The Sun.
London, England, 1837-01-12 00:00:00

REGIUS PROFESSORSHIP OF

DIVINITY.

LEGAL OPINIONS On the Statute passed May sth, 1816,
in the Convocation at Oxford, having for its object to de-
prive the Regius Professor of Divinity, during the pleasure
of the University, of the right of sitting at the Board of
Inquiry into Heretical Doctrine, and at the Board for the

Nomination of Select Preachers.
THE FIRST CASE.
OPINION OF THE ATTORNEY-GENERAL AND
DR. LUSHINGTON.
QUERY.-1. Do the King's Letters Patent, authorising
the adoption of the Caroline Code of Statutes, amount in law
to a Charter, and is the acceptance by the University of such
a nature as to bind them to the strict observance of the whole
Code ?

OPINION..--1. We are of opinion that the King's Letters
Patent, authorising the adoption of the Caroline Code of Sta-
tutes, are, in legal contemplation, a Charter, and that the
University of Oxford accepted the same. There being no-
thing in those Statutes to show that the University should
have an option to accept in part, and reject in part, we think
the whole body of Statutes was accepted, and consequently
that they are binding on the University.
Qv.-2. Can any usage subsequent to 1759 (the date of
Mr. Morton's and Mr. Wilbraham's opinion), if such usage
exist, control the effect of the Statutes ?
OP.-2. We are of opinion that no usage subsequent to
1759, can control the effect of the Statutes.
Qv.-3. What power, if any, does the University possess
of abrogating or altering the Caroline Statutes, or any other
existing Statutes which may have passed prior thereto?
OP.-3. We think that the University possess such power
of abrogating and altering the Statutes as is conferred by the
Statutes themselves, anefurther, such power of making or al-
tering Statutes as existed by usage prior to 1636, and is not
inconsistent with or contrary to the Caroline Statutes ?
Qv.-4. Are you of opinion that the proposed Statute
hereto annexed can be lawfully passed by the Convocation ?
OP.--.4. As a material part ofthe proposed Statute appears to
us to be inconsistent with the Caroline Statutes, we are of opi-
nion that it cannot legally be passed by the Convocation, with-
out the consent of the Crown.
(Signed) J. CAMPBELL.
Temple, April 30, 1836. J. LUSHINGTON.

THE SECOND CASE.
OPINION OF THE ATTORNEY-GENERAL,
DR. LUSHINGTON, AND MR. HULL.

QUERY.-1. Had the University, in 1636, power to accept
a Charter from the King which should bind their successors.
such Charter abridging the powers confirmed to the Univer.
sity by the Act of Parliament of the 13th of Elizabeth ; and
so, are not the words " Statuta Regis auctoritate sancita vei
confirmata," p. 119, to be understood of particular Statutes
alone paso.ed in 1634, and included in the words " Statute
jam condita ?"
OPINION.—It is obvious, from the opinions of Mr. Justice
Blackstone, and Messrs. Morton and Wilbraham, that doubts
have heretofore existed as to the extent of the power of the
University in repealing the old, and making new Statutes. If
the University possessed an unlimited power of repealing old
and making new Statutes prior to 1636, and that power is
not modified by the Statutes of 1636, it can exist only by
force of the Act of Parliament of 13th Elizabeth, for no less
authority can prevent the doctrine established in the case of
the " King and 'Westwood," attaching on this case.
There is no proof, to our knowledge, that any such unli-
mited power ever existed, and certainly in 1636 none such was
supposed to exist. We think, therefore, that the answer to
the 3d Query of the former Case is well founded. We think
the Laudian Code is binding on the University as a Charter
accepted by it. In that Code we find no general repealing
power. The accustomed power of making new Statutes is
reserved, but under certain restrictions.
Nothing done by the authority of the Crown could (as is
most. clear) have the effect of repealing an Act of Parliament ;
but we do not conceive that the Act of Elizabeth bound the
University from accepting a new Charter from the Crown.
The intention of that Act was to make the Charter therefore
given " good, effectual, and available in law ;" and, in our
judgment, as Charters, and nothing more, curing all legal de-
fects which may have existed in them, and preventing any pos-
sible bygone forfeiture from attaching, but not to alter the
nature of the Charter, and to make it and every part of it for
ever binding. A parliamentary confirmation of this kind does
not, in our judgment, tie up the Crown and the University,
the one from the granting, and the other from accepting a new
Charter.
1. We are disposed to think that it was competent to the
University to accept a new Charter from the Crown, though
in some respects it might abridge the powers enjoyed prior
to the Statute of Elizabeth. But even if this were otherwise,
it would be necessary for them who con tend that a power con-
trary to the Charter existed prior to the Statute of Elizabeth,
to show it.
Some obscurity rests upon these words, " Statuta regia
auctoritate sancita vel confirmata," as used in the Statute
Book, tit. x. sec. 2. par. 2. p. 119, but we are of opinion that
these words are not to be confined to particular Statutes
passed in 1634, comprehended under the terms " Statuta jam
condita," but that they do extend to all Statutes to be made
after that period by the authority of the Crown.
Qv.-2. Is the University bound by the legal construction
of the passage, such construction being assumed not, to have
been contemplated by those who framed or confirmed the
Statutes ?
OP.-2. We apprehend that the University must be go-
verned by the legal construction.
QY.-3. Is the whole Statute, or any part of it, for any and
what reasons illegal, or void ; or in any and what way voidable ?
OP.-3. We think that the Statute of 1836 is illegal as
violating the restrictions imposed by the Laudian Code, and
as passed by the assumption and exercise of a power which
has not been conceded to the University.
QY.-4. Must it be put in operation before any proceedings
are had to declare it void, or quash it ; or can any, and what pro-
ceedings, be now instituted for that purpose ?
Or.--4. We think the Statute must be put into operation
before any proceeding could be taken by Action in any Court
of Common Law.
Qv.---5. What proceedings, and before what Tribunal, are
open to the Regius Professor, or to any other and what person,
for the purpose of declaring void or quashing this Statute ; and
what proceedings for that purpose, by what person in what cha-
racter, do you recommend on behalf of the Regius Professor of
Divinity ?
OP.-5. We think the Regius Professor, or any Member of
the University, may present an Appeal against the Statute to the
Visitor.
Qv.-6. Is there a Visitor of the University of Oxford? In
whom is the power of visiting vested, and what is the mode or
process by which Dr. Hampden can bring before the Visitor the
question of the legality or illegality of the Statute against him ?
OP.-6. We are of opinion that there is a Visitor of the
University of Oxford, and that the power of visiting that
University is in the Crown, and that a petition in the usual
form will bring before his Majesty the legality or illegality of
the late Statute, and other proceedings against Dr. Hampden.
(Signed) J. CAMPBELL.
STEPHEN LUSHINGTON.
WILLIAM WINSTANLEY HULL.
Temple, Dec. 17, 1836.
If these opinions be well founded, and there is every rea-
son to think they are, from the high professional character
of the Counsel by whom they are given, it is plain that the
University has now no Statutable Board of Heresy ; that
their Select Preachers are not, and cannot be, properly ap-
pointed ; that there is danger to the Preachers nominated
in last November, and any others who shall hereafter be
nominated in the same manner, if they should occupy the
pulpit in consequence of such appointment, of being con-
sidered intrusive and schismatical ; and that the University
Funds cannot be lawfully applied for their remuneration.
These are some particular effects that ensue from the pass-
ing of the Statute to which the Opinion of Counsel refers.
Every one must see also, from the same Opinion, the risk
which the University has incurred of a forfeiture of its
Charter.