger claim as a matter of right, it must be under the words of the charter “quod ipsi omnesque homines ejusdem facultatis &c.” but if this gave him a right, the college could not resist his claim though he would not submit to examination. And if every homo ejusdem facultatis came within this description of claim, Dr. Archer would have had a right to be admitted. The charter does not say that all the men of the faculty, who on examination shall be found fit, shall be admitted; if it has said any thing in their favor, it has given them the right as soon as they become men of the faculty; it has directed no examination. Suppose by a charter all the weavers of a town were incorporated, they would all have a right to be admitted without any examination. If then all the men of the faculty within the limited district have a right from being men of the faculty, they possess all the fitness that the charter requires. This seems to me to be only a contrivance to get out of Dr. Archer’s case, and to set up a right on the ground of being a licentiate. In the course of the argument it was said that only those were to be admitted who were “profound sad and discrete, groundedly learned and deeply studied in physic:” but if so, it destroys the argument arising from the words “omnes homines ejusdem facultatis.” An argument has also been drawn from the statute 3 Hen. 8:, and it has been said that the persons licensed by that act were the only persons who at the time of the charter were men of the faculty, and that they and the six persons named were meant to be incorporated. But the words of the charter do not extend to all those persons; they are confined to the “homines de et in civitate prædictâ,” that is, to all men of and in the city of London practising physic: but this does not extend to persons practising in other places. Now if that construction had been adopted, it would have excluded the greater part of those who have been members of the college practising physic in Oxford, Cambridge, and other places beyond these limits, as not falling within the description of those persons of whom (according to the construction) the college is to consist.

Taking the whole of the charter and the usage this construction will reconcile all the difficulties; the intention of the Crown was to incorporate the six persons named in the charter and all men practising physic at that time de et in civitate prædictâ; and all those persons were entitled to admission: but the Crown did not intend to give any right to those, who might thereafter become homines facultatis, but intended that the succession should be continued by the power incident to all corporations to elect. Had the charter of incorporation nominated every man authorised to practise physic in London and given no directions as to the succession, they would have been authorised to continue themselves by election as they have done; and the charter has done the same thing in substance by incorporating the same persons by a general reference to their character and situation. This avoids all contradiction; it is consistent with the usage; and according to this construction no one is entitled as a matter of right but only by election. In making such elections there is a trust and duty to keep up the body by a choice of learned men sufficient to answer the purposes of the charter; and if this be done all the interest that the public have is consulted; they have no interest in this or that man being a member of the college: so long as the body is continued and there are proper censors elects and other officers, and so long as proper persons are licensed and improper ones restrained, the objects of the charter as far as concerns the public will be attained. We have been pressed however with the dicta of Lord Mansfield in R. v. Dr. Askew; very great deference is always due to whatever fell from him: but it is sufficient to say that this was not the point then before the Court, the only question there being whether licentiates were of the body.

On the other question respecting the validity of the bye-laws, I can hardly add to what has already been said by the Court; and therefore shall only say that I agree with them in thinking the bye-laws reasonable.

Rule discharged[[175]].

Return to a Habeas Corpus.
(Goodall. 467)

London. ss. Nos Johannes Warner & Thomas Adams Vic’ Civitat’ London, Serenissimo Domino Regi in brevi huic schedul’ annex’ nominat’ ad diem & locum in eodem brevi content’ Certificamus, quod ante adventum nobis praedict’ brevis scil’ duodecimo die Septembris Anno regni dicti domini Regis nunc Anglie &c. decimo quinto Christoferus Barton in dicto brev’ nominat’ commissus fuit Prisone dom’ Regis scil’ Computator’ scituat’ in Wood Street London prædict’ & in eadem Prisona sub custodia Isaaci Pennington & Johannis Woollaston tunc vic’ Civitat’ praedict’ & in eorum exit’ ab officio suo sub custodia nostra detent’ virtute cujusdam Warranti Otwelli Meverell, Laurentii Wright, Edmund Smith, & Willielmi Goddard in Medicinis Doctor’ & Collegii Medicor’ in London praedict’ custodi praedict’ Computatorii London praedict’ vel ejus deputat’ direct’ Cujus quidem Warranti tenor sequitur in hæc verba.

[A Copy of the Censors Warrant for the Commitment of Empiricks to prison.]

“ss. We Otwell Meverell, Lawrence Wright, Edmund Smith and William Goddard Doctors in Physick and Censors of the Collage of Physicians in London, being chosen by the President and Collage of Physicians aforesaid to govern and punish for this present year all offenders in the faculty of Physick within the City of London and the Suburbs thereof and seven miles compass of the said City, according to the authority in that behalf duly given by certain Letters Patents under the great Seal of England made and granted to the said Collage and Comminalty by the late King of famous memory King Henry the Eighth, bearing the date the 28th day of September in the Tenth year of his Raigne, And one Act of Parliament made in the 14th year of the said late King Henry the Eighth concerning Physicians Whereby the Letters Patents aforesaid and every thing therein are granted and confirmed: And by virtue of the said Act of Parliament and Letters Patents aforesaid and one other Act of Parliament made in the first year of the Raigne of our late Soveraigne Lady Queen Mary intituled An Act touching the Corporation of Physicians in London, did cause to be brought before us the sixth day of this instant September at our Collage house in Pater noster Rowe in London one Christofer Barton; and we have examined the said Christofer Barton, and upon his examination and other due proofs we have found that the said Christofer Barton hath unskilfully practised the Art of Physick within the City of London and Precinct aforesaid upon the bodies of Richard Ballady of Aldermary Parish London, Michael Knight of St. Buttolphs Parish Aldgate London and the child of one Jane Brigge and some others in the month of January in the year 1638, contrary to the Laws in that behalf made and provided; whereupon we have imposed upon the said Christofer Barton a fine of 20l. for his evil practice in Physick aforesaid; and we have also for the same cause sent you the body of the said Christofer Barton, Willing and requiring you in the King’s Majesties name to receive and keep him in safe custody as Prisoner, there to remain at his own costs and charges without bail or mainprize untill he shall be discharged of the said imprisonment by the President of the said Collage, and by such persons as by the said Collage shall be thereunto authorised according to the Statute in that behalf made, And this our warrant shall be your discharge. Given at the said Collage the eleventh day of September in the 16th year of the Raigne of our Soveraigne Lord King Charles.”

Otwell Meverell,