Dr. Bentley's are exceeding strong, as Case. Argument against a peremptory Mandamus. well as the confirmation of all their liberties and privileges. But it hath been objected, that it is not enough to say, Dr. Bentley was suspended according to the custom of the university, but there ought to be a custom particularly set out for that purpose: to which he answered, that in proceedings in inferior courts, it is always allowed to say, they were according to the custom of the court. As to the objection that suspension from the academical degrees is not a proper punishment for a contempt to a court, he answered, that by the rules of the civil law it is the only proper punishment. And it is like an outlawry in the temporal courts; it is to compel the party to come in and answer; and upon his doing that, the suspension is taken off. And these degrees cannot properly be called freeholds, nor civil temporal rights: they were originally only in nature of licences to professors in several professorships, and are now titles of distinction and precedence. The power of granting degrees flows from the crown. If the crown erects an university, the power of conferring degrees is incident to the grant. Some old degrees the university hath abrogated, some new ones they have erected; and they are taken notice of in acts of parliament for collateral purposes; and though the acts have annexed collateral privileges to them, that will not alter the nature of them, nor take away the power the university had over them before. It doth not follow, that if temporal rights are annexed to these degrees, the university would be deprived of their power of degrading. A bishop hath a freehold in his bishopric, and a right to sit and vote in parliament; yet he may be deprived by his metropolitan. And if courts have a jurisdiction and power to proceed by rules different from the common law, this court will not examine into the regularity of their proceedings on a mandamus. And therefore if a mandamus is granted to restore a fellow of a college, if they return a visitor, though his sentence hath been irregular, it is not examinable here. So if the Ecclesiastical Court excommunicate a person without a citation, this court will not grant a prohibition, but the party must appeal. When a prohibition is granted to the vice-chancellor's court, for not granting a copy of a libel, that is by reason of the express [454] words of an act of parliament. And if an act of parliament should enact, that no certiorari should lie, to remove convictions of justices of the peace for such and such offences, though the justices should convict the party without summoning him, no certiorari would be granted by this court, to remove such a conviction. As to the objection that by this means the vicechancellor's court would have an uncontrolable jurisdiction without appeal, and that it is unreasonable that a man should be concluded by the first determination, he answered, that an appeal lay from the vice-chancellor's court to the congregation. And then as to the degradation by the congregation, he said Case. that the whole proceeding against Dr. Bentley ought to be Dr. Bentley's considered as the act of the court of the university. For by the letters patent the grant is to the chancellor, masters and scholars, that they, to wit, the chancellor, masters and scholars, which is the whole body of the university, and their loca tenentes, should have cognizance; and therefore the congregation are to be considered as the judges of the court, and the vicechancellor only as their official; that the court usually held before the vice-chancellor, might be held before the congregation; that by the civil law, where there is a commissary, he hath only part of the jurisdiction, the rest remains in the ordinary, and that the ordinary may proceed upon a report made by his official. So there the congregation might proceed upon the report of the vice-chancellor (which in this case he made to them). As to the objection, which he said had been made, that if the degradation stood, Dr. Bentley would be deprived of his degrees, without ever being heard, without prospect of being restored, he answered that this was but in nature of a process to compel Dr. Bentley to appear; and that is the general rule of all courts, and of all laws, that when the party comes and clears his contempt, he shall be restored: that this privilege of suspending degrees, and degrading, was agreeable to the privileges which all other universities enjoyed; and that it was necessary that universities should have a summary method of proceeding. For which reasons he insisted, the return was good, and that no peremptory mandamus ought to issue. a peremptory Mr. Reeve, by way of reply, insisted, that though great Reply for stress had been laid upon the allegations in the return in its Mandamus. several parts, that the facts were done according to the custom of the university, this was not sufficient to make the return good. For the grant in the letters patent of Queen Elizabeth [455] is, that the university should hold a court according to their laws and customs before that time used; therefore if they have a method of proceeding by the civil law, which hath been always used, that ought to have been averred specially; and without it, this court cannot take notice of it under that general allegation, but must intend the proceedings are according to the rules of the common law. It is true, in cases of inferior courts, such an allegation is enough, because their proceedings are agreeable to the common law; but if the rules of the common law are to be excluded, such a custom must be specially set out. And as to the objection, that the vice-chancellor's court is part of the congregation, and that the congregation is held before the whole body, the first is not alleged so to be in the return; and as to the last, the congregation consists of the chancellor or vice-chancellor, or his locum tenens, and the regents and non-regents, which is not the whole body of the university. Br. Bentley's Peremptory Mandamus awarded. Dr. Walker's On the 7th of February, 1723, the Lord Chief Justice Pratt delivered the opinion of the court, that the return was ill; because since it is not shown in the return, that the proceedings in the vice-chancellor's court or the congregation are according to the rules of the civil law, they must be intended to be agreeable to the rules of the common law; and if so, it not appearing the party hath any redress by applying to another court, this court will relieve him, if he hath been proceeded against, and degraded, without being heard, which is contrary to natural justice. This case therefore will fall under the rules for removing of members of corporations; which cannot be done without summoning the party, and giving him an opportunity of being heard. The cases determined upon that head are so numerous, and the rule so well settled and known, that it cannot now be disputed; for want of doing which, the suspension or degradation cannot be supported. And therefore a peremptory mandamus was granted (v). A mandamus lies to compel the warden of a college to affix the common seal of the college to an answer of the fellows, &c. in chancery, contrary to his own separate answer put in (w); and it has been granted to the keeper of the common seal of the University of Cambridge, commanding him to affix it to the instrument which appointed him their high steward (x).— ED.1 : H., 9 Geo. 2, Dr. Walker's case (y). A mandamus was directed to Dr. Richard Walker, vice-master of Trinity College in Cambridge, reciting the statutes of the college, and that thereby it was ordained, that in case the master of the said college should at any time be examined before the visitor, the Bishop of Ely, and be lawfully convicted before the said visitor of dilapidation of the goods of the college, or violation of the [ 456] statutes, he should without delay be deprived of the office of master by the vice-master of the said college, and that without appeal and that a cause of office was lately depending before Thomas Lord Bishop of Ely, then and still visitor, at the promotion of Robert Jackson, clerk, one of the fellows of the said college, against Dr. Richard Bentley, master of the said college, for dilapidation of the goods of the said college, and violation of the statutes, wherein several articles were exhibited for that purpose, and that a prohibition, and afterwards a consultation, was awarded upon the said articles to the said Bishop of Ely, the visitor and that the said bishop, having considered the evidence on both sides, did adjudge, as visitor aforesaid, that the said Dr. Richard Bentley was guilty of dilapidation, and violation of the statutes, and thereby incurred the penalty of deprivation of his office; which said sentence is still in force; (v) [S. C. 8 Mod. 148; Fortesc. 282; Str. 557; 6 T. R. 104.] (w) [Rex v. Windham, Cowp. 377.] (x) [Rex v. Cambridge University, 3 Burr. 1648; 1 W. Bl. 51.] (y) Cas. Hardwicke, 212. i Case. and that it is the duty of the said Richard Walker, as vice- Dr. Walker's master, to execute the said sentence, by depriving the said Dr. Richard Bentley of his office of master; and that the said Dr. Walker, having had due notice of the sentence, and being duly required to deprive him, neglects and refuses so to do: the writ therefore commands him without delay to deprive the said Dr. Bentley of the said office of master of the said college, or to show cause to the contrary. Dr. Walker returns, that the statute appointing the Bishop of Ely visitor is void; and that the college being of royal foundation, the king only is visitor. By Lord Hardwicke, Chief Justice: "There are two things which seem to be aimed at by this writ and return, which I do not see that the court can do; first, to aid the jurisdiction of the Bishop of Ely as visitor; secondly, to determine that the king is general visitor. But the writ in this case is felo de se; for it suggests that the bishop is visitor of the college, and if so, he may visit, and remove, or punish the vice-master, and we could do no more; and on the contrary, if the king be visitor, as the return suggests, you may apply to the king for him to visit." And on the last day of the term the court quashed Mandamus the writ of mandamus; but said they did not intend it should refused. be understood that they had thereby determined whether the king or the bishop is general visitor. Ely. In the case of The King v. The Bishop of Ely, E., 23 The King v. Geo. 2 (z), this case came to be considered, whether the Bishop of Bishop of Ely was visitor or not; but not determined. The case was, a rule was made to show cause, why a mandamus should not go to the Bishop of Ely, commanding him to hear an appeal made to him as visitor of Trinity College in Cam- [ 457 ] bridge, by Dr. Edward Vernon, who has therein complained, that he has been wrongfully deprived of his senior fellowship in the college, contrary to the statutes thereof, made upon affidavits that the bishop declined hearing the appeal until he could be satisfied that he had a right to visit the college. By Lee, Chief Justice: "It appears from the affidavits that there Court refuse has been an appeal to the bishop as visitor; that the bishop who is Vihas declined exercising any visitatorial power, in order to take sitor. the opinion of this court whether he has any right to exercise it. This is a controverted question, and it is not at all clear to the court who is visitor; and if we had seen and read all the statutes of the college, we have no authority to determine who is visitor, that being the proper province of a jury." And the rule was discharged. [It is however now settled, where there is no question in whom the right of visitation is vested, and a visitor refuses to receive and hear an appeal, that the Court of Queen's Bench will compel him by mandamus to exercise his visitatorial power; (z) 1 Wilson, 266; [S. C. 1 W. Bl. 52.] to determine The King V. Bishop of Ely. but that court will not interfere for the purpose of compelling But although the king's courts may not interfere with regard to the private statutes of the society, as established by the founder, yet as to the public laws of the land, it seemeth that they may interfere, for over these the founder could give to the visitor no exclusive jurisdiction. As in the case of St. John's College in Cambridge, M., 5 Will. (d) By the act of the 1 Will. it was enacted, that if any governor, head, or fellow of any college or hall in either of the universities, should neglect or refuse to take the oaths for six months after the first day of August then next following, such government, headship, or fellowship should be void. Several of the fellows of that college had not taken the oaths pursuant to the statute, and thereupon a mandamus was directed to Humphrey Gower, head of that college, setting forth the act, and that such fellows had not taken the oaths, and that they still continued in their fellowships therefore by this writ they were commanded to remove them, or to show cause. They return, that the college was founded by Margaret Countess of Richmond; that the Bishop of Ely for the time being was by her appointed visitor; and on their behalf it was objected, that a mandamus is a remedial writ; that no precedent can be produced where it hath been granted to expel persons, but always to restore them to places of which they had been deprived; and that it will not lie where there is a local and proper visitor. But by Holt, Chief Justice: "The visitor is made by the founder, and is the proper judge [458] of the laws of the college; he is to determine offences against these private laws; but where the law of the land is disobeyed, (as it is in this case), the Court of King's Bench will take no (a) [See Rex v. Bishop of Ely, 5 T. R. 475; this case is again referred to below. See also Rer v. Bishop of Lincoln, 2 T. R. 338; Philips v. Bury, 2 T. R. 346; Rex v. Bishop of Worcester, 4 M. & S. 415.] (b) [Rex v. Bland, cited 1 Ves. sen. 470.] (c) [Rex v. All Souls, Oxford, Skinner, 13; Sir P. Jones, cited 3 Atk. 663.] (d) 4 Mod. 233; 15 Viner, 200. |