engrafted in certain cases, when the writing forms the subject of an indictment or an action on the case, and the guilt or innocence of the defendant depends upon the popular meaning of the language employed. Thus, on a prosecution for sending a threatening letter', the jury will, upon examination of the paper, decide whether it contains a menace.2 So, with respect to indictments for libel, the legislature, after much acrimonious discussion between the judges on the one hand, and the advocates of popular rights on the other3, has expressly determined, that the question whether the particular publication, which is the subject of inquiry, is of a libellous character, and is calculated to injure the reputation of another by exposing him to hatred, contempt, and ridicule, is one upon which the jury must exercise their judgment, and pronounce their opinion, as a question of fact. The judge, indeed, as a matter of advice to them in deciding that question, may give his own opinion respecting the nature of the publication, but

1 See 7 & 8 G. 4. c. 27. and 7 & 8 G. 4. c. 29. s. 8.

* R. v. Girdwood, 1 Lea. C. C. p. 142. c. 76.; 2 East P. C. 1120. S. C. 3 As to this celebrated dispute, see, in support of the claims of the Judges, R. v. Udall, 1 How. St. Tr. 1289.; R. v. Woodfall, 20 Id. 913. 918. 920., per Ld. Mansfield; 5 Burr. 2661. S. C.; R. v. Dean of St. Asaph, 21 How. St. Tr. 1033., per Ld. Mansfield; and in support of the rights of the Jury, R. v. Tutchin, 14 Id. 1128., per Ld. Holt; R. v. Owen, 18 Id. 1223. 1227.; R. v. Dean of St. Asaph, 21 Id. 922. 971., arguments by Mr. Erskine, and 1040., per Willes J.; 29 Id. 49., per Ld. Ellenborough; 1 Woodfall's Junius, 14. et seq., 163, 169–176. As to proceedings in the House of Lords on passing the Libel Act, see 22 How. St. Tr. 294. 297.

4 32 G. 3. c. 60. s. 1. enacts that, on every trial of an indictment or information for a libel, "the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed by the court or judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information." Sect. 2. provides "that, on every such trial, the court or judge, before whom such indictment or information shall be tried, shall*, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the king and the defendant or defendants, in like manner as in other criminal cases." Sect. 3. provides that a jury may find a special verdict; and sect. 4. reserves to defendant a right to move in arrest of judgment.

* Semble, the word "shall" should here be interpreted as if the word "may had been used. See per Littledale J. in Raylis v. Lawrence, 11 A. & E. 925.

1

2

is not bound to do so as a matter of law. The statute here noticed is strictly applicable to criminal trials only, but being a declaratory act, its provisions have been adopted in civil actions for libel, and for a series of years it has been the course for the judge, first to give a legal definition of the offence, and then to leave the jury to determine whether the writing complained of falls within that definition or not. It is not, however, absolutely necessary that the judge should explain what constitutes a libel, but he may leave the whole question without reserve to the jury; though, if they find a verdict against the defendant, either on an indictment or an action, the court will arrest the judgment, if the writing, on the face of it, is not libellous.4

1 Per Parke B., in Parmiter v. Coupland, 6 M. & W. 108.

2 Parmiter v. Coupland, 6 M. & W. 107, 108.

Baylis v. Lawrence, 11 A. & E. 920.

4 Hearne v. Stowell, 12 A. & E. 719.; P. & D. 696. S. C.; Goldstein v. Foss, 6 B. & C. 154.; Parmiter v. Coupland, 6 M. & W. 106., per Alderson B.

ART. III.—POWER OF DEGRADATION IN THE UNIVERSITIES.

-

THE universities of the ancients had little resemblance to the more illustrious bodies bearing that name in modern times. To hold property in common an attribute of all corporations aggregate, to have a common or university chest, and to sue and be sued by syndics or attornies, are the principal points in which they agree.1 The ancient universities more resembled guilds, colleges, hospitals, or convents, than an assemblage of incorporated bodies, each having a separate existence, which is the state of the two great Universities in this country. For the same reason it would be more curious than useful to inquire into the powers and privileges of continental universities, as their rights, endowments, constitution, and powers differ widely from our own.

A degree is an academical title, granted by a university, conferring rank and precedence within it. To certain degrees of certain universities, acts of Parliament have given collateral advantages and privileges, conferring temporal advantages without the university granting the degree. Has the University the power of depriving one of its members of a degree for an academical offence; and if so, is it necessary that this offence should be described, and the penalty affixed by the statutes of the University? There is nothing anomalous in jurisdiction over the principal which could not be maintained over the accessory: a sentence of deprivation by the metropolitan infers the forfeiture of a freehold, and the loss of a barony 2; a clerk may be degraded by his ordinary, which necessarily includes deprivation of benefice3; and a sentence of excommunication before the stat. 53 Geo. 3.

1 Dig. III. iv. 1.

2 Bishop of St. David's v. Lucy, Ld. Raym. 447. 541. 14 State Trials,

Burn's Ecc. L. Degradation.

c. 127. deprived the party of almost all temporal rights.1 In that celebrated case it was not disputed at the final hearing, but that the University courts might, for sufficient reason, suspend from or deprive of degrees, but a peremptory mandamus was granted on account of the sentence being given, without giving Dr. Bentley an opportunity of being heard. In the case of the King v. the Vice-Chancellor of Cambridge, the Court of King's Bench appears to have agreed with Mr. Yorke in his argument, that the two Universities are to be considered as lay corporations, not eleemosynary foundations, which puts an end to the right of the Crown to visit them, for they issued the writ of mandamus on the ground that there was no other specific remedy 4, which would not be the case if the Crown were visitor.

5

Frend's case was a sentence of expulsion from the University for publishing within the University a seditious pamphlet, and a mandamus was moved for to restore him to the franchises of a resident master of arts; but the Court, without entering into the visitatorial right of the Crown, held the sentence the decree of a court of competent jurisdiction, and refused to grant a mandamus. Whiston's case, 1711.6; Duckett's case, 1739.7, Crawford's case, 1775.8, Davison's case, 1772. 9, and the case of Shelley and others at Oxford in 1811, it is unnecessary to do more than mention. They were all cases of expulsion, and the offences so punished are or have been cognisable by the law of the land, as well as the statutes of the Universities.

It appears that Archbishop Laud claimed a visitatorial power in both Universities, and that three of his predecessors did in fact visit them. But his assertion of his right, though with a saving of the royal power of visitation, was made an article of his impeachment 10, and it has not

1 See Lord Hardwicke's argument in Bentley's case, Burn's Ecc. Law, Colleges, 2 Ld. Raym. 1345. 4 Id. 1659.

23 Burr. 1647.

5 22 Howell's State Trials, 523.

6 15 Howell's State Trials, 703. "Hawkins's Johnson, p. 333.

8 Cowp. 315.

10 4 Howell's State Trials, 450.

$ Id. 1652.

6 T. R. 29.

Monk's

Bentley, ii. 392.

9 Id. 319.

been since claimed or exercised. If the Crown is visitor of the Universities, against which there is a judicial decision of the Court of King's Bench, above noticed, its visitatorial power would be exercised either by special commissioners or by the Lord Chancellor.

If, on the other hand, the Universities are subject, like other civil or lay corporations, to the control of the Court of Queen's Bench, it can hardly be seriously contended that a mandamus would lie to either of the Universities, on the ground that they have no power to deprive a graduate of a degree once conferred. Such a power is implied in the foundation of every University 2, of the exercise of which numerous instances are to be found in the archives of the Universities of Oxford and Cambridge, and are perpetually referred to by Wood and Dyer. A degree was originally a licence to teach 3, and might be revoked by the same authority which granted it. Cujus est condere, ejus est destuere. Such a power is necessarily incident to all corporations. Wherever there is a court of appeal in the University itself it should be resorted to in the first instance, and a jurisdiction exercised time out of mind is not to be overruled upon nice questions of the constitution of the tribunal."

The objection that the precise offence for which the party is deprived of his degree is not pointed out in the statutes, is not, if the fact be so, of much weight. Neither the general statutes of the University of Oxford, nor the particular statutes of the several colleges, avoid a fellowship by marriage, yet the lex non scripta of the University has always been held to warrant the college in filling the vacancy so occasioned."

The acts of Parliament and charters of the two Universities have, in general, the object of extending their powers over persons not matriculated, that is, not members of the corporation, leaving the essential and inherent rights of the Universities untouched; as far as they seem to infringe

1 See Burn's Eccles. Law Colleges, 2 Rushw. 324.

2 See Savigny, Geschichte der Romischen Rechts, vol. iii. 175, 176. 707. 3 2 Lord Raym. 1345.

4 Rex v. Richardson, 1 Burr. 539. 5 Rex v. Cambridge, 6 T. R. 105. Exparte Lamprey, West, 216.

Rex v. Heaven, 2 T. R. 772.

6 Id.