The dispute concerning Appeals, which at present engages the attention of the University of Cambridge, is apparently of such importance to the peace and welfare of that great body; that it could not but be expected from any one, who proposed to deliver his thoughts upon it to the world, that he should at least have taken care to inform himself perfectly of the merits of the question, before he presumed, in so public a manner, to concern himself in it.
It must, therefore, surprize the reader of a late Inquiry into the Right of Appeal, &c. to find, that the writer of it, whoever he be (for as he chuses to conceal name, I shall not take the liberty to conjecture of it) should adventure to treat a matter of this consequence, without any distinct knowledge of the state of the case itself, or indeed without appearing to possess one single qualification, which is required to do justice to it. For the question, discussed, is of such a nature, that it cannot be determined, nor indeed tolerably treated by any one, who hath not a pretty exact knowledge of the History, Customs, and Statutes, of the University; and who is not, besides, at least competently skilled in the Civil and Ecclesiastical Laws. And yet this writer, as though nothing else was required of him, besides a confident face, and willing mind, boldly undertakes to decide upon it, under a perfect incapacity in all these respects. Instead of an accurate acquaintance with the Practice and Usages of the University, it appears he had no further knowledge of them, than what a few hasty and ill-considered extracts from the Register had supplied him with. So far is he from being conversant in the Statutes of the University, that he blunders in every attempt to explain the very easiest of them. And, as to his Law, he has only skimmed the surface of it for a few frothy terms, without giving the least proof of his being possessed, in any degree, of the sense and substance of it. This utter inability to discuss a point, he had voluntarily undertaken, must be thought the more extraordinary in a person, who, throughout the whole, assumes an air of authority; and though he professes modestly in his title page to enquire, yet, in effect, prescribes and dictates from one end of his pamphlet to the other. The tone of this disputer, whatever becomes of his reasoning, is all along decisive; and he does and must insist, as if he thought his very word of force enough to bear down all the reason and argument, that could be opposed to him.
Indeed the superior airs he gives himself, on all occasions, are not without their use. For persons unacquainted, as the generality of his readers must needs be, with the question itself, are readily enough inclined to believe, that a person so assured, cannot be so entirely ignorant of the merits of it, as in fact he is. And they who know better, cannot but apprehend somewhat from the assumed authority of a writer, who talks so big; however his total insufficiency might, in other respects, provoke their contempt. For my own part, I could not help considering him as a person of eminent dignity in the University; whose rank in it might give him a right to dictate to the school-boys of the place; for so he gives us to understand, he conceives of the Members of the University Senate[97]. In pursuing my conjectures further about him, I was sometimes inclined to think, from the very reverend regard he every where professeth for the Heads of colleges, that he must, himself, be one of that illustrious body and was led to excuse the superiority of his manner from reflecting, that a habit of governing absolutely in his own college (for so he thinks Heads of colleges have a right to govern[98]) had insensibly inspired that despotic style and language, which were so disgustful, and had looked so ungracefully, in any other. But then, again, my profound respect and esteem of that venerable order, and my actual knowledge of the great talents, with which these reverend personages so worthily preside in their high places, would not suffer me to imagine, that any of their number could be so unqualified to treat a matter of a merely academical nature, as this writer had shewn himself to be; and especially, as it immediately concerned their own authority, which they so assiduously study, and so perfectly understand. On the whole, I was forced to dismiss this conjecture, as having no reasonable foundation to rest upon, and, in perfect civility and good manners towards a set of men, for whom I have so sincere an honour, could only conclude him, at last, to be some weak and shallow pedant; unknown and uncountenanced by them; whose vanity had done him an ill turn; and thrust him unadvisedly on a weighty office, which he had no warrant, as he had no abilities, to discharge.
Under this opinion, both of the writer and his performance, which, as the reader sees, I took not up upon slight grounds, it was not likely I should ever think of giving myself the least trouble about either; much less that I should believe it worth the while to undertake in form, the examination of a foolish pamphlet, which indeed, I had hardly patience enough to peruse. The truth is, it had lain for ever unnoticed by me among the rubbish, which of late hath so oppressed the publick, on the subject of our academical disputes; or, at least, had been left for some future Academic to discourse of, at his leisure; had it not been for the Opinions of two truly learned and respectable Lawyers; which the Inquirer had thought fit to intersperse, as a little needful seasoning, in his insipid performance; and which, indeed, give it all the real weight and authority, it can possibly carry with it to men of sense.
The Inquirer, as supposing these gentlemen to afford some countenance to the good cause, he is maintaining, thinks fit, on the mention of their names, to drop his crest a little; and, in a lower tone of voice than usual, affects to treat them even with some appearance of respect. Yet this he does in so aukward a manner, as shews it was not usual or familiar to him, to descend to such submissions; for, as the height of that civility, which he was willing to express towards them, he chuses to distinguish them only by the title of the Gentlemen of the Long Robe. What impression the idea of a sweeping train may possibly make on the phantasy of this writer, I know not; but I, who am more concerned about the heads than the tails of these learned gentlemen, should have thought it an apter compliment to have turned our attention the other way. Unless, perhaps, he was secretly conscious, that by a little unfair dealing in the proposal of the Queries, in relation to which their opinions were asked, their Answers themselves did no real honour to the more essential part of a great lawyer, and so far willing to pin the credit of them intirely on their gowns. In plain truth this was the very case, as will appear from the Queries themselves, and the Answers; together with a few observations, which I shall beg leave to subjoin to them.
“After stating the 42d and 48th of Queen Elizabeth’s Statues, some circumstances of Mr. A—’s behaviour, and that an appeal of the same nature with his was not quite unprecedented, the two following Queries were put, [Inq. p. 28.]
“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.
“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.
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.
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.
The University of Cambridge was possessed of a jurisdiction over its own members, as clerici, many years before any was granted to it by charter from the Crown. This jurisdiction, being ecclesiastical, seems to have been originally derived from the Bishop of the diocese. The causes cognisable by the University were chiefly causes of correction; the rule of proceeding in the Court was the ecclesiastical law, and Statutes of their own making, consonant to that law. The censures inflicted upon offenders were either ecclesiastical, viz. excommunication, suspension, &c.[101] or such as were appointed by the Statues for particular crimes; and the names of places, offices, pleaders, the same as are used in Ecclesiastical Courts to this day.
This jurisdiction was not usually exercised by the University in its collective capacity. But a particular officer was empowered to exercise it, under the name of Chancellor; who as official[102], acted by an authority derived to him from the University, was accountable to them for the use of it, and liable to have his acts annulled at their discretion; every person who thought himself aggrieved by the Chancellor being at liberty to apply to the Body for redress.
When an Appeal was brought before the University, they usually authorized Delegates to hear and judge it, as was agreeable to the practice in other Ecclesiastical Courts.
The jurisdiction here described was not originally independent; for no academical decision appears to have been final. An Appeal always lay from the judgement of the University by their Delegates to the Bishop of the diocese, till the University was exempted from his authority, and their jurisdiction made final by Royal Charters, confirmed by Act of Parliament.
In the reign of Henry III. attempts were made to carry Appeals directly from the Chancellor to the Bishop, and so to pass over the Appeal to the University, which ought to have been an intermediate step. But Hugh de Balsam, Bishop of Ely (the founder of Peter-House), by a rescript, dated Dec. 1264, entirely frustrated all such attempts.
Hitherto, the Appeals to the University had been from causes of correction and censure. The University was not as yet possessed of jurisdiction in civil causes. Scholars were first allowed to implead the burgesses and other laics of the town of Cambridge, in all kinds of personal actions, before the Chancellor of the University, anno 33 Ed. I. From that time, the University began to acquire a civil jurisdiction, which, by degrees, was inlarged and established by grants from the Crown in succeeding reigns. And now, in consequence of this jurisdictions, Appeals were extended from criminal to civil causes. Accordingly, in a rescript of Simon de Montacute, Bishop of Ely, which bears date 16 cal. April, anno 1341, there is express mention of Appeals to the University in causes of both kinds. For the design of this rescript is to commission the University to determine finally in all civil causes, without a further Appeal to his Court; and to prevent frivolous and vexatious Appeals from the University to him in criminal causes, by laying the Appellant under the obligation of an oath.
This addition of civil power did by no means abrogate or lessen the spiritual. We find, in the reign of Hen. VI. that all sorts of ecclesiastical authority were adjudged to belong to the University, by the Prior of Barnwell, the Pope’s delegate; and it was then made appear, that all these branches of power had both been claimed and exercised time out of mind. It is certain, the probate of wills hath at all times belonged, and still belongs, to the University. The power of excommunication was exercised as late as the reign of Hen. VIII. and the power of absolution is exercised at this day. This ceremony is constantly performed on the concluding day of each term. And here, to observe it by the way, gentle Reader, a goodly and reverend spectacle it is, to behold the spiritual Head of our University spreading his paternal hands, like another Pope, over his erring and misguided flock, who, in all humility, receive his ghostly absolution on their knees.
It is true, the new objects of litigation, introduced by the royal charters, occasioned an alteration in the Law of the University. For the ecclesiastical laws did not suffice for the decision of controversies about civil rights, particularly contracts between scholars and townsmen, and breaches of the peace. From the time, therefore, that these new causes came before the Chancellor, to the reign of Edward VI. his Court was directed, as our Spiritual Courts are now, by a mixed kind of law, made up of canon and civil law[103]. Yet this must not be understood without restriction. For the University, like other corporations, had all along a power of making local Statutes; and not unfrequently particular usages acquired the force of Statutes, from long continuance.
But whatever changes were made, either by express Statute, or in consequence of a more extended jurisdiction, the practice of appealing from the Chancellor to the University still continued; only, as was observed, with this difference, that it now was allowed in civil, as before it had been in criminal causes.
The right of appeal which then subsisted received a fresh confirmation from the Statutes made by the University itself. In these Statutes the right is not only referred to and presupposed, but directions are given in regard to the manner of exercising it[104]; which directions, till cancelled by succeeding Statutes, established the right as effectually as if it had been originally introduced by Statute. The times when many of these Statutes were made cannot be fixed; but it is certain they were collected and transcribed into the Proctors’ books between the year 1490 and 1500.
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.
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.
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.
In every view, then, this objection to the Grace must appear very unaccountable. And the rather, when the reader understands that this clause was, with the greater readiness and pleasure, inserted into it, as this Vice-chancellor himself, whose goodness and candour require no encomiums of mine, had intimated, and even declared, that a provision of this kind was all the restriction upon the liberty of appealing which he wished to see made to it. For this excellent person was so much convinced of the propriety and expediency of this claim in general, that he very frankly professed his approbation of it, and only wanted to secure his authority, where indeed the only danger lay, from a torrent of Appeals, which, as he apprehended, might pour in upon him from the younger sort. So that, I think, we shall hear no more of this objection; and I am even not without the fond hopes, that, after this information, the Inquirer himself, whatever displeasure he might conceive at this part of the Grace before, will now grow into good humour with it.
After all, one cannot but suspect, that the Inquirer must have some better reason for his strong antipathy to this Grace than any that has yet appeared. The violent heat it puts him into, whenever he touches upon it, demonstrates, there must still be something at the bottom of this matter, which is the object of just offence. In looking narrowly for it, I found it at last, half smothered under a very shrewd and indirect insinuation, which I shall bring to light, after having presented the reader with his own words:
“I see not how a Grace of this kind could be offered, consistently with the Resolution said to have been taken at one of your first meetings, to assert the right of Appeal in such a manner as was warranted by the Statutes of the University: Nor am I less able to reconcile it with those professions of deference and respect, which at the same time were thought proper to be made for our great and illustrious Chancellor. No person would receive a greater pleasure than myself from seeing all the members of the University, however divided in other points, agreed in entertaining the highest sentiments of regard and veneration for him; but I confess, that this is a pleasure I am not very likely to have; till one set of men shall be pleased to give clearer and less questionable testimonies of this, than by opposing every useful regulation he recommended, and endeavouring to lessen and curtail an authority, which is only vested in the Vice-chancellor as his representative and locum-tenens[117].”
Here, then, we have all the venom of his heart injected into one malignant paragraph; which, under the gilding of a compliment, is to do its office without offence. And yet, it is plain enough what he would insinuate. It is neither more nor less than that the advocates for this right of Appeal are an unquiet, factious set of persons, bent on opposing all measures that tend to promote the good of the University; and, to say all in one word, listed in a vile cabal to dishonour, revile, and abuse their Chancellor himself. The gentlemen against whom all this is levelled must, I am persuaded, hold such senseless and licentious calumnies in such contempt, that I should not merit their thanks for attempting seriously to confute them. And yet I cannot help saying for them, that the Resolution hinted at in this place was drawn up with so respectful a regard to the authority of the Statues, and to the honour and dignity of our great Chancellor, as, one should think, might stop the mouth of Malice itself. Yet all this can be overlooked by our candid Inquirer. And on what pretence? Why, because some of those persons, who came to such a Resolution, had different sentiments, it seems, of the expediency of the late regulations from this writer; and because this claim of Appeals tends to lessen the authority of the Vice-chancellor. For this he modestly calls opposing the Chancellor, and curtailing his power.
Well, then, the crime is now out; and, to say the truth, if it be a crime, the University is deeply involved in it. For, when the late regulations were first proposed to the consideration of the Senate, a considerable majority were clearly of the same opinion as these culprits: and, with regard to the present claim, the University may be almost said to be unanimous in supporting it. But what in the mean time must be this scribbler’s sentiments of that most noble and illustrious person, for whose honour he here professes himself concerned; and of whom, it seems, he can think so unworthily, as to believe, that a liberty in judging concerning the expediency of some academical laws, which he had the goodness to propose to them, should give offence to one who has no other aim than to serve the University in a manner the most agreeable to their best judgments; and which, I am satisfied, they used the more freely, on a full persuasion that such liberty could not be taken as an instance of disrespect to him. This I should not doubt to call, of itself, a sufficient confutation of the idle calumny. But it comes with the worst grace imaginable from a declared enemy to the right of Appeals; who must know, if he be at all acquainted with what passed at that time, that the principal reason, which induced the University to oppose the regulations, was the just apprehension they were under, of an encroachment on this very right; not indeed from the Chancellor, who had no such intention, nor even any knowledge of it, but from certain forward directors in that affair, who gave the clearest and least questionable proofs of their designing to make the new laws the instruments of their own tyranny in this respect. So that, if any offence was given by the University on that occasion, the blame of it should fall elsewhere, and not on those on whom it is here so invidiously cast; persons, who on every occasion have testified the sincerest honour for their Chancellor, who venerate him as the protector and patron of the University, and would humbly co-operate with him to the attainment of those good ends, which it is his sole endeavour to promote.
But what follows, if possible, is still worse. A second charge against the University is, that they are endeavouring to lessen and curtail an authority, which is only vested in the Vice-chancellor, as his representative and locum tenens. What the collective body would return to this accusation, I pretend not to say; I have no commission to answer in their name. But, for myself, and those whose thoughts I have the opportunity of knowing on this matter, I answer boldly thus: That we are not in the least apprehensive of giving offence to this great person, who is more solicitous for the maintenance of the just rights of the University than any other member of it, by any respectful and moderate endeavours to assert our own reasonable privileges; that we are well assured, he approves, and is ready to countenance, all such honest endeavours; and that, lastly and chiefly, we are therefore earnest in our endeavours to lessen an authority (if that must be called lessening which is but preventing its being usurped), because it is vested in, and must be constantly exercised by his representative. For, whatever liberties he may presume to take with the assertors of this claim, I will venture to assure him, that, were unappealable power itself to be exercised only by our Chancellor, who is too high in rank, and too noble in nature, to be under any temptations of abusing it, though we might still think the authority unreasonable and dangerous in itself, we should esteem ourselves in perfect security under him, and could safely trust the administration of it to his care. But, as the person who by our Constitution is vested with it, is and must be a very imperfect representative of the Chancellor, in this as well as other respects, we hope to be forgiven by every equitable judge, if we are not forward to compliment ourselves out of our privileges; and have little inclination to lodge our liberties in less worthy hands.
After all, one would be glad to know a little more explicitly of this writer, since he professes himself so little satisfied with the conduct of the University, what those clearer and less questionable testimonies of their regard for the Chancellor are which he so loudly calls for, and the want of which, it seems, hath made his life so distasteful and uneasy to him. And, I think, I durst almost take upon me to guess at them. No doubt, they are such as these: “That the University Senate would be pleased to make no distinction in any case between the supreme Magistrate and his representative, nay, and his representative’s representatives”—“That they would courteously give that honour to his locum tenens or locum tenentes, without perhaps one single merit to justify such a claim, which the illustrious rank and dignity of their Chancellor himself, his eminent virtues, and services to the University, all conspire to challenge and demand from them:”—In a word, “that the University would offer themselves as willing instruments to carry into execution every paltry project, every low and selfish design, which little men in office are apt to form for themselves; and all this under the notion of its being a tribute of respect to the supreme Magistrate, and an instance of their veneration for him.”
Such as these, I can readily believe, are the testimonies of respect the Inquirer wishes to see paid to the Chancellor, and which, no doubt, would administer that sincere pleasure, which at present he divines (and, I trust, truly) he is not very likely to have. But does he think the Chancellor is to be abused by this thin pretence of respect? that true greatness is to be taken by this mere outside of an officious and false compliment? On the other hand, I dare be confident that nothing is more disgusting to him than such sycophancy; and that he is so far from allowing this conduct in the Inquirer, that he even disdains to have his cause and dignity so defended. “For, though (to use my Lord Bacon’s words on a like occasion) I observe in his book many glosses, whereby the man would insinuate himself into his favour, yet I find it to be ordinary, that many pressing and fawning persons do misconjecture of the humour of men in authority; and many times seek to gratify them with that which they most dislike.”
But the virulence of these malignant calumnies hath held me on a very unnecessary argument too long: I return again to the Inquirer, to whom I have but one word or two more to say, and shall then take my final leave of him.
You have talked, Sir, very importantly of the pernicious consequences of a right of Appeal in the University. The reasons on which you would ground these so anxious fears have been examined, and exposed, as they deserve. But, granting that some slight, nay, that some considerable inconveniencies might arise from it; were this any good argument, think you, against the subsistence of such a right? What would become of all the liberties which just government leaves us, nay, of the blessings and privileges which indulgent nature bestows upon us, if the accidental and occasional abuse of them were thought a reason sufficient to extort them out of our hands? Should you not have considered that a right of Appeal is one of the most important and valuable rights which mankind enjoy in society, and which, indeed, is almost essential to the very being of it? And would you have this sacred claim, patronam illam et vindicem libertatis, as a great ancient calls it, rudely and inhumanly wrested from us, on the frivolous pretence of some possible or even probable abuse? Had you been as conversant in the civil law as an Inquirer into such a question should have been, you might have found cause to entertain very different opinions of it. For the great masters in that science were as well aware as you can be, that such a right was liable to some abuse; but which of them ever thought this consideration of force enough to decry or abolish it? On the other hand, they acknowledge the inconvenience, yet assert and vindicate the use. Give me leave to refer you to one passage (you will find L. 1. D. De Appell.), very express to this purpose. “Appellandi usus quam sit frequens quamque NECESSARIUS, nemo est qui nesciat: quippe cum iniquitatem judicantium vel imperitiam re corrigat; licet nonnunquam bene latas sententias in pejus reformet, neque enim utique melius pronuntiat, qui novissimus sententiam laturus est.” What will you say, now, to this? That Ulpian, who affirmed it, was a factious, turbulent boy? one of those whom you disgrace under the name of the warm, assertors of independency, and who bear with indignation the thought of having any part of their conduct judicially animadverted upon? I presume to think you would hardly venture on this assertion. Nay, I please myself with hoping, that, when you have well considered this so sage and venerable sentence of an ancient Lawyer, you will even be disposed to abate of your vehemence in declaiming against such as go on his principles at this day.