The Sun.
London, England, 1823-05-10 00:00:00

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FASHIONABLE ARRIVALS.
Lord de Dunstan ville, at Nerot's Hotel, Cliiford.street, Bond-
street ; Sir Henry and Lady Bunbury, at ditto ; Lord Gort, at
ditto; B. Brooksbank, Esq. at ditto; Captain Hunter, at
ditto; Hon. Mr. Bennett, at ditto ; Sir Edward and Mr. Baker,
•at Kirkham's Hotel,. Lower Brook-street, from their seat in
Dorsetshire ; the Hon. Colonel Dalrymple, at Fenton's Hotel,
St: James's-street, from his seat in Kent ; Colonel Austin, at
Jordon's Hotel, St. James's-street, front his seat, Kipington,
Kent ; the Honourable Mr. and Mrs. De Gray, and the
Alisses De Gray, at Mivart's Hotel, Lower Brook-street, from
Southampton.
DE paitTtr RES.—Major De Havilland,from Fladong's Hotel;
Oxford-street, to Oxford; Alexander Smith, Esq. front ditto,
to Barnet; Mrs. Ackland and Ladies, from Negrot's Hotel,
Clifford-street, for Bath; Mr. Mrs. and Misses 13urgoine, from
ditto ; Mr. and Mrs. Macdonald, and Capt. Temple, from ditto;
Dr. Weatherhead, from Bruton-street, for Leamington Spa.
BATH ARRIVALS.—Lord and Lady Duflerin, Lord Mount
Sandford, Lady:Bampfylde Lady Clonbrock, Lady Gifford,by
Lady Leslie, Sir Patrick and Lady. Ross, lion. G. Villiers, Sir
A. Barnard—Admiral Sotheby, Major-Gen. M‘Nair, Col. and
Mrs. Pearson, Major Dicken, Capt. Arden, ' Capt. Agassize,
Capt. Browne, Capt. Clay, Capt. bdgecumbe. Capt. Farewell,
Capt. Foster, Capt. Holland, Capt. Roberts, Capt. Simeon, Capt.
SYkes—Rev. Canon and Mrs. 'Wodehouse, Rel. Mr—Bayntun,
Rev. Mr. Gooche, Rev. Mr. Helyar, Rev. Mr. Wilson.

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PA S MAK A RTI ES.
Prince LEOPOLD H
gaveIONA a grand P
entertainment yesterday to
the Marquis and Marchioness of Lansdown and a numerous
party; in the evening his Royal Highness gave a splendid rout
at Marlborough House.
TILE COUNTESS OF DERBY'S ASSEMBLY.—Her Lady-
ship entertained a select portion of the fashionable world, at
her house in Grosvenor squire, on- Thursday evening. The
following were present, viz.—His Royal Highness the Duke of
GlouCester, his Royal Highness; Prince 'Leopold, Duke and
Duchess of Somerset, anal Lady C. Seymour, Duke and
Duchess of Leinster, Duke and Duchess of Argyll, and Ladies
•Pageti Marquess and Marchioness of Lansdown, Duke of
Devonshire,. Earl Grey and Ladies Grey, Earl of Essex, Conn-
tests Cowper, Countess of Jersey, Lord and Lady King, Earl
Fortescue, and Ladies Fortescue, Earl of Stamford and Lady
Jane Grey, Earl and Countess of Harewood, &c.
The Countess of Essex gave a grand dinner on Thursday
.evening, at her house in Hill-street., Berkeley-square; the three
drawing-rooms were most brilliantly illuminated; there were
present nearly 400 persons of the first distinction and fashion.
The Earl and Countess Morley gave an elegant entertain-
.lnent yesterday to the Marquis and Marchioness of Stafford,
Earl Gower, Lord Belgrave, Viscount and Viscountess Gran-
.ville, and a distinguished party, at Kent House.
. The Duke of Grafton entertained a distinguished party to
dinneryesterday, at his house in Clarges-street, Piccadilly.
Lord Saltoun had a dinner party yesterday at his house in
Ctimberland-street.
Lord Woodhouse entertained a large party at dinner yester-
day, at his house in Upper Brook-street. In the evening her
Ladyship had an elegant circle of distinguished fashionables.
The Lid of Aberdeen had a dinner party yesterday at his
house in Argyll-street.
it
H. Davy, Bart. entertained the Earl and Countess of
Lonsdale, and a large party of distinguished personages, to
dinner Yesterday, at his house in'Grosvenor-strcet.

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POETRY.

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ON MY HOURS.
13Y THE LATE DR. WOLCOT.
( Not before printed.)
My nouns are CHILDREN I revere,
In comes a fool and stun's my par-- •
Unhappy HOURS, Ileavrn help 'em !
An INDrAti, with a Knife of Deitt4,
Methinks breaks in, with yelling breath,
Poor souk! to seize and scalp 'em.

. KING'S coNEER,TitooMS, (Hanover-Square).
• Mr. VAUCHAN, musical talents, are so
sleservedl7 admired, had his annual Concert last night in these
lhe musical treat was of the best order. Mr. F. CRA.
shill led, and Mr. GREATOREX presided at the harpsichord.
.The orchestra, was filled with first-rate performers. 'the vocal
and instrumental pieces were well selected, and agreeably diver-
lilied- A printed apology was prefixed to the book fur the
absenea of Madame CasteottEsE, and her place was ably sup.
hp Miss TREE. MTS. SALMON, Miss STEPHENS,
}lied„.v. RAY IS, VAUGHAN, BELLAMY, NV: KNYVET T., B.
„,a-EltitAlL, J. B. SALE, were the chief vocal performers. Miss
4-10:E had the only encore in "Mary I believ'd thee true,"
Which she sung with pathetic symplicity. Mont gave a Pot
Pouri on the violin. Tlid. Whole concluded with the grand
chorus " God save the King." The room had a very elegant
and numerous assemblage of 'visitors.

he Id,
with

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- •
Mrs. BItAIIAM gave a Musical Entertainment
list night to a party of private friends, which was numerously
attended. Mr. BRAIIAM, Mr. KELLNER, Miss WM1249021*
and Miss CAREW, highly gratified the company by their vocal
and instrumental performances. Mr. MOCIIELLES displayed
his extraordinary skill in two concertos on the pianoforte. Mrs.
f,:rim"Fs% whom her family had properly prevailed on to seek
some intermission of anxiety under her recent and heavy
lon' was, present, and was observed with that sympathy and
esteem sojustly due to her high professional and personal char c.
ter. 'Mr. BRATIAM sung " Lord remember David" in such a beau -
_finose unrivalled
Lwo_ul and pathetic manner, as evidently affected thathrreat A ctress
powers so often affected the public.—
!iel? retired at an early hour, receiving, as she passed, the heart-
ebtnindant supper
felt tribute of general respect. There was a very elegant and
h. could gratify
t and the younger part . of the visitors con-
ei
It ed the whole with quadrille:, &c. Nothing was omitted
the company; and the amiable Hostess was
t in her exertions to promote general pleasure.

go;
ne'
tbe

of KING received a long visit from the Duke
Yciax yesterday.
b. Yesterday the Earl of LIVERPOOL transacted
oaday
ui‘i,s ;fess with Mr. CANNING, at the Foreign.office.
ger night Mr. Saturn, the King's Messen-
-I‘,larrived in town, with dispatches from Spain.
s a* NOLLlll(ttis,l
of t is said that, on account
will of
differences among the Executors, the
„ I " this Gentleman is likely to afford employ.
mher will
to the gentleman of the long robe, as an-
had been prepared, but was not signed
1.)), the Testator. The first will, though not so ex-
ii aordinary as that of Mr. TIIELLUsON, or that
Or Mr. COUTTS, is, by all accounts, sufficiently
fingulare It is reported that it was the inter'-
!!en of the deceased to leave a very great por-
tion of the property to Sir WILLIAM BEECREY,
can(' others) who was nominated as one of
the Executors, and that the latter will was made
,he
the positive orders of the Testator, but that
the LOW's delay" rendered it too late for sig.
nature. As, however, the property is very large,
It is not improbable that a liberal and amicable
arrangement among the parties may yet obviate
all litigation.
We regret to learn, that by the fall of a tree
-ear New Brunswick, on Sunday last, Mr. MATHEWS, the
,sTnetlian, received some ury, and Mr. PRICE, the Manager
"` the Park Theatre, had his leg broken. These Gentlemen
Were on their way from Philadelphia to this city; in a private
Qdrriage.-4The foregoing information is derived from the Phi.
• 4Phi Gazette. If true, it is singular that the news should
tot have been received here before this late period.]—(New
L' period.]—(Newor,sh Paper, April 2.)
EbEsTRIANIS3I.—An undertaking to go from London to
100th mile stone on the York road, and back, in three
?"3YB, was commence'd on Thursday morning for 100 Bove-
bY Mr. West, the pedestrian. lie started at four o'clock,
'lnd went to Colliersend, twenty-four miles, to breakfast. He
halted at Bucldand, thirty-three miles, at one o'clock, passed
othrough Iluntingdon, at dusk, and laid down at ten o'clock, at
fan-cross, completing his first day's work, and in good
der. lie is accompanied by one horseman only.

LAW PROCEEDINGS.

COURT OF KING'S BENCH, APRIL 29, 1823.

THE SING. V. THE VICE-CHANCELLOR OF THE UNIVER
SITY OF CAMBRIDGE.
SECOND DAY.

(Continued from our Paper of yesterday.)
Mr. TINDALE—After the case has been so fuy argued, I
shall not occupy the Court at any length. I apprehend it is
expected of us, that we should be able to convince your Lord-
ships what would be our situation if we could answer the affi-
davits on the other side; for the question is not whether we
are right on the ground we occupy, for we are only asking that
the matter may undergo further investigation, and to be per-
mitted to answer the case set up against us. Your Lordships
will recollect, that in an early stage of the proceedings, weasked
to answer some of the facts stated in the affidavits—facts which
were either not fully stated, or incorrectly stated. At that time
your Lordships thought proper (according to the general prae.
tice of the Court) to refuse that application ; and all I now
request is, that the rule may be granted, with a view of having
the subject more fully investigated.
I apprehend, my Lord, that the only two points which can
be brought into discussion at this moment are, Whether this
is an office where the Court will, according to its general prac-
tice, grant a mandamus,--and, whether we have shown your
Lordships there is that degree of doubt of the true interpreta-
tion of this grace, that it deserves further investigation. Now,
my Lords, as to the first point, I do not see we are weak upon
that ground, on which we set out ; for we stated, that the office
of professor was one of considerable dignity—that be has the
exclusive privilege of lectures in the University—that he
alone has the power of giving them without asking permission
of the Beads of the Univeraity—that he takes an oath of office
when he enters into the office, a fact which was a little doubted,
but my learned friend, I believe, now concedes it; for the
words of the oath taken is in the same terms as that taken by the
Vice-Chancellor. We also stated to the Court then, and which
is not at all doubted, that these lectures are matters of emolu-
ment to the party who delivered them ; and, which I
think is another circumstance not to be neglected, that
it has been the course and practice of the Crown, where-
ever a professorship has been established by the University,
to allow a salary of one hundred pounds a year; it is allowed by
Act of Parliament; therefore, I say there is in this professor
a sufficient degree of emolument and profit to authorize the
Court to grant this rule; there is also a sufficient degree of du.
ration attached to it, for it is not said, that when the professor
was first appointed he did not hold it for life, unless by miscon.
duct, a subsequent grace of the University takes it from him.
Then, my Lords, we have here a person who has that which in
the contemplation of Law, is a freehold for the forfeiture of
office by bad conduct, is, that which the law does not contem-
plate. We have a person who is in
.possession of a freehold,
and accompanied by an emolument; it is a place of dignity;
some of my learned friends I see smile a little at that, but by
graces, which some passed, and which are in the Statute-books
in 1738, I think it was when a grace was passed for repairing
that part of the church, where the Heads of the,University sit;
it recites " that the gallery in St. Mary's Church is not suffi-
cient large for the Heads of Houses, Professors, &c."
Mr. ALDEnsois--Where is that; it is not in the affidavits ?
Mr. TINDAT.E—You have referred to the Statutes, and I am
doing the same. Therefore, before the year 1738, the profes-
sors had a seat allotted to them in this conspicuous part of the
Church. By another grace of the University, all professors are
made syndics of the Library, also a place of great trust, and
consequently of dignity; though not a place of emolument, they
have certain places in processions, which the University records
point out, and which carry us back as far as 1740, which shew
that they have always occupied those places. This is a thing
which, if it is not made the substance of the case, is not to be
overlooked.; it shews the professors have always had a certain
rank and dignity in the University, to which other members
have no right.
I do contend, therefore, my Lords, upon the first point
there is a sufficient degree of certainty in the office as to emolu-
ment, as to make it • the subject of a mandamus. Is not
there then upon the grace itself,—that is the only other ques-
tion upon the foundation grace of this professorship,--is not
there a sufficient degree of doubt to allow a party to contest it
as far as the rules of the law will allow ? Or is it so corn.
pletely clear that he has no right to that which he asks at your
Lordship's hands, namely, a mandamus, but that his right
is to be concluded for ever ? Let us ask any person who
merely looks at these words, unaccompanied by any usage,
what interpretation he would put upon them ? The words
are " Cum per mortem Edwardi D. Clarke, nuper professoris
mineralogire munus isted jam vacuus existit. Placeat vobis ut
abut ad idem munus exiquendem a vobis eligatur." Now,
what is the construction which any person who reads those
words would put upon them ? Would he say there was to be a
previous nomination of two persons by a third body, not form.
mg a component part of the body at large, one of whom must
be chosen ? I say no person who merely read this grace could
putany construction upon it but that it was to be an open
election. " Curnper mortem Edwardi D. Clarke, nuper pro.
fessoris mineralogists munus istud jam vacau existit. Placeat
vobis ut alius ad idem munus exiquendem a vobis eligatur."
It is a mistake that the meaning of the words " Placeat vobis,"
when a grace is originally presented to the Caput, is that is an
address to the Caput alone—it is an address to the Senate in
general. I can show that by the form which the Caput adopts
upon such occasions, for though it goes up with ,these words, it
is the custom to write upon the grace when passed, the word
" ad," that is, "ad senatum." Let it go on—this is done
before it is carried down.
Lord Chief Justice AriporT—lt is addreessed in the same
form to the Caput first of all.
Mr. TINDALE—it passes the Caput, for unless approved
by them it cannot get any further at all, so that the word
" vobis" has the meaning of the whole body of the Senate who
pass a bye-law. If it stands thus upon the bare construction
alone, let us see what our affidavit states as to the fact of the
belief which the parties had acting upon the words as they
found them in the grace. Now, my Lords, Professor Sedgwick,
in his affidavit, states decidedly it was his belief, and the belief
of many persons with whom he conversed, that it was a public
and open election which was intended; that it wassthe belief
of many persons who voted that it was to be an open election.
But, my Lords, let us go a little further, and see what the
course and usage of the University were at the time of passing
this grace, as far as related to the professorship simply si-
tuated ; that is the proper test to bring the question to. We
must not, I am aware, talk of custom, strictly speaking, when
the professorships are so modern ; but we have a right to talk
of the usage of the University with respect to professorships
similarly circumstanced. There are but four—Chemistry,
Anatomy, Botany, and Music. It is perfectly clear, that when
this grace was passed there were open elections, and it is also
dear that graces were passed, on which persons were so elected,
in the very words in which the present grace is passed. Then
we have not only the form of the grace, the opinion of the per-
sons acting upon it, but the usage of the University, as far as
it could apply to this grace. Considering what our argument
is, I say this consideration alone would convinc& the Court, I
speak with great deference, that there is that degree of doubt
to entitle the party who claims this office to have it put upon a
record, and to require an answer to it. The only attempt to
answer it is, that we are bound down by the statute of Lliza.
beth, that the election ought to be in the mode there stated,
namely, by previous nomination; that it shall be in the same
manner as the election of the Vice-Chancellor, according to
the first words of the statute. Our answer to that is, that this
is not an office of lector at all, according to the meaning given
to this word in the statute of Elizabeth ; it did not, apply to
the then existing professorships. each being governed by its
own law and regulations. The " lectores" are put in opposi-
tion to " professores," that the words lector and professor may
in some caseahe used synonimously, I am willingto accede torny
learned friend, :but I say in thisplace the word used ought to be
referred to the Barnaby lecturers, wins are chosen by%nornina-
tion ; but, my Lord, there are words in this clause which gets
us out of the operation of this Statute : " Quibus elites a nobis
non est provisions sequentur rnoduni et forusam in electione
procancellarii proscriptum fient quo infra quatuOr decetii dies
post vaceationem nisi aliter statutis nostris aut funclatione cau-
tum sit," and so on. What is the " funclntio," of 'this 'pro-
fessorship ? It is the grace passed on the death of Dr. Clarke
it is that grace before which there was no professorship exist-
ing, it merely being an appointment of a particular intavidual
during his life, but upon his death there was a special grace
passed, " Placeat vobis ut slims ad idem munus exequendum a
vobis eligatur," that gave the law of the election, and by not
beingcomprehended within the word lector, or the word not al).
plying to it, it comes within the clause ofi exception, " nisi
aliter statutes nostris mit fundationc," &c. Ido not contend
for a certainty, but I am contending, that the fair probability
of the meaning is, that it should be a foundation to be filled
up by open election, and not by an election where there was a
previous nomination. It is an important point for the Heads
of Houses, though it is impossible to speak of them but with
the greatest respect, for if they succeed in this, which isthe first
effort that they are making, the remainder of the professorships
of a similar nature, being four in number, will follow the re.
eult ; and' thus they must all be elected by previous norni-
natiod ; therefore those in 'whom is the power of choice
as it is conceived make a stand, though it is with
the greatest possible respect, with a view to obtain that
determination which the law of England will put upon the
statute, they are desirous to have the most formal decision that
the law of England can put upon it. As the subject has been
gone into at such great length, I will not take up more of your
Lordship's time.
Mr. STARZIE—I am, my Lord, on the same side, and I
shall trouble your Lordships with very few observations on this

subject. I shall first obierve upon the right of the party in
this case to be admitted, and I do that because I am perfectly
sure if he has the right, no technical impediment will be per-
mitted to stand in the way of his remedy ; but that your Lord-
ships will do as you have done in former cases, where you
clearly see that the party applying is entitled to a remedy, will,
take care that he shall nut be dismissed from this Court without
one: With respect to the right of this mode of election in-
sisted upon by the heads of colleges, I cannot help observing
that a great deal of stress is laid upon that which, it appears
to me, is little more than verbal criticism. lam ready to ad-
mit, that the terms lector and professor are, in some instances,
used indiscriminately; but I think if "our Lordships look at
the occasions on which they are so used, I think you will see,
that where they are used as synonimous terms, they are in-
stances which do not apply to the present case ; but, on the
contrary, where any formal distinction was unnecessary, it
was the duty of the professors to read lectures—
Lord Chief Justice ABBOTT_ That was their only duty :
do they present to degrees ?
Mr. STanxtE—No, my Lord—therefore the application 'of
the term lector to a professor.-- •
Mr. ALDERSON—The regius professor presents to a degree,
my Lord—
Mr. SCARLETT—And so does the professor of Music.
Mr. ALDERSON--He has a grace passed every time for that
purpose.
Lord Chief Justice ABBOTT—I did not mean to 'introduce
discussion ;—it is not material.
11r. STARKIE—I submit it is a very weak argument ; be-
cause terms are used indiscriminately in some instances, where
it is unnecessary to make a distinction between them ; that they
are therefore to be taken as identical and synonimous for all
purposes : indeed, my Lord, this very ingenious argument
proves a great deal too much ; because, if correct, it would fol-
low, that the Barnaby lecturers; there mentioned, are profes-
sors, and were entitled to the same rank, and to sit in the
elevated place in St. Mary's appropriated for Heads of
Houses, which has been already alluded to. I inn quite
sure if such was to be your Lordships' decision, those gentle.
men would be astonished to find that they were raised to the
rank of professors—it has never been attempted to be shewn,
that before the statute of Elizabeth, they ranked with profes.
son, and if the professors are merely lectores, it dues not appear
how they became entitled to the rank which they now -hold.
Therefore 1 apprehend that argument proves a great deal too
much, for it goes to the extent of shewing that the lectores are
entitled to the same rank in the University with professors, and
to those privileges which professors enjoy over others.
The whole of the argument on the other side is founded on a
supposed identity of the terms in the first instance ; but I will
not press that any farther. I think that the real question is
entirely independent of it; supposing lectures does include pro-
fessors, I submit, that the foundation in this case provides the
mode of election. It has been said that an appointment of this
kind by grace is inconsistent with that part of the statutes
which has been so frequently alluded to in the statute,
chapter 40, but so far from being so, this statute itself is
very strongly in support of it, for it contains an exception.—
" Nisi aliter statutis nostris aut fundatione cautuni sit," &c.;
therefore that Statute looked prospectively to the establishment
of the professorship, by the foundation of which the election
should be particularly pointed out ; well then, my Lord, in the
present case, a grace has passed similar to those passed in former
instances ; now, my Lords, if, upon that grace, it had been spe-
cially directed that the election should be " secundum morem
burgensium" that would have excluded all doubt upon the
subject ; but it does not use those words; the words are " a
vobis, eligatur ;" the whole question then turns upon the mean-
ing of those words " a yob's eligatur ;" then, my Lords, to
establish the meaning of those woicls, if there be a doubt upon
the subject, the same practice surely must be resorted to which
has been followed in similar cases. Now what has been the
practice upon this subject ? I n the case of the anatomical pro-
fessor you find no fewer than five instances hare been adduced ;
so in the case of the botanical professor the same precedent was
followed, the words " a vobis' were deemed sufficient to war.
rant an election by the wholebocly, without any 'previous no-
mination ; therefore in six distinct instances those words have
received a judicial construction' by the University ; then I ask
what is to be opposed to this ? Is there a single instance which
can be cited, notwithstanding the great industry used on the
other side to shew that these words have had a different con-
struction ; if such a case could have been found I have no
doubt it would hive been presented to your Lordship's notice;
therefore it. appears to me that inasmuch as these words have
received that construction in six different instances, and that
construction is totally unanswered by any, practice to the con-
trary, I submit it ought to prevail in the present instance, and
that at all events there is sufficient to induce your Lordships to
give Mr. Jephson the opportuniy of having the merits of his
claim more solemnly discussed.

But, my Lords, in order to support their argument, it is ne-
cessary to rely upon the Statute of the 40th of Elizabeth, and
they assume (for it has been an assumed) that it is binding
upon the University ; but a very serious question may arise
whether the Statute is so far binding upon the University,
whether it can he considered as binding upon them, as
they never accepted it, that very point arose as to the elec-
tion of the High Steward, which was by grace, and in that
case the same objection was taken as is now insisted upon—that
the election ought to have been similar to the election of the
Vice-Ckancellor, and not " more burgensium." That then is
a very srong case, inasmuch as it relates to the same objection,
and-to the exception of this very clause of the Statute. I will
red what is said upon' it by Lord Mansfield. When he gave
judgment in that case, he said,
" It is now contended that the
election of High Steward ought to have been in the same
mode as the election of a Vice-Chancellor, and this is rested
upon ethe Statutes of Queen Elizabeth; but there is a vast
deal of difference between a new charter granted to a new cor-
poration ( who must take it as it is given), and a new charter
given to a corporation already in being, and acting either tin-
der a former charter, or under presumptive usage; the latter,
a corporation already existing, are not obliged to accept the
new charter in tow; they may act partly under it, and partly
under the old charter or prescription ; whatever might be the
notion in former times, it is most certain uow, that the corpor-
ations of the University are lay corporations, and that the
Crown cannot take away from them any rights that have been
formerly subsisting in them under old charters or prescriptive
usage ; the validity of these new charters must turn upon the
accptance of the Uhiversity. When Queen Elizabeth gave these
of Cambridge was of ancient establish-
mStaentutiteasn,dthehydniity
many prescriptive rights as well as former
charters of very old date, and there was no intention to alter
and overturn their ancient constitution. These Statutes un-
doubtedly meant to leave a vast deal upon the ancient consti-
tution of the University, without repealing or abrogating their
old established customs, rights, and privileges ; nor could the
University mean to accept them upon any such terms."—My
Lord, it does not appear on the affidavits that there has been
any subsequent acceptance, and that is the judgment which
was given when that case of the High Steward came before the
Court, a case which was very much discussed. The King v.
Vice-Chancellor of Cambridge, Burrow, 11147. I submit,
therefore, that this Statute is not binding upon the University,
there having been no acceptance shewn.

It has been said, my Lords, in the course of the argument,
that the Vice Chancellor and the Heads of Colleges ought to re-
solve this question, by virtue of the clause of the Statute ad-
verted to. I confess I was not a little surprised that such
an argument should be resorted to in a case where the claim is
that of previous nomination ; it would be to say that the Heads
of Houses are to decide upon their own case—but it assumes,
my Lord, a point which we by no means conceded to them,
namely, that that Statute is binding upon the University—my
learned friend says it has been constantly acted upon ; I
believe the contrary—there may be many instances of dissent
for aught Iknow. _

Mr. Justice BAYLEY—You would admit, I suppose, that
they may have a general right, but yet they would not have a
right in a particular instance, where their own privileges are
concerned.

Mr. ALnzasoxr-They determined the case of the Beadle on
this very Statute.

Mr. STAnitir.--If that were to be a president or an authority
for ousting the jurisdiction of the Court of King's Bench, the
efibct would be very singular indeed, if they have-a power to
decide upon those cases which concern themselves, it would be
giving them the whole of the power. But I apprehend this is
not a question on the construction of the Statute, but upon the
meaning of the particular grace, and that brings me to make
this observation, and it contains the whole essence of the case,
namely, that the University have a right to constitute professors
by grace, and this kind of right never was disputed, it has
been acted upon for a century ; the terms " a vobis eligatur"
are not of modern acceptation, they are almost as old as the
times, when the professorships of the Universities were esta-
blished, and we find that in MIX instances the construction for
which we contend has been given to them. If we succeed upon
this part of the case, therefore, which concerns the right, I am
sure your Lordships will have no difficulty in finding a remedy.
As this subject has been gone into at great length upon the
present, as well as upon a former occasion, I will not take up
more o your Lordships time, except to cite one case in support
of what I have been stating. it IS the case of the King v.
Barker and others, reported in Burrow, 1265. It was a man..
damus which issued to certain trustees, requiring them to
admit a certain individual to the use of a pulpit. It has been
contended that you are only to issue a writ ofmandamus where
a salary is annexed ; this is an instance to the contrary. In
this case there was a meeting-house and garden vested in
trustees for the use of the Ministers. The prayer was that the
applicant should be admitted to the use of the pulpit, without
stating any emolument---.---
purposes of dicsncy—it
Mr. Justice BAYLXY—For the

was to prevent a contest in the place of worship ; that was the
principal ground on which I believe that case was decided.
Mr. STARKlE—Lord.Alansfield took occasion in that case to
say, " That the Court had thought'of the case of the curate of
the chi pel of Callow, since the determination of it, as well as
before, and they were thoroughly satisfied with the grounds
and principles upon which that mandamus was granted."_
Then he says, " Where there is a right to execute an office,
perform a service, or exercise a franchise, (more especially if it
be in a matter of a public concern, or attended with profit--
Lord Mansfield therefore most clearly did not consider profit
to be absolutely essential to this species of remedy)—and a per-
son is kept out of possession, or dispossessed of such right, and
has no other specific legal remedy, this Court ought to assist by
mandamus upon reasons of justice, as the writ expresses,__
" Nos A. B. debitam et festinam, justitiam, in bac parte fieri
volentes tit est justum." Then, my Lord, in the case of the
King v. the Vice Chancellor of Cambridge, Lord Mansfield
says, " The next question is as to the remedy—there is no
other than what is now applied for, and this is the very reason
of the Court's issuing the prerogative writ of mandamus, be.
cause there is no other specific remedy.". - Then he says, " It
is admitted that a mandamus would lie, if• it can be
considered as the. case of a steward of a Court - leet.—
But it is said that the franchise of the Cotirt-leet is in
the town of Cambridge, anti not in the University, but the Uni-
versity have enjoyed it long, and they arenow in possession of it,"
and so on. And then he says, " But if it were not so, I should
still think that as here is 'no other specific remedy the Court
ought to grant the writ." Mr. Justice Wilmot says, in the
same case, If there is a clear right, the Court ought to find
out a suitable and adequate remedy, anti (in his opinion) even
to have made a precedent, if 'they could not have found one,
for where there is a right law and justice required, that there
should be some remedy or other." I would only just refer your
Lordships further to a dictum of the same kind, in the
the case of the Clerk of the City Works, London, 2d Siderfin,
112 and 113. The Lord Chief Justice there said, " A man..
damus should be granted in two cases ; First, to restore to an
office which concerns the administration of justice—Secondly,
wherever the office or degree is for the public weal."
Under these circumstances, My Lords, I submit that the
terms a vobis elegatur have received an established construc-
tion from the practice which has been adopted upon them; and
in the next place, for the reasons which have been urged by
Mr. Tindale, which I will not repeat; it is a freehold office, and
it is attended with profit; there is a certain sum paid by Go-
vernment which passes by an annual vote of the House of Corn-
mons. If your Lordship should be of opinion that he has the
right, or has even shewn a fair probability of right, I feel satis-
fied that you will have no hesitation to grant the mandamus, in
order that the merits of the case may meet with a more formal
investigation.
Mr. Amos—l am on the same side, my Lords, and shall
address myself first to the preliminary points.—lt has has been
contended, in the first instance, that the Heads of Houses
are to interpret this statute according to their own sense. I
think your Lordships will remember the case of the Manches-
ter college, reported in Strange, 798, where it was held that
where the warden of the College became visitor, the visitorship
was suspended—the two functions being incompatible.
Mr. Justice BAYLEY—The King v. the Bishop of Chester ?
Mr. Amos—Yes, my Lord.---It is next contended that no
profit is attached to this office—upon this I would beg leave to
refer your Lordships to the 57th George 111., cap. 99,. see. 10,
which exempts all professors from residence at their livings; I
would also refer to Doctor Bentley's case, Ist Strange 558,
which was an application for a mandamus to restore hini to his
academical degree ; I would ask what profit was necessarily and
indispensably attached to the obtaining of a degree ;—I would
then refer your Lordships to the case of the King v. the Mayor
of Oxford ; it was a mandamus to restore an alderman,
and it was argued that the situation of alderman was one
of burden, and not of prefit, but if was then said that
the office of alderman. was one of profit, inasmuch as it
had precedent and authority attached to it, which is a suf-
ficient ground for a mandamus. Chief Justice Hyde agreed,
but he said upon an action, more special damage must be
shewn. Hence, the Courts have distinguished 'between the in-
terest which is necessary to support an action on the case, and
that which is a fit ground for a mandamus. It is next contend-
ed that this office is not a freehold; I submit, that being a gene.
ral appointment, it is necessarily a freehold, and I would reftr
your Lordships to Dighton's Case, which is Ist Ventris, 82 ; it
was a mandamus to restore a Town Clerk ; the Corporation re-
turned Letters Patent, whereby they were empowered to chose
one into the office of Town Clerk, durante bone placito, and
that they removed him from his office, the Court said, " It
were fit a ache facies went out of' Chancery to repeal those
Letters Patent as unreasonable ; if they had been to chose a
Town Clerk generally, it had been for life." Then, my Lord,
with respect to the case of lecturers, I apprehend that turns
upon quite a different principle ; the principle of those cases is
explained by the Court, in the case of the King v. Bishop of
London, Ist Term Reports, 333, it is there laid down " if the
lectureship be endowed, that affords a strong argument to sup-
port the custom, and to skew that it had a legal commence-
ment. Hence, the endowment is inquired into as proof of a
custom, for without a custom, by the Act of' Uniformity, the
Rector is not compellable to give' a licence for the use of his
pulpit.
Having reviewed in succession all the preliminary questions,
I shall now, with your Lordships' permission, proceed to con-
sider the other part of the case. 1 apprehend, that if there is
siny doubt in this case, the Court will grant a mandamus. I
submit, with great deference, that if there is any difficulty on
the construction of right, your Lordships are not the constitu-
tional judges of the right; and I refer your Lordships, in.
support of that' position, to the case of the King v. IVlein,
which is in the 3d Term Reports, 598. There it is said—" It:
Is objected, that the evidence of the defendant outweighs that'
of the relator." Now, admitting it to be so, that has never been
held to be an answer to an application of this kind. Where
there is evidence on both sides, the jury are the constitu.
tional judges on which side the balance inclines. All that we'
are to look to is, that a fair doubt is raised, and that the par-
ties applying came with clean hands, and in , proper
time. Again,. in the case of Sir John Carter, reported in
Cooper, 58, there a case was sent down to be tried :
it depended upon an abstract point of law, vihether a burgess
under age was a . fit candidate, yet that was thought a fit case
to be sent to a jury.
Mr. Justice BAYLEY—The reason for that was, I suppose,
that it might appear upon a special verdict.
Mr. Amos---Yes, my Lord, the very object which we
seek for.
Lord Chief Justice Ansovr—They might have lied a rule
abolute on a quo warranto.
Mr. Amos—Yes, my Lord.
Lord Chief Justice Answer-. That does not necessarily
send it to a Jury.
Mr. Amos—The necessity of referring every question of
right to a Jury, is evinced by the next case to which I would
refer your Lordships ; the case of the King v. Blovooe ; 2nd,
Burrow 1043.—There the question was as to the right of nomi-
nation to a chapel, which was a donative, which was said not
to be in the vicar, but in the inhabitants ; the answer by Lord
Mansfield was, " we cannot try the merits upon affidavit, he
claims a right, though it 'is litigated, and this is sufficient for
the present purpose." Your Lordships will take Into con-
sideration that this is a mandamus to admit, and not to re- 'Wl,r•soa, MAY.I3.--DesTftvcrzvt: FIRE.—On
store in which case you will not act as scrupulously as
in thei case of restoration. In the case of the King v. Wednesday night, soon after twelve o'clock, an
Jotham, 3d. Term Reports, 575, upon the case of the King alarming fire broke out in the premises of Mr.
v. Barker, being cited, the Court said 4' That case was to ad-
Disartow bookseller, in Castle-street, which
mit, and there was a great deal of differ' ence between that and
a mandamus to restore; the former is granted merely to enable in a little time was burnt to the ground. The
the party to try his right, without which he would be left with. flumes caught the adjoining house, which was
out any legal remedy, but the Court have always looked much ,
more strictly to the right of the party applying for a mends- us' fitted up for Mr. Richard iode% Corn-
mus to be restored." chandler, Notice was immediately given to the
Foot and. Cavalry B k for their. *
Next, my Lords, with respect to the construction of the sta-
their engines came immediatelyarutes ;
eblur attsel syt'actiocuel d;
tote of Elizabeth, upon which the question of right has arisen,
I submit that professors are not within the general words-of
that stittute ; the only case that could be in contemplation of not get water in time. This second: house ma 3
the leOslator who framed that statute was the case of the Bar-
and the wind being
naby Lecturers. When the statute was made, it could only consumed itt a short time,
apply to them. The argument on the other aide is that on ac- high, and every thing so dry, the flames commu-
nicated to Mr.- Roberts's house, a very large
persons totally and absolutely distinct in every respect; that it
count of a word, the word " lectores," the statute shall apply to
II to apply to persons who hold for life, and not annually as the grocer's shop, which was soon consumed to
Barns y lectures, and are distinguishable in the many other the ground. The next adjoining house was
important particulars that have been detailed. Then, rn Mr. Blunt's, saddler to his Majesty, Which
Lords, to such a construction how forcibly does the rule of'y
Plowden for the interpretation of statutes apply. The con. was shortly gutted completely. The adjoin-
struetion ought not to be by the letter only "Nam qui hteret ling house to Mr. Blunt's was a widow we-
in hseret in contice."
Next, My Lords, I submit, that if we were in this case man's, of the name of Ward, the half of Whose
within the general terms of the Statute of Elizabeth, the 40th house fell in; and the fire, was got under. Thit
chap., we have the benefitof the exception of that statute, " nisi engines have been playing all day on the pre.
enter statutes nostris ant fundatione cauturn sit." The question
upon that subject is a question of interpretation ; I will mention raises. The wind shifted in the morning, ottrer;.
to your Lordships the way in which a grace is framed to give %vise. many other houses would have sliareel the
a right of nomination, and not a right more burikensium. I same fate. Great damage is done to Mr. Knight
win read the instance of an appointment of Dr. Middleton to
the situation of librarian, at a time when- University law the
was well understood, and much studied by various Members to the great heat of the flames, ant the engines
of the University during the disputes between Dr. Middleton booksellstr's house which is opposite, owing;
were obliged to keep constantly playing on. it,
and Dr. Bentley. I will read the concluding part of that grace ;
it is to be found in the books of the University.
their assistance tis every respect •
Mr. Justice BayLzy—What year is that in—about 1740 P Guards for r a
Mr. Altos—l will hand it up to your Lordship.; it is the Great raise is due to" the F.usiliers and Life
helping the people to move - their goods, and
concluding part of the grace, and is in these words— ' Ut onmes
.
denique portobibliotheca eodem modo in pooterum
Windsor,
quo dominos proems:ell:trios." I submit that the words alarming fire that ever was known in eilicsnt,,,, guarding them afterwards. This Veal the most
a yob's," in die present grace, mean an election by the whole
and man of the sufferers could not save any
body; it cannot mean the heads, who never assent as a body b
y
to any grace. It cannot mean the Caput...the Caput are as thing.

third house, as has been most erroneously stated on the other
side. The effect of proposing a grace to them has only the
effect of procuring a passport to the Senate at large. They do
' not write placet," or " non placet" upon it, but only the
word " ad" "ad senatum." We give permission for this to
proceed. And this much for the natural meaning of the
words " a vobis. " The argument derived from their
received meaning is equally conclusive. This received mean.
ing is plainly and unequivocally evinced in the case of the ana -
tomical professorship, and in the whole history of the botanical
professorship.
If your Lordships have any. further dottbt,your Lordships will
look to the right of election, independent at once of the statute
and the terms of the grace ; I will refer to "the common law mode
of elections previous to the statute of Elizabeth • the Heads of
Houses had no rank in the University,—the work to which I
would now refer, is written by Dr. Itichardson,and is contained
in the 7th vol. of the Archwologia of the Antiquarian Society;
" Anterior to the statute of Elizabeth, the constitution of pri-
vate colleges was purely eleemosinary : the government domes-
tic and parental. Nor were the masters any more than the
deans or lecturers of those seminaries admitted to any
.higher rank or trust in the University than what they
derived' from their academical -degrees.' I need not state
to your Lordships, that there are Statutes which give
livings to the University ;—there is the • Statute of 3 James
I. cap. 5, and also another, 1 IVilliam and Mary, cap. 26 :
There the right of election is given to the University, without
specifying the mode of election; and how does the election
take place ? by open poll, without any nomination, and with..
out even a grace.
With respect to the expediency of one modeof election over the
other, if'the argument' is so doubtful that convenience ought to
decide, I apprehend, that where a person is going to be selected to
fill an important public situation, the greatest possible latitude of
Selection ought to be given, with a view that a proper person
may be chosen. Your Lordships admit bye laws in corpora..
tions which restrict the number of electors, but discoontenance
those which limit the number of the eligible. How much more
should this policy prevail where the eligible are to be sought,
not out of the confined limits of a petty corporation, but to be
invited from every region of the earth pervaded by the light of
F e iept ce.
[ Whenever .the Court gives its judgment on this important
and interesting Case, we shall take a full and correct Note of
it, and give it to our Readers without de/ay.—EntTou.]