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 20s. with an addition of 2s. 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.
The subsequent practice till of late years cannot now be known, either 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.