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.