"sad, and discreet, groundedly learned, and deeply "studied in physic.' 1768. I do not say, that no man can be a licentiate, who is DR.ASKEW'S not perfectly and completely qualified to be a fellow of CASE. 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 upon the choice of fellows. Yet it has been said, "that [2199] "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 possi bility of admitting such persons into the college stand with the TRUST reposed in them, "of admitting ALL that are fit ?" if their by-laws interfere with their exercising their own judgment, or prevent them from receiving into their body persons known or thought by them to be really fit and qualified; such by-laws require regulation. Such [7 Durn. 289.] 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 some "amongst the licentiates, unfit to be received into any society." It is a breach of trust in the college, to license persons altogether unfit. I do not choose to speak more particularly: but I recommend it to those who are 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 not being admitted to vote, it was incumbent upon there to shew that they had a RIGHT to vote." They claim to be MEMBERS of the corporation, equally with the fellows of the college: they insist "that the "charter has made them so.' And it has been said "that there is no other way of continuing the corpora"tion ;" and "that no by-laws or usage can contra"vene the express words of the charter." But 1 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 VOL. IV. S 1768. DR.ASKEW'S CASE. 2200 1 [See Shep. of Corporations, p. 19, and g Bosau 34. they became members: they could not be incorporated without their consent. Much less are future practisers of Physic of and in London actually incorporated by this charter. 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. 3 Dura. 208. Upon moving for an information in nature of quo warranto against a corporator, it is necessary to prove the corporator has accepted." 1 Durn. 581. "that 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 aad "within seven miles of 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 permission 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 fellowship and commonalty, and all men of the said faculty;" and again, "colle"gium sive communitatem prædict' et omnes 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. If 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 expences: and such a far, it has been said, can't be levied upon strangers. 1768. CASE. From whence it has been inferred, that the college did not consider them as strangers, but as fellows. But this can't amount to a proof of their having been admitted into DR.ASKEW'S 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. The 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 dictinction 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 without his 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 YATES's, and a modest diffidence of his own, he acknowledged that his sentiments upon the construction of the charter connected with the act of parliament, and the right of admission into the college, differed from theirs and he thought that in grants of this kind, the construction ought to be made in a liberal manner; and this grant includes "Om"nes Homines ejusdem facultatis de et in civitate præ"dictâ ;" and the application to parliament for the act of 14 & 15 H. 8. c. 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 66 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 quali "fied, 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. As to the motion now depending-he proceeded and [ 2202] concluded thus-but upon the foot of the present appli 1768. CASE. cation for an INFORMATION in nature of a quo warranto against the censors, to shew by what authority they DR.ASKEW's exercise their office; only because they have been elected without their intervention, who have NEVER BEEN ADMITTED into the corporation, (whatever claim they may have to demand such admission;) I am clearly of opinion that they have laid no sufficient ground to support it ; and therefore that THIS rule ought to be discharged. [7 Durn. 286.] [ 2203 ] 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 admission 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 vore 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 corpo"'ration." 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 prac"tise 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. How it might be, upon an application to the Court for a MANDAMUS "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. 1768. CASE. Lord MANSFIELD concluded the whole, with ob- DR.ASKEW'S serving that THAT must depend upon the particular cases of the persons applying for such mandamus, as they might be respectively circumstanced. THE COURT were unanimous in DISCHARGING the Memorandum On Thursday 17th November 1768, Sir Fletcher A fuller account of that matter may be given here- : However, I may venture to mention, in this place, Lord MANSFIELD renewed his former hint, by say- I am informed that they have done the latter." REX versus ROBERT CUTBUSH, Common-Council-Man of Saturday 30th Maidstone. April 1768. Corporations cannot make THIS consistent with their Charter, |