Rex versus Doctor Askew et Al'.

IN THE COURT OF KING'S BENCH

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Original Citation: (1768) 4 Burr 2186

English Reports Citation: 98 E.R. 139

Wednesday 27th April 1768.

Rex versus Doctor Askew et al', Censors of the College of Physicians. Wednesday 27th April 1768. Case of the Fellows and Licentiates of the College of Physicians.

It would require a volume, to give a full and particular detail of this long contest

* V. ante, p. 1289.

140 REX V. ASKEW 4 BURR. 2187.

between the fellows and the licentiates; which was litigated with great spirit and eagerness between several very learned and respectable gentlemen of the faculty, on both sides. It must not therefore be attempted, within the compass of a collection, already perhaps too faulty in this respect; as being, in many instances, more minute and circumstantial than may appear absolutely necessary, or at all agreeable to some readers.

The substance of it, however, ought not to be omitted : which was as follows.

A rule had been obtained, upon the application of Dr. Letch, for the College of Physicians to shew cause why a mandamus should not issue, directed to them, com¡manding them to admit John Letch, Doctor of Physic, to be a member of the college.

Thia rule was made upon the whole body of the College or Community of the Faculty of Physic of the City of London; and also upon the president and censors of the said college.

On Thursday 7th May 1767, Mr. Yorke shewed cause against this rule ; and Sir Fletcher Norton argued in support of it.

The short state of the material facts, with respect to this mandamus, was-that Dr. Letch, who practised as a man-midwife, was summoned by the college, to be examined. He thereupon came in ; and was examined thrice at the comitia minora: and after the third of those examinations, he was there ballotted for, " whether he should be approved of by them, or not." A dispute arose upon this ballot. The majority of the number of balls appeared to be for approving him: but one of the censors declared " that he had by mistake, put in his ball for approbation; which he meant and intended to be against approving him." It was proposed " to ballot over again." But the president considered and [2187] "declared this to be an approbation by a majority of votes on the ballot. On Dr.,Letch's being proposed to the comitia majora, nineteen to three of the members present were against putting the college-seal to his letters testimonial: and he was informed " that he was not elected."

His counsel insisted, that having been returned sufficient by the comitia minora, he had thereby acquired an inchoate right to admission; which the Court would enforce the completion of, by mandamus.

In this argument, the charter of the college appeared to bear date on 23d September 10 H. 8, (1518). And the following statutes were mentioned; 3 H. 8, c. 11, and 14 & 15 H. 8, c. 5. And some by-laws or statutes of the college: particularly, caput octavum, "de comitiis majoribus," and caput decinaum quartum. The former says- " Comitia vocamus congregationes illas et honestas, quas ut prsesidens et collegium sive commutiitas et eorum succesaores de seipsis habeant, Rex Henricus concessit. Ordinaria autem sive stata comitia, majora dicenda, quater anno celebrenter, &c. In comitiis majoribus fiaut electiones et admissiones sociorum, candidatorum et permis-sorum. Quod ver6 ad candidatorum et permissorum examinationes attinet, esb fieri possint vel in majoribus comitiis, vel in minoribus et censoriis, pro arbitrio prassidentis aut propraesidentis et censorum, aut eorum partis majoris." The caput decimum quartum (de examinationum et admissionum forma) enacts-" Antequam quispiara aut in candidatorum ordinem, aut ad medicinsa facultatem in urbe Londino et per septem millaria in circuitu ejusdem exercendam adtnittendus proponatur, examinetur in tribus comitiis, sive majoribus sive minoribus, pro arbitrio prfesidentis aut proprffisi-dentis et censorum, aut eorum majoris partis, &c. omnes bee examinationes fieri possunt in comitiis minoribus sive censoriis, a prsesidente aut proprassidente, et quatuor censoribua; aut (uno ex censoribus absente) a prsasidente aut proprsesidente, tribus censoribus, et absentia eensoris vicario. Liceat tamen euilibet socio, pro arbitrio, disputare et periculum facere quantum examinandus in He Medica valeat. Qui ad huuc modum examinatus, et a Pressidente aut proprsesidente et censoribus aut eorum majori parte (suffrages per pilas occult^ acceptis) approbatus fuerit, in comitiis majori¡bus proximo insequentibus, siquidem commode fieri poterit, siri minus in comitiis quibuslibet majoribus, sive ordinariis sive extraordinariis, ipreesidente aut propraesi-dente proponatur in candidatorum ordinem vel permissorum numerum admittendus : et si electus fuerit, peractis iis ab ipso qute per Statuta nostra requiruntur, quam primum admittatur."

[2188] Some cases were also cited in the course of the argument: the case of Corporation^ in 4 Co. 77 b. 78 a. Dr. Bonham's case, in 8 Co. 114 to 121. Dr. Goddard's case, in 1 Lev. 19, 1 Siderf. 29, and 1 Keb. 75, 84, S. G. upon a mandamus to the

4 BURR, AM REX V. ASKEW 141

college, to restore him. Dr. Groenvelt'a cose, in Carthew, 491. 1 Salk. 144, 200, 263. 3 Salk. 265. 12 Mod. 119, and Holt, 184, and Dr. Scombergh's case.

The next day, the argument was continued; by Mr. Ashurst and Mr. Dunning, for the college; and Mr. Morton, Serjeant G-lynn, and Mr. Wallace, for Dr. Letch.

Lord Mansfield said, he had no doubt what ought to be done; and therefore he would not keep the gentlemen of the faculty any longer in suspenee.

The counsel for the college have admitted the jurisdiction of this Court: and they certainly have jurisdiction over corporate bodies, to aee that they act agreeably to the end of their institution.

There is no doubt that where a party, who has a right, has no other specific legal remedy, the Court will assist him by issuing this prerogative writ in order to his obtaining such right.

There can be aa little doubt, that the college are obliged, in conformity to the trust and confidence placed in them by the Crown and the public, to admit all that are fit; and to reject all that are unfit. For under the reason and spirit and true construction of this charter and this Act of Parliament, no person ought to be suffered to practise physic, but such only as have skill and ability, and have diligently applied themselves to the study, and are well grounded in the knowledge of it: and, on the other hand, all persona who are so qualified, and have bestowed their time and money and labour, in the proper studies that tend to such qualifications, have a right to be admitted to exercise and practise their profession. And the public have also a right to the assistance of such a person, who has by his labour and studies rendered himself capable of serving the public by giving them proper advico and directions.

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, nor interrupt them in the due and proper exercise [2189] of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid, and unprejudiced ; not arbitrary, capricious, or biassed ; much less, warped by resentment, or personal dislike.

Cases indeed may happen, where the rejection may be founded upon other grounds than insufficiency in point of skill and ability or knowledge : it is possible, that other causes of rejection may occur; as badness of morals, for instance.

But in the present case, they seem to have acted with candour and caution. Some of the gentlemen even make oath of their reasons against admitting this candidate for a licence. Objections to persons applying for licences to practise physic, may be grounded on a variety of reasons: and the Court are to judge of such objections and the reasons of them. If they are insufficient, the Court may grant a mandamus. If they should refuse to examine the candidate at all; the Court would oblige them to do it. In a manuscript book of reports which I have seen, the reporter cites (in reporting Dr. Bonham's case) a mandamus in the time of Edw. 3 directed to the University of Oxford, commanding them to restore a man that was bannitus: which shews both the antiquity and extent of this remedy by mandamus. But the Court ought to be satisfied that they have ground to grant a mandamus: it is not a writ that is to issue of course, or to be granted merely for asking.

The question therefore is, " whether here is a proper and sufficient ground for our granting a mandamus."

Consider, then, what are the grounds of this application.

First.-Dr. Letch can't dispute these by-laws. This point is not open to him. For, without them, he has no ground to stand upon : he has never been examined by the body at large. Therefore he is under a necessity, upon this application, of allowing the by-laws to be good.

The question then will be, " whether the power is devolved on the president and four censors ; or remains with the body at large."

I am clear, that the power remains with the body ; and that the examination by the president and four censors is only preparatory, and for the ease of the body at large.

There are various instances of delegations of a like kind. Bishops refer examina¡tions of clergymen to their [2190] chaplains: so universities refer examinations to select parts of their bodies. But the dernier determination is in the body at large.

These censors, to whom this examination is referred, take an oath, " not to approve of unfit persons, or reject such as are fit."

142 REX V. ASKEW 4 BITER. 2191.

The usage has been, to refer the examination of the person applying for a licence, to the comitia minora, as more easy, and more convenient to be executed by a small than by a large number of examiners. But every fellow has notice of it, and may examine and argue with the candidate; though he has no vote at these cornitia minora: so that every fellow has an opportunity of informing himself and satisfy¡ing his own judgment concerning the sufficiency of the candidate. The comitia minora have no power, upon their approbation, to admit the candidate : they have only power to approve. If they do approve, then the person so approved of by them is to be afterwards proposed to the comitia majora, for election: and if, upon being so proposed, he shall be elected, then he is to be admitted.

Supposing the coraitia majora to execute their power corruptly, (taking this word in a large sense;) and that they should refuse to admit a person who had been examined, approved, and regularly proposed to them, without being able to deny his fitness; this Court ought indeed, in such a case, to interpose.

But that is not pretended or even hinted to be the present case, with respect either to the comitia majora, or the comitia minora. Dr. Letch charges them with nothing of this kind, nor with any thing to which it is requisite for them to give an answer: his counsel rely on the usage.

The question therefore is, " whether the comitia majora have acted corruptly."

Now, they have only referred him to a second examination, in future: they have not absolutely rejected him.

At the comitia minora, there were three who in truth meant and intended to ballot against Dr. Letch, though one of them made a mistake and ballotted for him; which mistake was declared and taken notice of, at the very time ; and it was pro¡posed to ballot over again : and this was disclosed to the comitia majora.

This fact (of a mistake in the ballot for approbation) being disclosed to the comitia raajora, was it not extremely [2191] reasonable for them to refer the candidate to a further examination? I see no injustice in this. The intention of the ballot was that he should be reported unfit : arid two of the censors now swear " that they thought him so."

I am satisfied, that the comitia majora had the power of rejecting him : and it does not by any means appear, that they have acted upon improper grounds, or arbitrarily and capriciously.

Here is no groutid laid for demanding a mandamus.

His Lordship concluded with a recommendation to the college, to settle all other matters amongst themselves without coming to this Court: at the same time intimat¡ing to them a caution against narrowing their grounds of admission so much, that if even a Boerhaave should be resident here, he could not be admitted into their fellowship.

Mr. Justice Yates thought that Dr. Letch might more properly have applied for a mandamus requiring the college to grant him a licence to practise within London and several miles of it. However, if he had laid a sufficient ground for his present application, and shewn the Court " that he had a right to be a member of the college," the Court ought to grant him a mandamus, to enable him to obtain that right,* if he had no other legal method of coming at it.

But he has not laid a sufficient ground for this application : he has not shewn that he has a right to be admitted a member of the college. And we ought not to issue a mandamus requiring the college to admit him a member; unless he first shews us, " that he has a right to such admission."

No man can now practise physic, until he shall have been examined and approved of, proposed, elected, and admitted. He can't be a member of the college, till all these requisites shall have been completed in him.

This gentleman has been examined, it is true, by the president and four censors; arid their ballot was in his favour, three to two, as to their approbation : but one of them declared, at the time, " that he meant and intended his ballot to have been in disapprobation." The president, however, considered him as approved by the majority.

But the determination of the comitia minora is not final: the consequence of their

* V. ante, 1045, 1266, and 1659, 1660, [and 2188].

4 BURR. 2192. REX V. ASKEW 143

approbation is only [2192] " that he is to be afterwards proposed to the comitia majora, for election ; and if they elect him, then he is to be admitted."

The trust was placed in the whole body. The college could not delegate this trust placed in the whole body, to this select part the comitia minora, so as to make their opinion final: but it was lawful for the college to delegate to them this power of preparatory examination ; reserving to the whole body the right of final judgment and determination. Neither have the college in fact delegated the final judgment to the comitia minora: they are only to examine and approve. The candidate, if he meets with their approbation, must still be proposed to the comitia majora; and is to be elected by them. So that it is the comitia majora, who are to judge and to elect: theirs is the final determination.

The mistake in the ballot at the comitia tninora might be a ground for the comitia majora to judge " that the doctor had not satisfied the president and censors of his sufficiency to practise physic:" for though according to the strict letter the ballot might be said to have pronounced him sufficient, yet the majority of those who balloted, thought and even declared otherwise.

Upon the whole; as Dr. Letch has laid before us no ground for a mandamus, there is no reason for us to grant him one.

Mr. Justice Aston.-The question is, " whether Dr. Letch has laid a sufficient ground for asking a mandamus requiring the College of Physicians to admit him a member of it."

I agree with my brother Yates, " that he should rather have applied for a mandamus requiring the college to grant him a licence to practise physic within London and seven miles of it, than for a mandamus to admit him a member."

No particular method of admission is specified, either in the charter or in the statute. The college have therefore instituted a method; the method which has been now disclosed to us. And they have done right: it is a good and proper one. The examination of the candidate, by the comitia minora, is part of it: but their opinion is not final. The final determination is in the comitia majora.

By the 14th & 15 H. 8, c. 5,* it is enacted "that the six persons named in the letters patent, as principals and first named of the said commonalty and fellowship, choosing to them two more of the said commonalty, be [2193] called elects; and that the same elects yearly choose one of them to be president of the said commonalty; and as oft as any of the rooms and places of the same elects shall fortune to be void by death or otherwise, then the supervivors of the same elects shall choose, name, and admit one or more, as need shall require, of the most cunning and expert men of and in the said faculty in London, to supply the said room and number of eight persons : so that he or they that shall be so chosen, be first by the said supervivors strictly examined, after a form devised by the said elects; and also, by the same supervivors approved." This shews, that the makers of the Act of Parliament looked upon those of the faculty who resided in London, to be members of the college.

The power delegated to the comitia rainora is " to examine, and to judge upon the sufficiency of the person whom, they have examined ; and they are upon oath to act impartially therein :" but their opinion and judgment are not final. The election ia not any part of their power: it is in the comitia majora.

If the person examined by them had been approved, proposed, and elected; then, indeed, a mandamus would lie : and so it would, if the college should refuse to examine the candidate at all.

But there are none of these circumstances in Dr. Letch's case. He has been examined ; he has been proposed ; he has not been elected : he has never acquired such a right as can be a ground for asking a mandamus.

And even as to the approbation of the comitia minora, upon their examination of him-though the number of balls seemed to indicate their approbation of him, yet it is apparent that there was a mistake in the ,ballot: and it was declared at the time. Now suppose that mistake to have been the contrary way; and that the censor who made this mistake had meant to ballot for Dr. Letch, but had by mistake actually balloted against him ; would it not have been thought a very hard case, that this should be holden a disapprobation of him; and that he should be bound down by this

* Sect, penult'.

144 HEX V. ASKEW 4 BUKR. 819*.

slip of the censor, contrary to his opinion and intention, to an undeserved and undesigned rejection ?

I think, the comitia majora have behaved with great candour and moderation. They knew that the majority of the comitia minora thought the candidate insufficient. They refer him to further examination, whenever he shall [2194] become properly qualified, he may be again examined ; and being found so upon such second examina¡tion, may find or think himself qualified to undergo it. When he shall be proposed, elected, and admitted in the due and regular manner.

Mr. Justice Hewitt * declined giving any opinion " whether London-licentiatea are t members of the college, or not: " though he hinted, that the more he thought of it, the more he doubted it.

The present application is for a mandamus commanding the college to admit him a member. It is not for obliging them to grant him a licence to practise in London and within seven miles round it. The admissions into the college are " in societatem nostram:" the others, only licences to practise within these limits.

Dr. Letch recognizes the by-law or statute of the college, and grounds himself upon it; claiming his right of admission, as arising from it: and upon this right, he applies to be admitted a member of the college.

I think, we should go a great way, if we should say " that a licentiate to practise within London and seven miles round is a member of the college. Certainly, a person not admitted can't be meant as one of those that incorporated.

But this gentleman has not laid a sufficient ground of right, to support a claim to admission, within this by-law.

It only reposes a trust in the eomitia minora, " to examine the candidate." If they approve of him, they are to report their approbation to the society or body at large, the comitia majora. Any member may be present at the examination; and ask the candidate questions, to try his skill in medicine. The trust reposed in the comitia minora relates only to his skill in physic: it does not extend to his morals. They are not impowered to examine into them. The other part of his qualification they are to examine into ; and if they approve, report so ; but nothing further : it is the comitia majora who are to determine finally, and to elect.

Therefore, without entering into any other points, I concur in the opinion " that this rule ought to be discharged."

This rule was accordingly discharged by the unanimous opinion of the Court.

[2195] Two terms afterwards, viz. on Friday 20th November 1767,

Sir Fletcher Norton 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 licentiates; though the licentiates demanded admittance; which was refused to them by the fellows, on pretence of their having no business there, upon that occasion.

It was argued on Thursday 21st April 1768, by Sir Fletcher Norton and Mr. Morton, for the licentiates, and on Monday 25th April 1768, by Mr. Yorke, (then Attorney General,) Mr. Dunning, (then Solicitor General,) Serjeant Davy, Mr. Ashurst, and Mr. Wallace, for the college; and Mr. Wedderburn, for the licentiates. On Wednesday the 27th, Serjeant Glynn, Mr. Walker, and Mr, Mansfield, proceeded on behalf of the licentiates: and on the same day, the Court gave their opinion.

Lord Mansfield took notice, that the figure and consequence of the contending parties, and the respect due to them; the anxiety that has appeared in the contest; and perhaps the spirit which has been raised on both sides, in the course of it; have carried the counsel concerned into a very great length of argument, and into the discussion of a variety of matter foreign to the point directly in question before the Court upon the present motion.

The question properly now before us is singly this-" whether the persons apply-

[* He was before this term Chancellor of Ireland.] This question had been started during the argument, but the Court afterwards declared the question to be still open. See the end of this case.

4 BURR. 2196. REX V. ASKEW 145

ing for this information are fellows, and intitled 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.

I consider the words " socii, communitas, collegium, societas, collega, and fallows," as synonimouB terms; and every socius or collega, as a member of the society or corporation or college. The question is, "whether these licentiates are socii or coUegsa or fellows."

[2196] The facts are not disputed: and there is no doubt about the law, as far as relates to the question now before us.

Here is a charter of incorporation. And it has been admitted on both sides, that there has been a great number of by-laws and long usages, which are agreed to appear upon their books and the extracts from them : and the permission of these licentiates " 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 first act to be done by them is their judging'.of the qualifications of the candidate The admission into the fellowship is an act subsequent to that. The main end of the incorporation was to keep up the succession: and it was to be kept up by the admission of fellows after examination. 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 conies 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. In Dr. Letch's case, the reasons for his rejection being called for, the answer was, " that they judged him to be unfit:" and as the Legislature have vested the judgment in the comitia majora; and there was no pretence or ground to pretend that they had acted corruptly arbitrarily or capriciously; that answer was esteemed a sufficient one. And 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 omries homines ejusdem facultatis." So, [2197] when then the college or corporation were to make by-laws, these by-laws were to relate not only to the fellows, but to all others practis¡ing physic within London or seven miles of it. The restraint from practising physic is thus expressed-" nisi ad hoc admissus sit by letters testimonial under their common seal." Now, what does this "ad hoc" mean1? It must mean "ad exercendum facultatem medicinaa," admissus sit. And this is agreeable to the words used in 3 H. 8, c. 11, concerning admissions by the Bishop of London and Dean of St. Paul's. The supervisal of the censors is expressed to include not only the physicians of London, but omnes etiam qui per septem milliaria in circuitu ejusdem medicinam exercent. The same observation holds as to punishments. This must regard those who had a right to practise in London and within seven miles of it, and were not fellows of the college. These observations convince me that the charter had an idea " that some persons might practise by licence under their seal, who were not fellows of the college."

Then let us see how the usage was.

In 1555, they must have had a probationary licence, before admission into the college. Afterwards, it was to be a probation for four years before admission. The college might grant such probationary licences, with some reason, and agreeably to their institution. This shews that some licences were granted to persons not fellows of the college. The 3 H. 8, c. 11, takes away all former privileges; and says that no person within London or seven miles of it shall exercise as a physician, except he be first examined approved and admitted by the Bishop of London or by the Dean of

146 REX V. ASKEW 4 BURR. 2198.

St. Paul's, calling to them four doctors of physic: and the charter and statute confirm¡ing it have left every thing at large to the college, no way confined or restrained but by the fitnesa of the objects. lu 1561, a partial licence was granted to an occulist: a person may be fit to practise in one branch who ia not fit to practise in another. Licences have also been granted to women: and that may not be unreasonable in particular cases; as, for instance, such as Mrs. Stevens's medicine for the stone. Partial licences have been given, for above 200 years. Of late years, indeed, general licences have been usual: and the persons applying for them have been examined, though not meant to be members of the corporation or college. In 1581, notice is taken of three classes; fellows, candidates, and licentiates, and from that time, they have given licences to practise. The licences probably took their rise from that illegal by-law (now at an end) which restrained the number of fellows to twenty. This was arbitrary and unjustifiable: they were obliged to admit all such as came within the terms of their charter. Yet it is probable [2198] that the practice of licensing was in consequence of their having made it. However, for above a hundred years, there has been a known distinction between fellows and licentiates : it is as well known as the distinction between graduates and under-graduates in the universities.

This being premised, let us inquire " who these gentlemen are, that are now apply¡ing to the Court."

They are persons who set up a title directly contrary to the sense in which their licence is given to them and received by them. They can't avail themselves of their instrument, in this way: it would be a cheat upon the collage. And they have acquiesced many years under this licence given them by the college, as merely a licence to practise.

But even supposing them to have a right to be fellows; yet, as it is clear that the licence doea 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 can not impeach this election.

I am of opinion " that this rule ought to be discharged."

If my brothers should concur with me, the college as now constituted is at present to be considered as the body corporate. I have a great respect for this learned body: and, if they should think proper to hearken to my advice, I would wish them to consider whether this may not be a proper opportunity for them to review their statutes. And I would recommend it to them to take the best advice in doing it; and to attend to the design and intention of the Crown and Parliament in their institution. I see a source of great dispute and litigation in them as they now stand : there has not, as it should seem, been due consideration had of the charter, or legal advice taken, in forming them.

The statute of 14 & 15 H. 8, c. 5, after reciting the charter, mentions it to be expedient and necessary to provide " that no person of the said politic body and commonalty aforesaid be suffered to exercise and practise physic, but only those persons that be profound, sad, and discreet, groundedly learned, and deeply studied in physic."

I do not say, that no man can be a licentiate, who is not perfectly and completely qualified to be a fellow of the college. Many persons of no great skill or eminence have been licensed: and there seem to be fewer checks, guards and restrictions upon granting licences, than [2199] upon the choice of fellows. Yet it haa been said, " that there are many amongst the licentiates, who would do honour to the college, or any society of which they should be members, by their skill and learning as well as other valuable and amiable qualities; and that the college themselves, as well as every body else, are sensible that this is in fact true and undeniable." If this be so, how can any by-laws which exclude the possibility of admitting such persons into the college stand with the trust reposed in them, "of admitting all that are fit?" if their by-lawa interfere with their exercising their own judgment, or prevent them from receiving into their body persona known or thought by them to be really fit and qualified ; such by-laws require regulation. Such of them, indeed, as only require a proper education, and a sufficient degree of skill and qualification, may be still retained: there can be no objection to cautions of this sort; and the rather, if it be true " that there are pome amongst the licentiates, unfit to be received into any society." It is a breach of st in the college, to license persons altogether unfit.

I do not choose to speak more particularly : but I recommend it to those who are

4 BURR. MM. REX V. ASKEW 147

now likely to be established the masters of the college, to take good advice upon the points I have been hinting to them. . . .

Mr. Justice Yates observed, that upon this application of the licentiates grounded upon their nob being admitted to vote, it was incumbent upon them to shew that they had a right to vote." . . .

They claim to be members of the corporation, equally with the fellows ol toe college : they insist " that the charter has made them so." And it has been said that there is no other way of continuing the corporation;" and "that no by-laws or usage can contravene the express words of the charter.

But I am far from thinking that all the men of and in London then practising physic were incorporated by the charter. The immediate grantees under the charter were the six persons particularly named in it: the rest were to be admitted by them. They were not ipso facto made members. They were first to give their consent, before they became members: they could not be incorporated without their consent. . . Much less are future practises of physic of and in London actually incorporated by this charter. . . . [2200] If the inhabitants of a town are incorporated, yet every one must be admitted before he becomes a corporator. The Crown can't oblige a man to be a corporator, without his consent: he shall not .be subjected to the inconveniences of it, without accepting it and assenting to it. Upon moving for an information in nature of quo warranto against a corporator, it is necessary to prove "that the corporator has accepted." . . . The counsel for the licentiates insist, that their admission, by ^ the letters testimonial, " to practise physic in London and within seven miles of it, is an admission into the college or corporate body. . . But this license " to practise physic in London and within seven miles ot it does by no means render the licentiate liable to all the burdens and inconveniences of being an actual member of the college. . .

A man is not capable of being admitted into the college, without being possessed of certain qualifications which are made requisite. But granting that he really is possessed of those requisite qualifications, yet his merely being qualified for becoming a member does not make him one. The instrument which gives the licence or permis¡sion " to practise," does not mention any such thing as an admission to be a member of the college. The word "admissus," is only used, in this instrument, as a more classical term than " permissus ;" it don't import an actual admission into the [college. The charter and the Act of Parliament confirming it make a distinction between the college or corporation, and other men of the same faculty ; " to govern the said fellow¡ship and commonalty, and all men of the said faculty;" and again, "collegium sive communitatem prsedict' et omues homines ejusdem facultatis.

A good deal has been said about long usage. But usage only applies, where the construction is doubtful. Here, the construction is not doubtful. If it were, then indeed usage for 200 years might have weight. But that is not the present case.

The taking money of the licentiates has been urged as an argument on their side.

But taking their money does not prove them to be members of the college, it it has been wrongfully taken from them, they may recover it back again. It has been called a taxing them to be contributory to the corporate charges and expeuces : and such a tax, it has been said, can't be levied upon strangers. [2201] From whence it has been inferred, that the college did not consider them as strangers, but as fellows, tfut this can't amount to a proof of their having been admitted into the college ; even though it should be granted to afford them a claim to admittance : it could not give them a right to vote, as being members of the corporation, at the election of censors. I he present application is not for a mandamus to admit them ; but is grounded upon the denial of their right to vote, as being members: it supposes them to have been already admitted. . .

I am clearly of opinion, that the gentlemen now applying for this information are not members of the college.

Mr. Justice Aston agreed, that the restraining the number of fellows to twenty was illegal: and he thought that the distinction between fellows and licentiates had taken its rise from the restriction of the number of fellows.

He agreed also, that no person can be obliged to be a member of a corporation

148 REX V. ASKEW 4 BURR. 2202.

without hia consent: and he allowed, that the charter included only such persons as accepted and assented to it.

But, after expressing a very high opinion of Lord Mansfield's abilities and Mr. Justice Yatea's, and a modest diffidence of his own, he acknowledged that his senti¡ments upon the construction of the charter connected with the Act of Parliament, and the right of admission into the college, differed from theira : and 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 prtedictfi,;" and the application to Parliament for the Act of 14 & 15 H. 8, e. 5, (intitled " The Privileges and Authority of Physicians in London,") 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." All the Acts of Parliament made in pari materia should be taken, he said, together: and the construction has been uniform, till the time of Queen Mary. Till then, there was no distinction of major and minor, amongst these physicians. 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." And this was sufficient to continue the succession, and perpetuate it.

He should however give no opinion, he said, how it might turn out upon a mandamus.

[22021 As to the motion now depending-he proceeded and concluded thus-but upon the loot of the present application for an information in nature of a quo warranto against the censors, to shew by what authority they exercise their office; only because they have been elected without their intervention, who have never beeti admitted into the corporation, (whatever claim they may have to demand such admission ;) lam clearly of opinion that they have laid no sufficient ground to support it; and therefore that this rule ought to be discharged.

Mr. Justice Willis confined himself to the point directly and immediately in question before the Court.

These gentlemen, the licentiates, can have no pretence, under the circumstances in which they now stand, to object to the election of the censors, for want of the admis¡sion of their votes. For, whatever right they may claim, or whatever right they may really have, to their admission into the fellowship of the college or corporation ; yet, as they never have been admitted into it, no mere right of admission (be it ever so clear and indisputable) can give them a right to vote in corporate elections, before they shall have been admitted into the corporation.

Therefore they cannot, before their admission, maintain this rule.

Lord Mansfield.-I rest my opinion upon this ground; "that their present application to the Court is under an instrument which shews that they are not now fellows of the college, nor admitted into the corporation."

I think that every person of proper education, requisite learning and skill, and possessed of all other due qualifications, is intitled to have a licence : and I think that he ought, if he desires it, to be admitted into the college. But I cannot lay it down, " that every man who has a licence from the college, by letters testimonial, to practise physic in London and within seven miles of it, does thereby actually become a member of the college, and obtain a right to vote in corporate elections."

The distinction between fellows and licentiates has been established above a hundred years: and these gentlemen have accepted an instrument which was not understood, by either side, to convey a right to be ipso facto fellows; and it is plain, that they never have been actually admitted fellows. And I am clear, that they can have no claim to vote, before admission.

[2203] How it might be, upon an application to the Court for a mandamua " to oblige the college to admit them," is another question : I give no opinion at all upon that.

Upon the former point, I entirely concur with the Court.

Mr. Justice Yates.-I give no opinion how it might be upon a mandamus.

Lord Mansfield concluded the whole, with observing that that must depend upon the particular casea of the persons applying for such mandamus, as they might be respectively circumstanced.

The Court were unanimous in discharging the present rule.

Memorandum.-On Thursday 17th November 1768, Sir Fletcher Norton and Mr. Morton moved the Court on behalf of Dr. Edward Archer; and Mr. Walker, on behalf

* BURR. 2204. REX V. CUTBUSH 149

of Dr. Fothergill; for writs of mandamus, to oblige the college to admit these two licentiates; with an intention to try the question " whether the licentiates had a right to be admitted fellows :" and that litigation lasted till 6th June 1771. But they only came round to the same point which had been already determined, as above. For these two gentlemen had accepted licences under the by-law of 1737 : and the Court were of opinion " that they ought not afterwards to desert it, and treat it as null and void ; and set up a right of admission under the charter, upon the foundation of this very licence which they had accepted under the by-law, upon a supposition that the by-law was a bad one." So that the return was allowed, upon that objection to their claim: and the intended question remained unsettled.

A fuller account of that matter may be given hereafter : but it would be improper to anticipate it at present.

However, I may venture to mention, in this place, that after the Court had allowed the return,

Lord Mansfield renewed his former hint, by saying-" The college will now consider, whether they [2204] will trust to a return upon these by-laws; or mend them."

I am informed " that they have done the latter."