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man has never been held forth. Some spe- , master and fellows have not a power of pucific charges have been brought against the nishing any fellow of the college, till it is accused person, and whether the crimes were clearly proved that he has offended against real or fictitious, the disciples of St. Dominick some one of the college statutes; and that carried on the appearance of justice. Even then they are empowered to inflict only sucha the persecutors of Galileo did not think the punishment as the statute requires." tendency of his philosophy a sufficient cause I have said, that I had no opportunity of for confining him in prison. They brought vindicating myself trom the supposed charges : forward the charges on which he was con and the master and the five fellows refer your demned, namely, for contradicting the scrip. lordship to some course of proceedings, which tures and violating the laws of the holy see. not having seen I might invalidate, by reTo remove a man from college on the sup- peating only my former assertion. But it is posed evil tendency of his publications, is to very extraordinary that the master and the open a door for the worst of persecutions. The five fellows should pretend to say, that I had first printed Bibles in England were burnt, three opportunities offered of making my debecause of their supposed dangerous tendency, fence, when three of the other fellows, who and if this pretexi were allowed, students were present with them during the whole of must hereafter shut up their books, lest, if the time, declare, as one reason for dissenting by a regular attention to college duties, they from the resolution of removing me from the should offend some of the body who might college, that I had no opportunity gwen of be notorious for a disregard of all order and vindicating myself. Their words are, “ It apdecorum, the publishing of a book should pears to us to be repugnant to the principles of render them obnoxious to every species of justice, and contrary to the rules observed in vindictive malice and resentment.
every court, to pass sentence on any person Under this head, I beg leave to offer to your before he has had an opportunity of answering lordship's consideration the following histo- to the particular charges brought against him, rical fact, which shows, in the strongest which, in the present instance, was not als manner, the sense of the whole bench of lowed to Mr. Frend." In addition to this bishops, on a similar occasion. In 1701, the evidence, given by three very respectable lower house of convocation took into consi. members of our college, one of whom is a deration bishop Burnet's Exposition of the tutor, and exemplary in the discharge of thirty-nine articles of the church of England; every part of that office, I do declare, and am and coming to several resolutions upon it, willing to attest upon oath, that the account laid them before the upper house, which delivered to your lordship is founded on a proceeded, among others, to the following gross misrepresentation. conclusion : “ That the lower house of convo The master and the five fellows assert, that cation's censuring the book of the bishop their sentence, for such they call their resoluof Sarum, in general terms, without men tion, was virtually passed, by a majority of tioning the particular passages on which the fellows; and, as a proof, allege, that a the censure is grounded, is defamatory and majority of the fellows being present at the scandalous."*
mecting, and the major part of that meeting The reason for not pointing out the parti- having concurred in the sentence, such sencnlar statutes against which I am supposed to tence is valid, anil to be considered as passed have offended, is ridiculous and puerile in the by the whole meeting, though some of the extreme. The statutes are given us as a rule tellows expressed their dissent to it. The of conduct, and to prevent arbitrary pro- consequence of this reasoning is, That if a ceedings : I have sworn to obey these sta- master of the college, regardless of his duty tutes, and to submit to a punishment ac and his oath, should make a party amongst cording to the statutes, but not to any other. the fellows to injure another, should closet The college has certainly a right to punish a five of the fellows, and, by promises, solicitamember for an offence contra bonos mores, tions, or threats, bring them over to his purbut the offence is punishable only according pose, he may drive any person from the colto the statutes. Any punishment, not au- | lege, of whom, through prejudice, he has thorized by the statutes, a fellow of this col- conceived a bad opinion, or from whose fall lege is not bound to submit to; and if the he expects to derive an advantage. But the master should pretend to enforce it, he does it author of the statutes was not so inattentive under the peril of perjury: for he has taken to the liberty and independence of the an oath to govern according to the statutes. I fellows; he was aware of the abuses which This subject has been well stated in the in general prevail in bodies of this sort, and protest laid before your lordship by three of would not permit a person to be exposed to the fellows present at the meeting on the the continual injuries which he might rethird of April. “ We conceive, that the ceive from the inirigues of a master and five
fellows The smaller crimes have punishSee Historical Essay upon the Govern- ments assigned to them, to be inficted by the ment of the Church of England, by George master or president, and dean: the greater Reynolds, LL. D. archdeacon of Lincoln, P. crimes, by the master, and majority of the 194. Frend,
fellows. Bishop White's interpretation can
Rot apply to this case; for it was made for your lordship think yourself justifiable in asthe relief of the fellows in certain cases, in suming a discretionary power of banishing a which, from the inconvenience or impossibi- clergyman from his living, who, by his oath, lity of assembling all the fellows, the college is obliged to residence, such punishment not might be liable to sustain some detriment; being enjoined by any law of the church? but in his interpretation there is no reference There is no inconsistency between the two to any statute on punishment, and it is con statutes pointed out by the master, and the fined solely to three statutes which limit cer five fellows. To make such inconsistency, tain elections with respect to time. In the they must suppose, that the fellow, who, in present instance, there can be no reason for virtue of the latter, shall be put out of Comnot expecting the concurrence of a majority mons, is not obliged by the former to dine in of the fellows, if the sentence were justifiable; the hall at his own expense; or if any such since the meeting was not confined to any inconsistency should be allowed, it is certainly particular time, and the master was vested not a similar one, as it arises from an express with sufficient authority to bring all the fel. injunction of the law-maker. And, if the lows together. As there was more than a founder of the college had thought fit, among majority of the fellows present, and only six other punishments, to appoint that of temconcurred in the resolution of removal, the porary removal, and to add, that it might be proper mode of arguing is, that not only those inflicted by the master, and six of the fellows, four who dissented from the resolution, but there would be no doubt of the obligation on all the rest who did not appear disapproved every fellow to comply with it; but as the entirely of the master's conduct, in pre-master, and the five fellows, have not tending to call the fellows together on a sub- brought the least shadow of a proof that this ject, in which it is evident they thought them- is the case, my objection remains in full selves not at all concerned. For I cannot force. allow the master and fellows of this college On the whole, I cannot help observing to any right to decide on the merits of a work your lordship, that the inaster, and the five written by one of their body. The statutes fellows, have failed in their answer to every give them no such power, and if a fellow of one of my objections. Being sensible of the the college should, by printing or publishing, weakness of their cause, and the badness of act contrary to the laws of the realm, he is in their arguments, they pretend to talk of the common with other Englishmen, liable to be lenity of their sentence, and of the situation brought before the tribunal of justice. in which they suppose me to be placed. The
Instead of answering my last objection, and, offence, of which they conceive me to be pointing out the statute which warrants their guilty, is an ideal one; the statutes would not resolution of removal, the master and five have warranted them in punishing me by fellows are content with saying, that the col-total expulsion; and if they had, the exchange lege could pass such a sentence under that of expulsion for a temporary removal, must, general and necessary authority which it pos- on my part, have been optional. So far from sesses in all cases of discipline, whether speci- giving the master and five fellows, any credit fically described in the statutes or not. But for their lenity, I conceive them to have done unfortunately for them, I have taken an oath the utmost in their power, for which they to obey, and will obey only in those cases imagined that they had the least semblance prescribed by the statutes, and the same oath of a pretext, and the injustice of their conduct which obliges me to obey only in certain is apparent in the total irrelevancy of their cases, is a sufficient proof that the college can sentence. For, what has the publishing of a demand obedience only in those cases. book, containing speculative opinions, to do
The punishment of a fellow, by a tempo- with the behaviour of an individual' What rary removal from his college, is not known misbehaviour could they ever charge me with ? in the university, except in those colleges, in What certificate of good behaviour do they which it is enjoined by their statuites, and I require? What proofs will satisfy Mr. Plamhave good reason for saying, that the asser- pin, who is a tutor in the college, and nototion of the master and five fellows, con- rious for neglect in the most material part of cerning the frequent practice of such amotion his office, that of giving lectures? If proofs in the university at large is without founda were requisite, I could bring them signed by tion. But were this true in other colleges, the most respectable members of this univerwe are to be governed by our own laws, not sity, and the first literary characters in the by the laws or practice of any other commu- kingdom; and I should have the utmost connity. Where the punishment of removal is tempt for myself, if my character could be statutable, the inflicting of it supersedes the in the least hurt by any imputation which the duties required by the other statutes. On master, and the five fellows, have endeavourthis principle the suspension of a clergyman ed to fix upon it. Instead, therefore, of reab officio, is perfectly consistent with his quiring a certificate of my good behaviour general obligation to discharge the duties of elsewhere, let them first produce some proofs his office : such obligation being only condi- of my misbehaviour during my residence tional, and dependant on his own conduct, among them; and if they could do that in a and the judgment of his superior. But would satisfactory manner to your lordship, the cons
sequences are well known. As to this worse than inquisitorial manner of proceeding, by This case was afterwards, by Mr. Frend, examining witnesses without confronting brought before the court of King's-bench. them with the accused, by refusing to hear a | It is thus reported 5 Term Rep. 475. man in his own detence, by condemning hiin
Thursday, Jan. 23d, 1794. without pointing out the statute against which he has oftended, by passing a sentence
The King against the Bishop of Ely. which is totally illegal, and has no connexion Raine moved, and was supported by Gibbs, with the supposed crimes, I am persuaded it for a rule calling on the bishop of Ely to show must be as disgusting to your lordship, and cause why a mandamus should not issue, dievery other liberal mind, as it is to, my lord, rected to him, commanding him as visitor of your lordship's very obedient servant, Jesus College, Cambridge, to hear and deter
W. TREND. mine an appeal of the reverend W. Frend, On the 16th of July, the master of the collate a fellow of that college, against a sentence
ot amotion lege called a meeting of the fellows, and in it read to us a paper which he professed to have that in April last he was “ removed from his
It appeared from the aftidavit of Mr. Frend received from the bishop of Ely, and on the twenty-sixth of July, it was copied into the college” by a sentence of the master and order-book of the college, as appears from the tellows, un a charge of having written a
seditious pamphlet : that the defendant apfollowing extract:
July 26, 1793.
pealed against this sentence to the bishop of At a meeting of the master and all the fel-Ely, its visitor, on the grounds that no exceplotis resident in college, Mr. Trend having
tionable passages in the pamphlet had been appealed to the visitor against the sentence produced; that no laws of the college, against
which the appellant bad offended, were contained in the foregoing page, and the visitor having dismissed ihe appeal, and attirmed pointed out; that the appellant had no oppor
tunity of vindicating himself; that there was the sentence in the following words:
not a majority of all the tellows of the college To the reverend the master and fellows of concurring in the sentence, as the statutes
St. Rhadegunde, or Jesus College, in the required; and that the punishment was not university of Cambridge.
stalutable: that in answer to this appeal the appeal of the reverend William Frend, of your lating to the publishing of the pamphlet, by Gentlemen; I have carefully perused the master and five of the fellows asserted to the
visitor that they had examined evidence recollege, against the proceedings had and sentence passed upon him, as publisher of a
which they were convinced that Mr. Frend pamphlet, intituled Peace and Inion recom
was the publisher; that the appellant had mended to the associated bodies of republi; defend himself; and that the sentence which
three distinct opportunities given to him to cans and anti-republicans; by the master and they had taken upon themselves to inflict, major part of the fellows of your society, together with the answer of the said society, and
was virtually passed by a majority of the the reply of the appellant, and the several fellows: that to this answer the defendant documents therein referred to, and having with respect to the opportunities offered to
replied that the evidence was false; that, duly deliberated thereupon, I dismiss the him of making a detence, the master and said appeal, and affirm the sentence of amotion.--I am, Gentlemen, your constant well the visitor, and that three other tellows had
five fellows had misrepresented the case to wisher, James Ely, visitor.
protested against the sentence on this ground
ihat Mr. Frend had not had an opportunity July 13, 1793.
of answering the charge. “ That upon the Agreed, that if Mr. Frend does not quit the appeal thus made to the visitor, the answer college according to the sentence, that no of the master and the five fellows, and the time should be lost in enforcing the sentence reply of the appellant, the visitor, without in the manner pointed out by sir William reference to any of the statutes of the college, Scott, in an opinion given by bim on this oc- without noticing the allegations of the appelcasion.
lant, or the want of proof on the part of the W. Pearce, master. master and five fellows, without specifying W. Mathew.
any reasons (agreeably to the constant practice Thos. BAYLEY.
of former visitors) for his concurrence with the Mr. Frend was not at that time in college, sentence of the masters and fellows, in short but the master informed him by letter, that on with a simple declaration that he had duly the second of August, admission into the col- deliberated upon these things, determined lege would be denied to him. On that day in these words, “ I dismiss the said appeal, Mr. Frend returned to college, and about and attirm the sentence of amotion.” twelve o'clock received an intimation in writ The counsel for the rule admitted that this ing from the master, that the college servants / court had no authority to compel the bishop were prohibited from supplying him in future to exercise his visitatorial power in any partiwith any necessaries,
cular mode, or to correct his sentence, how
ever erroneous, if that sentence were pro- and he has exercised his judgment upon the nounced after hearing the merits of the case whole. If therefore we were to interfere, it on appeal; Philips v. Bury, 1 Ld. Rayn. 5, / would be for the purpose of controlling his 2T. R. 346; but contended that in this case judgment. But any interference by us to the bishop had not heard the appeal of control the judgment of the visitor would be Mr. Frend at all; for that though he received attended with the most mischievous consethe appeal, he dismissed it without hearing quences, since we must then decide on the any of the parties. They also mentioned R. statutes of the college, of which we are ignov. the bishop of Lincoln Tr. 25 Geo. 3, B. R. rant, and the construction of which has been [2 T. R. 338.); where the court said they confided to another forum. had a right to compel a visitor by man Ashhurst J. When a visitor refuses to receive damus to hear an appeal
, in order that he and hear an appeal, this court will compel him might form his judgment on the merits of it. to exercise his visitatorial power : but we
Lord Kenyon, c. 9. If there were the most have no authority to compel him to form a remote probability of raising a question in particular judgment on the merits. Here the this case, we ought to grant a rule to show bishop has heard and decided; and I think cause, in order that the question might be that the appellant does not state the ground further investigated But as there is no pro- of his application correctly, when he says that bability of throwing fresh light on this case, the bishop has not heard the appeal. and as according to the circumstances now Buller J. The whole turns on the equivocal disclosed the rule which applies to cases of use of the word,“ heard.”. The appellant this description has been so clearly settled thought-he bad a right to be heard personally for near a century (since the case of Philips before the visitor, and that the bishop ought v. Bury) that it ought not now to be brought not to have decided without hearing parol in question again, I think it would be unjus- evidence. But that is not the course of protifiable to put the bishop to the expense of ceeding on these appeals. Here the appellant showing cause against a rule, which is desti- states that he did appeal; that the college tute of every foundation on which it can rest. sent their answer to the bishop; and that he It was settled in Philips v. Bury, in which the appellant) replied to it; then the bishop determination the profession has ever since did hear the appeal in the way in which such acquiesced, that this court has no other power appeals are usually heard. than that of putting the visitatorial power in Grose J. If the bishop had not exercised motion (if I may use the expression), but that his judgment at all, we would have compelled if the judgment of the visitor be ever so erro- him: but it is objected that he has not exerneous, we cannot interfere in order to correct cised it rightly; to this I answer that we have it. Now here the visitor received the appeal; no authority to say how he should have deeach party disclosed his case to him; the cided. whole merits of the case were before him;
577. Proceedings in the Case of DANIEL Isaac Eaton,* upon an
Indictment for publishing a Libel, intituled, “ The Second
third year of the reign of our sovereign
lord, George the Third, king of Great At the general session of Oyer and Terminer, Britain, &c.
of our Lord the King, holden for the city of London, at Justice-ball, in the Old London, The jurors for our lord, the Bailey, within the parish of St. Sepulchre, to wit. S king, upon their oath present, in the Ward of Farringdon without, in That Daniel Isaac Éaton, late of the parish of London aforesaid, on Wednesday, the St. Botolph, without Bishopsgate, in the ward twetieth day of February, in the thirty- of Bishopsgate, in the city of London, afore
said, bookseller; being a wicked, malicious, See the next case;
and in this Collection, seditious and ill-disposed person, and being the trials of this same Daniel Isaac Eaton, in greatly disaffecte to our said sovereign lord 1794, and 1812 post.
the now king, and to the constitution and goVOL. XXII.
vernment of this kingdom, and most unlaw- duces a fermentation which endeavours to fully, wickedly, seditiously and maliciously, discharge it." And in another part thereof, devising, contriving, and intending, to scan- according to the tenor and effect following, dalize, traduce, and vilify our said lord the that is to say, “ Hereditary system" (meannow king, and the hereditary succession to the ing amongst other things the hereditary crown and regal government of this kingdom, system of succession to the crown of this as by law established, and to alienate and kingdom)“therefore, is as repugnant lo human withdraw from our said present sovereign lord wisdom, as to human rights, and is as absurd, the now king, the true and due obedience, as it is unjust.”. fidelity and allegiance, of his subjects, and And in another part thereof, according to wickedly and seditiously to disturb the peace the tenor and effect following, that is to say, and tranquillity of this kingdom: on the “Whether I have too little sense to see, or seventeenth day of January, in the thirty- too much to be imposed upon, whether I have third year of the reign of our said present too much or too little pride or of any thing sovereign lord the king, with force and arms else, I leave out of the question, but certain it at the parish aforesaid, in the ward aforesaid, is, that what is called monarchy" (meaning in London aforesaid; he the said Daniel amongst other things the monarchy of this Isaac Eaton, unlawfully, wickedly, malici- kingdom)“ always appears to me a silly conously and seditiously did publish and cause to temptible thing, I compare it to something be published, a certain scaudalous malicious kept behind a curtain, about which there is a and seditious libel, intituled, Rights of great deal of bustle and fuss, and a wonderful Man, Part Second, combining Principle and air of seeming solemnity, but when by any Practice, by Thomas Paine, Secretary for accident the curtain happens to be open, and Foreign Affairs to Congress, in the American the company see what it is, they burst into War, and Author of the Works intituled laughter.” And in another part thereof acCommon Sense, and the First Part of the cording to the tenor and effect following, that Rights of Man. London, printed for H. D. is to say, “That monarchy”(meaning amongst Symonds, Paternoster row, 1792.” In which other things the monarchy of this kingdoin) said libel are contained (amongst other things) " is all a bubble, a mere court artifice to procure divers scandalous, malicious, and seditious money, is evident (at least to me) in every matters, of and concerning the hereditary character in which it can be viewed.” And succession to the crown and regal government in another part thereof according to the of this kingdom, as by law established, that tenor and effect following, that is to say, “It is to say, in one part thereof according to the can only be by blinding the understanding of tenor and effect following, that is to say, man, and making him believe that govern“ It cannot be proved by what right heredi- ment is some wonderful, mysterious thing, tary government” (meaning amongst other that excessive revenues are obtained. Mothings the said hereditary government of this narchy” (meaning amongst other things the kingdom), “could begin, neither does there monarchy of this kingdom)“is well calculated exist within the compass of mortal power a
to ensure this end. It is the popery of governright to establish it” (ineaning such hereditary ment, a thing kept up to amuse the ignorant, government). “ Man has no authority over and quiet them into taxes,” in contempt of posterity in matters of personal right, and our said lord the now king, in open violation therefore, no man or body of men, had, or
of the laws of this kingdom, and to the great can have a right to set up hereditary govern- danger of our happy constitution, to the evil ment,” (meaning amongst other things, the example of all others in the like offending, hereditary government of this kingdom.) and against the peace of our said lord the And in another part thereof, according to the king, his crown and dignity. tenor and effect following, “llereditary suc Witness, cession” (meaning amongst other things the
Cuanles HUMPHRIES. said hereditary succession to the government
JURY. of this kingdom)" is a burlesque upon monarchy, it puts it in the most ridiculous light, Mr. Thomas Preston, Miles's-lane Cannon. by presenting it as an office, which any child
street. or ideot may fill. It requires some talents to Edward Howell, Ditto. be a common mechanic, but to be a king re Joseph Cecil, Ditto. quires only the animal figure of man, a sort Jos. Greening, Crooked lane. of breathing automaton, this sort of supersti
Thomas Bond, Ditto. tion may last a few years more, but it cannot Thomas Swaine, Lilipot-lane. loog resist the awakened reason and interest
Joshua Windsor, St. Martin's-le-grand. of man." And in another part thereof ac
Ditto. cording to the tenor and effect following, Jonathan Cope,
Ditto. "A government calling itself
St. Ann's-lane, Alfree, with an hereditary office” (meaning
dersgate-street. amongst other things, the government of this Jos. Scammel, Noble-street. kingdom, with an hereditary office of king Samuel Glover, Aldersgate-street. thereof) “is like a thorn in the flesh, that pro Counsel for the Prosecution, Mr. Garrow,
that is to say,