Chapter VI: Appendix (2)

The University of _Cambridge_ was possessed of a jurisdiction over its own members, as _clerici_, many years before _any_ was granted to it by charter from the Crown. This jurisdiction, being ecclesiastical, seems to have been originally derived from the Bishop of the diocese. The causes cognisable by the University were chiefly causes of correction; the rule of proceeding in the Court was the ecclesiastical law, and Statutes of their own making, consonant to that law. The censures inflicted upon offenders were either ecclesiastical, _viz._ _excommunication_, _suspension_, &c.[101] or such as were appointed by the Statues for particular crimes; and the names of _places_, _offices_, _pleaders_, the same as are used in Ecclesiastical Courts to this day.

This jurisdiction was not usually exercised by the University in its _collective_ capacity. But a particular officer was empowered to exercise it, under the name of _Chancellor_; who as _official_[102], acted by an authority derived to him from the University, was accountable to them for the use of it, and liable to have his acts annulled at their discretion; every person who thought himself aggrieved by the Chancellor being at liberty to apply to the Body for redress.

When an _Appeal_ was brought before the University, they usually authorized Delegates to hear and judge it, as was agreeable to the practice in other Ecclesiastical Courts.

The jurisdiction here described was not originally independent; for no academical decision appears to have been _final_. An Appeal always lay from the judgement of the University by their Delegates to the Bishop of the diocese, till the University was exempted from his authority, and their jurisdiction made _final_ by Royal Charters, confirmed by Act of Parliament.

In the reign of _Henry_ III. attempts were made to carry Appeals _directly_ from the Chancellor to the Bishop, and so to pass over the Appeal to the University, which ought to have been an intermediate step. But _Hugh de Balsam_, Bishop of _Ely_ (the founder of _Peter-House_), by a rescript, dated Dec. 1264, entirely frustrated all such attempts.

Hitherto, the Appeals to the University had been from _causes of correction and censure_. The University was not as yet possessed of jurisdiction in civil causes. Scholars were first allowed to implead the burgesses and other laics of the town of _Cambridge_, in all kinds of personal actions, before the Chancellor of the University, _anno_ 33 _Ed._ I. From that time, the University began to acquire a civil jurisdiction, which, by degrees, was inlarged and established by grants from the Crown in succeeding reigns. And now, in consequence of this jurisdictions, Appeals were extended from criminal to civil causes. Accordingly, in a rescript of _Simon de Montacute_, Bishop of _Ely_, which bears date _16 cal. April, anno 1341_, there is express mention of Appeals to the University in causes of _both_ kinds. For the design of this _rescript_ is to commission the University to determine _finally_ in all _civil_ causes, without a further Appeal to his Court; and to prevent frivolous and vexatious Appeals from the University to him in _criminal_ causes, by laying the Appellant under the obligation of an oath.

This addition of _civil_ power did by no means abrogate or lessen the _spiritual_. We find, in the reign of _Hen._ VI. that all sorts of ecclesiastical authority were adjudged to belong to the University, by the Prior of _Barnwell_, the Pope’s delegate; and it was then made appear, that all these branches of power had both been claimed and exercised time out of mind. It is certain, the _probate of wills_ hath at all times belonged, and still belongs, to the University. The power of _excommunication_ was exercised as late as the reign of _Hen._ VIII. and the power of _absolution_ is exercised at this day. This ceremony is constantly performed on the concluding day of each term. And here, to observe it by the way, gentle Reader, a goodly and reverend spectacle it is, to behold the spiritual Head of our University spreading his paternal hands, like another Pope, over his erring and misguided flock, who, in all humility, receive his ghostly absolution on their knees.

It is true, the new objects of litigation, introduced by the royal charters, occasioned an alteration in the _Law_ of the University. For the ecclesiastical laws did not suffice for the decision of controversies about civil rights, particularly contracts between scholars and townsmen, and breaches of the peace. From the time, therefore, that these new causes came before the Chancellor, to the reign of _Edward_ VI. his Court was directed, as our Spiritual Courts are now, by a mixed kind of law, made up of canon and civil law[103]. Yet this must not be understood without restriction. For the University, like other corporations, had all along a power of making _local Statutes_; and not unfrequently particular _usages_ acquired the force of Statutes, from long continuance.

But whatever changes were made, either by express Statute, or in consequence of a more extended jurisdiction, the practice of appealing from the Chancellor to the University still continued; only, as was observed, with this difference, that it now was allowed in civil, as before it had been in criminal causes.

The right of appeal which then subsisted received a fresh confirmation from the Statutes made by the University itself. In these Statutes the right is not only referred to and presupposed, but directions are given in regard to the manner of exercising it[104]; which directions, till cancelled by succeeding Statutes, established the right as effectually as if it had been originally introduced by Statute. The times when many of these Statutes were made cannot be fixed; but it is certain they were collected and transcribed into the Proctors’ books between the year 1490 and 1500.

In the reign of _Edward_ VI. a body of new Statutes was given in a Visitation under an ecclesiastical commission; which enjoined, among other things, that the jurisdiction of the University should be directed by the _Civil Law_; that is, as every one understands, a mixture of the Civil and Canon Law; or what _Oughten_ calls _Jus Ecclesiastico-Civile_; the same which prevails in all Ecclesiastical Courts to this day. And, in the first year of Queen _Elizabeth_, Statutes were again given to the University in a Visitation under a like commission; which were almost an exact transcript of those before given in the reign of _Edward_ VI. The right of appealing from the Chancellor to the University received no alteration from these Statutes. For there is no change in either of them by which such Appeals are forbidden or even restrained. Accordingly, the practice appears to have continued to the time when Queen _Elizabeth_ gave her _second_ body of Statutes (under the broad seal indeed, but not by Visitors under ecclesiastical commission), which was in the year 1570. What alterations have been made by these, or by the practice of later times, remains to be considered.

It is plain from several passages in Queen _Elizabeth’s_ new Statutes, that many of the ancient Statutes and customs of the University were designed to be continued; and in Stat. 50 we have a direction given, by which we may understand what Statutes and customs were to be preserved, and what not. Those only she declares to be taken away, _quæ Scripturis Sacris, institutis nostris, istis Statutis adversari videbuntur_; of which number the practice of appealing from the Chancellor to the University was not one.

There is, besides, the less reason to imagine this practice was abolished, because, in Stat. 42, the Queen requires all causes to be heared and determined _secundum jus civile_; and in her Charter to the University, confirmed by act of Parliament, _secundum leges et consuetudines suas, ante tunc usitatas_, which, as appears, were agreeable to the _Civil Law_. This _law_ allows Appeals in cases of correction and censure; and therefore it is _certain_ that Appeals were allowed by Queen _Elizabeth_.

Indeed, nothing but a clear and express prohibition could make us imagine, that the right of appealing, a right of particular importance, was designed to be either wholly abolished, or restrained only to civil causes. And such prohibition, had it been the Queen’s intention to forbid Appeals in any case, might the rather have been expected, as, in the 48th Stat. where several directions are given concerning Appeals, _one_ ancient usage of the University[105] in relation to them is expressly forbidden: _nec secunda provocatio omnino admittatur_. Yet she gives not the least hint of restraining Appeals to any particular sorts of causes; which surely were an unaccountable omission in this place, had she actually intended to lay them under any such restriction. And, indeed, it is evident from a _MS._ of unquestioned authority, that neither the Body of the University, nor the Heads themselves (some of them supposed to have been concerned in compiling the Statutes), had the least imagination of such restraint. What I mean is, a _MS._ in _C. C. C. Library_, containing _some Complaints of several of the Body of the University, in the year 1572, against Queen_ Elizabeth’s _second edition of Statutes, and the Answers of the Heads, &c._ One of their complaints is _the frustrating_ Appellations, by transferring the power of nominating Delegates from the _Proctors_, in whose hands it was before lodged, to the _Caput_; and by encreasing _the forfeit of Appeals_, from a very inconsiderable sum to 20_s._ with an addition of 2_s._ to be paid to the Proctor; an expence which, as was then urged by the Body, would prevent _poor scholars injured from the benefit of appealing, having not so much money_. What, now, is the answer of the Heads to this complaint? Why, that, _for the stay of the quietness of the University_, it was necessary to lay Appeals under these restrictions. Not a syllable is said against the right of appeal itself in any case; though the complainants had expressly set forth the importance of having Appeals unincumbered by these limitations, for the _redress of wrongs_ in _general_. Nay, the wrongs they apprehended are even specified; such as punishments _of a regent in the regent-house, for modestly asking a question; or of a disputer, for modestly disputing_; which, if we are to call them _causes_ at all, are surely _causes of correction_.

Nay, so far are these Statutes from _prohibiting_ Appeals, that they have actually given the strongest sanction to this practice, by admitting the right in very general terms, and prescribing rules for the exercise of it. _Stat._ 48.

The subsequent practice till of late years cannot now be known, either from the neglect or corruption of the University _Registers_, who have not taken care to record the proceedings before Courts of Delegates. Only a few loose papers have been accidentally preserved, from which it appears that Appeals were allowed in _civil_ causes, and there is no reason to imagine they were discontinued in causes of _correction_, as no distinction was made by the Statutes on trials between civil and criminal causes.

But if it were true in fact, that no Appeals had been heared between 1570 and 1725, in causes of correction and censure, yet this would not affect the right, any more than the want of Appeals from a censure of a _peculiar_ sort would render that single kind of censure unappealable. For, a right extending to various particulars will not surely be lessened from want of opportunity or inclination to exercise it in _every one_ of them. And such disuse would be the less strange in the instance before us, because the discipline of the University hath been chiefly supported by censures inflicted in particular Colleges. Little of this business is left to the Vice-chancellor; and they who know the University, and wish well to it, will not, perhaps, desire to see more of it in his hands.

If the supposed disuse of Appeals in criminal causes shall yet be thought to have abolished the _right_, the opinion now to be produced will at once remove such suspicion; even though it should not be insisted, as it may, that this pretended prescription itself is already destroyed, by _three_ instances of Appeals in _causes of correction_, the first of them in the year 1725.

But, before I proceed any further, I would beg leave to make one _general_ observation on what hath been now advanced. It is this: A great Civilian had expressly affirmed, “_that Appeals are always admitted in those Courts where the civil and ecclesiastical Laws are in force, where penance, suspension, deprivation, or any censure is inflicted as the punishment of a fault_[106].”

To all which the writer of _the Inquiry_ gives his entire assent: _The observation_, says he, _is undoubtedly just_. Now the capable and impartial reader is left to judge, whether it be not most evident, from the _facts_ here offered to his consideration, that the jurisdiction of the University is, in the properest sense of the word, _Ecclesiastical_; and further, whether the _Civil_ and _Ecclesiastical Laws_ be not _of force_ in the University Court. The dispute then is brought to a short issue. _Appeals are_, by the full consent Of the Inquirer himself, _to be admitted_.

I come now to the OPINION itself; of which I will only say, further, that it was not given by the great person hastily or negligently, but with all the care and deliberation which so important a matter deserved: as is clear, not only from his diligence in calling for and inspecting the _Commissary’s Patent_, which, he clearly saw, was of moment to the determination, but from the time he took to consider it. For the _Queries_ appear to have been put some time before _Christmas_; and this Opinion bears date the 18th of _March_ following.

_Qu._ I. “Whether Appeals to Delegates by the Statute _de
causis forensibus_ are restrained to _civil causes_, in which
two parties are litigant?”

_Ans._ The Statute _de causis forensibus_ is penned in such
general terms, that I think the Appeal to Delegates thereby
allowed cannot be restrained to civil causes only, wherein two
parties are litigant, but doth extend to causes of correction
and censure; the rather because the Appeal from the Commissary
to the Vice-chancellor is given in the same clause, and in
the same manner, with the Appeal from the Vice-chancellor to
Delegates; and the words of the Commissary’s Patent extend
as well to causes of correction and censure as to civil
causes. Now there can be no doubt but that an Appeal lies
from the Commissary to the Vice-chancellor in all cases.
The entry in Mr. _Tabor’s_ Register imports that, even in
causes of correction, an Appeal lies from the sentence of the
Vice-chancellor, when he doth not act jointly with the major
part of the Heads of houses.

_Qu._ II. “Whether by the Statute _de Cancellarii officio_,
which binds the Vice-chancellor to proceed _secundum jus
civile_, an Appeal to Delegates can now lie in a criminal cause
against a prescription of 200 years to the contrary, excepting
only the case of _Campbell_, _anno_ 1725?”

_Answ._ There can be no prescription in this case, because the
question depends on Statutes, given within such a space of
time, as the Law calls, _time of memory_.

_Qu._ III. “In case the Delegates should receive an Appeal,
from the Vice-chancellor’s court in a cause of this kind,
and cite the Vice-chancellor to appear before them, what the
Vice-chancellor should do? Whether appear before them, and
appeal from the sentence of the Delegates to his Majesty in
council; or not appear, but apply immediately to his Majesty
by petition; praying a prohibition, to stop the proceedings of
the Delegates?”

_Answ._ Supposing that there is a right of appealing to
Delegates, from the sentence of the Vice-chancellor, in a cause
of correction or censure, no authority can be interposed to
stay the Delegates from proceeding. But if the Delegates should
not have a jurisdiction, his Majesty in council cannot grant
a prohibition to them: and if upon an incident of this kind,
the Vice-chancellor should think fit to bring the point to a
judicial determination; the only proper method, is by applying
to some of the courts at _Westminster_, for a prohibition to
the Delegates proceeding.

_18 March 1730._

The reader sees, by this determination, that the question turns entirely upon this point; whether, supposing there had been no Appeals in cases of discipline from the year 1570 to 1725, as is asserted, but without proof, the intermission of the exercise of this right for so long a space, could amount to a legal abolition of it. To which the great Lawyer, whose Opinion has been recited, replies expressly, NO. If any should then ask, what evidence there is of such a _right_ subsisting at that time? Besides the Statutes themselves, insisted on in the Opinion, I can now refer him to the brief hints which compose the preceding account of the jurisdiction of the University; and which the reader may be assured, are advanced on the best grounds. Much more might, indeed, have been said; for what I have thought fit to deliver at present on the subject, is but a small part of that evidence, which can and will be produced, if it be found expedient to do it. In the mean while, I may well excuse myself from this trouble. For to talk further on these matters to a person, who appears so wholly ignorant of the History of the University, as the _Inquirer_, were a vain waste of time; and to take the pains of confuting particular objections, founded on that ignorance, a still vainer. Only I will condescend to put him in mind of one essential defect in his argument which runs through his whole pamphlet. It is, that he all along goes on the supposition, that the _express_ authority of Statute, is required to make good the claim to Appeals. And he therefore very idly lays out his whole strength, in attempting to prove, that no such express authority is to be found, either in the _old_ or _new_ Statutes. I own, I could not but smile, at first, to observe the Inquirer addressing himself, with so much importance, to this task. But, when afterwards I came to consider, the labour and difficulty, with which he was forced to make his way, for this wise purpose, through the _discouraging_ δυσνόητα (for so I presently saw, he found them to be) of the _old Statutes_, I could not, upon second thoughts, but pity his unnecessary sufferings about them; and was even tempted in my own mind, to blame the waggery of _the Fellow of a College_, whose request had drawn him into all this trouble, and who, to divert himself with him, had plainly put him on so wrong a scent. The truth is, I could not think this usage fair in his _good friend, to request him to draw out his sentiments, on such a point_; especially, as he tells us, his time was _so precious_, and that he had so little of it to spare, amidst _the variety of his necessary avocations_[107]. It had, surely, been more kind to inform him at once, as I shall have the goodness to do, that no body, who understood the matter in debate, ever pretended to found the right of Appeal on _express_ Statute; it being well known, that the _right_ stands entirely on the nature of our _jurisdiction_; in consequence of which, there has been a continued immemorial practice of appealing in the University; supposed indeed, and admitted in both the _old_ and _new_ Statutes, and authorized by the prescription of various rules, for the exercise of it; but neither expressly commanded, nor prohibited in either.

And now, having done this act of charity towards the _Inquirer_, which may prevent his future pains, in puzzling and perplexing himself with the study of the old Statutes; I shall have reason to expect, in return, his good leave to expostulate with him pretty freely on the use, he proceeds to make of this unhappy blunder. For, plumed with the vain conceit of the University’s resting their claim on the sole express authority of Statute, he goes on, to insult so considerable a body of men, in the most opprobrious manner; as guilty of the most absurd and irreverent behaviour, as well towards our illustrious Chancellor himself, as the Vice-Chancellor, and his brethren, the Heads of Colleges. What I mean, is in relation to the _Grace_, which the assertors of the right of appeal thought fit to propose, in order to refer the decision of this point to the arbitration of the Senate. He harangues, for several pages, on what he calls, the irregularity and indecency of this proceeding; and affects besides, to cavil at the substance of what was proposed in it. But, good Sir, where was the _irregularity_ of the Senate’s presuming to confirm, by their own authority, a _right_, essential to their constitution, authorized by immemorial prescription; and which no single Statute, they act under, in any degree contradicts? Or, where was the _indecency_ of opposing the exercise of that power in the Vice-Chancellor, which is inconsistent with the very nature of our jurisdiction; for which, he can plead the sanction of _no_ Statute; and of which he was never rightfully possessed?

As to the _Grace_ itself, the substance of what it proposed, was to this effect: “That the right of appeal, from the sentence of the Vice-Chancellor to the University in all cases, should be confirmed to every member of the _University_; but that this _right_, with regard to persons in _statu pupillari_, should be exercised only by the tutor of each person, interposing in his name.” This, it seems, gives great offence to the _Inquirer_; who, in his tender concern for the authority of the supreme magistrate, is perfectly shocked, to think of the consequences of such a right being acknowledged; and is prophet enough to foresee, that it would bring the lowest disgrace upon his office, by _warranting the arraignment of him_, as he puts it, _before Delegates, upon no very important occasions_[108]. But his fears are as groundless, as the insinuation, which he labours to convey under them, is impudent and unjust. For, though an appeal be claimed _ab omni gravamine utcunque illato_ (which sure is nothing but reasonable, as the Statutes make no distinction, and the practice, as well as _Law_ of the University, equally authorizes Appeals in every case) yet, why should he throw himself into this unseasonable panic, when all _frivolous and vexatious Appeals_ are expressly provided against, by a considerable pecuniary caution, and when the Delegates themselves are, in effect, of the supreme magistrate’s own appointment[109]? Would the members of the Senate, does he think, appeal from any judicial sentence, though ever so just and statutable, _on no very important occasion_, when a certain expence is necessarily incurred, and when there could not be the least hopes of redress? Or, would any tutor can he imagine, who has a character to maintain, and who is not less concerned to support good order and discipline, than the supreme magistrate himself, interpose his claim of Appeal for his pupil, without, at least, some fair and reasonable grounds?

But the insinuation, as I observed, is still more impudent, than his apprehensions are groundless. For what he would covertly signify under this impertinent sollicitude for the honour of the supreme magistrate, is, that the Delegates, who are the representatives of the collective body of the University, are unworthy to take cognizance in any case of the acts of their _officer_[110]: Nay, that the members of the Senate itself are a company of factious, disorderly, licentious boys; who are impatient of any authority themselves, and would be sure to concur in all cases to countenance the irregularities of one another, or of the youth of the place; by setting them loose from all restraint, which the Statutes and discipline of the University have provided against them. There is something so outrageously insolent in this abuse of the body of the University; a body consisting of _three or four hundred persons_; the youngest of which is of the degree of _Master of Arts_; almost all of them _clergymen_; and the greater part of _equal age_, and it may therefore be presumed of _equal prudence_, as many of the Heads themselves; that I should be cautious of charging it upon him, if he had not expressed himself in terms too clear to be mistaken. For he has the assurance to advance in so many words, that “_if the person who apprehends himself to be aggrieved_, may happen to be a member of the Senate, and, _as such_, may possibly _bear with indignation the thought of having any part of his conduct judicially animadverted upon_; if it be further considered, that his _particular friends and acquaintance_ may possibly think the same in his case, and that _all the advocates for, and the warm assertors of independency_ will be sure to think so in every case, I do and must say, _&c._” And, again, in the words of the very provident Mr. _Tabor_, a little doting registrary of the University, a century or two ago; whose mumpings this writer has the confidence to oppose, to the united sense of the University, at this day: “What dangerous cure does that state hazard, when for the sullen distemperature of one active member, the ruling head must bleed, that suffereth enough otherwise; and all the discontented parts of the body must sit in judgment on it; nay when _Sense_ must disapprove or disallow the _acts of Reason_? If this Appeal be suffered and countenanced to pass current, farewell the power of Chancellor and Vice-chancellor; _my young masters of the regent house_ will and must judge, examine, and rule all; yea, _their_ censures or judgments must stand or be disallowed at their will and pleasure. Good Sir! by all means labour to smother this _Hydra_; it will have more heads than we shall overcome, and breed a greater mischief than we are aware, in these times of liberty and discontent[111].”

Such are the sentiments of this forward Inquirer of the Senate of the University of _Cambridge_: sentiments, which must needs create in the breast of any man of sense, who is a mere stranger to us, the strongest resentment; and for his public declaration of which, were the author known and considerable enough, he would judge him to deserve the severest censure, the University has it in its power to inflict. But what must those think, who have an opportunity of knowing the _characters_ of the men, whom he thus vilely traduces? Almost all of them fellows of colleges, many of them tutors, whose sobriety and good behaviour have recommended them to places of trust and profit in their respective colleges: Men, who are under the obligation of oaths, to maintain and promote statutable discipline, and regularity; who are trained in the habit of restraining and correcting academical disorders of all kinds; and whose situations and interests require them to be as watchful to support just authority and good order, at least, as the Heads of Colleges, or the officers of the University themselves. And the censure is the more grievous at this time of day, when, by the confession of the partizans of the Heads themselves[112], extorted by the very evidence of fact and truth, there never was a time in which the elder part of the University were more sober, temperate, and regular; when fewer excesses of any kind were chargeable on the fellows of colleges; or, indeed, when they were more prudent and exemplary, in their behaviour, in all respects. But the charge is not only unjust, but has a direct tendency to discredit and destroy that reasonable authority in the University, which this prater, if he means any thing by his talk, would seem ambitious to support. For how is the great affair of education and good government in this place to be carried on, but by means of those very persons, whom he would represent in so ignominious a light? For, certainly, how much soever the University may owe to the Heads of Colleges, in their capacity of _legislators_, yet, for the _execution_ of those laws which it seemeth good to their wisdoms to enact, they must still depend on the concurrence, I had almost said, on the sole authority of their _inferiors_. And how shall such authority be kept up, when they are thus upbraided, as abettors of every act of licence; and represented to the younger part of the University, as patronizers of that ungoverned independent spirit, which it is their office to restrain? Nor can I think so ill of the policy of these great lawgivers, as to believe that they will chuse to concur with this officious _Inquirer_, in representing them in such a light. For what will become of that balmy ease and quiet, in which these sovereign guides of youth so delight to wrap themselves, if the care of government must, after all, devolve on their shoulders; when a course of injurious calumnies shall have disabled their subordinate ministers from taking their place, and bearing, as at present they most commonly do, the full weight of it?

But to return to the _Grace_ itself, from which this reviler’s treatment of the whole body of the University has a little diverted me. He labours much, as I observed, to impress on the reader’s mind the opinion of the frightful consequences with which a right of Appeal in all cases would be attended; and to give a sanction to these fears, he alledges the authority of _the learned gentlemen of the long robe_, who, it seems, have pointed out the absurdity of such a practice, and the pernicious effects of it[113]. But what is all this tragical declamation to the purpose? Where is the sense, as I before asked, in supposing the University Senate would concur in every attempt of its idle and disorderly members to get themselves relieved from a deserved and statutable censure? Or, how should those _learned gentlemen_, whose robe he still hangs upon, be better able to judge of the expediency of this practice than the Senate of the University itself? Indeed he thinks the absurdity of this right of calling the supreme officer of the University to account for his judicial determinations the more glaring, in as much as, even in private colleges, _no act of discipline of the Head_, he fancies, _was ever liable to be reversed by any of the subordinate members_: nay, he is persuaded that his good friend, the Fellow of a College, for whose instruction all this is designed, _were he even authorized to new model the Statutes of his own College, would not chuse to vest in his brethren the Fellows such a power of controuling the acts of the Master_[114]. What the Colleges are which are here glanced at, and which leave the Master full power to exercise every act of discipline without controul, the _Inquirer_ himself best knows. For my part, I have always understood that _acts of censure_ in all private societies, such acts I mean as are of consequence to the reputation and interests of their members, are not left to the caprice of the Master, but are passed by the joint authority and concurrence of the Society itself; unless, perhaps, I am to except one _little_ College, in which, it is said, the Master claims to himself this sovereign and uncontroulable authority. But, then, this is no fair precedent. For the members of the College have nothing to apprehend from a licentious and wanton abuse of _such power_; as well on account of the known candour, equity, and moderation of the worthy president of that society, as for that a few exertions of it would leave him no subjects to preside over.

But, whatever may be the case of this _one_ foundation, the despotic form is not, I believe, statutable in any other. Nay, the authority of the fellows to controul the acts of their Head in some Colleges, I have been told, goes so far, that they are even impowered, in case of an _utter inability_ (such as may arise from extreme folly, dotage, or the like) _to govern prudently_, to remove him forthwith from his place. And surely this must be deemed a wise and sober institution; at least, were I _authorized to new model the Statutes of any College which wanted it, it is such an one as I should certainly chuse to vest in it_.

But there is one circumstance in the _Grace_ which, it seems, provokes his more _especial dislike_. And, unluckily, it is one which any other, who considered the tenor of it, would be likely enough more especially to approve; as shewing the singular moderation and good temper of the persons who proposed the _Grace_, and as studiously contrived to prevent all imaginable abuses of it. It is, that _the right of undergraduates to appeal should be exercised no otherwise than by the interposition of their tutors_[115]. A provision of great prudence; and which the proposers of the _Grace_, in their concern to support authority and just government, purposely made to obviate the only abuses that could be possibly apprehended from it. For, if the wanton exercise of the _right to appeal_ were to be feared from any quarter, it certainly must be from the inferior members; whose youth and inexperience might make them forward to appeal from any censure, however reasonable, and of which, therefore, the _tutor_ of the person censured, who is under all the ties of interest and duty to act discreetly and warily, is left to judge. Yet this provision, wise and moderate as it is, _appears to the Inquirer extremely strange; because, by means of such a limitation, a tutor might prevent his pupil from appealing in any case, though the supreme Magistrate of the University would be empowered to prevent it in none_. As if the judge who passed the sentence, and was therefore concerned to support it, were as fit to determine, whether the party aggrieved should have the liberty to appeal from it, as an indifferent person who had no concern at all in it. Nay, the tutor, as was observed, would be obliged, by a regard to his own authority and character, and (I would add, but that the _Inquirer_ is pleased to make no account of that _obligation_[116]) by the _religion of an oath_, to proceed with all imaginable caution in advising him to such a step.

In every view, then, this objection to the _Grace_ must appear very unaccountable. And the rather, when the reader understands that this clause was, with the greater readiness and pleasure, inserted into it, as this Vice-chancellor himself, whose goodness and candour require no encomiums of mine, had intimated, and even declared, that a provision of this kind was all the restriction upon _the liberty of appealing_ which he wished to see made to it. For this excellent person was so much convinced of the propriety and expediency of this claim in general, that he very frankly professed his approbation of it, and only wanted to secure his authority, where indeed the only danger lay, from a _torrent of Appeals, which, as he apprehended, might pour in upon him from the younger sort_. So that, I think, we shall hear no more of this objection; and I am even not without the fond hopes, that, after this information, the _Inquirer_ himself, whatever _displeasure_ he might conceive at this part of the _Grace_ before, will now grow into good humour with it.

After all, one cannot but suspect, that the _Inquirer_ must have some better reason for his strong antipathy to this _Grace_ than any that has yet appeared. The violent heat it puts him into, whenever he touches upon it, demonstrates, there must still be something at the bottom of this matter, which is the object of just offence. In looking narrowly for it, I found it at last, half smothered under a very shrewd and indirect insinuation, which I shall bring to light, after having presented the reader with his own words:

“I see not how a Grace of this kind could be offered,
consistently with the Resolution said to have been taken at one
of your first meetings, to assert the right of Appeal in such
a manner as was warranted by the Statutes of the University:
Nor am I less able to reconcile it with those professions of
deference and respect, which at the same time were thought
proper to be made for our great and illustrious Chancellor. No
person would receive a greater pleasure than myself from seeing
all the members of the University, however divided in other
points, agreed in entertaining the highest sentiments of regard
and veneration for him; but I confess, that this is a pleasure
I am not very likely to have; till one set of men shall be
pleased to give clearer and less questionable testimonies of
this, than by opposing every useful regulation he recommended,
and endeavouring to lessen and curtail an authority, which is
only vested in the Vice-chancellor as his representative and
locum-tenens[117].”

Here, then, we have all the venom of his heart injected into one malignant paragraph; which, under the gilding of a compliment, is to do its office without offence. And yet, it is plain enough what he would insinuate. It is neither more nor less than that the advocates for this right of Appeal are an unquiet, factious set of persons, bent on opposing all measures that tend to promote the good of the University; and, to say all in one word, listed in a vile cabal to dishonour, revile, and abuse their Chancellor himself. The gentlemen against whom all this is levelled must, I am persuaded, hold such senseless and licentious calumnies in such contempt, that I should not merit their thanks for attempting seriously to confute them. And yet I cannot help saying for them, that the _Resolution_ hinted at in this place was drawn up with so respectful a regard to the authority of the Statues, and to the honour and dignity of our great Chancellor, as, one should think, might stop the mouth of Malice itself. Yet all this can be overlooked by our candid Inquirer. And on what pretence? Why, because some of those persons, who came to such a _Resolution_, had different sentiments, it seems, of the expediency of the late regulations from this writer; and because this claim of Appeals tends to lessen the authority of the Vice-chancellor. For this he modestly calls _opposing the Chancellor, and curtailing his power_.

Well, then, the crime is now out; and, to say the truth, if it be a crime, the University is deeply involved in it. For, when the late _regulations_ were first proposed to the consideration of the Senate, a considerable majority were clearly of the same opinion as these culprits: and, with regard to the present claim, the University may be almost said to be _unanimous_ in supporting it. But what in the mean time must be this scribbler’s sentiments of that most noble and illustrious person, for whose honour he here professes himself concerned; and of whom, it seems, he can think so unworthily, as to believe, that a liberty in judging concerning the expediency of some academical laws, which he had the goodness to propose to them, should give offence to one who has no other aim than to serve the University in a manner the most agreeable to their best judgments; and which, I am satisfied, they used the more freely, on a full persuasion that such liberty could not be taken as an instance of disrespect to him. This I should not doubt to call, of itself, a sufficient confutation of the idle calumny. But it comes with the worst grace imaginable from a declared enemy to _the right of Appeals_; who must know, if he be at all acquainted with what passed at that time, that the principal reason, which induced the University to oppose the _regulations_, was the just apprehension they were under, of an encroachment on this _very right_; not indeed from the Chancellor, who had no such intention, nor even any knowledge of it, but from certain forward directors in that affair, who gave the _clearest and least questionable_ proofs of their designing to make the _new laws_ the instruments of their own tyranny in this respect. So that, if any offence _was_ given by the University on that occasion, the blame of it should fall elsewhere, and not on those on whom it is here so invidiously cast; persons, who on every occasion have testified the sincerest honour for their Chancellor, who venerate him as the protector and patron of the University, and would humbly co-operate with him to the attainment of those good ends, which it is his sole endeavour to promote.

But what follows, if possible, is still worse. A _second charge_ against the University is, that they are _endeavouring to lessen and curtail an authority, which is only vested in the Vice-chancellor, as his representative and locum tenens_. What the collective body would return to this accusation, I pretend not to say; I have no commission to answer in their name. But, for myself, and those whose thoughts I have the opportunity of knowing on this matter, I answer boldly thus: That we are not in the least apprehensive of giving offence to this great person, who is more solicitous for the maintenance of the just rights of the University than any other member of it, by any respectful and moderate endeavours to assert our own reasonable privileges; that we are well assured, he approves, and is ready to countenance, all such honest endeavours; and that, lastly and _chiefly_, we are _therefore_ earnest in our endeavours to lessen an authority (if that must be called _lessening_ which is but preventing its being usurped), because it _is_ vested in, and must be constantly exercised _by his representative_. For, whatever liberties he may presume to take with the assertors of this claim, I will venture to assure him, that, were unappealable power itself to be exercised only by our Chancellor, who is too high in rank, and too noble in nature, to be under any temptations of abusing it, though we might still think the authority unreasonable and dangerous in itself, we should esteem ourselves in perfect security under him, and could safely trust the administration of it to his care. But, as the person who by our Constitution is vested with it, is and must be a very imperfect _representative_ of the Chancellor, in this as well as other respects, we hope to be forgiven by every equitable judge, if we are not forward to _compliment_ ourselves out of our privileges; and have little inclination to lodge our liberties in less worthy hands.

After all, one would be glad to know a little more explicitly of this writer, since he professes himself so little satisfied with the conduct of the University, what those _clearer and less questionable testimonies_ of their regard for the Chancellor are which he so loudly calls for, and the want of which, it seems, hath made his life so distasteful and uneasy to him. And, I think, I durst almost take upon me to guess at them. No doubt, they are such as these: “That the University Senate would be pleased to make no distinction in any case between the supreme Magistrate and his representative, nay, and his representative’s _representatives_”—“That they would courteously give that honour to his _locum tenens_ or _locum tenentes_, without perhaps one single merit to justify such a claim, which the illustrious rank and dignity of their Chancellor himself, his eminent virtues, and services to the University, all conspire to challenge and demand from them:”—In a word, “that the University would offer themselves as willing instruments to carry into execution every paltry project, every low and selfish design, which little men in office are apt to form for themselves; and all this under the notion of its being a tribute of respect to the supreme Magistrate, and an instance of their veneration for him.”

Such as these, I can readily believe, are the _testimonies_ of respect the _Inquirer_ wishes to see paid to the Chancellor, and which, no doubt, would administer that sincere pleasure, which at present he divines (and, I trust, truly) _he is not very likely to have_. But does he think the Chancellor is to be abused by this thin pretence of respect? that true greatness is to be taken by this mere outside of an officious and false compliment? On the other hand, I dare be confident that nothing is more disgusting to him than such sycophancy; and that he is so far from allowing this conduct in the _Inquirer_, that he even disdains to have his cause and dignity so defended. “For, though (to use my Lord _Bacon’s_ words on a like occasion) I observe in his book many glosses, whereby the man would insinuate himself into his favour, yet I find it to be ordinary, that many pressing and fawning persons do misconjecture of the humour of men in authority; and many times seek to gratify them with that which they most dislike.”

But the virulence of these malignant calumnies hath held me on a very unnecessary argument too long: I return again to the _Inquirer_, to whom I have but one word or two more to say, and shall then take my final leave of him.

You have talked, Sir, very importantly of the pernicious consequences of a right of Appeal in the University. The reasons on which you would ground these so anxious fears have been examined, and exposed, as they deserve. But, granting that some slight, nay, that some considerable inconveniencies might arise from it; were this any good argument, think you, against the subsistence of such a right? What would become of all the liberties which just government leaves us, nay, of the blessings and privileges which indulgent nature bestows upon us, if the accidental and occasional abuse of them were thought a reason sufficient to extort them out of our hands? Should you not have considered that a _right of Appeal_ is one of the most important and valuable rights which mankind enjoy in society, and which, indeed, is almost essential to the very being of it? And would you have this sacred claim, _patronam illam et vindicem libertatis_, as a great ancient calls it, rudely and inhumanly wrested from us, on the frivolous pretence of some possible or even probable abuse? Had you been as conversant in the civil law as an _Inquirer_ into such a question should have been, you might have found cause to entertain very different opinions of it. For the great masters in that science were as well aware as you can be, that such a right was liable to some abuse; but which of them ever thought this consideration of force enough to decry or abolish it? On the other hand, they _acknowledge the inconvenience_, yet assert and vindicate the _use_. Give me leave to refer you to one passage (you will find _L._ 1. _D. De Appell._), very express to this purpose. “Appellandi usus quam sit frequens quamque NECESSARIUS, nemo est qui nesciat: quippe cum iniquitatem judicantium vel imperitiam re corrigat; _licet nonnunquam bene latas sententias in pejus reformet_, neque enim utique melius pronuntiat, qui novissimus sententiam laturus est.” What will you say, now, to this? That _Ulpian_, who affirmed it, was a factious, turbulent boy? one of those whom you disgrace under the name of the _warm, assertors of independency_, and _who bear with indignation the thought of having any part of their conduct judicially animadverted upon_? I presume to think you would hardly venture on this assertion. Nay, I please myself with hoping, that, when you have well considered this so sage and venerable sentence of an ancient Lawyer, you will even be disposed to abate of your vehemence in declaiming against such as go on _his_ principles at this day.

Seriously, Sir, it is a bad cause you have engaged in; and, in mere kindness to you, I would wish you to relinquish it with all speed. The claim itself of _Appeals_, as I have had the honour to shew you, is of long and ancient date; indeed as _ancient_ as the Constitution of the _English_ government itself. Of what consequence you may chance to be in your political capacity, it is impossible for me to say; if you are of any, and should proceed in these _Inquiries_, I should go near to apprehend that the _House of Commons_ itself might take umbrage at them; for the rise of that great part of our Constitution is not usually, I think, carried higher than the point from which the right of Appeal hath here been deduced. Or, do you think you may safely make free with the Constitution of an University, though it were dangerous meddling with that of the State itself? This may be true, indeed; but where is your generosity in the mean time? Why should the thoughts of impunity encourage you to such an attack on the rights and privileges of a body of men, who, though unable to punish such offences against themselves as they deserve, have yet been generally secured from all outrage, by the very regard and reverence which the public hath ever paid to them? In a word (for I would not hold you longer from your _necessary avocations_), it may be worth your _inquiry_, when you shall think fit to sally forth on another adventure, what the Learned of _Great Britain_ have done, that they should have their liberties written and inveighed against in so outrageous a manner; and, amidst the securest enjoyment of every civil right, under the justest and most equal Government in the world, what peculiar circumstances of offence have so inflamed the guilt of the scholars of this land, that they, of _all_ his Majesty’s good subjects, should deserve to be the only slaves.

FINIS.

ON THE

DELICACY

OF

FRIENDSHIP

FIRST PRINTED IN 1755.

ON THE

DELICACY

OF

FRIENDSHIP.

A SEVENTH DISSERTATION.

ADDRESSED

TO THE AUTHOR OF THE SIXTH.

Si bene te novi, metues, liberrime Lolli,
Scurrantis speciem præbere, professus Amicum.
HOR.

Nunc te _marmoreum_ pro tempore fecimus: at tu,
Si fœtura gregem suppleverit, AUREUS esto.
VIRG.

AN ADDRESS TO THE REV. DR. JORTIN.

REV. SIR,

As great an admirer as I must profess myself of your writings, I little expected that any of them would give me the pleasure that I have just now received from the last of your SIX DISSERTATIONS ON DIFFERENT SUBJECTS.

The other FIVE have doubtless their distinct merits. But in this, methinks, I see an assemblage, a very constellation, as it were, of all your virtues, all that can recommend the scholar or endear the friend. This last, give me leave to say, is so unusual a part of a learned mind’s character, and appears with so peculiar a lustre in this discourse, that the public will not be displeased to have it set before them in full view, and recommended to general imitation, with a frankness, which though it may somewhat disgust your own delicacy, seems but very necessary on such an occasion and in such times.

I leave it to others therefore to celebrate the happiness of your invention, the urbanity of your wit, the regularity of your plan, the address with which you conceal the point you aim at in this Dissertation, and yet the pains you take in seeming obliquely to make your way to it. These and many other beauties which your long study of the ancients hath enabled you to bring into modern composition, have been generally taken notice of in your other writings, and will find encomiasts enough among the common herd of your readers. The honour I propose to do you by this address is of another kind; and as it lies a little remote from vulgar apprehension, I shall have some merit with you for displaying it as it deserves.

To come to a point then, next to the total _want_ of FRIENDSHIP which one has too much reason to observe and lament in the great scholars of every age, nothing hath at any time disgusted me so much as the gross indelicacy with which they are usually seen to conduct themselves in their _expression_ of this virtue.

I have by me a large collection of the civil things which these lettered friends have been pleased to say of one another, and it would amaze you to see with what an energy and force of language they are delivered. One thing I thought very remarkable, that the greater the parts and the more unquestioned the learning and abilities of the encomiast, just so much the stronger, that is to say, according to the usual acceptation, just so much the more _friendly_ are his encomiums.