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

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LAW PROCEEDINGS.

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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 form for 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
election 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 one who is insufficient, and then the University
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 ane y other
person than one who is 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 the Law 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 the law is 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
pqotsUiensti,on in two modes, and if they are right
I admit our rule cannot be sustained ;
in the first place,
they say that this is not an office for which a
mandamus will lie, and in the next place, they say that the
person on whose behalf the application is made, was not duly
elected 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—
' net, 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 °Mee established 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 hi; 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.
fr°writ though annually voted by Parliament. Now, mr
:tents, it would be °a most singular thing to say, that if a party'.
oirie elected to perform the duties of such high character, and
twat 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 Fde,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
thYeand 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 oundation—chemistry, anatomy., mineralogy, and
dy, that etlieeriPeti"a"
Of this d Pr°femorships.—Now, my Lord, it is admitted in cases
on -the othert 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. ienit 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
touncii, find , • application was made to the King in
or whether i
claim,: but . sne parties went and discussed their relative
t does nbt appear that it was done adversely,
themselves t was not done by the consent of the parties
principle otlbta...nd I would ask your Lordships upon what
the Privy cou'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
Doping the 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 za
as far tb,Ahus, what is the whole summary of the aegu-
ght of the Court to grant this man.
established b .and duties of the office held under, and
ta(pstss, the Y. a DYC.IAIV, which the University had power
en the
„,10..);.Individual, holding it for life, the University
'annexed ro c interested in the nature of the Office, no salary
duties of , It, but emolument incident to the discharge of the
office,,tie wliich the person is bound to perform, and
civioi 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
tno Mr- Allmon but which was faintly contested by my
eittearned friends whoa preceded him.
h7ltuein,s as to the eleetion--Wae this individual duly elected ?
depetnin.): aPPrehend the whole question as to the election must
Spate "Pon the form of the grace. The construction of the
wits which was intended by the University when that grace
deeitted 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‘.4rnott friend who preceded me on the other side. The
ee,;,' 01 the facts with respect to the appointment to this pro.
.47.,tia)iiie are before the Court. Previously to the Statutes of
theeth there were five professorships; there were time Lady
rfotret'
the s reader ,of 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 the
Crldetion of indi iduals, and some upon the foundation of
MY of -which that under consideration is one.
tu*"'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 progress of science 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 whom the Senate
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 further appears by the 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 led to believe, and doth
believe, and hath no 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 Heads
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 should be " more burgensium," 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, then how does the
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 " more burgensium."
Mr. Justice HoLitoYD—Do you find any instance where,
in any of the professorships in question, it has ever appeared
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 except music;
at last the name of the individual was omitted, but the pro-
fessorship was continued by grace, which is the foundation, and
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 burgensium"
which we say is expressing the 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 about any 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 observed, always 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 similar to the 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 fiElizabeth 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 variation ; then the
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 smaller
colleges want to exclude the members of those large colleges,
which constitute one-half of the whole University, and yet
have but two votes amongst the heads. Is this fair? But what
I am now saying is quite out of the argument.
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
noIT irriOR.
tat ..GENERAL n
; both part ie-31y s
L are desirous of there is no warmth
ioobtaining
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 far 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 most 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 yet.
The general rule' is such as I have 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, namelyt 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 Kingf James did the 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
thaitioiruidrteohfieyfejuur
be on that ground.
satri g e
tint
ennut T
for,—i
fwt t he
rienfuk
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, perhaps of the very
parish where that University lies, is 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 legal
process to enable him to take possessiod of the office, 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 rank in the University, he
takes precedence of 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 lectures,
and I consider it of very high importance that a person should
be elected to an office 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 upon 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 Statute; of Elizabeth, and 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 skilfully 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 usages of. the Col-
leges of Cambridge 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 the late
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 form a professor.
ship, and the way in which 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 tried 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," and
" 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 the
moment that dispensation passed, that the election was by the '
' body at large ; we say then, the 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 those words are only used there 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
ai tp,prbeuhtealdn yocir wsiglerlioongh to whether h tic
hs aigse is reaa° nathbellea.ndl,
and the law of the land Is, that you are not to limit that which
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 choice might fall.' 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 importance to the 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 wish to agitate 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 they
wish is to have it 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; Royalist,
Cook, South Seas ; St. Vincent Planter, Paisley, St. Vincent'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 Dart ; '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. :* •