"this a writ of error being brought into the House of Lords, they T. T. 1845. Queen's Bench. "concurred in Sir John Holt's opinion, and reversed the judgment "of the Court of King's Bench; to which leading case all subse- THE QUEEN "quent determinations have been conformable."

Now there is nothing in these charters, from beginning to end, to limit the general uncontrolled power extending to all cases, which is thus deemed at common law to be in the Visitor of a College.

66

66

There is an authority which points out very strongly the judgment we ought to give in this case: Rex v. Bishop af Lincoln (a); "where a mandamus was prayed to the Bishop as Visitor of Lincoln "College, Oxford, to compel him to receive, hear, and determine an "appeal of Dr. Halifax, who complained of an undue election to the "office of Rector of that College, to which Mr. Horner had been "admitted. The Court determined that where, by the statutes of a 'college, a Visitor is appointed who is to interpret the statutes, and an appeal is lodged with him, the Court will compel him to hear the "parties, and form some judgment, though they will not oblige him to "go into the merits, for it is sufficient if he decide that the appeal comes too late." In conformity with that judgment we decide that these Visitors shall be put in motion without at all suggesting the judgment they ought to form. They may, perhaps, reject the appeal all altogether. They may find grounds for deciding against Heron, perhaps in the Scholar's oath, perhaps in the duties required. of Scholars, perhaps in the statutes. All these things are to be considered by the Visitors and not by this Court.

66

What extent of authority the Visitors can exercise in this case is shown in a passage in the statutes, not stated in the return of the Visitors.

"Idcirco Visitatoribus Collegii in Chartâ nostrâ regia designatis, "potestatem concedimus et insuper rogamus eos in Domino ut semel "in unoquoque triennio per se, vel per alios ad id muneris deputatos "hoc Collegium adeant ut Præpositum, Vicepræpositum, Decanos, "Bursarium Prælectores, Socios, Scholares, et Discipulos omnes "Collegii in unum convocare possint, et velint Collegium tam in "capite quam in membris visitare ac de et super omnibus et singulis "statum commodum honorem et dicti Collegii Statuta Præpositi, "Vicepræpositi, Bursarii, Decanorum, Prelectorum, Sociorum, Scho"larium, discipulorum et ministrorum reformationem et correctionem concernentibus diligenter inquirere juramentum de dicendo verita"tem in præmissis omnibus et singulis ab eisdem exigere crimina excessus delicta et negligentias quorumcunque dicti Collegii quali

66

66

(a) 2 Term Rep. 338, n.

ย.

TRINITY

COLLEGE.

THE QUEEN

V. TRINITY COLLEGE.

66

T. T. 1845. "tercunque commissa in eâ visitatione comperta secundum criminum Queen's Bench. "excessuum delictorum et negligentiarum qualitatem et exigentiam "et juxta horum Statutorum tenorem debite punire et reformare aut "ut puniantur et reformentur per Præpositum vel quorum interest curare cæteraque omnia et singula facere et exercere quæ ad eorum "correctionem et reformationem sunt necessaria aut quovis modo "opportuna etiamsi illud ad privationem seu amotionem Præpositi, Vicepræpositi, aut alterius cujuscunque ab administratione vel "officio seu ad amotionem alicujus Socii Scholaris vel discipuli ab "hoc Collegio (si tamen hoc ipsum Statuta Collegii exigant) (a).

66

Here is extreme power given to the Visitors, and there is no person in College who is not by express terms subject to it. Then by common law the Visitors have extensive power unless restrained, and here is no restraint. We are of opinion that the Visitors have misconceived their duties, and that there is nothing in the statutes or the charters which prohibits the interference of the Visitors in a matter of so much consequence as the election of a Scholar. This person appealing was a member of the College. He had been admitted a Sizar, and he had sworn to obey the statutes of the College. He was at any rate admitted a member of that College. If he had rights at that time, and was entitled in order of merit to be elected a Scholar, he has had a good ground for appeal, and his appeal ought to have been heard. His appeal cannot for an instant be considered frivolous or vexatious: it is one in which the interests of the College are much involved. On the whole, we think we have a direct precedent in the case of Rex v. Bishop of Lincoln, which I have referred to, and the judgment of the Court is, that the visitatorial power be put in motion by the awarding of the peremptory mandamus to the effect prayed by the prosecutor.

(a) College Statutes, &c., Mac Donnell's Edition, p. 104.

NOTE. The appeal was heard before the Visitors and the Right Honorable R. Keatinge, the Judge of the Prerogative Court, who acted as their Assessor, and was argued by Richard Moore, Longfield and Butt on the part of the College, and Pigot, O'Hagan and Flanagan for the appellant. The opinion delivered by the Assessor, and the return made by the Visitors, is subjoined:

The eligibility of Roman Catholics to scholarships in Trinity College depends on the construction of the College statutes of 1794. As the law stood previous to the Act 33 G. 3, c. 21 (1793), there was nothing to prevent Roman Catholics from entering the College; but on their admission, they would (in common with all other students) have immediately become subject, under the College statutes, to the performance of religious duties which, as Roman Catholics, they could not conscientiously discharge, and in addition to this obstacle, they could not obtain degrees without taking the oaths of allegiance and abjuration, and making the declaration

against transubstantiation, prescribed by the statute 3 W. & M., c. 2. The effect of this was, that Roman Catholics were excluded from the College. The 13th section of the Act of 1793 is in these words:-"And whereas it may be expedient, in case his Majesty, his heirs and successors, shall be pleased so to alter the statutes of the College of the Holy and Undivided Trinity near Dublin, and of the University of Dublin, as to enable persons professing the Roman Catholic religion to enter into or to take degrees in the said University, to remove any obstacle which now exists by statute law; be it enacted, that from and after the first day of June one thousand seven hundred and ninety-three, it shall not be necessary for any person, upon taking any of the degrees usually conferred by the said University, to make or subscribe any declaration, or to take any oath save the oaths of allegiance and abjuration, any law or statute to the contrary notwithstanding."

This section does not, nor does any other part of the Act of 1793, profess to interfere with any of the College statutes. It was in the power of the Crown alone, without the concurrence of the rest of the Legislature, so to alter the College statutes as to relieve Roman Catholics from all duties inconsistent with their religious opinions, and thus to give them the benefit of instruction in the University; but the Crown alone had not the power to remove the bar to taking degrees, which had been created by Act of Parliament. The College statute of 1794 recites the 13th section of the Act of 1793, and then proceeds as follows:-"Sciatis ergo quod nos, pro eâ curâ, quam singularem habemus erga subditos nostros qui religionem Pontificiam sive Romano Catholicam profitentur, et ut iidem in dicto Collegio nostro et in dictâ academiâ bonis artibus et literis instituantur: statuimus et ordinamus, quod omnibus subditis nostris qui religionem Pontificiam sive Romano Catholicam profitentur, liceat, et deinceps licebit in dictum Collegium admitti, atque gradus in dictâ academiâ obtinere præstitis prius omnibus exercitiis per leges et consuetudines academiæ requisitis, aliquo statuto dicti Collegii, aut statuto, regulâ, aut consuetudine quâcunque dictæ academiæ in contrarium non obstante."

T. T. 1845.
Queen's Bench.

THE QUEEN

Thus, it will be observed, the College statute of 1794 very precisely defines the object which the Crown had in view, viz., that Roman Catholics should have a liberal education in the University; and then, to effect that object, it provides that it shall be lawful for Roman Catholics to be admitted and obtain degrees, notwithstanding any statute, rule, or custom of the College to the contrary. The words, "in dictum collegium admitti atque gradus in dictâ academiâ obtinere," taken strictly and in their literal sense, would merely entitle Roman Catholics to enter College, and perform all the exercises (not inconsistent with their religious opinions) necessary for obtaining degrees, and having performed these exercises, and thus acquired proficiency "in bonis artibus et literis," then to obtain degrees accordingly. The College statute of 1794 does not, in favour of Roman Catholics, dispense in terms with the religious duties and obligations which were, by the then existing College statutes, cast on all students; but I think it quite clear, that on its true construction, it, by necessary implication, dispensed, in favour of Roman Catholics, with all religious duties which they could not conscientiously perform, so far as such dispensation was necessary for enabling them "in dictum Collegium admitti atque gradus, in dictâ academiâ obtinere;" but no further or otherwise. I think it equally clear, that the College statute of 1794 did not in any manner interfere with the religious duties of the students who were not Roman Catholics. In order to form a correct opinion as to the meaning of the words "in dictum Collegium admitti atque gradus in dictâ academiâ obtinere," and to determine whether they entitle Roman Catholics to become candidates for Scholarships, it is necessary to consider the nature of the University establishment. The Visitors being appointed by the founders, are bound to carry out their intentions, so far as

บ.

TRINITY

COLLEGE.

H

THE QUEEN ข.

TRINITY

COLLEGE.

66

T. T. 1845. they are clearly expressed in the original charters and College statutes, save so far Queen's Bench. as by equally clear words or necessary implication, they have been abrogated by subsequent provisions. The College is a corporation; the members of which are the Provost, Fellows, and Scholars. The number of Fellows and Scholars is limited. The charter of Elizabeth and Charles the First, and the body of College statutes accompanying the last mentioned charter, clearly contemplate an establishment for the advancement of religion, and in which not only all the members of the corporation, but all persons receiving instruction, should be Protestants. This will be abundantly shown by a few references to the last edition of the College statutes (1844). By the charter of Elizabeth (pp. 7, 8) Fellows were to vacate their Fellowships at the end of seven years, 66 ut alii in eorem locum suffecti pro hujus Regni et Ecclesiæ beneficio emolumentum habeant." The statute "de culta divino" (p. 44) points out religious duties to be performed by all the members and students, including the receiving of the Sacrament as received by Protestants; by the statute "de sociorum juniorum electione" (p. 42), all Fellows (except the Professors of Law and Medicine) must take priests' orders within three years after their election, or forfeit their Fellowships. The statute "de cultu divino" (p. 50) provides, Porro Præpositi et sociorum seniorum erit videre ne qua Pontificiæ, aut hæreticæ religionis opinio intra Collegii fines alatur aut propugnatur sive publice sive privatim." The charter of Charles the First (p. 38) removes the restriction preventing Fellows from holding their Fellowships for more than seven years, "it being found injurious to the welfare of the College, the State, and the Church." The better advancement of religion and learning, is the reason assigned for the Chancellor's assent (p. 119) to the College decree of the 23rd October 1722, for increasing the salaries of the Provost, Fellows, and Scholars. The College statute of 1st George the Third (p. 147), "de Professore in sacrâ Theologiâ," proposes the establishment of a Professorship of Divinity by this recital, cum vero permultum refert ut juventus academica, illi præsertim qui sacris ordinibus desitinatur in sociis literis, et religionis Christianæ doctrinis diligentius erudiantur, in quem præcipue finem fundatum fuit hoc Collegium." The words "in quem," &c., clearly stating in the words of the then Sovereign (George the Third, who afterwards made the College statute of 1794), that the advancement of religion was the principal object for which the University was established. The College statutes contemplate Scbolars as a class in whose selection the Church and the State had an interest. By the statute, "De Scholaribus sive Discipulis " (p. 36), it is provided, that in the election of Scholars, those educated in Dublin schools, and counties where the College had lands, should be preferred, "ut quorum labore et sudoribus Collegii membra omnia, et singula sustentantur eorum potissimum liberi in eodem educentur et virtute ac humanioribus literis ad ecclesiæ, et reipublicæ emolumentum instituantur." Scholars were to hold their scholarships (p. 38) until they obtained, or could have obtained, a degree of Master of Arts, or until they were elected Fellows; and (p. 39) in the election of Fellows, Scholars were to have a preference. The charter of Elizabeth (p. 5) gives to the Provost, Fellows, and Scholars, power to acquire land to the value of £400 a-year-"ad sustentationem et manutentionem prædicti Collegii et ad relevamen et sustentationem Præpositi, Sociorum et Scholarium et prædicti Collegii ;" and the charter of Charles the First (p. 32) gives power to the College to hold additional land, to the value of £200 a-year, for the same purpose.

The cultivation of the Protestant religion appears to have been one principal object for which Trinity College was established, and the cultivation of learning was another. It was clearly in the power of the Crown to alter all or any of the College statutes imposing religious duties on Students; and the Legislature having,

THE QUEEN

v.

TRINITY

COLLEGE.

by the Act of 1793, relieved Roman Catholics from the necessity of taking any T. T. 1845. oaths, on graduating, save those in that Act mentioned, there was nothing to prevent Queen's Bench. the Crown (if it had so pleased) from so altering the College statutes as to put Protestants and Roman Catholics in all respects (save as to Fellowships) precisely on the same footing; and the inquiry is, did the Crown, in the College statute of 1794, use words showing an intention to do so? The Act of 1793 relieved Roman Catholics from disabilities, but it cannot be denied that, after having in section 7 provided in general terms that they might hold, exercise, and enjoy all civil and military offices and places of trust or profit under his Majesty, his heirs and successors, there is in section 9 a long list of exceptions, including almost all of the most valuable offices, and in the enumeration of exceptions is to be found "Provost or Fellow of Trinity College, Dublin." Now, if Fellows had not been named in this exception, I think it very doubtful whether the provisions of the 7th section of the Act of 1793 could have extended to them, as they could not well be said "to hold any place of trust or profit under the Crown." The insertion of Provost and Fellows, and the non-insertion of "Scholars" in the 9th section, was relied on as affording an inference that the Legislature intended to open Scholarships to Roman Catholics; but the answer to this argument is to be found in the 7th section of the Act of 1793, which clearly does not include Scholars, and therefore it was not necessary to name them in the 9th section for the purpose of excepting them out of the operation of the 7th section. Besides, the 7th section of the Act of 1793 provides that Roman Catholics might hold any office or place of trust in, or be a member of, any lay body corporate, except Trinity College, and also that Roman Catholics might be Professors, Masters, or Fellows of any college to be thereafter founded in Ireland, provided such college should be a member of the University of Dublin, and not founded exclusively for Roman Catholics. All this seems to me to afford strong evidence of an anxiety on the part of the Legislature not to interfere with the Protestant character of the corporation of Trinity College. At all events, it clearly shows that where the Legislature intended to legislate in relation to Masters or Fellows of colleges, or members of corporations, it deemed it right to use definite and precise language for the purpose. The 13th section of the Act of 1793 recites the expediency of removing the bar which then existed by statute to Roman Catholics taking degrees, in order to enable the Crown so to alter the College statutes as to allow Roman Catholics to enter College and take degrees. Without altering the Protestant character of the corporation, or allowing Roman Catholics to be members of it, and without diverting any of its funds from the purposes mentioned in the charters of Elizabeth and Charles the First, it was quite possible for the Crown to admit Roman Catholics to enter College and obtain degrees, by relieving them for that purpose, and for that purpose only, from the obligation to perform religious duties; and if it be supposed that this limited object was in the view of the Crown, I do not think more suitable words could have been used for the purpose than those which are to be found in the College statute of 1794. The operative words of that statute are special and precise, and in my opinion, have the effect of dispensing with the religious duties imposed by the College statutes (on the Students generally) in favour of Roman Catholics, not altogether, and for all purposes, but merely for the limited purposes specified.

It must be admitted that if Roman Catholics are, on the true construction of the College statute of 1794, eligible to Scholarships, a change was thereby made in the Protestant character of the corporation of so serious and important a kind, that it is not very probable the Crown would have made it intentionally, without at the same time making some change in the Scholar's oath. The Scholar's oath is not abrogated-it contains three important matters. The first consists of an acknowledgment, "Regiam auctoritatem serenissimi nunc Regis Caroli secundum Deum