The King against The Univesity of Cambridge
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | High Court |
English Reports Citation: 88 E.R. 111
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER
Referred to, Bonaker v. Evans, 1850, 16Q. B. 171; Marquis of Abergavenny v. Bishop of Llandaff, 1888, 20 Q. B. D. 472.
case 94. the king against the university of cambridge. [Referred to,Bonaker v. Evans, 1850, 16 Q. B. 171 ; Marquis of Abergavenny v. Bishop of Llandaff, 1888, 20 Q. B. D. 472.] Time allowed to shew cause to a mandamus. A mandamus lies to restore a member of a university to doctor's degrees, from which be had been degraded by the University Court for speaking contemptuous words of the vice-chancellor, and of the process of the Court.-S. C. 2 Ld. Bay. 1334. S. C. Stra. 557. S. C. Fort. 202. Mandamus to the vice-chancellor, masters, and scholars of Cambridge, to restore Dr. Bentley to the degrees to which he had been admitted by the university, and had been surreptiously degraded (as was suggested), or that they should shew cause why he should not be restored. The counsel for the university desired time to shew cause why a mandamus should not go, for that there were several old books and charters which were necessary to be itispected before they could shew cause. And thereupon the time was enlarged for that purpose. And upon another day. It was argued for the university, that by virtue of a charter given to them by Queen Elizabeth, they had a Court of Judicature to try and determine all matters arising within their jurisdiction, in which Court a plaint was levied by Dr. Middleton (a) Therefore, although the allowance of a writ of error is of itself a supersedeas, and the service of the allowance only to bring the party into contempt if he proceeds, Jaques v. Nixon, 1 Term Rep. 279 ; Perry v. Campbell, 3 Term Eep. 390; yet the Court will not set aside a defendant's execution for the costs of a nonsuit sued out after the allowance of a writ of error, because the writ of error can only be for delay, Kempland v. Maccaulay, 4 Term Rep. 436 ; nor will the Court set aside an execution for costs on a judgment in nonsuit in any case merely because a writ of error was allowed, Sox v. Bennet, 1 H. Bl. Rep. 432; nor an execution on any judgment, if it appear that the writ of error was brought merely for delay, Mitchell v. Wheeler, 2 H. Bl. Rep. 30. (c) 3 Lev. 312; and see Dawbigne v. Davy, Dyer, 244; Eyres v. Lenthal, 1 Mod. 112 ; and Poph. 132. Vent. 207. 112 TRINITY TERM, 9 GEO. 1. IN B. R. 8 MOD. 149. against Dr. Bentley, and thereupon a summons was sent by the beadle to the doctor, which he received, and spoke contemptuous words of the court, for which he was degraded, and from which no appeal would lie, no more than a writ of error would lie for imposing a fine by a Temporal Court for a contempt, because every Court of Record is entrusted with the final judgment of what shall be a contempt to their anthority; therefore if an appeal or a writ of error would lie in such case, it would put the trial of what is a contempt [149] to the discretion and judgment of a Superior Court, and to strip an Inferior Court of that power which they have by law to judge what is a contempt to them; whereas contempts of the authority of Courts are undoubtedly to be judged by the same Courts to whom the contempt is offered ; which is the reason that a writ of error will not lie on a sentence for a contempt to this Court; but then it must be plainly proved. Now the same thing is done by a mandamus after an indirect manner as would have been done by an appeal or writ of error, if that would lie; but as an appeal will not lie for a contempt, so neither will a mandamus ; for admitting this degradation had been ad libitum, yet a Temporal Court could not grant a mandamus. Ifc is like the case of a recorder of a corporation who was removeable at will, and being displaced moved for a mandamus, but it was denied. Besides, the constant course and custom of this university warrants a discretionary power amongst them to confer degrees on some, and to degrade others for any contempt; and in this case they have done all they could to bring Dr. Beritlev to an easy agreement; for after the first summons they sent another in writing by their beadle, but the dodw's doors were then shut, and he would not be seen ; then they adjourned from day to day, on purpose to give him leave to appear, before they would suspend him ; but when he contemptuously declined, they first suspended and afterwards degraded him. Now as a mandamus was never yet granted to admit a man to a degree in the university, after he had performed all his exercises, so there ought to be none to restore one after a degradation, because degrees are arbitrarily given by the universities, arid so are degradations arbitrarily made; for if they should by any means rashly admit an unlearned man to a degree, they may upon better information degrade him, without taking a traverse to the return of a mandamus, which must be tried by a jury of lay freeholders. Besides, these degrees are but titles of honour and precedency, arid give no temporal right, and for that reason a mandamus ought not to go; for if a knight should be degraded in a Court of Honour, no mandamus would lie to restore him (a), which is a case in point; therefore if it should lie in this case, it would introduce a new method to evade [150] the privileges given by this charter, which was afterwards confirmed by Parliament; and as it hath been formerly adjudged in the case of Castle v. Litchfield (b), that a certiorari or writ of error will not lie to correct a judgment given for a contempt, so no mandamus ought to go, which is in effect the same. If it should be objected, that his degree qualifies him for some temporal employment, of which he would be incapable without it; now admitting that to be true, yet such employments are only consequential, atid not directly incident to his degree, and therefore ought not to be regarded. Arid is another objection should be made, viz. that the doctor would have appeared by a proctor, but was not allowed so to do; though this may be true, yet it is no objection of weight, because it might not be the course of their court to admit such appearances, and the universities have a privilege to proceed according to their own laws, as an encouragement to learning; and if they have proceeded accordingly, this Court will not interpose. Now take the case as it stands upon Dr. Bentley's affidavit, there will be no reason to grant a mandamus; for he makes oath, that he has appealed from the sentence of the University Court; which if true, then there is another remedy for him to be restored, viz. by an appeal; and where there is another remedy, a mandamus is never granted. Moreover the doctor made oath, that the university had no power to degrade him ; if so, then he is riot degraded for want of a sufficient power so to do, and consequently a mandamus ought not to go, for it is impossible that a man should be restored to hia degree who was never degraded. But on the other side it was said, that the merits of this cause ought not to be argued upon a motion, but upon the return of the mandamus; and for that reason it ought to be granted. (a) 1 Lev. 119. (b) Hardres, 505. 8 MOD. 151. TRINITY TERM, 9 GEO. 1. IN B. R. 113 The Court. All care shall be taken that justice shall be duly administered in the universities; but if they assume an arbitrary power exempt from the jurisdiction of any other Court of Judicature, then they may do what they please without controul; and where people are under such a government, they are in a very bad condition. But this Court hath a greater regard to the learning of the universities than to admit the arbitrary sentence of a vice-chancellor to be final. [151] As to what has been said, that the degrees in the universities are only honorary; this is a mistake, for they are blended with a temporal right so far as to deserve a mandamus to restore a man degraded. It is true, this might have been a proper objection before the statutes of 21 Hen. 8, c. 13, and 13 & 14 Car. 2, c. 4, were made, which render a man incapable of a benefice if he had not taken his degrees in some university ; for before those statutes, such degrees were only titles of precedency, and the allowing them, or a degradation, was no temporal advantage or loss ; therefore in such case the Temporal Courts had no reaaou to interpose ; and this may be the reason why the universities degraded ad libitum, and of their constant course so to do. But this is no objection since the making those statutes. Neither shall it be said, that where a corporation has admitted a man willingly to his freedom, that they shall have power to disfranchise him, because they do not like him; neither can the universities give degrees to whom they please, and take them away ail libitum. And though their counsel have objected against this mandamus, for that they have an exempt and absolute jurisdiction amongst themselves, this seems to be a good reason why it should be granted, though it might have been otherwise if they had shewed that they had a visitor, to whom an appeal would lie; for probably that might have excluded the superintendency of this Court; but to deny a degree to him who had performed all his exercises to qualify him for a degree, would be a great discouragement to learning; and in such case this Court would grant a mandamus to admit him, especially since it is accompanied with a temporal interest. Now admitting it should be enacted by some statute, that a man should be incapable of...
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