The Sun. — London, England, 1823-05-08 00:00:00

1 Ne'f' sue'' l oci cl she LAW PROCEEDINGS. COURT OF KING'S BENCH, APRIL 29, lan THE ZINO V. THE VICE-CHANCELLOR OF THE UNIVER. SITY OF CASIBSIDUE. ( Continued from our Paper of yesterday.) SECOND DAY. Mr- -ALDERSON—I am now, my Lords, my Learned Friends having both ,been already heard, to continue the argu trient on the part of the University. of Cambridge, and to sub mit such observations as I have to offer to your Lordships, why the rule should not be made absolute, and I shall take the same course as they have pursued. I shall proceed to consider, first, • whether a man d amus will l i e at all. My Lords, I apprehend that the rule upon this subject is, that a mandamus will not lie for any office, unless that office be accompanied with some cer itain and definite benefit to the party who is elected. Your 'Lordships are aware that this question has been agitated be fore in this Court on a former occasion. I have since looked into the cases which my Learned Friends on the other side then Cited in order to support their position, but I can find none ; and thereffire I suppose there are no cases which will apply for neither by my own researches, nor by the researches of those who are opposed to me, has any case been discovered, where a mandamus has been granted for an office of this description, without either a salary or some other definite advantage an nexed. Mr. Justice BAYLEY—Ts there not an instance of a man damue to elect a regius professor ? 'Mr. ALDERSON—The regius professorship, my Lord, has a salary annexed to it ; and I should take that as a strong argu ment in my favour. My Lords, I apprehend that your Lord °hips will find, with the exception of those offices which concern the ad m i n istration of public pistice_, which stand on quite a dif feteot ground, th e ru l e w hi c h I have laid down will be found accurate; and it is a rule which will reconcile all the cases on the subject. My Lords, you will find it laid down in some eases, that a mandamus will lie for an usher of a school, snd the case of.llex r. llallivos de Morro'', which is to be found in lst Strange, page rat, has been cited to :thew that; but when You look to the report in Strange, your Lordships will find, that it was the case of an usher to a school, which was founded by Edward Vi., who, as it as very well •known, founded schools with salaries to the different masters, &c. all over the kingdom ; and I have no doubt that if that case were to be Investigated further it would be found that it was one of !he regular. foundation schools distributed all over the kingdom b y Ed ward 6th, w i t h a view of instructing the people, and to reform them from the errors of popery. Mr. Justice H °Laos - El—Where is that case? _ Air. A IDERSON—Your Lordship will find it in Ist Strange. ! ,( I:se it in corroboration of the view which I take of this case. ur Lordships will also find thatin Stamp's case, Ist Siderfin i t. in. Ann°. 1656, 1 4: . ,. Mr. Justice Twisden incidentally observes that it was held that no mandamus would lie for an usher of a school in Cambridge. Now, me Lord, it so happens that f th ere are no such public foundation schools in Cambridge. For tohat position Twisden cites Styles 458. So that there seems be a distinction between the cases. In some it is held that 2.1 rnamlamits will li e f or an usher of a school, and in others that t will not lie for th e same office. Now the difference between them is that in the one case , it is a n office accompanied by a per manent salary --.a foundation _ — a nd in the other case it is not so for the. a o e f e a on den i e d . , Atni my Lords, to take the case of a lecturer Your Lordsh ips Purpose of illustrating the same position. mit will find where the lecturer of a Church has been support e d by voluntary contribution, or paid out of the poor'; mandamus Coititilidestieh geerannitleiddhnot to. turershipbe such an office for which a but where that Lee. has a f oundation e y this Court,foun da t i o n is permanent and b annexed to it, and that damus to ad • eneficiul; then this Court has granted a man this also nut the person elected to the Lectureship. And called goes on the g round of the distinction to which I have your Lordships attention. No w , mY Lords affidav'l ook to what appears upon the face of these side nil:: concerning this office. It is not sworn on the other t there is an emo lum ent . It is sworn on our side that th is • y permanent S o ar ere is no permanent emolument, that there is no lessor y, tin feundation, no house; but that undoubtedly thepro iiee, maY, as any master of arts may, with the consent ot the from sof !louses, give lectures fur his own pro fi t ; and receive ill those persons who choose to attend him certain emolu ..,ents, which lie may regulate, or which may be regulated by the rVice Chancellor and the Heads of Houses, floc these lectures e only to be attended by those who choose, wadi is putting T;yotoJidtiblee ground a voluntary contribution, and I submit it for the monstrous for .your Lordships to grant a mandamus . 3 no _ c, purpos e of admitting a master in a school where there _m_tft foundation, which would go the length of granting it to ; Ite master of ally school in England. in • ce require thri Has Lt.Y—Do the Statutes of the University t the professor shall at certain times give lectures ? 2 • iLDERSON—No my apprehend that the rule La. - Hli e t • ans person who is a Master of Arts may give lectures IA University with the consent of the Vice Chancellor and ,e . ads of H ouses , or of the Vice-Chancellor atone. My Learned 'lend lilt , Scarlett says professors may do it without such con- I s r!. Th a t d oes n o t a pp ear on t h e affdavits,and if he goes out Olen) I will venture to sa y h e w ill not find it in the St atute ,. It ill only an observation of Mr. Scarlett's, and it stands up on' his authority alone—for after the most laborious search I have been lble to give it ' is not to be found in the Statutes, nor d o I be ere i haa any foudatin. Itutt I apprehend n that it does appear from the Statutes that :Professor may be , prevented lecturing . . For the times when , t 1 the lectures shall be delivered are in the absolute . govern- L ten t of the Vice-Chancellor and Heads of Houses ; now, if ' tileY have the power of "regulating the times of the lectures, I Ppreherd they have the power of discontinuing the lecture al p l ethe r, for they might assign no time. But to resume the lit from which I have been diverted, I apprehend that there 0, 1 , 1 S? be something to which a professor can put in a claim a: t o , led to entitle him to a mandamus. Now what is there here ,„"oh he can put in his claim as ()fright. It was said in the tars,of the former argument there was a house.—lt was so terwl but that did, not appear by the affidavits, and when I a.f eeex•,,n_la looked into the Statutes, I found that the house in .f 4 , k TU was assigned by special grace •to the botanical . and in erit 'r: sl l professors. If, therefore, that *fact stated in argu h4,‘ d been originally stated on the a ffi davits, we should 8 4 4:Tut in the answer that it appears upon the face of the thexeu t 9 be assigned to some other persone,,--so much for it?e nottncidental observations, which are thrown out, and which it "uPPorted by affidavits. So, my Lord, •in like manner Lana _ , 1 4,. that there is an oath of o ffi ce : now the law of the rignires.him to take the oaths, which he actually does , L ake tumid Y, the oaths of allegiance and su premacy. Your .he r , „Pi Will recollect, that my Learned Friend interposed 14, ke0 Lr 7 Serjeant Lens so stated it, since . vfhich time I have it t o b' e T i t i f) the Statute to see what the provision is, and I find Practi 3erg 'a, that all persons teaching pupils, schoolm asters, . Like the of the law, as we all very well know, are obliged to loot e3lo ° pile of allegiance and supremacy ; and which, if a 'tith eet t ,u,nea not take, he cannot lecture—for he cannot do it 4 :11 „( taking these oaths. It cannot, therefore, be put as an ..,..rhen office applicable to this particular professorship. 14) rdit, there is no house—there is no oath of ~eer 40 , 6 7 1 ! is no special privilege, which this p_rofe,sur enjoys 'Rat i t er master of arts set out in these a ff idavits, except e t L 4 ' lo ll ;ell that these professors s i t uation walk in pr.o ••atk to sad he has a more prominent allotted to him " ;natt er o p Persons : whether your Lordships will think that ) t i °ll lvill I ,,,, ‘ 'idurtesy , ors statutable regulation, I cannot say,— , 41 1 Otheyr„,•7aLly think that it is rather a matter of courtesy ;;,e.rsoil now and whether it occurs to the memory of . any , matt- all when they were first so admitted, • to recollect „uweveeet fo onou Lordships to conjecture. It does not, sithi4aPPear the affidavits ; nor, as it seems to me, does s f4tiri le l nt h ich is the only thing upon which gi v e n g like yi rr e. ro could be founded—l mea n the salary byh i e s s 'Noy optic , Lordship* will observe, in the first place, i t _ oteeftile part of the Crown ; it depends on an annual ;he the IL o t srita us e of Commons, and it may be stopt in anyyear_e ev are pi V Chancellor shall t), 1 th at g iven on condition that the . ice veteforenal e lo many lectures have been given : It is given, e V is a toward for past work and labour, and not as a Lye.c h e _att to the professor, to be enjoyed by him, when the 'ttlrio "cenur and the Heads of Houses restrain him from for • e a :l e i If he were so restrained, he would not then re '', I "1' :It is not, therefore, matter of right. There hole "hulk • t hat looking at the facts and the -n if at all t o Your Lordships, t down.is once he cases, the rule which I have laid _ _ Cu °ne which can la d ted • arid ' by that rule, the C anTlOt ea op . a Your grant a mandamus here. e ott rdships will permit me, I will now shortly refer to at ‘e/i hick shi th e have been cited on the other nide, and first to e there V. the University ofCambridge (Ist Blacketon o , . i theq ue ere it was held that a mandamus lies for an office f 'atoth_ r'se and a ndwhic h a salary is annexed. fir 't ca se • v a l ue , to 1-tax, Ist th Is, that of a Commissioner of the Lam forteZ lB , 146. ; those were cases which were cite d upon hatt:ltrkinter Qecasion Y o ur Lordshi p s vill find in that Last i t •. ed for the Was an office to which a galary was annex , d on i t % r , a,',:owed to receive three-half-pence in the pours '4ad tell • the third is the case of the King e'. the e, Level clearly an —orpotation, 6 East. 350, that was . hs ' ; lt eiatio Ile tat.Y. It is stated distinctly in the case that the tid es e c ertain n ets had a Power to appoint a clerk, who was to °ti ed t 4, fixed salary and I suppose it was held and con -4141 " e su ffi cient to ;hew the nature of the office by the . Atapt, which was to an office with a salary. ruhltiatlCS L., , BAY L I Y—lt was the office of Registrar of the th w '"urd Wet th uief J tal.tice ABSOTT—The Act of Parliament au t, etri to meta registrar with a salary. ••••eietesoar,....ln point of fact, my Lord, there is no doubt there was a regular salary. My Lord, there are two' teat an usage to elect anterior to the Slatutes nam time imme other cues ; the, one the case of the King v. Barker, 3 Burrow, modal, and down to the day on. which that case was deter , 1265, which was the case of a mandamus to admit a dissenting mined. Your Lordships therefore see that ease is perfectly dif. pastor to the use of a pulpit. But in that case there was a erent,and upon the ground put by my Lord Mansfield. For foundation by an individual, who had bequeathed a Meeting either it is not included in the statutes at all, or if it was House and a garden to the Trustees, for the purpose that the included in the general statutes of the University, the usage pastor of the congregation might enjoy them. That was, there- proves that they did not accept that part of the charter. fore, an office to which was annexed something of a fixed, per. Mr. Justice BAYLEY—The University has existed as a manent, and valuable nature ; the 'other was, the case of the University beyond the time of legal memory. King v. Blooer, 2 Burrow, 1043, which the case of a donative Mr. SCARLETT—They have h a d t h e statutes since the time of a Chapel endowed with land. So, my Lord, looking through of Queen Elizabeth. all the cases, it seems to me, that the same principle may be Mr. ALDERSON—The University, my Lord, existed long deduced from them all. Having called your L or d s hip s at . b e f ore t h e statutes o f Elizabeth. There are in the printed sta tendon to the affidavits, and having submitted that they do tutes now before me statutes of Cardinal Pole, of Edward VI., bring this case within the principle deducable from tho se w hi c h o f H enr y VIII., an d t h e Antigua Statute, to which no date can have been cited, I shall leave this part of the case to your be given. • Lordship's consideration. Mr. Justice Beyr.EY—ls the power of making Graces in Aly Lords, there is one other point however on this question, the University by prescription ? wholier a mandamus can be granted at all, which I think has Mr. ScaneETT- e -Yes, my Lord, I apprehend it is. not yet been mentioned to your Lordships, and which a pp ears M r . Aimee soo—There my learned friend is again wrong. to me to be a matter of considerable importance. I omitted The very first statute of the Antigua Statute is entitled "de on the last occasion to call your attention to it. Your Lord- modo statuendi." It is as follows:—" Auctoritate totius ships are aware, that in the case of the King v. the Bishop o f u n i vers i tat i s Cantabrigite, tam rep d= entium, quam non-men Exeter, 2 East 462, it was held that a mandamus would not ordinatum est quod in statuendis rebus et negotiis utilitatem lie. My Lord, there the question arose, whether Mr. Rowe communem dicta universatis conceinentibus solum illud pro had' a right to be admitted to the lecturship ; and it is with a statues habeatur, quad tie consensu niajoris et sanioris, pares view to that part of the case only that I ant calling your Lord. dictorum, regentium, et de consensu non regentimn fuerit ships attention to it. The question there was as it appeared statutum per decretum, salvo regentibus exercitfo statutorum upon the face of the proceedings as to Mr. Rowe's right. It non regentibus, non reservatorum cum dispensatione super appeared that John Dudderidge, by his will, d a t e d 1658, (th e e a d em ." , date of which is material) devised a rent charge of 501. per an- Mr. Justice BATLEY—The date of those statutes is not num for the use of the Lecturer in the parish of Fremington, known, I suppose. • in the county of Devon, for ever. Now, it appeared, my Lords, Mr. ALDERSON—No my Lord; the contents of this book and the Court took .notice of it, (it being a matter we ll k nown were collected by a syndicate in later times, and then it was by the public histories of the country) that this had taken place that these statutes were reduced into order from the ancient re st a period when the Episcopal Constitution of the country was cords of the University, and they have always been acted upon, suspended, and the Court held that in asmuch as there was no and considered binding, unless altered by subsequent charters. Bishop at the time to give his consent to the original endow. Mr. Justice BAYLEY—The statute egu cite gives, I ob. inent, and there being no immemorial custom, the grant hay- serve, the power of making graces to • the regents and non ing been made within the time of memory, the endowment regents. could not be supported, and on that ground they refused to Mr. A term nsoo— Your lordship ,rill observe that origin grant the mandamus. ally the Senate consisted of regents arid' non-regents alone.— Mr. Justice BAYLEY—They refused the mandmus ? The caput was afterwards added by the statutes of Elizabeth. Mr. A eriEusoo—Yes, my Lord, they refused the menthe. And here perhaps I may observe, that yesterday some doubt mus, on the ground that as there was no Bishop to give his . was started as to the e xt e nt o f th e aut h or i ty o f t h e ca p ut . I consent to the endowment, it could not b e c ons id ere d as va lid. will shew your Lordship what the authority of the caput is.— . Mr. Justice Hontoith--Where is that case ? It is in the forty-first statute, page 252, where your Lordships Mr. At.DEnsox—lt is in the 2d East, 462. Permit me will find it—" Iloruni autem authoritas est in omni senatu et now to call your Lordships attention. to the time when congTegatione de omnibus petitionibus pries decernere quern these professorships were founded—the first of them was ad reliquum senatuni deferantur its ut mile gratis) golie ap founded in 1702. It appears byi the affidavits to have prodentur et regentibus, et non regentibus proponantur in quas been so founded. There were therefore none of these eorum singuli consensorint et non alien. Et siquicquam a senate professorships founded anterior to the statutes of Queen Eliza- petatur vel concedatur quod non sit prim; istoruin judicio et Beth, which were made in 1572: I think that is the date of the assensu comprobatum nuilunt erit omnino et invalid= nisi his statute of Queen Elizabeth. The exact date is not however statutis nostrum alitu cantum sit ;" and therefore, my Lords, I material, the only point being, that the first foundation of any apprehend, that whether we use the word " pl aceat , ' or whe. of these professorships was after the statutes. Then the ques. ther we use any other phrase, it is immaterial. It requires the tion is . , whether the University had power, after the statutes of consensu s o f e ver y individual of the Caput, before time grace Elizabeth, to found a professorehip, with a mode of election to can go t o t h e o th er H ouses ; an d l am quite content to take it it contrary to that prescribed bf , the statutes of Elizabeth. If with the word consenserit, instead of the word placuerit. But they had no such power, then this case falls to the ground, for to return to the course of my argument. I say, therefore, my it would make it exactly parallel to the case, the vacancy of the Lords, that th e S ta t ute of Queen Elizabeth clearly includes Episcopal Constitution in 1058, inasmuch as it would become Lectores in it, and those Lectures include all professors. But impossible for the Senate to have originated legally the custom then it Is said that it does not include all the professors insti. contended for elan open election, so as to make it binding upon toted since the Statute. Now I will read to your Lordship; subsequent parties. Now, your Lordships will find that the the words of my Lord Mansfield, in the case of the King v. power of making graces for the University of Cambridge is not the Bishop of Ely, 1 Bl ac k s t. 87. L or d Mansfield says, " All absolute but restricted. The restriction is this—" Eident can. ingrafted fellowships are upon the same footing as the old ones, cillario cum consenstt totius acadonhe licebit nova statute ad except they are received upon particular terms by a special eruditionis amplificationene et decori atque lionesti conserve. form of foundation, and a special manner of acceptance." It tionem inter sc molasticos beholden) sancire sic at ea his decre. becomes, therefore, incumbent Upon my learned friends to ti: noatrfa nihil detrahaut aut of/iciant. shew, that if this professorship be subsequently created, it was Lord Chief Justice ABRoTT—What statute is that ? .'ceepted by the University by a special form of foundation ; Mr. A ettEnsore—l will give your Lordship the page—it is for if it was not accepted upon a special form of foundation, page 253 in the book that I handed up this morning. according to the rule, whi c h a ppli es to a ll cases o f t hi s d e . Mr. Justice BAYLEY—Then your argument will be, every scription, it falls within the above general rule, which is ap. grace since, except those in which they have pointed out a site- plicnble to all fellowships and professorships. Now, that be. cific person, would be bad ? ' • ing the rule, is there any special form of foundation to be Mr. ALDERSON—Yes my Lord, I believe it would b e so f oun d h ere ? I mean particular form, calling the attention of certainly, and I believe duo is the truth and the solution ache the University to a particular form of election. My learned whole difficulty. My Lord, I apprehend, therefore, that the friends will immediately say, there are the words "a vobis eli. right to make graces is thus restrained, and otherwise your gatur." Now, I apprehend that these words do not point out Lordships will find that it would be very inconvenient; for what any particular form. Look at the whole of the words of the would be the use of fixing statutes to regulate a particular man. grace, " Placeat vobis ut alias ad idem minus exequendum a net, which could be afterwards altered and destroyed at the vobis cligatur." Now, according to all fair construction, the pleasure of individuals, so that the question here will be, whe. first and second vobis must mean the same persons. Does the ther or not a grace instituting an office of this - sort, made sub. first vobis mean, that the placeat is addressed to the University sequently to the Statutes of Queen Elizabeth, 'would be good in a mass ? No, it is to the University arranged in its diffe. at all unless it specially designated the person who was to fill rent Houses—the Regents and Non-regents. The placeat, at the office. all events, is Addressed to the different bodies of the IJniver. It may be asked how I account for the subsequent instances. city. So that the words "placeat vobis" meanie ntey it please I will shew your Lordships why they would probably never be the; UniCertity. Then time whole sentence being " placeat vobis called in question. Suppose a grace passed for continuing the ut alias lid idem munus exequendum a vobis eligatur;" and professorship, and directing aparticular mode of election, and all the second vobis being the same as the first, it means "placeat persons agreed to it. What is the consequence ? If i t be. Academire ut alius-adidem minus exequendum ab Academia bad—then there can be no valid election at all—because there eligatur." - That is the plain and fair meaning of the words, is no professorship at all. If the grace be good, the pmfessor and that is the only meaning which can be given to them, must be elected in the particular way pointed out. Nobody, which will not involve a contradiction in the words themselves. therefore, would be interested in raising any question. There- Now, suppose the words were " placeat Academism tit alitis ad fore I sub m i t to y our L or d s hi p t h at t h e consequence which idem ilitintiS exequendum ab Academi a e li gatur ;" iihat would learned friends give to thes e instances ought not to weigh m uch then he the construction which your lords pips, as reasonable in the consideration of the present question. persons, would put upon them ? I say they must mean that Mr. Justice BayLEy—Theu you see, after they have used the person should be elected "ab Academia,—Academico a grace, that A. B. should till a certain office, they might the More." Now, in order to know what is the usual academical next vacancy say that there should be no election, considering way , we are to look a t th e S tatutes of the University ; and the the office as at an end. Mr. A euensox—Yes, my L or d, an d I cons id er agreeably . 1 40safiyi,S, m ta t ) ut i e ,o p m oizts y o o u u t o t u li g e h p t an to icu co la n r stru mo e de th o e f g e r le a c c t e ion mo . in A s n to d to what fell from my Lord Chief Justice when this case w a s ma k e it, if possible, consistent with the Stanite ; because. if argued before that it would be a very dangerous principle 'to the grace be contrary to the Statute, I have before shewn that establish ; that after once i nst i tut i ng a professorship, t h e U n i. it will b e b a d . I f, then , we hate a grace containing ambiguous versity would be bound w i t h out any f resh grace to fill it up words , which if construed one way w ill b e op p ose d to the Sta. whenever it was afterward s vacant . cute, and therefore invalid; but it' construed the other way, will Mr. Justice BAYLEY—No, Ido not think so—there i s no b e cons i stent w i t h tile Statute, and therefore good, I apprehend doubt that the University may ma k e an experiment, anti after. th a t your Lordships will pu t t h at construction upon it, by which wards refuSe to continue the , professorship if they think fit. i t will stand, and be conform a bl e to the Statute. And, I say, t h e Mr. ALDEIIeON-- But if it were • to require a grace to alio• plain and strict meaning of the words upon the face of the grace lish it, one man might stop the whole by putting a negative on itself, is, that the person is to be elected by the University. in it in the Caput. thestatutable way, and that it must have been so understood by Mr. Justice BAYLEY—I have no idea that it would require them. Now, my Lords, there is one most striking confirms. a grace to abolish it. Unless it is made permanent in the first don of this observation set out in our affidavits in page 0. It instance, it requires a grace in every instance to continue it. is there stated, that according to the custom of the ITniversity. Mr. ALDERSON—That is the view I take of it, unless there upon this very occasion. an English notice warm promulgated be a permanent foundation. Now, my Lord, this brings two days before the grace was brou g h t i n , w hi c h c l ear ly s h e ws me to consider the que s tion, wh e ther the ele c tio n bits proceeded w h a t was the meaning of the Party who brought it in. And, it in the mode which this restriction in the statute of Queen Eli- ! th ew s what the University must have understood. This notice zabeth directs, and that brings me to the consideration of time was promulgated and spread before the very body of persons statute under which the election ought to be inade, that is the who a re now complaining, and one of the grounds of their corn. fortieth statute. Now, my Lord, that statute speaks thus— plaint is, want of notice. The Vice-Chancellor states this ; " Nominationes et electiones lect,Ornin hedeliornm stationa- " that the grace of the 15th day of May was proposed in pus. riorum gageatorum vinopolarum et aliorum niinistrorum see suance of a notice printed and circulated on the lath, that is, officiariorum acatlemite quorumcunque." Now, my Lords, two days before the election, stating the object of the grace in. observe the position in which this statute stands, and where it tended to be submitted to the Senate at the Congregation on comes in. It follows a variety of statutes, describing the vas the said 15th day of May. and that the object of the grace was rious modes of elections in particular eases. 'I here is the sta- stated in the words following, that is to say, "to determine whe. Lute describing the mode of the election of the Chancellor, the ther the professorship of Mineralogy, h e ld by the late D r . Vice-Chancellor, the Procters, scrutators, 'l'axors, Auditors, Clarke, shall be continued." In pursuance of this notice, the and Keepers, and in some respects of the Beadles also ; and grace was brought in, containing the words, " a vobis Olga. then comes this as a general clause, which says, that all the tur."—Now, they say, though there was a notice in English, rest of the officers of the University are to be elected in a parti- stating, that time only object or the grace was to determine, cular mode and form. Now, my Lords, after having named a whether the professorship should be continued as it would b e , particular mode of election of officers, and gone through them, according to the construction we put upon it, that the grac e tt was natural for the persons who framed the statute of Queen provided not for this only. but that also that it should be con. Elisabeth to putt in a general st a tute, to incl u d e all those whom tinued by a particular mode of election, they wish to ann ex to they had not particularly neined before; therefore, if it were th e gen e ral words some other condition. That the wo r d s doubtful whether " lectores" in c l u d e d all professors, I think o a vobis eligatur," require some argument to :thew they include your Lordships would soy that it must include them, because some particular mode of electionontist be admitted on all hand s* it was obviously intended to include all the officers who were They admit the object was to continue the professorship; but not particularly mentioned before. If t h e argument could be t hey w i s h now to i nc l u d e i n i t somet hi ng else by inferente„ earned no further than to shew, that in fair construction which, if it had been expressed wouldnveelylli, that the kelyhtivmepores c r aused . that word would bear the same meaning as the word " pro. th e gra ce to be th ro wn out'ttltogether, alley, fessores," 1 say that your Lordships would give that mean. sot s h ou ld b e e l ecte d i n a particular manner—not by previous ing to it, rather than one contrary to the plain and palp- nom i nat i on, but" more burgensium." able intention of the statute. But I need not have re. Mt' .Justice BAYLEY—From whom does that notice come? course to that argument at all, far time words lector and Mr. ALDERSON—From the Vice-Chancell or; an d i t i s cir professor, as I shal l have occasion to chew, are perfectly syno. ciliated throughout the whole of the University. nimous, and lam quite sure that there is no hypothesis what- eh. Justine BAYt.EY—I will ask one question ; suppose ever, however refined, which can account on any other view of i nstea d o f the grace that there is to be a new professor in the the case, for the manner in which t h ese wor d s are used in the form " a vobis eligatur," they conic to a determination th a t third anti fourth sections of the s tatute , so s inot to be subject A. B. shall be elected, would that be conformable to the no to sonic plain and palpable objection ; for it clear not only tice ? I ask for information. that these words mean the same, but that those very persons, Mr. A rase nsoN—l think that would not be conformable to .whom the opposite side contend to be the lectores meant by the the notice ; and lam satisfied it would be the duty of the Vice. 40th Statute itself; those every per ti h' sons, me o I say, now ames Il e time Chancellor. or so me ot h er meru b e rof th e C aput, to stop such a Barnaby professors, buto, in t e fJ, were grace. .1 have known many instances where a grace has been called lectores, are there called profeesores. So that, in the 3d stopped in the Caput, either upon the ground of its not being and 4th Statute, we have this word lectores applied to the pro- confitrrnable to the notice, or an insufficient notice. fessors of theology, law, and physic, anti of the Greek and He- Mr. Justice BAYLET—So that they may vary the language brew tongue, wito are now called regius professors; and then if they think fit. If it i s expressed in equiv oca l terms, they may we have the word professor applied to the Baruaby lecturers, alter it or reject it ? who are there called the professors of mathematics, the pro- Mr. A enEnsoer—Yes, my I,ord, I conceive so; but lam tenor of rhetoric, the professor of logic, and the professor of only using this noti ce to s h ew , th a t i n conetruint these words th a stronomy. I submit, t h ere f ore , to your L or d s hip s ' clearly, w e s h ou ld ta k e i nto our consideration that whic h may fairly that all professors are included in this word lectores, and fall be supposed toh ave b een i n t h e m i n d o f t h e persons using them; within the 40th Statute. But then, in the former argument, I say that the fair me an i ng o f t ime University was, that e pro. the ease of the High steward was c i te d, an d it was said that feesorship should be continued ; and I use it therefore in car_ the case of the High Steward was held by this Court not to roboration of my construction of the words " a vobis elegatur." fall within the 40th Statute. Why, my . Lords, for a very good Now, my Lords, another thing is suggessted, viz. that we reason. In the first places according to the usual construction do not swear that we believe that to be the meaning. I will of Statutes, you begin with a person of th e greatest conse- tell your Lordships from what appears on the affidavits—af. guence and it wouldhave been very singular if, in constreing this ter a misu n d erstan di ng was said to have t a k en place, the b tatute , co mmenclng with " Lectorum iledeilorum teleionario. Vice-Chan cellar brought in another grace, stating, that rum, &c. et aliorum rnihistrorum seu o ffi ciariorum, tile Court it Iliad been su ggeste d to him that some misunderstand. should have determined that the High Steward, who is superior ing had taken place on this grace, anti he brought in to all the others, co uld be included in the words " mi- a grace th at i t be rescinded, which was thrown out . B y whom, nistrorunt. But t here is another answer. - th e High Steward I must leave your Lordshipi to conijectuie. wa s an officer elected in a particular enarle loog. antecedently . Mr. SOLICIToII-GENERAL—T iere is nothing of that kind o t he Statutes of Elizabeth . Subsequently M•theee Statutes, on the a ffi davits. he has uniformly beet' eleeted in the game 'illy, so that there Mr. ALDERsOri—I thought it had been. I run told, my Lord, that it is not set out in the affidavits ; if so, I am not en. titled to tbrm any argument upon it. There-is, however, my ,Lords, another thing which does appear, and by their affi. davits. They say, that the 40th Statute only applies to annual officers, whereas some of the persons who are expressly named in it, are officers for life. I will first mention the beadles ; it appears from our affidavits that they hold f or life. If my learned friends doubt it, I will chew it to them from the Statutes. Mr. Tr ignat.E—NThe uniform course is, that they come on the annual day of election of the Vice-Chancellor, and lay down their maces of office, and then take them up again. Mr. ALDERSON—That is also provided for by the Statutes. Now, we will see what that is—your Lordships will find it to be stated that they lay down their maces, quasi officium deponentes " which are the w or d s o f t h e S tatute, an d you will also find . — Do not let my friends be too quick on this subject. Lord Chief Justi ce ABBOTT—Mr. Alderson h a s already reminded you, Gentlemen, that you are five to one. Mr. ALDERSON-1 am ready to go into the question, and to state such grounds as will satisfy even them that I a m r i g h t . My Lord, in p. 249, th e m od e of t he election of the " prwcones seu viatoretif armigeri," who are the game es the bedelli in the 40th Statute, is pointed out. And the Statute has these words, " et quanquam volumus unumquemque prwconum aut viatorutn sic electum et admissum ad omne tempos vitte awe in hoc officio pennunere nisi insignia aliqua culpa expul sionem atque ejectionem requirat quo diligentius tamen, &c. ;" and it then requires in order to effect this, that they shall on the first congregation after Michaelmas Day, submit themselves to. an examination, which is to give the Vice. Chan c el lo r, or the Proctors, as i t was originally, the power of removing them from their office if found deficient, and for this purpose that they should remit their fasces upon the particular occasion, and that the fasces should be again restored to them if it be found that they have not misconducted themselves. That is the whole effect of the form to which Mr. Tindale refers. The meaning is, that that they are ready to subject themselves to a n examination. So a form somew h at of a like nature takes place whenever the Vice Chancellor or the Kingcomes to the Univer.. sity. Then they lay down their fasces as a mark of honour. Lord Chief Justice Annovr. The Statute goes on to pro vide for the removal from the office. Mr. ALDERSON—It first says, my Lord, that they are to hold it "ad omne tempos vita,, mute,' but subject to be turned out for tnisbehavour. It is therefore clearly an office for life, and those who instruct my learned friends that it is a n annua l office are mistaken ; on the contrary, it is held for life, and I am quite sure that it would excite great astonishment in the mind of the person who holds it, if it were decided to be an annua office. A. 8., ut duodecim termini completi in quibus ordinaries, lee tiones audiverit licit non omnino secundem forenum 3tatuti hec inajorem partim hujus libet termini una cum omnibus op positionibus responsionibus caiterisque exercitia per Statuti regia requisitis sufflci ant si ad reapondendum questions.".... My learned friend leas therefore stated, at any rate, thaehe bas heard these lectures, and no doubt I have said the sstat:i I say, therefore, that, shortly speaking, there are persons of higher rank and consequence in the University than , the new professors. That they are of higher rank is manifest, for it is necessary that every person who takes his degree should State that they have attended these lectures, whereas they are,not called upon to say they have attended the others; therefore taking them strictly, in an academical sense, they are of a higher rank and consequence. Mr. SCARLETT—IIIe grace for the degree dispenses with the. attendance at the lectures. Mr. ALDERSON—It is the form which is used upon every occasion. No doubt they are dispensed with. Mr. Justice BAYLEY—I fancy that it is a mere question of form. Mr. A T.DERSOet—They have stated that they were inferior in rank. I have given your Lordships my reasons for think ing that at the time of the Statute it was not so. We are now construing the 40th section of the Statute, and therefore we are supposed to be standing in the same circumstances as we should in the time of Queen Elizabeth. These were the lecturers who presided over the disputations at the time when King James the First attended the University. My Lords, I will now go into the question, whether these instances which occur in modern times make any thing like a. precedent ; and 1 think your Lordships will see in one moment, that an alteration to one date alone will put an end to all the argument attempted to be raised upon those instances. My Lords, the first is that of chemistry. The first five weaker special grace. Mr. Justice BAYLEY.—The earliest was in 1762. Mr. Ai.DEnsow.--Yee, my Lord. In 1773 a vacancy ec curred, and the University being in a state of dissention as to the person who should fill up the office, they could not agree on any one person ; for, as your Lordships will perceive, it may be in the power, where the election re by grace, for the minority to defeat the majority. The grace may be stopp d. by the Caput, or non-regsnt's house differ with the regent's house, they may throw it out altogether. Therefore a man who has a majority in the whole may be thrown out by the manner in which the voting takes place in the three differeet bodies. This seems to have been the case in /773, and then on that occasion comes the grace to which I will now call your Lordships' attention, and I introduce it for the purpose of shewing to your Lordships that the mode of electing to pro fessorships had then undergone considerable discussion. The grace of 1773 is in these words, " Cum ii omnes qui chemiuni in academia excolere velint in commodum haud leve sint per.. cepturi ex diuturniore muneris professoris chemieee vacatiune ;" so that it had been vacant for some time, and they found it very inconvenient—then they say, ". Neque a ir ajoribus nostris clectioni professoris cum plures exstiterint competitoree satin commode provisum ease videatur placeat vobis ut chemise pro fessor eligatur pro hac vice secundem morem in electione lur e gensium receptum." Your Lordships see they recite it S'lts.ll great inconvenience, and that there was no custom in the Hni.e versity for electing where there were more than two competi tors. That shews that this mode of election now contended for was nut then in use ; for if it was, there was a convenient mode to which they might have had recourse. And yet all the in stances on which my learned friends now rely had occurred previous to this grace : every one of them. If you take the cases of the appointments Of the professors of anatomy your Lordships will find----- Mi. Justice BAYLEY—But there could never be, accceding to your argument, any more than two competitors. Mr. ALDERSON—No, my Lord, your Lordship sees the ob ject of the Statute of Elizabeth was, that there should not b e more than two comp e tit ors , one of w hom i was sure to be elect ed, anti in cases of lectures where it was of importance, and fur the good of the University that they should speedily be filled up, they were determined to have an election at all events, and they secured an election by these means for the Heads, submit ting only two to the opinion of the Senate who voted in a mass ; he who had the majority in this assembly was sure to succeed, and that was the object of the Statute. But I was arguing that all the other instances which occurred of elections to the professorships of Anatomy and Botany were anterior to the grace of 1773. In 1728, there being a vacancy, John Morten was chosen professor of anatomy. In 1753, Dr. Gibson was elected a Lecturer of Anatomy, and then there is an interval till 1783. Then what do they do on this vacancy ? They pees a grace with these word, " sccundum morem in electione bur gensium." Again, the same observation applies with respect to the two vacancies in the botanical profeeeorship, the last of which was in 1762, and the gentleman, I believe, is still in possession. Now, these instances all occurred before 1773, and yet the grace recites that there was no such custom of election. And these, be it observed, are the only instances which my learned friends can cite as being without special graces, ap pointing.a mode of election " more burgensturn." Therefore my, learned friends set up a custom which has been at all events violated ever since 1773, if indeed it ever existed. I say it is nothing like a custom on which your Lordships can be called upon to rely. Mr. Justice BAYLEY—UntiI the year 1773 the chemical professors were all named in the glace? . Mi. A enEnsoer—Yes, my Lord. .111 r. Justice BAYLEY—And until the year 1788 the auto ' mical professor was named in the grace? Mr. ALDERSON—No, my Lord, the first anatomical pro. fessor was by grace, and it was followed afterwards by what is called .an open election, o f w hi c h we can g i ve no expla natiecri. whether the books have omitted it or not we cannot tell. • • e Mr. Justice BAYLEY—Then in all the early vacancies .in the anatomical professorship it is a " vobis elegatur ?" MT. SOLICITOR-GENERAL—IR 1728 it is " May it please you that lice professorship be declared vacant; that another by you be chosen to succeed him in office and title." • Mr. A ereeßSON—That is the one I wee referring to. That in the year 1728 was followed in one or two instances, and which terminated in 1753. A discussion took pince in 1773 as to . the chemical professor, and they did not rely upon the custom of electing, anatomical professors at all ; and after that in the see comical professor they followed the mode of election adopted in. 1773, since which time there has not been any instance of an else : tion "more burgensium" unless by special grace. That putS an end to the custom—a custom must be a custom to dosotnethingea a custom merely in thenegative will not do unless there is a custom to elect in aparticular manner. I apprehend, my learned friends argument must tail. Now, what particular manner does there._ appear to be specified upon these affidavits—take any one, Nue: Lordships will find a majority of instances against it; when; you take the special graces you will find more instances of elec don ; the other way, or in general graces, you will find mer e instances still the other w a y ; or if you take those . graces which specify more burgensium, you will still find uniting the other two a greater number of instances against that ; so that there is no particular mode of election which can be adduced to over turn that form of election which is prescribed by the statute. • Unless, therefore, my learned friends can shew a custom to ' elect in some particular mode, I apprehend they will not suc ceed ; for in the absence of all proof 1 will refer to the stetute. If they can shew a custom that will overturn the statute, as in the case of the High Steward, who was proved to have been elected in a particular mode from time immemorial, that may make a difference; but that they cannot do from any instances which appear upon the face of these affidavits ; for let them select any one manner, and lahink I can undertake to point out a majority of instances against it.—My leertled friend say 4,4 that the affidavits *bewail° instance of election by nomination ; but a custom not to nominate would be a custom merely in the negative. They must shew a custom to elect in some particular mode. That they cannot do ; and if not they cannot overturn the general rule laid down in the statutes.-51y Lords,, I har,, nothing further to offer upon this subject. I have troubled, you greatly too long upon it, and I 0141 now leave the matter entirely in your Lordships hands. Lind Chief Justice AIIHOTT—The case has been very well argued. Lord Chief Justice ABBOTT—The Statute to which you have referred us seems vetry clear to a Layman; I do not know how it may be to the Clergy. Air. ALDERsoN—None of these Statutes appear on the affidavits, though there are several others relating to this point, but it does appear on the Affidavid, and is sworn to as a fact by the Vice Chancellor (and I am only anxious to shew he he has not sworn rashly) that the beadles hold for life. The orntor, my Lords, holds tbr life also,—he originally held for seven years, but he now holds for life, as it is sworn in these affidavits. And yet he comes under the Statute, and he is elected by previous nomination—the register holds for life—he is elected by nomination also ; therefore, it is in vain for my learned friends to say upon such vague authority as they do, that this extends only to officers for life. What is the ground on which they rest their case ?—"Why, my Lord, that Lord Burleigh, in a letter to the University of Cambridge, in Queen Elizabeth's reign, incidentally speaks of those who are to •sue./ ceed yearly in the places of lecturers a nd o f o th er o ffi cers o f t h e University." And he then goes on to discuss the question th a t was submitted to his consideration, which had nothing to do with the annual nature of the i Bice. It appears that there was a dispute in the University, whether, when the masters of the colleges were out of the University their locuin tenentes should go and nominate in their stead. It was claimed, in or. der that the University might have the benefit of having a greater number to determine on the matters before them. Lord Burleigh only decides that the locum tenentes should no. minate in the absence of the Master. Therefore, to say that an incidental expression which he uses should be held to prove, that in his opinion the 40th statute applied only to annual offices, is contrary to reason and sound construction. That it does ex tend to yearly offices I admit ; but the question is, whether it extends to yearly offices only. The question is not whether it extends to lecturers who hold for a year, which we admit it does, but whether it extends also to lecairers who hold for a longer period than a year. Now, in the time of Lord Burleigh, it would be very singular if he h a d d ec id e d differently, - for there were none but annual lecturers at that time; and unless he had been gifted with a spirit of prophecy, he could not have laid down a rule applicable to the present case. lie speaks of all those to which the statute applied at that time, for he speaks of all those which could fall within its provisions. There were then nine or ten professorships—l believe there were ten—five regius professors. Mr. Justice BAYLEs'—In the time of Queen Elizabeth? Mr. A taiEasox—Yea, my Lord, when the 40th of Eliza. beth passed, there were the five regius professors, all of whom were tbunded by the Crown. By the statute of King Henry the Eighth, which is a statute of Trinity College, the election of three of them, that is to say, of Theology, Greek, and He brew, was given to a certain number, namely, to seven electors, who now enercise that duty; the other twoof Law and Physic have remained from that time, and do remain to this moment, in the absolute appointment of the Crown alone. With respect to those five, therefore, the statute could nor apply, there being the exception to which your Lordships' attention has been al ready called, and by which they were excluded from the ope ration of the statute. And, my Lords, I may here observe, • why put in an exception, if the general words would not have included them ? But they would not, if they had applied only to annual offices, as my learned friends contend. I say the ex ception shows what was included in the general words, and, therefore, if my learned friends are ri g ht, th e y can make nothing of the exception, as it seems to me it i s nonsense if' the original premisestappiy to annual offices only. Then, my Lord, there is the Lady Margaret's professor ship of Divinity, that is a lectureship appointed by Lady Mar garet, and was the mode of election specially provided for ; and lastly there were three lecturerships founded by Sir Robert Retie, Lord Chief Justice of the Common Pleas, I think in 1325, but I am.not quite sure, and a fourth founded by the University itself, and endowed with a stipend that was the ma thematical professor. These four last, now called the Barnaby lectures, were all in existence at the time of' the University re ceiving the Statutes, and there being no provision for any parti cular mode of election, every one of them fell immediately within the general provisions of the 40th of Elizabeth, and have con tinued to be within those previsions ever since ; therefore, when I find a Statute including all the professorshipt— Mr. Justice liar LET—lncluding the Lady Margaret's, Sir Robert Reties;' and the mathematical. - Mr. ALDEasox—No, my Lord.—The first was provided for by the foundation. It includes the three of Sir Robert Rede's foundation. Lord Chief Justice ABBOTT—They all fall within this Statute. Mr. AtnEnsosi--Ves. my Lord. Lord Chief Justice Abaco' T—With permanent salaries? Mr. ALDEHSON—Ves,my Lord.—There were three founded by Sir Robert Ilede, called ordinarii lectures, who had annual stipends of 3/. 1;a. Bd. each—the other which was vidovred by the University had a stipend of 4/. Though the sum may now appear small in those days, it was a stipend at' considerable amount. Mr. Justice 13s.YLET—And those professore are for life? Mr. ALDERSO`I7—No, My Lord, they areannual. Mr. Justice BAYLEY—You account for that deviation which occurs, and that distinction which exists between those that are annual, and those that are not—that those which do not fall within the provision of the 40th Charter do not fall within it, because they are otherwise provided for. Mr. A LnEnscile—lt would have been a strong argument it' there had existed several professors who are annual, and several ' who are for life ; and the latter had not fallen within the Sta tute, unless that could have been satisfactorily accounted for on ' fall within the rule; tnh ooi itfl,koatihitepriwrus ifsaee therefore,ssgerrnosievfriadlaedl a different ground, namely, that their mode of election de o pended on the special words of their foundation. I will 'thew your Lordship, however, that all those which did not come within the exception, did in fact, and in truth, CRUELTY TO A Doo, &c.—(Bow-Street.)-:-Yegterd a y, a , e wtshi p ulidc r , professorships s uul ogewrnhsi subsequently ht l yt) i no s ; ptteartaseo .mothernt oo g w ul a ad s pi nprsl throningi) application a interferemtioo n n summoned auhs hot t d mi e wta r hdae l% et e.lcootrilvelepxarrtitoehenTemdieeNddt: proceedings l A nu It ; , attg lho fo e.c r nark, t2 stitti u tr elty g ot i vs t e h r ne Statute,tl e University, rule instituted fl otehr he and that, according to the case of the King, v. the Bishop of servant of a poulterer of Tottenharn-court-rciad, by a Gentle. Ely, they ought to fall within the rule, unless. specially pro- man named Gardener, residing at No. 267, Strand, an Artist ,. election d vided fur by their foundation. who stated that he was passing by the shop, and saw one of his Then, it is said, that these ordinarii lectorea are inferior in men take a live fowl, and after slightly twisting its neck, rank and degree—that is one way in which they seek to distin. barely sufficient to stun it, placed it between his knees, and guish them from these new professors. It is said, that they began plucking the large feathers from the wings. The mei are inferior in rank and dignity ;—my Lords, what are the sub- give pain caused the win thing to writhe so violently that he jecta of their lectures? I apprehend that the study of mathe- could with great difficulty hold it i he, however, continued matics is quite as essential as that of mineralogy ; and Ido not this species of torture until the bird was nearly divested of all see that die subjects on which the other three professors les- its feathers, when he threw it forcibly upon the ground, and it tun, are at all inferior, but, I think, superior in importance still possessed so much life as to get upon its legs, and at. (of course lam speaking of the University as a place of ethwe- tempted to walk. Mr. Gardiner remonstrated with the men. tion for young men) to tha professorships of mineralogy, botany, , and begged of him, if he had any humanity at all, to kill and anatomy. There a r e th ree p ro f essors on t h e f oun d at i on, t h e fowl at once. This he ratified to do, and behaved in a with a stipend an fia. lid.. In modern times, there being an very insolent and abusive manner, telling Mr Gardiner to abundance of other persona to teach these subjects, appropnat. mind his own business, or he would pull some of his feather s ed to the ordinary lectures, they have been superseded., and out. Mr. Gardiner persisted in seeing the master, who, on the now only retain the remnants of their former consequence and afFair bring related to him, coolly remarked that the man had dignity. But every one of these foundation s sire the source of done very prop As L erly, vie general practice in the trade was t o the degrees which are conferred. My learned friend, the Soli- pluik.the lbw's in a similar manner, as they had a much bowl. cltor-tieneral, doubts this.r He must have forgotten the form appeorance for sale than it' plucked after. they were dettd..»n e of the *upplicat for his own degree.-Whenhe was present- .Magistrate; or the saute reason as in the impeding case, de ed, he solicited it in this form r '*Supplicat reveasestlis vestrii, dined interfering. tTo be continued.] of re . ) the ibers took able Dan. ft a.t pent rned and tiro ng at WO' in klanl but de. ~sus~ e ni s : wittg.