Dr. Groenvelt vers. Dr. Burwell and others, Censors of the College of Physicians
 
(from 1 Comyns Rep. p. 75)

This was an action of trespass for an assault, battery, wounding and false imprisonment. The defendants as to the beating and wounding, plead not guilty, and as to the residue of the trespass they justify; for that by letters patent dated the 23 of September 10 H. 8 the king granted, that they, viz. the doctors of physick in London, should be a body and perpetual community, per nomen præsidentis & collegii five communitat’ facultat’ medicin’ London’, &c. and that they might make By-Laws; & quod quatour singulis annis eligerentur qui haberent scrutinium correctionem & gubernationem omnium & singulorum dictæ civitatis medicorum & aliorum medicorum forinsecorum facultate illa utentium infra eandem civitatem & suburbia, ac infra septem milliaria in circuitu ejusdem, ac punitionem eorundem pro delictis suis in non bene exercendo, &c. per fines amerciamenta & imprisonamentum corporum suorum; and that these letters patent were confirmed by an act of parliament of 14 H. 8. And that on the 1st of January 8 W. 3. the plaintiff exercised the art of physick in London, and that he administered bad and unwholesome physick to one woman and that the said woman and her husband complained to the defendants, being the censors of the said college; upon which complaint the plaintiff was summoned before them, and upon examination they found him guilty of administering unwholesome physick, by means of which the said woman languished; and thereupon they fined the plaintiff 20l. and made a warrant under their hands and seals to —— —— who was also a defendant, to take the plaintiff; who took him pursuant to such warrant and conveyed him to prison; which is the residue of the trespass of which the plaintiff complains. The plaintiff replies protestando, that there are no such letters patent, and no such act of parliament; and protestando, that the plaintiff did not administer such unwholesome physick; that the defendants of their own wrong committed the trespass; absque hoc quod, that the plaintiff was taken and committed by force of the said warrant: and to this it was demurred. And this case was divers times argued, and many exceptions were taken to the plea and to the replication; and now this term judgment was given for the defendants. And Holt C. J. delivered the opinion of the court; and said, that the rest of the Judges were agreed, that the replication of the plaintiff was ill, and that the plea of the defendants was good. The plaintiff in his replication traverses the taking by the warrant mentioned in the plea of the defendants; and this is ill both in substance and in form; for in point of form he ought not to traverse the taking by force of the warrant, but that there was not any such warrant; for if it were necessary that the arrest of the plaintiff should be by the same warrant that was mentioned before in the pleading that if the defendants had shewn in their plea another warrant than that which was shewn at the time of the arrest, the plaintiff ought not to have said, that he was not taken by this warrant but that there was not any such warrant. But the replication is not good in point of substance; for the plaintiff seems to intend, that the warrant by which he was arrested was unlawful, yet the plaintiff shall not have advantage of it, if there was another warrant which was lawful to take him at the same time; for if there are two warrants, the one lawful and the other unlawful, and the party is taken upon the illegal warrant, yet he who apprehends him may justify himself by the authority of the legal warrant; and this appears by the case Mich 34 Ed. 1 Fitz. Avowry, 232 cited 3 Co. 26. a. If a man takes a distress for a thing for which he has not good cause of distress, but had good cause of distress for another thing; if a replevin is brought, and he comes into court, he may avow for which thing he pleases. Then it was considered whether the plea of the defendants was good; to which it had been objected that it was ill for the uncertainty; for the cause of the commitment being traversable ought to be alleged with certainty. Secondly, That by the plea it appears, that the plaintiff was fined and imprisoned also; the censors (of the college of Physicians the defendants) have authority to impose a fine, and to imprison for non-payment of that fine, or they may imprison for the offence; but they cannot both fine and imprison for the same offence, as in this case; for it does not appear that the imprisonment was for non-payment of the fine but the plaintiff was both fined and imprisoned, and so was twice punished for one offence. Thirdly, the plea does not shew that the plaintiff was one of the college. Fourthly, The plea makes no answer to the assault; it does not shew that there was any assault, or set forth any justification of it. But Holt C. J. said that the Court held the plea to be good, for it goes to the whole declaration; as to the battery and wounding the defendants plead not guilty, as to the residue of the trespass they justify; and the residue of the trespass comprehends the assault, and every other part of the declaration to which the plea (of not guilty) does not extend: and there is no need that the plaintiff should be of the college; for it appears that he exercised his faculty within London and the censors have jurisdiction within London and the suburbs, and seven miles in circumference; and it appears by the words of the Charter, that the censors have power to punish by fine and imprisonment; and how they exercise that authority we do not enquire, as it will be apparent afterwards in the answer to the first objection, and which is the most material one. In answer to the first objection, then, we say, First that the cause of the commitment is not traversable. Secondly if it were traversable, it is set forth with certainty enough. That the cause of commitment is not traversable appears by the authority which the censors have by the act of parliament; for by it they are constituted judges of fact, what is a mal-administration (of medicines) and what is not: and they are judges of record for they have authority to impose fine and imprisonment; and when a new authority is constituted, with power to fine and imprison, the persons invested with such authority are judges of record; for that every thing proves a court to be a court of record, viz. the power of fining and imprisoning; for courts which are not of record can neither set a fine nor commit any one to prison. 8 Co. 38. b. And there it is proved, that the leet can impose a fine, because it is a court of record; and forasmuch as the statute W. 2. c. 11 impowers the auditors to commit the accountant to prison the auditors are thereby made judges of record; as is observed 10 Co. 103. a. 2. Inst. 218. Then the censors being constituted judges of the matter, that which they have done as such they shall not be answerable for; and that a judge shall not be answerable for an act done by him as a judge, appears by 12 Co. 24. and the cases there cited. True it is, that if a justice of(a) peace issue his warrant to imprison the party, or to arrest him until such time as he can be brought before him, or if the commissioners of bankrupts commit a witness for refusing to be examined(a) it may be determined in an action, whether they have pursued their authority or not; for their act in this respect is only ministerial;(b) and the commitment is not intended as a punishment, but only as a mesne process to bring the party to justice, or to make him do his duty. My Lord Coke, it is true, says in Dr. Bonham’s case, 8 Co. 121 a. that the cause of commitment was traversable; but this opinion was there given obiter, and was not essential to the case in judgment; for there the question was, for practising without the licence of the college, for which the party could not be imprisoned; and Dr. Bonham being a graduate in the university, my Lord Coke was carried away by his affection to his Alma Mater so far as to make a resolution in the present point, which was not in the case before him: but my Lord Coke says, that upon a conviction by the censors, they ought to make a record of it, which admits they are judges of record; and then by his own rule there in the case of a justice of peace who made a conviction of a force, and the cases in his other works, their acts (the acts of the justices of the peace) cannot be traversed; and my Lord Coke does not cite any authority in support of his opinion (as to the point now before us). The reason which he gives why the party has no remedy by writ of error or otherwise is of no weight: I grant that a writ of error lies not; for the censors having a new authority by a special act of parliament and their proceedings being directed to be in a summary way there is no need for them to pursue the forms and methods of others courts; and it is sufficient for them to make such summary proceeding as justices of the peace in many cases may do; yet the party is not without remedy for he may have a Certiorari to remove the record of conviction, and then it may be examined and reviewed, to see whether it be pursuant to their authority; for in every case where a new jurisdiction is set up for a special purpose this court by virtue of its original power may award a Mandamus to make them put their authority in execution, and a Certiorari to look into their proceeding whether it be conformable to their authority or not. Thus a Certiorari lies to remove an indictment for felony before the justices of the peace (bro. Eliz. 489. Long’s case) to remove orders before commissioners of sewers, or by justices of the peace who have authority to make conviction of a force in their presence, or for deer-stealing, but although no Certiorari did lie (in the present case) it is not consequential that the cause of their commitment is traversable; for if the parliament intrusts them with a power so great that no act of theirs shall be reversed or reviewed, there is the less reason that their proceeding should be examined or traversed in an action; a jury is not finable for giving a verdict against evidence; and though there are many cases where jurymen have been fined (1) yet Bushel’s case, in which all the others are cited, is sufficient to controul all the rest. Vauq. 135 (a) and if a juror shall not be fined or imprisoned or otherwise punished for refusing to find a man guilty upon apparent and plain evidence, much less shall a judge be liable to censure. In the case (b) of Hammond and Powell, P. 29 Car. 2 an action for false-imprisonment was brought after the resolution in Bushel’s case for his imprisonment (for Hammond was one of the same jury with Bushel and fined 40l. and imprisoned for it at the same time,) and notwithstanding that the fine and imprisonment were illegal yet it was adjudged that the action did not lie for false-imprisonment against the judge or the officer; so a fine imposed by a judge of a court is not traversable as an amercement is. 7 H. 6. 13. a. As to the case between Terry and Huntington Hard. 480 which may be objected; that is good law; for there an action was brought against the commissioners of excise, who had charged a man for the duty upon strong waters, where the liquor made by him was low wine of the first extraction, and the action well lay, for they had exceeded their jurisdiction; for low wines of the first extraction were not chargeable within the act of parliament; and if they had charged a duty upon a liquor not chargeable with it, they were not to be excused for having named it strong waters. If a justice of the peace commits a man for being the Father of a bastard child no action lies against the justice if the man was the father of a bastard otherwise if he had no bastard at all. So the case between Nickols and Walker, Cro. Car. 394, (a) is good law, for there an inhabitant of Tottridge was charged to the poor of Hatfield; and the justices of the peace have power to award a distress, where a person is assessed to the poor of the parish where he hath land or is an inhabitant; but where he is charged to the relief of another parish there the case is beyond their jurisdiction. But if the cause of the commitment were traversable yet the plea of the defendants here is good, for it shews with certainty in what the ill-administration of the physic consisted viz in the use of unwholesome drugs: and although it is not said what drugs he used, it is no matter, for how shall we be informed whether he has shewn them. In an action against a surgeon for an inartificial cure the plaintiff does not shew what plaisters the defendant used. As to what hath been said that the plea does not shew for what malady the medicines were given; it was answered that it would be so much the worse if the medicines were given when the party had not any malady at all. And although it is not said that the witnesses upon whose testimony the fine was imposed were upon oath, yet the plea is sufficient; for it may be that it was not necessary that they should be sworn or if it were needful the omission of it is not such as will make their proceedings void. In such a special jurisdiction in which the proceeding is to be in a summary manner it is not needful to observe all the circumstances which are necessary in other legal proceedings.—Judgment for the defendants.

The Question was, whether a Man, that had taken his Degree of Doctor of Physick, in either of the Universities, might not practise in London, and within seven miles of the same, without a Licence from the College of Physicians.

The Court clear of Opinion, that a Licence from the College was necessary; and that by reason of the Charter of Incorporation, confirmed by 14 & 15 Hen. 8. cap. 5. penn’d in very strong and negative words.

As to the Testimonials granted by the Universities upon a Person’s taking the Doctors Degree; the Court was of Opinion, That these Testimonials might have the Nature of a Recommendation; they might give a Man a fair Reputation, but conferr’d no Right; and consequently all those Statutes, which have confirmed the Privileges of the Universities, could revive or confirm nothing but the Reputation, that this Testimonial might give such Graduates.

And whereas it has been insisted, That by the last Clause of the Statute, it is said, That none shall practise in the Country without a licence from the President and three Elects, unless he be a Graduate of one of the Universities, it was said all the inference from that would be, That possibly two Licences may be necessary where a person is not a Graduate.

In the Case of Dr. Levet, Lord Chief Justice Holt did not think this a Question worth being found specially.

The College of Physicians are without doubt more competent Judges of the Qualifications of a Physician than the Universities, and there may be many good Reasons for taking a particular care of those, that practise Physick in London.

15^th March, 1703.

In the 10^th year of Hen. 8. the defendants were incorporated; and, in the letters patent granted for that purpose, which were confirmed by stat. 14 and 15 Hen. 8. c. 5. is, inter alia, the following clause: “Concessimus, etiam eisdem præsidenti et collegio, seu communitati, et successoribus suis, quod nemo in dicta civitate, aut per septem milliaria in circuitu ejusdem, exerceat dictum facultatem, nisi ad hoc perdict, præsidentem et communitatem, seu successores eorum qui pro tempore fuerint, admissus sit per ejudem præsidents et collegii literas sigillo suo communi sigillatas, sub pœna centum solidorum pro quolibet mense, quo non admissus eandem facultatem exercit, dimidium inde nobis et hæred. nostris, et dimidium dicto præsidenti et coll. applicandum.”

The plaintiff, who was an apothecary, and freeman of London, attended one Seale, a butcher, in the parish of Saint Martin in the Fields, and made up and administered proper medicines to him; but, without any licence from the faculty, and also without the direction of any physician, and without taking or demanding any fee for his advice.

The defendants apprehending this conduct to be an infringement of their privileges, brought their action against the plaintiff, to recover the penalty of 5l. per month, under the above clause in their charter; and, on the trial, the jury found a special verdict, stating the charter, the confirmatory statute, and the facts of the case; and submitted to the Court, whether the defendant Rose did practice physic, within the intent of the letters patent and act of Parliament.—And, after this verdict had been three several times argued in the Court of Queen’s Bench, the Judges were unanimously of opinion, that the facts found did amount to the practising physic, within the meaning of the act of Parliament; and gave judgment accordingly.

Hereupon, a writ of error in Parliament, was brought to reverse this judgment; and on behalf of the Plaintiff in error, it was argued, that the consequences of it would not only ruin him, but all other apothecaries; as, in case of the affirmance of this judgment, they could not exercise their profession, without the licence of a physician. That the constant usage and practice, which had always been with the apothecary, was conceived to be the best expounder of this charter; and, that therefore, the selling a few lozenges, or a small electuary, to any person asking a remedy for a cold, or in other ordinary or common cases, where the medicines had a known and certain effect, could not be deemed unlawful; or practising as a physician, when no fee was taken or demanded for the same. That the physicians by straining an act made so long ago, endeavoured to monopolize all manner of physic solely to themselves; and if they should succeed in this attempt, it would be attended with many mischievous consequences: For, in the first place, it would be laying a heavy tax on the nobility and gentry, who, in the slightest cases, and even for their common servants, could not have any kind of medicine, without consulting and giving a fee, to a member of the college: It would also be a great oppression upon poor families, who, not being able to bear the charge of a fee, would be deprived of all kind of assistance in their necessities: And, it would prove extremely prejudicial to all sick persons, who, in case of sudden accidents, or new symptoms, happening in the night-time, generally send for the apothecary; but who should not dare to apply the least remedy, without running the hazard of being ruined.

On the other side, it was contended, that by several orders of the college, its members were enjoined to give their advice to the poor gratis; and that not only to such as could come to them for it; but every physician, in his neighbourhood, was obliged to visit the sick poor, at their own lodgings; and therefore the objection, that, if the apothecaries could not administer physic but by the prescript of a physician, the poorer sort of people would be lost for want of proper remedies, had not the least foundation. And, when these orders were observed not to have their full intended effect, on account of the high prices which the apothecaries generally demanded for the remedies prescribed, whereby the poor were deterred from consulting the physician, for fear of the charge of the physic; the college, by a joint stock, erected several dispensaries in town, where, after the physicians had given their advice gratis, the patients might have the physic prescribed, for a third, and generally less, of what the apothecaries used to exact for it; by which expedient, many hundred persons of mean condition, received their cures at a very small expense, and without one farthing profit arising to the physicians. That in cases of sudden and immediate necessity, not only apothecaries, but any other person, might do his best to relieve his neighbour, without incurring the penalty of the law; but there was no reason why the apothecaries, under that pretence, should be permitted to undertake, at leisure, all dangerous diseases; and especially where, as in this city at least, a skilful physician may be as soon had as an apothecary. That, in common or trifling indispositions, the patients themselves were generally their own physicians; and would of course, send for any medicine, of which there had been common experience, for their cure, and which the apothecary might lawfully make up and sell; but, for the apothecary to be permitted to judge of diseases in their beginning, whether slight or not, and to order medicines for the same, would prove both dangerous, and more chargeable. Dangerous, because the most malignant distempers usually begin with apparently inconsiderable symptoms, and are many days before they appear in their proper colours; and, as apothecaries are not bred to have suitable skill, the management thereof ought not to be left to their judgment. And more chargeable, because, be the disease ever so slight, the apothecary will be sure to prescribe largely enough; and should he chance to mistake, then that distemper, which, by the discreet advice of a physician, might, by one proper medicine, have been eradicated at the beginning, runs out into great length, to the extreme hazard and great expense of the patient.

But, after hearing counsel on this writ of error, it was Ordered and Adjudged, that the judgment given in the Queen’s Bench, for the President and College, or Commonalty of the faculty of Physic, London, against the said Wm. Rose, should be reversed.

The King against the President and College of Physicians.
 
(From 7 Term Rep. p. 282)

This was a rule calling on the president and College or commonalty of physic in London to shew cause why a mandamus should not issue, commanding them to examine C. Stanger, M.D. as to his qualification and fitness to be admitted into the said Corporation as a member or fellow thereof.

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.

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.