from the neglect or corruption of the University _Registers_, who have
not taken care to record the proceedings before Courts of Delegates.
Only a few loose papers have been accidentally preserved, from which it
appears that Appeals were allowed in _civil_ causes, and there is no
reason to imagine they were discontinued in causes of _correction_,
as no distinction was made by the Statutes on trials between civil and
criminal causes.
But if it were true in fact, that no Appeals had been heared between
1570 and 1725, in causes of correction and censure, yet this would not
affect the right, any more than the want of Appeals from a censure of a
_peculiar_ sort would render that single kind of censure unappealable.
For, a right extending to various particulars will not surely be lessened
from want of opportunity or inclination to exercise it in _every one_ of
them. And such disuse would be the less strange in the instance before
us, because the discipline of the University hath been chiefly supported
by censures inflicted in particular Colleges. Little of this business is
left to the Vice-chancellor; and they who know the University, and wish
well to it, will not, perhaps, desire to see more of it in his hands.
If the supposed disuse of Appeals in criminal causes shall yet be thought
to have abolished the _right_, the opinion now to be produced will at
once remove such suspicion; even though it should not be insisted, as it
may, that this pretended prescription itself is already destroyed, by
_three_ instances of Appeals in _causes of correction_, the first of them
in the year 1725.
But, before I proceed any further, I would beg leave to make one
_general_ observation on what hath been now advanced. It is this: A great
Civilian had expressly affirmed, “_that Appeals are always admitted in
those Courts where the civil and ecclesiastical Laws are in force, where
penance, suspension, deprivation, or any censure is inflicted as the
punishment of a fault_[106].”
To all which the writer of _the Inquiry_ gives his entire assent: _The
observation_, says he, _is undoubtedly just_. Now the capable and
impartial reader is left to judge, whether it be not most evident, from
the _facts_ here offered to his consideration, that the jurisdiction of
the University is, in the properest sense of the word, _Ecclesiastical_;
and further, whether the _Civil_ and _Ecclesiastical Laws_ be not _of
force_ in the University Court. The dispute then is brought to a short
issue. _Appeals are_, by the full consent Of the Inquirer himself, _to be
admitted_.
I come now to the OPINION itself; of which I will only say, further,
that it was not given by the great person hastily or negligently, but
with all the care and deliberation which so important a matter deserved:
as is clear, not only from his diligence in calling for and inspecting
the _Commissary’s Patent_, which, he clearly saw, was of moment to
the determination, but from the time he took to consider it. For the
_Queries_ appear to have been put some time before _Christmas_; and this
Opinion bears date the 18th of _March_ following.
_Qu._ I. “Whether Appeals to Delegates by the Statute _de
causis forensibus_ are restrained to _civil causes_, in which
two parties are litigant?”
_Ans._ The Statute _de causis forensibus_ is penned in such
general terms, that I think the Appeal to Delegates thereby
allowed cannot be restrained to civil causes only, wherein two
parties are litigant, but doth extend to causes of correction
and censure; the rather because the Appeal from the Commissary
to the Vice-chancellor is given in the same clause, and in
the same manner, with the Appeal from the Vice-chancellor to
Delegates; and the words of the Commissary’s Patent extend
as well to causes of correction and censure as to civil
causes. Now there can be no doubt but that an Appeal lies
from the Commissary to the Vice-chancellor in all cases.
The entry in Mr. _Tabor’s_ Register imports that, even in
causes of correction, an Appeal lies from the sentence of the
Vice-chancellor, when he doth not act jointly with the major
part of the Heads of houses.
_Qu._ II. “Whether by the Statute _de Cancellarii officio_,
which binds the Vice-chancellor to proceed _secundum jus
civile_, an Appeal to Delegates can now lie in a criminal cause
against a prescription of 200 years to the contrary, excepting
only the case of _Campbell_, _anno_ 1725?”
_Answ._ There can be no prescription in this case, because the
question depends on Statutes, given within such a space of
time, as the Law calls, _time of memory_.
_Qu._ III. “In case the Delegates should receive an Appeal,
from the Vice-chancellor’s court in a cause of this kind,
and cite the Vice-chancellor to appear before them, what the
Vice-chancellor should do? Whether appear before them, and
appeal from the sentence of the Delegates to his Majesty in
council; or not appear, but apply immediately to his Majesty
by petition; praying a prohibition, to stop the proceedings of
the Delegates?”
_Answ._ Supposing that there is a right of appealing to
Delegates, from the sentence of the Vice-chancellor, in a cause
of correction or censure, no authority can be interposed to
stay the Delegates from proceeding. But if the Delegates should
not have a jurisdiction, his Majesty in council cannot grant
a prohibition to them: and if upon an incident of this kind,
the Vice-chancellor should think fit to bring the point to a
judicial determination; the only proper method, is by applying
to some of the courts at _Westminster_, for a prohibition to
the Delegates proceeding.
_18 March 1730._
The reader sees, by this determination, that the question turns entirely
upon this point; whether, supposing there had been no Appeals in cases of
discipline from the year 1570 to 1725, as is asserted, but without proof,
the intermission of the exercise of this right for so long a space, could
amount to a legal abolition of it. To which the great Lawyer, whose
Opinion has been recited, replies expressly, NO. If any should then
ask, what evidence there is of such a _right_ subsisting at that time?
Besides the Statutes themselves, insisted on in the Opinion, I can now
refer him to the brief hints which compose the preceding account of the
jurisdiction of the University; and which the reader may be assured, are
advanced on the best grounds. Much more might, indeed, have been said;
for what I have thought fit to deliver at present on the subject, is but
a small part of that evidence, which can and will be produced, if it be
found expedient to do it. In the mean while, I may well excuse myself
from this trouble. For to talk further on these matters to a person,
who appears so wholly ignorant of the History of the University, as the
_Inquirer_, were a vain waste of time; and to take the pains of confuting
particular objections, founded on that ignorance, a still vainer. Only
I will condescend to put him in mind of one essential defect in his
argument which runs through his whole pamphlet. It is, that he all along
goes on the supposition, that the _express_ authority of Statute, is
required to make good the claim to Appeals. And he therefore very idly
lays out his whole strength, in attempting to prove, that no such express
authority is to be found, either in the _old_ or _new_ Statutes. I own,
I could not but smile, at first, to observe the Inquirer addressing
himself, with so much importance, to this task. But, when afterwards I
came to consider, the labour and difficulty, with which he was forced to
make his way, for this wise purpose, through the _discouraging_ δυσνόητα
(for so I presently saw, he found them to be) of the _old Statutes_, I
could not, upon second thoughts, but pity his unnecessary sufferings
about them; and was even tempted in my own mind, to blame the waggery
of _the Fellow of a College_, whose request had drawn him into all this
trouble, and who, to divert himself with him, had plainly put him on
so wrong a scent. The truth is, I could not think this usage fair in
his _good friend, to request him to draw out his sentiments, on such a
point_; especially, as he tells us, his time was _so precious_, and that
he had so little of it to spare, amidst _the variety of his necessary
avocations_[107]. It had, surely, been more kind to inform him at
once, as I shall have the goodness to do, that no body, who understood
the matter in debate, ever pretended to found the right of Appeal on
_express_ Statute; it being well known, that the _right_ stands entirely
on the nature of our _jurisdiction_; in consequence of which, there has
been a continued immemorial practice of appealing in the University;
supposed indeed, and admitted in both the _old_ and _new_ Statutes, and
authorized by the prescription of various rules, for the exercise of it;
but neither expressly commanded, nor prohibited in either.
And now, having done this act of charity towards the _Inquirer_, which
may prevent his future pains, in puzzling and perplexing himself with the
study of the old Statutes; I shall have reason to expect, in return, his
good leave to expostulate with him pretty freely on the use, he proceeds
to make of this unhappy blunder. For, plumed with the vain conceit of
the University’s resting their claim on the sole express authority of
Statute, he goes on, to insult so considerable a body of men, in the
most opprobrious manner; as guilty of the most absurd and irreverent
behaviour, as well towards our illustrious Chancellor himself, as the
Vice-Chancellor, and his brethren, the Heads of Colleges. What I mean, is
in relation to the _Grace_, which the assertors of the right of appeal
thought fit to propose, in order to refer the decision of this point to
the arbitration of the Senate. He harangues, for several pages, on what
he calls, the irregularity and indecency of this proceeding; and affects
besides, to cavil at the substance of what was proposed in it. But, good
Sir, where was the _irregularity_ of the Senate’s presuming to confirm,
by their own authority, a _right_, essential to their constitution,
authorized by immemorial prescription; and which no single Statute, they
act under, in any degree contradicts? Or, where was the _indecency_ of
opposing the exercise of that power in the Vice-Chancellor, which is
inconsistent with the very nature of our jurisdiction; for which, he can
plead the sanction of _no_ Statute; and of which he was never rightfully
possessed?
As to the _Grace_ itself, the substance of what it proposed, was to
this effect: “That the right of appeal, from the sentence of the
Vice-Chancellor to the University in all cases, should be confirmed to
every member of the _University_; but that this _right_, with regard
to persons in _statu pupillari_, should be exercised only by the
tutor of each person, interposing in his name.” This, it seems, gives
great offence to the _Inquirer_; who, in his tender concern for the
authority of the supreme magistrate, is perfectly shocked, to think of
the consequences of such a right being acknowledged; and is prophet
enough to foresee, that it would bring the lowest disgrace upon his
office, by _warranting the arraignment of him_, as he puts it, _before
Delegates, upon no very important occasions_[108]. But his fears are
as groundless, as the insinuation, which he labours to convey under
them, is impudent and unjust. For, though an appeal be claimed _ab omni
gravamine utcunque illato_ (which sure is nothing but reasonable, as the
Statutes make no distinction, and the practice, as well as _Law_ of the
University, equally authorizes Appeals in every case) yet, why should
he throw himself into this unseasonable panic, when all _frivolous and
vexatious Appeals_ are expressly provided against, by a considerable
pecuniary caution, and when the Delegates themselves are, in effect, of
the supreme magistrate’s own appointment[109]? Would the members of the
Senate, does he think, appeal from any judicial sentence, though ever
so just and statutable, _on no very important occasion_, when a certain
expence is necessarily incurred, and when there could not be the least
hopes of redress? Or, would any tutor can he imagine, who has a character
to maintain, and who is not less concerned to support good order and
discipline, than the supreme magistrate himself, interpose his claim of
Appeal for his pupil, without, at least, some fair and reasonable grounds?
But the insinuation, as I observed, is still more impudent, than his
apprehensions are groundless. For what he would covertly signify under
this impertinent sollicitude for the honour of the supreme magistrate,
is, that the Delegates, who are the representatives of the collective
body of the University, are unworthy to take cognizance in any case of
the acts of their _officer_[110]: Nay, that the members of the Senate
itself are a company of factious, disorderly, licentious boys; who are
impatient of any authority themselves, and would be sure to concur in
all cases to countenance the irregularities of one another, or of the
youth of the place; by setting them loose from all restraint, which
the Statutes and discipline of the University have provided against
them. There is something so outrageously insolent in this abuse of the
body of the University; a body consisting of _three or four hundred
persons_; the youngest of which is of the degree of _Master of Arts_;
almost all of them _clergymen_; and the greater part of _equal age_,
and it may therefore be presumed of _equal prudence_, as many of the
Heads themselves; that I should be cautious of charging it upon him, if
he had not expressed himself in terms too clear to be mistaken. For he
has the assurance to advance in so many words, that “_if the person who
apprehends himself to be aggrieved_, may happen to be a member of the
Senate, and, _as such_, may possibly _bear with indignation the thought
of having any part of his conduct judicially animadverted upon_; if it
be further considered, that his _particular friends and acquaintance_
may possibly think the same in his case, and that _all the advocates
for, and the warm assertors of independency_ will be sure to think so in
every case, I do and must say, _&c._” And, again, in the words of the
very provident Mr. _Tabor_, a little doting registrary of the University,
a century or two ago; whose mumpings this writer has the confidence
to oppose, to the united sense of the University, at this day: “What
dangerous cure does that state hazard, when for the sullen distemperature
of one active member, the ruling head must bleed, that suffereth enough
otherwise; and all the discontented parts of the body must sit in
judgment on it; nay when _Sense_ must disapprove or disallow the _acts
of Reason_? If this Appeal be suffered and countenanced to pass current,
farewell the power of Chancellor and Vice-chancellor; _my young masters
of the regent house_ will and must judge, examine, and rule all; yea,
_their_ censures or judgments must stand or be disallowed at their will
and pleasure. Good Sir! by all means labour to smother this _Hydra_; it
will have more heads than we shall overcome, and breed a greater mischief
than we are aware, in these times of liberty and discontent[111].”
Such are the sentiments of this forward Inquirer of the Senate of the
University of _Cambridge_: sentiments, which must needs create in the
breast of any man of sense, who is a mere stranger to us, the strongest
resentment; and for his public declaration of which, were the author
known and considerable enough, he would judge him to deserve the severest
censure, the University has it in its power to inflict. But what must
those think, who have an opportunity of knowing the _characters_ of
the men, whom he thus vilely traduces? Almost all of them fellows of
colleges, many of them tutors, whose sobriety and good behaviour have
recommended them to places of trust and profit in their respective
colleges: Men, who are under the obligation of oaths, to maintain and
promote statutable discipline, and regularity; who are trained in the
habit of restraining and correcting academical disorders of all kinds;
and whose situations and interests require them to be as watchful
to support just authority and good order, at least, as the Heads of
Colleges, or the officers of the University themselves. And the censure
is the more grievous at this time of day, when, by the confession of the
partizans of the Heads themselves[112], extorted by the very evidence of
fact and truth, there never was a time in which the elder part of the
University were more sober, temperate, and regular; when fewer excesses
of any kind were chargeable on the fellows of colleges; or, indeed,
when they were more prudent and exemplary, in their behaviour, in all
respects. But the charge is not only unjust, but has a direct tendency to
discredit and destroy that reasonable authority in the University, which
this prater, if he means any thing by his talk, would seem ambitious to
support. For how is the great affair of education and good government
in this place to be carried on, but by means of those very persons,
whom he would represent in so ignominious a light? For, certainly, how
much soever the University may owe to the Heads of Colleges, in their
capacity of _legislators_, yet, for the _execution_ of those laws which
it seemeth good to their wisdoms to enact, they must still depend on
the concurrence, I had almost said, on the sole authority of their
_inferiors_. And how shall such authority be kept up, when they are
thus upbraided, as abettors of every act of licence; and represented to
the younger part of the University, as patronizers of that ungoverned
independent spirit, which it is their office to restrain? Nor can I think
so ill of the policy of these great lawgivers, as to believe that they
will chuse to concur with this officious _Inquirer_, in representing them
in such a light. For what will become of that balmy ease and quiet, in
which these sovereign guides of youth so delight to wrap themselves, if
the care of government must, after all, devolve on their shoulders; when
a course of injurious calumnies shall have disabled their subordinate
ministers from taking their place, and bearing, as at present they most
commonly do, the full weight of it?
But to return to the _Grace_ itself, from which this reviler’s treatment
of the whole body of the University has a little diverted me. He labours
much, as I observed, to impress on the reader’s mind the opinion of
the frightful consequences with which a right of Appeal in all cases
would be attended; and to give a sanction to these fears, he alledges
the authority of _the learned gentlemen of the long robe_, who, it
seems, have pointed out the absurdity of such a practice, and the
pernicious effects of it[113]. But what is all this tragical declamation
to the purpose? Where is the sense, as I before asked, in supposing
the University Senate would concur in every attempt of its idle and
disorderly members to get themselves relieved from a deserved and
statutable censure? Or, how should those _learned gentlemen_, whose robe
he still hangs upon, be better able to judge of the expediency of this
practice than the Senate of the University itself? Indeed he thinks the
absurdity of this right of calling the supreme officer of the University
to account for his judicial determinations the more glaring, in as
much as, even in private colleges, _no act of discipline of the Head_,
he fancies, _was ever liable to be reversed by any of the subordinate
members_: nay, he is persuaded that his good friend, the Fellow of a
College, for whose instruction all this is designed, _were he even
authorized to new model the Statutes of his own College, would not chuse
to vest in his brethren the Fellows such a power of controuling the acts
of the Master_[114]. What the Colleges are which are here glanced at, and
which leave the Master full power to exercise every act of discipline
without controul, the _Inquirer_ himself best knows. For my part, I have
always understood that _acts of censure_ in all private societies, such
acts I mean as are of consequence to the reputation and interests of
their members, are not left to the caprice of the Master, but are passed
by the joint authority and concurrence of the Society itself; unless,
perhaps, I am to except one _little_ College, in which, it is said, the
Master claims to himself this sovereign and uncontroulable authority.
But, then, this is no fair precedent. For the members of the College have
nothing to apprehend from a licentious and wanton abuse of _such power_;
as well on account of the known candour, equity, and moderation of the
worthy president of that society, as for that a few exertions of it would
leave him no subjects to preside over.
But, whatever may be the case of this _one_ foundation, the despotic
form is not, I believe, statutable in any other. Nay, the authority of
the fellows to controul the acts of their Head in some Colleges, I have
been told, goes so far, that they are even impowered, in case of an
_utter inability_ (such as may arise from extreme folly, dotage, or the
like) _to govern prudently_, to remove him forthwith from his place. And
surely this must be deemed a wise and sober institution; at least, were I
_authorized to new model the Statutes of any College which wanted it, it
is such an one as I should certainly chuse to vest in it_.
But there is one circumstance in the _Grace_ which, it seems, provokes
his more _especial dislike_. And, unluckily, it is one which any other,
who considered the tenor of it, would be likely enough more especially
to approve; as shewing the singular moderation and good temper of the
persons who proposed the _Grace_, and as studiously contrived to prevent
all imaginable abuses of it. It is, that _the right of undergraduates
to appeal should be exercised no otherwise than by the interposition
of their tutors_[115]. A provision of great prudence; and which the
proposers of the _Grace_, in their concern to support authority and
just government, purposely made to obviate the only abuses that could
be possibly apprehended from it. For, if the wanton exercise of the
_right to appeal_ were to be feared from any quarter, it certainly must
be from the inferior members; whose youth and inexperience might make
them forward to appeal from any censure, however reasonable, and of
which, therefore, the _tutor_ of the person censured, who is under all
the ties of interest and duty to act discreetly and warily, is left to
judge. Yet this provision, wise and moderate as it is, _appears to the
Inquirer extremely strange; because, by means of such a limitation, a
tutor might prevent his pupil from appealing in any case, though the
supreme Magistrate of the University would be empowered to prevent it
in none_. As if the judge who passed the sentence, and was therefore
concerned to support it, were as fit to determine, whether the party
aggrieved should have the liberty to appeal from it, as an indifferent
person who had no concern at all in it. Nay, the tutor, as was observed,
would be obliged, by a regard to his own authority and character, and
(I would add, but that the _Inquirer_ is pleased to make no account of
that _obligation_[116]) by the _religion of an oath_, to proceed with all
imaginable caution in advising him to such a step.