The Sun. — London, England, 1823-05-09 00:00:00

I i ~' LAW PROCEEDINGS. trore e rrs Yo u no; COURT OF KING'S BENCH, APRIL 29. •.• • • TILE XING THE VICE-CHANCELLOR OF THE UNIVER. RITA' OF CAMBRIDGE. • SECOND DAY. _ _ • ( Continued from our Paper of uesterday.) Mr. SPLICITOR.:GENERAL—My Lords, I took the liberty to trouble you so much at - length-on the former occasion on This question, that I shall now only think it necessary to touch upon the particular points that bear upon this rule, more particularly as my other Learned Friends wh6 are with me, who have not been heard, will address your Lordships on this question ; but there is one point which strikes me as singular in this case. Upon every application. for a rule to shew cause why a nianda. mus.should not issue, it ;las always been considered, if there has been any coniiderable doubt, either upon the law or the fact, that the Court would not dispose of the question upon a rule, orinterfere to prevent the parties putting it in a more so. lemn f o r m f o r decision, in order that the question might be more fully and deliberately discussed, for this reason, because the party applying for a rule very often in his affidavit has omitted to state many facts that become material in consequence of the affidavits on the other side; it would be extremely hard in a question of right, and one of grave importance, to preclude a party from a remedy, because, from the nature of the pro ceeding, the whole case might not be before the Court. I men tion this, because my learned friends have argued this case at great length, very elaborately, with great learning, great ad • dress ; and if they have found it necessary, therefore, to bring so much talent, so much knowledge, and so much industry, to hear upon this point, it satisfies me that they thin* it a grave . question of doubt, and fit for a grave and solemn decision; my learned friends state that they are the representatives of the University ; I beg leave to say, we are the representatives. ' Lord Chief Justice ABBOTT—You are " more bur:en. slum." Mr. SOLICITOR-GENERAL—Yes, my Lord, we are "MOTE burgensium ;" we are representing the great body of the Univer. altY, and my learned friends on the other side are representing a few individuals in the University. My learned friend,Mr.Serjeant Lens, on the former occasion, in the course of his argument, look. ed to the probable result of the different modes of election, and though he touched the latter very lightly, he wished to impress on the Court that it was of great importance to the interests of the University to support the right of election by previous no mination ; it appears to me that the argument in that respect is decidedly the other way; for if the election is to proceed by a previous noniinatien of the Beads of Houses,the result in con sequence may be and in all probability would be, that the electi on wonld be taken out of the hands of the University, and transferred exclusively to the Heads of Houses; for all they have to do is, to nominate one sufficient person who is their favourite, and on e w h o i s i nsuff i c i ent, an d t h en t h e U n i vers i ty has no option, but to elect that sufficient person who is so nominated. Mr. Justice BAYLEY—You cannot suppose that th Head of 'louses who have a duty to per , u will select an e y other person than one w h o i s suitable. Lord Chief Justice ABBOTT—It does not seem to me that sve have any thing to do with that; what is the Law of the' University, and t h e L aw of this Court, are totally different things ; my judgment will not in any degree be influenced by whet is the policy, it will make no impression upon my mind. 'Mr. SOLICITOII-GEWERAL—I made this remark In an . sorer to the observations of Mr. Scrjeant Lens. I say, the principle of th e l aw i s not so narrow,but that it ought o in clude the whole body, out of which the election is to take _nhiee. Now, with respect to the nature of die office, my leans. uedpofnrieelitilliesrpouf!ttee p q ots U i e n sti , on in two mod e s, a nd if they are right I admit our rule cannot be sustained ; in the first pl ace, they say that this is not an office for which a mandamus will lie, and in the ne x t place, they say that the person o n whose behalf the application is made, was not duly elect e d according to the laws of the University. Now, with respect to the nature of the office, the professorship is an office of high rank. On our affidavits we state the rank which he holds in the University; he has important duties to discharge, which duties are also stated upon the affidavit. What duties OM be more important in a University conversant with the edu cation of its Members than the duty of a professor, who has to read lectures in hie particular departtnent ; he holds the office not for the benefit of himself, but for the benefit of the Univer sity ; not for his own advantage, bait for the advantage of those who are to derive advantage from his instruction; this then is the nature and character of the office. But, rue, Lords the question is, .s it a permanent office ? It is not iieuesyy that it ehredd be a permanent continuing office for a long period of time, if it is permanent in the individual— ' n e t , learned friends say that it is a new office ; I admit that it is office, but it is anew office establishment under a bye-law founded upon the usages of the University ; it is totally mina terial whether the office in question be a new or an old office if only created yesterday, and the party elected holds it for life ; he Iran much entitled to a mandamus, and so are the persons who ' ?eet him' , rot if it had been' an °M ee esta bli shed from the' ear,: Heat period. My learned friends say there is no foundation ; that Is equivocal ; there is a foundation—the foundation is the hye.law or the grace by which the office is established, and the party hold,' the office for life. Row then does the case stand ? ttn office of g eat public trust and importance held for life of "igh dignity h i ; time University, is that an office for which a fnandainits will go. My learned friend says, there are no mut). I "nnents incident to the office ; I admit there is no salary inci. dent to the office; there is no house as it appears upon the affidavits, but it is the duty of the individual to read lectures, and those lectures are attended with emolument ; there.; fore there iv an incidental emolument attached to the office ae certain to if he received a fixed salary. My learned friend on the other side also noticed the salary which the individual re. Cr discharging reeves from the Crown ; lie receives that salary in consequence the duties of the office; it is a gift from the . f r° writ though annually voted by Parliament. Now, mr :t e nts, it would be ° a most singular thing to say, that if a party'. oirie elected to perform the duties of such high character, and t wa t e individual in the University high inauthority,whose assent, reni hitu'rlreeessary, would not receive him into the office, or expelled drom the office in the University, that he should have no is F d e ,j ) i — if he cannot apply to this Court for a mandamus, he . if vrithout remedy.—Then I would ask your Lord. "Ps If this is not a case in which a mandamus ought to go, at lean {fith nota case of such importance that your bard-, would allow it to be put on record for the purpose of hay ratty question of so much importance to the University t hY e a nd solemnly discussed? We are not here canvasing mere-, Tofessorship of mineralogy, which is a science of infinite different ce, but we are considering under this question all the two other thveraitPlessorships which have been established upon the Y oun dation—chemistry, anatomy . , mineralogy, and dy, that etlieeriPeti"a" Of this d Pr°fe morships.—Now, my Lord, it is admitted in cases on -the other t hide say you offices, when there is no other reme- Ple-Y by mandamus applies. 3ly learned friends tier other L you have another reniedy, at least so Mr. the docitn . ie nit t l!ctueeli Lens says you may apply to the King in at was not pressed nor insisted upon, though reign . ° f are set forth in the affidavits no doubt. In the gn Uharlee t ouncii, fin d , • application was made to the King in or whether i clai m , : but . sne parties went and discussed their relative t does nbt appear that it was done adversely, t hemselv es t was not done by the consent of the parties principl e ot l bt a...nd I would ask your Lordships upon what the Privy c ou 'LmY learned friends can rely, which gives to purpose of au ;tends by it a jurisdiction. There is no other instance, it rhere is no authority which can be cited for the Dopin g t h e decide advers:l 'pasition that the Privy Council can pplies to the right Thee, My I 1 , 1" case of( this sort. meat daMos ? The z a as far tb , Ah us, what is the whole summary of the aegu ght of the Court to grant this man. establi s h ed b .and duties of the office held under, and ta ( pstss, th e Y. a DYC.IAIV, which the University had power en t h e „,10..);.Individual, holding it for life, the University 'annex e d r o c i nterested in the nature of the Office, no salary duti es o f , It, but emolument incident to the discharge of the office,,tie wliich the person is bound to perform, and c ivioi al talc 111 ,„,.•• office , individual take ' which an oath that he will perform the duties of -,,,Ten.are. learned friend gays, the only oaths that are -"itake t oath* of the Statute. My learned friend is quite rn, ler the individual to whom he before alluded always nisstets an oath of office, which amounts to this—that the bet: 8„ ° chosen will faithfully perform the duties of his of nen Mucti, then, my Lords, as to the preliminary ques gri.2 .which has been fiught with some activity by my learned t no Mr- Allmon but which was faintly contested by my eittearned friends who a preceded him. h7l tu e i n,s as to the eleetion--Wae this individual duly elected ? dep etn i n .): aPPrehend the whole question as to the election must Spa te "Pon the form of the grace. The construction of the wits which was intended by the University when that grace dee i tted Was, I believe, the practice of the University, un oar circumstances/ in the construction of similar graces. i '", ‘ °_ the duty that I have to perform is very much simplified, I;Tentequence of the whole statement having been made by, w4„ l‘ . 4 rnott friend who preceded me on the other side. The e e ,;,' 0 1 the facts with respect to the appointment to this pro. .47., t ia ) iiie are before the Court. Previously to the Statutes of theeth there were five professorships; there were time Lady rfotret' t h e s reader , o f divinity, the four ordinarii lectores, as 7 were called, and no other. Since the Statute of Elizabeth e!er professorships have been established, several upon th e Crldetion o f indi iduals, and some upon the foundation of MY of -which that under consideration is one. t u *"'Y leerneefriend in talking of the relative rank of the lee 4, tars arse 1, - es the professors, seems to have forgotten one thing—that e duty of the lecturers, who are called under the Ste. tote ordinarii lectores, that it was their duty to read lectures only to the under graduates, whereas the duty of a professor is of a higher description ; he reads lectures to the whole body of the University, not only to the under graduate, but also to the others ; no person can take his degree without attending— lord Chief Justice ABBOTT—Can it be attained without attending the lectures on mineralogy ? Mr. SOLICITOR-GENERAL—Yes, my Lord, but what ram stating applies to the ordinarii lectores, who read lectures to the under graduates, which has nothing to do with the duties of the professors who do not read lectures to the under gra duates, but read lectures to the whole body of the University. The professor of divinity reads lectures to the whole of the body, so do the professors of Hebrew Greek, Chemistry, and Mathematics. They are not confined like the ordinarii lectores, mentioned in the 40th of Elizabeth to the under graduates, whose ,duty was of an uniform and subordinate de scription. Now it became necessary in the progress of science to esta blish professorships which did riot exist previously— Mr. ALDERSON—You will find that Bachelors attend those very lectures; it is so laid down in the statutes— Mr. SOLICITOR-GENERAL—Then it goes up to the Master Of Arts, and no further. It seems I was incorrect in stating that they lecture only to the under graduates. I was stating that it became necessary in the progre s s of sc i e n ce that other profes_ sorships should be established, among others the professorship of Anatomy, the professorship of Botany, the professorship of Chemistry, and the professorship of Mineralogy ; and the way in which the University established these professorships was, in the first instance, by passing a grace, nominating a particular individual to the ofhce of professor, constituting the office, and appointing the individual by , the same legislative Act. That was the case in all these establishments ; and your Lord ships will see that in the case of the establishment of the pro fessorship of Mineralogy, that the precedent set by the esta blishment of the professorship of Botany has been in all parti culars followed. The words are these :—" Richard Bradley, in the year 1724, was appointed to the professorship of Botany, by a grace in which that professorship at the same time was esta blished. It then became vacant u pon the de.ath °fig r. Bradley,and a grace was passed precisely similar in form to the present grace; in fact it was taken as a precedent for the present grace—" Cain per mortem Ricardi Bradley, nuperi professoris botanici,munus Istud jam vacans existit placeat vobis ut alias ad idem munus exequendum a vobis cligatur." Now, it is material to see what in the year 1732 (for that is the date of the grace in question), was done under that grace. Mr. Justice BAY LEY-1732 or 1728 ? Mr. SoLICITOR-GENEItAL-1732, my Lord. Lord Chief Justice ABBOTT—You say the party was elected " more burgensiutu." Mr. SOLICITOR-GENERAL—Yes, my Lord, the form of the grace was precisely similar to the former—what was done under it? We say that a party was elected " more burgensi um." Now let me refer to those passages of the affidavit which throw light on the instance to which I have now referred, and on others to which I will presently refer. Lord Chief Justice ABBOTT.—Whose affidavit are you now referring to ? Mr. SOLICITOR-GENERAL—The 'affidavit Of Mr. Sedg wick, Master of Arts and Fellow of Trinity College, in the University of Cambridge. Lord Chief Justice ABBOTT—How early in the affidavit ? Mr. SOLICIT OR-GENERAL—It is folio 6 and 7, in the draft copy ; it is where he says that he has searched the records of the University. The case that I have taken is the case of bo tany; I have taken it from the schedule in their affidavits. Lord Chief Justice AnnoTT—l thought you referred to Mr. Sedgwick's affidavit. 111 r. SOLICITOR-GENERAL—Yes, my Lord, that I and doing. . Lord Chief.lustice ABBOTT—To which part do you allude? Mr. SOLICIToR-GENERAL—If your Lordship will allow me I will read the pais:ages; he says " he has searched and investigated the records of the said University, from which it appears, that in no single instance the elections to the profes sorships founded by the University have proceeded upon nomi nation by the heads of the Colleges, but that such elections have always taken place upon graces which have either applied to the election of a particular professor to the vacant professorship, or to the filling up the vacancy by anyperson who m t h e S enate should think fit to elect ; and it further appears by the records of the University, that with the exception of the musical pro fessor—" Mr. ALDERSON—" In the greater number of elections." Mr. SOLICITOR-GENERAL—YOLI are quite right; I have not come to.that yet.—" And it furth er a pp ears b y t h e records of the said University, that in the greater number of elec tions for such professorships (with the exception of the musical professorship, which has always been by special grace), the Se nate has acted from time to time upon grace, once for all passed authorizing the Senate to elect upon a vacancy, and upon sub sequent vacancies taking place the Senate has proceeded to elect from time to tune without any fresh grace for that purpose.— Then passing over about a folio, he says, speaking now of anatomy, that on the 22d of April, 1723, there is an entry, that John Morgan was chosen, and as the said entry contains no further particulars, this deponent is l e d t o b e li eve , an d d ot h believe, and hath n o doubt, that the election was an open one of the Senate, inasmuch as in all cases where elections take place • apon the nomination of heads of Colleges there is an express entry of such nomination, of the following tenor, videlicet:—" Nominati stint et punctis notati in officium, A. B. et C. D." That in the several years, 1733, 1735, 1746, 1753, there are entries notifying vacancies having taken place at those respective times, and of the election of professors, but no entries of particular graces, or of nominations by H ea d s of Colleges, from which deponent is led to believe that the se veral elections therein referred to are open ones, and that in the years 1786, 1814, 1817, there are entries of vacancies liming occurred, and the appointment of days of election and of graces, that the election sho u ld b e " more b urgensium, " and in the last two of the above mentioned instances, the grace passed on the day of election, so that there could not have been any nomination by Heads of Colleges, or any intention so to nomi nate, as such nomination must take place in all cases the (lay preceding the election," Now, my Lord, th en h ow d oes t h e case stand—in all cases where there is an election, that nomina tion is in a particular form, and found in the proceedings of the University relative to that election.—ln the particular case to which I am referring, the grace was precisely in the same form as the present—it is stated that the individual wall elected, and there is no entry 'of any nominat ion, and there fore Mr. Sedgwick infers, as every body_ else must infer, that that was an election " mor e b urge nsi u m." Mr. Justice HoLitoYD—Do you find any instance where, in any of the profess ors hip s i n ques tion, it h as ever appeare d nominati aunt et punctis notati in officium ? Mr. SOLICITOR GENERAL—None whatever, nor is it sug gested on the other side in the arguments they have, Mr. Justice BAYLEY—You find in the case of Thomas —, and the mathematical professor, that isthe case. Mr. SOLICITOR GENERAL—It does not appear by the affidavits. Mr. Justice BAYLEY—Part of your entries skew when there was a nomination, and when there was not. Mr. ALDEIISON—I will certainly admit to my learned friend that in modern times it has always been so, but that in ancient times it was not so; my learned friend must take my admission altogether. Mr. Soucrron GENERAL.—It was a most material thing in their affidavits to throw some light upon this, and to oppose those facts to which we call your Lordships attention—M , e say that in the professorship founded by the University, there is no instance of any nomination ; we give the history of those pro fessorships in this way—we say originally they were created by a grace, appointing with the seine instrument the particular indivi. dual, in sonieinstances a second and third appointment took place by grace, nominating the individual in all of them e xce pt mus i c; at last the name of the individual was omitted, but the pro fessorship was continued by grace, which is the foundation, an d when continued by grace without naming the individual, then the individual was elected by open poll—eo, in some instances, it continued for some time; the only variation which has taken place is what we consider to be a work of supererogation ; in. stead ofaaying" a vobis eligatur" they say " more burgensi um " which we say is expressing th e same thing in different terms —the question is not whether this is a custom that has existed from time immemorial in the University. Mr. Justice BA.YLEv-,The nomination here is not by, the CaPut, but by the Heads of Houses, is it not ? Mr. Sotacyroit-OEsrEnsr.-01i, certainly, my Lard, in all cases ; that is what they contend for. LOUD CIIIEF JUSTICE—That is what they contend for? Mr. SoLtcyrou-GExEitm..,—The Caput has nothing to do with the election. I was mentioning that in the case of the professorship of botany the second grace was precisely in the same terms as the present ; and I was stating to your Lordship what took place under that grace, that the party chosen under that grace was not chosen bya previous nomination of the/Zunis of Houses, but by open poll ; the question is not a b ou t an y an cient custom in the University; but here is a bye-law passed, and the question is, how did they understand the terms, and how ought we to understand the terms? Surely the proper mode of construing such a bye-law, is to consider how a simi lar bye-law, expressed in the same mode, has been construed on similar occasions by the University. My argument is this, and it is almost the whole of the case—for upwards of a century bye-laws of this description haie been passed. It is not even suggested that there has been any other construction put upon them,,though it has been suggested that the bye-law has been in a different form sometimes. I admit that the individual has been named in the bye-law, but that is no argument against me ; for when the bye-law has been in the form where the in dividual, has not been named, the usage of the University al 'ways has been to do precisely that which we contend for. Is it not too much, after the conflated practice of a century, and a uniform interpretatiin of this bye-laiv, to say that we are to be precluded from an application to this Court for a manda mus? Supposing it was a doubtful point—supposing I have satisfied your Lordships of the construction - of the bye-law, will you act upon it contrary to the construction of the University. Having referred your Lordship to this instance, I will now refer you to the case of the professor of anatomy, My learned friends say this is not to be considered as an office. Mr. Ser geant Lens, I observ e d, a l ways said office or appointment ; ;it is certain that George Rolfe, who was appointed the first pro fessor of anatomy, is appointed by a grace constituting that office, and naming him ; he is charged with absenting him self from his office, in consequence of which the University declared the office to be vacant. Now, what do they do ? they pass a grace precisely simil ar to t h e present, which is in 1728 : Illat then takes place under that grace ? He is elected, not by the nomination of the Heads of Houses, but by open poll, or " more burgensium ;" then, in the year 1728, John Morgan is elected precisely in the same form ; in the year 1733 another is elected--in 1748 there is another—in 1753 Dr. Gibson is elected,—then, after that, the next grace that passes is for an election " more burgensium," which is precisely the same thing as we are now contending for, only making use of different terms, and which throws light upon the construction to be given to the previous graces. Now, it is mentioned as a remarkable circumstance in our affidavits, that those graces for so electing individuals " more burgensium" were passed'on the very day of election ; so that it is quite clear, according to the statement made in the affida. vita, it never was intended that the individual should be elected by previous nomination ; for, if it had been intended that the individual should be elected by previous nomination, the elec tion should have proceeded by previous nomination : according to the law and practice of the University, the nomination must have been made on the preceding day. Now, my Lords, what I have stated here with respect to the practice.of the University, and the unform construction put upon these documents, has been controverted on the other side, —they make use of this argument, that it is contrary to the Statute of Elizabeth. My Lord, I deny that it is contrary to the Statute of Elizabeth. My learned friend seemed to question ivhether the University have power to pass graces of this de scription, because they cannot pass a grace contrary to the Statute f i Elizabeth but I say these graces are not contrary to the Statete,—and I also deny their position, that the Uni versity cannot pass graces contrary''to the Statute' of Eliza beth; for every body knows, that the Statutes of Elizabeth were not accepted by the University, and therefore they are only binding as far as they have agreed to accept them ; and it has been so decided, in the case of the King or the University, by my Lord Hardwicke, that they are binding on the I;niversity to the extent on which they have acted upon them, and there fore it would be no argument against what I am contending ; for if it could be shown that these graces were contrary to the statutes-'—but I contend that they are not inconsistent with that particular statute to which reference has been made, pointing out the mode by which persons are in a particular way to be elected, unless otherwise provided for by the founda tion—what is the foundation in this case ? The foundation is the grace, the bye-law that passes for the election : I do not mean to say it is an original grace ; there is a graCe in each particular instance; the bye-law which passes in every instance Is the foundation of the professorship ; and no doubt the bye. law may point out the particular mode in which the election is to take place, and then there will be no var i at i on ; t h en t h e question is, which comes back to the same thing, has not the grace pointed that out with precision by the words " a vobis eligatur ;" it is addressed to the whole body of the University, the whole hotly elect; it is not inconsistent in terms, and if not inconsistent in terms, what is the next course they pursue ? The next step is to sec how it has been acted upon ; and it is found that it has been uniformly acted upon in the manner I have stated, though, as we well know, many of the members are well acquainted with their own statute; that though many persons belonging to the University are extremely astute in construing them, yet they had suffered this mode to go on for more than a century. I say it is not at variance with the terms of the statute,- it is not at variance with the spirit of the statute; but the construction for which we contend is con sistent with the principle of it. This, my Lords, appears to me to be the whole of the argument, however complicated the question was at first. By arguing and discussing it, when we get rid of that which is irrelevant, the question resolves itself into this simple point—this is the construction which has been uniformly put upon it—it is not inconsistent with the terms, nor will your Lordships find it to be inconsistent with the statutes. The University have never considered it incon sistent ; will your Lordships then so consider it ? It may he said that in a cm.: of this kind your Lordships will not be governed by the same practice as usually applies to other cases of writs of mandamus, that it is desirable that the Court should determine this question, that it may not give rise to any warmth of feeling ; and therefore that they would rather put an end to it by motion : but I would say, that the members of the University feel no warmth on the sub4eci ; they are de sirous of having your Lordships' determination ; they think it a question of great importance to the University : there are two Colleges, Trinity and St. John's College, Which together form one half-- Mr. ALDERSO at—They want to have all the patronage. Mr. SOLICITOR-GENERAL—No, my Lord, the smalle r colleges want to excl u d e th e me m b ers o f those large colleges, which constitute one-half of the wh o l e U n i v ersity, and yet have but two votes amongst the heads. Is this fair? But what I am now saying is quite out of the a rgument . Lord Chief Justice A 11110 TT—Quite so—what you are say ing is more fit to be said in the University than here. of f A eeling SOLIC no IT irri OR. tat ..GENERAL n ; both part ie -31y s L are desirous of there is no warmth i o obtaining your Lordship's opinion. Mr. Justice BaYLEv—They may always preclude any ques. tion, by taking care of the manner in which they word their grace—if they exclude ambiguity, catlit questio. Mr. Sonic I.I.OII.GENERAL—There is another question which will arise, as my learned friend states—we are desirous of standing upon the ancient foundations, to appeal to ancient practice and usage: we are not innovators in this case—we re present the great mass of the University. My learned friends are desirous of having a new construction put upon this grace, which I think your Lordships will not be disposed to do from any arguments you have heard. Mr. SCARLETT—I am on the same side, my Lords, with the Solicitor-General, and I do not propose to occupy much of your tiordships' time. As fa r as lam called upon to enter into a contest with the learning and leisure which my learned friend has beyond me, for the purpose of determining the point finally, I would not attempt to cope with him. I shall be sa tisfied if I can show that such a doubt exists on this question, as to preclude the Court from coming to a final determination in the first instance, without giving the parties an opperrtunity of discussing the question in the m os t solemn form ; and, with the greatest respect for your Lordships' decision, to give them an opportunity to appeal to a higher tribunal, should they so think fit. I apprehend, that the practice of granting writs of manda mus has always been adopted with reference to this considera tion, that if you refuse the rule in the first instance you pre_ dude all further discussion upon, and investigation of, the subject, and prevent the parties from an opportunity of hav ing recourse to other tribunals; and although I am not about to say that any of the parties in this case would be dissatisfied with your Lordships' decision, upon a full discuuion of the facts, if you had ,them all before you, which you have not y et . The general rule ' is such as I hav e stated-. I shall hro very shortly through all the topics, as it appears to me that they may be resolved into a very small compass, and that the facts which have been laid before the Court are sufficient to call upon your Lordships to make the rule absolute. It has been said on the other side, that your Lordships are not the proper tribunal, and they refer to a tribunal, which, un doubtedly, to a lawyer, must be considered as rather extraordi nary, namely t to the King in Council. Now that King Charles 2d rulortei the practice that had taken place In the time of the Commonwzalth, of usurping a jurisdiction in corporation ques tions, that he had such questions frequently brought before ' him in Council, and that his successor Kin g f James did t h e same with respect to the election of corporate ocell, I shall not at tempt to deny, but I utterly deny the authority of those prece dents, or that there was ever any foundation In the law for that tribunal. sYeOttihema be spared rule, it will not tha i t io i r ui d rt e o h f ie y f e j u u r be on that ground. s a t r i g e t i n t e n n u t T for,—i fw t t h e r i e n fu k Mr. SCARLETT—The next point is, whether this is a case for a mandamus from the nature of the office and the qualities that belong to it ; whether it is a fit subject for these proceed ings ? Now, I felt considerable surprise to hear it contended, that there was in this sort of office almost every species of ne gation, every negative quality that would entitle the professor to no consideration, and, that in fact, the professor is a non. entity, a nondescript, a sort of an abstract nothingness, that he cannot become the subject of any legal proceedings whatever. Illy Lord, this Court has granted a mandamus to admit a com missioner to enclose lands, though he has not had his two guineas a day, by way of emolument—upon what ground ? be cause the rights and the advantages of other persons are connect. ed with the performance of the duties of that of ite; and will your Lordships say, or will any man say, connected with the Universities of this country, that the education of youth, and the dignity and authority of those upon whom the instruction of youth is cast, is to be considered as nothing in the scale, when a Commissioner for enclosing lande, perhap s o f t h e very parish where that U n i vers i ty li es, i s an office which this Court will look upon as a fit object for a mandamus; but that a per. son who has an office to instruct youth, shall have no le g al process to enable hi m to ta k e possess i o d of the o ffi ce, for if he has not, he has no other appeal ? We have not set forth in our affidavits all that belongs to a professor ; we have taken for granted that those facts would not be disputed. A professor has ran k i n t h e U n i vers i ty, he takes precede nce o f all other persons not professors, and not being his seniors, he has a particular place of sitting in Saint Mary's. Mr. ALDERSON—.That is all, mere matter of arrange ment. 41Ir. SCAULETT.—I do not care what it is, whether given by authority or not, is not the question we have now to try ; we affirm, taut he has the privilege of giving lectures before the whole of•the University, .without the consent of the Vice-Chan cellor. I admit that it is not sworn in our affidavits ; it is a matter well known in the University ; no master of arts can give lectures in the University, unless he is a professor, or without the permission of the Vice-Chancellor ; it is a thing perfectly well known, that a professor may give public le c t ures , and I consider it o f very high importance that a person sh ou ld be elected to an o ffi ce in a University which Warrants him to take upon himself the education of youth, and the improvement of the literature and the morals of youth. I apprehend that this is an office which this Court will consider as of equal importance with an office for enclosing the waste lands of a parish, and allotting to the freeholders their respective portions. It is suf ficient that it appears to the Court there are no other means by which a person claiming a title to an office which he is entitled to, but by the authority of a mandamus. It is sufficient, if the nature of the interest be so far doubtful, that the Court is not bound, upon precedent, authority, and principle, finally to decide it : you would say he was entitled to it,—you would at least not deny it in the first instance, but would enable him to put it in a more solemn shape of enquiry than that of a rule to shew cause. Then I come to the matter of this election—the last point to' which I wish to address myself. Lord Chief Justice Aunovr—The nature of the office ? Mr. SCARLETT—No, my Lord, the nature of the election, —I have done with the nature of the office. I have endeavoured to make your Lordships conceive, that the office at least is suf ficient in dignity and importance, both with respect to its duties and authority, to entitle it to be put upon a parallel with other offices for which you are in the habit of granting writs of man damus,—at least, that these matters are sufficiently doubtful not to preclude the gentleman from this mode of redress, as he has no other. I come now to the right of the mode of election ; and it ap. pears to ma so much learning has been thrown into the case by the gentlemen who shew cause against the rule, that the affidavit is so elaborate, and drawn up with so much skill, that I have no doubt my learned friend behind me knows what may be left out and what put in. I should have judged that upon the reading of the affidavit those who penned it were aware that very considerable doubts at least ex isted in the University. I will begin by asking a question.--I will ask the Rev. Gentlemen who shew cause against the rule ; did any one of them believe that that grace passed in general i terms •' Placeat vobis ut alias ad ideni munus exequentlum a vobis eligatur ?". Did any of them at that time believe that the mass of the University would be called upo n to adopt that grace and elect ? Did they believe that two persons would be nomi nated by the Heads of Houses, and that one should be selected ? If all those gentlemen who passed that grace would swear they so understood the words, I should believe them; but until they make that oath, I feel, in common with other members of the University, that those who passed the grace did contemplate that the mode of election was to be such as that which we now contend for. • I My learned friend, Mr. Alderson, had detained your Lord. , ships a great deal on the St a t u t e; o f Eli za b et h , an d be thinks no : grace is valid if not consistent with that Statute; if so, lam afraid he hat no title to his degree of Master of Arts of this University ; for that Statute enacts that he shall have at. tended these lectures; and every degree is conferred upon a grace that dispenses with those forms--what does my learned friend say ? he says it is the binding law of the University, and that there is no grace (an argument which he addressed so s kilf u ll y and in part so successfully) that no grace was legal that was not consistent with this statute, and yet every degree granted by the University is founded upon a grace which dispenses with its provisions. It is a fact that those statutes were in a body suspended after they were passed; it appears so in the case of Lord Hardwicke. They have no other force than what they have acquired from usage ; some parts have been acted upon, and others not, and others sup. posed to be adopted at the pleasure of the University, anti ca pable of being suspended by particular grace. In an Act passed in the 13th year of Elizabeth, cap. 29, for the purposes of confirming the liberties and usa g e s o f. th e Col leges of Cambridg e and Oxford, those statutes, of which we are now speaking, are not referred to. Mr. ALDERSON—Not in that year. Mr. SCARLE TT—Be it so; they are not referred to either in the enacting part of this statute, or in the preamble. Why ? because it was known that the University never did receive ' them, and never was content with them ; therefore this Act of Parliament, confirming all the liberties and usages of the Uni. versity, does not recite or confirm these statutes. Let us see how the case stands upon the statute. We say that the power of passing the graces is as ancient as the University, and those graces may respect either a particular appointment or become the subject ofgeiieral foundation. And here I must pray your Lordships to notice a distinction which Mr. Solicitor General has passed over. Ido not consider that the graces to elect or to nominate individuals have any thing to do with the subject of a general election, or with the nomination of Heads of Houses; the Caput consists of the Vice-Chancellor, three Doctors in their respective branches, and of a Non-Regent and Regent, Master of Arts—the Grace proceeds by passing unanimously, the caput, it' it is the pleasure that any person should be a professor, a grace may be presented, and the' Caput may pass it ; with this the Heads of the Houses have nothing to do—a grace, for in stance, to create a professor of botany, or to constitute t h e l ate Doctor Clarke professor of mineralogy, that was not within the principle of the general graces—in other words, those nomina. tions by special graces do not raise any question as to the mode of subsequent elections. Where the appointment is by special grace, naming the party, as where the Caput chooses to nomi nate A. B. it is matter of choice whether the University will ac cept him to the office for life; that is one mode in which a grace may pass, but it may pass in another way, which raises an im portant question ; we may say the University, from ancient usage, not derived from the Statute of Elizabeth, but long an terior to it, have a right by general grace to for m a p ro f essor . ship, and the way in whi c h it passes, is that it must first pass the eaput unanimously, and if it is adopted by the other houses, we say that makes a foundation for the existence of the office, and therethre having tri e d the experiment of creating certain offices, anti finding it useful to have such offices, they pass a grace to haves foundation, that is,iliataperson should be elected, that we say is the foundation, and hives to the professor a right to stand upon the authority of that foundation. Now that grace has nothing to do with the Heads of the Houses,it is a resolution of the University, that there shall be such an office ; now I admit they might specify the mode of election if they thought fit, when you consider that no such grace could pass unless the majority of the Regents and Non -regents houses adopted it, it is not very likely that they would shape a grace of that sort to give A foundation to such an office for the Heads of Houses only to nominate two, for large bodies do not like to have their choice limited to a few individuals ; we say die words" a vobis," an d " more burge.nsiurn," are the same thing; and we say they have been so used. I will not again go over the instances that have been adduced before the Court ; the words " a vobis" have been used for founding the first professorship of botany; then we shew by entries in the books of the University, and it is not alleged that any of them are missing, or have been lost, or dint there is any deficiency on the records ; we say from th e moment that dispensati on p asse d, t h at the election was by the ' ' body at large ; we say then, th e grace passing that the indivi. dual should be elected " a vobis eligatur," if' It did not mean the same thing as "more burgensium," the body at large would dot have adopted it. 1 Then my learned friends come with an instance which may 1 give a colour to their argument. I refer to the instance of the professorship of chemistry In 1773, before that there was only an . individual nomination with which the body at large have nettling to do, and so long as any person proposed one, and that ' individual was adopted by the Caput, the Heads of Houses had nothing to do with it ; I say the form of "more burgensium" ' was introduced by way of contrast, to shew that the Unversity would not agree to the nomination of the Caput. Mr. Justice BAYLEY—Not the nomination of the Caput, but the Heads of Houses. Mr. SOLICITOR-GENERAL—NO, my Lord, not the Heads of Houses. Mr. Scantam---If it had been a nomination by the fiends of Houses, the argument on the other side would have been stronger; the Caput proposes one individual, and the Heads of Houses say we will not have him; then another is proposed, and they say the same; what the University means is this, we will not accept of the person ohm the Caput nominates, but we will consent to an open election, so that all persons who are eli. gible may have an opportunity -to become candidates, out of whom we will choose. lam aware that in this grace of 1776 it is pro hac vice, but they go on afterwards —that pro hac vice might have implied, that afterwards they might have changed the mode, as they might have changed it afterwards by special grace; but I say th ose words are only used th ere emphatically in the same way as the words " a vobis eligatur." Now, my Lords, there is no one example used in the elabo rate affidavit which has been filed, to shew that a professorship founded in the way we state by general grace " a vobis eliga tur" has been elected in the way they contend fir; therefore the usage, as far as it goes, is cm our side, and then the only ques don is, which is reasonable. Ido not mean to enter upon the policy of the law ; your Lordships will not decide upon a i t p , pr b e u h t ea l d n yo c ir wsiglerlioongh to whether h ti c h s a i g s e is reaa° na th b e l l e a . nd l , and the law of the land I s , th at y ou are not to li m i t t h at wh i ch thelawof is in itself eligible. Ido not mean to gay what must be done in this case or the other, but I should think where matters of science are concerned, that -the University might be trusted with the choice of a Professor, and they consider the.greater number of persons out of whom they have to chat*, - Sti much the better, rather than to be left to the choice of a few-who may have favourites on whom their ch o i ce m i g h t f all. ' Ido not mean by that Observation to insinuate that the power will be abused, I am sure that the Heads of Houses possesssuffieient liberality to induce them at all times to consult the wishes of the body at large, but in cases of this kind we must gb upon the general principles of law. I know by the history of the University, that soon after their Statutes passed, the body at large were much more liberal than the Heads. It is for your Lordships to determine whether it is right to support that prac tice which we contend for. We claim that the persons to be proposed should not be limited, and we contend that all tit; usage has been with us as far as that usage has gone, and when your Lordships see that the question turns -upon the words " a vobia eligatur," as meaning the same as " more , burgen slum," whether they have been considered as svnonimoui words, that you will give us an opportunity of a further trial, - and not decide this question of so much imp or t ance to t h e University, by affidavit. We deny that the Statute of Elizabeth is to be grafted into the law, to cut .down the rights of the University; but if my learned friends should• succeed in the ultimate argument, and are enabled to shew that those sta tutes are to govern this question, we say still that we are en titled to further inquiry. The question upon the statute will be, whether this is not consistent with the statute? I say it is; because it is the language of persons, members of the Univer sity, who consider that they were giving the nomination to Heads of Houses, and who were to choose one, and that the grace was the foundation -for the professorship. They have made an experiment, and intended to continue it as a permanent pr6fes sorship, according to the usage by the body at large. All I profess to do upon the present occasion, is to shew there is a sufficient doubt existing to entitle us to call upon your Lordships for further inquiry, and I trust you will not refuse the body I represent on this occasion a further investigation of thisqUestion. -We do not w i s h to ag i tate it with any hostile spirit ; but it is considered as a question of great and grave im portance to the University, in which opinion I agree. All th e y wish is to h ave i t set upon its ' true ' grounds, for:they think if the professorship ought to be plated on the ground now contend ed for, that they will have to consider whether there should be a foundation. It is thought that' the i,*race intended to give the election to the body, and not to have it limited by previous no mination. For these reasons 1 submit to your Lordships that the rule ought to be made absolute. (To be Continued.) MERCANTILE SHIPPING. [Extract of a Letter from the Agent to Lloyd's, at Philadel phia, dated April 4.] " We hare had a dreadful storm, but nothing has come to my knowledge, within my district, in which the English Under writers are interested." DEAL, MAY B.—Wind TV.S.W.— Arrived and sailed for the River the Cambrian, Clarkson , from Bombay; R o y a li st , Cook, South Seas ; St. Vincent Planter, Paisley, St. Vi ncent ' s ; and Benson, Brown, St. Thomas's. Came down from the River this morning the Layton, Mille, for Madras and Bombay ; Colonist, Smith, for Barbadoes ; Belinda, Coveniale, Van Dieman's Land Sibson, Trundle, Iterbice; Cynthia, Link later Newfoundland ; the D a rt ; 'Wellington ; and John Rickman, for Rio Janeiro, and remain with the outward-bound as per last. PORTSMOUTH, MAY 8.--Wind W.S.W.--Passed by the Tilus, Chilton, from Pernambuco for Nitinburgh. PLYMOUTH, MAY 7.—Wind S.W.—Arrived the Adler, Kortlang, from Havannah for Bremen ; Shannon, Jolly, from - Leghorn for London, in 28 days. Sailed the ilarnbury, for Nauburg, and the Endeavour, Searthingwill, Nymph, Nancy, and Brothers, for London. SPORTING INTELLIGENCE. .-STATE OF THE ODDS. DY. 25 to I spit Talisman 25 to I agst c. by Blucher 25 to I agst Cinder 35 to I agst Bertram Very high odds agst any other. 0 KS. 12 to I agst Sister to Sultan 20 to 1 agst Reserve 20 to 1 ag►st OUvera High odds any other. :* • t t .. 4 arty at Lyn 'Winn) ;is and at his at hiJ at his shion• A, St. to the in St. Iliant. e licit . Fel lior of 1, and were t aVilg le Mil have thin h the ration that ;thou t 24, or ek a wry tatioa Liable vr of mod t l ' Or, nen BETTING-ROOM, MAY 8. DER 6 to 4 agut Emilio, 4 to 1 agst Tancred 6 to 1 agst Nicolo 11 to 1 agst Pantina 20 to 1 agut Fanatic 5 to 2 agst Zinc 5 to 1 agst Spermacetti 5 to 1 apt Pinwire 6 to 1 apt Tint DONCASTER ST. LEGER. b to 1 age Sherwood 18 to 1 agst Tancred r 0 to 1 agst Tinker 20 to 1 apt Palais Royal 12 to I agst Miss Fanny 2.5 to 1 agst Columbus. t; to 1 agst naming the winners of the Derby and OultS CHESTER RACES, TUESDAY, May G. His Majesty's Plate of 100 gs. for 4-year olds, list. 21b. five, est. 101 b. six and aged, iist.; winners of one plate, match; or sweepstakes, carrying Sib.; or two, 71b.; and of three or more. 101bs. extra ; thrice round. Mr. Mytton's ch. g. Euphrates, aged - . I - Mr. Clifton's b. h. P eter L e l y , 5 yrs. - - - 2 Mr. Brown's ch. c. D'Arcy, 4 yrs. . - - . 3 Mr. M. Jones's b. h. by Weaver, 5 yrs. . - - 4 A Sweepstakes of 201,, , 5. each, for three old fillies, list. each ; once round and a distance, did not fill. Sixty Guineas (clear), the gift of the Members for the City, f or three year old colts fist. 01b. ; fillies , fist. 61b -; four year old colts, list. 41b. ; f illies, list. Ilb. ; two mile heats. Mr. Rogers's gr. c. Sir Edward, 4 yrs - - 1. 1 Mr. Maddy's ch. c. Silurian, 4 yrs - - 2 2 41 Anson 's br. e. by Sir Oliver, am. . - . 3 dr Mr. Mytton's br. c. Libertine, by Filho da P u t a , 3 y rs 4 il r Sir T. Stanley's b. f. by Cervantes, 4 yrs. - . idr A Free Handicap of 30 sovereigns each, 10 sovereigns ft. tb r three and four years o ld s; once round and a distance. Mr. Houldsworth's b. c. by Filho da Puta, 3 yrs fist. 41b. . 1 Mr. Yate's ch. c. Mendax, by Soothsayer, 3 yrs fist. thlb. 2 Mr. Beardsworth's ch. c. Rossini, 4 yrs 7st. 121 b. , - 3 Sir T. Stanley's b. c. by Cervantes, 4 yrs 7st. 121 b. . 4 Sir W. W. Wynn's b. f. by emus, 3 yrs., fist. 21b. - fell. The Cocking was equal at the end of Tuesday's fighting, each party having won four mains and two bye-battles. . The Totnes Races are fixed for the 2d of July. In addition to the five and ten guinea stakes, there will be a Stew ar d s ': ;out a Ladies' Cup. TROTTING MATCHES. Major R. GOUGH'S two matches took place yesterday, at Ilinton-park, Surrey. Th e y wer e f or two hundred soVereings each. The first match was to trot his Amazonian'mare three miles in eleven minutes, and to carry feather weight. The first mile was done in three minutes and thirty-five seconds, the second in three minutes and thirty-eight seconds, and the third in three minutes and forty second s . The mat ch was won by seven seconds within the gsven time. The second match was to trot a horse Lone fide his own prn.: perty, sixteen miles in one hour, and carry eleven stone. The match was done over a two-mile piece of ground. MIN. SEC. ,bIIW. 81F.CL Ist Two miles in - 6 40 Pith Two miles . 37- 2d - Ditto ditto . . t; 28 . 7th Ditto ditto - . 7 411 3d Ditto ditto - . 6 42 Bthbitto ditto - - 8 40 4th Ditto ditto . 6 43 rith Ditto ditto . . 6 40 It Was a close run race, and won with difficultys6 20. THE M . lIKETS. CORN EXCHANGE, ltaY 9. The arrivals since Monday last are moderate : There is ft dull Wheat trade to.day, and the prices are hardly so good as last quoted.—ln Barley no alteration. —Beans sell slowly, as also do Pease, at last quotation—Oats do not meet bows quite so readily, but the prices are folly maintained. SMITHFIELD 3IARKET, MAY 9. The supply was rafter short this mor.iing, in consequence of which, the prices of a ll d eicr i nt i ons o f Cattle were somewhat higher than last Monday's market. To sink the Offal, per stone' of Bib. 1 Beef is tki to 4s 441 Veal Mutton 3s Od to 4s 4e. 1 Pork .... 3a tki to 4a Oil Lamb ts: Ott to es Oil. HAY AXD STRAW, PLIt LOAD. Hay lOs to £4 Os j Clover £3 10s to £4144 Straw £2 10s to £2 14s. The Dublin Catholic Meeting, on Mr °Tom- Noa'a 'Motion, appointed a Committee to draw up an Addregs to his illAJEsTir on the condition of the I rish Catholics, and a resolution of thanks to Mr. Px.v)IKE T T, in order that they might both be proposed to the Aggregate Meeting. •