1837. DOWNING was contrary to the provisions of the charter that any clerical fellows should be elected, until after the buildings necessary for the college should have been erected; and that the nomination of the first clerical fellow was by the Charter reserved to the Crown, to be exercised when the buildings should be completed. It also submitted that, according to the provisions of the Charter, no vacancy in a fellowship, created and constituted as a lay fellowship, could be duly filled up by a clerical fellow; but that, according to the Charter, a vacancy in a lay fellowship ought to be filled up by a layman; and further, that under the provisions of the Charter, a clerical fellow was not, under any circumstances, eligible to the office of Master. Upon these grounds the petitioner submitted that the election of the Rev. Thomas Worstey to be Master of the college was void. The petition prayed that his Majesty, as Visitor, would make a declaration accordingly ; and would direct the electors to proceed to make choice of some other person to be the Master, from amongst the professors and lay fellows, qualified to be Master according to the provisions of the Charter; or if, under the circumstances, the nomination to the mastership devolved on the Crown, then that his Majesty would forthwith nominate to the office. The matter was referred, in the usual course, to the Lord Chancellor, who was assisted, on the hearing of the petition, by the Master of the Rolls and the ViceChancellor. The Attorney-General, Mr. Pemberton, Mr. Knight, Mr. Loftus Lowndes, and Mr. Romilly, in support of the petition. The The Solicitor-General, Sir W. W. Follett, and Mr. Jacob, contrà. The case made on behalf of the petitioner resolved itself chiefly into two points; first that Mr. Worsley was ineligible, and ought not to have been appointed to the office of Master, by reason of his being in holy orders: and secondly, that Mr. Worsley had never been de jure a fellow of the college, and upon that ground also was not a person qualified to be appointed Master. Upon the first point it was insisted that the whole scope and tenor of the Charter, Scheme, and Statutes distinctly recognized the office of Master as a lay, and not as a clerical, appointment; and that, upon the fair and reasonable construction of those instruments, the election of a Master who was a clergyman, was, by a necessary implication, excluded, under any circumstances; or was, at any rate, excluded, so long as the buildings remained incomplete. Upon the second point it was contended that, inasmuch as the first nomination of the whole sixteen fellows, clerical as well as lay, of whom the establishment, when completed, was to consist, was expressly vested in the Crown, and the first three fellows nominated by the Crown were lay fellows, it was not competent to the college, when vacancies occurred, and it was in fact a fraud upon the rights of the Crown, to alter the original character of those fellowships; by substituting a new description of fellows, having totally distinct rights and duties, and a more valuable and permanent interest in their offices, in the place of the fellows, whom, having regard to the then state and exigencies of the college, the Crown had thought proper to appoint. And it was further submitted that, at all events, the college were not entitled to take 1837. DOWNING 1837. DOWNING take such a course, or to proceed to the election of any clerical fellows until the college buildings should have been finished. The argument, as well in support of these several propositions, as in opposition to them, consisted principally of a minute and critical commentary on the effect of the different clauses and provisions contained in the Charter and Statutes of the college. For the petition, The King v. Stokes (a) was relied upon to shew that the original defect of title in Mr. Worsley to a fellowship was not cured by the period during which it had been subsequently permitted to remain unchallenged, so as to render him eventually eligible, as a good fellow, to the office of Master. Upon the effect of lapse of time in curing the supposed defect in Mr. Worsley's title as fellow, and in inducing courts of justice and Visitors to abstain from exercising a discretionary jurisdiction in such a manner as would disturb a state of things which had been long acquiesced in, the following authorities were cited, on behalf of the respondent; - Comyns' Digest (b), The King v. Dickin(c), The King v. Peacock (d), The King v. Clarke (e), The King v. Trevenen (g), The King v. Benney (h), The King v. Parkyn (i), The Attorney-General v. Hartley (k), In the Matter of Queen's College Cambridge. (1) (a) 2 M. & Sel. 71. (c) 4 T. R. 282. (d) 4 T. R. 684. (e) 1 East, 58. (g) 2 B. & Ald. 339. The The VICE-CHANCELLOR. It appears, from the recital of the will of the founder, Sir George Downing, in the commençement of the Charter, that his intention was that his trustees should purchase the inheritance of some piece of ground within the town of Cambridge, proper and convenient for the erecting and building a college, and thereon should erect and build all such houses, edifices, and buildings as should be fit and requisite for that purpose; which college should be called by the name of Downing College, and that a Charter royal should be sued for and obtained, for the founding such college, and incorporating a body corporate, by that name, in and within the University of Cambridge, which college should consist of such head or governor, and of such fellows, scholars, members, and other persons for the time. being, and should be maintained, governed, and ordered by such laws, rules, and orders, and in such manner, and wherein should be professed and taught such useful learning, as his trustees, by and with the consent and approbation of the Archbishops of Canterbury and York, and the Masters of St. John's College and Clare Hall, in being at the time of founding the said college, should direct, prescribe, and appoint. It is observable that the founder's will gives no direction who should be head or governor of the college, or how he should be chosen or appointed; or who should be fellows, or what useful learning should be taught in the new college. Every direction upon these points was, by the express words of the will, to be given by the trustees, with the consent and approbation of the two Archbishops and the Masters of St. John's and Clare, and was, by implication, especially to be given with the consent of the King, without whose consent no charter could be obtained. VOL. II. Y y The 1837. DOWNING Case, Aug. 11. 1837. DOWNING COLLEGE Case. The general nature of the college and its constitution must therefore be determined, not by the founder's will itself, but by what arose out of the founder's will. Sir George Downing died in the year 1749. After his death a suit was commenced in the High Court of Chancery; and a decree was pronounced, establishing the will, and directing the trusts of it to be carried into execution, in case his Majesty should be pleased to grant his royal Charter, and his royal licence to the college, to take in mortmain the tenements devised; and the heirs at law, who seem to have been substituted for the trustees, were to be at liberty to apply to his Majesty for that purpose. In pursuance of the decree, certain lands were purchased as a site for the college, and were conveyed to the heirs at law of the testator. The heirs at law prepared and submitted to the two Archbishops and the Masters of St. John's College and Clare Hall, a Scheme for the foundation of the college, which Scheme was approved of by the Lord Chancellor; and then his Majesty George the Third granted a Charter, dated the 22d day of September, in the fortieth year of his reign. The Charter directed that the college should be regulated and governed according to Statutes to be made and framed by the heirs at law of Sir George Downing, by and with the consent and approbation of the two Archbishops and the Masters of St. John's College and Clare Hall. And, accordingly, certain Statutes were made, dated the 23d of July 1805; and the questions upon which my Lord Chancellor has requested that I would state my opinion, can only be solved by considering the Scheme, the Charter, and the Statutes; for, the college is in a state so imperfect, and the time which has elapsed since its first institution is so short, that we cannot resort to usage in order to determine those questions. By |