Page:Introductory Address on the General Medical Council, its Powers and its Work.djvu/18

 within the meaning of the Act. The course the evolution actually took is, however, exactly that by which the Common Law of England has reached its present form. As Sir Henry Maine (Ancient Law, chap, ii) reminds us: "We in England are well accustomed to the extension, modification, and improvement of law by a machinery which, in theory, is incapable of altering one jot or one line of existing jurisprudence. The process by which this virtual legislation is effected is not so much insensible as unacknowledged&hellip;We do not admit that our tribunals legislate; we imply that they have never legislated, and yet we maintain that the rules of the English Common Law&hellip;are coextensive with the complicated interests of modern society."

The development of the germ provided by the Legislature has been from within as well as from without. The decisions of the Courts of Law have caused the Council to expand into a recognized and independent Tribunal. Its own judgments in a succession of actual cases, decided by it after due inquiry, have gradually built up a body of precedents and rulings which may fairly be described as forming the Common Law of Medicine. I said at an earlier stage that the Council had no power to legislate or to make by-laws, except for its own proceedings. That is strictly true of the Council considered as an enacting body. It is equally true of the ordinary Law Courts; we do not regard them as parts of the Legislature; they do not frame new statutes. But, as we have seen, they do in effect develop law if they do not claim to make it. And the developed law may be, and indeed is, more comprehensive and more adaptable than the statute law, of which it professes to be no more than the interpretation.

The Judges' definition of professional misconduct, like their definition of the province and jurisdiction of the Council itself, contains within it a principle which is in essence evolutionary and progressive. Whatever may be reasonably regarded as disgraceful or dishonourable by professional men of good repute and competency, is