Statute, are subject to appeal, the question is put to them, whether in
suspending Mr. _A—_ they had acted under that Statute? Again; instead
of inquiring whether the _jurisdiction_ given in the _two Statutes_ be
the same or different, the Query is (on supposition of a difference) to
which class of tryals Mr. _A—’s_ case belonged? In short, the Lawyers
were made to believe, that this was the main point in dispute, whether
the case before them was of a _criminal_ or (as the _Inquirer_ expresses
it) of a _forensic_ nature.
It would have been hard indeed if a design so well laid, and so artfully
conducted, had failed of success. Accordingly, we find both the Lawyers
expressly declaring, that the case in question belonged to the 42d
_Statute_, and from thence seeming to infer, that an appeal is not to be
allowed.
Answers to the Queries.
“To Q. I. I am of opinion, the Vice-chancellor’s authority in
the case above stated is well founded by the 42d Statute, _de
Cancellarii Officio_, and that the Vice-chancellor and his
assessors acted under that Statute; and that this case does not
fall under the 48th Statute. And I am of opinion that an appeal
does not lie in the present case.
“To Q. II. This in effect is answered by what I have said upon
the first Question. And if an appeal might be allowed in the
present case, it would be of most fatal consequence to all
discipline in the University; since it would take away all
distinction between the two Statutes; and every scholar, who
should fall under any censure or punishment inflicted by the
Vice-chancellor, might have his appeal; and the 42d Statute
would be entirely of no effect.
“_Dec. the 12th, 1750. W. N—._”
“To Q. I. Upon consideration of the two Statutes above recited,
it seems to me that the first was calculated to give a
jurisdiction and power to the Chancellor, or, in his absence,
to the Vice-chancellor, to interpose in criminal matters, _i.
e._ in matters relating to discipline: the latter gives a
jurisdiction or cognizance in civil matters, _i. e._ matters of
controversy concerning civil rights: and therefore the first
gives power, _contumaces, &c. suspensione graduum, carcere, aut
alio leviori supplicio judicio suo castigare_: by the latter,
power is given to determine _causas et lites_, _viz._ _causas
forenses_, for that is the title of the Statute. As to the
first, I think that the jurisdiction is final in the first
instance: for his power is _judicio suo castigare_; and it must
necessarily be so, for immediate imprisonment seems to be one
of the punishments which he may inflict against which there
can be no appeal, for it may be executed before there can be
any appeal. As to the other, _viz._ the civil jurisdiction,
there the statute requires speedy determinations; but gives an
appeal from his sentences in _foro_, and prescribes the manner
of appealing. Upon these principles, I think that no appeal can
lie, the suspension of _A—_ being grounded, I think, on the
Statute _de Cancellarii Officio_; and that this is not _causa
forensis_ within the latter Statute.
“To Q. II. If all offences against the Statutes are punishable
by this Statute, the punishments for the _minora_, as well as
the _majora delicta_, would be appealable; which I think would
be absurd.
_Linc. Inn, Dec. the 13th, 1750. R. W—._”
It is seen that both these opinions rest on one common foundation, _viz._
that the 42d _Statute_ gives authority in none but _criminal_, the 48th
in none but _civil_ causes. Now if this support shall appear to be
wholly imaginary, all that is built upon it must fall to the ground. Let
us proceed then to examine the Statutes themselves; or rather simply
to represent what is contained in them. We shall have no occasion for
nice distinctions, or remote inferences; the plain literal sense of
the passages to be cited will overthrow at once the principle we are
opposing; will afford such an evidence as cannot be resisted, until a
method of interpreting shall be found out, wholly independent on the
received rules of Criticism and Grammar.
The 42d Statute is entitled _De Cancellarii Officio_, and contains
an enumeration of the various powers conferred on him by the
University. It gives him a right _to hear and decide controversies_;
_to call congregations_; _to give and refuse degrees_; _to punish the
transgressors of the Statutes_; _to see that the University officers do
their duty_; _to inflict censures on some particular sorts of offenders
therein named, in some cases with, in others without, the consent of
the Heads_; _to give or refuse leave to Members of the Senate to go out
of a Congregation before it is ended, and to impose a mulct on those
who depart without leave_; _to require the presence of regents and
non-regents at Congregations and_ Conciones ad clerum, _and to punish
the absent_; and, lastly, _to make new Statutes, with the consent of the
University_.
Now I think I may safely refer it to any reader, whether the single
design of this Statute was to convey authority in _criminal causes_? or,
whether it be not manifestly an enumeration of the various branches of
the Chancellor’s power, intended to give, at once, a general view of the
whole?
If any one shall think that the administration of _civil_ justice is not
here included, I must desire him to read again the very _first_ clause.
_Cancellarius potestatem habebit ad_ OMNES—_controversias—tum audiendas
tum dirimendas_. Nothing sure but the most outrageous zeal for a
desperate cause can make any one affirm that the word _controversias_ is
necessarily confined to the _trials of offenders_. But, if not, then the
Statute gives jurisdiction of both sorts, in civil as well as criminal
causes.
With as little foundation has it been asserted that the jurisdiction
given in the 48th Statute relates only to _civil causes_. The single
ground of this assertion is the title of the Statute, _viz. De Causis
Forensibus_. It happens that a certain set of men, by endeavouring for a
long time to deceive others, have in the end deceived themselves. For I
would, in charity, suppose them to be sincere, when they translate _causæ
forenses_, _causes between party and party_. It is true, no such use of
the words can be found in ancient authors, or, in what might have been
more convincing to them, modern Dictionaries. But what then? Admitting
that a school-boy would have construed these words _trials in court_,
or _public trials_, yet this sure cannot be alledged as a precedent to
grave and wise men: much less can it be expected they should reverence
quotations drawn from heathen writers, who had no idea at all of the ways
of supporting discipline in an University.
But if the _title_ of the 48th _Statute_ will not confine the
jurisdiction it gives, what shall we say to the Statute itself? It
begins with these plain words, never afterwards restrained or limited,
OMNES _causæ et lites, quæ ad Universitatis notionem pertinent, tam
Procancellarii quam Commissarii judicio subjiciantur_. If this clause
be not general, I should be glad to know whether a general clause be
possible? whether any words can be invented of sufficient extent to
include trials of every sort? But it is not indeed to be thought strange
that the same profound critics, who would confine _omnes controversiæ_
to _criminal_ causes, should confine _omnes causæ et lites_ to _civil_
causes only.
After all, I have a good mind to give up this point, for the sake only
of trying the experiment, what advantage can be made of it: Let it,
then, be supposed that the jurisdiction given in the 48th _Statute_, and
the appeals allowed in it, belong only to _civil_ causes; and let it
be further supposed that the 42d Statute relates merely to _criminal_
causes. What will follow? That the Queen’s _Statutes_ allow no appeals,
for _that the omission in this Statute amounts to a prohibition_? Nothing
can be wider from the truth than this conclusion. For, 1st, the powers
given to the Chancellor may not be exercised in an arbitrary manner, but
in strict conformity to the customs and privileges of the University:
If this restriction were not always to be understood, the Chancellor
might confer _degrees_ by his _sole_ power; for no mention is made in
the Statute of the consent of the University. The powers, then, here
given to the Chancellor are to be _limited_ by the known rights of the
_Senate_; and among these rights no possible reason can be given why that
of _appeals_ should not be included: a right (as will presently appear)
of very great antiquity, perhaps not less ancient than the University
itself. 2dly. The very same clause which impowers the Chancellor to
judge _omnes controversias Scholasticorum_, that is (as we are now to
render the words) _all offences committed by Scholars_, requires him to
judge _secundum jus civile et eorum privilegia et consuetudines_; and
consequently to judge not finally, but under an obligation of having his
sentence _re-examined_ on an appeal made to the University.
There is another argument in Mr. _W—’s_ opinion, which seems indeed at
first sight, to be more specious. He observes that the Chancellor is
to punish _contumacy_ and some other _offences judicio suo_, and seems
to think these words might be intended to prevent _appeals_. But the
learned person must excuse my differing from him also upon this head. The
Queen’s Statute _De Off. Cancell._ is copied, with some alterations, from
a Statute upon the same subject in the _first_ collection, she gave the
University; as that was _verbatim_ from one of King _Edward’s_. In this
Statute the Chancellor was empowered to punish _judicio suo et assensu
majoris partis præfectorum collegiorum_; that is, he was appointed
_judge_, they _assessors_. But the latter Statute of Queen _Elizabeth
distinguished_ these punishments into two sorts, regard being had to the
importance of the punishments themselves, and to the rank and condition
of the offender. In causes of less moment, and towards offenders of
inferior rank, the Chancellor was to proceed _judicio suo_; in others,
_non sine consensu præfectorum collegiorum_. These _two_ clauses being
so manifestly _opposed_, we cannot surely mistake, if we interpret the
former _by his sole judgment_, or _by his single authority_; and suppose
that nothing further was intended than to enable him to pass sentence,
_without_[99] the concurrence of the Heads; a circumstance which will
never shew that his decision ought to be _final_.
There is one point more in which I cannot help dissenting from the
gentleman last named. He seems to think there can be no appeal from
a sentence of imprisonment; because such sentence is to be executed
_immediately_. But I need not observe to so good a judge, that an appeal
_apud acta_ may suspend this execution; and he has not favoured us with
his reasons why this manner of appealing may not be allowed (as it always
has been allowed) in the University.
As to the _second Query_, it is a doubt altogether superfluous; and
seems to have been proposed for no other reason than to obtain opinions
concerning the _expediency_ of appeals; which is not surely a point of
_law_. The learned gentleman, who has declared his sentiments on the
question, must therefore pardon us if we do not receive them with the
same deference, as if the subject had fallen within the proper limits of
his profession.
But I think it unnecessary to dwell any longer on these _Queries_, or
the _Answers_ to them; since it is clear that the learned persons were
abused by a partial and unfair representation of the case; of which had
they been fully informed, as they should have been, by laying before
them a just view of the question in debate, and by furnishing them with
the proper materials for decide upon it; there is no reason to doubt
that persons, so eminently qualified to judge of all disputes of this
nature, would have given much more satisfactory opinions about it, and
such as the University might safely admit, as decisive in the present
case. And I think myself authorized to say this the more confidently, as
it luckily happens that the _proper_ Queries concerning this very point
were, some years ago, put more honestly by a very excellent person, at
that time Vice-chancellor of the University; and therefore answered very
_differently_ by the greatest Lawyer[100] of this or any age; from whose
decision though there lies an appeal, yet his sentence never _was_, as
indeed no good man had ever cause to wish it _should_ be, reversed.
These Queries, together with the Answer of this great person to them,
I purpose laying before the Reader, as a full and perfect confutation
of all that has been yet advanced against the _right of appeal to the
University_; and carrying with it more authority than any thing which
the most knowing academical advocate could possibly say for it. But, that
the reader may come the better prepared to judge of the merits of his
determination, and as some further support to it, for the satisfaction of
such as are unacquainted with the state of the case itself, I have judged
it not improper, in the first place, to draw together _a brief historical
account of the jurisdiction of the University_; collected from authentic
monuments, which are well known to such as are versed in academical
matters; and which, if there shall be occasion, will be produced at large
in a more proper place.
The University of _Cambridge_ was possessed of a jurisdiction over its
own members, as _clerici_, many years before _any_ was granted to it by
charter from the Crown. This jurisdiction, being ecclesiastical, seems to
have been originally derived from the Bishop of the diocese. The causes
cognisable by the University were chiefly causes of correction; the rule
of proceeding in the Court was the ecclesiastical law, and Statutes
of their own making, consonant to that law. The censures inflicted
upon offenders were either ecclesiastical, _viz._ _excommunication_,
_suspension_, &c.[101] or such as were appointed by the Statues for
particular crimes; and the names of _places_, _offices_, _pleaders_, the
same as are used in Ecclesiastical Courts to this day.
This jurisdiction was not usually exercised by the University in its
_collective_ capacity. But a particular officer was empowered to exercise
it, under the name of _Chancellor_; who as _official_[102], acted by
an authority derived to him from the University, was accountable to
them for the use of it, and liable to have his acts annulled at their
discretion; every person who thought himself aggrieved by the Chancellor
being at liberty to apply to the Body for redress.
When an _Appeal_ was brought before the University, they usually
authorized Delegates to hear and judge it, as was agreeable to the
practice in other Ecclesiastical Courts.
The jurisdiction here described was not originally independent; for no
academical decision appears to have been _final_. An Appeal always lay
from the judgement of the University by their Delegates to the Bishop of
the diocese, till the University was exempted from his authority, and
their jurisdiction made _final_ by Royal Charters, confirmed by Act of
Parliament.
In the reign of _Henry_ III. attempts were made to carry Appeals
_directly_ from the Chancellor to the Bishop, and so to pass over the
Appeal to the University, which ought to have been an intermediate step.
But _Hugh de Balsam_, Bishop of _Ely_ (the founder of _Peter-House_), by
a rescript, dated Dec. 1264, entirely frustrated all such attempts.
Hitherto, the Appeals to the University had been from _causes of
correction and censure_. The University was not as yet possessed of
jurisdiction in civil causes. Scholars were first allowed to implead
the burgesses and other laics of the town of _Cambridge_, in all kinds
of personal actions, before the Chancellor of the University, _anno_
33 _Ed._ I. From that time, the University began to acquire a civil
jurisdiction, which, by degrees, was inlarged and established by grants
from the Crown in succeeding reigns. And now, in consequence of this
jurisdictions, Appeals were extended from criminal to civil causes.
Accordingly, in a rescript of _Simon de Montacute_, Bishop of _Ely_,
which bears date _16 cal. April, anno 1341_, there is express mention of
Appeals to the University in causes of _both_ kinds. For the design of
this _rescript_ is to commission the University to determine _finally_ in
all _civil_ causes, without a further Appeal to his Court; and to prevent
frivolous and vexatious Appeals from the University to him in _criminal_
causes, by laying the Appellant under the obligation of an oath.
This addition of _civil_ power did by no means abrogate or lessen the
_spiritual_. We find, in the reign of _Hen._ VI. that all sorts of
ecclesiastical authority were adjudged to belong to the University,
by the Prior of _Barnwell_, the Pope’s delegate; and it was then made
appear, that all these branches of power had both been claimed and
exercised time out of mind. It is certain, the _probate of wills_ hath
at all times belonged, and still belongs, to the University. The power
of _excommunication_ was exercised as late as the reign of _Hen._ VIII.
and the power of _absolution_ is exercised at this day. This ceremony is
constantly performed on the concluding day of each term. And here, to
observe it by the way, gentle Reader, a goodly and reverend spectacle it
is, to behold the spiritual Head of our University spreading his paternal
hands, like another Pope, over his erring and misguided flock, who, in
all humility, receive his ghostly absolution on their knees.
It is true, the new objects of litigation, introduced by the royal
charters, occasioned an alteration in the _Law_ of the University. For
the ecclesiastical laws did not suffice for the decision of controversies
about civil rights, particularly contracts between scholars and townsmen,
and breaches of the peace. From the time, therefore, that these new
causes came before the Chancellor, to the reign of _Edward_ VI. his Court
was directed, as our Spiritual Courts are now, by a mixed kind of law,
made up of canon and civil law[103]. Yet this must not be understood
without restriction. For the University, like other corporations, had all
along a power of making _local Statutes_; and not unfrequently particular
_usages_ acquired the force of Statutes, from long continuance.
But whatever changes were made, either by express Statute, or in
consequence of a more extended jurisdiction, the practice of appealing
from the Chancellor to the University still continued; only, as was
observed, with this difference, that it now was allowed in civil, as
before it had been in criminal causes.
The right of appeal which then subsisted received a fresh confirmation
from the Statutes made by the University itself. In these Statutes the
right is not only referred to and presupposed, but directions are given
in regard to the manner of exercising it[104]; which directions, till
cancelled by succeeding Statutes, established the right as effectually
as if it had been originally introduced by Statute. The times when many
of these Statutes were made cannot be fixed; but it is certain they were
collected and transcribed into the Proctors’ books between the year 1490
and 1500.
In the reign of _Edward_ VI. a body of new Statutes was given in a
Visitation under an ecclesiastical commission; which enjoined, among
other things, that the jurisdiction of the University should be directed
by the _Civil Law_; that is, as every one understands, a mixture of the
Civil and Canon Law; or what _Oughten_ calls _Jus Ecclesiastico-Civile_;
the same which prevails in all Ecclesiastical Courts to this day. And,
in the first year of Queen _Elizabeth_, Statutes were again given to the
University in a Visitation under a like commission; which were almost
an exact transcript of those before given in the reign of _Edward_ VI.
The right of appealing from the Chancellor to the University received no
alteration from these Statutes. For there is no change in either of them
by which such Appeals are forbidden or even restrained. Accordingly, the
practice appears to have continued to the time when Queen _Elizabeth_
gave her _second_ body of Statutes (under the broad seal indeed, but not
by Visitors under ecclesiastical commission), which was in the year 1570.
What alterations have been made by these, or by the practice of later
times, remains to be considered.
It is plain from several passages in Queen _Elizabeth’s_ new Statutes,
that many of the ancient Statutes and customs of the University were
designed to be continued; and in Stat. 50 we have a direction given, by
which we may understand what Statutes and customs were to be preserved,
and what not. Those only she declares to be taken away, _quæ Scripturis
Sacris, institutis nostris, istis Statutis adversari videbuntur_; of
which number the practice of appealing from the Chancellor to the
University was not one.
There is, besides, the less reason to imagine this practice was
abolished, because, in Stat. 42, the Queen requires all causes to
be heared and determined _secundum jus civile_; and in her Charter
to the University, confirmed by act of Parliament, _secundum leges
et consuetudines suas, ante tunc usitatas_, which, as appears, were
agreeable to the _Civil Law_. This _law_ allows Appeals in cases of
correction and censure; and therefore it is _certain_ that Appeals were
allowed by Queen _Elizabeth_.
Indeed, nothing but a clear and express prohibition could make us
imagine, that the right of appealing, a right of particular importance,
was designed to be either wholly abolished, or restrained only to civil
causes. And such prohibition, had it been the Queen’s intention to
forbid Appeals in any case, might the rather have been expected, as, in
the 48th Stat. where several directions are given concerning Appeals,
_one_ ancient usage of the University[105] in relation to them is
expressly forbidden: _nec secunda provocatio omnino admittatur_. Yet
she gives not the least hint of restraining Appeals to any particular
sorts of causes; which surely were an unaccountable omission in this
place, had she actually intended to lay them under any such restriction.
And, indeed, it is evident from a _MS._ of unquestioned authority, that
neither the Body of the University, nor the Heads themselves (some of
them supposed to have been concerned in compiling the Statutes), had
the least imagination of such restraint. What I mean is, a _MS._ in _C.
C. C. Library_, containing _some Complaints of several of the Body of
the University, in the year 1572, against Queen_ Elizabeth’s _second
edition of Statutes, and the Answers of the Heads, &c._ One of their
complaints is _the frustrating_ Appellations, by transferring the power
of nominating Delegates from the _Proctors_, in whose hands it was before
lodged, to the _Caput_; and by encreasing _the forfeit of Appeals_, from
a very inconsiderable sum to 20_s._ with an addition of 2_s._ to be paid
to the Proctor; an expence which, as was then urged by the Body, would
prevent _poor scholars injured from the benefit of appealing, having not
so much money_. What, now, is the answer of the Heads to this complaint?
Why, that, _for the stay of the quietness of the University_, it was
necessary to lay Appeals under these restrictions. Not a syllable is said
against the right of appeal itself in any case; though the complainants
had expressly set forth the importance of having Appeals unincumbered
by these limitations, for the _redress of wrongs_ in _general_. Nay,
the wrongs they apprehended are even specified; such as punishments _of
a regent in the regent-house, for modestly asking a question; or of a
disputer, for modestly disputing_; which, if we are to call them _causes_
at all, are surely _causes of correction_.
Nay, so far are these Statutes from _prohibiting_ Appeals, that they have
actually given the strongest sanction to this practice, by admitting the
right in very general terms, and prescribing rules for the exercise of
it. _Stat._ 48.