the case below. But in this case, the party applying for the mandamus scems to have admitted the jurisdiction of the first court; for he himself appealed against the decision of it; it was at his instance that the delegates were appointed to take into their consideration the former decision. It is indeed now hinted that there was something informal in the appointment of those delegates: but if that were so, the party is mistaken in the form of his application to this Court; in that case he should have moved for a mandamus to rectify the appointment of the delegates to constitute that court which he himself chose for the decision of this controversy, and not for a mandamus to restore him. But to come to the great questions that have been discussed at the bar; the first of which is, whether the vice-chancellor's court, constituted as it was, consisting of the vicechancellor assisted by the heads of houses, had or had not jurisdiction to hear and determine the offence of which Mr. Frend was accused; and that depends upon the statutes of Elizabeth which have been so often referred to. It was admitted in the argument, that the constitution of this court remains in great obscurity and we are desired by the person making this application to cancel at once every precedent which can be found in the university books for near two centuries past, and to say that all those proceedings are erroneous, and we are required to find out by our construction of the statutes what the united wisdom of this university has not yet been able to discover. All the cases that have been alluded to are, in my opinion, precedents in support of the jurisdiction of that court, by which the sentence was pronounced in this case; for as to the differences which have been pointed out between those cases and the present, they all go beside the jurisdiction of the Court. It has been observed that Rush was called upon to produce his objectionable sermon, and to convict himself by his own evidence; if he had been properly advised, he would not have complied with that request: but it does not follow from that circumstance that the court by which he was sentenced was different from the present Court; it does not affect the jurisdiction of the Court, it only shows the fallibility of those who administer justice in courts of udicature. Without going through the other cases, I think that in all of them the Court was constituted as the present Court was; and no one has suggested what other known court should be substituted in the room of it. It was said indeed that the Court having cognizance of this offence should be composed of the vice-chancellor and the heads of houses; now those very persons sat in the Court in question, and from that Court the party himself appealed to the court of delegates. It seems to me that offences against the statutes alluded to were intended to be cognizable in the vice-chancellor's court; and if there be any errors in the proceedings of that court, they should be rectified in the court of appeal in the university. If I could raise any doubt in my own mind respecting the jurisdiction of this court, and could discover that the statutes in question had intended to create any other for inquiring into offences of this nature, I should have been disposed to grant a mandamus: but after all the industry I have employed upon the occasion, I do not entertain the least doubt upon the subject. The next question, in point of order, is that respecting the offence. It is not very probable that so great a body as the university could have existed so long, without having some power within itself of controlling and checking those evils which, without correction, would be subversive of all discipline in the university. Discipline is the soul of such a body; and if persons egregiously offended against that order and discipline so necessary to be preserved in the university, the latter must have had a power to correct such offences previous to the statute of Elizabeth. However I do not rely on that, but I rely on the words of the statute of 12 Elizabeth, as deciding this objection. The pamphlet in question was published in the university, and as appears by the proceedings by a member of the university; and it certainly contains matter highly offensive to those who think that the religious establishment of the country is of consequence enough to be preserved. It appears too that this gentleman was the fellow of a college, and a master of arts: but I hope (for his own sake) that he is not in holy orders; because I do not see how any person, who had before in the most solemn manner expressed his assent to every thing contained in the liturgy, could have ventured to write the pamphlet in question; it would have been for him to reconcile it to his own moral and religious character. Therefore I wish to take it for granted that he is not in orders; and indeed he styles himself gentleman only in his affidavit. But I have no doubt but that this is an offence within the statute of Elizabeth. If a person in the very bosom of the university promulgate dangerous doctrines in the manner most likely to do mischief, namely, by publication, he is at least as criminal within the meaning of this statute as another who verbally declares such doctrines; for that which is uttered by the mouth may be soon forgotten, but litera scripta manet. When publications like the present are circulated in the university, they call for the attention of those to whom the moral and religious education of the youth there is committed. And I think that those who instituted this prosecution below would have forgotten the duty they owe to the public, if they had suffered the publication in question to pass sub silentio, without bringing it before that jurisdiction which is competent to reform or to punish the author of it. With regard to the question concerning the form of the recantation, I do not think we have any thing to do with it. It was for the courts of the university, acting on the principles of the civil law, to determine on the form of the recantation. If however we had been required to assist the vice-chancellor's court, I do not know how we could have framed any thing more lenient than the recantation proposed. The only remaining objection is that which respects the sentence; and that is that the sentence is not so severe as it should have been, for that only one of two things which the statute requires has been done, and that the rest of the sentence directed by the statute has not been inflicted. It is said that the language of these statutes is borrowed from the civil law; it was in the first instance in the hands of ecclesiastics, and always in those of persons conversant with the rules of the civil law; and they are more properly qualified than we are to put a construction upon it. The court in the university having jurisdiction over the subject, and proceeding on the principles of the civil law, have put their construction upon it; and I am of opirion that we have no authority to revise the judgment given. In Dr. Bentley's case this court interfered, because the principles of all law had been violated; he had been condemned without being heard; and the whole was an improper mode of proceeding: but that cannot be said to be the case here. I am therefore clearly of opinion that there is neither precedent nor principle to warrant us in granting this mandamus. If it had been a difficult or a doubtful question, I should have been inclined to grant the rule, in order that the question might be controverted in a more solemn manner, on the return to the writ: but as I cannot find any fair ground to dispute the jurisdiction of the Court below, I think it is our duty to refuse this application, and to close that question, which, for the sake of the public and of the university, ought to be at rest. Ashhurst J. This case has been divided by the counsel in support of the rule into four questions; 1st. Whether the matter has been tried before a proper tribunal? 2nd. Whether it is an offence against the statute De Concionibus? 3rd. Whether the recantation proposed was a proper one? and 4th. Whether the sentence is agreeable to the statute? As to the first point, it is contended that it was heard in the vice-chancellor's court, whereas it should have been heard before the vicechancellor and heads of houses. It seems agreed by the counsel on both sides that the origin of the vice-chancellor's court rests in great obscurity; and there is reason to suppose that it existed prior to any of the statutes that we have been furnished with. The statute of the 1st Elizabeth and also that of the 12th Elizabeth, De Cancellarii Officio, speak of the chancellor's proceedings secundum jus civile, et eorum privilegia, et consuetudines; which seems to show that the Court must be then existing, otherwise there could be no such thing as any customary regulations annexed to it. There is no pretence to say that either of those statutes gave the Court its existence; therefore it must have existed before that time; and if it did, the remote distance of that period is sufficient to found a presumption that it is immemorial, unless the other side can prove the commencement. As to the court of the vice-chancellor and heads of houses, there does not seem to be any such distinct from that of the vice-chancellor. The statute of 12th Eliz. gives the chancellor the sole criminal jurisdiction in regard to such offences as are punishable by suspension from degree, imprisonment, or other lighter punishment. But where the offence is of a more serious kind, such as the present, there the statute De Concionibus has thought fit to require a greater degree of solemnity; and therefore it ordains that if any person in any public lecture, or otherwise, publicly within the university, teach or defend any thing against religion or any part of it, publicly received within this kingdom, &c. then such person "errorem et temeritatem suam cancellarii jussu, cum assensu majoris partis præfectorum collegiorum, revocabit et publicè confitebitur; quod si recusaverit, eâdem auctoritate e collegio suo perpetuò excludatur, et universitate exulabit."-From the penning and obvious construction of the above statute one may plainly infer that the chancellor is meant to be the judge, and that the proceeding is meant to be in his court; for every act is to be done jussu cancellarii, but cum assensu majoris partis præfectorum; he therefore by plain construction must be taken to be the judge, and they his assessors: the statute only imposes a check upon the chancellor in such cases, but does not create or establish a new court. And that such is the construction appears from all the cases and precedents that have been cited; and there is not a single one against it. But, at all events, in the present case the proceeding has been before the persons required to have the cognizance of such offences; and wherever they sit, it will not invalidate the proceedings, The second question made is, whether this is an offence within the statute De Concionibus? And it is said that the statute only relates to what is uttered in public lectures, not to private publications. But the bare reading of the statute suffices to answer this objection; for the statute says "in lectionibus publicis, seu aliter infra universitatem," &c.; therefore the words of the statute are large enough to include this case, and there cannot be a doubt but that it meant to do so; for the publishing such a tract is within the mischief meant to be guarded against, and indeed it seems the most mischievous way of propagating and giving a currency to such doctrines; and we should do very ill, were we, against the words, to narrow the construction of the statute. | mandamus to revise the sentence of another The third question is, whether the recantation court. I conceive that the granting of such a proposed was a proper one? It is said to be mandamus is not of course; nor is it of course ambiguous and unintelligible; but there does to grant it in a doubtful case, where the not appear to me to be the smallest obscurity Court below assuming it to be a court of or ambiguity in it. The articles and recan- competent jurisdiction has exercised that tation must be taken together; the articles jurisdiction and proceeded to sentence, and state the offence charged to consist in pub where the party has appealed against that lishing and causing to be dispersed within the sentence, and it has been affirmed on such university a scandalous book or pamphlet, de- appeal. The principal ground for granting a scribing it, and praying that it may be taken mandamus, so frequently mentioned by lord as if annexed; and then the articles proceed Mansfield, is, where it is to prevent a failure to point out the most exceptionable parts. of justice, and where there is no other specific The recantation required is, that he acknow- remedy; that chiefly applies to cases where ledges that by writing a pamphlet, intituled, there is no jurisdiction to appeal to, or where &c. and publishing the same within the uni- the judgment pronounced is clearly an excess versity of Cambridge, he has offended against of the jurisdiction of the Court below. And the latter part of the statute De Concionibus that brings me to the great questions in this as expressed in the following words reciting case, which are, first, whether the vice chanthem]; "I do therefore by the direction of cellor in doing what he did in this court (and the vice-chancellor, &c. retract and publicly which I call the vice-chancellor's court) acted confess my error and temerity as the said sta- within his jurisdiction; and secondly, whetute requires." Can it then be doubted what ther the judgment pronounced in that Court error he is to confess in publishing? It can were correct and sufficient. mean nothing but such passages as are ob- With regard to the first, Mr. Frend was jected to and pointed out as exceptionable. charged with a violation of the statute De The fourth and last question is, whether the Concionibus; proceedings were instituted punishment is eonformable to the statute? against him in the vice-chancellor's court, And as to this I am of opinion, that if the where the cause was heard; that court punishment in its effect answer all the end thought that the offence was sufficiently and intention of the statute, it is sufficient: proved against him, for that he was the author and that seems to be the case here; for if of the pamphlet imputed to him, and that Mr. Frend be expelled from the university, he the publishing of it within the university was of course can never take up his residence in an offence against this statute; on which the the university in a collegiate way; therefore vice-chancellor, with the assent of the major it is a virtual exclusion from his college. And part of the heads of houses, directed him to it seems to me of all others the most fit way; recant his errors; this being refused, the for I do not know that the university ever vice-chancellor with the like assent banished assumes the jurisdiction of expelling a mem- him from the university. Now that some ber from a particular college. A court of this jurisdiction is given to the vice-chancellor by kind is not tied down by the strict and tech- the statute in question, and that that jurisdic nical formalities which obtain in courts of tion is to be exercised within the university, law; and it suffices if such court as we are at is clear, and was indeed admitted in the argupresent speaking of is substantially right in ment. The university insist that that jurisits proceedings. But even if an expulsion diction was to be exercised in the vice-chanfrom the university did not operate as an ex- cellor's court in the manner in which the pulsion from the college, it would be but an vice-chancellor was accustomed to exercise his ungraceful objection for Mr. Frend to make, jurisdiction under the stat. 1 and 12 of Elizathat he is not punished as much as he ought beth; which is, that in the case of heinous to be; and there are cases to be met with, in offences he should pronounce the judgment which it is held that a man shall not assign with the consent of the major part of the that for error which is for his advantage: it is heads of houses, even though the punishso laid down in 5 Rep. 39. 2 Saund. 46. ment extend to banishment: but it is con2 Sid. 94. And this reasoning would equally tended on the other side that no proceedings apply to the present case, for a mandamus to under the statute De Concionibus can be inrestore must virtually annul the sentence as stituted in the vice-chancellor's court, in cases erroneous. But there is no occasion to en- where banishment is part of the sentence, but large upon this topic, as I think the sentence that they must be in camera before the viceis substantially good, as fully answering every chancellor and the heads of houses. In the end, and as attended with every effect, which consideration of this question it is material to the statute meant to enfore. Therefore, on observe that there is admitted to exist a vicethe whole, I think that the rule for the man-chancellor's court, from whose decisions there damus ought to be discharged. Grose J. Before I enter into a discussion of the great questions in this case, I will say a few words on what has been advanced at the bar respecting this application, which is for a is an appeal, (which fact I wish to keep in view throughout the whole of this business) in which oaths are administered, and that from the sentence of this court Mr. Frend has himself actually appealed in this case. It is no less material to remember that, ac- And as that there was a court competent to punish all the violators of the statutes, " ad omnes eorum violatores puniendos :" then came a subsequent statute, which created another offence, and annexed to it a particular punishment to be inflicted by the same persons as were mentioned in the former one; then where is the offence created by the latter statute to be inquired into? In the same court in which offences against the university were before heard. It seems to me that all these statutes, when they authorize the vice-chancellor to act judicio suo, consider him as sitting in some known and established court of justice; but it is objected that the statute De Concionibus erected a jurisdiction consisting of the vicechancellor and the heads of houses, where there is no process to compel the attendance of any persons, where no witness is to be heard on oath, and from which there is no appeal. It occurred to me that if the vicechancellor had proceeded in this court, where Mr. Frend now insists the proceedings should have been, Mr. Frend would have complained, and said, "There is a court of competent jurisdiction, where the vice-chancellor examines on oath into offences against the university, where proceedings on similar accusations have been constantly instituted, and from whose decisions there is an appeal; I have been accused of an offence against a statute of the university which does not in terms direct that the complaint shall be heard in any other than the vice-chancellor's court; you have denied me the privilege of being heard in that court, and in a case too in which by the sentence of another court I am to be banished from the university, and deprived not only of all the temporal advantages annexed to that situation, but also of the good opinion of all moral and religious men." He would have had to complain that the jurisdiction, by which he had been banished from the university, was new, unheard of, and self created, in which witnesses had given evidence against him without oath, and from whose decisions no appeal lies; and all this while there are extant on the records of the vice-chancellor's court proceedings on this very statute. This would have been a substantial ground of complaint; and in my opinion, it would have been no answer to it to have alleged that which has now been stated on the behalf of Mr. I rend. I am therefore clearly of opinion that the jurisdiction to be exercised under the statute De Concionibus was intended to be exercised in a known and established court in the university, in the same court in which offences against the statutes 1 and 12 Eliz. c. 42, are heard, and in which, according to all the precedents, offenders against the statute in question have been corrected or punished. Against these precedents produced by the university, not a single one has been cited in opposition. Then it would be dangerous in the extreme for this Court to attempt to put a new con struction on this statute, and to point out a different mode of administering justice on laws, which are familiar to the university, but new to us. Then it was objected that this was not an offence within the statute; and Mr. Frend has attempted to confine the construction of the statute to speeches or writings delivered or published on public occasions in the university, as lectures, sermons, &c.: but whatever may be the meaning of the former words of the statute, the words "seu aliter publicè infra universitatem nostram" evidently extend the meaning beyond such a construction. It must be remembered too that that statute was made for the preservation of good discipline in the university, and for the maintenance of religion; and the object would be entirely defeated if any of the members were permitted to publish blasphemous or any other objectionable doctrines in the university, though they were not published in the course of any of the public exercises there. As to the objection to the form of the recantation proposed; the answer given to it by my brother Ashhurst is very satisfactory in my mind, and I can add nothing more than my assent to it. statute De Concionibus. It has been contended by Mr. Frend that he had not: but if not, all the instances that have occurred from Rush's case down to the present time are erroneous; for it appears from all of them that all offences in any of the members of the university have been tried and determined in that court. The question therefore will depend on the usage and construction of the statute De Concionibus, whether it was meant to create a new and particular jurisdiction for this particular offence, or whether it was intended to refer the cognizance of offences against it to the old jurisdiction under the other statutes. On this point the whole evidence is uniform. Mr. Frend's counsel felt the weight of this, and endea voured to show that the proceeding in Rush's case was in camerá, and not in the vice-chancellor's court: but I think it was in a court; for it begins with the style of a court "officium domini," which is the title of the proceeding in courts governed by the civil law. Besides, it appears that he was guilty of a contempt, for which he was committed to custody, which shows that the proceedings could not have been in camerá. Next it was observed that the proceedings in that case did not apThe remaining objection is that the judg-pear to have been at the promotion of any ment is not sufficient, for that under the statute the vice-chancellor's court should also have adjudged him to be excluded from his college. I confess I cannot accede to what my brother Ashhurst has said upon this subject; for if a statute create an offence and ordain a particular punishment, the judgment must follow that which is prescribed by the statute; and if I had thought it necessary, I think I could have referred to authorities to show that a judgment given under a statute prescribing a particular punishment is erroneous if it do not pursue the statute, even though the judgment be not so severe as the statute directs. But, in this case, I think that the exclusion from the college is included in the sentence of banishment; and I observe that the precedents are like the present case. But I think it is perfectly immaterial whether the one does or does not include the other, because this is a ground of appeal only, and fit for the discussion of the court of delegates. I have entered thus fully into the subject, because in a case like this it is of importance to the discipline and good government of the university that the grounds upon which we proceed should be distinctly known. Lawrence J. So much has been already advanced upon every part of this case that I can add but little to it. Almost every ground, upon which any argument can be founded to show that the proceedings below have been regular, has been already taken: but in a case of this importance, I will say a few words. The great question is, whether the vice chancellor, assisted by the heads of houses, had or had not any jurisdiction in the vice-chancellor's court over offences under the person: perhaps the minutes of that case are not sufficient to show that; but in the subsequent cases of Waller and Duck, that circumstance does appear. If then this court had jurisdiction in this case, the next question is whether this person was guilty of any offence against the statute De Concionibus; upon that I cannot entertain a doubt. It would be a very weak statute indeed, if, when its object was, to prevent the circulation of inproper doctrines in the university, it only prohibited the public preaching, or public delivery, of those doctrines on some particular occasion, and permitted the members to print books containing such doctrines, and to disperse them all over the university With regard to the form of the recantation, I see no difficulty in Mr. Frend's making it, since it must have applied to those things with which he was charged, and not to those with which he was not charged. The last question, respecting the sentence, is equally clear. No particular form is prescribed; and it is stated that the sentence pronounced (as understood by Mr. Frend himself) has all the effect which he says the statute ought to have. Rule discharged. An account of these proceedings in the Court of King's-bench was published by Mr. Frend, under the title of "A SEQUEL to the Account of the Proceedings in the University of Cambridge, against the Author of a Pamphlet intituled PEACE and UNION; containing the Application to the Court of King's-bench, a |