“Qu. I. Whether, in this case, the Vice-Chancellor and his assessors have not acted solely under the 42d Statute; de Cancellarii Officio; and whether any appeal can lie against the suspension of A. by virtue of that Statute? or whether this case must be deemed one of the causæ forenses, and of consequence subject to an appeal by virtue of the 48th Statute, de Causis Forensibus?
“Qu. II. Whether, if in the case above stated, the said A— hath a right to appeal from his suspension; the same right of appeal will not follow to every delinquent scholar, who shall be punished a trifling mulct or piece of exercise by the Vice-Chancellor?”
After stating, says he, the 42d and 48th Statutes, &c. Whence it appears, that no other evidence was laid before the Lawyers, with regard to the right of appeals, than certain extracts from Q. Elizabeth’s Statutes: Which was not the most certain method of obtaining an accurate decision. For, though the Queen’s Statutes alone, as we apprehend, afford sufficient evidence of our right, yet they are by no means, as will presently be seen, the whole evidence.
But, waving this consideration, let us come directly to the Queries themselves. The first is a master-piece in its kind, and may be of use to instruct future querists, how to propose their doubts in the most convenient manner.
For instead of asking the Lawyers, whether the powers, given in the 42d 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.