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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> University of Glasgow v Faculty or Physicians [1834] CA 13_9b (12 November 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0009b.html Cite as: [1834] CA 13_9b |
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Subject_Exclusive Privilege—College—Corporation.—
1. A University degree of Master in Surgery found not to entitle the party holding it to practise surgery within the bounds in which a corporation of surgeons had by grant from the King, followed by immemorial usage, the power of examination and admission, without license front that corporation. 2. An exception in the grant as to practising medicine in favour of those having medical degrees from Universities, held not to include surgery. 3. Terms sufficient to constitute a permanent corporation of surgeons with exclusive privileges. 4. The University of Glasgow is a proper University, with all the privileges belonging to Universities.
The Faculty of Physicians and Surgeons of Glasgow was originally constituted by virtue of a grant from King James VI., of date 29th November, 1599. This grant was addressed to Mr Peter Low, Surgeon to the King, and Mr Robert Hamilton, Professor of Medicine in the College of Glasgow, and was of the following tenor;—
“
James, &c.—Wit ye us, with advise of oure counsell, understanding the grit abuses quhilk hes bene comitted in time bygane, and zit daylie contineuis be ignorant, unskillit and unlearnit personis, quha, under the collour of chirurgeans, abusis the people to thair plesuir, passing away but tryel or punishment, and thairby destroyis infinite number of our subjects, quhairwith na ordour hes bene tane in tyme bigane, specially within oure burgh and baronie of Glasgow, Renfrew, Dumbartane, and oure sherifdomes of Clidsdale, Renfrew, Lanerk, Kyll, Carrick, Air and Cuninghame; For avoiding of sik inconvenientis, and for gude or-doure to be tane in tyme cuming, to have maid, constitut, and ordanit, and be the tenoure of thir oure letteris, makis, constitutis, and ordainis Maister Peter Low, oure chirurgiane, and chief chirurgiane to oure dearest son the Prince, with the assistance of Maister Robert Hamilton, Professoure of medicine, and thair successouris, indwelleris of our citie of Glasgow, Gevand and Grantand to thame and thair successoures, full power to call, summond, and convene before thame, within the said burgh of Glasgow, or any otheris of ouir said burrows or publict places of the foir-said boundis, all personis professing or using the said art of chirurgie, to examine thame upon thair literature, knawledge and practize, gif they be fund wordie, to admit, allow, and approve thame, give thame testimonial according to the airt and knawledge that they sal be fund wordie to exercise thaireftir, resave thair aithis, and authorize thame as accordis, and to discharge thame to use onie farder nor they have knawledg passing thair capacity, laists our subjectis be abusit; and that every ane citat report testimonial of the minister and elders, or magistratis of the parochin whair they dwell, of thair life, and conversatione, and in case they be contumax, being lauchfuliie citat, everie ane to be unlawit in the soume of fortie ponds, toties quoties, half to the Judges, other half to be disponit at the visitoures plesure, and for payment thairof, the said Mr Peter and Mr Robert, or visitoures, to have oure other letteris of horning, on the partie or magistrates whair the contemptuous person dwellis, chargeing thame to poind thairfor within twentie-four houris, under the pain of horning, and the partie not haveand geir poindable, the magistrates, under the same pain, to incarcerate thame, quhill cautioun responsall be fund, that the contumax persone shall compeir at sick day and place as the saidis viaitouris sall appoint, gevand trial of their qualifications: Nixt, That the saidis visitouris sall visit every hurt, murtherit, poisonit, or onie other persoun tane awa extraordinarly, and to report to the magistratis of the fact as it is: Thirdlie, That it sall be leisum to the saidis visitouris, with the advice of thair bretheren, to make statutis for the common well of oure subjectis, anent the saidis airtis, and using thairof faithfullie, and the breakeris thairof to be punishit and unlawit be the visitouris according to thair falt: Fordlie, It sal not be leisum to onie manner of personis within the forsaidis boundis to exercise medicine without ane testimonial
In 1600, this letter was recorded in the burgh books, the authority of the magistrates being interponed thereto; and, of date 3d June, 1602, the following proceeding took place, thus recorded in the minutes of the Faculty:—
“The qulk day w
tin the Blackfrier Kirk of Glasgow, in presence of Sir George Elphistoune of Blaithswood, Knight, Provest, James Forrest, John Andersoune, Will. Andersoune, baillies thereof, compeirt Mr Peter Low, and Mr Robert Hamiltoune, whilk producit ane gift of our Sove-rayne Lord anent their liberties, w
t the Provest and Baillies authoritie interponit thereto, as the samyn at length beires, and made convention with y
r breithren, videlicet, Adam Fleming, Mr Rob
t Allasone, William Spang, Thomas Thomsone, John Lowe, and the samyn being red, the said Mr Peter and Mr Rob
t was content, of their ane consents, notwithstanding
On the 22d of the same month, the members met and fixed the fees of entry, and, inter alia, ordained, “that barbers being a pendicle of chy-rurgerie, shall pay at their admission fortie punds Scots, and ilk zeir twentie shilling to the puir, and limitit not to meddle with any thing farder belonging to chyrurgerie, under the paine of five pund toties quoties.” In 1656, the Faculty agreed to purchase from the Town Council a seal of cause, or letter of deaconry, “but prejudice of the old gift grantit them by the deceast King James;” and accordingly, on the 16th August of that year, they obtained from the Magistrates and Council a letter of deaconry in favour of the surgeons and barbers, constituting them a burgal corporation. In 1722, however, the “surgeons and pharmacians” surrendered, so far as they were concerned, their privileges under the letter of deaconry; and this surrender being accepted by the Magistrates, the burgh corporation thereafter consisted exclusively of barbers. In the meanwhile, the original grant of King James had been confirmed by act of Parliament in 1672, which in substance repeats and ratifies the privileges thereby conferred. Under authority of this grant, the Faculty had been in use, from the date of their constitution in 1602, to exercise the privileges of a corporation, making by-laws, admitting members, and debarring persons not admitted from practising surgery within the city—their title never being questioned, and their applications for this purpose, in their corporate capacity, being enforced by the courts of law, in a long series of cases. In 1815, in an action before this Court, for having one Steel and others prohibited from practising surgery without being licensed by them, a defence was maintained by the parties complained of, that they had obtained degrees of doctor of medicine in the Scottish universities, and that these entitled them to
The university of Glasgow, by which these new degrees were granted, had originated in the following bull from Pope Nicholas V., in the year 1450: “Nicolaus Episcopus, servus servorum Dei ad perpetuam rei memoriam, Inter cæteras felicitates quas mortalis homo in hac labili vita ex dono Dei nansisci potest, ea non in ultimis computan meretur, quod per assiduum studium adipisci valet scientiæ margaritam. Qnæ bene beateque vivendi viam præbet, ac peritum ab imperito sui pretiositate longe facit excellere, et ad mundi arcana cognoscenda dilucide introducit. Suffragatur indoctis, et in infimo loco natos vehit in sublimis et propterea sedes Apostolica rerum spiritualium, et etiam temporalium provida mini-stratrix, et cujusvis commendabilis exercitii perpetua consultans adjutrix ut eo facilius homines ad tam excelsum humanæ conditionis fastigium acquirendum, et acquisitum in alios refundendum semper cum augmento ducantur. Illos hortatur; eis loca preparat. Illos juvat et fovet ac favoribus prosequitur gratiosis; cum itaque sicut pro parte carissimi in Christo filii nostri Jacobi Scotorum regis illustris nuper fuisset expositum; nobis quod quod ipse rex non solum ad utilitatem reipublicæ ac incolarum et habitatonim terrarum sibi subjectarum, sedet aliaram partium vicinarum laudabiliter intendens in ejus civitate Glasguensi, tanquam in loco insigni et valde accommodo, in quo aeris viget temperies, victualium ubertas cæte-rarumque rerum ad usum humanum pertinentium copia reperitur, desi-deret plurimum fieri et ordinari per sedem Apostolicum studium generale in qualibet licita facultate, ut ibidem fides Catholica dilatetur, erudiantur simplices, equitas servetur, judicii vigeat ratio, illumentur mentes, et intellects hominum illustrentur. Nos præmissa et etiara cximiam fidei et devotionis sinceritatem quam idam Rex ad nos et Romanara ecclesiam gerere comprobatur, attente considerantes, ferventi desiderio dueimur quod civitas ipsa scientiarum ornetur muneribus. Ita ut viros producat consilii maturitate conspicuos, virtutum redimitos ornatibus, et
_________________ Footnote _________________
1 Faculty of Physicians and Surgeons v. Steel, &c., Feb. 26, 1819. A statement of this, and other previous cases, in which the Faculty were parties, with notes ef the opinions of the Judges, will be found in the appendix to the Record in this cause, bound up with the Session papers in the Advocates' Library.
diversarum facultatum dignitatibus eruditos. Sit que ibi scientiarum fons irrigans, de cujus plenitudine haurient unirem literarum cupientes imbui. Documentas hiis igitur omnibus, et præsertim ydoneitatem ejusdem civi-tatis quæ, ut accepimus ad multiplicanda doctrinae semina et germina salutaria producenda valde congrua et accomoda fore dicitur, diligenti examinatione pensatis, non solum ad ipsius civitatis, sed etiam incolarum et habitatorum totius regni Scotiæ, et Regnorum circumjacentium, com-modum atque proficuum, paternis affectibus excitati. Nec non ipsius regis in hac parte supplicationibus inclinati ad laudem divini nominis et orthodoxæ fidei propogationem, in eadem civitate generale studium auctoritate apostolica Erigimus et Statuimus, et etiam ordinamus ut in ipsa Cintate de extero studium hujusmodi perpetuis futuris temporibus vigeat, tarn in theologia ac jure Canonico et civili quam artibus et quavis alia licita. facultate, quodque, Doctores, magistri, legentes et studentes ibidem omnibus et singulis privilegiis, libertatibus, honoribus, exemptionibus, immunitatibus, per sedem apostolicam, vel alias quomodolibet, magistris, doctoribus et studentibus in studio nostras civitatis Bononiensis concessis gaudeant et utantur; ac venerabilis frater noster Willelmus Episcopus Glasg. ac successores sui qui pro tempore fuerint Glasgn. Episcopi præ fati studii Glasgsis. sint Rectores, Cancellarii nuncupati, qui habeant supra doctores, magistros, et scolares, ac alios de Universitate studii husisusmodi similem facultatem et potestatem, quam habent Rectores seoclarum dicti studii Bononiensis, quodq. illi qui processa temporis bravium meruerint in facultate illa in qua studuerint, obtinere ac Docendi licentiam, ut alios erudire valeant; nec non Magisterii seu Doctoratus honorem petierint eis elargiri per Doctorem seu Doctores, Magistrum seu Magistros facultatis ejusdem in qua examinatio fienda fuerit, Epo. Glasgsi., nunc et pro tempore existente et Glasg. ecclesia pastoris solatio destituta vicario seu officiali in spiritualibus delictorem filiorum capituli dictae ecclesiae presententur; qui quidem episcopus vel vicarius sen officialis, aliis Doctoribus et Magistris ibidem tunc legentibus convocatis pro-movendos eosdem in hiis quae ad magisterii, seu Doctoratus honorem, quomodolibet requiruntur per se vel alium juxta morem seu consuetudinem in aliis studiis observare solitos, examinare studeunt diligenter, eisque si ad hoc suficientes et idonei reperti fuerint, hujusmodi licentiam tribuat seu magisterii impendant honorem; illi vero qui in eodem studio civitatis Glasguen. examinati et approbati fuerint, ac docendi licentiam et honorem hujusmodi obtinuerint, ut præfertur, ex tunc absque alia examinatione et approbatione deinceps regendi et docendi, tam in eadem civitate quam in singulis studiis generalibus in quibus regere et docere voluerine plenam et liberam habeant facultatem, statutis et consuetudinibus etiam juramento, confirmatione apostolica vel quacunque alia firmitate, vallatis caeterisque contrariis non obstantibus quibuscunque. Nulli ergo omnino hominum liceat liane paginam nostræ erectionis, constitutionis et ordinationis infringere vel ei ausu temerario contrahire. Si quis autem
James II., by charter, in 1453, granted various civil privileges to the University thus constituted; and, after the Reformation, James VI., in 1577, granted a charter, generally termed Nova Erectio, containing, inter alia, as follows:—
“Cum Divina Providentia nos iis temporibus ad regni gubernacula perduxerit, in quibus Evangelii lucem, expulsis Papismi tenebris, Scotiæ nostræ prælucere voluit; nosque imprimis solicitos esse operteat, ut tantum Dei beneficium ad posteros nostras propagete; neque id alia ra-tione commodius fieri possit, quam proba educatione et juventutis recta informatione in bonis literis, quæ, nisi honoribus et præmiis alantur, prorsus sunt interituræ: Hinc est quod nos, dum rem literariam passim per regnum nostrum in Dei gloriam promovere studeremus, animum etiam nostrum adjecerimus ad colligendum reliquias Academiæ Glasguensis quam præ inopia languescentem ac jam pene confectam, reperimus; et, cum concilio et consensu dilecti nostri consanguinei Jacobi Comitis de Mortomi, Domini Dalkeith, tutoris nostri et proiregis charissimi, ei malo prospicere volentes, ad tela paupertatis delenda quæ bonarum artium studiosis maximopere infesta esse soient, dederimus et concesserimus, prout per præsentes, damus et concedimus et pro nobis ac successoribus nostris pro perpetuo confirmamus et ad mortuam manum perpetuo Uni-mus et confirmamus, collegio nostro Glasguensi, totam et integram rectoriam de Govane, cum vicaria ejusdem, jacen. in diœcesi Glasguen. et vicecomitatu nostro de Renfrew, vacan, per decessum Magistri Stephani Betoun rectoris ejusdem, non ita pridem vita functi, cum omnibus decimis, emolumentis, et fructibus, gleba, et mansionibus, omnibusque aliis com-modis. quæ de jure aut consuetudine regni quomodolibet pertinere queant.
“Volumus autem, in dicto nostro collegio duodecim personas ordinarias residere ad gymnasii commoda procuranda, et juventutem bonis Uteris informandum, quae ex impensis et fructibus ejusdem alantur et sustenten-tur, pro modo ac facultate redituum dicto collegio assignatorum, secundum discretionem gymnasiarchæ et regentium subscriptorum; Nimirum, gym-nasiarcham, tres regentes, œconomum, quatuor pauperes studentes, servum gymnasiarchæ, coquum et janitorem; quorum singulos in suis muneribus obeundis sedulos esse volumus, et pro laboribus honoraria ac stipendia perciper, quo majore alacritate suis ofliciis invigilent.”
After a series of regulations, the charter concludes thus:—“Insuper cum Sathanae Astum percipiamus nullibi non dantis operaia ut juventutem ab evangelii professione ad plusquam cimerias Papismi tenebras ab-ducet, districte mandamus, ut singuli qui in hanc nostrani Academiatn fueriat cooptati, fidei professionem edant eadem nimirum quae è dei verbo
The University had always been in use to grant degrees in divinity, law, and medicine, but, till 1816, there was no chair of surgery, and it was only then that they commenced to give degrees in surgery, as already mentioned, The degree of master in surgery having been obtained from the University by the respondents, M'Millan and others, and they having, in virtue thereof, assumed the privilege of practising surgery within the city of Glasgow, the Faculty raised a suspension and interdict to have them prohibited from so doing, without examination and admission by them; whereupon, on the other hand, the University instituted a process of declarator against the Faculty, concluding to have it found and declared, “that all persons holding diplomas, degrees, licenses, or testimonials from the University of Glasgow, empowering them to practise the art of surgery and its different branches, arc entitled and authorized, in the most ample manner, to practise the same within the foresaid bounds, over which the said pretended Faculty claims the exclusive right to grant licenses as aforesaid; and that they are so entitled to practise, without undergoing any examination from the said pretended Faculty, or from any other body whatever, and without making payment of any sums of money in name of freedom fines, or otherwise;” and also to have the Faculty ordained, “to desist and cease from calling before them for examination the licentiates of the University, from attempting to exact fees from them, and generally from molesting, annoying, or interfering with them while exercising the arts which they arc entitled to practise in virtue of the foresaid diplomas, degrees, licenses, or testimonials.”
These two processes having been conjoined, and a record prepared, they were reported to the Inner-House, on Cases, by Lord Medwyn, Ordinary.
Pleaded for the University, and M'Millan, &c.
1. The University of Glasgow is a proper University, originally created, as other similar bodies in Europe, before the Reformation, by bull of the Pope, and possessing all the privileges of a University, and, in particular, the power of granting degrees in the several sciences; and although surgery was not taught separately from medicine till 1816, it is
2. The degrees in medicine and surgery granted by a University afford a sufficient warrant to practise the arts of medicine and surgery in every part of the realm,
3. The King had no power to erect a corporation with privileges inconsistent with those of the existing Universities.
4. The letter of King James in favour of Messrs Low and Hamilton, is not so framed as to create a proper permanent corporation with exclusive privileges, and, in particular, it contains no power to prohibit from practising, persons not examined and admitted by them.
5. The exceptions in the King's letter in favour of persons holding a University diploma to practise medicine, must extend to the practice of surgery, which is a branch of medicine.
Pleaded for the Faculty—
1. The present College of Glasgow is not a proper University, but a mere pedagogium under the Nova Erectio by James VI., to which alone it can refer for its present constitution; and, farther, even if it were entitled to go back to the bull of the Pope, which was entirely de-relinquished when the college was re-erected after the Reformation on a new footing, they could not give degrees as a University, as understood by that bull, seeing they have no faculties of the different sciences, by the members of which degrees may be given; but these are granted by the professors, the greater number of whom may not be even graduates of the science in which the degree is given—a practice inconsistent with the constitution of a proper university.
2. University degrees are merely in themselves testimonials of skill, but can receive no civil effect, except in so far as conceded by the municipal authority of the state in which they may have been established.
3. The civil privilege of an exclusive right to practice an art, as arising from examination and admission, by any particular body, can only be conferred by grant from the King. A university degree cannot convey this privilege, unless in virtue of such grant; so that the University which did not possess this had no privileges wherewith the charter to the Faculty could interfere; and the King may, undoubtedly, confer an exclusive privilege of this nature on any body, though not a university.
4. The terms of the royal letter are clearly such as to constitute a permanent corporation, with powers of examination and admission, and an express power to discharge all persons not admitted by them from practising surgery within the bounds specified. This grant was farther confirmed in Parliament, and has been followed by uninterrupted possession under it, so that it is impossible to dispute the title of the Faculty as a corporation, which has indeed been repeatedly sustained by the courts of law.
5. The exception in the letter is expressly limited to medicine, which
The Court appointed the Cases to be laid before the other Judges for their opinion. The following were returned.
“It will he remarked, that throughout the whole of this charter, surgery and medicine are carefully distinguished. Thus, the visitors have power to examine and license those who practise surgery; but they have no power to examine and license those who practise medicine. As a board of police, they may inter-diet unqualified persons to practise medicine, but the qualification for practice is not a license from the grantees, but a license from the king and queen's chief physicians, or the testimonial of a university where medicine is taught. The charter does not expressly erect the grantees into a corporation, but as they and their successors were to form a perpetual board, and wen empowered, with the advice of their brethren, to make statutes to regulate the practice of surgery, they held
“The charter of James VI. was ratified in Parliament in 1672, by an act in favour ‘of the present surgeons, apothecaries, and barbers within the burgh of Glasgow, and their successors allenarly;' and in that statute medicine and surgery are again contradistinguished.
“It appears, indeed, that the corporation or faculty, as early as 1635, put forward a pretension, not only to interdict those who practised medicine without a university degree, or a license from the king and queen's physicians, but to examine and to grant licenses themselves—a pretension certainly unauthorized by the charter; and to give a colour for it, there is a misrecital of the charter in the statute 1672. Whether in consequence of usage or otherwise, they have now acquired that right, it is unnecessary at present to enquire. In reference to this question, it is enough that the distinction between surgery and medicine is clearly recognised in all the grants to the corporation or faculty, whether by the Crown, by Parliament, or by the city of Glasgow; and though the privileges of the faculty may have been extended by usage, there has been no usage on the other side to restrict them.
“Keeping this distinction in view, it appears from a perusal of the charter, that the grantees are empowered to examine every person within their bounds, professing or using the art of surgery, and to give or withhold a license to practise that art, or any department of it, according as he shall be found qualified. To that privilege there is no exception whatever. It is otherwise with regard to medicine. Whether the faculty have or have not acquired by usage a right to examine in medicine, which was not conferred by the charter, a testimonial or diploma from a university where it is taught, constitutes a good title to practise, and to exempt the possessor from the necessity of obtaining a license from the faculty. But in surgery, neither a license from the king's and queen's physicians, nor the diploma of a university, nor any other ground of exemption, is admitted. This being the import of the charter, it follows, that if the Crown had power to grant it, the individuals, parties in this cause, who have obtained diplomas as masters of surgery, may, notwithstanding, be interdicted by the faculty, unless they submit to trial.
“To escape from this conclusion, the university of Glasgow, who are the pursuers of the declarator in these conjoined actions, have put a different construction on the charter 1599. They maintain that surgery is a department of medicine, and comprehended under that term; and hence they infer, that as a testimonial or diploma from a university is declared in the charter to be a title to practise medicine, it must be held as a title to practise surgery also. We are of opinion that that plea is unfounded. Medicine and surgery are essentially different; science and observation alone will qualify an individual to practise medicine, but to the successful practice of surgery, manual dexterity is also and chiefly requisite. It is proved by the documents in process, that they were separate professions in the
“In support of the same view, the pursuers of the declarator hare argued that the faculty have no power under the charter to interdict the practice of surgery by unlicensed persons, except by virtue of the fourth clause, or, as they term it, the prohibitory clause; and then only on the assumption, that surgery is there comprehended under the term medicine. But this is plainly a mistake; for the first clause confers express power to admit and authorize those who are qualified to practise surgery, to discharge or interdict those who are not qualified, and to compel all surgeons to appear for examination by means of fines and imprisonment. The first clause, therefore, is no less prohibitory than the fourth; but the fourth, which applies to medicine, admits of an exception, while the first, which applies to surgery, does not.
“The chief ground on which the pursuers of the declarator rely, is, that the Crown has no power to erect a corporation of surgeons, with privileges which the charter would confer, if taken in the sense in which it is construed by the defenders, because such privileges would be inconsistent with the rights of the universities established before the date of the charter; and, in particular, would derogate from the effect of their diplomas in medicine, which are said to give authority not only to teach, but to practise. “With regard to the power of the Crown to erect a corporation of surgeons, with exclusive privileges, the usage of Scotland, as well as of England, and it is believed of every other feudal country in Europe, is decisive. The London Corporation or College of Surgeons, with exclusive privileges, and particularly with the privilege to examine and authorize practitioners of surgery within their bounds, was erected in the reign of Henry the VIII., and sanctioned by various acts of Parliament in that reign. Similar powers were also conferred, in the same reign, on a college of physicians. In Edinburgh, the corporation of surgeons was erected by a seal of cause in 1515, which was afterwards ratified by a charter from the Crown in the reign of James V.,—and the corporation was established as one of the deaconries by the decreet-arbitral of James VI. The exclusive privileges of those corporations have been sanctioned by various decisions in both countries, both as to monopoly of practice and the power of granting licenses. With regard to the privileges of the universities, it must be remembered that they were of old ecclesiastical corporations, and that their testimonial or diploma confers no civil or municipal right, except in so far as is allowed by statute or usage. In the words of the Court of King's Bench, in the case of West, ‘testimonials from the university, upon taking the doctor's degree, have the nature of a recommendation; they may give a man a fair reputation, but confer no right.’ On that ground, the Court
“When this Court, therefore, in the case of Steele just mentioned, found that persons, who had graduated at the university in physic, were entitled to practise physic in Glasgow without a license from the defenders, we apprehend the judgment proceeded, not on the ground that the diploma per se conferred that privilege, to the exclusion of all corporate rights, but, on the contrary, that it proceeded on the ground that the charter of the defenders contained an exception to that effect—an exception, as already observed, confined to medicine, and not extending to surgery.
“The pursuers have said that, at the date of the charter of James VI. in 1599, surgery was not taught in any of the Scotch universities, at least degrees in surgery were not conferred; and they state this to be the reason why a university's testimonial in surgery is not recognised in the charter as an exemption from the Faculty's right to examine and license. Farther, they say that no degrees in surgery were granted from that time till after the action against Steele and others occurred; and that this accounts for the judgment of the Court in that action, by which it was found, that a degree in medicine is no license to practise surgery. It is unnecessary to remark the inconsistency between this argument and the position they previously maintain, that a degree in medicine comprehends a degree in surgery also, as a department of medicine. But if we are correct in the view now taken, even if surgery had been taught at the date of the charter, and degrees in surgery granted, they would have conferred no exemption, unless an express exception to that effect had been inserted in the charter; since university degrees cannot control the privileges of a corporation, unless it is so provided in the charter of erection, or unless a law to that effect has been subsequently introduced by statute or usage. Nor did the judgment in Steele's case rest on that ground; for it was observed on the bench, that there might be good reasons why surgeons should be examined by the Faculty in Glasgow, though they held university degrees.
“We are of opinion, therefore,—
“1. That the Faculty of Physicians and Surgeons in Glasgow are a legal corporation.
2. That the Faculty, by virtue of the charter 1599, ratified by Parliament in 1672, have power to debar, from the practice of surgery, persons who have not submitted to examination before them, or who have not obtained their license to practise.
3. That the degree of doctor of physic from a university where medicine is taagat, does not entitle the graduate to practise surgery within the bounds specifiadin the charter, unless he obtains a license from the Faculty.
4. In like manner that a testimonial of skill in surgery from a university
“To these observations it may be proper to add, That we entertain no doubt that there is a university at Glasgow, with as ample power to confer degrees as any other university in the kingdom. It has been recognised in grants from the Crown, by royal visitations, in public statutes, and in decisions of this Court, in a great number of instances. The mistake of the defenders on this point seems to have arisen from their confounding the University of Glasgow with the College of Glasgow; but those bodies are distinct, as was found by the decision of this Court in the case of Muirhead against the College of Glasgow, 16th May, 1809.
“We think it unnecessary to enquire, whether the University of Glasgow has power to grant degrees, or testimonials of skill in surgery. Admitting that the university possesses that power, and supposing it had been exercised from the date of the erection in 1450, we are of opinion, on the grounds above stated, that such degrees or testimonials would be of no avail in a question with the Faculty. If they had been in use at the date of the charter, it is possible that James VI. might have admitted an exception in their favour, with regard to the practice of surgery, as he has done in favour of medical degrees with regard to the practice of medicine; and as they are now granted, they may perhaps induce the Legislature to restrict the privileges of the defenders. But as the law stands at present, we are of opinion they cannot control the express and ambiguous terms of the charter 1599, ratified in Parliament, and uniformly acted upon.
“We have not taken into view the plea of prescription urged by the defenders. Their case would certainly have been much more doubtful, if they had been compelled to resort exclusively to that plea. Although they had from time immemorial exercised the power of debarring from the practice of surgery those who had not submitted to examination, even including graduates in medicine; yet, agree. ably to the maxim, tantum præscriptum quantum possessum, that usage would not have conferred a right to exclude those who had the university's diploma of skill in surgery recently introduced, assuming that the university has power to grant it, which the pursuers maintain on very plausible grounds. But the defenders, standing on their charter, are entitled to plead that their privilege strikes at every person not expressly excepted, and the charter contains no exception applicable to the practice of surgery.” *
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Note by Lord Medwyn.—“I entirely agree in this opinion. When this cause was pleaded before me in the Outer-House, I early formed this opinion, and would have so decided; but I thought as the case had been very anxiously and elaborately pleaded, and as a great variety of documents bad been founded on, that it would be presented for review in a more convenient form, by having written pleadings on both aides. Afterwards, when the University appeared to support the effect claimed for their degrees in surgery, I thought it more becoming the respect due to that learned body, to obtain at once the decision of the Court, although my own views of the case were not in any wise altered by their appearance or pleading. I therefore made avizandum with the cause, and, according to my usual practice in such cases, without presuming to offer any opinion of my own.”
I entertain no doubt that the defenders are a corporation, entitled to exercise exclusive privileges, according to the terms and true meaning of the original charter in their favour, in 1500, But I am of opinion that, except in so far as they acquired such rights by that charter, and by the subsequent ratification of it in Parliament, they cannot maintain any prescriptive title in the particular matter in question, to the prejudice of whatever rights and privileges may be rested in the University of Glasgow.
I can entertain no doubt, that the pursuers constitute a University in the amplest sense of that term; with the fullest powers of conferring degrees, in all the departments of art and science in which it is competent for any other University to grant degrees.
Considering this to be clear, I am farther of opinion, that the University of Glasgow have power to grant degrees in every department of the science of medicine; and that the degrees which they have power to grant, do, according to the law of Scotland, constitute a valid license generally to practise the art, according to the terms of the diploma granted. I do not doubt that there may be special exclusive privileges constituted in favour of other bodies, which will be sufficient to prevent the exercise of such rights in particular places or circumstances; I speak at present of the effect of the degrees generally.
It farther appears to me to admit of no reasonable question, that the art of surgery is a branch of the general science of medicine, which it is perfectly competent for any royal university to teach, and in which, upon due examination, they may grant degrees, which will be equally effectual as licenses for practice generally, as any other medical degree which it is in their power to grant. Nor do I think that it at all militates against either the competency or the effect of such degrees in surgery, that, until lately, and since the establishment of a regular teacher of that art within the University of Glasgow, they had not been in the use of granting similar degrees; seeing that the power appears to me to be inherent in their general character as a University, and such as could not be lost by the lapse of any length of time during which it might not be exercised.
Having this opinion on the general points agitated in these papers, I think that the question between the parties depends on the construction of the charter 1599, on which the title of the defenders rests. If that had been a simple and absolute grant of exclusive privileges, in a branch of science not then regularly taught in the University, it must have been effectual, at least when ratified in Parliament, to subject all persons whatever to the force of its provisions. But it is qualified, and in all its structure extremely peculiar. Although, therefore, I feel the force of the arguments employed by the defenders, and the weight of the views entertained by other judges, I still have considerable doubt, whether it ought to be so construed, as either in intention or in effect to operate to the prejudice of the University.
It has already been determined in the case of Steele, in 1819, 1st, That the privileges of the defenders, as a faculty or corporation, do not affect the holders of degrees of medicinal doctores, in the practice of medicine or physic, in the limited sense of the term, as ordinarily understood; and, 2d, That the holders of such degrees are not, by virtue thereof, entitled to practise surgery within the bounds of the charter, without submitting to examination by the defenders. The question
The commission constituted by the charter consisted of the king's surgeon, and Mr Robert Hamilton, professor of medicine, and their successors. And it does appear a little singular, that, if surgery was regarded as so perfectly distinct from medicine, as not to be comprehended within the latter term in any sense, a professor of medicine should be one of the two commissioners appointed to examine persons in their knowledge of the art of surgery, and grant licenses to practise it. He at least must have been held competent to the examination, and by implication himself competent to the practice of the art. The object of the charter was to prevent ‘unskilled and unlearned’ persons, who, ‘under the colour of chirurgeons, abuse the people,' &c. &c., from carrying on their practices. To attain this object, ample power is given to call before the commissioners ‘all persons professing or using the said art of chirurgeon,' to examine them on their knowledge, &c., to grant licenses according to their fitness, and, in case of contumacy, to impose fines. There seems to be no doubt, that, in this part of the charter, it relates specially to surgery, as contradistinguished from the other branches of the science of medicine. But I am not satisfied that this affords a complete solution of the question.
The fourth article of the charter prohibits all persons within the bounds ‘to exercise medicine, without ane testimonial of ane famous university where medicine is taught, or at the leave of our and our dearest spouse chief medicinaris;' and authorizes the commissioners to challenge, pursue, and inhibit, such persons from the practice of medicine, under the pain of £40, &c. It is clear enough, that here no power is given to the visitors to examine persons in medicine as different from surgery, the right of practising it being made to depend solely on a testimonial by a famous university, or the leave of the king's physicians. And so far there is a marked distinction between that case, and the case of the practice of surgery. But still this express acknowledgment in the body of the charter, of the rights and privileges of the universities, appears to me to be of very great importance in the question, Whether it was intended in this charter to create any collision between the rights and powers conferred on the commissioners, either in regard to surgery or in regard to medicine, and the vested rights and privileges of the royal universities?
It is clear that the rights and privileges of the universities were not overlooked. And if it be granted, as I think it must be, that, if at that time surgery had been specially taught in the University, the University might then have granted degrees in surgery, the question appears to me to be, whether the right to grant such degrees, with their ordinary legal effects, shall be held to have been taken away, or in this case excluded by implication; or, in other words, whether it required an express clause reserving them to save them from the operation of the first article of the charter.
The view of the general scope of the charter which I should be inclined to take is this: That the art of surgery, though of great importance to the public, was considered as an inferior branch of the science of medicine; that to prevent the abuses referred to in regard to surgery, and also to prevent unauthorized persons from practising medicine generally, it was expedient to institute the commission;
The difficulty, therefore, which I have, is to see how, while the privileges of the University generally with regard to medicine as then taught are expressly recognised in the charter, and their power to grant degrees in surgery cannot in my opinion be doubted, it can be held, on a sound construction of this charter, that it was intended to have the effect, or can legally produce such effect, of excluding or impairing the efficacy of such degrees in surgery, when legally granted.
I must, however, distrust my own judgment, teeing that the same difficulties have not been felt by the other consulted judges.
The cause was now put oat for advising.
The Court accordingly, in the declarator, sustained the defences, and, in the suspension, found the letters and charge orderly proceeded, without prejudice to any question as to the fees payable on admission by the Faculty.
Solicitors: W. A. G. and R. Ellis, W.S.— Horkirk and Imlach, W.S.—Agents.
