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

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COURT OF KING'S BENCH, APRIL 28, 1823.
THE KING v. THE VICE-CHANCELLOR or THE UNIVER.
SITY OF CAMBRIDGE.

:• Mr. Sergeant LENS—This case comes before your--Lord-
ships on a rule to shew cause why the Vice-Chancellor of the
' • University of Cambridge should not be directed to admit the
Rev. Thomas Jephson, Professor of Mineralogy of that Uni-
versity. I have to shew your Lordships cause against the rule.
In the discussion of this case, I apprehend that two questions
will arise before your Lordships on the matters which have been
is d before the Court in these affidavits. The Gentlemen apply-
ing •on behalf of Mr. Jephson, contend, first, that he has
been duly elected to the office or Professorship of Mineralogy,
and they will have to shew the fact, that he ought to he admit-
ted into that situation from which he has hitherto been excluded.
If they should be able to establish his right to the office still a
consideration will arise whether this is the proper mode of ob-
taining a remedy, namely, an application to the Court for a
mandamus, whether that is the mode to which he ought to re-
sort, assuming' for a moment he is able to establish' his right.
Though it may be necessary to refer to the facts stated in the
' affidavits, I will do it as shortly as the nature of the case will
permit, so as to present to the Court the points which we think
arise and form the main questions in the case.
My Lords, it appears to me that it would be the most proper
course to take to consider, first, whether a mandamus will lie or
not, Upon which point I shall trouble you very shortly, it keying
been before brought under the consideration of the Court, 1
shall therefore only refer to the general principles to sliew, that
whatever the right way be, this is an office or appointment,
or whatever title it may assume, fcir which the Court will not
grant a Mandamus, but that the remedy ought to be
1.1 an application of a different description, provided the party
is entitled to any remedy whatever.
MY Lords, it appears from the affidavit on which the rule
roceeded, that this office, or rather situation, of Professor of
lineralogy, is a very modern institution, for it appears that so
late as the year 1808, the first Professor was appointed, it was
in that year that the appointment of Dr. Clarke to be Professor
It is by
of Alineralogy took place,and that appointment is in this form
a grace appointing him by name to that situation, it
s
may be neceesary to read it, in, order that the Court may see in
what terms it is expressed; it is in these words—" Cum vir
Reverendus Edivardus Daniel Clarke, 14.14. D. sit in studio Mi-
t eralogiw,apprinie versatue et eidern studio apud vos promoven-
do curaintnagnopere impenderit turn lectionibus publicis," and
te,
a 0
on "placeat vobis tit ident, E. D. Clarke, Professoris Mine. ralogi
titulo suffragiis vestris cohonestetur," so that your Lord.
ship, see the first creation of this situation of Professor of Mi-
neralogy is by a race which appoihts not only the situation
itself, not only notices and effectually creates this situation of
Mineralogical Professor, but appoints Dr. Clarke to be the
person to fill that situation, so that he is introduced into this
office by thd same grace which creates the office itself. On
the death of Dr. Clarke in 1822, this grace which I will read,
passed for the purpose of their being a new election of Profes-
tor. After reciting the death of Dr. Clarke, it says " mu-
nus istud jam vacuus existit placeat nobis et alius ad *dem mu-
nue, exequendum a vobis eligatur," by which your Lordships
see it is left open as to the manner in which the election is to
take place ; it jives a general direction, that in consequence of
„ar:acancy having happened by the death of Dr. Clarke, who
4 appointed beeethe University, the office being vacant, the
triodebodyare called upon to elect another person, mentioning no
.o,ltaby which the appointment is to take place; and the ques-
tion
be,iee considered between my 'Learned Friend and myself
manne fthere being no special direction given whether the
mat nerd
election to this office is not to follow the legal regular
c mode of electing, where no special.grace has inter-
vened to give it another direction, or whether it is to be by the
body at large, which in its nature must be novel,:naving no
connection with the customs of the University ; it must have
sity had the
to Parliaaarisen'en since the Period of James the First, when the Univer-
granted to them of returning Members
.., menprivile ge
t, an which was by a general mode of electing
_ more buegensim,,,
and which general mode is now contended
for, but which had no analogy to the mode of election that had
been constantlypractised in the University previously.
mode of
Your Lordships will find that the affidavit sets forth the
Passing glum, and it is only necessary to call the at-
tention of' the Court to it ; it is to be proposed to the Caput, which
is a body coneisting of the Vice-Chancellor and five Members,
who, if they approve of the grace, propose it to the two Houses
°f Regent* and
I ought to Non-regents, whether the grace should pass.
state, that it is necessary that it should pass the
caput unanimously.
31r. Justice BAYLEY--lt is necessary to pass the caput
unanimously.
Mr. Sergeant LEX s—Yes, Aly Lord, it cannot be passed
ona to the Houses unless it has passed and is presented by the
C put, they first determine on the propriety of submitting the
taer to the Senate, whatever may be the matter contained in
that grace. In the case Which is now more immediately under
the consideration of your Lordships, there being no particular
rdirection given as to the mode of the election, we shall endear
ely to satisfy the Court, that the University Statutes them.
selves have ded the proper and legal mode, and those *no wish to depart from that legal and statutable mode, must
le'int out by what authority it is to be done ; if It is derived,
'4'lll precedents they must of course be such as by their ante-
lar
laity would afford ground to consider, whether in any particu-
s instence such a practice had been used and adopted,
;o at to warrant yen in saying it ought to be taken
1;4 ,of the general rule. Upon looking with some par-
f;cu'atitY nnd minuteness into those precedents which
kave been stated, it will be found, I think, that they
rat' no application to a case of this description. But be-
'''e I allude to the merits of this part of the case, 1 would
its your Lordship's attention to the first point, whether, under
'S Peculiar circumstances, this being an application to
whether it
a matter which arises among the Members of the Senate,
denether it ill is proper subject for the Court to proceed by man-
t mu*, it not being in its nature an office to which a mandamus
sritiiroperly applicable. I would submit first, that it had its
°lee2" 'lli in 1808. So lately as that year ehere is no establ
die ids there is no office—l use the term only.because it conveys
belon ,of the nature of the thing—but there is no office properly
fated of to it, it being treated by a grace in 1808, and it ex-
iti,;,°,l2lY during the life of the first Professor. On his death
electens a question who is to be named by the University,. or
to its
_Y them to fill this office. There is no salary belonging
teeeinf salary paid by the University—no house—no regular
lay the'"ent---no advantage whatever to be derived or possesed
ephe„per.son having the honour of filling this situation,—l
by"'.'enll it
lierrold
((:;.hief
ja:sgeti:eAral rule, and I will not trouble the Court
zgoing into
eases.
lIHOTT—Is there any fixed duty to be.
merrl. 1 ? Is there any eath to be taken ?
s.....inice BAYLEY—fie is to read lectures.
, give lecturs.
is kiir .e3,Jeant LENII In consequence of the appointment, he.
elected
pair oath oi I Ton not aware that be takes any part.
ifthe subject, but undoubtedly it is assumed that
theirAi___,
et or tile purpoee of giving lectures, and to instruct
there
aapoin7,° sof the University on the subject to which he is
afrie,peahrs7,,,iatinitlr that he must conform to that which is expected
41 0.11; but
is no other duty attaching to him. It
:Peet t° sever Rand to this profraeonship, as well as with re.
Other °flow.
_at others, that Ills Majesty has annexed an allow-
but protQ,e,ar,that allowance which has been continued to
riiinoivright given
t It is to he oi:sq's has been voted to be applicable to this also,
_ nts. Neste, shall th'
.1,1 iversity of Camb
Zveeha it is altogether an act of bounty; there
e parties to claim an allowance as long as
Ink c
pie et in his bounty to continue it to the
terte benefit of it, I,ll"_ge 30 long, and no longer will he have
7natever attached ere is no other emolument of any kind
tetd,l4 iyaeimoanedatomutm.s
Your Lordshi to the situation. My Lord, I will trouble
!tine eete,„..efs only yet_
, his part
shortly as to the remaining objec-
torpart of the case, namely,
. thin
a pro.
„di li. appears fro
_ns were not mid 3is not the proper course in this instance,
tia►ere the
rights 14 the affidavits that in two similar instances,
election have come into question, applies-
ti
the
Court ere
eit, /
a to the Court, but to His 31ajesty in Coun-
eat
it
~ in
etrouganth ; aware of the case of the High Steward reported in
the
application was made to the Court,
still .1) '
P ication Was that case entertained it—but though
ell in general t shade and entertained by the Court,
the ell
it' to the . rI contend, where any question
le emits right of a person tel be elected, and whether
ii-tetate, king ienmode is proper, or not, application is to be made
nctl—to those cases I
4 thrnie to deeeCir 'shall merely refer, not
NI ' object the Pon theme and not meaning to state that it
A the, or the wish of the Vice Chancellor of Cambridge,
V'tvi theell°_°PePose themselves to this proceeding, to With-
'lT ahaiens ,tres trom your Lordships' jurisdiction ; they only
hell _ 0 have the point decided where the remed_y lies.
teeeid inerefore for that purpose, bring to your Lordship.s'
Nheration eft re,
instances where such a case arose, and In
kitty i aP.Plieatione
1),,e„ h uou„.„, were made, not to this Court, but to His3la-
e ~.!'es was elt2tt, and, there it was determined which of the
le(Zok pl.„'oeeted ; it was an election to the office of Beadle ;
444 gilt i*,,e'7oen the Bth of December, 1669; the matter was
'nal the pees: the Privy Council; it was there determined,
ogeY filled ill° Who appeared to be duly elected accord-
at4on seek e office. In the year 1728 some difference of
let ,41 that Place as to the election to the office of Vint-
ii, Yln e e alao an application was made to His Ma-
e lit, ()linen
tith, qv" , and it was there determined which of the
*Wrth.; Feeparties were duly elected. I would submit,
I,eit pe„ss nis application should be refused, the party is not
le'?...l4,Wt'ee and that there would not be a failure of
King in
il, Arilgee. It, as visitor ?
'that eileallt xies—lt does not appear distinctly, my Lord,
erecter; probably by virtue of his general superin.

tending authority, perhaps it only shifts the mode in which the
application is to be made ; if to the King as visitor, itmight be
to the Court of Chancery. That is not the application now
made ; it is an application to this Court for a mandamus pm-
ceeding on the assumption that all proper remedy had ceased
or never existed, and therefore there is a necessity to have re-
course to this mode. Therefore, my Lords, I shall only simply
suggest that this application cannot rest npon the foundation
that no other remedy can be obtained ; for not only was there
in these two instances a hearing before the King in Council,
but I apprehend an application to the Court of Chancery would
be a proper mode, though I am not aware of any application
having been there made, that the King as visitor might deter-
mine the validity of an election. It appears in both the cases
to which I have alluded that Lord Chief Justice Eyre was one
of the parties who sat and assisted in the determination, where
the right really was, that was decisive, but it also shews it was
not an anomalous case ; tither there was no want of jurisdiction,
or at least there was no objection to it; or if there was, it was
over-ruled ; the proceeding was sanctioned and warranted by
the Lord Chief Justice, who assisted in the decision that de-
termined which of the two was elected.
Lord Chief Justice Annove—ln that case probably both of
the parties submitted themselves to the jurisdiction; both put in
their claims, and both were heard.
Mr. Serjeant LENS—Yes, my Lord, but I apprehend that
parties cannot give jurisdiction by their consent, but if the
Court acknowledged and conceived they had it, and there being
no question made by the parties litigant, there must be a fair
ground to say the question being entertained that they had juris-
diction, particularly considering in what manner the Privy
Council were composed, it is not likely they would have enter-
tained the question if .they had thought they had not jurisdic-
tion, or that it belonged to another Court.
There is only another thing, my . Lords, which I will state
as to the remedy ; there is a provision in the Statute of Eliza-
beth, by which the University is guided in matters of this na-
ture; by that Statute provision is made for the possibility of
any doubtful construction which may arise. I have notyct stated
it to the Court, though I shall have occasion to state it presently.
We conceive that there is a statute applicable to this very case,
namely, where there is not a mode of election pointed out by
the general statutes, this statute has provided one by which '
such doubt and ambiguity shall be explained, in the statute of
the 12th of Elizabeth, which is a leading statute upon this
subject.
Lord Chief Justice A.nnoTT—What chapter ?
Mr. Serjeant LF,sts—lt is the University Statute, my Lord.
Lord Chief Justice ABBOTT—Yes, but what chapter, they
have chapters ?
Mr. Serjeant LENS—It is chapter 40; I will hand your laird.
ship a copy ; various regulations and statutes were made for the
government of the University, which, from their very nature
and design, as is the case with the statutes of the Legislature,
may admit of various constructions ; this was foreseen, and it
was therefore necessary,to have a Legislative interpretation, so
to speak of what the statutes meant, and there is this provision,
" Si quid dubii vel ambigui in istis sounds, et sanctionibus nos.
tris oriatur id per cancellariuni et majorem partein presfectorum
Collegiorum explicabitur, et determinabitur quorum determina-
tione et interpretation° reliquos omnes cedere volumus.
If, therefore, there shall appear hereafter, when I have stat-
ed shortly what I have to address to the Court upon this
point, if there shall appear to he any doubt or ambiguity upon
the face of it, this statute has directed in what manner that diffi-
culty shall be removed, not by an application to this Court or
to any other jurisdiction of alike nature, but by the authority
of the statute, such doubt and ambiguity are to be resolved by
the Vice-Chancellor, and the Heads of Houses, who aro to
determine what is the meaning of the statute.
Mr. Justice BAYLEY—The argument on the other aide will
be, that there is no doubt as to the construction of the statute;
if there is doubt at all, it is upon the words of the 'grace.
Mr. Serjeant LENS—That is not in the statute, my Lord—l
apprehend that the question, and the principal question, will
be, when I have stated to your Lordship what I venture to call
the statutable mode of election, whether that clause does reach.
Lord Chief Justice ABBOTT---I think you are mistaken in
referring to the 40th chapter for that.
Mr. Serjeant LENS—I believe your Lordship will find it in
the last clause of all—there is no particular chapter, after hai-
ing sufficiently provided for all other matters relating to the re.
gulation of the University; then comes that very provision.
Lord Chief Justice ABBOTT.—It is set out, I think, in the
affidavit.
Mr. Serjeant LENS—Yes, my Lord, it is there set out.
Mr. Justice BAYLEY-1f you have got another copy, I will
thank you for it.
Mr. ALDERSON—You will find it in the last statute, my
Lord.
Mr. SOLICITOR-GENERAL—The affidavit does not state
where it is.
Mr. Serjeant LENS—I urge it only for this purpose, to chew
that if this application should not be entertained by the Court,
the party is not left without a remedy, and that if there be any
doubt or ambiguity as to the construction, I submit to your Lord-
ship this clause in that statute pointsout the course to be pursued
not to apply to this Court as in a case where no other remedy
can be obtained but by looking to the manner in which the
case is provided for, and the general Statute has said how
such doubt or ambiguity should be resolved, whether that
decision is to be final, or whether the Court, if called upon,
would eventually interpose is another matter, but all we submit
is, that there is no reason for their coining to your Lordships
for a mandamus, while other modes are open by which jus-
tice can be obtained.
In order to bring the whole matter before your Lordships as
shortly as possible, I will only mention the case of the Eiig It
Steward of Cambridge, to shew that it is not an instance to
the contrary. In that case an application was made to this
Court, and a mandamus was granted, but it was upon the
foundation (as may easily be shewn if it is necessary to go more
particularly into it) that the office of high Steward, to which
there were a great many duties annexed, that with 'regard to
that office there was a mode of electing which existed antecedent
to the Statute, therefore in that case there was nothing to bring
into question the construction of a Statute which regulates the
mode of election, in all modern cases where there is no sped.
fic direction as to the mode of election, and the question to be
determined will be, whether the election of this gentleman,
Mr. Thomas Jephson, which has taken place without any
previous nomination of the I leads of Houses, but simply by
the mode called " more burgensium ;" whether that is a valid
election, or whether this case does not fall primarily within that
clause especially made for the purpose of pointing out the dif-
ferent modes of Election of the Officers of the University, that is
the 40th chapterof the 12th of Elizabeth. My Lord, the clause is
in these words: " Nominationes et electioneslectorumbedellorum
stationarioruin gageatorum inopotarum, et aliorum ministrorum
sou officiariorum acadetnire quorumeunque, de quibus aliter a
nobis non est provisum, sequentur modum et forman in elec-
done pro cancellarii priescriptum fientque antra quatuordecirn
dies post vacationem nisi aliter st.atutis noatris aut fundatione
cautum sit; glue aliter factre fuermt ipso jure !mike mint et ir-
ritee." This, your Lordships sees, is a provision adapted to
the election of all Leturers and other officers belonging to the
Universty, where no particular mode is pointed out either by
the foundation or the statutes. Where there is no special pro-
vision, then, this clause is to apply; and it directs, that eve-
ry other mode of election not conforming to it shall be void:
therefore, if the election or nomination to this particular situ-
ation of Mineralogical Professor does properly and fairly come
within this clause, then, undoubtedly, any other mode of elec.
tion, or mode of appointment, not pointed nut by the grace,
which I wish always to be understood, it will follow, that,
being within the scope of the provision, and not being otherwise
provided for, this cannot be a valid election.
Mr. Justice BAY LEY—What do you call the foundation of
this office ?
Mr. Serjeant LENS--It„ appearsi my Lord, to be the grace
to which it is necessary to call the attention of the Court : If the
grace, at the time when it appointed this Professorship, or
foundation, if you please so to call it, had specially directed
the mode, then it would not have fallen within the fair con-
' struction of this clause, and the rule applicable to elections in
general would not apply; but r observe, that in these two in-
stances, the first is by grace appointing Dr. Clarke by naive;
and, if it had gone on, and appointed any other by name, that
would have conclud ecl the election ; there wonld then have remain-
ed nothing on which a question could arise ; but if the grace had
gone on generally, and prescribed the mode in which the elec-
tion should proceed, it would have given rise to the question
whether that did not supersede this general clause regulating
the mode of election ; but we humbly conceive, (being most
anxious to bring the case within a short compass) that such
provision not having been made, it is left as a necessary con-
sequence to the operation of the clause : Here is an office
to be filled up by election—no particular mode is directed ;
and therefore we contend, that the same rule which ap-
plies to the filling up of other offices is to apply to this.—
There are several instances adduced on the other side, from
which it is attempted by analogy to draw this conclusion—that
this resembles other professorships, and that persons tofill those
offices have been elected in different modes, that in several in- '
stances they have been elected in the same manner, namely,
" more burgensium ;" but I shall submit, that those instances
are not to be taken as constituting a rule applicable to die present
case. The Statute directs, that all those officers (where there
is nothing to the contrary) shall he elected in a certain mode,
my Lord ; the application is made upon the foundation, as I
understand, as far as I am able to collect the inferences intend-
ed to be drawn from the facts stated in the affidavits on the
other side, that the statutable provision does not apply to a
case of this kind,—that it applies only to the case of Lecturers
and annual Officers, and such like; I apprehend there is no
foundation for that. I will first take the case of annual officers:
Upon this point, there is reference made to a letter writ-
ten by lord Burleigh shortly after. the passing of these

Statutes, which is fully set out in the schedule; but it is
alluded to in the affidavit in this short way„" 'Whereas there
have been some controversies among you,' —it is addressed to
the University "upon the doubtful interpretation of a Statute
given' unto you by her Majesty's authority, " thereby mean-
ing that last recited Statute, the Statute of th= manner of elect-
ing "for the assembling of the 'leads and Chiefs of every Col!
lege in the nomination of such as are to suFeeed yearly in the
places of Lecturers and other Officers of the University,"—the
inference endeavoured to be derived from that is, that Lord Bur-
leigh supposed tile statute only related to an r. tie' officers, hut look-
ing attentively to the whole of the letter, it will be quite evi-
dent that he meant, if any doubt shall arise, the Vice-Chan-
cellor or the locum tenens, whoever he should be, should repre-
sent him in his absence, in order to prevent any delay, should
decide—so that it is not confined to annual officers—it does ex-
tend to annual officers, but itincludes others also—the intention
was not whether the statute applied to annuallofficers, and not
to others ' • on the contrary, it is general, and some of the Offi-
cers referred to are not annual, but of a different descrip-
tion; and, therefore, such reasoning, ifattempted to be founded
upon that letter, does not appear to bear upon the subject at
all—it is an opinion, however weighty and of great authority
in other respects, which cannot be used here—the authority of
my Lord Burleigh may be__
Lord Chief Justice ABBOTT—IIe seemed to have given
them very good advice in that letter.
Mr. Serjeant Litiss—Yes, my
Lord, he does, he advises them
to consider what authority they have under the Statutes, and to
exercise their sound judgment in coming to a conclusion upon
their construction ; it shews there is no necessity to go to a
foreign jurisdiction to determine upon matters relating to their
own government and regulation. It is inferred, rather than
stated,- that where there is no provision the election should be
in the way stated, viz. in the body at large. Your Lordships
will find, fmm the affidavit of Doctor French, that where
nothing more is recorded than the mere election to the 'Pro-
fessorship, it does not necessarily imply that the election is to
be made more burgensium • but if that is the mode, it. will
appear by the grace, and iinot, it is to be by previous nomi-
nation ; and he goes on to state, that " in the deponent's
judgment, information, and belief, an election more borgenziont
cannot in such cases be properly insisted on, unless expressly
directed by the grace." It is stated in Doctor French's affi-
davit, and confirmed by many leading persons in the Univer-
'fifty, that so far from its being understood, where no accurate
and precise mode is pointed out, that the election should be
open and by the body at large, as it proceeds in the election
for Members of Parliament ; so far from that being so, that
the understanding is very different.- The joint affidavit ofl
the Bp. of Bristol, Dr. Wood, and several other leading Mem- '
bers of the University of Cambridge, states, " that they have
for many years been Members of the said University, and
that, according to their experience and belief, a grace to
elect a Professor, or any other officer of the said University,
without specifying the mode of election, does not necessarily
imply that the election is to be made according to the mode
observed in the election of Burgesses to serve in Parliament
for the said University, but th.,t, on the contrary, accord.
ing to the judgment, information, and belief of these de-
ponents, an election more burgensinin, cannot in such cases
be
,properly insisted on unless expressly directed by the ;
grace.''
My Lord, in the affidavit on which the application is
grounded, an allusion is made to the different Profferships, and
the manner in which the different successions have been kept up
in those instances, these instances have been stated for the
purpose of' drawing this inference, that they appear not to have
fallen within the clause to which I have called the attention of
your Lordships, but that they have proceeded according to
this mode of open election. On looking at the instances ad-
duced with some particular attention (and I will not take up
the time of the Court further than by stating them generally),
I think it appears that there is no such rule to be derived from
this attempted analogy, but all are consistent with this line,
that where there is no special grace, and where the matter is
left at large, there is no reason in such a case to depart from the
general mode of proceeding—but where there is a special di-
rection given, that special direction has been followed, and in
that case only. Your Lordships will find, with regard to the
graces to elect for the Professorship of Chemistry, which with
others appear in the Schedule, and therefore I will only just call
your attention to them—you will find that the institution of that
professorship appears to have taken place in the year 1702, and
was appointed by grace again in 1713.1756, and so it appears
to have gone on by grace till it comes down to the year 1773 ;
these seem to chew what the nature of these orders is, and
that no such inference can be drawn from them as is attempted,
for your Lordship will find that in the year 1723
Mr, JUSTICE BAILEY.--I suppose you mean 1773, when
a professor of chemistry was to be elected more burgentiorn.
Mr. Si:An:ANT LENS.--I observe, my Lord, that the first
institution was in 1702, in the same terms as the one under
consideration. " Placeat nobis et dictus Joannes Franciscus
vigani titulo professoris chymicat in Academia Cantabrigiensi
cohonestetur," so that it was an appointment of the individual
in the same manner as Doctor Clarke was appointed; then
Johanna; Waller is appointed in the same way, and afterwards
James Hadley and Richardus Watson likewise in the same
way—all nominations of individuals where no election would
take place; but simply an adoption of the individual
who was appointed to fill the particular office
but in the year 1773, ',air Lordahips
of this description ;it is theentry of 1773, it concludes with
will find an entry,
making special provision that pro bac thevic election shall be
according to the mode " in electione burgensium",but the recital
will require your Lordship's attention—
that it recognizes and
decides nothing as to the journal made,but,on the contrary,there
is a special provision for the particular case ; as it then existed,
two
the words are " Buen Jionmes qui cheniiam in Academica ex-
cohere velint incomrnocium baud leve *int percepturi ex diutur-
nnoioarterums teinieecri tisopniressofi Chemicre vacatiore neque a majoribus
professions cum Ames extiterit competitoris leads commode provisum ease videatur." Reciting therefore,
that, from the long vacancy in the office of Chemical Professor
inconvenience will arise, and as there was no mode of filling up
this vacancy special provision is made " Placeat vobia ut
Chemicte Professor eligatur pro hac vice aecundum morcm in
electione burgensium receptunt." Now, if the understanding
at that time had been that there was no order but an appoint-
ment or a declaration that such an office should be filled up, it
in such instances, there would have been no occasion to have
would have been regularly filled lip according to the practice
made this special provision ; it spews that at that time there
was not a sufficient provision made; therefore, as there might
have been a doubt as to the proper mode of proceeding, there is
a provision 4, pro bee vice secundum morem in electione bur-
geusit im " then, under that regulation, Isaac Pennington was
happening in the year 1793
there
an
hleereis,
ad
generalup provision
vacancyionmade to,
to
the
professorship
of
chemistry, regulating in what manner the election should take
we find this Resolution—" Placeat
ltenctithoneesyeaprrolles93s4um chernicte fiant in poster= se-
cvpu°lanbcdil eu'umftor em, morem in, electione burgensium receptum ;" so that
from the recital that was used before in the year 1773, there was
occasion, as it appears, to make a special provision for the elec-
tion, and the mode of it, and, in 1793, that is made general by
;he effect of the Grace, declaring that the Professors of Che-
mistry shall he elected in that particular mode.
Mr. Justice BAYLEr—Tha!particular mode is by the Re-
gents and Non-Regents voting indiscriminately.
Lord Chief Justice ABBOTT—And without any previous
nomination ?

111 r. Serjeant LENS—Vex, my Lord; the distinction is,
whether there shall be a previous nomination, or, as contended,'
whether the election shall be in the body at large without any
previous nomination : that is the case of the Professor of Che-
mistry. But I submit that, in that instance, the mode of
electing does not decide any thing upon the subject, but rather
furnishes an argument to the 'contrary ; for it chews that, until
this declaration was made by the University, that it
was a
matter of doubt, which at last is determined by an express
grace that he shall he so elected. That furnishes no analogy
to the present instance. So also with regard to the Profes-
sorship of Anatomy, your Lordships will find that the first
firstap appointmentint
mentwas to
that of the
yeallrlr. 1707 and was by grace. The
George Rolfe, and in the
same manner as on the former occasion, he is nominated to fill
that particular office, so that no question arose as to the indivi-
dual ; other appointments took place in the years 1728, 1731,
1746, 170.
_ _

Lorrd.Chief Justice ABBOTT—In 1728 there is this--" May
it please you that his professorship be declared vacant, and
that another by you be chosen to succeed him in office and
tide." How was the election made under that--in what form
was John Morgan elected in the year 1728, there being a grace
that another should be elected by previous nomination or
otherwise ?

Mr. SOLICITOR-GENERAL—We say, if there had been a
nomination, that it would have appeared in the Records of the
University.
Lord Chief Justice Annovr .—Then you are not agreed as
to the nature of his election.
Mr. SOLICITOR-GENERAL—If your Lordahin will allow
me, 1 submit that that is an argumentative way of putting it.
Lord Chief Justice ADBOTT—Then At present you are not
agreed how that election took place.
Mr. Sergeant LEns—Then, my Lord, in the year 1733 a
Professor of Anatomy is elected, without saying how he was
elected; in 1746 Mr. Banks war elected; in 1753 William
Gibson; but in 1785 there is this resolution occasioned by a
viasicancy which happened in that year, there is this special pro-
on :—" Placeat vobis ut in electione prelectoris Anatomiat
die Jovis proxinue sequenti in senaculo habenda Nuffragia den-
tur secundum morem in electione burgensitun reoeptum."
Now, my Lord, the inference we draw from that is this, and
we think it is a fair one, that where there is no other mode
pointed out, the manner of election would by in the way that

we say this ought to have been, there being no special direc-
tion, it would have followed of course. My Learned Friend
would infer it was an universal course, whereas it appears there
is a special grace which directs the modei in future, the legality
of which we do not mean to question • but if this had stood in
the same circumstances as the Professorship of Anatomy, it
would not have decided the question. With regard to the ap-
pointment to the Professorship of Botany in 1724, and in two
other instances, whether the persons were appointed by special
direction or not does not very well appear; but that which took
place in the year 1808, with reference to the election of a Pro-
fessor of Mineralogy, the words being " Placeat vobis ut anus.
ad idem mums exequenduni a vobis eligatur," cannot be called
into aid in this case, it being the subject matter in dispute. In
the very last instance where an appointment of this kind took
place, which was in the case of the Fitzwilliam Museum,
where it became necessary to appoint officers, there the mode
of election does not appear to have been doubted at all ; the
election was by previous nomination, out of whom Mr. K.ey
was elected.
Lord Chief Justice ABBOTT—You are now upon the ap-
pointment of Curator to Lord Fitzwilliam's Museum ?
Mr. Serjeant LENS—Yes, my Lord; in the year 1816.
Lord Chief Justice Annovr —flow do you say the election
of the Curator of my Lord Fitzwilliam's pictures was effected
in 1823 ?
Mr. Serjeant Ls:ifs—Your Lordship will find the first to be
in 1816. I will mention how it proceeded :—lt recites, " QUUM
moit necesse erit ut eligatur aliquis, qui custodiam tabularum
Pictarum rerunique aliaruin quas A cademise legavit Ilonaratis-
simus Vice Comes Fitzwilliam in se anscipiat—pliteeat vobis
ut ei quum electus fuerit centum et quinquaginta librarum pro
annuus stipendio assignetur :" there the appointment was
made at the time of the election, and then it proceeded by the
previous nomination of two persons, out of whom one was se-
lected. That took place in 1816.
Mr. Justice BAYLEY—.IS there any grace there a vobis eli-
gatur?
Mr. SOLICITOR-GENERAL—No, Toy Lord,
Mr. Serjeant LENS—Upon the death of the person who was
then elected, another was elected, and afterwards Mr. Kaye
was elected. With respect to the terms a vobis eligatur, I ap-
prehend they are general terms, applying as much to one mode
as to the other ; they mean they shall be elected by the Univer-
silty, in whom the subject matter of electing resides, but is
equally applicable to elections made in the way in which we
contend this election should have been made; that is by a pre.
vious nomination of two, and the adoption of one by the Uni.
versity. The terms do not, as it appears to me, necessarily
apply to an open election, nor do they properly imply that the
mode of election a vobis, shall be a vobis without any_ other
consideration that the body at large shall So elect, or that the
election shall be made in the way we contend all elections are
to be made; and when no dircction is given, or a special grace,
such a person is a vobis electus, a vobis applying to the body
at large. My Lord, I was observing the terms a vobis eligatur
will equally apply to the one mode as to the other, whether an
election is to be a vobis
giving the power of returning Mem-
bers to P arliament., or in the manner in which elections pro-
ceed in the University after nomination ; when the election has
taken place, it is rightly predicated by the words "a vobis."
Your Lordships will find a great variety of instances in which
persons a vobis electus are recited to be persons elected accord.
ing to the statutable mode directly and plainly in terms within
the Statute of Elizabeth—for instance, in 1699 we have " Placcat
vobis utMariallinton vidua a vobis nuper elects ad officiumlEno-
polre literas," one of the Offices expressly named in the Statute,
there she is called "a vobis nuper elects," so in 1708, where it
mentions Matthew Craddock, it is " Modo a vobis electus ad ofli-
cium iEnopolie hujus Acaclemhe literas vestras patentes habeat
officii sal sigillo vestro communi sigillatas,"—there are several
others, if itshould be thought material; in 1729, where John Hese.
Well is elected, the words are "a vobis electus," that relates to
the office of vintner, where it was not by the body at large, in
contradistinction to the other mode of election, but where the
body has put the person in election, it is so described. When
this grace passed, that the party should be elected in this way,
we conceive that which was the statutable mode applies to it,
and I apprehend it spews, if it were intended to be carried to
that effect, it would, in order to point out the mode, as dis-
distinguished from the other mode, the form would have been
different ; therefore, these cases cannot be brought into aid of
the argument urged on the other side; for the person who is
elected by previous nomination is so elected, whether in that
open manner, or by any other mode. But 1 would just
refer your Lordships to another recent instance where the per-
sons were elected to the office of Assistant Astronomical Ob-
servers, where the direction was given, " That two Assistant
Observers should be elected (more burgensium) by the Senate
for the term of three years, and at the end of that period should
be capable of being re-elected," and then goes on tomatter
which is not applicable to this point, those words are afterwards
altered. I was only drawing your Lordships' attention to the
last instance of the kind, for the purpose of sheaving what was
the opinion of the University upon the subject, for when die
Astronomical Observers were appointed, the direction was that
they should be elected more burgensitun, but afterwards it was
altered by using the word elected only," and then it stands
"that the two Assistant Observers shall be elected for the term
of three years, at the end of that time to be capable of being re-
elected ;" we only use this for the purpoue of shewing that
where it was in the contemplation of die University to elect
more burgensium they expressly named it so as to exclude
a doubt, conceiving, that without that not
have taken that course--they then not conceiving it expedient
that the election should so proceed ; the words are struck out,
and the direction is general that the person shall be elected.
Mr. Justice BA.YLET—You do not mean that the words a
vobis are struck out ?

Mr. Serjeant LErs—No. my Lord.
Lord Chief-Justice ABBoTT—Where is that to which you
are now referring ?
Mr. Serjeant LENS—Your Lordship will find it on the second
page of Dr. French's affidavit,—l only say, that this was matter
of dispute which had arisen.
Mr. SOLICITOR-GENERAL—No ; it is the same question
as that now contested, and to be decided by it.
Mr. Serjeant LExts—No ; from the very nature of it, it can-
not be.

111 r. Sor.TCETOR-OENERAL—I do not mean with reference
to this particular election.
Mr. Serjeant LEss—The inference arising from it is this :
when it was the intention of the University that these two ad-
ditional persons should be appointed more burgensium, it was
thought necessary to specify it, and that is afterwards corrected
by striking out those words, and leaving the election general, which will include, and will hare the effect as intended and un-
derstood by them, of having the election with a previous nomi-
nation ; it is only an inference and an argument to spew what
jthe understanding and feeling of the University upon the sub-
ect were, where there was no special direction ; that where it
is intended the election shall he more burgensium then that is
stated. I only allude to it to shew that that
mode is uncon-
nected with the University practice, and that it did not exist
in the University antecedent to the time when King James
gave to the University the power of returning Members
to Parliament; it was a mode in its nature that was not,
nor could be generally adopted, the form of election being
entirely different to the University mode, and therefore when
used, it is necessary always to be specially provided for, and
here bring no special provision. We submit this will fall
under the general head, and under the general description. I
am not aware, my Lords, that it will be necessary to trouble
you much further, and I have to apologise for going into the
case at such length.
Lord Chief Justice ABBOTT—There is no need of any apo-
logy; the question is an important one.
Serjeant LEsts—l thank your Lordships for your indul-
gent attention. We submit there is nothing to exempt this
from the clause which provides, where there is no other provi-
sion made as to the mode of electing every Officer in the Uni-
versity, and wherever that is to be departed from, and shewn to
be otherwise, it is necessary that it should distinctly appear ;
that there should be a grace pointing it out. When it is so
done by grace, it may be effectually done ; it is a part of the
professorship
stands, and the
e Election is to take
fuouninvdearstiiotyn
rtelaptoinlatewshithche
modetlie in
place. It is not necessary to pursue that further. As to the
question of the eligibility of the one mode or of the other, I
shall not enter into it—it *lay entirely, or at least in some tle-
gree be a matter of opinion ; the mode of election for which we
contend is undoubtedly that which is to be drawn from the fair
import and effect of this grace. if this mode of Election to
these offices, namely, by previous nomination, is necessary,
the effect of that will be to give to the Heads ofllouses a larger
share of influence and discretionary power in the University
than would be derived from an open Election.
Lord Chief Justice ABUOTT.—That is the very objection
they make to it.

Serjeant is not altogether a matter of
indifference whether the Election shall be in one mode
or in the other ; it is attended practically with a dif-
ferent
effect in the one mode than in the other, which is
the best we have not now to'consider, but if it is clear from
the Statutes what the legal effect is, then you will not go into
the convenience or inconvenisnce of the particular mode, al-
though, in a doubtful case, recourse might be had to it for the
purpose of arriving at a decision, but in this case I apprehend
the Court will decide upon the law as applicable to the facts
before them. I apprehend there is nothing to distinguish this
from the ordinary case. All the instances are to be resolved
into this, that wherever the University has thought it right to
have an election " more burgensium," they have us each par-
ticular instance directed the mode in which it is to take place,
and where left at large it necessarily follows that the common
law the statuable mode of election of the University is to be
followed, and there being nu provision to the contrary here,

and no course specified, the general effect of these. wank, a vohis
eligatur, cannot be brought in to shew that it was meant
to point either to' one mode of election or to the other, either
one mode or the other will fall equally within . that direction,
and where there is nothing to point out what' was meant, the
consequence will be, that the election shall proceed according
to the Statute applicable to the election, and that where it is
intended to depart from that, the grace must in some sense
point it out, and must restrain the application ; if it can re-
strain the application of this clause by which directions are
given, that all elections not specially provided for, shall be of
the same nature as that of the Vice-Chancellor, in which pre-
vious nomination is essentially necessary, and we conceive that
has been the mode always adopted ; and when it comes to be a
question between branches of the different modes of election, it
must be determined according to the statutable and.usual mode
adopted in the University, and when there is a devia-
tion intended, it must be distinctly stated, not not
log to inquire into the legal power of making it, which
we do not question, for this order would be by a grace
passed in the usual way. I will not trouble.the Court with any
argument on this part of the case. I apprehend it will be ne-
cessary for this Gentleman to shew he has been properly elect-
ed ; but whether Mr. Henslow has been or not is entirely an-
other question. What we submit is, that in this case the man-
damus ought no to go. Ido not conceive it necessary to trou-
ble the Court further upon this subject, but I conceive, as the
case now stands., the election of Mr. Jephson is not conforni_
able to that mode which the Statutes of the University require,
and which is understood to be the practice up to the present
time.
Mr. Justice BAYLEY—The words more burgensium do not
appear to (wear in 1703 ; how was the election at that period
Mr. Serjeant LENS—The fact does not appear, my Lord,
one way or the other, but the inference we draw is, that the
election took place in the usual mode ; but the fact does not
appear.
Mr. SOLICITOR-GENERAL—We saYno, my Lord.
Mr. Justice BAYLEY—I did not mean to provoke any dis-
cussion.

(To be continued.)

MERCANTILE: SHIPPING.

Dr ar,
MAY s.—Wind E.N.E.—Came down from the
River this afternoon and sailed, the Manby, Burnett, for Anti-
gua ; and Harmony, Tyne, for Berbice.
PORTSMOUTH, MAY s.—Wind E.--Arrived the Jane, White, from Messina for PetersbUrgh. The brig Louis:4
(coal laden) was seized on Southampton Water yesterday by
the Tide Surveyor of this port ; she had 500 tubs of spirits on
board, and 150 bales of tobacco.
PLYMOUTH, MAY 4.—Wind E.—Arrived the Searthing-
well, from Charente; and Nancy, Thomson, from Calcutta.._.
sailed the 24th September; on the 2d instant fell in with the
French frigate Constance, from Cherbourg, cruizing off the
Lizard. The Partridge Thornton, from the South Seus, has
just anchored in the Sound. Arrived the Nymph, Hutchin-
son, from Messina and Gibraltar; and Hannah, Curren, from
Quebec, the latter with loss of main and mizen-mast.
FALMOUTH, • MAY 4.—Wind E.—Arrived the Warren
Bulkeley, Jones, from Beaumaris, with loss of mast ; Joseph
and Mary, Smith, from Messina in 35 days. Sailed the Lady
Arabella packet, for Vigo and Lisbon.

The Robert and Georgiana, Dail, from Norway to L'Orient,
was wrecked yesterday on the Sunk Sand.
The North Ash, from Cardiff to London, was on shore yes-
terday on thi hook of Margate Saud.