The Sun. — London, England, 1823-05-06 00:00:00

Lord n and , from 'alker, Lird, at ;ing'a• Hunt :;aven- Grey, ,enser, Senf inent: , from John limns , Dover- ir ty of (ay, at house Earl a dis legant ler on n were ,nson Lady, lay, At Aril , legreri i f• Well I ipsG~ within I three apt on e from helot' id 23i being i nchei h inst. a gra" : away tnisrt!. s gao u uleys and of ,etera!‘ dolly mhos , LAW PROCEEDINGS. de eVof the hos. :lolls roolS ;her cted COURT OF KING'S BENCH, APRIL 28, 1823. T HE KING v. THE VICE-CHANCELLOR or THE UNIVER. SITY OF CAMBRIDGE. :• Mr. Sergeant LENS—This case comes before your--Lord ships on a rule to shew cause why the Vice-Chancellor of the ' • University of Cambridge should not be directed to admit the Rev. Thomas Jephson, Professor of Mineralogy of that Uni versity. I have to shew your Lordships cause against the rule. In the discussion of this case, I apprehend that two questions will arise before your Lordships on the matters which have been is d before the Court in these affidavits. The Gentlemen apply ing •on behalf of Mr. Jephson, contend, first, that he has been duly elected to the office or Professorship of Miner a l og y, and they w ill h ave to shew the fact, that he ought to he admit ted into that situation from which he has hitherto been excluded. If they should be able to establish his right to the office still a consideration will arise whether this is the proper mode of ob taining a remedy, namely, an application to the Court for a mandamus, whether that is the mode to which he ought to re sort, assuming' for a moment he is able to establish' his right. Though it may be necessary to refer to the facts stated in the ' af fidavits, I will do it as shortly as the nature of the case will permit, so as to present to the Court the points which we think arise and form the main questions in the case. My Lords, it appears to me that it would be the most proper course to take to consider, first, whether a mandamus will lie or not, Upon which point I shall trouble you very shortly, it keying been before brought under the consideration of th e C ourt , 1 shall therefore only refer to the general principles to sliew, that whatever the right way be, this is an office or appointment, or whatever title it may assume, fcir which the Court will not grant a Mandamus, but that the remedy ought t o b e 1 .1 an application of a different description, provided the party is entitled to any remedy whatever. MY Lords, it appears from the affidavit on which the rule roceeded, that this office, or rather situation, of Profe s s or o f lineralogy, is a v er y modern institution, for it appears that so late as the year 1808, th e first Professor was appointed, it w as in that year that th e a pp o i ntment o f D r . Cl ar k e to be Professor It is by of Alineralogy took pl a c e , a nd t h at a p po i ntment i s i n t hi s f orm a grace appo in ti ng hi m b y name to t h at s i tuat i on, i t s may be neceesary to read it, in , order that the Court may see i n what term s i t is expressed; it is in these words—" Cum vir Reverendus Edivardus Daniel Clarke, 14.14. D. sit in studio Mi t eralogiw,apprinie versatue et eidern studio apud vos promoven do curaintnagnopere impenderit turn lectionibus publicis," and te, a 0 o n "placeat vobis tit ident, E. D. Clarke, Professoris Mine. ralo g i titulo suffragiis vestris c o hon e stetur," so that yo u r L or d. ship, see the first creation of this situation of Professor of Mi neralogy is by a race which appoihts not only the situation itself, not only notices and effectually creates this situation of Mineralogical Professor, but appoints Dr. Clarke to be the person to fill that situation, so that he is introduced into this office by thd same grace which creates the office itself. On the death of Dr. Clarke in 1822, this grace which I will read, passed for the purpose of t h e i r b e i ng a new election of Profes tor. After reciting the death of Dr. Clarke, it says " mu nus istud j am vacuus existit placeat nobis et alius ad *dem mu nue, exequendum a vobis eligatur," by which your Lordships see it is left open as to the manner in which the election is to take place ; it jives a general direction, that in consequence of „ar:acancy having happened by the death of Dr. Clarke, who 4 appointed beeethe University, the office being vacant, the triodebodyare called upon to elect another person, mentioning no . o,lta by which the appointment is to take place; and the ques tion be,iee considered between my 'Learned Friend and myself manne fthere being no special direction given whether the m at nerd election to this office is not to follow the legal regular c mode of electing, where no special . grace has inter vened to give it another direction, or whether it is to be by the body at large, which in its nature must be novel,:naving no connection with the customs of the University ; it must have sity had t h e to Parliaaarisen'en since the Period o f J ames the First, when the Univer granted to them of returning Members .., menprivile ge t, an w hi ch was by a general mode of electing _ more buegensim,,, and which general mode is now contended for, but which had no analogy to the mode of election that had been constantlypractised i n the University previously. mode of Your Lordships will find that the affidavit sets forth the Passing glum, and it is only necessary to call the at tention of' the Court to it ; it is to be proposed to the Caput, which is a body coneisting of the Vice-Chancellor and five Members, who, if they approve of th e grace, propose it to the two Houses ° f Regent* and I ought to Non -regent s , whether the grace should pass. state, that it is necessary that it should pass the caput unanimously. 31r. Justice BAYLEY--lt is necessary to pass the caput unanimously. Mr. Sergeant LEX s—Yes, Aly Lord, it cannot be passed on a to the Houses unless it has passed and is presented by the C put, they first determine on the propriety of submitting the taer to th e Senate, whatev er may b e t h e matter contained in t hat grace. In the case Which is now more immediately under the consideration of your Lordships, there being no particular rdirection given as to the mode of the election, we shall endear ely to satisfy the Court, that the University Statutes them. selves have ded the proper and legal mode, and those *no wish to depart from that legal and statutable mode, must l e 'int out by what authority it is to be done ; if It is derived, ' 4 ' ll l precedents they must of course be such as by their ante lar laity would a ff or d groun d to cons id er , w h et h er i n any particu s i nstence such a practice had been used and ad o p te d, ;o at to warrant yen in saying it ought to be taken 1 ; 4 ,of the general rule. Upon looking with some par f;cu'atitY nnd minuteness into those precedents which kave been stated, it will be found, I think, that they rat' no application to a case of this description. But be '''e I allude to the merits of this part of the case, 1 would its your Lordship's attention to the first point, whether, under 'S Peculiar circumstances, this being an application to whether it a matter which arises among the Members of the Senate, denether it ill is proper subject for the Court to proceed by man t m u*, it not being in its nature an office to which a mandamus sritiiroperly applicable. I would submit first, that it had its ° le e 2" 'lli in 1808. So lately as that year ehere is no establ die ids there is no office—l use the term only . because it conveys belon ,of the nature of the thing—but there is no office properly fated of to it, it being treated by a grace in 1808, and it ex iti,;,°,l2lY during the life of the first Professor. On his death el ecte ns a question who is to be named by the University,. or to its _Y them to fill this office. There is no salary belonging tee e i n f salary paid by the University—no house—no regular lay the'"ent---no advantage whatever to be derived or possesed ephe„per.son having the honour of filling this situation,—l by"'.'enll it lierrold ((:;.hief ja:sgeti:eAral rule, and I will not trouble the Court z goin g i nto eases. lIHOTT—Is there any fixed duty to be. m e rr l . 1 ? Is there any eath to be taken ? s.....inice BAYLEY—fie is to read lectures. , give lecturs. is kiir .e3,Jeant LENII In consequence of the appointment, he . elected pair oath oi I Ton not aware that be takes any part. ifthe subject, but undoubtedly it is assumed that theirA i ___, et or tile purpoee of giving lectures, and to instruct t here aapoin7,° sof the University on the subject to which he is afrie,peahrs7,,,iatinitlr that he must conform to that which is expected 41 0.1 1; but is no other duty attaching to him. It : Peet t ° sever Rand to this profraeonship, as well as with re. Other °fl ow. _at others, that Ills Majesty has annexed an allow but protQ,e,ar,that allowance which has been continued to riiinoivright given t It is to h e o i: s q's has been voted to be applicable to this also, _ nts. Neste, shall th' .1,1 iversity of Camb Z v e e h a it is altogether an act of bounty; there e parties to claim an allowance as long as Ink c pi e et in his bounty to continue it to the terte benefit of it, I,l l "_ge 3 0 long, and no longer will he have 7natever atta c h ed ere is no other emolument of any kind tetd,l4 iyaeimoanedatomutm.s Your Lordshi to the situation. My Lord, I will trouble !tine ee t e,„.. e fs only y et _ , his part shortly as to the remaining objec torpart of the case, namely , . thin a pro. „ di li. appears fro _ns were not mid 3 is not the proper course in this instance, tia ►er e t h e rights 1 4 the affidavits that in two similar instances, election have come into question, applies ti the Court ere eit, / a to the Court, but to His 31ajesty in Coun eat it ~ in e tro ug ant h ; aware of the case of the High Steward reported in the application was made to the Court, still . 1) ' P ication Was that case entertained it—but though ell in general t shade and entertained by the Court, t he ell it ' to the . rI contend, where any question le e mits right of a person tel be elected, and whether ii - te t a te , ki ng i e n mode is proper, or not, application is to be made nctl—to those cases I 4 thrnie to d eee C ir ' shall merely refer, not N I ' object the Pon them e and not meaning to state that it A th e , or the wish of the Vice Chancellor of Cambridge, V'tvi theel l °_ ° PePose themselves to this proceeding, to With 'lT ah a i ens , t res trom your Lordships' jurisdiction ; they only hell _ 0 have the point decided where the remed_y lies. teeeid inerefore for that purpose, bring to your Lordship . s' Nheration eft re, instances where such a case arose, and In kitty i a P.Plieation e 1 ) ,, e „ h u ou „ . „, were made, not to this Court, but to His3la e ~.!'es w as e lt2tt, and, there it was determined which of the le ( Zok pl.„' o eeted ; it was an election to the office of Beadle ; 444 g i lt i*, , e '7 oe n the Bth of December, 1669; the ma t ter was 'n a l the p ees : the Privy Council; it was there determined, og e Y fill e d i ll ° Who appeared to be duly elected accord at4on s eek e office. In the year 1728 some difference of le t ,41 th at Place as to the election to the office of Vint ii, Yln e e alao an application was made to His Ma e lit, ()linen ti th , q v " , and it was there determined which of the *Wrth. ; Feeparties were duly elected. I would submit, I ,ei t pe „ s s nis application should be refused, the party is not l e'?...l 4 ,Wt' ee and that there would not be a failure of King in i l , Arilgee. It, as visitor ? 'that e i l e allt xies—lt does not appear distinctly, my Lord, erecter; probably by virtue of his general superin. tending authority, perhaps it only shifts the mode in which the application is to be made ; if to the King as visitor, itmight be to the Court of Chancery. That is not the application now made ; it is an application to this Court for a mandamus pm ceeding on the assumption that all proper remedy had ceased or never existed, and therefore there is a necessity to have re course to this mode. Therefore, my Lords, I shall only simply suggest that this application cannot rest npon the foundation that no other remedy can be obtained ; for not only was there in these two instances a hearing before the King in Council, but I apprehend an application to the Court of Chancery would be a proper mode, though I am not aware of any application having been there made, that the King as visitor might deter mine the validity of an election. It appears in both the cases to which I have alluded that Lord Chief Justice Eyre was one of the parties who sat and assisted in the determination, where the right really was, that was decisive, but it also shews it was not an anomalous case ; tither there was no want of jurisdiction, or at least there was no objection to it; or if there was, it was over-ruled ; the proceeding was sanctioned and warranted by the Lord Chief Justice, who assisted in the decision that de termined which of the two was elected. Lord Chief Justice Annove—ln that case probably both of the parties submitted themselves to the jurisdiction; both put in their claims, and both were heard. Mr. Serjeant LENS—Yes, my Lord, but I apprehend that parties cannot give jurisdiction by their consent, but if the Court acknowledged and conc e ived th e y h a d it, an d th ere being no question made by the parties litig a nt, th ere m us t b e a fair ground to say the question being entertained that they had juris diction, particularly considering in what manner the Privy Council were composed, it is not likely they would have enter tained the question if .they had thought they had not jurisdic tion, or that it belonged to another Court. There is only another thing, my . Lords, which I will state as to the remedy ; there is a provision in the Statute of Eliza beth, by which the University is guided in matters of this na ture; by that Statute provision is made for the possibility of any doubtful construction which may arise. I have notyct stated it to the Court, though I shall have occasion to state it presently. We conceive that there is a statute applicable to this very case, namely, where there is not a mode of election pointed out by the general statutes, this statute has provided one by which ' such doubt and ambiguity shall be explained, in the statute of the 12th of Elizabeth, which is a leading statute upon this subject. Lord Chief Justice A.nnoTT—What chapter ? Mr. Serjeant LF,sts—lt is the University Statute, my Lord. Lord Chief Justice ABBOTT—Yes, but what chapter, they have chapters ? Mr. Serjeant LENS—It is chapter 40; I will hand your laird. ship a copy ; various regulations and statutes were made for the government of the University, which, from their very nature and design, as is the case with the statutes of the Legislature, may admit of various constructions ; this was foreseen, and it was therefore necessary,to have a Legislative interpretation, so to speak of what the statutes meant, and there is this provision, " Si quid dubii vel ambigui in istis sounds, et sanctionibus nos. tris oriatur id per cancellariuni et majorem partein presfectorum Collegiorum explicabitur, et determinabitur quorum determina tione et interpretation° reliquos omnes cedere volumus. If, therefore, there shall appear hereafter, when I have stat ed shortly what I have to address to the Court upon this point, if there shall appear to he any doubt or ambiguity upon the face of it, this statute has directed in what manner that diffi culty shall be removed, not by an application to this Court or to any other jurisdiction of alike nature, but by the authority of the statute, such doubt and ambiguity are to be resolved by the Vice-Chancellor, and the Heads of Houses, who aro to determine what is the meaning of the statute. Mr. Justice BAYLEY—The argument on the other aide will be, that there is no doubt as to the construction of the statute; if there is doubt at all, it is upon the words of the 'grace. Mr. Serjeant LENS—That is not in the statute, my Lord—l apprehend that the question, and the principal question, will be, when I have stated to your Lordship what I venture to call the statutable mode of election, whether that clause does reach. Lord Chief Justice ABBOTT---I think you are mistaken in referring to the 40th chapter for that. Mr. Serjeant LENS—I believe your Lordship will find it in the last clause of all—there is no particular chapter, after hai ing sufficiently provided for all other matters relating to the re. gulation of the University; then comes that very provision. Lord Chief Justice ABBOTT.—It is set out, I think, in the affidavit. Mr. Serjeant LENS—Yes, my Lord, it is there set out. Mr. Justice BAYLEY-1f you have got another copy, I will thank you for it. Mr. ALDERSON—You will find it in the last statute, my Lord. Mr. SOLICITOR-GENERAL—The affidavit does not state where it is. Mr. Serjeant LENS—I urge it only for this purpose, to chew that if this application should not be entertained by the Court, the party is not left without a remedy, and that if there be any doubt or ambiguity as to the construction, I submit to your Lord ship this clause in that statute pointsout the course to be pursued not to apply to this Court as in a case where no other remedy can be obtained but by looking to the manner in which the case is provided for, and the general Statute has said ho w such doubt or ambiguity should be resolved, whether that decision is to be final, or whether the Court, if called upon, would eventually interpose is another matter, but all we submit is, that there is no reason for their coining to your Lordships for a mandamus, while other modes are open by which jus tice can be obtained. In order to bring the whole matter before your Lordships as shortly as possible, I will only mention the case of the Eiig It Steward of Cambrid ge , to shew that it is not an instance to the contrary. In that case an application was made to this Court, and a mandamus was granted, but it was upon the foundation (as may easily be shewn if it i s necessary to go more particularly into it) that the office of high Steward, to which there were a great many duties annexed, that with 'regard to that office there was a mode of electing which existed antecedent to the Statute, therefore in that case there was nothing to bring into question the construction of a Statute which regulates the mode of election, in all modern cases where there is no sped. fic direction as to the mode of election, and the question to be determined will be, whether the election of this gentleman, Mr. Thomas Jephson, which has taken place without any previous nomination of the I leads of Houses, but simply by the mode called " more burgensium ;" whether that is a valid election, or whether this case does not fall primarily within that clause especially made for the purpose of pointing out the dif ferent modes of Election of the Officers of the University, that is the 40th chapterof t h e 12 t h o f Eli za b e th. My L or d, the clause is in these words: " Nominationes et electioneslectorumbedellorum stationarioruin gageatorum inopotarum, et aliorum ministrorum sou officiariorum acadetnire quorumeunque, de quibus aliter a nobis non est provisum, sequentur modum et forman in elec done pro cancellarii priescriptum fientque antra quatuordecirn dies post vacationem nisi aliter st . atutis noatris aut fund a ti one cautum sit; glue aliter factre fuermt ipso jure !mike mint et ir ritee." This, your Lordships sees, is a provision adapted to the election of all Leturers and other officers belonging to the Universty, where no particular mode is pointed out either by the foundation or the statutes. Where there is no special pro vision, then, this clause is to apply; and it directs, that eve ry other mode of election not conforming to it shall be void: therefore, if the election or nomination to this particular situ ation of Mineralogical Professor does properly and fairly come within this clause, then, undoubtedly, any other mode of elec. tion, or mode of appointment, not pointed nut by the grace, which I wish always to be understood, it will follow, that, being within the scope of the provision, a nd not b e i ng otherwise provided for, this cannot be a valid election. Mr. Justice BAY LEY—What do you call the foundation of this office ? Mr. Serjeant LENS--It„ appearsi my Lord, to be the grace to which it is necessary to call the attention of the Court : If the grace, at the time when it appointed this Professorship, or foundation, if you please so to call it, had specially directed the mode, then it would not have fallen within the fair con ' struction of this clause, and the rule applicable to elections in general would not apply; but r observe, that in these two in stances, the first is by grace appointing Dr. Clarke by naive; and, if it had gone on, and appointed any other by n ame , t h at would have conclud ecl the election ; there wonld then have remain ed nothing on which a question could arise ; but if the grace had gone on generally, and prescribed the mode in which the elec tion should proceed, it would have given rise to the question whether that did not supersede this general clause regulating the mode of election ; but we humbly conceive, (being most anxious to bring the case within a short compass) that such provision not having been made, it is left as a necessary con sequence to the operation of the clause : Here is an office to be filled up by election—no particular mode is directed ; and therefore we contend, that the same rule which ap plies to the filling up of other offices is to apply to this.— There are several instances adduced on the other side, from which it is attempted by analogy to draw this conclusion—that this resembles other professorships, and that persons tofill those offices have been elected in different modes, that in several in- ' stances they have been elected in the same manner, namely, " more burgensium ;" but I shall submit, that those instances are not to be taken as constituting a rule applicable to die present case. The Statute directs, that all those officers (where there is nothing to the contrary) shall he elected in a certain mode, my Lord ; the application is made upon the foundation, as I understand, as far as I am able to collect the inferences intend ed to be drawn from the facts stated in the affidavits on the other side, that the statutable provision does not apply to a case of this kind,—that it applies only to the case of Lecturers and annual Officers, and such like; I apprehend there is no foundation for that. I will first take the case of annual officers: Upon this point, there is reference made to a letter writ ten by lord Burleigh shortly after . the passing of these Statutes, which is fully set out in the schedule; but it is alluded to in the affidavit in this short way„" 'Whereas there have been some controversies among you,' —it is addressed to the University "up on t h e doubtful interpretation of a Statute given' unto you by her Majesty's authority, " thereby mean ing that last recited Statute, the Statut e o f th= manner o f elect ing "for the as sem bli ng of the 'leads and Chiefs of every Col! lege in the nomination of such as are to suFeeed yearly in the places of Lecturers and other Officers of the University,"—the inference endeavoured to be derived from that is, that Lord Bur leigh supposed tile statute only related to an r. tie' officers, hut look ing attentively to the whole of the letter, it will be quite evi dent that he meant, if any doubt shall arise, the Vice-Chan cellor or the locum tenens, whoever he should be, should repre sent him in his absence, in order to prevent any delay, should decide—so that it is not confined to annual officers—it does ex tend to annual officers, but itincludes others also—the intention was not whether the statute applied to annuallofficers, and not to others ' • on the contra r y, i t is general, and some of the Offi cers referred to are not annual, but of a different descrip tion; and, therefore, such reasoning, ifattempted to be founded upon that letter, does not appear to bear upon the subject at all—it is an opinion, however weighty and of great authority in other respects, which cannot be used here—the authority of my Lord Burleigh may be__ Lord Chief Justice ABBOTT—IIe seemed to have given them very good advice in th at l etter. Mr. Serjeant Litiss—Yes, my Lord, he does, he advises them to consider wh a t authority they h ave un d er t h e S tatutes, an d to exercise their sound j u d gment i n coming to a conclusion upon their construction ; it shews there is no necessity to go to a foreign jurisdiction t o d eterm i ne upon matters relating to their own government and regul at i on . It is i nferred, rather than stated, - that where there is no provision the election should be in the way stated, viz. in the body at large. Your Lordships will find, fmm the affidavit of Doctor French, that where nothing more is recorded than the mere election to the 'Pro fessorship, it does not necessarily imply that the election is to be made more burgensium • but if that is the mode, it. will appear by the grace, and iinot, it is to be by previous nomi nation ; and he goes on to state, that " in the deponent's judgment, information, and belief, an election more borgenziont cannot in such cases be properly insisted on, unless expressly directed by the grace." It is stated in Doctor French's affi davit, and confirmed by many leading persons in the Univer 'fifty, that so far from its being understood, where no accurate and precise mode is pointed out, that the election should be open and by the body at large, as it proceeds in the election for Members of Parliament ; so far from that being so, that the understanding is very different. - The joint affidavit ofl the Bp. of Bristol, Dr. Wood, and several other leading Mem- ' bers of the University of Cambridge, states, " that they have for many y ears b een Members of the said University, and that, according to their experience and belief, a gr ace to elect a Prof essor , or any other o ff i cer of the said University, without specifying the mode of election, does not necessarily imply that the election is to be made according to the mode observed in the election of Burgesses to serve in Parliament for the said University, but th.,t, on the contrary, accord. ing to the judgment, information, and belief of these de ponents, an election more burgensinin, cannot in such cases be ,properly insisted o n un l ess expressly directed by the ; grace.'' My Lord, in the affidavit on which the application is grounded, an allusion is made to the different Profferships, and the manner in which the different successions have been kept up in those instances, these instances have been stated for the purpose of' drawing this inference, that they appear not to have fallen within the clause to which I have called the attention of your Lordships, but that they have proceeded according to this mode of open election. On looking at the instances ad duced with some particular attention (and I will not take up the time of the Court further than by stating them generally), I think it appears that there is no such rule to be derived from this attempted analogy, but all are consistent with this line, that where there is no special grace, and where the matter is left at large, there is no reason in such a case to depart from the general mode of proceeding—but where there is a special di rection given, that special direction has been followed, and in that case only. Your Lordships will find, with regard to the graces to elect for the Professorship of Chemistry, which with others appear in the Schedule, and therefore I will only just call your attention to them—you will find that the institution of that professorship appears to have taken place in the year 1702, and was appointed by grace again in 1713.1756, and so it appears to have gone on by grace till it comes down to the year 1773 ; these seem to chew what the nature of these orders is, and that no such inference can be drawn from them as is attempted, for your Lordship will find that in the year 1723 Mr, JUSTICE BAILEY. -- I suppose you mean 1773, when a professor of chemistry was to be elected more burgentiorn. Mr. Si:An:ANT LENS.--I observe, my Lord, that the first institution was in 1702, in the same terms as the one under consideration. " Placeat nobis et dictus Joannes Franciscus vigani titulo professoris chymicat in Academia Cantabrigiensi cohonestetur," so that it was an appointment of the individual in the same manner as Doctor Clarke was appointed; then Johanna; Waller is appointed in the same way, and afterwards James Hadley and Richardus Watson likewise in the same way —all nominations of individuals where no election would take place; but simply an adoption of the individual who was appointed to fill the particular office but in the year 1773, ' , air Lordahips of this descripti on ;i t i s theentry of 1773, it concludes with will find an entry , making special provision that pro bac the vic election shall be according to th e mod e " in electione burgensium",but the recital will require your Lordship's attention— that it recognizes and decides nothing as to th e j ournal made,but,on the contrary,there is a special provision for the p art i cular case ; as it then existed, two the words are " Buen Jionmes qui cheniiam in Academica ex cohere velint incomrnocium baud leve *int percepturi ex diutur nnoioarterums t e in ie e c ri ti s o p n iressofi Chemicre v acat i ore neque a majoribus professions cum Ames extiterit competitoris leads commode provisum ease videatur." Reciting therefore, that, from the long vacancy i n the o ffi ce of Chemical Professor inconvenience will arise, and as there was no mode of filling up this vacancy special provision is made " Placeat vobia ut Chemicte Professor eligatur pro hac vice aecundum morcm in electione burgensium receptunt." Now, if the understanding at that time had been that there was no order but an appoint ment or a declaration that such an office should be filled up, it in such instances, there would ha ve b een no occasion to have would have been regularly filled lip according to the practic e made this special provision ; it spews that at that time there was not a sufficient provision made; therefore, as there might have been a doubt as to the proper mode of proceeding, there is a p rov i s i on 4 , pro bee vice secundum morem in electione bur geusit im " then, under that re gu l at i on, Isaac Pennington was happening in the y ear 1793 there an h le ereis , ad general up provision vacancy ionmade to, to the professorship of chemistry, regulating in what manner the election should take we find thi s Resolution—" Placeat l t e n cti th on e es yea p r ro l les 93 s4um cherni cte fi ant i n poster= se cvpu°lanbcdil e u 'u m ftor e m , morem in, electione burgensium receptum ;" so that from the recital that was used before in the year 1773, there was occasion, as it appears, to make a special provision for the elec tion, and the mode of it, and, in 1793, that is made general by ;he effect of the Grace, declaring that the Professors of Che mistry shall he elected in that particular mode. Mr. Justice BAYLEr — Tha!particular mode is by the Re gents and Non-Regents voting indiscriminately. Lord Chief Justice ABBOTT—And without any previous nomination ? 111 r. Serjeant LENS—Vex, my Lord; the distinction is, whether there shall be a previous nomination, or , as contended, ' whether the election shall be in the body at large without any previous nomination : that is the case of the Professor of Che mistry. But I submit that, in that instance, the mode of electing does not decide any thing upon the subject, but rather furnishes an argument to the 'contrary ; for it chews that, until this declaration was made by the Univ ers i ty, that it was a matter of doubt, which at last is determined by an express grace that he shall he so elected. That furnishes no analogy to the present instance. So also with re gar d to the Profes sorship of Anatomy, your Lordships will find that the fi rst first ap appointment int mentwas to that of the yea ll r lr. 1707 and was by gr ace . Th e George Rolfe, and in the same manner as on the former occasion, he is nominated to fill that particular office, so that no question arose as to the indivi dual ; other appointments took place in the years 1728, 1731, 1746, 170. _ _ Lo r rd . Chief Justice ABBOTT—In 1728 there is this--" May it please you that his professorship be declared v acant , an d that another by you be chosen to succeed him in office and tide." How was the election made under that--in what form was John Morgan elected in the year 1728, there being a grace that another should be elected by previous nomination or otherwise ? Mr. SOLICITOR -GENERAL—We say, if there had been a nomination, that it would have appeared in the Records of the University. Lord Chief Justice Annovr .—Then you are not agreed as to the nature of his election. Mr. SOLICITOR-GENERAL—If your Lordahin will allow me, 1 submit that th at i s an argumentat i ve way of putting it. Lord Chief Justice ADBOTT—Then At present you are not agreed how that election took place. Mr. Sergeant LEns—Then, my Lord, in the year 1733 a Professor of Anatomy is elected, without saying how he was elected; in 1746 Mr. Banks war elected; in 1753 Willi am Gibson; but in 1785 there is this resolution occasioned by a viasicancy which happ ene d i n t h at year, t h ere is this special pro on :—" Placeat vobis ut in electione prelectoris Anatomiat die Jovis proxinue sequenti in senaculo habenda Nuffragia den tur secundum morem in electione burgensitun reoeptum." Now, my Lord, the inference we draw from that is this, and we think it is a fair one, that where there is no other mode pointed out, the manner of election would by in the way that we say this ought to have been, there being no special direc tion, it would have followed of course. My Learned Friend would infer it was an universal course, whereas it appe ars t h ere is a special gr ace w hi c h di rects the mo dei in future, the legality of which we do not mean to question • but if this h a d stoo d in the same circum s t ances as the Professorship of Anatomy, it would not have decided the question. With regard to the ap pointment to the Professorship of Botany in 1724, and in two other instances, whether the persons were appointed by special direction or not does not very well appear; but that which took place in the year 1808, with reference to the election of a Pro fessor of Mineralogy, the words being " Placeat vobis ut anus. ad idem mums exequenduni a vobis eligatur," cannot be called into aid in this case, it being the subject matter in dispute. In the very last instance where an appointment of this kind took place, which was in the case of the Fitzwilliam Museum, where it became neces sary to appo i nt off i cers, there the mode of election does not appear to have been doubted at all ; the election was by previous nomination, out of whom Mr. K.ey was elected. Lord Chief Justice ABBOTT—You are now upon the ap pointment of Curator to Lord Fitzwilliam's Museum ? Mr. Serjeant LENS—Yes, my Lord; in the y ear 1 816. Lord Chief Ju st i ce Annovr —flow do you say the election of the Curator of my L or d Fi tzw illi am ' s pictures was effected in 1823 ? Mr. Serjeant Ls:ifs—Your Lordship will find the first to be in 1816. I will mention how it proceeded :—lt recites, " QUUM moit necesse erit ut eligatur aliquis, qui custodiam tabularum Pictarum rerunique aliaruin quas A cademise legavit Ilonaratis simus Vice Comes Fitzwilliam in se anscipiat—pliteeat vobis ut ei quum electus fuerit centum et quinquaginta librarum pro annuus stipendio assignetur :" there the appointment was made at the time of the election, and then it proceeded by the previous nomination of two persons, out of whom one was se lected. That took place in 1816. Mr. Justice BAYLEY—.IS there any grace there a vobis eli gatur? Mr. SOLICITOR-GENERAL —N o , Toy Lord, Mr. Serjeant LENS—Upon the death of the person who was then elected, another was elected, and afterwards Mr. Kaye was elected. With respect to the terms a vobis eligatur, I ap prehend they are general terms, applyi ng as much to one mode as to the other ; they mean they shall be elected by the Univer silty, in whom the subject matter of electing resides, but is equally applicable to elections made in the way in which we contend this election should have been made; that is by a pre. vious nomination of two, and the adoption of one by the Uni. versity. The terms do not, as it appears to me, necessarily apply to an open election, nor do they properly imply that the mode of election a vobis, shall be a vobis without an y _ other consideration that the body a t l arge s h a ll So elect, or that the election shall be made in the way we contend all elections are to be made; and when no dircction is given, or a special grace, such a person is a vobis electus, a vobis applying to the body at large. My Lord, I was observing the terms a vobis eligatur will equally apply to the one mode as to the other, whether an election is to be a vobis giving the power of return i ng Mem bers to P arliament., or in the manner in which elections pro ceed in the University after nomination ; when the election has taken place, it is rightly predicated by the words "a vobis." Your Lordships will find a great variety of instances in which persons a vobis electus are recited to be persons elected accord. ing to the statutable mode directly and plainly in terms within the Statute of Elizabeth—for instance, in 1699 we have " Placcat vobis utMariallinton vidua a vobis nuper elects ad officiumlEno polre literas," one of the Offices expressly named in the Statute, there she is called "a vobis nuper elects," so in 1708, where it mentions Matthew Craddock, it is " Modo a vobis electus ad ofli cium iEnopolie hujus Acaclemhe literas vestras patentes habeat officii sal sigillo vestro communi sigillatas,"—there are several others, if itshould be thought material; in 1729, where John Hese. Well is elected, the words are "a vobis electus," that relates to the office of vintner, where it was not by the body at large, in contradistinction to the other mode of election, but where the body has put the person in election, it is so described. When this grace passed, that the party should be elected in this way, we conceive that which was the statutable mode applies to it, and I apprehend it spews, if it were intended to be carried to that effect, it would, in order to point out the mode, as dis distinguished from the other mode, the form would have been different ; therefore, these cases cannot b e b roug h t i nto aid of the argument urged on the other side; for the person who is elected by previous nomination is so elected, whether in that open manner, or by any other mode. But 1 would just refer your Lordships to another recent instance where the per sons were elected to the office of Assistant Astronomical Ob servers, where the direction was given, " That two Assistant Observers should be elected (more burgensium) by the Senate for the term of three years, and at the end of that period should be capable of being re-elected," and then goes on tomatter which is not applicable to this point, those words are afterwards altered. I was only drawing your Lordships' attention to the last instance of the kind, for the purpose of sheaving what was the opinion of the University upon the subject, for when die Astronomical Observers were appointed, the direction was that they should be elected more burgensitun, but afterwards it was altered by using the word elected only," and then it stands "that the two Assistant Observers shall be elected for the term of three years, at the end of that time to be capable of being re elected ;" we only use this for the purpoue of shewing that where it was in the contemplation of die University t o e l ect more burgensium they expressly named it so as to exclude a doubt, conceiving, that without that not have taken that course--they then not conceiving it expedient that the election should so proceed ; the words are struck out, and the direction is general that the person shall be elected. Mr. Justice BA.YLET—You do not mean that the words a vobis are struck out ? Mr. Serjeant LErs—No. my Lord. Lord Chief-Justice ABBoTT—Where is that to which you are now referring ? Mr. Serjeant LENS—Your Lordship will find it on the second page of Dr. French's affidavit,—l only say, that this was matter of dispute which had arisen. Mr. S OLIC I TOR-GENERAL—No ; it is the same question as that now contested, and to be decided by it. Mr. Serjeant LExts—No ; from the very nature of it, it can not be. 111 r. Sor.TCETOR-OENERAL—I do not mean with reference to this particular election. Mr. Serjeant LEss—The inference arising from it is this : when it was the intention of the University that these two ad ditional persons should be appointed more burgensium, it was thought necessary to specify it, and that is afterwards corrected by striking out those words, and leaving the election general, which will include, and will hare the effect as intended and un derstood by them, of having the election with a previous nomi nation ; it is only an inference and an argument to spew what jthe understanding and feeling of the University upon the sub ect were, where there was no special direction ; that where it is intended the election shall he more burgensi um then that is stated. I only a ll u d e to it to shew that that mode is uncon nected with the University practice, and that it did not exist in the University antecedent to the time when King James gave to the University the power of returning Members to Parliament; it was a mode in its nature that was not, nor could be generally adopted, the form of election being entirely different to the University mode, and therefore wh en used, it is ne cessary a l ways to be speci ally provided for, and here bring no speci a l p rov i s i on. We submit this will fall under the general head, and under the general description. I am not aware, my Lords, that it will be necessary to trouble you much further, and I have to apologise for going into the case at such length. Lord Chief Justice ABBOTT—There is no need of any apo logy; the question is an important one. Serjeant LEsts—l thank your Lordships for your indul gent attention. We submit there is nothing to exempt this from the clause which provides, where there is no other provi sion made as to the mode of electing every Officer in the Uni versity, and wherever that is to be departed from, and shewn to be otherwise, it is necessary that it sh ou ld di st i nctly appear ; that there should be a grace pointing it out. When it is so done by grace, it ma y be effectually done ; it i s a part of the professorship stands, and th e e Election is to t a k e f u ou ni n v d e a rs ti i o ty n rtelaptoinlatewshithche mode tlie in place. It is not necessary to pursue that further. As to the question of the eligibility of the one mode or of the other, I shall not enter into it—it *lay entirely, or at least in some tle gree be a matter of opinion ; the mode of election for which we contend is undoubtedly that which is to be drawn from the fair import and effect of this grace. if this mode of Election to these offices, namely, by previous nomination, is necessary, the effect of that will be to give to the Heads ofllouses a larger share of influence and discretionary power in the University than would be derived from an open Election. Lord Chief Justice ABUOTT.—That is the very objection they make to it. Serjeant is not altogether a matter of indifference whether the Election shall be in one mode or in the other ; it is attended practically with a dif ferent effect in the one mode than in the other, which is the best we have not now to'consider, but if it is clear from the Statutes what the legal effect is, then you will not go into the convenience or inconvenisnce of the particular mode, al though, in a doubtful case, recourse might be had to it for the purpose of arriving at a decision, but in this case I apprehend the Court will decide upon the law as applicable to the facts before them. I apprehend there is nothing to distinguish this from the ordinary case. All the instances are to be resolved into this, that wherever the University has thought it right to have an election " more burgensium," they have us each par ticular instance directed the mode in which it is to take place, and where left at large it necessarily follows that the common law the statuable mode of election of the University is to be followed, and there being nu provision to the contrary here, and no course specified, the general effect of these. wank, a vohis eligatur, cannot be brought in to shew that it was meant to point either to' one mode of election or to the other, either one mode or the other will fall equally within . that dire c ti on , and where ther e i s not hi ng to point out what' was meant, the consequence will be, that the election shall proceed according to the Statute applicable to the election, and that where it is intended to depart from that, the grace must in some sense point it out, and must restrain the application ; if it can re strain the application of this clause by which directions are given, that all elections not specially provided for, shall be of the same nature as that of the Vice-Chancellor, in which pre vious nomination is essentially necessary, and we conceive that has been the mode always adopted ; and when it comes to be a question between branches of the different modes of election, it must be determined according to the statutable and . usual mode adopted in the University, and when there is a devia tion intended, it must be distinctly stated, not not log to inquire into the legal power of making it, which we do not question, for this order would be by a grace passed in the us ua l wa y. I w ill not trouble.the Court with any argument on this part of the case. I apprehend it will be ne cessary for this Gentleman to shew he has been properly elect ed ; but whether Mr. Henslow has been or not is entirely an other question. What we submit is, that in this case the man damus ought no to go. Ido not conceive it necessary to trou ble the Court further upon this subject, but I conceive, as the case now stands., the election of Mr. Jephson is not conforni_ able to that mode which the Statutes of the University require, and which is understood to be the practice up to the present time. Mr. Justice BAYLEY—The words more burgensium do not appear to (wear in 1703 ; how was the election at that period Mr. Serjeant LENS—The fact does not appear, my Lord, one way or the other, but the inference we draw is, that the election took place in the usual mode ; but the fact does not appear. Mr. SOLICITOR-GENERAL —W e saYno, my Lord. Mr. Justice BAYLEY—I did not mean to provoke any dis cussion. (To be continued.) MERCANTILE: SHIPPING. Dr ar, MAY s. —Wind E.N.E.—Came down from the River this afternoon and sailed, the Manby, Burnett, for Anti gua ; and Harmony, Tyne, for Berbice. PORTSMOUTH, MAY s. —Wind E.--Arrived the Jane, White, from M ess i na f or PetersbUrgh. The brig L ou i s:4 (coal laden) was seized on Southampton Water yesterday by the Tide Surveyor of this port ; she had 500 tubs of spirits on board, and 150 bales of tobacco. PLYMOUTH, MAY 4.—Wind E.—Arrived the Searthing well, from Charente; and Nancy, Thomson, from Calcutta.._. sailed the 24th September; on the 2d instant fell in with the French frigate Constance, from Cherbourg, cruizing off the Lizard. The Partridge Thornton, from the South Se u s, h as just ancho re d in the So und. Arrived the Nymph, Hutchin son, from Messina and Gibraltar; and Hannah, Curren, from Quebec, the latter with loss of main and mizen-mast. FALMOUTH, • MAY 4.—Wind E.—Arrived the Warren Bulkeley, Jones, from Beaumaris, with loss of mast ; Joseph and Mary, Smith, from Messina in 35 days. Sailed the Lady Arabella packet, for Vigo and Lisbon. The Robert and Georgiana, Dail, from Norway to L'Orient, was wrecked yesterday on the Sunk Sand. The North Ash, from Cardiff to London, was on s h ore yes terday on thi hoo k of Margate Saud. to I It E 14 A N 1). [From Me Cork Mercantile Chronicle, May 2.J OUTRAGE LAST NIGHT. • We regret to l earn , t h at at about three o'clock` this morn ing, a number of Whiteboys, amounting, it is conjectured, to 40 or 50 persons, armed with gu ns an d bl udgeons, visited the neighbourh oo d of Spring-11111, in the Pariah of Upper Glanmire. This place, which is on the Dublin road, not more than five mil es fr om C or k , consists of a number of houses, in which resid e th e men employed in extensive mills, and a glass cutting manufactory belonging to Messrs. Graham and Brown. At the hour above stated, a party of ruffians knocked at the door of the keeper of the turnpike, and enquired for a young man who lived within two houses of the pike, and in whose custody they understood a gun was. They then went to this persons house, from which, when refused admittance, they returned to the turnpike house, and demanded to have a coal of fire brought out to them. It was stated in reply, that there was no fire in the house, of which they subse quently satisfied themselves, by taking in the ashes of the fire. place. .After some time, they succeeded in having the gun delivered to them, on which they fired some shots, and went to join another party, who had in the mean time plundered the glass-cutting manufactory of moons ; at this place they fired some bullets through the windows,, when symptoms of resist ance were maniksted. They then decl are d t h eir intention to visit other h ouses i n t h e vicinity, where, they said, emu; were to be found ; but the approach of day frustrated their design. Besides these fire-arms, they took a gun previously to visit— ing Spring Hill, from a Woalranger, at a short distance from the village. One of the party, who appeared to act as a leader, spoke English fluently, and the entire appeared to be strangers, as they did not know the residence of the parties from whom they took the arms. It is to be much regretted that the New Police who were re-. cently sworn in for that neighbourhood, were not at their station, 'as, with their aid, from the populousness of the village, a sue-. cessful resistance might easily be made. POLICE INTELLIGENCE. BOW - STREET.—Giovanni Lombard, a tall and rather good-. looking Italian, was brought in by Sharpe, a patrol, charged with threatening to murder his wife, to whom he had been mar ried about one month. Sharp stated that he was passing through Broad-Court, Long-acre, when he heard l ou d screams and cries of murder," in a female voice, and at the same time was informed that a man was attempting to murder his wife, He ran into the house, and found the prisoner with a penknife open in his hand, but he and his wife were then separated. The wife, a pretty-looking young Englishwoman, was in at tenclance, with Mr. Rigby, a wine -merchant, in Southamp ton-street, her brother-in-law. She was so much agitated, as to be scarcely able to speak; but Mr. Rigby stated, that she was very respectably connected, and some time ago he procured an engagement for her to go to Ireland, t o super i ntend the fittink up of the interio r o f a nobleman's residence, as far as the drapery and other ornamental portions of it were concerned. She return ed a few days ago, and, to the astonishment of all her friends, was accompanied by the prisoner, in the character of her hus band. She had, it seemed, for Med a sudden and violent at tachment to him, and they were married about a month ago. His situation was that of a butler. From the second day of. their union, he had pursued t owar d s h er a course of treat ment of the most brutal kind, and the principal cause of it appeared to be her refusal to supply him with money to enable bun to go to Paris, where he pretended to have urgent business to transact. He endeavoured also to persuade her to make use of a sum of money which she h a d i n trust for another per s o n . O n the occasion when the officer interfered, he had got hold of her, and placed his penknife to her throat, swearing that he would murder her if she did rot act as he desired. The prisoner had also come several times to t his (Mr. Rigby's) house, and made use of threatening and abusive language. The prisoner denied the charge altogether, but was orde r ed to be locked u p unt il h e should find good ail. He had been some hours in custody, when, at the intercession of his wife, he Was liberated on his own recognizance oflool. to keep the peace, and an understanding that he would set out for Paris, and not ' again molest her. The Queen of Sw corm, who we believe has not yet visited Sweden, is about to set out for Stockholm, in order to he present at the.celebration of her son's marriage with ' the Princess of Leuctenberg.—(Brussols, April 21) It is slated in a recent communication from St. Petersburgh, that an Englishman of the name of I% Potts had had an Imperial patent granted him, covenanting an exclusive privilege as to profit for 10 years, for inventing a highly useful Machine adapted to the purpose of washing and drying all aorta of coloured linens and woollens. There is a progressiveness in science that justly endears it to the philanthropic mind; nor is humanity ever better engaged than when essaying to ameliorate the mod:- titan of the less fortunate of the sons of men. It is thus we introduce the praise-worthy exertions now making by the Prussian Gov er n ment at Il res l aw , to educate and' in struct the blind. Last year twelve individuals of this tinier tunate class were dismissed from the Institute as fully qualifiedto earn their bread by the labour of thuirhands. And (hiring the course of the four previous years, 30 persons, of both sexes, similarly circumstanced, had been returned to their friends, . in like manner competent to gain a livelihood by manual industry. We understand that there is no truth in the report of the apprehension of Wm. liorthwiek, late of the East Lothian ,Hank, in Ireland, an account of which appeare4 in an I r i s h paper, and was copi e d i nto several journals in this country...... .Edinburch Courant.)