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, 1 Ld. Raym. 447. 541. 14 State Trials,

447.

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 2, 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, which would not be the case if the Crown were visitor.

Frend's case 5 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.

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 teach3, 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.6

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.

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

6 Id.

upon them, they have been declared to be void.1

Some of the charters, however, do recognise the right of the Universities to suspend and deprive graduates.2

If analogy is to be resorted to, all the cases at all similar will be found in favour of the power to deprive of a degree. A clergyman may be degraded, a barrister may be disbarred 4, a member of the House of Commons may be expelled ", a knight may be degraded 6, and instances are to be found of the degradation of a peer. In all these instances the punishment is not inflicted by the ordinary courts, and the party sentenced is deprived of a possession in the nature of a freehold.

In this slight sketch, which does not attempt to exhaust the subject, all direct controversy with the opinions already published has been studiously avoided; still less has it been attempted to go into the merits of the case now before the public. However unquestionable the jurisdiction, it should be sparingly and temperately exercised: large bodies of men, however educated, are apt to decide such questions with the spirit of partisans rather than in the temper, and with the sense of responsibility, befitting a judge.

1 3 Burr. 1656, 1657.

3 Gibs. Cod. 1066.

5 Wilkes' case, 1 Bl. Comm. 163.

7 Nevill's case, 6 Rot. Parl. 173., Cru.

of, 12 Co. 107., 2 State Trials, 741.

2 Dyer's Privileges, i. 316, 317. 363. 4 Bousfield's case, 1839.

6

Spelman's Works, vol. ii. 184. Dign. 178.; Shrewsbury, earl, case

ART. IV.- PRIVATE BILLS IN PARLIAMENT.

1. Report from the Select Committee on Private Business; with the Minutes of Evidence, and Appendix. 1838.

2. Resolutions on Railway Bills.

Ordered by the House of

Commons to be printed, 4th March, 1845.

SOME alterations in that branch of parliamentary jurisdiction which relates to Private Bills have been made within the last few years in both Houses of Parliament, alterations, in fact, so important as to give this jurisdiction a new character, if not to work in it an entire change. We have already noticed in the present Number the great extent and vast importance of the private business transacted by Parliament, and it is of the utmost consequence to watch the changes which are made in conducting it. They come to some extent suddenly; the hands that work them are unseen, and yet are clothed with absolute power; the tribunal lies out of the beaten track of lawyers, is accessible to peculiar interests, is subject, in fact, to most of the vicissitudes of political life, and, at any rate so far as the House of Commons is concerned, is exposed to much of the tumult of a popular and elective body. Let us see, therefore, in greater detail (for we have already glanced at them), the steps that have been taken in this matter within the last few years, for the important years in this respect do not amount to ten. The alterations to which we wish to call attention date from the Session 1837. And first, as to the House of Lords.

The inconveniences of the system which prevailed before the 6th of July, 1837, are thus mildly stated by the Duke of Richmond, in his evidence before the Private Business Committee of the House of Commons of 1838:

"The inconvenience of the old system was, that not only there were not the same peers listening to the whole of the evidence