I ml ! if fl - UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW OF THE UNIVERSITIES THE LAW OF THE UNIVEESITIES BY JAMES WILLIAMS D.C.L. (Oxford), LL.D. (Yale) BARR1STER-AT-LAW ; FELLOW OF LINCOLN COLLEGE, OXFORD ALL SOULS READER IN ROMAN LAW IN THE UNIVERSITY OF OXFORD LONDON : BUTTEEWOETH & CO., 11 & 12, Bell Yard, Temple Bae 3Law fftubltsbers 1910 TKINTED BY WILLIAM CLOWES AKD SONS, LIMITED, LONDON AND BECCLES. 11 . PREFACE This is an attempt to do what has hardly been done before in England, to collect in one volume the law which at present can only be found in numerous unconnected authorities. The reports have been carefully searched, and it is hoped that no decision of importance has been overlooked. J. W. Oxford. 1st December, 1909. TABLE OF CONTENTS PAGF. Abbreviations op Reports, &c ix Table op Cases xi Bibliography xv Introduction . . l Oxford and Cambridge — I. Prerogative and Legislation 16 II. Visitation of (a) the Universities .... 29 (b) the Colleges 34 III. Government 47 IV. Discipline 55 V. Education .62 VI. Finance 67 VII. Privilege .76 VIII. The University Courts 89 IX. Miscellaneous 101 Modern Universities 113 Appendix op Cases (1) English 120 (2) American 1:37 Universities of Scotland 139 Appendix of Cases 144 Universities of Ireland 146 Appendix of Cases 150 Index 153 W.U. vii a 3 ABBREVIATIONS A. & E. . Abr. Cas. Eq. A. C. A.-G. Atk. B. &C. B. &P. B. & Ad. Beav. Bro. P. C. Brownl. Bulstr. Bunb. Burr. C. &P. C. &P. Carth. Cas. in Ch. C. B. N. S. Ch. . Ch. D. Cowp. C. P. C. P. D. Co. Litt. Cro. Car. Eq. . Ex. or Exch. F. & P. . Fitz. N. B. Gilb. Godb. Grant Hardr. H. L. Hob. I.R. Adolphus & Ellis. Abridgment of Cases in Equity. Appeal Cases. Attorney-General. Atkyns. Barnewall & Cresswell. Bosanquet & Puller. Barnewall & Adolphus. Beavan. Brown's Parliamentary Cases. Brownlow. Bulstrode. Bunbury. Burrow. Clark & Finelly. Carrington & Payne. Carthew. Cases in Chancery. Common Bench, New Series. Chancery. Chancery Division. Cowper. Common Pleas. Common Pleas Division. Coke upon Littleton. Croke's Reports temp. Charles I. Equity. Exchequer. Foster & Finlason. Fitzherbert's Natura Brevium. Gilbert. Godbolt. Grant on Corporations. Hardres. House of Lords. Hobhouse. Irish Reports. ix ABBREVIATIONS Jac. . . Jacob. KB. K. B. D. . . King's Bench. . King's Bench Division. L. J. Leon. L. R. . Law Journal. . Leonard. . Law Reports. M. &G. . M. & W. . Mer. Mich. Mod. Myl. & Cr. Myl. & K. . . Manning & Grainger. . Meeson & Welsby. Merivale. . Michaelmas. . Modern Reports. . Mylne & Craig. . Mylne & Keen. N. Y. Nebr. . New York. . Nebraska. P Phill. . Probate. . Phillips. Q.B. . Q. B. D. . . Queen's Bench. . Queen's Bench Division R. . Ld. Raym. T. Raym. . Rep. . Russ. Russ. & M. . Rex or Regina. . Lord Raymond. . Sir T. Raymond. Coke's Reports. . Russell. . Russell & Mylne. Salk. S. C. Sim. & St. Skin. Str. . St. Tr. . Salkeld. . Court of Session Cases. . Simeon & Stuart. . Skinner. . Strange. . State Trials. Tenn. T. R. . Tennessee. . Term Reports. V. & B. . Vent. Ves. Sen. . Ves. or Ves. Jun. Vern. Vin. Abr. . . Vesey & Beames. . Ventris. . Vesey Senior. . Vesey Junior. Vernon. . Viner's Abridgment. W. Bl. Wils. W. N. . William Blackstone. . Wilson. . Weekly Notes. Y. & C. . Y. B. . Young & Collyer. Year Book. TABLE OF CASES A Aberdeen v. Irvine, 144 Adams' Case, 6 Alderidge v. Stratford, 92 Allen v. McKean, 35, 138 All Souls College v. Costar, 72 Andrew v. Merchant Taylors' Co., 127 v. Trinity Hall, 127 Anon., 98, 104 Appleford's Case, 35, 57 Arnott v. Hill, 144 Attorney-General v. Andrew, 127 v. Balliol College, 101 v. Bedford, 65 v. Brasenose College, 45, 105, 127 v. Bowker, 126 v. Brown's Hospital, 39 v. Caius College, 128 v. Catharine Hall, 127 v. Christ Church, 44, 50 v. Davy, 40 v. Dedham School, 46 v. Dixie, 36 v. Downing, 78, 126 v. Drapers' Co., 129 v. Flood, 150 v. Bishop of Llandaff, 80 v. Magdalen College, 45, 127 v. Marchant, 81 v. Margaret Professor, 121 v. Munby, 81 v. Pembroke Hall, 69 v. Piatt, 71 v. St. John's College, 128 v. Sibthorp, 127 v. Stephens, 42, 43, 124 v. Whorwood, 81 Attorney - General for Ireland v. Bishop of Limerick, 105 Attorneys, Ex parte Society of, 18 Ayliffe's Case, 91 Ayray v. Lovelace, 71 Ayrayre's Case, 5 B Balme, In the goods of, 105 Bank v. Morrow, 139 Banks v. Marshall, 133 Barnes v. Peters, 133 v. Stewart, 21 Basket v. Cambridge University, 82 Beecher's Case, 131 Bentley v. Bishop of Ely, 11 Bentley's Case, 123 Berkhampsted School, Ex parte, 45 Berry v. Wilcox, 139 Bonham's Case, 131 Boyer v. Bishop of Norwich, 86, 136 Brooker v. Scott, 109 Brown v. Renouard, 127 Burnard v. Haggis, 111 Burnet's Trustees, 141 Bushby v. Cross, 100 C Caird v. Sime, 64, 145 Cambridge University v. Price, 93 Campden Charities, Re, 80 Canterbury, Archbishop of, Case, 70 Chase's Case, 78, 99, 120 Chester, Bishop of, Case, 14 Christ Church, Dean of v. Parott, 71, 121 Christ's College Case, 78, 79 Clare Hall v. Harding, 120 Coleman v. Benet College, 50 Collins v. Carnegie, 104 XI xn TABLE OF CASES Commissioners of Inland Revenue v. Pemsel, 79 Corpus College Case, 120 Crunden & Meux's Contract, Be, 101 Curtis v. Hutton, 127 Dartmouth College v. Woodward, 137 Daugars v. Rivaz, 45 Davies v. Stringer, 89 Davison's Case, 7, 38, 43 Death, Ex parte, 61 Denyer v. Druce, 80 Devit v. College of Dublin, 150 Downing College, Be, 42 v. Purchas, 73 Draper v. Crowther, 92 E Ecclesiastical Persons, Case of, 68 Ely, Bishop of v. Bentley, 123 Emmanuel College v. Evans, 20 F Feistel v. King's College, 130 Fisher v. Christ Church, 31, 36 Fitzgerald v. Northcote, 108 Flood's Case, 79 Foster v. Redgrave, 109 Fox v. Bearblock, 105 Francis' Case, 121 Free Church of Scotland v. Bain, 145 Fryer v. Dew, 108 G Ginnett v. Whittingham, 98, 99, 134 Glasgow College v. Attorney- General, 130 Glasgow University v. Kirk wood, 145 Grant v. Oxford Local Board, 74 Green v. Peterhouse, 23, 58, 113 v. Ruthcrforth, 41 Greig v. Edinburgh University, 144 Groenvelt v. Burwell, 131 Hampden v. Macmullen, 128 Harrison v. Carter, 35 v. Fane, 109 Hastings, Corporation of v. Lotton, 108 Hopkins v. Wallis, 136 Hutt v. Haileybury, 112 Inge, Ex parte, 128 Irwin v. Lombard University, 139 Jennings' Case, 37, 125 Jennings v. Rundall, 110 Jesus College v. Gibbs, 70 Jex-Blake v. Edinburgh University, 145 Johnston v. Glasgow University, 13 Jones v. St. John's College, 103 K Kemp v. Neville, 94, 131 King's College, New Brunswick, Case of, 18 Ex parte, 70 Langston v. Glasson, 73 Liechman v. Trail, 140 Lincoln College Case, 120 London University, Be, 137 M McCormack v. Queen's University, 148 McCaig v. Glasgow University, 145 Macdermott, Ex parte, 151 McGraw's Case, 139 Mackintosh v. Townsend, 127 Magdalen College Case, 3, 93, 95, 100, 121 v. Ward, 10 TABLE OF CASES Xlll Magdalen Hospital v. Knotts, 67 Magdalene College Case, 68, 70 Markley v. Whitman, 139 Marriott v. Gregory, 103 Medcalfe v. Cox, 142 Metcalfe v. Cox, 142 Meyricke Fund, Be, 134 Millar v. Taylor, 9 Mills v. Fox, 111 Moises v. Thornton, 104 Moorsom, Ex parte, 44, 129 Moseley v. Warburton, 50 Muirhead v. Glassford, 142 N Nairn v. St. Andrews University, 146 Nash v. Inman, 109 Nettle's Charity, Be, 129 New College Case, 27 New v. Bonaker, 132 Nicols v. Pitman, 64 O Owens College v. Chorlton, 117 Oxford University, Be, 74 and Taylor, Be, 74 Chancellor of, Case, 86 Parkinson's Case, 42 Patrick's Case, 102 Pauncefort, Be, 135 People v. New York Medical College, 14 Perrin v. West, 93, 103 Peters v. Fleming, 109 Petre, Lord v. Cambridge Uni- versity, 86 Phillips v. Bury, 5, 44, 103, 122 Pickering v. Gunning, 109 Pits v. James, 31 Prat v. Taylor, 92 Protector v. Crayford, 45 Pusey v. Jowett, 132 Q Queen's College Case, 12, 71 Ex parte, 70 Be, 26 Queens' College, Be, 40, 44, 53 R R. v. All Souls College, 37 — v. Archdall, 84 — v. Askew, 13 — v. Barnard, 128 — v. Blythe, 35, 40 — v. Cambridge University, 32, 102 , 123 v. Chancellor of, 6, 13, 42, 56, 59, 126 v. Vice-Chancellor of, 94, 125, 135 — v. Canterbury, Archbishop of, 104 — v. Chester, Bishop of, 37 — v. Dulwich College, 8 — v. Elsdon, 103, 135 — v. Ely, Bishop of, 6, 42, 103 — v. Gray's Inn, 3 — v. Grundon, 43, 44, 108 — v. Hertford College, 12, 23, 41, 44, 134 — v. Hodgson, 87 — v. Hopkinson, 113 — v. Income Tax Commissioners, 118 — v. Kendall, 40 — v. Lincoln, Bishop of, 45 — v. Lincoln's Inn, 13 — v. Oxford, Vice-Chancellor of, 48 — v. Purnell, 45, 102, 105 — v. Rochester, Dean of, 41 — v. St. Catharine's College, 26, 36, 37 — v. St. John's College, 43, 44, 52 — v. Whitmore, 124 — v. Windham, 40, 69 Redvers v. Bardolf , 120 Roberts v. Twining, 84 Rooke v. Dawson, 137 St. Andrews University v. Lees, 144 St. John's College v. Toddington, 125 Sandys v. Sandys, 102, 128 Shrewsbury, Mayor of v. Attorney- General, 65 Soltykoff, Be, 110 Southwell v. Royal Holloway College, 73 Spencer v. All Souls College, 125 Stationers' Co. v. Carnan, 82 XIV TABLE OF CASES Stephens v. Berry, 92 Stewart, Ex parte, 63 Stikeman v. Dawson, 111 Storie's Gift, Be, 130 Sturges v. Colby, 138 Sutton's Hospital Case, 12 T Tanner v. Carter, 133 Thomson v. London University, 132 Tremain's Case, 122 Trinity College Case, 71, 128 Turner v. Bates, 59 Vincennes University v. Indiana, 138 W Welch v. Hall, 36 Welles v. Traherne, 99 Whiston v. Dean of Rochester, 41 Widdrington's Case, 57, 103 Wilcocks v. Braddell, 93 Wilkins v. Shalcroft, 99 Willis v. Bishop of Oxford, 66, 104 Winchester College Case, 126 Windsor, Dean of v. Webb, 108 Wood v. Wood, 42 Woolf v. Woolf, 111 Wrangham, Ex parte, 37, 42 Wright v. Marquess of Zetland, 64 Yates v. University College, 134 York, Be Dean of, 44 BIBLIOGRAPHY [Only the principal authorities are collected below. Many others will be found in the text and notes. A complete bibliography would be almost impossible, the indirect material is so abundant.] General. — There are very few works dealing directly with the law of a university or universities. Almost the only modern one discovered by the writer is a Danish, Matzen, Kjobenhavn's Universitets Retshistorie (Copenhagen, 1879). T. Braga, Historia da TJniversidade de Coimbra (Lisbon, 1892-95), con- tains much law, as might be expected in the history of an essentially legal university written by an eminent jurist. A complete bibliography of the earlier authorities will be found in H. Rashdall, The Universities of Europe in the Middle Ages (1895), but the work does not treat of foundations later than 1500. Denifle ends a century earlier in his Die Entstehung der Universitaten des Mittelalten bis 1400 (1885 etseq.). Grant on Corporations (1850), collects the decisions on colleges up to that date on p. 551. They have all been incorporated in the following pages. Other works are Mendo, De Jure XV xvi BIBLIOGRAPHY Academico (1668); J. Colbatch, Jus Academicum (1722); Ante-Commission Statutes of Oxford and Cambridge (published by the Royal Commission in 1853); J. Griffiths, Collection of Enactments in Parliament specially concerning the Universities of Oxford and Cambridge (1869) ; S. R. Laurie, Lectures on the Rise and Early Constitution of Universities (1886); London Gazette and Index to Statutory Rules and Orders ; Works dealing with Mortmain and Charitable Uses, such as Tudor and Bristowe, and with Contract, Tort, and Evidence. Oxford. — The only professedly legal works seems to be those of Vaughan Thomas, Legality of the Academical System of the University of Oxford asserted (1831, 2nd edit., 1853), and the appendices by Dampier to J. Heywood, Recommendations of the Oxford University Commissioners (1853), and to the report of the Commissioners itself (1852). For the earlier law H. Anstey, Munimenta Academica (1868), and many of the volumes of the Oxford Historical Society (especially Collectanea, vol. ii, article by Professor Holland, K.C., on the early history of the university), may be consulted. The statutes of the Commission of 1877 were published in 1882. The Statuta Universitatis Oxoniensis appear annually. The pre-Laudian statutes were published in 1634 under the name of Statuta Universitatis Oxoniensis, the Laudian statutes of 1636 were translated by G. R. M. Ward (1845), and abridged in Parecbolae sive Excerpta e Cor pore Statutorum BIBLIOGRAPHY xvii (1729). There are several works on college statutes, such as R. Newton, Rules and Statutes for the Government of Hertford College (1747) ; G. R. M. Ward, The Statutes of Magdalen College (1840), of All Souls, Magdalen and C.C.C. (1843) ; J. Heywood, Foundation Documents of Merton College (1843). Many cases incorporated in the text of the present work will be found in the ponderous works of Antony Wood, and in the numerous histories of the university from Ayliffe (1714), to Sir H. Maxwell- Lyte and the Hon. G. C. Brodrick (both 1886). The same is the case with college histories from Savage, Balliofergus (1668), down to the generally excellent series of college histories published in and after 1898 by Mr. F. E. Robinson. Lord Curzon, University Reform (1909), will be read with advantage. Cambridge. — The mass of material is not as great as for Oxford, but is still considerable. Statuta Antiqua (edit. 1783 and 1852), and Documents re- lating to the Universities and Colleges of Cambridge (1852), seem practically the same thing under different names ; G. Dyer, Privileges of the University of Cambridge (1824), is very like a predecessor of the Oxford later work of Anstey ; E. C. Clark, Cambridge Legal Studies (1888), will be found interesting for the development of the three law degrees known at Cambridge. The earlier histories of Dr. Caius (1568), T. Fuller (1655), and G. Dyer (1814), are superseded by more recent and scientific xviii BIBLIOGRAPHY work by Mr. J. B. Mullinger extending from the earliest times, culminating in the History of the University of Cambridge (1888). The F . E. Robinson series exists for Cambridge. There are some earlier, as at Oxford, and perhaps more substantial. Pro- bably the earliest is a little later than Balliofergus, viz. R. Masters, History of Corpus Christi College (1753, continued by J. Lamb, 1831). Well-known ones are the histories of St. John's College by J. E. B. Mayor (1869), and by C. C. Babington (1874). Oxford has nothing on the scale of J. Venn, Biographical History of Gonville and Caius College (3 vols., 1902). The Statuta Academiae Canta- brigiensis and the ordinances are published at intervals. Scotland. — Each of the universities has found a historian, sometimes more than one. The main authorities are Sir A. Grant, Story of Edinburgh University (1884); W. Stewart, The University of Glasgow, Old and New (1892); J. M. Anderson, History of St. Andrews University (1878 and 1883) ; R. S. Rait, The Universities of Aberdeen (1895). Some of the original documents have been published, such as Munime?ita Universitatis Glasguensis (1854). Ireland. — W. B. S. Taylor, History of Dublin University (1845); The Book of Trinity College, Dublin, 1591-1891 (1892); W. M. Dixon, History of Trinity College, Dublin (1902); Archbishop J. Healy, Maynooth College, its Centenary History, 1795-1895 (1895). UNIVEESITY LAW INTRODUCTION A university has been defined in more than one way. The English statutes and reports contain no definition. It will be necessary to accept definitions by non-legal writers. These do not agree, but the tendency is the same. The earliest is perhaps that of the Siete Partidas, ii, 31 (13th cent.), estudio es ayuntamiento de maestros e de escolares que es fecho en algund lugar con voluntad e entendimiento de aprendar los saberes. Brissonius says universitates appellantur collegia et corpora (a). Calvinus simply copies this (b). Du Cange does not help much by defining as academia publica. Cardinal Newman attempts a definition which may meet the case of a modern university if it possess all the faculties, but is too broad for the Paris and Bologna of the Middle Ages. It is a place of teaching universal knowledge (c). With Carlyle the true university is a collection of books. Dr. Rashdall confines himself to telling us what a university is not. (a) De Verborum Significations (1596). (6) Lex Juridicum (1684). (c) The Idea of a University, p. 1. W.U. i B UNIVERSITY LAW introduc- The statement of the Siete Partidas is useful as — - directing attention to the three stages through which most ancient universities seem to have passed (d). Oxford and Cambridge were not originally corpora- tions. They began as scholae or studia particularia, fortuitous gatherings of teachers and students in a suitable place. The next stage was the studium generate, commune or universale (e), a guild of masters or doctors with control over the admission by degree to their own body. The latest and present stage is the universitas or universitas studii or universitas studentium or scholarium, a corporate existence with well-defined constitution and privileges, Bologna being specially alma studiorum mater (/). There is perhaps a sense of locality in studium which is wanting in (d) Perhaps the least fruitful attempt at a definition is that of the College Charter Act, 1871, " any institution in the nature of a college or university." (e) The use of studium in the Corpus Juris Civilis is, like the use of universitas, analogous but not synonymous. Universitas signifies a group or combination of rights and duties, then transferred to a group or combination of persons invested with rights and duties, something approaching, but not co-extensive with, the modern corporation. In Bracton (171b), the King is universitas regni. In Dante (De Mon., i, 9), universitas humana seems to mean human nature as a whole. In Marsilius universitas civium is the inhabitants of a particular state, whose effect on the development of law approaches the Gesammtwille of Savigny. In some medieval charters and bulls universitas, or universitas vestra, has the signification of universi in Christo fideles. The Bull of 1318 (see below) calls the graduates of Cambridge universitas. In the Theodosian Code, but not in Justinian, studium approaches its medieval sense. In xiv, 1, 1, liberalia studia occurs ; in xiii, 3, 5, magistri studiorum; and in xiii, 4, 1, architecture is a studium. The studium facultatum of xiv, 3, 4, seems promising at first sight, but it really means desire of wealth. (/) The inscription on the city seal is Petrus ubique pater legum- que Bononia mater. INTRODUCTION universitas. It is perhaps not an accident that introduc universitas began to develop out of studium just — . about the time when Innocent IV created the modern corporation as a fictitious person, especially the corporation sole, from Roman law elements [g). It was no longer the persona incerta or corpus incertum of the classical jurists, and had greater capacity of holding property. About then the Crown devolved by demise ; King ceased to follow King as an individual whose title dated only from his coronation. This was about 1238; the term was used of Paris in 1209, of Oxford in 1230. It has been used of the Inns of Court, both Fortescue, Coke, and Selden calling them universities for the study of law (A). In some cases universitas might mean a faculty within the university, e.g., universitas professorum juris canonici, a phrase which reminds of Doctors' Commons before 1858. Lyndwood (about 1420) (g) Maitland's Gierke (1900), p. xix. A college is a persona, Case of Magdalen College ( [1665] 1 Mod. 163). Of the corporation aggregate the common seal is the indicium. The corporation sole needs none. Forgery of the common seal is felony punishable by seven years' penal servitude, 8 & 9 Vict., c. 113, s. 4. (h) In some respects they are still parallel. No authority can compel an Inn of Court to admit a person as a member, just as no authority can compel admission of a commoner to a college or university. An Inn of Court cannot be compelled to call to the Bar just as a university cannot be compelled to admit to a degree (B. v. Gray's Inn [1780] , Douglas, 339). But in the former case there is an appeal to the Judges as quasi-visitors, in the latter there seems to be no appeal. The Inns of Court bear a certain resemblance to the Oxford halls. An important difference is that they have no written constitutions like the Statuta Aularia. Their influence probably grew through the failure of the universities to teach English law, their teaching, as Fortescue, c. 48, says, being confined to the Latin tongue. UNIVERSITY LA W introduc- uses the phrase universitas studentium. Cambridge ^1 has always preferred academia to universitas ; the official volume of statutes is called Statuta Academiae Cantabrigiensis. With the right of studium generate usually followed that of jus or facultas ubique docendi, and there is no doubt that the medieval student wandered for his lectures much more than does his modern representative, e.g., the oldest statutes of Peterhouse contemplate the possibility of scholars of that college studying at Oxford. As time went on, jus ubique docendi was conferred by grant of monarch or Pope, but in its origin must have rested on general acquiescence. There appear to be three types of universities, — that of students, as Bologna ; that of masters, as Paris and Oxford ; and that of Crown grant or Papal bull, such as the Spanish and Scottish. As to colleges, the phrase collegium has had a somewhat similar history. It is a technical term of civil and canon law. Originally it denoted a guild or combination of persons, military or civil, at least three in number at its formation (?'), the corporation sole, such as the Chancellor of the university, being a canonist refinement. The members of a collegium were sodales or collegae, and its by- laws were leges. These collegia at Constantinople were mostly trade- guilds (k). It was not till later that they tended to become primarily confined to (i) See the opinion of Neratius in Dig., 1, 16, 85. (fc) It is remarkable that in Dig., iii, 4, 1, universitas and collegium appear to be used synonymously. INTRODUCTON educational bodies. An educational college has no introduc- necessary connection with a university, e.g., Eton, — ! "Westminster, Dulwich. There still exist non- educational colleges, such as the College of Justice in Scotland, the College of Arms, the Morden College, and some ecclesiastical corporations like the College of Manchester (I). But all alike ex vi termini import a corporation at the present day {in). Some of the writers who have declined to define university have been less cautious as to college. Jenkins defines it as societas plurium corporum simul habitantium(n). With Calvinus collegium, corpus, universitas, conventus, idem saepe significant. The definition given in the New English Dictionary is "A society of scholars incorporated within or in connection with a university or otherwise formed for the purposes of study and instruction." Collegium oezeichnet eigentlich die gemeinden Beauftragten, is the description rather than the definition of L. Mitteis, Romisches Privatrecht, i, 393 (Leipsic, 1908). S. 15 of the Universities of Oxford and Cambridge Act, 1877, regards both a university and a college as places of " education, religion, learning, and research." S. 24 of the Education Act, 1902, includes under (Z) See 2 Geo. II, c. 29. Bodin calls the House of Commons a collegium. (m) Phillips v. Bury ([1747] , 2 T. R., 353). Probably no head of a house is at the present day a corporation sole, but it seems probable from the report that in 1614 the Provost of Queen's, Oxford, was so. Dr. Ayraye's Case, 11 Rep. 18. The Master of Pembroke, Oxford, was created a corporation sole by letters patent of Charles I, Grant, 626. {n) Centuries, 229, 77. UNIVERSITY LAW tion. introduc- college " any educational institution." Jenkins 5 definition and that of the Act appear to be too exten- sive, as it would include the old unendowed Oxford halls, formed by voluntary coalescence of students who paid their own tutors and chose their own head. Sometimes they were erected into colleges, like Broad- gates (o) and Gloucester Halls ; sometimes the colleges absorbed them, as in the case of Magdalen Hall and St. Alban Hall. The only one surviving is St. Edmund Hall ; Wy cliff e and Ridley Halls are not halls in this sense. They are regulated by the Statuta Aulularia, mostly of 1835, Oxford Statutes xxii. In their history the hospicia of Paris were parallel, except that at Paris the colleges have become extinct as well as the halls {p). A college may exist by reputation (q), and so no doubt may a university. In a return to a mandamus Oxford or Cambridge returns itself as existing by pre- scription (r), in spite of the incorporation of the universities by 13 Eliz., c. 29. It is impossible to fix any date, as can be done in the case of the Scottish and later English (o) This hall, and possibly others, possessed the legal privilege of sanctuary. See Encyc. Brit., s.v. (p) Eelics of the collegiate system still exist on the Continent. There is the College of Spain at Bologna, and the Colleges of Sala- manca and Valladolid are mentioned by Jose Isla in Fray Gerundio, i, 1. (q) Adams and Lambert's Case ([1602], 4 Bep. 106). The word domus sometimes occurs in college statutes as equivalent to collegium, and denoting something more than the mere building. See, for instance, the old statutes of Peterhouse as set out in the report of B. v. Bishop of Ely ([1788], 2 T. B. 290). (r) U. v. Chancellor of Cambridge ([1723], 2 Strange, 557). INTRODUCTION universities, at which Oxford and Cambridge began introduc- to be universities. The legends of Arviragus (s), '. Bladud (t), Arthur and Alfred (it), were the creations of the same habit of mind which produced the forged decretals and the donation of Constantine, and attri- buted the foundation of Bologna to Theodosius II and of Paris to Charles the Great. We are not on firm ground until the thirteenth century. It is a hypothesis more than probable that Oxford arose from direct migration from Paris in 1167, and Cambridge in the same way from Oxford in 1209 (x). The earliest reported case in the autho- rised reports is in 1292, the earliest statute in 1413. The earliest university statute is in 1252. The college system, implying corporate self-government, the distinguishing feature of Oxford and Cambridge, became fully established after the foundation of Merton. In England the faculties had no corporate existence, as at Paris, and as the Faculty of Advocates and at one time Glasgow. The House of Lords so decided in University of Glasgow v. (s) Prynne attributes the date of the foundation of Oxford to Arviragus, a.d. 70. (t) According to Twyne, he established gymnasia at London, Stamford, and Cambridge. " Stamford he made so called to this daie In which he made a universitie." (u) In a petition to Lord Apsley, L.O., as visitor one of the allega- tions was that university was founded by Alfred in 872 (Davison's Case [1772] , Cowp. 319). This is as authentic as the date of 915 fixed for Cambridge. (x) At one time there was considerable controversy as to priority of foundation. See for instance Dr. Caius, De Antiquitate Cantabri- giensls Academiae (1568). UNIVERSITY LAW introduo- Faculty of Physicians of Glasgow, [1840], 7 C. & F. _^!L' 958. This gave the faculty disciplinary right over its members. Few medieval universities had the four faculties in full(y). The statutes of Merton, framed in 1274 and confirmed by Papal bull in 1281, became the model on which those of most other colleges were based (z). Like other original statutes they were framed by the founder (a), whether the Crown, a private person, or a guild, as in the case of Corpus, Cambridge (b). Statutes were confirmed or altered from time to time by the authority of the Pope or his legate (c), the Crown (d), (y) The mnemonic lines as to the faculties were : — Hie florent artes, caelestis pagina rcgnat, Stant leges, lucet jus, medicina viget. (z) New College statutes formed another model, and there is judicial authority that the statutes of King's were borrowed from them. Case of Commendams [1612] , Sir J. Davis, 68. The earliest Cambridge college statutes were those of Michaelhouse (1324), now merged in Trinity. Merton statutes made no provision for tuition in the modern sense ; that came with New College. (a) It appears from B. v. Dulwich College ( [1851] , 21 L. J., Q. B. 36), that the founder may, by the instrument of foundation or the statutes, give a vote to non-members of a corporation to vote in the election of a corporate officer, in this case the warden. (b) Some of the titles of heads of colleges, such as " Master" and " Provost," were perhaps suggested by the guilds. (c) Bulls usually exempted universities from episcopal visitation and granted the jus ubiaue docendi. They sometimes conferred degrees; a relic of the Papal degree is the "Lambeth" degree still conferred by the Archbishop of Canterbury, who before the Reforma- tion was legatus natus. A bull of John XXII in 1318 recognised Cambridge as studium generate, and one of Martin V in 1430 confirmed its privileges. The bull of Boniface IX, exempting Oxford from the visitation of the Archbishop of Canterbury, was declared invalid by Parliament in 1441 (Griffiths, 1). Of bulls dealing with colleges, examples are those of 1364 for Balliol and 1398 for New College. A legatine sentence of 1214 as to Oxford is interesting as containing the INTRODUCTION or parliamentary, university and college legislation (e). introduc- The courts have no jurisdiction to do anything in — ' the nature of imposing new statutes by an amending scheme. College statutes were earlier in date than statutes of the realm dealing with the same subject, and, imperfect as they sometimes were, honestly attempted to make a college a place of learning (/). The earliest statute of the realm is 1 Hen. V, c. 1 (1413), by which all Irishmen and Irish clerks, beggars called chamberdeacons (probably the " hedge- priests " of a later age), except graduates in the schools and certain others, are to be voided out of the realm. This was repealed for England in 1863 and for Ireland in 1872. A little later, 9 Hen. V, c. 8 (repealed in 1863), forbad scholars at Oxford to hunt at night. A curious Act is 1 Hen. VI, c. 3 (also repealed in 1863), the preamble of which states that Irish students came to Oxford and resided there a grande peure de tout manere people demeurant la environ. The Act then goes on to provide that scholars of Ireland dwelling in England must find basis of future immunity (1 Wood, 184). Few of the bulls deal with education. "Wood mentions one of Innocent IV to Bishop Grosseteste in 1246, enjoining Oxford to permit none to teach nisi secundum morem Parisiensem. One of the popes (Alexander V) was a B.D. of Oxford. Decretals, i, 38, 8, allowed a universitas scholarium to appear by procurator. (d) As by the injunctions of 1535 and by the statutes of University College, framed in 1736, after a disputed election to the Mastership in 1726. (e) As by the Oxford University Statutes Act, 1869 (repealed 1883), confirming certain university statutes of doubtful validity. (/) The dictum of Yates, J., is surely wrong : " Improvement in learning was no part of the thoughts or attention of our ancestors ' [1769] , Millar v. Taylor, 4 Burr. 2387. io UNIVERSITY LAW introduc- security for good behaviour and bring testimonials — ' from the Lieutenant of Ireland. 3 Edw. IV, c. 5 (also repealed in 1863), exempts graduates of the universities from the sumptuary provisions of the Act as to apparel. The earliest unrepealed statute is 3 Hen. VIII, c. 11 (1511-12). As fresh colleges were founded codes of statutes were framed, dealing, as did those of Merton, with endowment, government, education, and discipline. The only exception was Christ Church, the draft statutes of which were never adopted, and up to 1858 that college was governed by orders of the Dean and Chapter. The making of statutes depended on the inherent power of a corporation to make by-laws (g). The early statutes, both of universities and colleges, included very minute sumptuary laws, of which traces still remain. A statute of 1564 enacted that no fellow or scholar should wear a shirt of a certain size without embroidery of gold and silver. One of the Laudian statutes forbad undergraduates to hear cases in courts of justice under pain of a fine, and graduates nisi ex causa rationabili. In 1679 the Vice-Chancellor prohibited the sale of coffee on Sundays until after evening prayer. The original statutes of Queen's contained detailed regulations as to the strength and quality of the potagium congruum et competens supplied to the fellows. Tournaments, hounds, dice and chess, were forbidden by various (g) A curious case is Magdalen College v. Ward, [1839] 1 C. P. Cooper, 265, where an injunction to restrain a translation of the MS. Latin statutes of the coll ege was refused. INTRODUCTION n statutes (h). William of Wykeham's statutes forbad introduc- dancing in the college for fear of damage to the — '. reredos. The statutes of the now dissolved Hertford discommoned any tradesman who allowed an undergraduate member of the college to obtain credit for more than five shillings. Licences to under- graduates to support themselves by begging in the vacations were also the subject of several statutes. Up to recent times there seems to have been considerable disregard of the statutes by the Crown, the Chancellor, and the colleges. Fellowships were bought and sold, and corrupt resignations were not unknown. The principal codes of university and college statutes before recent legislation were those promulgated for Cambridge in 1570 and for Oxford in 1636, the latter generally known as Archbishop Laud's (*). These codes, amended from time to time, were in force until superseded by the statutes framed under the parliamentary powers given to Oxford in 1854, to Cambridge in 1856 (k). Up to those dates it had been a common form that members of the governing bodies should swear that they would not be parties to altering the statutes of their respective foundations (I). At present the statutes by which (h) In spite of sumptuary provisions degrees remained expensive for a long time, though the days are past when a candidate at Oxford gave a feast to his examiners, and inception at Salamanca meant paying for a bull-fight. (*) Edited by Griffiths and Shadwell (1888). (k) The Oxford Commission of 1850 still thought it doubtful how far the university had power to alter the Laudian statutes. Eeport, p. 6. (I) The Crown cannot pardon offences against statutes. Bentley v. Bishop of Ely [1725] , 2 Strange, 912. 12 UNIVERSITY LAW introduc- the universities and colleges are bound are those — framed in accordance with the Oxford and Cambridge Universities Act, 1877. To this there are three excep- tions, Lincoln (m), Hertford (?i), and Keble (o), which are partly, though not entirely, unaffected by recent legislation. The new statutes of Oxford were published in 1882, of Cambridge in 1883. Since the powers of the commissioners under the Act of 1877 ceased in 1881, amending statutes have been framed from time to time by the colleges themselves, subject to the approval of the Crown in Council. Colleges were originally founded in most cases for heads, fellows (p), and scholars. But Oriel, and perhaps others, had no scholars until recent times. The first donor is in law the founder (q). The head and fellows are generally the governing body. Exceptions are Christ Church, Downing, and Keble](r). At Christ Church the chapter has co- ordinate powers. At Downing certain professors (m) On 12th May, 1882, the then Bishop of Lincoln (Dr. Words- worth), as visitor of the college, moved an address to the Crown praying that its assent might be withheld from the draft statutes. This was carried in the House of Lords (Hansard, cclxix, 529). (n) Hertford is for the most part unaffected by the University Tests Act. See B. v. Hertford College ( [1878] , 3 Q. B. D. 693). (o) Keble has no statutes in the proper sense of the word, though it may have regulations. (p) Socii was in one case regarded as including soeii promoti, or ex-fellows, for the purpose of deciding the eligibility of the Provost. Queen's College Case ([1704], 2 T. B., 325). (q) Sutton's Hospital (Charterliouse) Case, [1613] , 10 Bep. 1. (r) Selwyn is only an apparent exception. Though called a college, it is technically a "public hostel." Mansfield and Manchester are post-graduate seminaries under the management of nonconformist committees. So is Westminster at Cambridge. INTRODUCTION 13 are on the governing body. Keble has no fellows, introduc- their place is taken by a nominated council. The — 1 head is generally elected by the fellows, except in the cases of Christ Church and Trinity, Cambridge, both nominated by the Crown, Magdalene, nominated by the visitor, and Keble by the Council. The fellows are usually co-opted, except one at Lincoln appointed by the visitor. The admission of com- moners and pensioners, not on the foundation, appears to have been of later date than that of scholars. New College, Magdalen, and Corpus, Oxford, had no commoners for centuries, and every member of All Souls is or has been on the foundation. A university or college has a discretion as to whom it will admit. There appears to be no general right of admission, enforceable by mandamus or otherwise (s). A university may refuse or deprive of a degree. Originally it was not the university which conferred the degree. The licence came from the Chancellor, the inception from the faculty (t). But at present the university combines the licence and the inception (u). In one Scottish (cc) and one (s) This appears to follow from the analogous case of an Inn of Court, and is, in fact, assumed in the judgment in B. v. Lincoln's Inn ([1826], 4 B. &C. 855). (t) 2 Bashdall, 446. (u) According to one of the Bentley cases, deprivation or degrada- tion must be for reasonable cause and after summons. A contempt of the Chancellor's Court is not reasonable cause. B. v. Chancellor of Cambridge ([1723], 2 Strange, 566). The remedy, where there is any, is mandamus. It also lies for expulsion of a graduate. Lord Mansfield in B. v. Asheio ([1657] , 2 Burr. 186). See p. 56. (x) Johnston v. Glasgow University ([1900], "Law Times," 14 UNIVERSITY LAW introduc- New York case ( y) the Court refused to interfere ; ^1" in a second New York case (z) it did interfere. The only English precedent is so old that it could hardly be considered an authority at the present day (a). In 1559 and 1563 bills were introduced to make a degree a necessary condition for the appointment of an ecclesiastical judge. As far as advocates were concerned, this was practically the rule until Doctors' Commons ceased to exist. Most Admiralty and ecclesiastical judges were taken from the advocates and had graduated as D.C.L. or LL.D. By so doing they were qualified to act as ecclesiastical judges under 37 Hen. VIII, c 17. In some cases degrees are necessary for ecclesiastical preferment (b). The granting of degrees is not the peculiar privilege of a university. St. David's College, Lampeter, has the privilege, and so (within limits) 17th March, 1900), where Lord Stormonth Darling held that the university is justified in refusing the degree of M.A. to a student who had passed the examinations but not attended a sufficient number of classes. {y) People v. New York Homoeopathic Medical College (20 N. Y. Suppl., 379), the court refusing a mandamus to the college to issue a diploma which it had refused to the relator. (a) The Supreme Court of New York held that a college had no right arbitrarily to refuse to examine a student for a degree, as there was an implied contract to grant the degree on the conditions being fulfilled. The court would not review a definite reason alleged, but in this case there was an arbitrary refusal (" Law Journal," 1891, 439). See a similar case in Paris (1 Rashdall, 470). (a) In 1312 a mandamus issued to Cambridge to allow Robert Baketon to take his degree. Cited Sir T. Raymond, 109. (6) See the Bislwp of Chester's Case with relation to the Warden- ship of Manchester (Oxford, 1721). The Ewelme Rectory Act, 1871, provided that the Crown can only appoint to that rectory a member of the Convocation of Oxford University, i.e., one who is at least M.A. of that university. INTRODUCTION 15 has the Archbishop of Canterbury. There is nointroduc- necessary connection between a college and a — ' university. In most countries the jealousy of the two led to the defeat of the colleges ; exceptionally at Oxford and Cambridge the colleges held their own. There are instances of a university and college being combined ; Glasgow College and Trinity College, Dublin, are instances. Where a university includes colleges, a person becomes a corporator in different ways ; of a university by matriculation, of a college by election to an office on the foundation. Some of the Continental universities, e.g., Oviedo, do not grant degrees. OXFORD AND CAMBRIDGE CHAPTER I PREROGATIVE AND LEGISLATION From the thirteenth century charters or letters patent under the Great Seal (a) had been granted to the universities and colleges, the earliest being attributed to John (b). They generally recognised university privileges as pre-existing, including some now obsolete, such as exemption from subsidy and purveyance. The most extensive privileges were those conferred on Oxford by the charter of 1523, issued at the instance of Wolsey. Charters were also granted to the colleges, to the earlier ones after they had been founded for some time, to the later at the time of their foundation. The Act of 1545 for the dissolution of colleges (37 Hen. VIII, c. 4), (a) Not now with the additional formality of William the Con- queror's charter to the City of London, which was Bitten with his tooth In token of sooth. The main difference between charters and letters patent is that the testing clause in the former is Mis testibus, in the latter teste meipso. See 2 Inst., 77. (6) It was really a legatine ordinance. Anstey, 1 ; 2 Rashdall, 349. 16 PREROGATIVE AND LEGISLATION 17 enabled the Crown to found new colleges, such as chapter Christ Church and Trinity, Cambridge (c). A corpo- — - ration, the creature of the Crown, may exist by charter or by prescription, which presumes a charter, even in cases where historical evidence makes it morally certain that no charter ever existed (cZ). The grant of a charter is at the pleasure of the Crown, as long as it is not repugnant to common or statute law(e). A corporation may also be created directly or indirectly by Act of Parliament ; in the latter case the Crown is empowered to grant a charter in a particular instance. The earliest college charter appears to be that of University in 1317, followed by Oriel in 1324. In some, as that of St. John's, Cambridge, there is a recital of the King's licence to hold lands in mortmain and a nomination of the original master and fellows. The charter generally gave the official name of the college, often different from the popular one. For instance, All Souls is " The College of the Souls of All Faithful People Deceased of Oxford." At present when a new university or college is founded, the report and draft on application for a charter must by the College Charter Act, 1871, be laid before Parliament for not less than thirty days before the report is submitted to His Majesty. The (c) The Chantry Act of 1547 (1 Edw. VI, c. 14) exempted from its operation colleges and chantries in the universities. (d) The Crown may delegate its power of erecting corporations, as to the Chancellor of Oxford to incorporate matriculated tradesmen. (e) It is on a charter of James I, of 12 March, 1603-4, that the representation in Parliament of Oxford and Cambridge depends. w.u. c 1 8 UNIVERSITY LAW chapter charter once granted cannot be amended; it must L be recalled by writ of scire facias or quo warranto or a supplemental charter granted (/). It may also be confirmed by inspeximus, of which there are many examples. There need be no surrender of an old charter before the grant of a new one (g). The acts of the corporation must conform to the charter, otherwise they are ultra vires and void, as if the university were to pass a statute conferring on the Chancellor's Court jurisdiction in probate (A). It was held in a famous American case that a charter was for some purposes a contract (i). The law by which the universities were originally governed was, according to Lord Hardwicke in one of the Bentley cases, a compound of civil and canon law. Other authorities maintained that they were subject to civil law only(&). Be this as it may, canon law was an important subject of study in the English universities even after the injunctions of 1535, and doctors in canon law took precedence of all other doctors. At most colleges there were canonist fellows, and as lately as 1624 one of the objects of the foundation of Pembroke, Oxford, was the study of civil and canon law. The last (/) For the grounds "of refusal to seal a supplemental charter see Ex parte Society of Attorneys, [1872] L. R. 8 Ch. 163. (g) Case of the University of King's College, New Brunswick, [1842] , Forsyth, Cases and Opinions, 383. (Ji) Every corporator is presumed to be aware of the constitu- tion and statutes of his corporation. B. v. Trevenen, [1831] , 2 B. and A., 339. (i) Dartmouth College v. Woodward, [1819] , 4 Wheaton, 518. {k) As Chapman, Inquiry into the Right of Appeal (1752). PREROGATIVE AND LEGISLATION 19 application for a degree in canon law seems to have chapter been by G. Browne of Balliol in 1715. Nothing was — — done owing to the death of the applicant. The connexion of canon law with the universities was in full vigour by the time of the promulgation of the Decretals (1234), which were addressed to the universities of Paris and Bologna (I). The Refor- mation also marked the disappearance of the old trivium and quadrivium or septem disciplinae (m), and education broke with scholasticism. The universities and colleges were not, as has already been said, allowed to legislate entirely for themselves, but were and are subject to the inter- vention of Parliament, the Crown both by virtue of the prerogative and — after the Reformation — by virtue of its right as successor of the Holy See, and judicial decisions of courts and visitors. Similar proceedings happened in other countries. Thus by the ordinance of Blois (1579) Paris was forbidden to give lectures or degrees in civil law. Early legis- lation dealt more with discipline and property than (l) For canon law in England, see Stubbs, Lectures on Medieval and Modern History ; Maitland, Canon Law in England. It is called jus pontificium in the injunctions. (m) Immortalised in the line — Lingua, tropus, ratio, numerus, tonus, angulus, astra. Each corresponds to its peculiar heaven, Dante, Convivio, ii. 14. Skelton says of Wolsey (" Why come ye not to Court ? ") : — He was but a poor master of art : God wot had little part Of the quadrivials, Nor yet of trivials, Nor of philosophy. 2o UNIVERSITY LA W I. Chapter with education. Under the head of discipline the most important branch was the maintenance of orthodoxy, both religious and political (n). Oxford was at one time tainted with the suspicion of heresy. It was specially named in the Assize of Clarendon (1166) (o), and it refused to condemn the doctrine of Wyclif(p). But circumstances were too strong for it. The Holy See, of course, worked in the direction of the preservation of orthodoxy. The Council of Vienne (1312) decreed that teachers of Hebrew, Arabic, and Chaldee at Paris, Oxford, Bologna, Salamanca, and the University of the Roman Curia, must be Catholics (q). The case of teachers of other branches of learning was no doubt an a fortiori one. Who were the proper authorities for the maintenance of orthodoxy was for a long time a disputed question at Oxford, but not as much at Cambridge. The mendicant orders, chiefly the Franciscans, made vigorous attempts to escape graduation in arts, and to bring the theological instruction of the university into their own hands. The great contest was in 1314, the result being the (n) An example is a decree of Convocation at Oxford in 1683 by which the works of Buchanan, Milton, and others were publicly burned. (o) Prohibet etiam dominus'Bex quod nullus in tota Anglia\receptat in terra sua vel soca sua vel domo stib se aliquem de secta illorum renegatorum qui excommunicati et signati fuerint ajpud Oxeneforde. But possibly this may be the city, not the studium. In Atterbury's answer to "Wake (1700), the Bishop in his preface says that a university is " a place that has not been thought apt to instil into its members a disesteem of their Holy Mother." (p) 2 Rashdall, 428. (q) Adopted iuto the Clementine Constitutions, v. 1. PREROGATIVE AND LEGISLATION 21 submission of the friars (r). Whatever their short- Chapter comings may have been, the schools of the friars — L at Oxford — they had no colleges — at least produced Roger Bacon, Duns Scotus, and William of Ockham (s). After the Reformation, to be a member of " the Church of England as by law established " (t), was a necessary condition precedent for holding most university or college offices or for proceeding to a degree. In 1581 the Chancellor of Oxford, the Earl of Leicester, directed that no scholar should be admitted to any college or hall before subscription to the xxxix articles. If the age were under sixteen, only subscription was necessary ; at sixteen or over, the oaths of allegiance and supremacy. At Cam- bridge subscription was necessary only for degrees. The oath of supremacy must also have been taken before admission to a degree (1 Eliz., c. 1, s. 25). By the Canons of 1603, No. xxiii, all members of a college and the college servants were to receive (r) The pleadings in the legal proceedings before Cardinal Richard de S. Eustachio are set out at great length by Dr. Rashdall in Oxford Hist. Soc, Collectanea, ii, 193 (1890). The Pope allowed the case to be tried at Oxford rather than Eome owing to the allegation of its poverty by the university. (s) See Thomas Eccleston (circ. 1250), De Adventu Fratrum Minorum in Anglia in Brewer's Monunienta Franciscana (1858), translated by F. Cuthbert, (1903) ; W. G. D. Fletcher, The Black Friars at Oxford (1882) ; A. G. Little, The Grey Friars in Oxford (1892) ; The Educational Organisation of the Mendicant Friars in England (Transactions of the R. Hist. Soc, 1894) ; Cambridge Hist, of { Eng. Lit., vol. i, The Scholars of Paris and the Franciscans of Oxford, by Dr. Sandys (1907). In Barnes v. Stewart [1834] , 1 Y. and C, 119, the Court of Exchequer in Equity held that the works of Matthew Paris are not evidence of the date of the establishment of the Franciscan order. (t) The statutory phrase. 22 UNIVERSITY LAW I. Chapter the communion four times a year. The Act of Uniformity, 1662, carried out the same principle, and the obligation imposed by it as to the universities was not aifected by the Toleration Act, 1689, and the Roman Catholic Relief Act, 1829. Before admis- sion of a head or fellow further preliminaries were required. In addition to those already named, he must have taken the oath of abjuration of papal authority, and must have made the declarations of conformity and against transubstantiation, invoca- tion of saints, and the sacrifice of the mass, and must have received the Sacrament. A corporation keeping or maintaining a schoolmaster who did not repair to church was liable to a fine of £10 a month during his default (23 Eliz., c. 1). The conditions, other than subscription, were rendered unnecessary by subsequent legislation, especially by an Act of 1867 (30 & 31 Vict., c. 62) (u). From 1832 the degrees of B.A., B.C.L., and B.M., might have been taken with- out subscription. Before that date Oxford excluded nonconformists from these degrees by rules of the university, Cambridge by rules of the colleges. The law as it stood up to 1871 is thus given in the Oxford University Calendar of that year: — ''Before admission to the degree of Master of Arts, Bachelor of Divinity, or Doctor of any of the three superior faculties, every person is required to make and subscribe a declaration of assent to the Thirty-nine (u) Whether this Act enables the Convocations of Oxford and Cambridge to elect as Chancellors persons not members of the Church of England is perhaps still an open question. PREROGATIVE AND LEGISLATION 23 Articles and to the Book of Common Prayer, taken chapter from the 36th Canon, and to promise that he will _L observe the statutes, privileges, customs, and liberties of the university, and will act faithfully, creditably, and honestly in the two houses of Congregation and Convocation, especially in all that concerns graces for degrees, and in elections." The promise to observe the statutes, etc., is still enforced, but the Universities Tests Act, 1871 (34 & 35 Vict., c. 26) (#), abolished subscription to the articles, all declarations and oaths touching religious belief, and all compulsory attendance at public worship in the universities of Oxford, Cambridge and Durham (y). There is an exception confining to persons in holy orders of the Church of England degrees in divinity and positions restricted to persons in holy orders, as the divinity and Hebrew professorships. Colleges founded after the Act are not within it(^). The newer universities adopt its principle without the exception (a). The Universities Act of 1877 enacts (a?) The history of the Act will be found in A. V. Dicey, Law and Public Opinion in England (1905). The moral aspect of subscription is the subject of Essay iv in Aids to Faith (1861). For the law before the Act see J. Heywood, Recommendations of the Oxford University Commissioners and a History of the University Subscription Tests (1853). {y) See Green v. Peterhouse, below. (z) See JR. v. Hertford College, below. (a) An example is s. x of the charter of the Victoria University of Manchester : " Provided that it shall not be lawful for the Court by any statute or otherwise to impose on any person any test whatever of any religious belief or profession in order to entitle him or her to be admitted as a professor teacher student or member of the university or to hold office therein or to graduate therein or to enjoy or exercise any privilege therein." 24 UNIVERSITY LAW Chapter that nothing in the Act shall be construed to repeal — - any provision in the Act of 1871, with a saving clause in favour of the erection or endowment of an office (other than a headship or fellowship), requiring the possession of theological learning, and of religious instruction and morning and evening prayer in colleges. The Crown influenced the universities by — besides charters — positive direction, dispensation from and suspension of existing law, and visitation directly or by delegation. The interference really supplied the place of commissions of modern times (b). In 1231 and 1318 the King acted through the Sheriff of Oxfordshire, in the latter case to carry out the compromise of 1314, already noticed. Edward III in 1375 issued a mandate in favour of graduates in law. Eichard II in 1395 called on the Chancellor of Oxford to root out Lollardism and to report on WyclifF. Instances better known are the injunctions of Thomas Cromwell to Oxford and Cambridge in 1535 and the visitations of 1549 and 1559. Instances of interference in the case of individuals were not uncommon under the Tudor and Stuart Kings, and even earlier. Thus in 1358 Guido di Limosano, Secretary of the King of Sicily, (6) The power of the Crown to issue a commission to inquire was much discussed after the issue of the commission of 1850. Sir E. Bethell and other counsel advised against it in 1851 ; the Attorney- and Solicitor-General and the Advocate-General were in favour of the power. Leave to be heard before the Crown in Council by the objectors was refused by Order in Council. Oxford Eeport, 22 — 38. The Scottish University Commissioners who reported in 1831 were appointed to visit, not to inquire. PREROGATIVE AND LEGISLATION 25 was admitted to incept by the King's letters (c). Chapter In 1377 a mandamus went to the Chancellor of — Oxford to banish Lollard scholars (d). Henry IV granted permission to graduates to sue for papal provisions contrary to the Statutes of Provisors until this- was forbidden by 9 Hen. IV, c. 8. In 1577 the Chancellor, acting for the Queen, forced John Underbill as Kector upon Lincoln College (e), he having been previously expelled from a fellowship at New College by the same authority. James I in 1618 ordered Wadham to elect his nominee Warden (/). In 1661 P. Simon was elected President of Queens'. The election was set aside by a royal mandate nominating A. Sparrow. On a mandamus to restore Simon, the King's Bench was equally divided, consequently following the maxim Semper praesumitur pro negante the nominee of the Crown retained the position. James II forced his candidate on Magdalen ; and immediately afterwards William III sent a mandamus to King's to the same effect (g). These attempts and others were not always successful. Sometimes degrees were conferred on the recommen- dation of the King or the Chancellor, as M.B. on Sydenham, the great physician, and D.D. on Thomas Fuller in 1660. Suspension of and dispensation from college statutes was asserted as part of the (c) Little, 43. (d) Cited Sir T. Raym. 110. (e) A. Clark, Hist, of Lincoln College, 49. (/) J. Wells, Hist, of Wadharn College, 41. (g) J. R. Bloxam, Magdalen College and James II, 272. See Appendix. 26 UNIVERSITY LAW Chapter prerogative before the Bill of Rights (probably in 1 imitation of papal bulls of exemption), and the right appears still to continue. For the provisions of the Bill of Rights as to dispensation and suspension apply only to statutes of the realm, and the Crown, as creator of a corporation, necessarily has authority to suspend and dispense from the operation of the statutes and by-laws of its creature. The statutes of Emmanuel were suspended by Charles I (h). Both Henry More and Cud worth, the Cambridge Platonists, were in 1675 and 1679 respectively dispensed from residence at Christ's. A royal dispensation to a fellow of St. Catharine's to hold with his fellowship a living of the value of ten marks in the King's books is mentioned in the argument of a case in 1791 (i). In the case of Queens' a dispensation was presumed after the lapse of two hundred and fifty years (h). In the case of the same college the President was allowed to hold his office by dispensa- tion, although a layman, and therefore disqualified by the statutes. It was granted by the Crown through the Lord Chancellor (Lord Brougham) (I). The best-known case is one which occurred in 1815, though it is not a university case. But the principle is the same. The statutes of Eton College provided (h) 2 Mullinger, 316. (i) B. v. St. Catharine's College, 4 T. B. 233. (k) Be Queens' College, [1821] Jac. 1. But notice that the college was a royal foundation. The dispensation was for electing two Middlesex or City of London fellows, the statutes providing for only one. (Z) Grant, 530 («). PREROGATIVE AND LEGISLATION 27 that no fellow should hold any spiritual preferment. Chapter Queen Elizabeth permitted a fellow to hold such — — preferment up to certain value without forfeiting his fellowship, with a non obstante proviso. The fellows were allowed by the visitor (the Bishop of Lincoln) and assessors to take the benefit of the dispensation, on the ground that the Bill of Rights could not be construed to affect the exercise of a dispensing power which had been assumed a century before that enactment had become law (m). The power of dispensation was sometimes exercised, or attempted to be exercised, by the college itself. In one case the Warden, three bursars, five deans, and five senior fellows had power to dispense with the absence of a fellow. It was held that this dispensation was not exercisable by a majority. The act was not a corporate act, and 33 Hen. VIII, c. 37, only applies to corporate acts (?i). By many of the old statutes an oath against obtaining dispensation was a neces- sary condition for admission as fellow. Dispensation has been — and in some cases still might be — granted by visitors, e.g., against vacation of fellowship by failure to take a particular degree in a given time (0). Sometimes it was granted by Convocation, especially as against the residence for degrees necessary under the Laudian statutes, or for smaller matters, such as (m) P. Williams, Report of the Proceedings against the Provost of Eton College (1816). (n) New College Case [1563] , Dyer, 247a. An oath contrary to the Act of Henry VIII is void by s. 4 of the Act. (o) See the case of Mark Pattison in 1852 ; Clark, Hist, of Lincoln College, 192. 28 UNIVERSITY LAW chapter university masses and funerals (p). In one case of — a grant by the Crown the right has been revested. A grant of James I, confirmed by 10 Anne, c. 45, annexed the rectory of Newelme or Ewelme to the Regius Professorship of Divinity at Oxford. It was revested in the Crown by the Rectory of Ewelme Act, 1871, and any member of Oxford Convocation may be appointed. The action of Mr. Gladstone in advising the Crown as to the first appointment was a matter of great political interest at the time. (p) Examples will be found in W. G. Searle, Grace Book (Cambridge), for the years 1501-1542 (1908). CHAPTER II VISITATION (a) The Universities The Bishops of Lincoln appear to have visited the University of Oxford on several occasions before Oxford was made an independent see by Henry VIII. The Bishops of Ely claimed the same powers for Cambridge. It was only by slow degrees that this claim and appeal from the Chancellors' courts were abandoned. Later the Archbishops of Canter- bury claimed visitation to the exclusion of the bishops (a). This seems to have been first asserted by Archbishop Peckham in 1281. The right of the Archbishop to visit, except for heresy, was resisted by the universities. Richard II decided in favour of the right by letters patent in 1397, and it was indirectly confirmed by Parliament in 1407 (9 Hen. IV, c. l), and 1411 (13 Hen. IV, c. 1). The visitation of Queen's by the Archbishop of York was saved, if sufficiently proved (b). Thomas Cromwell and Layton visited both universities and so did I (a) For the history, see Eeport of Oxford Commission, Evidence, 245 ; 2 EashdaU, 425, 433. (b) The right was proved in favour of the Archbishop in 1412, and his successors still remain visitors of the college. 29 30 UNIVERSITY LAW Chapter Cardinal Pole jure legatino, and finally Charles I — '- himself decided in Council in 1636 that Archbishop Laud could visit metropolitice on emergent cause to be made known to the King(c). The papal rights of visitation (if any) were transferred to the Crown by 25 Hen. VIII, c. 21 (enabling the Crown to visit colleges and other corporations by com- mission) (d), and by the Act of Supremacy, 1 Eliz., c. 1. By 31 Hen. VIII, c. 14, colleges exempt from the visitation of the ordinary were visitable by the ordinary in whose diocese they were, or by such person or persons as the King might appoint. The Chantry Act of 1547 empowered the commission of 1549 to be issued. It also provided for the founding of grammar schools, for " the further augmenting of the universities," and for altering the nature and condition of obits "to a better use "(e). In 1647 an ordinance passed for the visitation and reformation of the University of Oxford, Selden being one of the commissioners (/). Charles II appointed visitors in 1660. Cambridge was visited by Cromwell and Pole and especially by commissioners appointed by Queen Elizabeth in 1570, whose statutes are the analogue of the Laudian statutes at Oxford. James II visited (c) The authorities will be found in Griffiths, 7 (ra.). (d) This Act specially provides that the Archbishop should have no authority by the Act to " visit or vex " any college. (e) The better use has generally taken the form of dining allow- ances to the fellows. (/) See M. Burrows, Kegister of the Visitors'of the University of Oxford, 1647 — 1658 (1881). Prynne in one of his numerous pamphlets uses the strange graces of his style in favour of the visitatorial rights of the Commonwealth. VISITATION 31 by commissioners, the official title of whom was chapter " His Majesty's Commissioners for Ecclesiastical Causes and the Visitation of the Universities, and of every Collegiate and Cathedral Churches, Colleges, Grammar Schools, Hospitals, and other the like Incorporations, or Foundations, or Societies." This appears to be the latest example of visitation by the Crown. In the case of modern commissions they have been no doubt in the first instance royal com- missions, but any action called for by the commissions has been taken by Parliament. Frequent objections to the expense of visitations appear in the early records. The rights of visitation as claimed up to the seventeenth century would probably not be admitted now. The universities are civil corpora- tions, the colleges lay (g) eleemosynary corporations, i.e., charities, of either royal or private foundation. As the law stands at present, a civil corporation has the Crown for visitor, the visitation being exercised by the King's Bench Division, not by the Lord Chancellor, as in eleemosynary corporations. But some civil corporations, as municipal and trading, have no visitors. In universities founded by modern charter the Crown is appointed visitor, and acts (g) Even though the head be required to be in holy orders. The purpose of the founder is the test of whether it be lay or spiritual, A.- G. v. St. Cross Hospital [1853], 17 Beav., 435. See, too, Whittle's Case [1628] , Godb. 394. The Dean and Chapter of Christ Church form a spiritual corporation, Fisher v. Dean of Christ Church [1725] , Bunb. 209. In Pits v. James [1615] , Hob. 123, Hobart, C. J., said that the Stat. 1 & 2 P. & M.,c. 8, as to devises to spiritual corpora- tions, extended to Trinity, Cambridge, because it was principally intended for the study of divinity. 32 UNIVERSITY LAW Chapter through the Lord President of the Council. There L is a doubt whether Oxford and Cambridge have visitors. The university calendars name none. The report of the Oxford Commission (1852) sets forth opinions of Lord Campbell and others that in 1836 they considered the Crown visitor of Oxford (A). The Order in Council in Bentley's Case in 1718 makes the Crown visitor of both universities (i). The matter must be considered doubtful, and in modern times the recommendations of commissions are only of binding force where they have been clothed with the sanction of the legislature. The question of the existence of a visitor is important from the point of view of procedure. In one of the Bentley Cases, in 1723, a mandamus issued to the Vice-Chancellor of Cambridge, because the university made no return of a visitor (k). The Crown cannot deprive the universities any more than other corporations of any right attaching by charter or prescription, or grant new charters or impose fresh statutes without their voluntary acceptance. But much of the difference between medieval and modern organisation is of home growth, independent of visitations, and with little interference by Crown or Parliament. It was in this way that the divisions into nations became obsolete at Oxford and Cambridge (I). At one time it seems to have (h) App. D., 54. (i) App. C, 40. (k) B. v. Cambridge University, 2 Strange, 1157. (I) The reason for nations was no doubt the universality of the VISITATION 33 been almost a condition of the existence of a Chapter university. At Bologna the Universitas Citramonta- 1 novum and Universitas Ultramontanorum were each divided into nations, making sixteen in all. Paris had the French, Picard, Norman, and English. Scotland still has them. Oxford and Cambridge were divided into North (Boreales) and South (Australes). Scotsmen ranked as Northerners, Welshmen and Irishmen as Southerners. Con- tinual struggles between the nations led to severe penalties being denounced against breaches of the peace and to the incorporation into the oath taken by the M.A. on his inception that he would not foster disturbances between the nations. The division into nations is now represented by a faint survival in the two proctors, originally represen- tatives of north and south. Jealousy between the nations led to frequent dissensions in the election to fellowships, for what was north and what was south was not always easy to determine, Worcester- shire especially being debateable ground. The jealousy of the universities felt by the citizens culminated in the famous outbreak of St. Scholastica's Day, 10 Feb. 135|, and the preponderance of the universities has only recently been diminished by legislation (m). It was only in 1825 that the last university system. It was a studium generate, and birds of a feather would flock together. (m) 2 Eashdall, 408 ; Acts of the Privy Council, 1571—1575 (for the history of the fine levied on the City) ; W. H. Turner, Eecords of the City of Oxford (1880) ; Prof. Thorold Rogers, Oxford City Docu- ments (1891). W.U. D 34 UNIVERSITY LAW Chapter relics of the penance of the City of Oxford dis- '_ appeared (n). Many clauses in favour of the town will be found in the Cambridge Award Act, 1856 (19 & 20 Vict., c. xvii). A recent Oxford Act is 22 & 23 Vict., c. 19, relieving the mayor or any other municipal officer of Oxford from taking the oath up to that time required under a charter of 1248 for the conservation of the liberties of the university. Oxford and Cambridge only have been dealt with, as visitation of the modern universities is of no historic interest. The supposed classical uni- versity at Cricklade (Greeklade), and the medical one at Lechlade (Leechlade), are purely mythical- Ipswich, Stamford, and Cromwell's Durham left no traces. (b) The Colleges Visitation of colleges rests on common law as far as it is not affected by statutes of the realm (o) or of colleges (p ). At common law " all eleemosynary corporations who are to receive the charity of the founder have visitors, if they are ecclesiastical corpo- rations; and if a particular visitor is not provided by the founder, then the ordinary of the place is (n) Cambridge had its St. Scholastica massacre in 1381, at the time of the peasant rising, when many of the charters were burned. Paris affords the usual parallel. There was a great riot in 1200, and the municipality was severely punished. (o) E.g., 20 and 21 Vict., c. 25, as to Queen's. (p) As at Worcester, where the old composite visitor (the Bishops of Oxford and Worcester and the Vice-Chancellor) was replaced by the Lord Chancellor. VIS IT A TION 35 visitor : if they are lay corporations, the founder Chapter and his heirs are perpetual visitors " (q). The right — of visitation is in law an incorporeal hereditament. The visitatorial power is a necessary incident of an eleemosynary corporation (r), which a college is (s). " It is," says Mr. Justice Story, " a power to correct abuses and to enforce due observance of the statutes of the charity, but not a power to revoke the gifts, to change uses, or to divest rights " (t). The courts do not take judicial notice that a college has a visitor, the fact must be proved. The chief duties of the visitor of a college at present are confirmation of the head, interpretation of the statutes, and to act as a court of appeal on application by a member, or one claiming to be a member, of the foundation, (u) His power of expulsion or deprivation, though still competent, has been little exercised in modern times. His power of appointment of a head on lapse frequently found in old statutes, seldom or never exists now. (q) B. v. Blythe [1699] , 5 Mod. 404. In canon law the visitator was always an ecclesiastical person. The nearest approach to the modern law will be found in Decretals, iii, 35, 8. (r) Appleford's Case [1672], 1 Mod. 82, where a mandamus to restore a fellow of New College, who had been deprived by the visitor, was refused. (s) " Fellows of colleges in the universities are in one sense the recipients of alms, because they receive funds which originally were of an eleemosynary character," Lord Coleridge, C.J., in Harrison v. Carter, [1876] 2 C. P. D., 36. (t) Allen v. McKean [1833], 2 Sumner (U.S.) 276. (u) He may even confirm the election of the candidate with the minority of votes, as where the Earl of Pembroke confirmed the election of Dr. Wynne, at Jesus, Oxford, in 1712. This proceeding was perhaps suggested by the postulatio of Canon Law, Decretals, i, 6. 36 UNIVERSITY LAW Chapter Though colleges are charities, they are exempt from 1 the control of the Charity Commission. The fact that bishops are so often visitors is perhaps due partly to the convenience of creating a higher sanction by adding ecclesiastical to visitatorial authority, partly to the original position of some of the older colleges as quasi-ecclesiastical corporations. At present they are lay corporations though every member be in holy orders (x). The only college which is to any extent an ecclesiastical corporation is Christ Church (y), where the dean and chapter share the government with the students (z). Possibly the Crown is visitor of Christ Church as supreme ordinary of the realm, as well as by virtue of being founder. In case of disability by infancy, lunacy (a), or otherwise of the visitor, or heir of the visitor appointed by the founder, or where the founder has appointed no visitor, or has only appointed a visitor to part of the foundation, or there is a failure of heirs of the founder (6), or {x) Welch v. Hall [1675] , 3 Keble, 543. (y) Fisher v. Dean of Christ Church, above. For prescription for discharge from tithe, a college may claim as a spiritual corporation where it is alienee of abbey lands, Bowles v. Atkins [1666] , 2 Keble, 28. (z) The anomalous position of Christ Church has led to the frequent assertion in Acts of Parliament {e.g., 21 & 22 Vict., c. 44, s. 31), that Christ Church is for the purposes of the particular Act to be deemed a college. In some Acts {e.g., 21 & 22 Vict., c. 94), it is provided that for the purposes of the Act the words " ecclesiastical corporation " are not to include Christ Church. This evidently shows that without such express exception it might be considered to be such a corporation. {a) A.-G. v. Dixie [1807], 13 Ves. 519. (6) As in the case of St. Catharine's, Cambridge, after the failure of heirs of Wodelarke, the founder, B. v. St. Catharine's College [17911 , VIS IT A TION 37 the Crown is founder, the right of visitation is in Chapter the Crown, and is exercised by delegation through the — '- Lord Chancellor (c). The Crown may confer the visitation as a franchise on a subject. It is a disputed point whether the Crown can confer inheritance of a visitation, but the better opinion is that it can. When the visitor has been elected head, and so visitor and visited combine in the same person (d), the King's Bench visits during the temporary combination. The mode of bringing a case before the Lord Chancellor is by petition, not by information (e). By s. 17 of the Judicature Act, 1873, it was enacted that there should not be transferred to the High Court of Justice any jurisdiction exercised by the Lord Chancellor in right of or on behalf of His Majesty as visitor of any college. It should be noticed that no technical words are necessary for the creation of a visitor. In the case of Clare the appointment of the Chancellor as visitor was gathered by the Court from the interpretation of the statutes (/). 4 T. E. 233. The same thing happened at Trinity Hall, Ex parte Wrangham, below. (c) Where the visitor is visitor of a part, the Crown only visits the residue. But new foundations generally fall under the old visitor. {Jennings' Case [1699], 5 Mod. 422.) In the case of a hospital the law is different. In the event of similar incapacities and defaults the ordinary visits, 2 Inst., 725. (d) This happened in the case of the College of Manchester, B. v. Bishop of Chester [1727] , 2 Str. 727. It is only poetically and not legally true that a man may be himself the judge and counsel and himself the prisoner at the bar. (e) B. v. St. Catharine's College. (/) Even if no visitatorial authority be expressly given by the founder, the visitor has it as incident to his office. B. v. Warden of All Souls [1682], T. Jones, 175; Ex parte Wrangham [1795], 2 Ves. 38 UNIVERSITY LAW Chapter Decisions of visitors seldom occur in the ordinary — '- law reports. Many of them turned on tenure of fellowships and on the meaning to be given to " founder's kin," of which the most important example is Spencer v. All Souls College (see below). Another All Souls case was Watson v. All Souls College (g). One of great interest is Ex parte Moorsom, Appendix. The latest reported case seems to be one in 1866, where the Lord Chancellor, sitting as visitor, sanctioned the appropriation of part of the revenue of Christ Church in aid of the stipend of the Eegius Professor of Greek (h). In the histories of the various colleges there are continual allusions to appeals to the visitors, and there also exist pamphlets on certain cases which excited interest at the time (i). A glance at the names of the visitors as they Jun. 609, was before the Lord Chancellor as visitor of Trinity Hall ; and Davisons' Case [1772], Cowp. 319, before him as visitor of university, as delegate of the Crown. (g) [1864J , 11 L. T. Rep. 166. The report of the Commission, 329, mentions a decision of Archbishop Cornwallis in 1777. Founder's kin may still be of occasional importance, as at St. John's, Oxford, and Hertford. Jesus, Oxford, and several others still have close fellowships and scholarships. Even the university may have founder's kin scholarships, as the Squire scholarships at Oxford and Cambridge, founded quite recently. The name of the Justinian Bracebridge Exhibitions for founder's kin at Oxford is not likely to be forgotten, with its humorous combination of the law and the stage. (7i) L. R., 1 Ch. 526. (i) See, for instance, the Proceedings of Corpus Christi College in the case of Francis Ayscough vindicated (1730). He was a probationer fellow whom the college refused to elect actual fellow. The visitor reversed the decision of the college. The proceedings are described in T. Fowler, History of Corpus Christi College, 478. In the same college lately one of the votes for the election of a President was that of an ex-fellow who had not been re-elected at the proper date. The visitor held that the vote was good, the re-election being retrospective. VISITATION 39 appear in the university calendars gives some Chapter interesting results. The Crown is the most frequent — '- visitor, not only of royal foundations but of others, such as University and St. Catharine's, where the Crown has assumed the office by lapse of founders' heirs or otherwise (k). In the case of St. Catharine's Robert Wodelarke, the founder, appointed himself the first master. He was also at the same time Provost of King's, a duplication of offices which seems unique. The Bishop of Winchester is visitor of five colleges at Oxford, the Bishop of Ely of four at Cambridge, originally no doubt as ordinaries. The only college which has for visitor the descendant of the founder is Sidney, of which Lord de LTsle and Dudley is visitor. Jesus, Oxford, has the Earls of Pembroke for hereditary visitors (I). Balliol has the unique privilege of electing its own visitor. Of Magdalene the possessor of Audley End for the time being is visitor and appoints the head(m). Up to 1857 Queen's had one visitor for general purposes and another for the Michel foundation (n). (k) It is also visitor of Corpus, Cambridge, in extraordinary cases, but the interpretative authority under the new statutes is a board consisting of the Vice-Chancellor and two Regius Professors. (Z) The third Earl of Pembroke was not the founder, but was Chancellor at the time of the foundation. (m) This right is preserved by the Act of 1877 until ceded by deed under seal by the possessor of Audley End. (to) By 20 & 21 Vict., c. 25, the Archbishop of York became visitor for the whole foundation. In Bentley's time Trinity, Cambridge, had both a general and a special visitor. Whether a visitor be general or special is determinable by the Chancery Division on information, A.-G. v. Brown's Hospital [1849], 19 L. J. Eq. 73. 4o UNIVERSITY LAW Chapter In some colleges, such as Clare (o), Christ's, Emmanuel, — - and formerly Worcester, the office is composite or in commission, the number being usually three. In such a case a majority would probably be sufficient for decision, on the analogy of the majority of the members of a corporation under 33 Hen. VIII, c. 27 (p). The same Act was interpreted to give the head of a college in an election a negative but not a casting vote, unless the statutes provide otherwise (q). The question who is visitor is in a disputed case to be tried by a jury, not in the Chancellor's Court, and not by the High Court merely on affidavit. In the case of University, the King's Bench in 1726 on a disputed election to the Mastership, declared it to be a royal foundation aDd its visitor to be the Crown (r). This decision was recited in the college statutes of 1736, probably a solitary instance of the incorporation of a decision in statutes. The question whether the Archbishop of Canterbury or of York was visitor of Queen's (Quenhalle) was settled by Parliament in 1412 (s). (o) The visitor is remarkable, the Chancellor and two persons appointed by grace of the Senate. (p) The canonical majority before the Act was two-thirds (A.-G. v. Davy [1741], 2 Atk. 212). In some cases, provision as to a majority is made by charter or statute. (q) B. v. Blytlie [1699], 5 Mod. 404. As a consequence he is bound, although he be in the minority, to ailix the corporate seal to a lease (B. v. Windham [1796], Cowp. 377), or the presentation to an advowson (jB. v. Kendall [1841] , 1 Q. B. 866). Whether his concur- rence is necessary for the election of a fellow depends on the statutes. It was held that it was at Queens', that it was not at Clare and Caius. (Be Queens' College [1828] , 5 Euss. 64.) (r) Previously the university had been visitor. (s) Griffiths, 8. VISIT A TION 41 The importance of the visitor is still considerable, Chapter and has been little affected by recent legislation. In — 1 most cases of action taken by a college with regard to any of its members on the foundation or claiming to be on the foundation (t), an appeal to the visitor is a condition precedent to proceedings at law or in equity. Even after appeal, since the visitor is in a judicial position (u), the courts will not interfere un- less on proof of his declining jurisdiction, or on some ground which avoids his decision altogether, such as assuming jurisdiction, breach of trust, dealing with a trust estate (#), or acting from interested or corrupt motives (y), or in breach of elementary principles of justice, such as deciding on an ex parte statement. In such cases, mandamus or prohibition will be according to circumstances, and apparently an action if he act without jurisdiction. In one of the Bentley cases, in 1723, Mr. Justice Fortescue relied on an extremely early precedent in support of the view of audi alteram jmrtem as part of the visitor's duty. " God himself," said the learned judge, " did not pass sentence on Adam before the latter was called upon for his defence. ' Adam,' says God, ' where art thou ? Hast thou eaten of (t) This is put in to cover the decision in B. v. Hertford College (below). (u) His jurisdiction is a forum domesticicm, but still a forum. (x) Green v. Butherfortli [1750] , the case of a devise of a rectory to St. John's, Cambridge, in trust for the senior fellow. {y) See Whiston v. Dean of Bochester [1849] , 7 Hare, 532 ; B. v. Dean of Bochester [1851], 17 Q. B. 1. The alleged interest of the visitor (the Bishop) was that he had connived at misappropriation of cathedral revenues by the Dean and Chapter. 42 UNIVERSITY LAW Chapter the tree whereof I commanded that thou shouldest L not eat ? ' And the same question was put to Eve also " (z). An example of the working of the remedy- by mandamus is the issue of the writ to the visitor of Peterhouse in 1788, enjoining him to proceed to the election of a master owing to the failure of the fellows to elect (a). A mandamus does not lie to a visitor to reverse his own decision (b), or to a college to restore a fellow after deprivation by the visitor (c) or his commissary (d). In the absence of any of the grounds above mentioned, the decision of the visitor is conclusive and is a judgment in rem, whether as to a question of law or a question of fact (e). He is not bound to wait for an application, but may act mero motu in a proper case. He cannot be judge in his own cause unless such power be specially given him(/). In deciding an appeal he may properly take into consideration long and un- disturbed possession of an office (g). An example (z) B. v. Chancellor of Cambridge, 1 Str. 566. The principle is illustrated by numerous other decisions. A good modern instance is Wood v. Wood [1874] , L. E., 9 Ex. 190. (a) B. v. Bishop of Ely, 2 T. R. 290. (b) A.-G. v. Stephens [1737], 1 Atk. 358. (c) ParMnson's Case [1689] , Carth. 92, a Lincoln College case, the Court holding that a fellow holds his fellowship on the implied con- dition of submission to the visitor. (d) The visitor seems to have a general right of visiting by com- mission. In some colleges this was expressly provided by the founder. (e) As a matter of practice in modern times the visitor usually acts on legal advice if the question be at all an important one. (/) B. v. Bishop of Ely, above, where held that statutory power to nominate a head on lapse does not constitute him a judge in his own cause. {g) Be Downing College [1837] , 2 Myl. & Cr. 643. VISIT A TION 43 of the smaller questions which he may have to Chapter decide is whether a non-resident fellow may let his — 1 rooms (h). No appeal lies from the visitor unless he visits qua ordinary, when an appeal lies to the Crown in Chancery (i). In the words of Lord Camden, visita- tion " is a despotism uncontrolled and without appeal, the only one of the kind existing in this kingdom" (k). But the courts, as in the Peterhouse Case, will take care that he acts within any limitations contained in the statutes. Members or members elect of the college not claiming to be present or future founda- tioners have no right of appeal. If the college accept them, they are in the position of "mere boarders" (to use Lord Apsley's phrase), and their position is little better than that of tenants-at-will (/). At one time it was thought that only actual members of the foundation had the rights of appeal (m). But it is now settled that anyone claiming to be fellow, scholar, or otherwise on the foundation had the (h) A.-G. v. Stephens, above. (i) This is tantamount to saying that no appeal is now competent, for probably no visitor now acts qua ordinary. Qt) Grant, 534. (I) Ex parte Wrangham [1795] , 2 Ves. Jun. 617, as to a fellow- commoner ; Davison's Case [1772] , Cowp. 319, a petition to Lord Apsley, L.C., as visitor of University to restore an expelled commoner, on the ground that he had been expelled by a minority of the fellows ; B. v. Grundon [1775] , Cowp. 315, a case of expulsion of a commoner from University. This is but an example of the rule that a visitor's power exists only between member and member, and between member and stranger. (m) The authority generally cited was B. v. St. John's College, Oxford [1693] , Holt, 437. 44 UNIVERSITY LAW Chapter right (n). A sentence of expulsion by the college, — '- from which no appeal has been made, is conclusive, and is in the nature of a judgment in rem determin- ing the status of the person affected (0). It is a question whether a visitor can examine witnesses on oath (p). He cannot, apart from statute, compel the attendance of witnesses. No precise mode of procedure is necessary, as long as substantial justice is done and opportunity given, generally by citation, to all parties interested to be heard (q). He cannot force a college to use the common seal. He has a right to use the college hall or chapel, and exclusion by the college does not render the visitation in- effectual (r). He may adjourn his quasi-court from time to time (*), and may award costs between parties (t), and charge his own on the college, such costs being liable to taxation (u). It is doubtful whether a power to interpret statutes, when conferred on a particular person, constitutes him visitor. Probably not, as the pro- vision in the Act of 1877, that the Chancellor of (n) B. v. Hertford College [1878] , 3 Q. B. D. 693. In this case Lord Coleridge points out, at p. 703, that the St. John's Case is no authority at all, for there a definite private right of property in the Mayor of Bristol had been interfered with by the college. (o) B. v. Grunclon. {p) It was done in Phillips v. Bury, below, p. 122. (q) Summarie simpliciter et de piano sine strepitu ant figura judicii, Com. Dig. Visitor, B. (r) Phillips v. Bury, below. (s) Be Dean of York [1841] , 2 Q. B. 39. (t) Queens' College Case [1820] , Jac. 47. But he does not always do so. Costs were not awarded in Ex parte Moorsom, appendix. (u) A.-G. v. Dean of Christ Church [1821], Jac. 487. VISITATION 45 Cambridge is the interpreter of university statutes Chapter made under the Act, does not constitute him visitor L of the university. In college statutes it is generally provided that he is the sole interpretative authority where any doubt arises as to the meaning of a statute (x). He need not necessarily give a decision on the merits : he may hold that the appeal comes too late (y). The visitor qua visitor, even when the Crown, appears to have no right to inspect the books of a university (z). Whether he would have a right as such to inspect the books of the college visited bv him, does not seem to have been decided. A college, besides being subject to visitation, may itself be visitor of a school (a). The visitatorial authority of the Crown does not supersede the jurisdiction of the Chancery Division or prevent it from exercising its functions in respect of an existing trust (/>). The same result would follow a (x) Before the first commission, as the report states, he sometimes relieved himself of difficulty by explaining away the statute or statutes. (y) B. v. Bishop of Lincoln, [1785] , 2 T. R. 338n., opposition to election of Dr. Horner as Rector of Lincoln. (*) B. v. Purnell, [1748] , 1 W. Bl. 37. (a) As Caius of the Cambridge Free School. See Protector v. Cray ford, [1656] , Style, 457. So may the head of a college, as the Warden of All Souls of Berkhampstead. See Ex parte BerJchampstead Free School, [1813] , 2 V. & B. 134. A college may also be incor- porated as the governors of a school. See A.-G. v. Brasenose College, [1834] , 2 C. & F. 295, where it appeared that at that date the college had been incorporated after its foundation as " The Governors of Middleton School, Lancashire." (6) Daugars v. Bivaz, [1860] , 28 Beav. 233. The case of A.-G. v. Magdalen College, ' [1847] , 10 Beav. 402, illustrates this point. The Master of the Rolls declined to interfere, on an allegation of Magdalen 46 UNIVERSITY LAW Chapter fortiori where the visitor is a subject. If a charity _ be founded by a subject and no visitor be appointed, and the Crown then by charter incorporate governors and authorise them to make rules, the Court will interfere and direct a scheme if the existing rules do not carry into effect the views of the founder (ologia, 295 [1608] . It may be noticed that Twyne's MSS. are difficult of access, as they appear to be in three different places. (/) The power of excommunication no doubt depended on the original position of the Chancellors as delegates of the bishops of Lincoln and Ely. ig) These still exist, but the office is now a sinecure. At Cambridge they never existed, but similar powers were granted against forestallers and regrators by patent rolls of Edward II and Richard II. See Documents relating to the University and College of Cambridge, pp. 5 and 26. (7i) F. W. Maitland, Eng. Hist. Rev., xii, 652. (i) See The Case of Dr. Ayliffe at Oxford [1716], supposed to have been written by Ayliffe himself. 92 UNIVERSITY LAW chapter a libel on the Earl of Clarendon's father (k). The ■ — ' Cambridge court in 1718 deprived Bentley of his degrees. Two modern Oxford cases of interest will be found in the Appendix. The rights of the courts were continually limited by prohibition and by imperial legislation. It was early settled that they could not entertain questions affecting the freehold (I), or quo warranto, or quare impedit. As to equity the matter was more doubtful. In 1675 the claim of the Oxford Chancellor to hold a court of equity was disallowed (m). In 1714 a similar claim was allowed (n). Perhaps the best solution is to be found in a case ;of intermediate date, where the Court of Chancery held that the jurisdiction of the Oxford court extended to matters in common law or to pro- ceedings in equity that might arise in such cases, not to pure matters of equity, such as specific per- formance (o). It is submitted that this probably represents the modern law and that the Chancellor's court is in much the same position as the King's Bench Division when a question of equity comes before it. It has been held that the superior court cannot take judicial notice of the privilege of the Chancellor's court. Being a franchise it must be pleaded. In this particular case the university was (k) Described in Vol. iv of Wood's Life and Times. (Z) This was held as to land in Cornwall claimed against the Rector of Exeter, Stephens v. Berry [1683] , 1 Vern. 212. The case is interest- ing as being one of the numerous proceedings against Dr. Bury or Berry. See Appendix. (m) Prat v. Taylor, Cas. in Ch., 237. (n) Alderidge v. Stratford, 22 Vin. Abr., 11. (o) Draper v. Crowther [1685], 2 Vent., 362. THE UNIVERSITY COURTS 93 put to declare in prohibition ( p ). Whether the c hapter jurisdiction of the court can be waived by a litigant VIIL entitled to take advantage of it is somewhat doubtful. In an action for defamation it was not allowed (q). In a later case the defendant, a non-privileged person, waived objection to the jurisdiction, then after- wards appeared and defended on the merits. He was arrested by warrant of the Duke of Wellington and ordered into custody till he had satisfied the debt. It was held by the King's Bench that he might still be discharged on habeas corpus and might insist before the superior court on the want of jurisdiction (r). The Oxford court is regulated by a statute of the university of 1636, amended by later statutes, and by statutes of the realm and rules framed thereunder, all in more or less accordance with previous charters. The jurisdiction extends over every scholaris vel persona (s) privileglata in universitate degens, and that when only una pars scholaris, provided that the matter is a civil one. Criminal proceedings have been dealt with in the chapter on Discipline. The imperial statutes regulating the Chancellor's court are those of 1862 and 1884, the university statute is Tit. xxi (De judiciis). By the Oxford University Act, 1862 (25 & 26 Vict., c. 26, s. 12), the Vice-Chancellor was empowered, with the approval of any three judges (p) Cambridge University v. Price [1697], Skin., 665. (q) Wilcochs v. Braddell [1628], Cro. Car., 73. (r) Perrin v. West [1835] , 3 A. & E. 405. (s) Persona includes a college, Magdalen College Case [1674], 8 Mod., 163. 94 UNIVERSITY LAW chapter f the superior courts, to make rules for regulating — the practice and forms of procedure in all proceedings within the jurisdiction of the court of the Chancellor of the university commonly called the Vice- Chan- cellor's court, and with the like approval to annul, alter, or add to any such rules. The Supreme Court of Judicature Act, 1884 (47 & 48 Vict., c. 61, s. 24), enacts that where by virtue of any statute or charter or otherwise powers of making rules and orders for regulating the procedure or practice of or the costs or fees of any inferior court of civil jurisdiction (t) are given to or have been exercised by the judge of any such court . . . any rules or orders made after the commencement of the Act by virtue of any such powers as aforesaid shall be subject to the concur- rence of the authority for the time being empowered to make rules for the Supreme Court. Further provision is made for the alteration or annulment of any existing rule or order. Under the powers of this Act rules of procedure were made on 21st March, 1892, by the Vice- Chancellor with the approval of the Rule Committee of the Supreme Court. These rules were amended on 20th October, 1907. They will be found in the Gazette of the respective years. They repealed the rules of 1864 made under the Act of 1862. (t) The Chancellor's Court is a court of record, bu lis at the same time an inferior court to which prohibition or certiorari will lie. In this it resembles the County Courts. The Common Pleas in Kemp v. Neville, p. 131, admitted that the Cambridge Court is a court of record, but the case was decided on the facts, and no certiorari was applied for. It was granted in B. v. Vice- Chancellor of Cambridge, p. 126. THE UNIVERSITY COURTS 95 VIII. The ordinary judge is an assessor, appointed by Chapter the Vice- Chancellor under a university statute of 1897 (u). Under the same statute a registrar of the court is appointed by the Chancellor by letters patent, and " a competent number of solicitors " may be admitted as proctors by the Vice- Chancellor. Appeals formerly lay in spiritual cases ultimately to the Pope (#), then to the Arches Court of Canter- bury, in secular cases to the Delegates of Appeals in Congregation and from them to the Delegates of Appeals in Convocation, with a final appeal to the King in Chancery. All this has been changed by an Order in Council of 23rd August, 1894, which enacts that in pursuance of the Supreme Court of Judicature Act, 1875, and the Statute Law Revision and Civil Procedure Act, 1883, the enactments and the rules of the Supreme Court relating to appeals from county courts shall apply to the Chancellor's court, commonly called the Vice-Chancellor's court, in the University of Oxford. The court of the High Steward has been already mentioned. He has still nominally the right of holding a leet or view of frankpledge (y) (Statute (u) This seems inconsistent with the 1636 statute (xvii, 2), under which the Chancellor is to hear and determine controversions omnes circa causas civiles spirituales et criminales affecting privileged persons. Nothing is said about a deputy, and the spiritual and criminal jurisdiction is without a doubt obsolete. (x) Anstey, 460. (y) Eeferred to as existing in the Magdalen College Case [1647] , 1 Mod. 163. The clerks of the market are perhaps the last vestige of the leet jurisdiction. At Cambridge the leet seems to have existed a century later, as it is treated as existing in the litigation arising out of the contest for the High Stewardship in 1765. See Appendix. 96 UNIVERSITY LAW chapter xvii, 2), which lie shares with the Chancellor (xvii, VTTT ' /' \ ' ' 1, 2). The Chancellor's court was a court of probate for resident members up to 1860. The probate jurisdiction was abolished by 23 & 24 Vict., c. 91. A coroner appointed by Convocation holds an inquest on the death of any resident member of the university where an inquest is necessary. This right is specially preserved by the proviso saving the rights of franchise coroners under the Coroners Act, 1887, s. 42. The jury should consist wholly or chiefly of matriculated persons. The Cambridge court, also a court of record, differs in many particulars from that of Oxford, and the effect of its narrower jurisdiction is that the reported cases concerning it are fewer in number. The ordinary judge is the commissary. Its jurisdiction in civil matters is now confined to cases where both parties are privileged persons, not where there is only una pars scholaris, as at Oxford. But this was not always the case. For instance, the charter of 1588 gave juris- diction omnium placitorum personalium ubi persona sub privileges universitatis una pars erit (z). And by Close Koll of Edw. Ill, fol. 30, indictments of stationers, writers, binders, and illuminators of books were to come before the Chancellor's court (a). No advocates for the parties were allowed under penalty of the party using one losing his case, unless for bad health Much information as to the leet will be foundin E. J. C. Hearnshaw, Leet Jurisdiction in England (1908). (z) 1 Dyer, 33. (a) Documents relating to the University and Colleges of Cambridge, 21. THE UNIVERSITY COURTS 97 or other legitimate cause (b). Consequently there Chapter are no proctors of the court, as at Oxford. This view ' of the court as a forum domesticum is still carried out by Stat. A, c. 8, of the existing university statutes in these words : " All causes and contentions which belong to the cognisance of the university shall be submitted to the judgment of the Chancellor or the commissary unless one of the litigants be a person having the degree of M.A., or some equal or higher degree, in which case the Chancellor shall have jurisdiction. They shall be determined with as little delay as possible and without the formalities of law." The only jurisdiction over non-members of the university appears to be over women of bad character (c). An appeal from a decision of the commissary lies to the Chancellor within six hours, from the Chancellor to the Senate within two days. There is no further appeal to the High Court of Justice as there is from the Oxford court. The jurisdiction of the Chancellor's court is pro- tected by the doctrine of conusance of pleas (d). The court being a franchise, its jurisdiction will be recognised by the High Court on the claim being (b) Statuta Antiqita, 325. (c) See the chapter on Discipline. The jurisdiction inter extraneos given by the statutes of 1570 in nundinis Sturbrigiensibiis et Us quae ad festum Sancti Johannis Bajptistae apud Barnwell tenentur seems obsolete. (d) It is also called cognisance or cognitio, in criminal matters significatio or notificatio. Cognisance in this sense must be distin- guished from cognisance in replevin. They have nothing but the name in common. W.U. H 98 UNIVERSITY LAW Chapter duly proved by evidence of charters and Acts of " Parliament. On due proof, the case, if brought in any other court, will be remitted to the university court. Conusance is still competent, having been acknowledged by the King's Bench Division as lately as 1886 (e). At Cambridge the right is limited by 19 & 20 Vict., c. xvii, s. 18, which abolishes the right of the university to claim conusance of any action or criminal proceeding where any person who is not a member of the university is a party. The earliest recorded claim seems to have been made in 1367. At one time the claim was allowed in cases where it would not now be admitted. It lay at Oxford in the case of members of matriculated (/) guilds of tradesmen, of college servants, and of non-resident members of the university. Conusance may be claimed in four different ways: (l) by the King, (2) by the Chancellor, (3) by the Yice-Chancellor, (4) by the defeudant. The King appears to claim by virtue of his invaded franchise (g). But as a matter of practice the second and third modes are the only (e) Ginnett v. Whittingham, 16 Q. B. D., 761. (/) The Chancellor of Oxford still has nominally authority to con- stitute incorporationes artificum intra universitatis praecinctum by the statutes of the university, xvii, 1, 2, 11. Matricula seems to be derived from matrix, and means a register. It is so used in the Theodosian Code. Its use in this sense is not unlike its use in Scotland, where it means the insertion of armorial bearings in the Register of the Lyon King of Arms, regulated by an Act of the Scottish Parliament of 1672. (g) Such claim appears in one or two old cases, as in Anon. [1630] , Litt., 304, where it was granted on the non-intromittant clause in the charter of 14 Hen. VIII. THE UNIVERSITY COURTS 99 ones now in use (h). It cannot be claimed in every chapter case — for instance, where the Chancellor or Vice- VIIL Chancellor is sued, for that would make him judge in his own cause (z). It could not be claimed against the Exchequer when that was a separate Court (&), and possibly cannot be claimed even now where the question to be tried is a purely equitable one. To support the conusance a charter must be proved, it will not be presumed (/). The privileged person must show that he was privileged at the time of action brought, it is not enough to show that he was such at the time of claim of conusance (m). The Chancellor claims conusance at his peril. " If the Chancellor should certify falsely that a person is resident who is not, there is no doubt that an action upon the case would lie against him " (n). A good illustration of the working of the claim is afforded by a seventeenth century case. Plaintiff filed a bill to have a bond for £100 delivered up, the sum secured having been paid. Answer that the defendant was a Doctor of Law resident in Oxford. The Chancellor certified and demanded (h) The form of claim by the Chancellor, the Marquess of Salisbury, will be found in Ginnett v. Whittingham, above, and a much more voluminous one in the older style by the Earl of Arran in Welles v. Traherne [1740] , Willes, 241. (i) Unless in trespass, Chase's Case, above. (k) Wilhins v. Shalcroft [1662], Hardr., 188, the reason being that only the Justices of either Bench were named in the charters of exemption. (I) Y. B., 40 Edw. Ill, 18, 8 ; Y. B., 18 Hen. VI, 18, 6. (m) Fryer v. Dew [1628], Godb., 404. (n) Lord Camden in Hayes v. Long [1766], 2 Wils., 310. ioo UNIVERSITY LAW Chapter conusance. The court dismissed the bill (o). It Yn ' has been already stated that a college may make the claim ( p ). Conusance of signifieatio need not necessarily be claimed ; it is entirely at the dis- cretion of the Vice- Chancellor or other person entitled to claim. There is a tendency at present to leave small cases to be tried by justices of the peace in the ordinary course. Some of the authorities state that Castle v. Lichfield [1670], Hardr., 505, is the oldest reported case in which conusance was allowed. But the dates of other cases show that this must be erroneous. It was an indebitatus assumpsit for tobacco supplied and the claim was admitted. (o) Bushhij v. Cross [1676], 22 Vin. Abr., 3. (2)) Magdalen College Case, above. CHAPTER IX MISCELLANEOUS (a) Practice and Evidence With regard to procedure in the ordinary courts, the universities and colleges must sue and be sued in their corporate titles, but in the case of a college apparently not during the vacancy of the headship. During such vacancy certain other powers, especially any which need the use of the common seal, are in abeyance, unless the defect be met by the statutes. At common law a corporation can contract only by deed under the common seal, but in later times the strictness of this rule has been relaxed in the matter of contracts of small amount and of frequent occur- rence. There is no doubt that a college through its bursar could make valid contracts for the supply of provisions, the repair of buildings, the hire of servants, and similar matters. As universities and colleges are charities, they fall under the ordinary rule that the administration of them and of any trusts of which they are trustees (a), being matters (a) An early case is A.-G. v. Balliol College [1744], 9 Mod., 407 with regard to the Snell exhibitions. The person who is to execute a trust must be a person pointed out by the creator of the trust as a proper person to execute it. Be Crunden & Mentis Contract, L. R [1909] , 1 Ch., 690. IOI 102 UNIVERSITY LAW Chapter f public interest, are to be inquired into by in- — formation by the Attorney-General at the relation of any person interested. In one case an information was filed against the Vice-Chancellor, the Warden of New College, for misconduct in his office (b). The procedure by mandamus is that which most frequently occurs in the reported cases. It lies where jurisdiction has been declined, of which many instances have been given in the previous pages. It may issue to a university, a visitor, or a college according to circumstances. Some of the cases are to restore a graduate deprived of his degrees, to affix the common seal (c), to grant a degree, to admit or restore a fellow or scholar, to admit a head (d), in one case to remove a Lollard from a scholarship (e). The mandamus might have been followed by feigned issue, when that mode of procedure existed (/). Proceedings by scire facias to repeal a charter or letters patent are still competent, but have been superseded by surrender. The Universities Committee of the Privy Council sits by delegation of the Crown in the matter of grants of new charters. Prohibition lies where jurisdiction has been exceeded, as by the Chancellor's court. In one case the right to a fellowship of Winchester was by consent tried by prohibition, it being doubtful (b) E. v. Purnell [1748] , 1 W. Bl., 37. (c) B. v. Cambridge University [1765], 3 Burr., 1,647. \d) As in Patrick's Case [1666], T. Raym., 101, where it went to the senior fellow of Queens', (e) T. Raym., 110. (/) Sandys v. Sandys [1840], 1 Q. B., 316 (n). MISCELLANEOUS 103 who was visitor, and a mandamus thus not lying (g). chapter In one case a writ of restitution was refused (h), but _1_1 no doubt would have been granted in a proper case. Habeas Corpus lies for false imprisonment of a scholar (i) or of one of the public (k). The remedy by quo warranto is not competent to test the right of a fellow to his office (£). An injunction has been sometimes granted to prevent a college from taking a certain course. At least one famous case was tried on ejectment (m), and probably the modern action for the recovery of land would lie under similar circumstances. Distress as a remedy for withholding of the stipend of a fellowship is no longer in use. Fellowships are probably since recent changes not freehold offices but merely charges on the revenue of the college. Trespass or case would lie in certain cases. An action of contract would lie under the ordinary rules of contract where a college was a party (n). If the question as to the sufficient learning of a graduate in holy orders be raised, it must be by duplex querela in one of the (g) Cited in B. v. Bishop of Ely [1750] , 2 W. BL, 58. Declaration in prohibition, a procedure occurring in some of the cases, is now obsolete. (h) Widdrington's Case [1663], T. Raym., 31, 68. It is probable that certiorari would lie to remove the record from the Chancellor's court, but there appears to be no case on the subject. (*) T. Eaym., 110. (k) B. v. Elsdon, below. See also Perrin v. West, above. (I) Marriott v. Gregory [1772] , Lofft, 21. (m) Phillips v. Bury, for which see Appendix. (n) As in Jones v. St. John's College, Oxford [1871], L. R., 6 C. P., 115, a question of counter-signature by the bursar to a building contract. io 4 UNIVERSITY LAW Chapter provincial courts (o), it cannot be by quare impedit, — 1 a secular court being, as Lord Ellenborough said, unfitted to sit as a court of error upon matters of grammar (p). Several questions of evidence have been decided by the courts, but some would probably not be considered binding at present. Possibly judicial notice of the common seal will be taken since 8 & 9 Vict., c. 113. But it is still necessary to prove, on any objection, that the seal was affixed with proper authority. Two cases of interest arose before the Act, and they may still be useful as guides. Both were actions of slander by Doctors of Medicine of St. Andrews against defendants who had alleged that the plaintiffs were unqualified. In the earlier case the production of the diploma of M.D. from St. Andrews University was held not to be sufficient evidence that the seal affixed was the seal of the university (q). In the later case the plaintiff produced evidence that the seal was the seal of the university and on that succeeded (r). In an anonymous case the King's Bench refused to act without an attested copy of the statutes of All Souls, on an application to the visitor to appoint as founder's kin fellow a candidate rejected by the college (s). It was the practice at King's for the proceedings of the Provost and fellows to be entered (o) Willis v. Bishop of Oxford, above. (j>) B. v. Archbishop of Canterbury [1812] , 15 East, 143. (q) Moiscs v. Thornton [1799] , 8 T. E., 303. (r) Collins v. Carnegie [1834] , 1 A. & E., 695. (s) Anon. [1734] , 2 Barnard, 437. MISCELLANEOUS 105 in the Liber Protocollorum signed by the registrar as chapter a notary public. The book contained an entry of _11 the expulsion of Mr. Bearblock from his fellowship by decision of the visitor, but the entry was not signed. Evidence was given that the handwriting of the entry was the same as that of the signed entries. The unsigned entry was held to be inadmissible (t). A testator made a gift of his library to Selwyn. The catalogue was a voluminous document, a copy of which would have entailed considerable expense. Probate was granted with- out requiring the catalogue to be brought into the registry, the college undertaking to hold it for the registry (u). Usage will be taken into con- sideration. So will the manner in which the donor of a trust fund conducted himself in the distribution of a trust fund (x). Inspection of corporation books will be allowed to an interested party provided that the evidence is required in a civil action (y), but not in a criminal prosecution (z). At Oxford statutes of the university are printed or written in duplicate, one copy being deposited in the archives, one in the Bodleian Library, Stat, x, 2, 2. Probably either would be evidence. (t) Fox v. Bearblock [1881], 17 Ch. D., 429. (u) In the goods of Balme [1897], P. 261. (x) A.-G. v. Brasenose College [1834], 2 C. & F., 295, the case of Nowell, Dean of St. Paul's, and Middleton School; A.-G. for Ireland v. Bishop of Limerick [1870], I. R. 5 Eq., 403. (y) Grant, 311. (z) B. v. Purnell, Appendix. io6 UNIVERSITY LAW J ix. (b) Differences between Oxford and Cambridge Several of these have already been noticed, but it may be useful to give a short summary in this place. (1) A hall is a corporation at Cambridge, but not at Oxford. Trinity Hall is as fully a corporation as Trinity College, and the same was the case with Clare, Pembroke, and St. Catharine's when they were called halls. Selwyn is technically a hostel and corresponds very nearly to the Oxford private halls, such as Marcon's. (2) The government and discipline differ both in names and functions. The Oxford names of Congrega- tion (in the Oxford sense), Delegacy, Board of Faculty, Visitatorial Board, are unknown at Cambridge ; Syndicate (a), Senate, Sex Viri, are equally unknown at Oxford. The rights of jurisdiction over bad characters have had a different growth in the two universities. The powers and tenure of office of the Vice-Chancellor are not the same. (3) The procedure in the Chancellors' courts is not the same, and the right of conusance is more restricted at Cambridge. (4) The degrees differ, especially the law degrees. D.C.L. and B.C.L. are peculiar to Oxford; LL.D., LL.M., and LL.B. to Cambridge. A smaller differ- ence is the variety of caps and gowns at Cambridge, which also has no distinctive scholars' gowns, as at Oxford. (a) The term "syndic " is adopted from Paris, where there was a syncticus or procurator ad litem. MISCELLANEOUS 107 (5) The position of both heads and tutors diners ch *& considerably in the two universities. Nor has — Cambridge gone as far as Oxford in attaching professorships to colleges. (c) Acts of Parliament affecting Colleges Some of these have already been noticed, but there are many in addition. 27 Hen. VIII, c. 42, s. 7, seems to be the earliest. It enacted that Dur- ham College, Oxford (now Trinity), might take advantage of the Act, which relieved the colleges from the payment of first fruits and tenths. 18 Eliz., c. 6, contained provisions for leases made by Magdalen and St. John's, Oxford. 13 Anne, c. 6, annexed canonries to the headship of Oriel (b) and Pembroke, Oxford, and St. Catharine's. C. 17 gave to Brasenose the presentation to churches at Stepney. 3 & 4 Vict., c. 113, detached the canonry of Worcester from the Margaret Professorship of Divinity at Oxford, and made him a canon of Christ Church instead. The Cambridge Act of 1856 provided for Trinity scholar- ships, Grindal fellows and scholars at Pembroke, and similar matters. The Act of 1877 dealt with, inter alia, the Snell and Hulme exhibitions and the Dixie foundation of Emmanuel. 30 & 31 Vict., c. 76, enabled a new ordinance to be made for Christ Church in substitution for previous ordinances. Hertford, (b) The canonry was dissevered from the headship by the Act of 1877, and is now attached to the Oriel Professorship of Exegesis. Canonries attached to professorships also exist at Christ Church, El , and Durham. 10S UNIVERSITY LAW Chapter dissolved by 56 Geo. Ill, e. 136 (c), was reconstituted — by the Hertford College Act, 1874 (37 & 38 Vict, c. 55). Private Acts are numerous. Among others may be named 46 Geo. Ill, c. cxlvii, enabling the Warden of Wadham to marry; 35 & 36 Vict., c. cliv, as to scholarships at St. John's, Oxford ; 58 & 59 Vict., c. Ixxxiv, as to sale of Downing College lands ; and 7 Edw. VII, c. ex, as to the Hulme trust estates. (d) The Undergraduate. Some cases on this subject will be found in the Appendix. The college has a discretion as to whom it will admit, and a sentence of rustication or expulsion cannot be appealed against except by those on the foundation, or elected to be on the foundation, who have an appeal to the visitor. In an indictment for assault on a pensioner of Queen's by turning him out of the college garden, the production of a sentence of expulsion by the college was regarded as a conclusive defence (d). The question that most often arises is that of necessaries supplied to an undergraduate under twenty-one. Necessaries are defined by sect. 2 of ,the Sale of Goods Act, 1893, as "goods suitable (c) After it had practically ceased to exist in 1805 owing to the failure of the college to electinew fellows on vacancies. See Co. Litt., 13 b ; Dean of Windsor v. Webb [1614] , Godb., 211. Any leases made by the extinct corporation are determined, and where it is a lessee the reversion accelerates and the land reverts to the lessor, Hastings Corporation v. Letton, L. E. [1908] , 1 K. B., 378. (d) B. v. Grundon [1775], Cowp., 315. No reasons need be given, but it seems probable that if reasons be given they should be good ones. In Fitzgerald v. Northcote [1865] , 4 F. & F., 656, the plaintiff was expelled from Oscott College for an alleged breach of discipline which the jury found had not occurred, and he obtained damages. MISCELLANEOUS 109 to the condition in life of such infant . . . and to his Chapter actual requirements at the time of delivery." This is — in accordance with a judgment of the Court of Exchequer, except that the court went further, and held that necessaries supplied to a Cambridge undergraduate are not such things as are requisite for bare subsistence. Jewellery to the value of £8 was allowed (e). In another case of the same year an action was brought against an Oxford undergraduate for the hire of hunters. The jury found for the livery stable keeper, but the Common Pleas granted a new trial (/). Dinners supplied to an undergraduate in lodgings are not prima facie necessaries (g). The latest case on the subject was an action brought by a tailor for goods supplied while the defendant was an undergraduate of Trinity, Cambridge. The bill included eleven fancy waist- coats at £2 2s. each. The Court of Appeal held that the onus was on the plaintiff to prove not only that the goods were suitable to the condition in life of the infant, but that he was not sufficiently supplied with goods of that class. Judgment was entered for the defendant (h). Education is a necessary (i). (e) Peters v. Fleming [1840] , 6 M. & W., 42. (/) Harrison v. Fane [1840] , 1 M. & G., 550. (g) BrooJcer v. Scott [1844] , 11 M. & W., 67. Presumably because, if not a non-collegiate student, he would find dinner provided for him in the college hall. (h) NasJi v. Inman, L. R. [1908], 2 K. B., 1. This is quite in accordance with Foster v. Redgrave [1867] , L. R., 4 Ex., 35 (n), the case of an Oxford undergraduate and his tailor. (i) Pickering v. Gunning [1628] , Sir W. Jones, 182 ; Phillimore, J., in Collins v. Cory, " Times," 5 Feb., 1901. no UNIVERSITY LAW Chapter This would include matters subsidiary to the main IX 1 purpose of education, such as books for the schools, payment of battels, rent of lodgings, and drawing the necessary cheques. Where necessaries are bought the infant must, by the section of the Sale of Goods Act already cited, " pay a reasonable price therefor." But he cannot give a bill of exchange for them (k). At common law a contract by an infant was voidable and might have been repudiated or ratified on the infant coming of age, and 9 Geo. IV, c. 14, enacted that ratification must be in writing. But the whole law was altered by the Infants' Relief Act, 1874, since which any contract entered into by an infant (other than for necessaries) shall be absolutely void, and no action lies against: him upon ratification made after full age. A contract for payment of a loan made during infancy is also avoided by the Betting and Loans (Infants) Act, 1892. For torts the infant is liable. Ginnett v. Whittingham, above, is good authority for this. There was no doubt as to his liability, the only point was whether conusance lay. But the tort must be independent of contract, and a contractual liability cannot be got rid of by framing the action in tort (Z). The infant may be liable for an independent tortious act which he was expressly forbidden to do by the other party to the contract. In the leading case on the subject an undergraduate of Trinity, Cambridge, hired a horse, the owner expressly stipulating that it should not be (7c) Be SoltyJcoff, L. R. [1891] , 1 Q. B., 413. {I) Jennings v. Rundall [1799], 8 T. R., 335. MISCELLANEO US u i used for jumping, and the Trinity man only paid the chapter amount charged for a horse not expected to jump. — - The defendant lent it to a friend who jumped the horse and staked it. It was held that the defendant was liable. " There has been an actionable wrong," said Erie, C.J., "for which the defendant is liable, independently of the finding of the jury that the hiring of the horse was a necessary suitable to the degree and station in life of this young man "(?ft). Representation by an infant that he is of age apparently does not allow him afterwards to insist on his absence of capacity to contract (n). But it seems doubtful whether if he represent himself as agent when he is not, he would be liable to an action for breach of warranty of authority, an action of tort. The case might be illustrated by a man under twenty-one opening an account at an Oxford bank and falsely declaring to the manager that he had his father's authority to do so. The father would not be liable on an overdraft. Would the son be, unless indeed the cheques were for necessaries ? An under- graduate, besides making himself liable for education, might enter into a valid contract for tuition to others or for the post of assistant-master in a school, (in) Burnard v. Haggis [1863] , 14 C. B., N. S., 45. (n) This seems to be the effect of such cases as Mills v. Fox [1887] , 37 Ch. D., 153. At common law, before the Judicature Acts, there was no liability on such representation, StiTceman v. Dawson [1847], 16 L. J. Ch., 205. Eoman law allowed liability of the minor where he became locupletior, Dig. iv, 3, 1, 13. In Wool/ v. Woolf [1899] , 1 Ch., 343, an injunction was granted, and the infant had to pay costs. U2 UNIVERSITY LAW chapter if the terms be fair and reasonable and not mani- T"V -«-^. 1 festly to his disadvantage (o). Protection from betting circulars and similar temptations is afforded to minors by the Betting and Loans (Infants) Act, 1892. Under the provisions of this Act the sending of any such circular to any person at any university, college, school, or other place of education, where such person is an infant, is guilty of a misdemeanour, and the sender shall be deemed to have known that such person was an infant, unless he proves that he had reasonable ground for believing such person to be of full age. There is probably an implied contract that a university or college supplies efficient tuition. An action would lie by an undergraduate — by his next friend should he be an infant — for breach of the contract to educate (p). A member of a college is bound to conform to reasonable rules of discipline, and if he do not do so, the contract to educate is not broken. In a recent case a Cambridge undergraduate was expelled for refusal to go to chapel. He brought an action for breach of contract to educate. The college set up the Statute of Frauds as a defence of the alleged contract, also that by 56 & 57 Vict., c. 61, s. 1 (q), more than six months had elapsed since the act complained of. On the trial at Herts Assizes, Wills, J., directed judgment for the college on the ground that the relation of an undergraduate (o) See cases in Anson, Law of Contract, pt. ii, c. iii, s. 2. {p) This was one of the grounds of action in the well-known Haileybury case, Hutt v. Governors of Haileybury College [1888] , 4 " Times " L. R., 623, as well as in the following case. (q) The Public Officers' Protection Act, 1893. MISCELLANEOUS 113 to his college was in matters of discipline not a con- chapter tractual one(r). Even if over twenty-one years of 1 age the undergraduate has no borough vote for Oxford or Cambridge, whether he reside in college or in lodgings (s). The only exception is to be found in scholars of Trinity College, Dublin. The under- graduate is liable to the criminal law like any other subject, the only difference being that in some cases he is amenable to a special tribunal. At the same time he cannot create a crime by persuading a companion of the other sex to walk with him (t). Modern Universities The law as to these is less interesting ; it is mainly statutory, and there are few reported decisions. In most cases the Crown is visitor and nominates the first Chancellor, subsequent holders of the office being elected by the university (u). The Medical (r) Green v. Peterhouse, " Times," 10 Feb., 1896. The contract to educate might also be broken should an undergraduate be expelled or sent down for a definite time without being heard in his defence. Un- less indeed it be one of the rules of discipline, as it is in many colleges, that failure to pass university examinations in a given time means withdrawal from the college. (s) See cases in Appendix. (t) As was iheld in the famous case of B. v. Hopkins, already noticed. (u) Unlike Oxford and Cambridge the modern universities, except Durham, receive subventions from the State. In the Appropriation Act, 1908, appears the item, " for grants in aid of the expenses of certain universities and colleges in Great Britain and of the expenses under the Welsh Intermediate Education Act, 1889, £221,800." The part of this granted to the English Universities varies from year. See Parliamentary Paper, 1909, [192] , containing a Treasury minute recommending an aggregate sum good for a quinquennium. W.U. I 114 UNIVERSITY LAW chapter Acts and the exemptions from the Mortmain Acts — '- generally apply, but, except for Durham, not the Universities and College Estates Acts. Durham has had a long history. In the four- teenth century Thomas of Hatfield, Bishop of Durham, founded Durham College for eight monks and seven students at Oxford. It was practically a cell of Durham Abbey. In 1657 Cromwell founded a university, P. Hunton being the Provost, but recalled the grant on petition from Oxford and Cambridge. Durham College, Oxford, now represented by Trinity, was dissolved in 1548, and the proceeds granted to the Dean and Chapter. The present university was founded by royal charter, confirmed by 2 & 3 Will. IV, c. xix, and followed by an order in council of 1837, under the name of " The Warden, Masters, and Scholars of the University of Durham." The bishop was visitor and the dean Warden. There was a re- constitution by the Durham University Act, 1861, and ordinances framed under that Act were approved by order in council in 1862. Finally, the University of Durham Act, 1908 (8 Edw. VII, c. 20), again reconstituted the university. The bishop remains visitor, the dean ceases to be Warden and becomes ex officio Chancellor, the corporate name of the university being altered accordingly. There is a Senate and Convocation and a Council of the Durham Colleges. The canonries annexed to the professorships of divinity and Greek remain so annexed and appointments to them are made by the visitor. The Newcastle division of the university MISCELLANEOUS 1 1 5 consists of the Durham College of Medicine and chapter IX. the Armstrong College. Commissioners are appointed — - by the Act to frame statutes. Resident members of the university are exempt from service in the militia by 15 & 16 Vict., c. 50, s. 61. The Univer- sities and College Estates Acts, the University Tests Act, and the Mortmain Acts include Durham. There appear to have been no judicial decisions affecting Durham specially (x). The Municipal Corporations Act, 1882, s. 257, enacts that nothing in the Act is to affect the rights or privileges granted by charter or Act of Parliament to the University of Durham. London was incorporated by letters patent in 1836. A subsequent charter was granted in 1863, and a supplemental charter in 1878, enabling women to graduate. The university was reconstituted by the University of London Act, 1898 (61 & 62 Vict., c. 62, amended 1899), which appointed a commission to make statutes and regulations in accordance with the report on the proposed Gresham university and with the schedule to the Act. It is within the exceptions to the Mortmain Acts. The governing bodies are the Senate (with three standing com- mittees) and Convocation. The King is visitor. 15 & 16 Vict., c. 60. s. 21, exemptions from service in the militia are given to members of the senate and examiners, professors, tutors, and lecturers, also to students duly matriculated and actually receiving education. Medical graduates were put (x) See J. T. Fowler, Durham University (1904). u6 UNIVERSITY LAW Chapter in the same position as medical graduates of Oxford — and Cambridge by 17 & 18 Vict., c. 114, and 36 & 37 Vict., c. 55. One member of Parliament was allotted to the university by the Representation of the People Act, 1867, and elections are not subject to the Ballot Act, 1872. Two reported cases affecting the university will be found in the Appendix. Some private Acts deal with the constituent colleges, e.g., 3 Edw. VII, c. xcii as to King's college ; 5 Edw. VII, c. xci as to University College. The Victoria University was founded by charter in 1880. By the Victoria University Act, 1888, graduates of the university having the qualifying degree are entitled to any office, privilege, or ex- emption given by Act of Parliament or public authority to graduates of Oxford, Cambridge, and London. The federal system after lasting over twenty years was not successful, and the Privy Council after hearing evidence approved of the grant of separate charters to the three constituent colleges. Victoria University of Manchester kept the old name with the addition of the name of the city. There is no public Act subsequent to the Act of 1888, but by 3 Edw. VII, c. xiii (1904), the Victoria University has been put in the same posi- tion as to gifts in mortmain as the older universities. It has also been enabled by supplemental charters to admit women to degrees and to assume discipli- nary powers over delinquent graduates. This has been generally followed in the charters and Acts MISCELLANEOUS 117 constituting the newer universities. The buildings Chapter of the Owens College are not rateable, as the — - trustees are under a statutory incapacity to let the premises at a rent (y). Leeds merged the previous University College of Leeds in itself by 3 Edw. VII, c. xxxv. By the Leeds University Act, 1904, wherever any office is open to graduates of Oxford, Cambridge, London, and the Victoria University of Manchester, or wherever any privilege or exemption has been or shall be given by any Act of Parliament or regula- tion of a public authority to graduates of those universities, graduates of Leeds having the quali- fying degree may hold any such office and be entitled to such privilege. Liverjjool merged the University College of Liverpool by 3 Edw. VII, c. ccxxxii. Provisions similar to those of the Leeds University Act were contained in the University Liverpool Act, 1904. Wales (Prifysgol Gymru) obtained its charter in 1893. Provisions similar to those of the Leeds Act were contained in the University of Wales Act, 1902. Some private Acts deal with constituent colleges of the university, now the only federal university remaining. An example is the Bangor Corporation Act, 1903 (3 Edw. VII, c. ccxlii), as to the site of the North "Wales College at Bangor. It has recently been held that the property of the North Wales (y) Owens College v. Chorlton, [1887], 18 Q. B. D., 403. For the history of the college see I. Thompson, The Owens College (1886). Acts regulating it were passed in 1870, 1871, and 1899. n8 UNIVERSITY LAW Chapter College is not liable for income tax, as it is occupied — '- for charitable purposes under the Income Tax Act, 1842(2-). The King is "Protector" of the univer- sity, presumably the same thing as visitor, the Prince of Wales is Chancellor. "What has already been said as to educational endowments under the Endowed Schools Acts must be read subject to the provisions of the "Welsh Intermediate Education Act, 1889. The Act does not name universities or colleges. The Welsh charter is said to contain the most complete provision of any as to women's education and graduation (a). Birmingham is mainly regulated by the Birming- ham University Act, 1900 (63 & 64 Vict., c. xix), repealing the Mason University College Act, 1897. Sheffield obtained its charter and Act in the same year, an example of unusual celerity. The Act is the University of Sheffield Act, 1905 (5 Edw. VII, c. 152). Bristol obtained a charter in 1909. In all these universities new statutes must as a rule be approved by order in council, as at Oxford and Cambridge. An example is the statute establishing a faculty of law at Sheffield in 1908. It is generally provided that statutes or ordinances are not to be repugnant to the laws of the realm or the general objects of the charters. A charter is to be (z) B. v. Commissioners of Income Tax, [1908], W. N., 92, affirmed [1909] , W. N., 57. (a) W. C. Davis and W. L. Jones, Hist, of the University of Wales (1905). MIS CELL A NEOUS 119 construed beneficially for the university. Sometimes, chapter as by the Victoria University Act, 1904, preference — is given, in case of inadequacy of accommodation at the university, to children of parents residing in the university town. The modern universities differ from Oxford and Cambridge in having on the Court a large representation of local public authorities. The Court is the ultimate governing body and directs the custody and use of the common seal. Convocation consists of graduates, sometimes of M.A. or superior degree, sometimes including those of B.A. degree only. The Senate generally regulates education, subject to review by the Court. The Council is a comparatively small executive body which drafts statutes and ordinances. Such is the general constitution of modern universities, but it is not universal, for Durham and London have no Courts. APPENDIX OF CASES With this selection in addition to those noticed in the text, it is hoped that few cases of importance have been overlooked. Occasionally a case to which a college is party has nothing to do with university law. Such cases have not been inserted. Examples are The Lincoln College Case, [1595], 3 Rep. 59 ; Emmanuel College v. Evans, [1625], Rep. in Ch., 10 ; Clare Hall v. Harding, [1848], 17 L. J., Ch., 301. The American cases will be interesting as touching some problems which have not yet risen on this side of the Atlantic. Redvers v. Bardolf, [1292], Y. B. 20 Edw. I, 296 (Rolls Series). Action of replevin. Avowry of taking to be good on ground that Bardolf had a leet and Redvers was resident within the precinct of the leet, and that he was in a decennary and was amerced and distrained for the amercement. Redvers claimed that he ought not to be in a decennary, for that he was a clerk conversant a les ecoles. He produced a letter of the Bishop of Ely and of the Chancellor of Cambridge (Caniurbure), testifying this. Amercement annulled and damages for distress awarded. Chase's Case, [1430], Y. B. 8 Hen. VI, 18, 7. Writ of trespass against Thomas Chase of Oxford for goods seized. Defence that King Henry IV by letters patent granted to the Chancellor of Oxford and his successors that they should not be impleaded by any writ of oyer and terminer or trespass or con- tract by reason of his office within the town of Oxford. The Chancellor or his commissary may by the letters patent be judge himself (son juge demesne) in trespass. Henry VI in 1442 granted to Corpus, Oxford, discharge from toll and pontage all over England. This was held to be a good grant, 2 Roll. Abr., 198 (a). Corpus Christi, Cambridge, Case, [1561], Dal. 31. If a master of a college devise lands to the college it cannot take, (a) The report says Corpus, Oxford, not founded till 1516. Probably Corpus, Cambridge, or Benet, founded 1352, must be meant. 120 APPENDIX OF CASES 121 because at the moment of his death it is incomplete and acepha- Appendix lous. This decision, though supported by Littleton, s. 443, of cases, would probably not be followed at the present day. Even were it still good law, the difficulty might be evaded to a devise to trustees for the benefit of the college and any future master. Dean of Christ Church v. Parott, [1578], 4 Leon., 190. If the King grant lands to a corporation by another name than that by which they were named before, the lands shall pass and the letters patent shall be to them a new incorporation. A.-G. v. Margaret Professor, [1682], 1 Vera., 55. A testator devised fifty pounds a year for a lecturer in polemical or casuistical divinity, so as he be a bachelor or doctor in divinity and fifty years of age and would read five lectures in every term. Cambridge, the heir-at-law consenting, would have had the conditions reformed so as to admit a lecturer forty years of age and three lectures a term. The Lord Chancellor, although there was no opposition, refused to sanction the proposed alteration in ihe terms of the will. Allan Francis'' Case, [1687], 11 St. Tr., 1315. Francis was a Benedictine monk, whom the "Vice-Chancellor of Cambridge refused to admit to the degree of M.A. without the oaths, in accordance with the King's letters under the sign-manual. The Ecclesiastical Commission deprived the Vice-Chancellor, the Master of Magdalene, of his degrees (&). Magdalen College Case, [1687], 12 St. Tr., 1. The vice- president and fellows were twice cited before the Ecclesiastical Commission to show why (1) they had not elected Anthony Farmer President in accordance with the King's mandate ; (2) they had not elected the Bishop of Oxford in accordance with a second mandate. Farmer was disqualified by reason of his immoral life and his not having been fellow of Magdalen or New College. John Hough was elected in his stead and admitted by the Bishop of Winchester as visitor. On that the King by two mandates, one to the college, the other to the Ecclesiastical Commission as visitors of the university, appointed the Bishop of Oxford President, and the fellows submitted " as far as is lawful and agreeable to the statutes of the said college." The Commission on November 16, deprived twenty-five fellows of their offices, and on December 10, declared Hough and twenty- six fellows incapable of promotion to any ecclesiastical dignity or benefice. The deprived fellows were restored on October 11, 1688 (c). (6) A special report of the case was published in 1889. (c) There is a large amount of literature dealing with this famous 122 UNIVERSITY LAW Appendix Phillips v. Bury, [1694], 4 Mod., 106. This was an action of cases. f ejectment for the Rector's lodgings at Exeter. The defendant, the Rector, who had been appointed in 1666 — chiefly on the strength of a letter from Charles II — had deprived Colmer, a fellow, for immorality. Colmer appealed to the visitor, Bishop Trelawney, well known as one of the Seven Bishops. The visitor sent his chancellor to restore Colmer. He was refused admittance. The visitor then appointed a visitation after notice, but the college gates were closed against him. The Hector was then deprived for contumacy by the visitor. The case went up to the House of Lords, and was decided in favour of the plaintiff on the ground that the decision of a visitor is a judgment in rem and conclusive, and that the office of visitor necessarily carries with it the power of deprivation. Such power the founder could not restrain, he having created the Bishop of Exeter and his successors visitors (d). Tremain's Case, [1719], 1 Str., 167. Being an infant he went to Oxford contrary to the order of his guardian, who would have him go to Cambridge ; and the Court sent a messenger to carry him from Oxford to Cambridge. And upon his returning to Oxford there went another tarn to carry him to Cambridge quam to keep him there (e). case. N. Johnston, M.D., was a strong supporter of the royal claim in The King's Visitatorial Power asserted (1688). C. Aldworth, the vice-president, naturally took the other side in An Impartial Relation of the whole Proceedings against St. Mary Magdalen College in Oxon. (1688). There are other books on the question by Sir C. Hedges, T. Cartwright, Bishop of Chester, a member of the Commission, and others. The authorities will be found in J. R. Bloxam, Magdalen College and James II (1886). A similar case had occurred a century earlier at Corpus, Oxford. In 1568 the Queen sent a mandate to the visitor to admit Cole President. This was obeyed after the expulsion of the offending fellows, 1 Wood, 290. Two fellows were also expelled at Magdalen a generation later, but by the President and fellows, not the visitor. The proceedings took place in 1730. The minor poet, Dr. Thomas Lisle, fellow and bursar, was with some of his colleagues accused of " blasphemy and other vile practices, but he was acquitted." (d) This case caused great excitement at the time. One proof of this is the unusual number of reports in which it appears. In addition to Mod. it will be found in Cases in Pari., 35 ; Skinner, 447 ; 1 Salk., 400 ; Carth., 180 ; 2 T. R. 236. A longer description of the proceed- ings is given in The Case of Exeter College in the University of Oxford related and vindicated (1691), by the date before the House of Lords' decision, and in C. W. Boase, Registntm Collegii Exoniensis (1894), p. cxxix. The name appears in some reports as Berry or Bery. (