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.