Sfliur 
 
 URL 
 
 C /^OC,
 
 THE APPEAL 
 
 OF 
 
 KIjyG'S COILEEGE • 
 
 AGAINST 
 
 Cf)e JFelloW of €ton, 
 
 RESPECTING THEIR HOLDING ECCLESIASTICAL PREFERMENT 
 WITH THEIR FELLOWSHIPS; 
 
 Preferred A.D. 1814. 
 
 Also, TFIE ANSWER OF THE LATTER, 
 And REPLY of the FORMER, 
 
 AVith other DOCUMENTS relating to the said Case. 
 
 TO WmCII ARE ADDED 
 
 REMARKS, 
 
 Critical and Explanatory, 
 
 Upon Mr, PHILIP JVILLLlMS\s REPORT of the 
 
 Pleadings in the said Case^ 
 
 Which took place in the Court of Doctors' Commons, May 16th and 17lh, 1815. 
 
 CAMBRIDGE, 
 PRINTED BY JAMES IIODSON: 
 
 SOLD BY PARKER, OXFORD; DEIGHTON AND SONS, CAMBRIDGE' 
 CLARK AND SONS, PORTUGAL-STREET, AND LONGMAN AND CO. 
 PAXERNOSTER-ROW, LONDON. 
 
 18 17. 
 
 [Price Three Shillings.]
 
 INTRODUCTION. 
 
 The Appeal of King's College against the Fellows 
 of Eton, for holding Ecclesiastical Preferment with 
 their Fellowships, excited at tlie time considerable 
 attention amongst those connected with the two 
 Societies, as well as many other Ecclesiastical and 
 Collegiate Bodies, who conceived their own rights 
 implicated in the question. A publication, therefore, 
 of the case, was much wished, but neither of the 
 parties felt inclined to take such a step. Tlie Fellows 
 of Eton, happy in an escape of which they had 
 despaired, were fully satisfied in giving through the 
 newspapers, publicity to the decree, which, by a 
 variation of terms, pronounced the validity of the 
 Dispensation, and at the same time, with studied and 
 intentional obscurity, concealed from general notice 
 the breach of Statute which it corrected and prohibited 
 in future. King's College, on the contrary, meditating 
 a second application, deemed it most prudent to abstain 
 from a measure which might have appeared an Appeal 
 from the Visitor to the public, and have given 
 umbrage to the Judge, in whose sole power the 
 decision lay. 
 
 The case, however, has appeared in print through 
 the means of Mr. P. Williams, a Barrister, and Fellow 
 of New College, Oxford, whose object is declared by 
 himself to be, the rendering the case of general utility -,
 
 Jind therefore, every passage is omitted vvhicti he deemed 
 irrelevant. But under this view of the subject, many 
 facts and arguments having been entirely passed over, 
 or but slightly touched upon, which would have beea 
 peculiarly interesting to those who might be supposed 
 to take most concern in the affair, viz. persons, who 
 are or have been connected with the two Colleges of 
 Eton and King's, the following pages are now offered 
 to their perusal, as containing accurate and authentic 
 copies of all the different documents relating to the 
 said case, in the shape in which they vrere originally 
 submitted to the Visitor. To which are added, some 
 observations upon Mr. Williams's Report, which may 
 serve to elucidate several passages in the appeal, &c. 
 &c. and to render the merits of the case in general 
 more intelligible.
 
 THE APPEAL, &c. 
 
 '/ ! 
 
 Cop?/ of a Leller from the Provost and Ftllozos of King^s 
 College, to the Provost and Fellows of Eton College, . . 
 
 ^^^^•^^^^■^■^•^■^^ 
 
 We, llie Provost and Fellows of King's CoUet^e, beins^ bound 
 by oiir StaUUes to maintain our rights and privileges, as well as 
 to observe, and cause to be observed, such Statutes of Eton Col- 
 le"-e as concern ourselves, feel ourselves called upon, in our 
 own behalf and that of our Successors, to not if v to the Provost 
 and Fellows of Eton College an opinion entertained b}- us ; and 
 supported, as it appears to us, by the Eton Statutes, namely 
 that a Fellowship of Eton is not tenable with Ecclesiastical 
 Preferment. 
 
 But by present usage the Fellows of Eton do hold Ecclesias- 
 tical Preferment with their l^'ellowsl.'ips ; and by such practice 
 that succession is prevented, which would take place if the 
 Statutes remained in force. 
 
 The Livings of Eton College are very numerous and valuable : 
 
 vacancies therefore in the Fellowsliips of Eton would freq;.cntly 
 
 liappen, from the acceptance of such Livings, and as the 
 
 Fellows of King's stand first in eligibility, according to the 
 
 Statutes, for I'cilowships of Eton, their chance ot elecnon must 
 
 be rendered much more probable by the frequent recurrence of 
 
 such vacanci(>s : particidarly as every candidate must i-iatufably 
 
 be in Priest's Orders ai;d uubcneliccd to enable hira to be acau« 
 
 didate. 
 
 B
 
 2 
 
 But by tlie present arrangement, a system is introduced; 
 whicli deprives our Members of the participation of those ad- 
 vantages, which the Founder intended should be mutually en- 
 enjoyed by the Fellows of bo(h Colleges ; and thereby also 
 impedes the succession of Scholars from Eton to King's College. 
 
 As this system appears to us to be a deviation from the Eton 
 Statutes, (and we have looked into them with due attention) 
 we conceive it to be our bounden duty to request the Provost 
 and Fellows of Eton would enter into an explanation on what 
 grounds the Statute forbidding the tenure of a Fellowship of 
 Eton College with Ecclesiastical Preferment is no longer attend- 
 ed to and observed at Eton, whilst tlie correspending Statute 
 remains in full force at Kinsr's Collcace. For we are unable to 
 find any record of a repeal having taken place in this part of the 
 Eton Statutes by the Founder, or by subsequent Acts of Parlia- 
 ment. Should there be any document in the hands of Eton 
 College of suflicient authority to sanction the introduction of the 
 present system (of the existence of which document we are as 
 yet uninformed) it is our earnest request, that it may be com- 
 municated to ns, for the purpose of settling the point in question 
 bpeedily ; and w ithout interruption to the peace and harmony 
 of two Colleges, whose interests have been so inthnately blended 
 and connected by our common Founder. 
 
 Signed, 
 
 (L. S.) H. SUMNER, Provost, 
 
 Kh?g's College, Dec. 1813.
 
 :3 
 
 Copj/ of a Letter from the Provost and Felloics of Eton 
 in anszoerto the above. , . 
 
 L 
 
 We, the Provosf. aritl Fellows of Eton Colleg-e, acknowledge 
 the receipt of the Letter addressed to them by the Provost and 
 Fellows of King's College, and notifying the opinion entertained 
 by them, namely, that a Fellowship of Eton is not tenable with 
 Ecclesiastical Preferment. v; . . 
 
 It must be well known to the Provost and Fellows of King's 
 College that the usage of Fellows holding other Ecclesiastical 
 Preferment with their Fellowships, is not of recent date : and 
 that not only the immediate predecessors of the present Body, 
 but very many of the Fellows of Eton have, for at least two 
 hundred and forty years, been possessed of Parochial and other 
 Benefices. 
 
 The Fellows of Eton have it not in their power to produce 
 any record of a repeal having tnken place in their Statutes with 
 regard to other prcfermeut, either by their Founder, or by sub- 
 sequent Acts of Parliament, but they have, in conformity witi 
 long established usage, and in full persuasion, that their pre- 
 decessors were neither so unwise, nor so unguarded, as to com- 
 mit their characters and fortunes to an unsafe guidance, consi- 
 dered themselves as sufiiciently fenced from all iiazard ot apjjeal 
 against the validity of the tenure of their Fellowships, by the 
 <lispensatioii granted to their predecessors by Queen Elizabetl 
 in the eighth year of her reign; of which instrument, bearing 
 'date June llth, 1566, the Provost and Fellows of Eton, m 
 compliance with the wishes of tlie Provost and F'ellows of King's 
 College, transmit to them a copy. '' ' "" •*:; ; . • 
 
 To our iriisti) and well-beloved the Provost and Fellozcs 
 of Eton College. 
 " Trusty and well-beloved. We greet you well. — Foras- 
 <* much as humble sute hath been made unto us, on the behalf 
 ' " of you the Fellows of that our CoHege at Eton, that by the 
 
 ii 2 
 
 I
 
 6 
 
 To these queries the following answers were returned. — 
 
 " We are of opinion, tliat in the case of a Royal Foundation, 
 where ti)e Crown has oivcn Statutes and appointed a Visitor : 
 a succeeding King or Queen lias no more power of dispensing 
 with any of tliose Statutes, tlian the heir of a private Founder, 
 in the case of a private foundation : unless there be some clause 
 in them specially reserving such a power to the Successor. It 
 does not appear that there is any such clause or reservatior) in 
 the Statutes of Eton College ; but, on the contrary, there is an 
 expre.'s prohibition against applying for, or using any such 
 Dispensation. 
 
 The Dispensation, procured from Queen Elizabeth, does not 
 even alfect to dispense with the oath, which the Fellows of Eton 
 College are required to take on their admission. They are 
 therefore bound to take it : And if they do, and avail themselves 
 of the Dispensation, they violate their oath : if they do not take 
 it, in the form prescribed, they violate their Statutes. 
 
 The proper remedy which the Provost and Fellows of King's 
 College have, is an application to the Visitor. 
 
 Signed, 
 
 SAMUEL ROMILLV. 
 J. HEYS, 
 
 Lincoln s Inn, 23d Dec. 1813." 
 
 In consequence of this opinion the following Letter was sent 
 to the Provost and Fellows of Eton College. 
 
 The Provost and Fellows of King's College feel themselves 
 called upon to state, that tliey cannot acquiesce in the ex- 
 planation given on the part of Eton College; the pha, brought 
 forward in defence, appearing to them unteneable.
 
 As tliorcfore tlio point in qucsfioii bclwocn ilic two Colleges is 
 of (oo great iin|)ortaiico to be sufftTecl to remain unsettled, it is 
 the intention of King's College to apply to the Visitor requesting 
 his decision. 
 
 King's College liaving taken these steps for the sole purpose 
 of ascertaining their rights, entertain no wisii, that the peace 
 and harmony of the two Colleges should be interrupted. 
 
 Signed, 
 
 (L. S.) H. SUMNER, Provost. 
 
 ^■^^^^^ ^^ 
 
 To this Letter Eton College replied : 
 
 We, the Provost and Fellows of Eton College, acknowledge 
 the receipt of a Letter from the Provost and l^YUows of King's 
 College, notifying their intention of requesting the decision of 
 the Visitor, " as they cannot acquiesce in the explanation given 
 " on the part of Eton College, the pleas, brought forward in 
 " defence, appearing, to them, unteneable." 
 
 The Provost and Fellows of Eton College, further, think it 
 right to state, that they considered the former Letter received 
 from the Provost and Fellows of King's College, as distinctly 
 expressing their opinion, that a Fellowship of Eton is not 
 teneable -with any Preferment, and that the only points, in dis- 
 pute between the two Colleges, were, firsl^ whether a beneficed 
 A.M. is a statutable candidate; and, secondh/^ whether au 
 actual Fellow of Eton can statutably take and hold a Bene- 
 fice, for a longer period than a year, without resigning his 
 Fellowship. 
 
 They have read attentively that Letter, and do not find in it 
 any expression which refers to any other real or imputed viola- 
 tion of their Statutes; and it must appear to the Provost and 
 Fellows of King's College, reference being had to the answer of 
 their Letter, that the College of Eton, in that answer, considered 
 that the question was strictly confined to these two points. 
 
 They expected, that other comnmnications would have
 
 8 
 
 passed between (he two Colleges, tirat bolli Colleges would have 
 exchanged the opinions of their respecdve Counsel, that a state 
 of the question would have been previously drawn up by (lie 
 iuu(nal consent and agreement of the two Colleges, and by 
 mutual conserit and agreement submitted (o (he Visitor. 
 
 That peace and harmony between (he two Colleges raay not 
 be interrupted, has been and s(ill is the earnest wish of Eton 
 College. 
 
 Signed, 
 (L. S.) JOSEPH GOODALL, Provost. 
 
 ■^^•^■^^■^^^^■^^^^•^^^-^^ 
 
 To the Right Reverend Fa/her in God, George, Lord 
 Bishop of Lincoln, Visitor of King''s College, Cani" 
 bridge, and of Eton College, 
 
 MAY IT PLEASE YOUR EOnDSHIP, 
 
 We, the Provos(, Fellows and Scholars of King's College, 
 beg leave (o present to your Lordship tlic following Sta(ement 
 and Appeal. 
 
 King Henry (he Sixth, A. D. 1440, founded a College by (he 
 name of (he Bhssed Marie of Etone, beside VVyiulsore, for (lie 
 maintenance and education of poor boys, consisting of a Provost, 
 ten Fellows, seventy Boys, (wo Masters and o(hers. The said 
 King, A. D. 1441, founded a College at Cambridge, consist- 
 ing of a Provost, seventy Fellows or Scholars, and ethers, 
 whicli number at Cambridge was to be supplied in regular suc- 
 from Iiis Seminary at Eton. 
 
 Thesetwo Colleges, according to (he Founder's will, expressed 
 both in the Statutes and Charter, aUhough situate in difl'crent
 
 places, proceed from llic same stock, and issue from one source, 
 are to be considered as one Foundadon, vud are bound to help 
 each other mntuis sunVagiis, favoribus, subventionibus et 
 patrociniis. V^ide Slat. 4. of King's College, and Slat. 5. of 
 Eton College. 
 
 To shew the identily of these two Colleges, the Founder has 
 given them Statutes, even in mosl part, lotidem verbis the 
 same, commanding each to liave a copy of the other's Statutes, 
 and the Provost and Fellows of each College to take an oath to 
 observe each others Statutes, inasmuch as those Statutes or 
 Ordinafices concern themselves, " commuuiter vel divisim seu 
 singulariter," Stat. 4. of King's College. All which infer a 
 mutual bond of union, forming, as it were, one united founda- 
 tion. As the advancement of (he general w elfare of both Coliege«; 
 is enjoined by the admission oath, those measures which tend to 
 its promotion are to be particidarly forwarded, amongst which 
 succession will appear to be the i)ri!icipal, if the constitution (as 
 of orse body corporate) be considered. 
 
 The seventy Boys at Eton being admissible from eight years 
 of age, are eligible for King's College at tifteen, and become 
 superannuated at the completion of their nineteenth year, unless 
 removed to King's College. Vacancies therefore at King's 
 College, for the purpose of preventing, as much as possible, 
 such superannuation, must be advantageous to Eton : and if 
 such vacancies can be procured trom the causes called, b}' the 
 25th Statute of Eton College, "• honestas ct rationabiles liualiter 
 i-ecedendi a CoUegio;" succession on such terms deserves e\ery 
 encouragement, inasmuch as the retiring persons themselves 
 become meliorated in their situatiouj whilst, by their resigua. 
 tion, they benefit all below them. 
 
 At King's College such vacancies arise from (lie acceptance of 
 Ecclesiastical Preferment and election to a I'eliowship of Jilton, 
 (a removal to any other College being strictly forbidden.) At 
 Eton, chiefly from the acceptance of Ecclesiastical Preferment : 
 in proportion, therefore, as these sources are kej)t open, the two 
 Societies will be benefited, and it is eqe.ally evident that the 
 jjitercsts and righ.ts of the two Colleges are so intimately blended,
 
 10 
 
 tiiaf no malcrial alteration can take place in eitlrer, ^vithout 
 seriously affecting tiiem both. 
 
 It being an undoubted fact, that the Fellows of Eton College 
 do now take and hold Ecclesiastical Preferment ; the Provost 
 and Fellows of King's College conceive that such a custom is 
 contrary to the Statutes of Eton College, and highly injurious to 
 the other Members of the two F'oundations ; as they trust they 
 shall be enabled to prove satisfactorily to your Lordship, by 
 the subsequent statement; 
 
 The Statutes of Eton College give leave to the Provost to 
 liold Ecclesiastical Preferment. " Item quod dictus Propositus 
 *' de Etonii qnicunque perpetuis futuris temporibus, pro bono 
 *' et honore dicti Collegii et suo, habere valeat, simul cum 
 «' Prffipositura Collegii prcedicti, quajcunque beneiicia aut 
 *' OfUcia Spiritualia, unum vel plura, dumraodo talia non 
 *' fuerint, quie juraraento aliquo residentiara continue exigant 
 '' corporalem in eisdem." 
 
 The Fellows on the contrary are prohibited from liolding 
 Benefices. Vide Eton College Statutes, chap. 25, entitled. 
 Propter quas causas rationabiles et honcstas Presbyteri Socii 
 perpetui debeant finaliter a CoUegio recedere memorato. 
 
 " Si veroaliquisSociorurahujusmodipraidictorumbeneficium 
 *' Ecclesiasticqm aut officium perpetuum cum cura vel sine 
 *' curii adept us fuerit, per uiuim annum a tempore adeptionis 
 *' hujusmodi continue computandum, in dicto nostro Collegio 
 *' eum -stare permittitnus et non ultra: nisi sit tale beneficiura 
 " vel oflicium, in quo, vinculo Juramenti, aut ordinatione 
 *• aliquil speciali per earn jurata, teneatur continue residere. 
 *' Quo casu eum statim post assecutionem Beneficii sen Officii 
 '' htijusmo li, ipso facto exclusum et privatum esse volumus 
 *' nostro Heijali Collegio memorato. Volcntes ac etiam ordi- 
 *' nantes quod nisi post lapsuni Anni pra^dicti infra eundem, 
 *' ipsum beneficiura effcctualiter dimiscrit etiamsi litigiosum 
 " fuerit ipso facto pro non Socio habeatur. Illud autem 
 ^* volumus, quod nuilus pra-dictorum Sociorum ullo unquam 
 *' tempore a! iquod acccptet beneficium ecclesiasticum cum cura
 
 *' auimanim, quod sitiim est infra quiiiquc milliaria u nostro 
 " Jlcivali Collegio priedicto ; aut Pr;L'beiidain vcl Beiieficiuni 
 *' aliud sine ciiru nisi Archidiaconatus fuerit, quod situui est 
 " infra sepleni milliaria ab codtin subpitna pcrjurii et resti- 
 '' tutionis omnium e( singulorum per ipsuui a nostro Collegia 
 " priedicto acceptorum, toto tempore quo Socius fuerat in 
 " eodem." /;"!!> -> 
 
 j In like manner the Provost of King's College is permitted <a 
 hold Ecclesiastical Preferment, and the Fellows arc forbidden, 
 
 King^s College SfatnleSj Chapter 2S. 
 
 Propter qnas causas rationabiles et honestas Presbjteri Socii 
 perpehii debeant finaliter a Collegio recedere meraoralo. 
 
 " Quemlibet insuper Socium vel Scliolarem ipsius liegalis 
 **• CoUegii poslquani Beneficium Ecclesiaslicnm cum cura. vel 
 '' sine cura adeptus fuerif, etiamsi litigiosum existat per ununi 
 " aimura et non ultra, nisi infra eundem annum Beneficium 
 " hujusmodi absque dolo, fraude, aut ingenio ejusdem cvictum 
 " fuerit ab eodem, Socium stare permittimus in nostro Ilegali 
 " Collegio memorato." 
 
 This Statute remains in force in King's College, and is so 
 strictly acted upon, (hat no Fellow is permitled to retain his 
 fellowship with the smallest Benefice requiring induction* 
 whereas the Statute of i^Jton College has ceased to be observed, 
 contrary, as it appears, to the VVill and intention of the 
 Foup.der. i ",,- 
 
 According to the following record — December 4, 1445, at the 
 admission of the first Provost, first Fellow, «&c., it was stated 
 by Richard Andrews, L. L. D. that Johamies Clericus should 
 be always V^ice Provost, he having quitted a Hi^nefice in order 
 to become a Fellow. This is of considerable weight, when it 
 is known that the Founder reseived to himself the power of 
 dispensation, and at this period exercised it, in several other 
 points. 
 
 Moreover, during the lifetime of Henry the Sixth, the 
 Statutes were revised by the Bishops of Lincoln and Winton,
 
 12 
 
 and the two Provosts appointed Commissioners specially for 
 that purpose. At this revision, the leave granted to the Pro- 
 vost was enlarged ; certain restrictions, respecting distance, be- 
 ing removed. The Statute likewise respecting the Fellows was 
 altered in the following manner. 
 
 " Item in Rubrica Statutoque dicti Collegii, propter quas 
 *' causas ratioiiabileset honestas Sucii perpelui finaliter debcant 
 ** a CoUegiomemoratorecedere. Declaramus et volumus illud 
 ** Statulura quod sic incipit" — " Illud auteni volumus quod 
 '' nullus Socioruni praedictorum ullo unquam tempore, &c. 
 *' usque ad finem ejusdem Stututi, nullius, de caitcro, fore 
 *' roboris vel momenti." 
 
 The Commissioners therefore by repealing or cancelling this 
 last sentence, and marking the words repealed with such pre- 
 cision, clearly shew their intention, that all the odier parts of 
 (hat Statute sliould remain in force. 
 
 Nothing can be more reasonable in questions concerning 
 the interpretation of Statutes, than to enquire what was the 
 practice in the earliest times; because what was done when 
 the sense of the Statutes was best understood, and what the 
 Founder permitted to be done in conformity with them, may 
 be supposed to be tiieir meaning. 
 
 Accordingly from the foundation of the College, to the 
 Reign of Flizalxth, a period of 126 years, the prohibitory 
 clause appears to have been in force: and although several 
 Fellows, availing themselves of the year of grace, took Livings, 
 and resigned then), before the end of that term; yet no inter- 
 pretation or construction was brought ibrward as sanctioning a 
 permanent tenure of a Benetice with a T'ellowship; we usay 
 tluMcfore conclude that it was the opinion ot'the Fellows, during 
 those ages, that the teimre of a Fellowship with Ecclesiastical 
 Preferment was unstatutable. For the express purpose of ob- 
 taining relief from this prohibitory clause, recourse was had to 
 an e7;traordinary power, and in consequence of representation 
 made, relief was graiited (as we are informed by the Provost 
 and Fellows of Eton) by the following Dispensation of Queen 
 Elizabctij. (For a copy of this Dispensation, sec page 3.)
 
 IS 
 
 Upon the auihority of the above Dispensation alone, the 
 wliole plea of the Fellows of Eton College lor taking and en- 
 joying Ecclesiaslical Preferment is fouiuled ; a Dispensation 
 granted in direct opposilion to the |>rohibilion contained in tlie 
 Statutes, and accepted and acted upon, though inconsistent 
 with the true construction of their oaths, as the following ex- 
 tracts will clearly shew. - r. ; ■ ■: .<- .;■■•.. •' 
 
 Eto}i College Stat. Chapter 61. .,' 
 
 Finis ct Conclusio omnium Slatutorum. 
 
 " Porro quanqunm nostris temporibus perspcximus qualitcr 
 " plerisque in locis reguloe, iiistitutiones, et Statuta a suis 
 <« possessoribus juxta fundatorum intentiones minime, ut 
 " debuerant, observantur; sperantes taraen firmiter, quod viri 
 " literati, scientes legem divinam, habentes Deuni praj oculis, 
 " ejusque voluntatem in regulis, ordinationibus, et Statutis 
 *' observandis, lucidius prae aliis intuentes, has regnlas, 
 " ordinationes et Statuta illis contradita strict ius observabnnt ; 
 " confideater hoc praisens nostrum reg;de Collegium juxta 
 *' eadem regulas, et statuta, et ordinationes gubernandum 
 *' eisdem crcdimus committeiulnm. — Veruai quia ea, quie in 
 " fine dicuntur, vclut arctius impressa, solcnt mentibus 
 *' homiimm magis commendari : ac volentes eadem Statuta, 
 " regulas, et ordinationes priuceptis, ac jussionibus regiis 
 frequenter repetilis stabtUrc fortius, et fimiius communirc ; 
 " et ne, quod absit, in eisdem ordinationibus, et statutis, 
 " sicut in aliis, jam vidimus accidere, dolus, aut fraus fiat in 
 *' futuro; hac edictali, et in pcrpetnum valitura lege, in 
 ^' omnium slatutorum nostrorum fine ordinamus, ct statnimns 
 " subp:rna annthcmatis, et indignatiouis omnipotentis Dei 
 *' arctius prohibentcs ; ne quis Sociorum pres!)} tirorum, ant 
 ^' Scholarinm dicti nostri Collegii, cujuscwnque status, gradus, 
 *' scienti:e, tacultatis, aut oilicii, cxstilerit, pro sua voln plate, 
 *' odio. seu alia causa, vcl.occasionequacunquc ovdinationuni, 
 
 ((
 
 14 
 
 *' et statulorum nos(rorum quicquara sensui nostrae Infenlionis, 
 *' ut prffiinittitur, coiitrarium, vcl adversum, interprctatione 
 *' excitante sinistra, aut quocunqiie verborum suadeiite colore, 
 *' arte, vel ingenio, occasioiic data, procurata, aut etiaiu 
 " exquisita affirmet, cotistruat vel defendat ; aut quovis alio 
 *' modo per se vel alium quomodociinque aliter quam nostra; 
 *' irttentionis existit constriii, interprctari, sen aflirmari qua- 
 *' cunque ex causa procuret : si quis vero antiquo suadcnte 
 *^ serpente, quicquara contra pra^niissa, verbo, vel facto 
 *' pertiaaciter pra^sumpserit attcntare : a dicto nostro Regali 
 ^' Collegio, si super hoc per testes idoneos convictus fuerit 
 *' taiiquam in hac parte perjurus, sine spe regressus, penitus 
 *' excludatur pa^nis aliis in hoc casu supcrius irrogatis in suo 
 *' roborenihilominuspermansuris. V^olumus nihilominus quod 
 ** non obstantibus hujusmodi nostris ordinationibus, ct statutis 
 " factis, ut prcTmittitur, in posterum vel ficndis, ac aliis non 
 *' obstantibus, quibuscunque, nobis pro tempore nostro libera 
 " sit facultas pra^sentibus nostris ordinationibus, et statutis 
 " addend i ipsas, et ipsa in toto, vel in parte tollendi, diminu- 
 *' endi, mutandi, declarandi, ifitcrpretandi, corrigendi, et de 
 ^' novo alia ordinandi ; ac cum et super eisdem et contra ea 
 " dispensandi toto tempore vitai nostras tenore pra?sentiura. 
 i' Statuimus, ordinamus ct voluraus, quod nuUo modo iiec 
 *' uUo tempore liceat alicui hairedum vel successorum nostro- 
 ' rura Ilegum Anglia?, seu Lincolniensi Episcopo, qui pro 
 .** tempore fuerit, scu alicui alteri Episcopo cuicunque, post- 
 5.' quam cum Deo placuerit, subtracti fuerimus ab hac vita, 
 nee PriTposito aut Sociis nostri Collegii prasdicti qui nunc 
 sunt, auterunt, Collegialiter, coiter, vel divisim, nee alteri, 
 cujuscunque dignitatis, status, ffradils aut conditionisexistat, 
 ^ aliqua alia nova Statuta, seu ordinationcs, regulas, con- 
 i' stilutiones, interpretationes, immutationes, injunctiones, 
 i' declarationes, aut expositiones alias prasentibus nostris 
 f ordinationibus, et statutis per nos jam editis, in posterumve 
 " coiid(mdis, aut sano, et piano iiitellcctui eorundem, rcpug- 
 *' nantes vel repngnantia, derogantes vel derogantia, discor- 
 *' dantcs vel discordaritia, coutrarias vel contraria, diversas
 
 15 
 
 ^ veldivcrsa, cdere,' condcro ant ordlimre, sfnfucre velilictare 
 
 >* ncc eis, vclalicui i[)soruiu liccat pramis.sa, vol corum aliqiiod 
 
 >* quocunquc qua^sito colore iiifringcre, son aliciijus statuti 
 
 ^^ teiiorem, aut substantiam deinorc vel mulare, ncc circa ca 
 
 ^^ quomodolibet dis])ensare. Nee volunius quod per aliquein 
 
 ^* desuctudinem, consuctudineiiein vcl abiisum, aut aliani 
 
 ^*' occasionem qiiamcunque intcntioni aut verbis Slatutoruni 
 
 " nostrorum, aut ordinatioimm in aliquo derogetur: Nolcntes 
 
 y>^ insuper aliquam intcrpretationem fieri de cisdem, aut circa 
 
 ^^ ea, nisi juxta planum scnsum, secundum intellectum, et 
 
 ^^expositioncm grammaticalem et litcralem rnngis, et aptius 
 
 ^^^^ casunj, sen praatcnsum dubium de quo quicritur, et agitur 
 
 " applaudenteni." 
 
 " Inhibemus quoque, statiicntes et ordinantes spccialitcr, et 
 '' expresse, ac sub interniinatione divini judicii interdiciiuus 
 ''^ dicti nostri Regalis Collcgii Prceposito, et Pra^positis, ac 
 *' Sociis et Scholaribus ejusdem universis, ct singulis pra;scn- 
 " tibus, et fiituris, ac in virlule juramenti per ipsos et eoruni 
 '* quemlibet dicto Collegio pra^stiti admoncmu.=, et horlamur 
 *' ne ipsi collegialiter, colter, vcl divisiin allquas alias ordina- 
 *' tioncs, velStatuta, declarationes, interprctutioncs, mutalior.es, 
 *' injunctiones, expositiones, vel glossas prasentibus nostris 
 " ordinationibus, et statutis, vel ipsornm sano, et piano, 
 ** grammaticali, et litcrali intellectui quonsodolibet adversantcs 
 *' vel advcrsantia, repugnantes vel rcpugnanlia, derogantes 
 *' vel derogantia, nisi per nos edenda acccptent, nee liujus- 
 *' modi fieri procurent, aut eisdem utantur jjublice, velocculk>, 
 *' dircctc vel indirccte : et si contra pra^missa, vel contra inlen- 
 *' tioneni nostram in pra3missis, vcl eoruni aliquo per aliqucm 
 " vel aliquos, quod absit, alio u id vcl aliqiia contiiiirat ordinari, 
 *' fieri, aut dictari, vel dis posiXip nem aliquam scienter vol ignor- 
 *' anterconcedi, declaramus dictos, Pra^positum et Pra^positos, 
 *' Magistrum infornuitorem, Ostiariiim, Socios, ct Scbolarcs, 
 " ac Clericos dicti nostri Colleoii quibiis omnibus et siiiaulis 
 '^ in ea parte omncm, et on)iiiraodam adiminius potcstatcm ad 
 " ipsa observanda nou (cneri quomodolibet, vel aslringi, sed ea 
 " vacuamus omnino, et carere volumus omni roborc firmilafis
 
 16 
 
 ** aliis picnis in hoc casu inflictis supcrius in sua firmitafe nilii- 
 " lominus permausuris." 
 
 Every Member of both Colleges not only swears to obey all 
 and singular the S{atn<cs and Ordinances; but the folimvinir 
 oath is taken, or ou->htt() betaken, by every boy at Eton, at six- 
 teen years of age; is actually taken aa^ain as Scholar of King's ; 
 again, as Fellow of King's; and is, or ought to be, again 
 taken as Fellow of Eton, and lastly as Provost. (Vide Eton 
 College .Stat. chap. 9.) 
 
 " Item quod non impetrabo Dispensationem aliquam contra 
 ** Juranienta nica pr;rdicia, et contra ordinationes et Sta- 
 *' tuta de quibus pra^uitlitur aut ipsorum aliquod, nee Dis- 
 ** pensationein hujusmodi per me, alium, vel alios, publice vel 
 *' occulie impetrari aut fieri procurabo, directe vel indirecte, 
 *' et si forsan aliquam Dispensationem liujusracdi impetrari, 
 *' vel gratis offerri aut concedi contigerit ; cujuscunque fuerit 
 " auctoritate, seu si generaliter vel specialiter aut alias sub- 
 *' quacunque forma verborum concessa , ipsa non utar, ncc eidem 
 *' consentiam quovismodo; sic rae Deus adjuvet ct liffic sancta 
 " Dei Evangelia." 
 
 From the above extracts, it must be evident thattlie Founder 
 inserted these prohibitory clauses under a full conviction, tiiat 
 he was legally empowered to j'-revent his Successors from dis- 
 pensing Avith the Statutes; and that he had thrown in liic way 
 of any such attempt, an obstacle, not to be removed by any 
 legal power vested in the Crown ; and such will be found to be 
 the case. 
 
 Tlie Charter of Foundation was sanctioned by an Act of 
 Parliament at Westminster, May 4, 1444, and the Statutes 
 issued under the G reat Seal. This Charter and the Statutes were 
 confirmed under the Act of Resumption of Edward the Fourth, 
 confirming and establishing all grants, rights anil privileges io 
 Colleges made by Henry tlie Sixth (King in deed and not in 
 right, as it is expressed in the Act.) Upon legal points we are 
 an are that we ougiitto hazard an opinion with great dididence ; 
 but we are well ailvisotl, tliatin the case of a Royal Foundation, 
 when the Crown has given Statutes and appointed a Visitor, the
 
 17 
 
 succceiling Kinj^s or Queens have no power of dispensing w*'h 
 those Statutes, unless there be some clause therein, specially 
 reserving such power to the Founder's Successors. 
 
 Queen Elizabeth, who at her will and phasnre granted a 
 Dispensation, contrary to the express orders of the Founder, 
 to Fton College j had an Act ot' Parliament ( 1 * Eliz. chap. 22.) 
 to enable her to alter and settle the Statutes of the Colleges, &c. 
 founded by her Father, Henry VilL; her Brother, Edward 
 VI.; and her Sister, Queen Mary. If then an Act of Parlia- 
 ment was necessary in that case, we conceive that we are right 
 in asserting, that nothing short of an Act of Parliament could 
 give a legal power to alter the Statutes of Eton College. 
 
 In respect to the Fellows, as each Member, at his admission, 
 swears to observe tl'.e Statutes; which Statutes forbid his accept- 
 ing or pleading a Dispensation ; and likewise takes the oath 
 above recited, drawn up with extraordinary care and caution 
 against every mode of evasion, for the express purpose of pre- 
 venting the suing for, or accepting of a Dispensation, in any 
 Siiape, or under any authority, we caimot find any possible 
 plea or excuse for a Member, who has voluntarily taken this 
 oath ; but that he remain so completely bound by it as to be 
 rendered utterly incapable of accepting any subsequent Dispen- 
 sation whatsoever. ,. , 
 
 The truth of this opinion the following case will strongly (end 
 to confirm, ^ 
 
 Magdalen College, Oxford, was founded by William Wayn- 
 flete. Provost of Eton, during the life of Henry VI., audits 
 Statutes contain the same oath against Dispensation. When 
 therefore James 11. sent down a Mandate to the Fellov>s to elect 
 a certain person as their President, they represented to the 
 King, that such proceedings were contrary to their Statutes, 
 which they were sworn to obey. Upon this the King offert'd a 
 Dispensation, to relieve them from their oath ; they replied, 
 that having taken an oath against Dispensation (verbatim the 
 same as that of Eton College) they could not accept of one; 
 
 C
 
 18 
 
 and in tills, their conscientious refusal, tlieypersisied, although 
 urged to its acceptance by the King in person. (Vide State 
 Trials, Vol. 4. fol.) 
 
 It may possibly be asked, if the whole measnre be illegal 
 and indefensible, why tlie then existing Members of our Col- 
 lege did not resist this invasion of their rights; whereas, by its 
 being acquiesced in to this late period, a validity has been ob- 
 tained by long usage, and custom. In respect to the reasons for 
 acquiescence, we cannot pretend to give a certain account; but 
 ■we are borne out by History, in asserting, that no persons dared 
 oppose the prerogative of Queen Elizabeth, however unconsti- 
 tutionally exercised ; and particularly Colleges, who had fresh 
 in remembrance their narrow escape from total abolition by her 
 ■ Father. 
 
 In our own College we have many instances of the unstatut- 
 able appointment of Fellows who had never been educated at 
 -Eton, to which no resistance was made. No argument therefore 
 can be drawn from this acquiescence : neither will the plea of 
 long usage, which on many other occasions, gives a legal 
 sanction, avail in this case. The Statutes to which the Fellow* 
 of Eton have sworn obedience having thus guarded against it: — 
 *' Volumus insupcr quod nunquam de cietero per aliquam 
 *' desueiudinem, consuctudineni, vel abusum, aut aliaui 
 ** occasioncm quamcuiique, intentione aut verbis Statutorum 
 *' nostrorum et ordinationum in aliquo derogetur." 
 
 In conformity to this, Bishop Wickham, in his Interpreta- 
 tion of the 4G(h Stat, entered in our Book, thus writes : — '* So 
 *' I require this to be put in practice hereafter ; however by 
 *' long custom it has been otherwise; for that your Founder 
 " would have nothing derogated from the Statutes, ''per con- 
 *' suetudincm vel desuetudinem." 
 
 We likewise furnish a memorable instance against long usage 
 by the recovery of the Statutable Election of our Provost : 
 which appointment had been seized upon and given away by the 
 Crown from the reign of Edward IV. until the Revolution, at 
 which time a successfid resistance was made ; iii which oppo- 
 sition the College was encouraged by the Visitor, who in a
 
 19 
 
 Leder to the Vice Provost denies (lie power of the Crown to iri- 
 terfcro willi the Statutes. Leng-di of time therefore cm give no 
 permanent authority against th(; Statutes. The prerogative in 
 tiic appointment of the Provostship was exercised from the reigti 
 of Edward IV. to that of William and \\.\ry ; the Dispensatioa 
 at Eton commenced in tlie eighth year of Elizabeth, and still 
 exists. The duration of each will be found nearly equal, and 
 as in tJie one case it was of no avail, so against the V^isitor, it 
 can be of none in tlie other. 
 
 Denying, as we do, the validity of the Dispensation, in toto, 
 it may appear useless to make any remarks upon the (Queen's 
 Letter; yt^^ unwilling to pass by any oliservations, which bear 
 upon the su!)ject in question, we beg leave to state, that it ap- 
 pears extraordinary, thatthe Statute or Articles, forbidding tiie 
 holding of Livings, alone are dispensed with, and not the 
 smallest notice taken of the important oalli, against accepting 
 or suing for a Dispensation : as this oath formed an insurmount- 
 able obstacle to the intended grant of the Queen, it was to have 
 been expected that her Majesty would have granted absolution 
 (had such a power been vested in her) to those, who had 
 taken the oath, and enjoined the leaving it out for the future. 
 No notice having been taken of it, gives room for strongly sus- 
 j)ecting that the Dispensation was " ignoranler concessa:^' and 
 when it is considered, that those persons uiaking suit " per se, 
 alium, vel alios," acted in direct violation of (heir oath ; they 
 were reduced to the awkward dilemma, either of confessing 
 their breach of oath, or keeping it IVoni her Majesty '» 
 knowledge. 
 
 The Dispensation is likewise granted to remain in force until 
 the Queen saw a reasonable cause for revoking it. It was not 
 therefore to be considered as a giant in perpetuity ; but to cease 
 on certain events taking place. The deficiency of income w."^ 
 the pica on which the suie was made ; if then this plea no 
 longer exists, the reasonable cause for revocation is apparent. 
 Tiie income of a Fellow at Eton was at that time extremely 
 small: if reports be true i( is now very considerable, and fully 
 sufljcient for the support o^ each Fellow, as intended by the
 
 20 
 
 t'ovimler. For although we do not entertain the smallest idea 
 of calling in question the advantage taken by the Fellows of 
 Eton, at the Refonnalion, in regard (o marrying; yet it must 
 be evident that the Founder intended that no Member of either 
 of his Colleges should be married ; their change of conditio'! 
 gives them no claim to a larger share of the public property, or 
 to tlie sacrifice of the rights of 140 individuals (viz. 70 IJoys at 
 Eton, and 70 Fellows and Scholars at King's) to the interests of 
 seven persons. 
 
 We proceed to state the injurious consequences of the Dis- 
 pensation to the Fellows of King's and Scholars of Eton. Un- 
 der this the Fellows of Eton hold, not only their own Livings, 
 but also the Livings of King's College, whereby a Fellow of 
 King's is prevented from succeeding to a Living, and a Boy 
 from Eton to King's, as would be the case, were (he Statute in 
 force. And within memory five Fellows of Eton have held 
 King's College Livings, and of these, three at one time, out 
 of the small number of 21, belonging to the latter College. 
 Moreover as the Livings of Eton College are very numerous 
 (37) and valuable, vacancies from Benefices must frequently 
 happen, and as Fellows of King's stand first in point ol" eligi- 
 bility for Fellowships, their chance of being chosen must 
 necessarily be rendered more probable by such frequencies of 
 election; an event equally advantageous to both Colleges in 
 point of succession; and even without setdng up the claim 
 (which we nnglit, as believing it to be true) that the Founder 
 intended that our Fellows should be ciiosen in preference to all 
 others; if a beneficed person cannot statutuhly be elected, (he 
 Candidates for Fellowships, on these terms, will be so few in 
 number, tliat the choice will be confined almost entirely to 
 King's College. 
 
 We are aware that the Statutes of Eton College are silent as 
 to the e!igibili(y of a person already beneficed ; but we con- 
 ceive that we are borne out in this our opinion by the instance 
 of John Clerc above mentioned, likewise by the finding no 
 mention made of any Fellows being elected with a Benefice, 
 previous to the Dispensation; although scveru! are staled, after
 
 21 V 
 
 Ijavidg become Fellows, to Jiavc taken a Living, aijd resigred 
 it, before the end of the year; and b^' ihe doubt v>iiich may 
 arise on the construction of tlie prohibiiory clause, whether a 
 person, who iias (uijoyed a Living above a year, has not 
 exceeded the time allowed by tlie Statute, and so become incli-- 
 gible witliout previous res iu; nation of his iienetice. But even 
 should a favourable construction be put on the Statute, and the 
 year of grace allowed; as at least every Fellow must rcMgri 
 ■within a certain time, as set forth in the preamble to the JJ>it— 
 pensation (and therefore allowed to be the true menning of ilie 
 Statule by the Fellows of that time, as well as by the present 
 Fellows, they having alleged the Dispensation as a full de- 
 fence for their tukinff and holdinsr a Livinir) the dHlercnce will 
 be so trifling, as not to appear an object worth a dispute. 
 
 If then the welfare of both Colleges be promoted by quick 
 succession, the long usage of this Dispensation is so iar tVoni 
 recommending its continuance ; thai it must appear strongly on 
 the contrary sids', when the number of Hoys snperammated, 
 in consequence of it, are considered, ar.d that the successiofi of 
 our Fellows to Livings (necessarily slow from the small nunibcr 
 in our possession) is rendered still slower by this Act ; so that 
 few have the offer of a Living eurly in life, but are compcllrd 
 to go out on Curacies, or pass the greater part of their time in 
 College. 
 
 A compensation might have easily been found, and the inju- 
 rious consequences to the succession in a great measure obviated, 
 bad the Fellows of Eton, after experiencing such an iiidnlgencc! 
 from the Queen, shewn the same kisidness to the Fellows of 
 King's, by giving the remainder of their Livings to them in 
 seniority as they fell vacant, themselves being first providoil 
 with a Living, as set forth in the Dispensation : and althougli 
 the Statutes are silent upon this head, yet tVoni the intimate 
 connection between the two Colleges, and the mutual assislancc^ 
 and acts of reciprocal kindness en.joined by the Statutes, it may 
 fairly be inferred, that such a disposal of their Benetices would 
 have been most acrreeable to the intention of the Founder. 
 , Such was the opinion of Archbishop J^auil, up^u the
 
 22 
 
 iippcal from King's against Eton College^ as expressed in the 
 following terms : 
 
 *' In giving their Benefices, or any other sliares of profit, 
 " in their bestowing, I see great eqnity all along the Statutes, 
 " of presenting King's College men next unto themselves. 
 " But whether the Statutis be so punctual as to command this, 
 *' or do only leave it as a thing little donated by the Founder ; 
 " considering what tie he hatii made in all things between the 
 *' Colleges, 1 am as yet in some doubt ; but sure it will be very 
 *' fit, either to command it, or very seriously to advise it, 
 " to the College of Eton ; and I cannot see any good cause, 
 " and loth I am to conjecture any bad, why these two 
 " Colleges, so nearly joined by the Founder's intentions and 
 *' Statutes, should make themselves such strangers one to 
 *' the other, as they do." 
 
 Whatever might have been the representations by Archbishop 
 Laud to Eton College upon this point, they are unknown to us, 
 but they certainly produced no effect ; lor granting that many 
 Livings have been given to actual Fellows, and those who have 
 been at Kind's, yet these have been given by Fellows of Eton, 
 as their options, on the score of private friendship or relation- 
 ship, as in their arrangement for the disposal of their Livings, 
 not the smallest notice has been taken of King's College. 
 
 Were the evils above stated temporary, and the acts of indi- 
 viduals, which ceased with them, they would not be worth our 
 serious notice, but the case is totally diiFerent : this departure 
 from the Statutes is a regular system, which must last as long 
 as the College exists, unless a remedy be applied. 
 
 If then the above statement l)e true, as we trust it will be 
 found tobe in every particular, ue conceive ourselves warranted 
 in drawing the following conclusions. 
 
 1st. That in the case of a lioyal Foundation, ^vhere the 
 Crown has given Statutes and appointed a Visitor, a succeeding 
 King or Queen has no more power of dispensing with any of 
 the Statutes, than th.e Heir in the case of a private Foundation ; 
 unless there be some clause in the Statutes, specially reserving 
 BUch a power to the success,or. i t does not appear that there is
 
 23 
 
 any such clilnse or reservation in (he 8la(u(es of Eton College, 
 but on (he contrary there is an express \)rohil)ition against any 
 succeeding ICings or other persons granting a Dispensation. 
 
 2d. That (lie I)ispensa(ion procured from Qnccn Jilizal)etli 
 does not even affect (o dispense Avith (he oath which the Fellows 
 of Eton Coik'ge are required to take on their athnission. They 
 are therefore b(jund to take it, and if they do, and avail thciii- 
 selvcsofthe Dispensation, they violate their oath ; if they do 
 not take it, in the lorni prescril)ed, t]i<>y violate their Statutes. 
 3d. That by taking and holding of iienefices contrary' to the 
 Siatutes, a system has been introduced, highly injurious to the 
 succession, in the two Foundations of Henry V^J. 
 
 4th. That a beneficed Candidate elect ought to resign his 
 Benefice before admission ; and that an actual Fellow taking 
 J'x'clcsiastical Preferment cannot hold it beyond the time speci- 
 fied in the Statutes, without Ibrfeiturcof his Fellowship. 
 
 Confiding thc^rejore in tin; justice of our cause, we liave 
 thought proper to have recourse (o the statuable mode of redress, 
 by aj)pealing to your Lordship, as the common Visitor, 
 G'uardian of Use rig'its and privileges, and Judicial Interpreter 
 of liie Statutes of the two Colleges: humbly praying, that 
 should our cast.', upon examination, prove true, and our com- 
 ])laint \vell-founded ; your Lordship will be pleased to apj)iy 
 such remedy, as in }'Our wisdom and judgement, nuiy appear 
 most apt and convenient. 
 
 We beg leave to assure yojir Lordship, t'ai in maliing this 
 our Appeal, we are actuated by no personal n)otivtsof iil-will 
 towardsthe present existing Felhnvs of Kwn ; whom we believe 
 (o have been iaducetl by iiu; example of their jiredecessors, to 
 have tl'.us acted ; neiiher are we allured by the hopes of imme- 
 diate advantages, as the greater })art oi the existing Members 
 cannot expect to derive the least benefit from your Lordship's 
 decision, however favourable it uv.\y be; but N\e act under a 
 full conviction, that it is our liuty to endeavonr to recover lh( sc 
 riglns, which have b;'eii taken from Kuig's t'ollege '>y die 
 Dispensation of Queen iUizabeth ; so that our Successoii
 
 24 
 
 may enjoy unimpaired, all ihe advantages and benefits vvliich 
 our Gracious Founder was pleased to confer, in common, 
 on bis two Rojal Foundations. 
 
 Jriszi-er of ihe Provost and Fellozos of Eton College to tin 
 Appeal of the Provost and Fellows of Kwir's Colleoe, 
 
 To the Right Rev. Father in God, George, Ford Bishop 
 of Lincoln, Visitor of Fung's College, Cambridge, and 
 of Eton College. 
 
 MAY IT PLEASE YOUR LORDSHIP, 
 
 We, the Provost, and College of Eton, beg leave respect- 
 fully to submit to your Lordship's consideration the following 
 Answer to the Appeal and complaint lately preferred to you"? 
 Lordship in the name of the Provost, Fellows, and Scholars of 
 King's College, Cambridge. 
 
 The complaint is, that the Fellows of Eton College do now 
 take and hold Kcclesiastical Preferment together with their 
 Fellowships. This is averred to be an innovalion, contrary to 
 the Statutes of that College, injurious in its effect to the other 
 Members of the two Foundations, and equally illegal whether 
 preferment be retained by a beneficed Candidate after his ad- 
 mission to a Fellowship, or accepted by an actual Fellow, if 
 liolden beyond the time specified in the Statutes, and it is as- 
 sumed that in both these cases the Fellows of Fton College rely 
 only on what is called the Dispensation of Queen Elizabeth, 
 dated the llth of June, 1566, of which the authority is wholly 
 denied. 
 
 That the Fellows of Eton College do take and hold Eccle- 
 siastical Preferment is a fact not disputed. But before we enter
 
 25 
 
 upon our answer to (liis complaint, we cannot refrain from im- 
 ploring your Lordship's attention to the consequences that may 
 follow from your Lorilship's sanction of it, and wliich are of 
 snch a riatnre that the complainants themselves have not ven- 
 tured to pointthemout, nor to ask of your J^ordship any specific 
 redress for the supposed grievance, to which they have called 
 your attention. Every one of the present Fellows of Eton is by 
 this complaint assumed to be absolutely disqualified from hold- 
 ing his Fellowship, and this not by reason of any misconduct 
 on his part, nor by reason of any innovation introduced in 
 modern times, or with a view to his j^ersonal benefit or conve- 
 nience ; but only because he lias conformed himself to ajjractice, 
 vhich those, who now complain of it, trace back for two hun- 
 dred and fifty years. We humbly but confidently trust that a 
 complaint attended by such consequences will not receive your 
 Lordship's sanction, unless both the illegalily and inexperience 
 of the practice shall be proved l)y the complainants and placed 
 beyond all doubt. Wc trust, on the other hand, that we shall 
 be able tosatisfy your Lordship that the practice is well uarranl- 
 ed in law, and conducive to (he general interest and welfare of 
 the commuuiiy of the two Societies. 
 
 A consideration of these consequences, as well as of other 
 matters connected with this Appeal, induces us to doubt (and 
 "we trust your Lordship will allow us to express that doubt to 
 you) whether this Appeal be in reality, as it professes to be, a 
 representation of llie senlimenis of the Members of King's 
 College in general: we believe it to be the act of a few indi- 
 viduals only, and this belief has had a strong influence upon 
 the maruier of our answer ; fi)r we are earnestly desirous t<> pre- 
 serve that peace and harniony, which, according to our Royal 
 Founder's will, and express injunction, ought to subsist be- 
 tween the two Colleges; and we trust we shall in (lie course of 
 this our reply, satisfactorily prove, that at no period since the 
 foundation have the interests of King's College been more re- 
 spected at l^^ton than during the la^t 40 years. 
 
 (n the investigation of the present question, Ifyour Lordship 
 shall now think it so tar to concern tlie interests of King's
 
 College, or the Members of either fonndafion, as to require 
 your Visitatorial Interposition, we agree that the practice of 
 earlier times will be of high importance. 
 
 From that practice, as stated bj the complainants, it is at- 
 tempted to be interred that from the foundation of Eton College 
 " till the reign of Elizabeth, a period of 100 years," the clause 
 in the 25th Statute was received, and acted upon according to the 
 construction now assumed by the complainants; and though 
 several Fellows, as it is alledged, availing themselves of the 
 year of grace, took Livings and resigned them before the end 
 of that term, yi-t that it was the opinion of the Fellows during 
 those ages, that the tenure of a Fellowship with Fcclesiastical 
 Preferment was unstatutable, and that for thecxpress i)urpose of 
 obtaining relief from the effect of the statutable prohibition, the 
 Dispensation of Queen Elizabeth was applied for and obtained. 
 
 These positions it may be proper to examine, and more 
 especially the earlier usage. 
 
 For weby no means adu)it that the practice of holding Eccle- 
 siastical Preferment together with a Fellowship of E(un College 
 is to be ascribed to no earlier date than the Dispensation of 
 Queen Elizabeth, or that this Dispensation is the authorily 
 upon which it depends. 
 
 J On the part of the comj)lainants it is observed, and much 
 relied upon, that at the admission ofihe first Provost, first Fel- 
 low, &c.,in 144S, it was stated by Richard Andrews, L. Lc D. 
 that I. Clerc should be always Vice Provost, he having quit- 
 ted a benefice in order to become a P'ellow, inasmuch as the 
 Founder reserved to himself the power of Dispensation, and 
 at this lime exercised it in several other points. 
 
 lie aLso exercised it in this, and in the Ibllowing terms : 
 *' GratioseDispensanius cum eodem niodo vicepriej)osito ejus- 
 " dem, quod ipse, quoad vixerit, semper, et continue sit, dum 
 " in eodem Collegio ut socius steterit, vice propositus ejusdem, 
 <' statuto nostro in contrarium cdito non obstante," for the 
 ofBee of Vice Provost is by statute an annual olFiee, and elective. 
 
 That a person, who by the King's Dispensation was to be
 
 27 
 
 always Vice Provost, in a Collci^c so la(cTy foiindeil by the 
 Kiiiij, and immedialt ly, as musf be allowed, uiuler llic eye of 
 his lloyal Patron, should have readily n^liiiquished a benefice, 
 concerniiif^ \vhicli, or its situation, ^\c have no particular, for 
 this appointment, with the iurther expectations, ^^hich it 
 might reasonably excite, is not ini/air to suppose, and we find 
 in fact he was elected Provost, July 31, 1447. • -j 
 
 It is however interred hy the appellants from this solitary in- 
 stance, that every Clerk in possession of a lieneiice at the time 
 of his admission as Fellow, was called upon to resign it, as 
 beinm; no longer tenable with his Fellowship. 
 
 The Scjd Statute, to which we shall have occasion to refer, 
 will induce a very opj)osite conclusioii. 
 
 ^^ hat j)referment the earlier I'ellows may have had prior to 
 their admissions would nut bi; lil.i !y to appear in a.ny muniment 
 of the College, it being matter of (litiicully to ascertain even 
 their succession, because neuher in the letter written to the Fel- 
 low elect, nor in tiie admission, excej)t in some very tew in- 
 stances, the name of the person w ho made the vacancy is inserted. 
 
 The stunc dillicuily generally applies to the succession to 
 Jjivings in the gift of the College, as in many cases ihc words 
 used in the presentation were " jam vacantcm" instead of 
 " loco A. B." ■= — ■'■ ■•'- i ' 
 
 The earlier rolls of the College also, at least many of them, 
 were jirobably carried to Wmdsor when Dr.Westbury, the then 
 Provost, was compelled to surrender to Dean Courtney sundry 
 effects, &c. of the College ; and in a Letter of Dr. Philip 
 Fell to Dr. Cradock, Feb. iCiSI, who were both at that dat<3 
 Fellows of Eton College, he remarks, "our registers have 
 " been so ill kept, are so short, and broken in time, so blotted, 
 " and razed, &c." to which \\c might atld the eifects of mould, 
 and damp, and wc fear great carelessness, have contributed to 
 nudvc research still more ditlicult. 
 
 Hence what may have been the first instance of Ecclesiastical 
 preferment liolden together with a Fellowship, we have been 
 unable to discover, but we may state, that as early as IJo.;, 
 within 13 years from the foundation, Uichard lloptou was 
 made i'ellow.
 
 28 
 
 He was V. Provost in the 8th of Edward IV., 1468. He 
 was not V. Provost in (he 9(h and 10th, but was again V. 
 Provost in tlie 17th, 1477, which appears from t lie record of 
 Provost Bozl's election. -(See Register Book, E. C. P. 108.) 
 'He Mas also V. Provost in the 18th year of the same reign, 
 and asain in the 9d of Richard III. 
 
 He was not V. Provost kt ilen. VJ\. 1486, nor in any sub- 
 sequent year, but died Fellow 1496 — 7, as appears by his 
 epitaph in Eton Chapel. 
 
 This Richard Ilopton was presented to Pyddlehinton by the 
 College in 1469, (Reg. p. 53,) resigned in 1471; was pre- 
 sented to St. Alban's, Wood-street, 1477, (Reg. p. 62,) and 
 jTsignrd it in 1487, (p. 76.) 
 
 William Boswell also, who Avas made Fellow in 1547, was 
 presented by the College to St. Alban's, Wood-street, in 1548, 
 which he held till the year 1558, and no new Fellow was 
 ehctcd at Eton between the date of his presentation and the 
 year 155?. 
 
 These are severally instances in the earliest times of the 
 practice of holding Ecclesiastical preferment by an actual 
 ]'\'llow, together with a Fellowship, and to which presentation 
 was made after admission. 
 
 The livings, Pyddlehinton and St. Alban's, Wood-street, 
 being both in the gift of Eton College. 
 
 Both instances also occur prior to Queen Elizabeth's letter, 
 and to the aera of reformation. 
 
 It cannot be denied, that from 1566, the date of her Majes- 
 tv's letter, the usage which now prevails has been consistent and 
 liiiiform, and if from the earliest instances no complaint, so far 
 as appears, has been made by (he Provost and Fellows of 
 King's College, untU the year 1813, it may be fairly inferred, 
 that in their opinion it has not been belore thought lo be un- 
 statutable, prejudicial, or illegal, in its origin or continuance. 
 
 We might add, that on the contrary in the reign of King 
 Charles the First, when they did expn ssly petition Archbishop 
 Laud, in his metropolitan visitation, that his Grace, as well for 
 the future conservation of their privileges, as also for the
 
 29 
 
 pT^senf, foiinclecl upon <lie al!c£;afion 6f (heir hiwins; been 
 given to uixlersiiuid, that his Majesty, out of his care (a 
 advance the livelihood of a poor Cler^ry man, had directed his 
 lloyal Letters to the Provost and Fellows of liis College of 
 Kton, thereby requiring ihcin to choose into the next Fellow- 
 ship the Vicar of Windsor, and so successively, would vouch- 
 safe amongst thtir other requests, to intercede with his 
 l^Iajesty in their behalf, (hat the \^icar of Windsor might 
 thereafter be chosen out of his Majesty's College at Cambridge, 
 they failed not to add, " By which means his Majesty's Koyal 
 pleasure, and their Blessed Founder's, shall be fulfdkd to the 
 further benefit of his Royal Foundation." 
 
 They afterwards presented a petition to the same King, 
 complaining that they had received much injury from their 
 sister College in many things, but most apparently in their 
 choice of Fellows there, and praying that his Majesty would 
 recommend tiie examination and exposition of the statutes, and 
 the final determination of all other causes, which concerned the 
 peace and amity of both societies, to the same Archbishop. — 
 'J'his was followed up by delivering to the Archbishop a paper, 
 >vhereiii they complai/ied of the reduction of the number of 
 Fellows at Fton College, and asserted a claim to be preferred 
 ill the choice of Fellows there, and to be considered by the 
 Provost and Fellows of Eton in the donation of benefices next 
 to themselves, and in this paper they expressly adverted to the 
 Founder's charge, in fine et conclusione Statutorum, " quod 
 tion per aliquam desuetudinem, consuetudinem, vel abnsuui 
 vel aliam occasionem quamcunque intentioni aut verbis ipsorum 
 Statutorum, aut ordinatiommi, in aliquo derogetur." JVow it 
 is scarcely possible, that if the practice at present complained 
 of had been then thought illegal, it should not have fornu-tl a 
 prominent part of the grievances then asserted. The same 
 observation will equally apply to their proceediiigs in the two 
 next reigns; the last of which led to a reference and determina- 
 tion by Jjortl Chancellor Jefferys, by the King's conuuand, 
 and his Majesty's confirmation thereof by his lloyul authority.
 
 so 
 
 Upon (he force, llurrfore, of an usnge wliicl) we consider to 
 liavc prevailed from the earliest times, we l)oi>e that mc are 
 jiistitied in relyini^ We also take leave to submit, thai not a 
 siiii^h; clanse in the 9th statute prohibits us from electiii<r into a 
 vacant Fellowship a person already beneficed, and thattliere is 
 no oath taken by a Fellow at his adcnission, inconsistent with 
 his possession of a Uen( fice at that time. The Fellow is not 
 required, as in the correspondent statute of King's College, to 
 swear that he is not in possession of a patrimony, &c. &c. 
 and accordingly we fv,\d, that Edward Waddington, after- 
 •wards Bishop of Chichester, who resigned his FeUowship of 
 King's College upon coming to possession of an estate devised 
 to him by his graiidfather, was sometime after elected Fellow 
 of Eton, still retaining his estate, and being also Rector of 
 All Hallows: and he held his Fellowship of Eton, together 
 with his Bisiioprick, for seven j-ears, and until his death. 
 
 The 23d Statute* nevertheless, appears to us to contemplate 
 the very cireutnstance, that a Fellow might possess an Eccle- 
 siastical Benefice; and here again is an evident distinclion 
 betv.een the corres[U)ndent Statute of King's College, wherein 
 the words " Eccksiasticum Beneficiuui" are omitted, and 
 militating against that identity of intent in the mind of the 
 Founder in this particular, for which the complainants so 
 anxiously contend.— The words " adeptus fuerit," in the 2.j(h 
 Statute, we consider evidently to refer to what shall happen 
 after the Fellow is admitted, and not to an anterior period, 
 Avbich we think will still more clearly appear on reference to 
 the 3Sth Statute of King's College. The Scholar at his ad- 
 mission swears, " quod non habeo aliquod de quo mihi constet 
 uiide possum expendere aimuatim quinque marcas Sterlin- 
 gorum." The Fellow of King's, at his admission to his 
 Fellowship, takes no oath with respect to his annual means of 
 spending the same sum or more; but in the 31st Statute of 
 King's College, among the honesta3 causa} for resigning his 
 
 * See Extract at the end of this Answer.
 
 31 
 
 Pellowsliip, he is to reslj^n " quod patiiinonium liccrcilitatem 
 feodmnvc scculareperpetuum aut pciisioneiu aiiiuiam perpetuaui 
 ad valorem coininuiiihus aiiiiis centum solidorum liabuerit, et 
 iuerit assccutus." 'JMic accession of properly (lieretorc, we 
 conceive, must take place after he is admitted Scliolar, when 
 he could only have two-thirds of the sum, the possession of 
 ^vhich would oblige him to resign his Fellowship ; and (hat the 
 ■words cannot but refer to a period subsequent to his first ad- 
 mission to a Scholar, besides that " assecutus fuerit" in the 
 25th Statute of Eton College, and in the 3Hl\\ Statute of King's 
 College, are in the same tense with adeptus fuerit; and from 
 lieiice we conclude, that the words " Oeneficium Ecclesiasti- 
 cum, vel officiuin perpetiium cum curri, vel sine cura adeptus 
 fuerit," do not apply to a Benefice possessed belore admission 
 to a Fellowship. 
 
 In respect to the letter of Queen Elizabeth, tlic complainants, 
 not contented with denying its validity in loto, have trom the 
 circumstance of no special notice being taken therein of I he 
 oath against suing for or accepting dispensations, ventured to 
 infer, that the same was " ignoranter concessa;" and furt'.iei 
 to remark, that those persons who made suit " per se vel alios," 
 were under (he necessity, either of confessing their breach of 
 oath, or of kee|)ing it from her Majesty's knowledge. 
 
 'i'o such an insinuation we reply, that the Queen herself was 
 of a cliaracter not likely to have been imposed uj)on, or to have 
 dis()ensed her lioyal favour, either ignoranlly, orwilhontdue 
 adviseinent and coissideration. — In her letter to Archbishop 
 J^irker, Aug. S'i?, iri the third year of her reign, she says, 
 " The rest of the order of that College (Eton) we require you 
 *' to see reduced to the best, for the honour of Almighty God, 
 *' arul increase of learning, and of your doing we require 
 *' advisement." — Strj/pe's Life of Archbishop Parker ^ -^^PP' 
 p. 29. 
 
 Jf, as it is further believed, atul is liighly probable, Sir 
 Thomas Smith, who hail been Provost of Eton from 1317 to 
 1551, procured this measure for the College, and of his own 
 good u ill, the biippres-siun of any necessary information by a
 
 82 
 
 person of his liigli cliaracter, and so well acquainted w'lih the 
 whole of the Statutes, should, in justice to his memory not 
 hastily be presumed. The very terms with which the Koyal 
 Letter concludes, seem also to preclude the necessity of a more 
 special allusion to the said oath, or any other particular. The 
 IjCtter ends thus:—" Wherefore we will a?id require you the 
 " Provost, to permit and sulFer the Fellows (here, accorilingto 
 " this our pleasure and meaning, to enjoy the commodity and 
 '* benefit thereof, nofwithstatiditio; any article within any 
 *' SiaUUe of the said House, and for timt respect to cause this 
 *' our Letter to be entered in the end to the rest of the 5?tafutes, 
 *' to be continued and observed until we shall have reasonable 
 " cause to revoke the same," &c. 
 
 And it is scarcely to be supposed, that such a person as Sir 
 Thomas Smith would have promoted a measure of so much 
 importance, without diie attention to its legal validity. 
 
 It seems very extraordinary that the authority of the Hoyal 
 interposition, in matters relating' to (he Fellowsljips of Eton 
 College, should be called in question by the Provost, Fellows, 
 and Scholars of King's College, who, on several occasio.-is, 
 invoked and obtained the Royal interposition on their own 
 behalf. The proceedings which took place in iha reign of 
 King Charles the First have been already adverted to. The 
 order of Arclibishop Land, directing that five out of seven 
 Fellows of Eton C-ol!ege should be chosen from persons who 
 were, or had been Fellows of King's, was confirmed by that 
 Sovereign. This was, on the application of King's College, 
 confirmed by King Charles the Second by Letters Patent; and 
 again by King James (he Second in the same form. — Tliese 
 orders have been entered among the records of Eton College, 
 and have been considered by the Members of that Society, to 
 have the force of a Statutable provision, and have been obeyed 
 accordingly. On these occasions, the Provost and Fellows of 
 King's College speak of the nigning Sovereign as (heir gra- 
 cious and living Fousider. And in the lust of them they speak 
 of the letters patenl of King Charles the Second, in the follow- 
 ing te;ms: " We are sulLcieat'y a:lv:sed, that these letters are
 
 •38 
 
 'f good in maffcr and form. Tlie best Conned were advised 
 *' with in drawiiii^ tlunn up ; tlicy are grounded upon a 
 " dclerininalion of the proper Visitor of Elori, and unanswer- 
 *' able arguments from the Slalutcs of (he Founder, and both 
 *' granted and re-confirmed upon mature deliberation; so lliat 
 <« (he circumstances of our Le(ters Pa(ent are such, (iiat 
 *' ni-thing can be alledged against them, which would not 
 *' concUide as strotialv against all Letters Patent whatever.'* 
 
 If, iiowever, it siiould be conceded to the complainants, that 
 this usage is not warranted by a due interpretation of (he 
 existing Statutes of the Founder, they will not by such con- 
 cession have established tlic ill'gali(y of the usage; on the 
 contrary) this very concession, relating as it does to an usage 
 of so many years, na(ural!y leads (he mind to seek for some 
 legitimate authority to which (he usage may be referred : for 
 some stroni; and sufficient foundation on which it may be 
 supported. The duration of the usage is in part admitted, and 
 of i(s expediency and utility we shall offer our remarks to your 
 Lordship hereafter. That there has at all times cxis(ed a body 
 of persons, not less interested in opposing it tlian the present 
 Comj)lainants, cannot be denied by them, because, if the 
 former Provost and Fellows of King's College were not in- 
 teres(ed in the subject, neither can (he present be so, who have 
 only succeeded to them in place and right : and if the com- 
 plainants arc not interested in the subject of their complaint, 
 they have ?io right to trouble your Lordsiiip with it ; — and 
 Avhatever might be urged in some instances, as (o the neglect 
 or inatlention of bodies of this description, the several ajspli- 
 cations made to the Crown and to Archbishop Tjaud, on the 
 part of King's College, in the reigns of Charles and James, 
 abundantly prove that they were sufliciently awake to all 
 that regarded themselves at Eton. '^^^^^ * ^^'^ :m'- ^Hr ■,.. u. 
 
 There is, therefore, every thing concurring in this case, 
 vhich the law requires to found the presumption of a competent 
 and legi(ima(e authori(y to a long and unin(errupt^d usage, in 
 the courts of common law, tlie period of 20 years is deemed a 
 sufficient ground for the presumpti6n of a grant in ordinary 
 
 1)
 
 54 
 
 cases. In some instances a conveyance has been presumed , 
 even within a much shorter periocK And this is not the doc- 
 trine of modern times, nor confined to questions arising between 
 subject and subject. 
 
 So long ago as the reign of King James the First, (Beadle v. 
 Beard and others, 12 Colce, p. 5.) a grant of an advowson was 
 presumed to have been made by the Crown : wc beg leave to 
 give the judgement to jour Lordship, in the words of the very 
 learned Reporter : — 
 
 *' But it was resolved by the Lord Ellsraore, Lord Chan- 
 " cellor, with the principalJudgcs, and upon consideration of 
 " precedents, that the Plaintiff shall enjoy the said Rectory. — 
 *' For although, that by any thing which can now be shewn, 
 ** the impropriation is defective, for by nothing which now 
 *' appears, the ib.suc in tail had any thing in the advowson at 
 *' the time of his grant to the said Prior, for that the advowson 
 '* did not pass by the grant of the King, by these words, (cum 
 *' pertinentibus) ; yet it shall be now intended, in respect of 
 '' the ancient and continua! possession, that there was a lawful 
 *' grant of the King to the said Ilumfry, wlio granted in fee, 
 *' so that he might lawfully grant it to the said Priory, (omnia 
 *' presumuntur solemniter esse acta), ar.d all shall be presumed 
 ^' to be done, which shall make the ancient impropriation 
 *^ good. For tompusest edax rcruni, and Records and Letters 
 '*' Patent and other writings, either consume, or are lost or 
 ^' embezzled, and God torbid, that the ancient grants and acts 
 *' should be drawn in question, althougli that ihey cannot be 
 *' shewn, which at first were necessary to the perfection of the 
 •* thing; and if the impropriation had been drawn in question 
 '' in the life-time of any of the parties to it, they might have 
 " shewn the truth of the matter. But after the death of all 
 *' the parties, and after so niany successions of ages, in all 
 *' which, the said Church was esteemed and allowed to be right- 
 ** fully impropriated, if any objection or exception shall now 
 <^' prevail, the ancient and long possession of the owners of the 
 *' said Rectory should liurt them. For if these objections or 
 ^* exceptions had been made in ti;e lives of the parties; without
 
 *^ any question they liad been answered : or ollicrwise in so 
 " many successions of ages it \voulJ have been impeuclicd or 
 *' impn<]^ned. 
 
 Yonr Lordship will have remarked that in Ihis jndirement 
 Records and Letters Patent are mention(;d, as well as other 
 %vritings; and the doctrine thus laid down has been recognized 
 and acted npon in subsequent cases. We shall trouble your 
 Lordsliip with (lie citation of some of them. In the case of the 
 Mayor, &c. of Mull against Horner, Cowper's Hep. 102. it 
 was resolved by tlie Court of King's Bench, that a royal grant 
 of Port Duties (which must have been by matter of record, 
 for all the King's grants are matters of record) might, and ought 
 to be presumed in support of a long enjoyment of them. J^ord 
 Mansfield, in delivering his judgement on that occasion, quoted 
 the case of Lord Purbeck, in which the House of Lords pre- 
 sumed the grant of a Peerage by Letters Patent in favour of aa 
 enjoyment of that dignity, and he afterwards adds, '' J have 
 " myself taken it to be established in point of law that though 
 *' the record be not produced, nor any proof adduced of its 
 *' being lost, yet under circumstances it may be left to the 
 *' consideration of a jur}', or of a court of equity, if the case 
 " comes properly before them, whether there is not a sufficient 
 <' ground to presume a charter." It will not, we conceive, be 
 disputed that your Lordship, as Visitor, is entitled to exer- 
 cise the same discretion as hath been exercised in the courts of 
 law, in a court of equity, and in the House of Lords. , In a 
 very recent case. Roe v. Ireland, 1 1 East, 280, it was decided 
 by the Court of King's Bench, that enirancliisement of a copy- 
 hold by the Crown (which could only have been by Letters 
 Patent, that is by matter of record) ought to be presumed in 
 favour of an enjoyment commencing no earlier than the year 
 1636 ; and npon that occasion the learned and noble Lord who 
 now presides in that Court said, " I would presume any thing 
 " that is capable of being presumed, in order to support an en- 
 *' joyment for so long a period ; as Loril Kenyoii once said on 
 <' a similar occasion, thai he would not only presume one, bwt 
 " one hundred grants, if necessary, to iiippott such a long en- 
 
 d2
 
 36 
 
 ^' jojnient." Is then Uie privilege, whereof it is now attempJcd 
 to stri}) the Fellows of Eton, less worthy of every iiitendrnent 
 requisite to its support than the use of a way or a window light, 
 the patronage of a particular church, a toll for the landing of 
 goodss, or the excliange of a tenure of a few acres of land from 
 copyhold to freehold ? or is there any reason why the grant of 
 the subject or of the Crown should be presumed in the cases 
 cited, and yet an alteration of the Statutes by the Founder him- 
 self, or by an Act of the Legislature, should not be presumed ia 
 fiivour of the case before your Lordship? An Act of Parliament, 
 though greater in authority, is not of higher rank than a charter 
 ot the Crown ; both are considered in law as Records; proper 
 oflices arc assigned for the enrolment and safe custody of Letters 
 Patent, and proper officers appointed to watch and preserve 
 them, and the Record of an Act of Parliament, especially if it; 
 be of a private nature, is just as much exposed to the dangers of 
 time, accident, and inattention, as a charter of the Crown. Li- 
 deed in a case (Rex v. Bishop of Ely, I. Sir William Black- 
 stone's Rep. 55.) relatijig actually to some Statutes of a College, 
 Mr. Justice Probyn declared " that if it were necessary to pre- 
 *' sume an Act of Parliament to repeal them, he would presume 
 *^ it." Other J udges in (he courts have incidentally expressed 
 themselves to the same effect, and we apprehend we may assert 
 wifhoui danger of contradiction, that whatever be the nature of 
 the authority, or instrument necessary to the legality of a long 
 enjoyment, such authority or instrument shall be presumed to have 
 once existed, although it can no longer be found, and although 
 there be jio other evidence of its existence except the particu- 
 lar enjoyment or usage, to the validity whereof it is essential. 
 Stale demands are always discountenanced, and almost always 
 reptidialtul. It in well known that our Royal Founder, after 
 having cstabiished a body of Statutes for the Government of his 
 College, with which it must be presumed he was well satisfied 
 at the time of their promulgation, discovered that some things 
 required alieration and amendment, and gave a special autho- 
 rity to two of the Reverend Prel.ites of his time to correct and 
 reform his ordinances. Is it unreasonable to presume that the
 
 37 
 
 same mind, wliicli perceived and applied a remedy in liis own 
 time, nu<rht anticipate Hie necessity of furtlier alterations in suc- 
 ceeding times, and might revoke the prohibitory clause, upon 
 which the complainants so much rely, and in lieu thereof give a 
 general power to his successors in the Throne to vary his enact- 
 ments, and introduce from time to time such regulations as 
 niigiit be found coiulucivc to the Avclfare of the Society he had 
 established ? On the contrary, is it not much more reasonable 
 to presume that such an authority was given, either by some 
 Statute of the Founder himself, or by some Act of the I^egisla- 
 ture of the lleahn, than to presume that so wise and politic a 
 Princess attempted to introduce an innovation, which she iiad 
 no power to effect ; and that the grave and learned persons, 
 who promoted and accepted, and acted upon this ciiange, 
 were all ignorant of the law, and regardless of the solemn obliga- 
 tion of the oath prescribed by our Founder ? 
 
 The Provost and Fellows of King's College have, on the seve- 
 ral occasions before noticed, invoked the Royal interposition i 
 their own behalf. Had the Sovereigns to whom they applied, 
 any authority that did not belong to their predecessor ? If a due 
 interpretation of the Statutes of (nir Founder, and a reformation 
 of any departure from his enactments, were sought, your Lord- 
 ship's pr(Hlecessor in the See of Lincoln was the person to whom 
 application should have been made, had t!icclaus(5 now so much 
 insisted upon by the present complainants been at that time con- 
 sidered to have the force which is now attributed to it ; or if the 
 metropolitical visitation of the Archbishop was preferred to tUc 
 general visitatorial authority of the Bishop of Lincoln, still the 
 Koyal sanction, and the Letters Patent of the Crown, must, ac- 
 cording to the arguments of the present complainants, have iieeu 
 not only lumecessary, but improper and useless, and of no force. 
 We do not hesitate to say that, njjoii a due interpretation of our 
 Statutes, the Fellows of King's College liave no absolute priori- 
 ty of claim to the Fellowships of Eton. The regulation Ijy 
 which a certain luunber is chosen fron» that body is in itself a 
 proof of this, for if a genera! priority existed, a particular por- 
 tion could not w ilh any reason have been delined.
 
 oe- 
 
 8^ 
 
 Tills regulation, tliorefore, depcmls not upon (lie provision of 
 our 1' oun.icr, but upon (lie aulliority of succeeding Sovereigns, 
 and King's College enjoys (he benefit of it to this day. Is not 
 then the presumption of a legal revocation of the prohibitory 
 clause, and of a substitution of such an authority as we have 
 alluded to, equally necessary to the proceedings of the Kings 
 Chatls and James, as to those of Queen Elizabeth? We ven- 
 ture to assume that it will be so considered by your Lordship, 
 and that the presumption, which may be necessary to the main- 
 tenance of our rights, may be derived from the acts of that very 
 body in whose name the present complaint has been preferred. 
 
 We have reserved the consideration of the expedience of this 
 long and uninterrupted usage, and we now proceed to that 
 topic. It is allcdgcd thst the Fellows of Eton hold not only their 
 own Livings, but also the Livings of King's College, Avheieby 
 a Fellow of King's is prevented from succeeding to a Living, 
 and a Boy from Eton to Kiiig's ; and five instances are alluded 
 to as within memory, and of ll'.ese, three at one time, out of the 
 small number of 2! Livings belonging to the latter College. 
 But if the election of a Beneiiced Presbyter is not forbidden, as 
 we trust has been already shewn, the Fellow when elected must 
 have previously possessed the Living Iroin King's, as his fair 
 right ; and thi^t the attention, which is now paid to the interests 
 of King's College, is far beyond any statutable obligation or 
 anlient usage, the following comparison will shew : 
 
 John CelJieid wastije first Fellow of Eton who had ever been 
 of King's College, and was elected June 21st, 1536. 
 
 And from the Foundation of Eton College to the year 1700 
 inclusively, a period of 25S years, there appear to have been 
 109 Fellows, of whom So only (that is not quite one third) were 
 or had been of King's College ; whereas, (rom 170i totlie present 
 time, there have been 40 Fellows elected, of w hom 35 also (ihat is 
 seven eii^lilhs) were or had been of King's College ; nor has one 
 Fellow been chosen, sir.ce theyear 1772, who had not originally 
 been a Member of King's College. 
 
 i?o far also " from not the smallest notice having been talcen of 
 *' King's College in the disposal of Livings" seven of the
 
 m 
 
 Eton Livings arc lickl at tin's lime by Incumbents, wlio actually 
 were or fiad been Fellows of Kiii<^'s ColU'2:e at the time of tlieir 
 presentation, and another of the present ! ncmnbents was pre- 
 ferred througli the medium of an exciiani^e with llie prior In- 
 cumbent, to whom it had been given when he was actually 
 Fellow of King's. 
 
 It is likewise erroneous to suppose that the Livings of Eton 
 College are very valuable. The truth is, that these, with two 
 exceptions, are not high in the scale of value ; many are very 
 low indeed, and, as we should have presumed, far interior to 
 those of King's College. 
 
 Future Provosts will probably, nay, it may be expected, 
 certainly will take the Living of Worplesdon, and then there 
 would be little chance of a Fellow resigning his Fellowship for 
 any preferment belonging to the College; yet the income of a 
 Fellow of Eton in iiseU is not considerable, or more than will now 
 barely sui)port (especially if he has a family) the expenditure 
 necessarily incident to such a situation, without a Benefice atj- 
 nexed. The only advantage, then, which would accrue toKing's 
 College from an alteration in the present system, would be the 
 chance of these Livings beinggiven to actual Fellows of King's ; 
 we say the chance of their being given ; because the gift is 
 entirely a matter of choice in the Provost and Fellows ot Eton 
 College. It may, however, we trust be fairly concluded from 
 the preceding statement, that the present practice is not inimi- 
 cal to succession, nor can it be so to any extent. 
 
 It is true that King's College consists of 70 Members ; but the 
 eight Civilians, Canonists, and P]iysicians,must for the purpose 
 of this investigation be deducted ; next the Scholars and I'ellows 
 under 24 years of age, which on an average amount to 20; and 
 further, it may be proper to allow for about eight more, as not be- 
 ing of the degree of A. M. and of course ineligible to a Fellowship 
 of Eton. The number is thus reduced to 31. This calculation 
 also supposes all the Fellows of King's College to be in orders 
 except those of two years or two and a half years staiuling after 
 the Master's Degree is taken. 
 
 Instead also of 70 Boys at Eton, who would l^ injured by Ih.ft
 
 40 
 
 usage in question (if greater good did not result upon the wliole 
 to a!I who are interested in Ihe School) one alone might more 
 properly have been mentioned ; for that individual only who may 
 be superannuated by the non-rcsignalion of a Fellow, even 
 assuming that the new Fellow of Eton should be a Fellow 
 of King's, must be the sole person aggrieved. 
 
 There are other circumstances, however, as things stand at 
 present, creating advantages Milh respect to the quickening of 
 succession both at King's and Eton, which, when weighed with 
 the supposed disadvantages which are con)plained of, would be 
 found greatly to preponderate. In the choice of assistants in 
 the School, an exclusive preference is given to the Fellows of 
 King's College, which was by no means the case till within the 
 last 60 or 70 years. This, to those who arc aj)pointcd, aftbrds 
 a comfortable income, and an inducement to marry, which often 
 accompanies it. The Magister informator, and Ostiarius, are 
 likewise from King's College ; not necessarily so, but from the 
 vish, "which we sincerely feel, to promole the Members of that 
 College upon every tit occasion. F'romthe same reason, when 
 Elon College or ils Members recommend privale Tutors to 
 Noblemen or others, a preference is also given to King's Col- 
 lege, and its Members selected ; and from these sources in our 
 time several have become married, or preferred, and thereby 
 vacancies produced, far more than could possibly have arisen 
 from the operation of the system contended for by the com- 
 plainants. 
 
 The complainants assume, tlsat a quick succession, or in 
 other words a frequent chiuige of Menjbers, is a matter desir- 
 able in itself, and consequently that it was the object which the 
 Royal Founder of the two Colleges must be presumed to have 
 had in view. And they further assimie, that the succession in 
 King's College would be quickened if the Fellows of Eton were 
 not allowed to hold Ecclesiastical Preferment. There are, how- 
 ever, only three modes in which it can be argued that such a 
 prohibition would quickcfi the succession at King's. First, by 
 the resignation of a Living in tlie gift of King's Colieije, upon 
 the election of its Incumbent to a Fellowship of Eton. Secondly,
 
 41 
 
 by the rcsifriui'i*"; of a Fellow of Eton upon the acquisition of a 
 Jvivliif::. Tliirdly, by a disposal of the riivinf!;s beloiii>ing (o 
 Eton (o the actual Fellows of King's. The first of these could 
 have very little efTcct ; it would o|)erate only in the case of 
 such Livings as are less valuable than a lY'Uowship of Eton. 
 The second also could have very little effect, for it has been 
 already shewn that Ihe Fellowships of Eton arc in general more 
 desirable (lian the Livinji's in the gift of tliat College. The third 
 assumes (hat the lader Eivings would be given to the actual 
 Fellows of Kir)g's ; but as ihey have no right to claim them, 
 they have i;o right to found an argujnent against the Fellows of 
 F]lon from the chance of obtaining them. But will a due con- 
 sideration eiiher of the objects of the Founder, or of the nature 
 and true interests of the Colleges, forming, as the complainants 
 contend, they ought to form, one family, derived from the same 
 pareni, and ordained for mutual aitl and common benefit, 
 •warrant the assumption, that a quick succession to be obtained 
 by such means was one of the objects, which our Founder had 
 in view ? Was not the advancement ol k-arningand religioii the 
 primary and main object of our pious lumnder? and Mill not 
 that system, ^vhich is most conducive to such advancement, be 
 most conformable to his general vie\\s ? and is not such advance- 
 ment more likely to be promotctl by the establishment of a 
 comfortable provision to t!ie Members ot his two Colleges, and 
 by giving permanence to the individuals of that body, whom he 
 thought fit to place at Eton, tlian by a rapid succession, and 
 frequent change of persons ? The constitution of the two Col- 
 leges has no paralU 1 except in the prototype from which it was 
 drawn ; our lioval Founder considered that his views would be 
 best promoted by ])Iacing at the seat of the first rudiments of 
 education, a class of persons, of mature years, not provided 
 ■witli a narrow and niggardly subsistence, but endowed with the 
 means of dignity ai:d hospitality, according to the condition of 
 (he times. A part of his benefaction ^^as withdrawn soon after 
 his own decease, and a most important change of mamiers and 
 habits of life took place at no very distant period. I>y the iiappy 
 reformation of the religion of the countrv, monastic solitude
 
 42 
 
 gave place to domestic societies, to establishments calculated to 
 attract and retain the jonth of the highest rank and fortune in 
 the kinirdom. In the mean time another change was also sra- 
 dually taking place, by the advancement of the price of all the 
 necessaries of life ; and more enlarged and extended means be- 
 came necessary to the accomplishment of our Founder's object, 
 than the remains of his bounty \v(;re able to furnish. Could 
 these changes have been anticipated in his mind, is it to be 
 supposed that he would have prohibited the means of meeting 
 and conforming to them ? Js it to be believed that he would 
 have ordained a residence, and have ordained at the same time 
 that it should be performed by persons incapable of fulfilling its 
 objecis ? If <his cannot be supposed or credited, it must follow 
 that an alteration in a particular enactment might well be made 
 to accomplish the general intent. Could the College of Eton 
 have acquired, or can it hnig continue to enjoy, the reputation 
 of being one of the highest Seminaries of learning; a place 
 peculiarly appropriated to the union of rank and talents; to the 
 forni^'tion of those early conneclions, by which the Scholar and 
 the Noble are alike benctited in their progress through lile ; if 
 i(s Fellows had only enjoyed or should be reduced to the nar- 
 row means to which the complainants a^k your Lordship to 
 con line (hem ? Or would the interest of the Fellows of Kind's 
 be better promoted by the ciiance of an early removal lo a 
 moderate income, than it is by the coinicctions, the conse- 
 quence, and the patronage tiiai now flow IVoni Ftoii, conducted, 
 sustained, and fostered by the liberal means, and the conse- 
 quent rank anil iiospilalily of its Fellows ? Is not a comfortable 
 and honourable asylum in advancing life for those \\iio have 
 been engaged in the arduous labours of instruction, an object 
 desirubie in itself, and consistent with the view of the Founder 
 of these great esiabiishments of education? Will not a chief 
 incentive of laudable hidnslry and virtuous ambition to the 
 rising generation of Etonians, many of whom, even in their early 
 years, look up to the possible reward of so desirable an esta- 
 blishment as a Fellowship of Eton, be taken away ? And will 
 not the situation of the Masters and Assistants be at once
 
 43 
 
 dopiived of i(s principal recommendation in the cjes of young 
 intMi of talents, if the object of the present complaint shall be 
 attained ? Have the complainants shewn any sufficient reason for 
 the sacii/ice of so many great and general advantages, and for 
 the destruction of a system that has stood for so many years ? 
 We venture to assert lliatthey have not. And Iromthe premises 
 which we liave submitted to your Lordship, we conclude, iu 
 opposition to the complainants, — 1st. That the Statutes of our 
 Founder, as liiey now exist among our records, do not prohibit 
 the usage of which the appellants complain. A)n] 2d. That if 
 we shall be found mislakea in this, yet nevertheless that the 
 usage may, and ought to be sustained by some other Statute 
 established by the Founder himself, giving authority tosuccced- 
 ing Sovereigns to reform or dispense with his ordinanc<s, or l)y 
 some Act of the Legislature of the kingdom, although the 
 parchment, on which such Statute or Act of Parliament may 
 liave been written, cannot be produced at this distant period of 
 time, yind our present Fellows havc^ no apprehension of that 
 dilemma, on which the complainants have, not very graciously, 
 endeavoured to place them : tliey have each in his turn taken 
 the oath in the torm jirescribed by our I'ounder, and we hum- 
 bly conceive they have not violated that solemn obligation. 
 
 All which, with unfeigned duty and respect, we submit to 
 your Lordbhip's high wisdom and judgement. 
 
 Exlracl from the 93d SlaltiteoJ Eton College, 
 referred to in page 8. 
 
 Stat. 23. Qnoirodosuccurritur Presbyteris Sociis Scholari- 
 bus Capellanis Clcricis et Chorustis aliisque personis 
 ejusdem iiegalis CoUegii in Intirmitatibus eorundem. 
 
 Item quod debiliims et infirmis humanitatis pra.'bere pra^si- 
 dium jubeat charilas (1 pielas inlerpeilct StaJuiu)us ordinamus 
 et voiuiuus quod quilibet Socius presbyter dicti Collegii nostri 
 si eumcoutigerit iufirmaii pro tempore ejusdem infirmitiitis sua3
 
 44 
 
 tlummodo perpetna, et incurabilis non fiierit in et dc dido Col- 
 legio tunc percipiat qiianhim ipse samis esset alias percep<urns. 
 Si vero infirmitate perpelua et contagiosa laboraverit quod om- 
 ninoreddatur inhabilis ad debitum niinisterii sui in dicto Recall 
 Collegio gerundumtunc voliimus quod Socius lalisextra dictum 
 Collegium Regale omnino in aliquo honeslo loco moraturus, si 
 cessantedolo fVande et malo ingenio tanfum in Boneficio Eccle- 
 siastico Ila^reditate Pats imonio ant Feodo seculari vel pensione 
 perpetua annualim non liabuerit, summam decern librarum de 
 bonis dicfi ('ollcgii nostri per manus Bursariorum pro tola et 
 omniexhibitionesuaannis singulis realiter percijiiat et non ultra. 
 Si vero in Bcneficio Hareditate Patriinonio vel seculari 
 Feodo seu pensione luijusmodi aiiam minorem summam quan- 
 tamcunque, et quamcunquc sibi obvenientem obtinuerit, tunc 
 Yolumus quod prorata summas hujusraodi obvenientis sibi dicta 
 summa decern librarum ci decrescat et rcaliter subtrahutur. 
 
 To Ihe Right Rev. Father in God, George^ Lord Bishop 
 of Lincoln, Visitor of King's College^ Cambridge^ and 
 of Eton College. 
 
 MAY IT PLEASE YOUR LORDSMIP, 
 
 AVe, the Provost and Scholars oi King's College, beg leave 
 respectfully to submit to your Lordship's consideration the 
 foliowinfir observations and remarks. 
 
 Presuming from the ann)le time allowed for searching records, 
 examining pajicrs, and collecting all such evidences and infor- 
 mation, as can throw light upon the question under discussion, 
 that we are now in poi^session of every document which (he 
 Fellows of Eton can produce, every argument which able legal 
 advisers can suggest in their defciice, we shall })roceed, 
 under your Lordship's pcnnissionj to examine the contents of 
 the answer.
 
 45 
 
 The rpply commences, not in the usual manner, after a state- 
 ment of tile charges in tlie Appeal, by proceeding gnulniUj to 
 the defence, but by imploring your Lordsliip to consider tlic 
 consequences whicli mly attend investigation ; by stating tlieir 
 conduct, if unstatut.ible, to be unintentionally wrong ; by as- 
 serting that greater benefits are derived from such conduct than 
 by observing the Statutes ; and lastly, by endeavouring to excite 
 a prejudice against the Appeal itself, as the act of a few indi- 
 viduals, and contrary to the sentiments of the College in general. 
 The grounds of oir Appeal we allow to be rightly stated, 
 with the exception of the word illegal.— This term we purposely 
 avoided, and now protest against such usage on the part of the 
 respondents, it beiisg evidently their wish, that the decisions of 
 the Courts of Law should have great inHucnce on your Lord- 
 ship's judgment in this question. Our complaint is agauist a 
 violation of Statutes, not the laws of the kingdom ; and the 
 Founder has strictly ordered, that all such offences, shall be 
 decided accordinij to certain rules and ordinances set forth in 
 the Statutes, and not be subject to the practice of other 
 tribunals. 
 
 The imputation which seems to be cast upon us, of assuming 
 that tbeir defence rested upon the Dispensation alone, we 
 answer by a reference to their letter, in which they send a copy 
 of the Dispensation, and plead it as a full justification of their 
 conduct. 
 
 We certainly did not venture to point out the consequences, 
 or ask for any specific redress; as it appeared the duty of 
 Appellants to set forth the causes and justice of their complaint, 
 of tiie V'^isitor to decide and act. 
 
 The reply goes oa to assume, that the Appeal is the act of a 
 few individuals and contrary to the general opinion, and that 
 such belief has had a strong influence on l!}eir answer. We are 
 at a loss to conceive that a defence, which has truth for its ob- 
 ject, can consist of any points beyond a disproval of the charge 
 and a justification of the accused party ; in drawing up such a 
 defence the charges alone, not the number of the accusers, must 
 be considered.
 
 46 
 
 In respect, liowevcr, to (he insinuation of a small party pro- 
 moting the Appeal contrary to the wish of the majority, we 
 thus reply; — that a regular Congregation was summoned for 
 taking the subject into consideration, sanctioned by the Provost, 
 at which every person but one, who is the son of one Fellow of 
 Eton and nephew of another, assented to the measure. The 
 Appeal itself was' signed and sealed by the Provost himself, 
 and by his permission and desire, and by a vote of Corigreoa- 
 tion, carried to your Lordship at Bugden, by two Fellows 
 specially deputed. No canvassing for votes, no undue in- 
 fluence was resorted to, directly or indirectly, — the oj)inion of 
 every Fellow was left free, and we confidcfitly assert that (he 
 general sentiment of the College is in i(s favour, arising from a 
 conviction that the contents of the Appeal are true. 
 
 The Respondents open their defence with denying our 
 assertions tliat the 25(h Statute was deemed prohibitory of 
 holding livings previous to the Sth year of Elizabeth, or that 
 the Dispensation was granted for the express purpose ot releas- 
 ing the Fellows from such prohibition. Tiiey likewise appeal 
 to the 23d Statute in their favour, and produce two instances of 
 Fellows holding Livings. 
 
 We did indeed expect, that after so long an interval, they 
 •would have presented your J^ordship with a complete list of 
 such Members as had taken Livings, from the foundation to (he 
 year 1566, but instead of such a list, tl:ey state the great difTi- 
 culfy of ascertaining (he presentations or resignations, and (he 
 probability that the early records were taken to Windsor, (o 
 which the loss from damp and carelessness must be added, so 
 that after all their search, they are enabled (o produce only 
 two instances. We are ready to allow the possibility of the 
 record lost being sent to Windsor ; of (he plate sent there is 
 indeed a complete inventory, but of records no mention is made; 
 and as such documents as the Statutes, Charter, and all other 
 important papers, are safe in the muniment-room, it is, as wt 
 allow, barely possible. 1 he time employed in res<'arch we 
 trusted would have overcome every (liUlcul^y — of the damp 
 and carelessnsss we can say nothing ; it does, however, appear
 
 47 
 
 extraordinary, tliat only two entries, at tho'distance of 86 years 
 from each other, shouUl have escaped all these ravages, and 
 these too of FcHows holding Benefices. 
 
 As the respondents have not thought proper to bring their 
 arguments to a point, we are reduced to tlie unpleasant neces- 
 sity of collecting what may appear to us the statutable defence, 
 which they now set up and assert to iiave existed, as well as to 
 have been acted upon from the foundation of the College to tiie 
 present time. We conceive them lo argue in the following 
 manner: — By <hc 9th Statute the election ofa Beneficed Candi- 
 date is not proliibited ; by the 25(h, a Benefice previous to 
 election is tiot rendered a disqualification ; by the 23d, t!ie 
 tenure of a Benefice is contemplated, and the two examples 
 prove, tliat Livings were held by Fellows previous to the 
 Dispensation: such we presume their reasoning must appear, 
 stripped of all extraneous matter, as reference to the Statutes of 
 King's College and 1 lie Petition to Charles the First; and we 
 are ready to adiuil, that, if upon a full examination of the 
 Statutes such reasoning be correct, and sanciioiied by the 
 practice of the College previous to the 8th year of Elizal^etii, 
 not only the Disj>ensation was at that time unnecessary, but 
 must be so at present ; and we can only express our surr/rise 
 that it should eitlur have ijeen sued for by the Fellows of that 
 time, or pleaded by the present, asthe authorify for their taking 
 Ecclesiastical Preferment. 
 
 Having thus stated, and we trust accurately, the defence of 
 (he respondents, we beg leave to lay before your Lordship 
 our reasons for not admitting the correctness of their assertions, 
 either as to their agreement with the Statutes, or the usage of 
 their predecessors. 
 
 We sliall commence with a statement of the practice of Eton 
 College from the earliest to (he present time; and this we shall 
 divide into three distinct periods — the ist from the foundation 
 to the year !5,)G,— the 2d from ihr.t ycarlo I7C9,— the 3d from 
 that year to the present time.
 
 48 
 FIRST PERIOD.* 
 
 1440. Johannes Clericus, Vice Provost. 
 
 1443. At the second Foundation it is thus slated : 
 
 " Prasterea attento, quod Johannes Clericus diniisso qtiodam 
 " Bencticio, quod prius habuerit satis competenti pr<eli<jit 
 ' in eodeni nostro Collegio nt Socius ejusdem Deo desrrvirc 
 *^ gratiobc dispcnsamus cum eodern modo Vice Praposito ejus- 
 " dein, quod ipse quoad vixerit semper et continue dum in 
 *' eod< m Coll. bccius steterit V. P. ejusdem sit statuto nostro 
 *' in contrarium edito non obstante." 
 
 * Si. Albari'sy Wood-slreet. 
 CATALOGUE OF THE RECTORS. 
 
 NewcourC s Repertoriiim. 
 Richard Hopton, 9th Julii, 1477. 
 W. Bf^tham, 2d Decembor, 1487, resign. Hopton. 
 Joh. Person, 13th Maii, 1492, niort. Betham. 
 Hugo Francis, 23d Maii, 1493, resign. Person. 
 W. Smith, 23d Jan. 1497, resign. Francis. 
 H. Smith, 8th Sept. 1502, resign. Waller. 
 John Grove, 26th Oct. 1504, resign. Smith. 
 R. Skipwith, 9th Dec. 1505, resign. Grove. 
 R. Lupton, 10th Nov. 1519, resign. Skipwith. 
 Wynnesmore, 24th Oct. 1523, raorf. Lupton. 
 J. Blith, 1524, resign. Wynnesmore. 
 
 W. Catteryche, 1545, resign. Blyth. 
 W. Boswell, 1458, mort. Catter}che. 
 W. Pelleware, 1558, mort. Bosweli. 
 
 St. Marj/ Axe. 
 
 Hugo Frai'cis, Rector resignavit 1480, elect Socius, 1489, Jan. 12, 
 R. llinton, Instit. 11th ¥ch. 1489, resign. Francis. 
 As it is most probable that he resigned previous to his election, 
 as iiistilufion does riot necesBarily follow immediately presentation, 
 this may be deemed a secoud instance of resignation before election.
 
 49 
 
 17. Rd. Tlopton St. Alban's Wood-street 1477 cessit Coll. 
 1478 resii^n. Hector 1487. 
 
 33. Gnl. Withers Soc. 1477 Piddle Ilinton 1480 cessit 
 
 Coll. 1481. 
 
 34. Jolm Sultou 1478 loco Flopton vac. 1479. 
 So. T. Slevcnsou 1479 Petvvorlh 1483 vac. I486. 
 
 37. G, Bothaiu 1482 St. Albaii's 1487 resig. lloptou vac. 
 
 1488. 
 
 38. G.Atwater 1482 Piddle Ilinton 1487 vac. 1488. i 
 42. T. Person St. Alban's 1492 vac. 1493. . , . ^,,, 
 
 Everdon 149D vac. 1497. 
 Rd. Hopton re-elect, lit videtur 1486. 
 Hugo Francis 14S9 St. Alban's 1493 vac. 1494 resig. Rect, 
 
 1496. 
 ,loh. Sparke locoAtwatcr 1488 Everdon 1500 vac. 1501. 
 Joh. Edmund 1491 Petwortli 1496 vac. 1497 mort. 1502. , 
 Walt. Smith 1492 St. Alban's 1496 vac. 1497. ... 
 
 Ali<er 1497 vac. 1498. 
 R. Kite loco Francis 1491 Slourmins(er 1501 vac. 1502. " 
 J oh. Grove 1498 St. Alban's 1504 vac. 1505. 
 Rd. Martin loco Smyth 1498 East Wrethara 1495 moit. 
 
 1503. 
 Walter Smyth re-elect. 1501. ' 
 
 G. Horman Mag. Infor. East Wretham 1495 Soc. elect. 
 
 loco Kyte 1502. 
 J. Balkey 1513 vac. 1520 Instit. Titcliwell 1538. 
 Rd. Wynnesmorc 1517 St. Alban's 1523 vac. 1524. 
 G. West 1518 Everdon 1522 vac. 1523. 
 G.Smyth 1521 Everdon 1529 vac. 1530. 
 Thos. Mandyl 1521 Petworth 1531 vac. 1532. 
 G. Wall 1524 T itch well 1530 cessit 1531 resig- Rect, 
 
 1533. 
 Simon Benson 1524 Stourminster 1535 vac. 1536. 
 J.Hunton 1529 Stoke Gurscy 1536 or 1546. 
 Wm. 1530 Maple Durham 1537 vac. 1538. 
 
 Newioo-ton 1538 vac. 1539. •^ 
 
 E
 
 50 
 
 Rd. Wells 1532 Redor of Christ Clmrch diplex prescn'(, 
 
 30 Jan. 4 Oct. (inter quos rcsignavit.) 
 G.Heynes 1533 Piddle Hinton 1538 vnc. 1539. 
 G. Wetherton loco Hunton 1536 Stoke Gursey 10th Oct. 
 
 Maple Durham 19th January I53S vac. ante St. Mic. 
 
 1539. 
 Joh. Patmorc loco Heynes 1589 Stoke Gursey 1541; vac. 
 
 15^5. 
 G. Goldyng 1539 Maple Durham 1544 vac. 1546. 
 
 Piddle Hinton 1550 vac. 155^. 
 Wm. Bruerne 1544 Maple Durham 1546 cess. 1547. 
 Aug. Cross 1547 loco Bruerne 1551 Vicar Spoliat 1551. 
 
 Stourminster 1559. 
 (r. Dobson 1547 Southmcre 1554 vac. 1555. 
 Rii. Boswell 1547 St. Alban's 1548 vac. 1550. 
 J.Johnson 1552 loco Cross. 
 Mich. Smyth 1554 Pctworth 1561 vac. 1562. 
 
 Evcrdon 1595. 
 Noke 1561 ccssit Coll. 1568 Rector Tern psford 1575. 
 Thomas Smith 1563 St. Alban's 1570 is reported to be tlip. 
 
 first Fellow, who took a Living under the Dispensation, 
 
 and died within the year.* 
 
 The above list is taken from a manuscript In the British 
 Museum, written by thcRev. RogerHugget, formerly Conduct 
 of Eton about the year 1760. Not entertaining the least notion 
 that the Records had perished since that time, we fully 
 expected the same list would have been sent from Eton College, 
 as it now cannot be compared with the original (since \>e cannot 
 but suppose tiiat the name of every Benctiped Fellow would 
 .have been produced) your Lordship will attach as much credit 
 to it as you may think proper, where however it agrees with 
 the Register, &c. it certainly deserves credit. 
 
 We likewise have given the Dispensation of I, Clerc at full 
 length, that the matter may be fairly examined without surmise 
 ^r suggestion. 
 
 * The word vacat appears to be used iudiaciiinhiately to signify 
 resignation of a Fellowship or Liung.
 
 . > ^ ». 
 
 SECOND PERIOD. ' 
 
 ]5G6. An. EI. 8th. 
 
 Queen Elizabeth in consequence of sute made lo lier, irrantcd 
 a Dispensation enabliiiiij each Follow of Eton to hold wilh his 
 Eellowship, one Benefice not exceeding 40 marks per aiumm. 
 
 The above Dispensation being confined to Livings alone, 
 and not extended to other Preferment, .)ohn Chambers Fellow 
 of Eton sued for, and obtained a private Dispensation to enable 
 liitn to hold a Canonry of Windsor. 
 
 " In your Fetter the Fellows are said lo liold greater Livingft 
 " with your Fellowships tlian the Value of the said l*rebentl, 
 " and that our Dispensation wilii your Statute may be more 
 " duly observed, mc further Avill and require you to enter 
 " this our Letter and Order in the end of your Statute IJook, 
 " and this our Letter shall be your suflicient warrant, and 
 " Dispensation, and discliarge." ;. ., - 
 
 " (iiven under Signet, at our Manour of Richmond, 8th 
 '' day of March, 44th Year of our Reign." ,., . . 
 
 The above Letter was confirmed by another Letter of King 
 James I. to the said d. Ciiambers, (apparently because the 
 validity of the Queen's J^etter was thought to cease at her 
 death.) — *' Given at our Palace of Westminster, 24th of Feb. 
 IGOS, anno regni primo." 
 
 Charles I. 
 
 Dr. Collings took out a Dispensation to hold a Canonry of 
 - Windsor, &c. '<■' '^'''■'- ^--'^^ *^ 
 
 Charles Rex : We, being informed that *« Dr. Collings, 
 
 '*' our Chaplain of Eton, cannot hoM his Fellowsliip together 
 
 " with the said Prebend by the Statutes of the said College, 
 
 *' above the space of a year without our gracious Dispensation, 
 
 *' know ye, that the said Dr. Collings may hold his Fellowship, 
 
 I' '->
 
 52 
 
 ^' and (lie next Prebend of Windsor, together with two Eccle- 
 '' sinstical Preferments, not exceeding 40 marks per annum in 
 *' our books of valuation, being the usual rate granted to the 
 *' Fellows of that College by one of our predecessors." 
 
 1621, Charles Croke resigned his Fellowship upon being 
 presented to the Living of Agmondesham, it being above the 
 Taliie of 40 marks per annum. 
 
 The case of Dr. Waddington, unexplained as it is given, 
 can never be produced as a precedent for the interpretation of 
 the Statutes, but as a solitary and extraordinary instance of 
 total disregard of the Statutes, and practice of 286 years. 
 
 The holding Preferment by Royal Dispensation, in addition 
 to the Living granted by Queen Elizabeth, continued in 
 practice until the year 1769, at which time a change took 
 place. 
 
 THIRD PERIOD. 
 
 1769 
 
 A Fellow having the offer of a Canonry of Windsor, and 
 unwilling to sue for a Dispensation as contrary to his oath, 
 inttoduced the construction of " adeptus fuerit" as a simple 
 future, and a new practice by resignation of his Fellowshij), 
 acceptance of the Canonry, aTid re-election to the Fellowship. 
 The whole case is so well related by a Fellow of that time, that 
 ViC think it proper to transcribe the Letter. 
 
 '^ DEAR sin, 
 
 TTalhern, Ju?ie23dj 1769. 
 
 " 1 am favoured with your Lcltcr, wlierein you inform 
 *' me that you are promoted to a Canonry of Windsor. And I 
 " take the first opportunity of sending you my congratulations 
 *' on your present, and my best wishes for your future promo- 
 *' tion ; but I cannot help expressing my surprize at the 
 '* method proposed in order to hold your Fellowship with (he 
 *' Canonrv.
 
 63 
 
 *' Dr. Slcccli, Aviicn Fellow of Eton, vas, 1 know, made 
 " Canon of" Windsor, but he had a special Dispensation for 
 ** liolding his Fellowship with the Canonry. : •■ . , 
 
 *' Dr. Cooke, I presume, now hokls his Fellowship by a like 
 ^' Dispensation. 
 
 " This has been the usual way of takin^^ Preferments that arc 
 *' inconsistent with our Fellowships by Statute. And for my 
 *' own part, I can see no reason for having recourse to a new 
 *^ mctliod, which n)ay tend to establish a very jiernicious pre- 
 ** Qedent, and be attended with many bad consequences. 
 
 " You say that Dr. Littleton and Dr. Waddington were 
 *' re-elected under like circumstances. 
 
 *' The case of Dr. l^ittleton, you will find on a more strict 
 ** examination to be widely different. He forfeited his Fellow- 
 " ship by neglecting to take the oaths to the Government in 
 *' due time, and not by the acquisition of new Preferment. 
 *' This was a very singular case, and not to be drawn into 
 " precedent. It has not indeed the least resemblance to 'the 
 " present case, which is exactly similar to that of Dr. Slecch. 
 " 1 believe that you are mistaken with regard to the re-electiorx 
 " of Dr. Waddington, I never liaving met with any entry 
 *' relating to such an Act of the College. 1 rather imagine 
 *' that he held his Fellowship after he was made Bishop of 
 " Chichester, if not by a Royal Dispensation, by the favour 
 *' and connivance of the Provost and Fellows, they never 
 " proceeding to declare the vacancy, and this seems to be the 
 • most natural expedient upon a like occasion. 
 
 Thus 1 have given you my sentiments on this affair 
 " frankly and freely; assuring }ou at the same time, that I 
 ** shall be always happy to serve you in any thing 1 think 
 *' consistent with my oath of admission. i^ji/p v; i.ati • 
 
 " But while you resolve not to apply for a Dispensation even 
 *' for your own security, because you think such applicalioa 
 *< contrary to your admission oath, you cannot, 1 think, my 
 *' friend, reasonably desire me io concur in a mea->urc for yt)ur 
 " security, that is in my opinion directly contrary to the 
 *' Statutes and will of our Founder, whose Siatutes I have 
 " bworn to obey, fof this you cannot but sec would be in cfTeci 

 
 ii 
 ii 
 il 
 
 «« to desire me (to act contrary to tlie persuasion of my con- 
 science in order to save you from actiiiir conlryry to the per- 
 suasion of your conscience) to perjure myself in order to save 
 you from being perjured. 
 " However, as the Provost, Vice Provost, Dr. C. and 
 ** Dr. Aptliorpc make no ol)jection to this manner of proceed- 
 "* ing, and have promised to re-elect you, there is no occasion 
 *' for my concurrence, I shall tiierefbrc set out, &c."* 
 
 The system introduced in the year 17G9 still remains in force, 
 but how often it has been resorted to your Lordship can ascer- 
 tain by reference to t.he Records of the College. By means of 
 this and other methods all restraint is completely removed, and 
 every Fellow accepts and holds whatever Ecclesiastical Prcr 
 ferment he can procure. 
 
 It cannot have escaped your Lordship's notice, with what 
 caution and forbearance the Statutes now brought forward in 
 defence are handled. No construction or interpretation is 
 given to the 23d, so that we are left to make the application as 
 \vell as we arc able. That it ought not to have been quoted at 
 all, we shall endeavour hereafter to shew. 
 
 In the 25th Statute, adeptus fuerit is attempted to be proved 
 a simple future, from a comparison with King's Colieoe 
 Statutes, but they do not state that such tenses do not necessarily 
 imply such a future signification. 
 
 It is well known in tiie Roman Law, that a sentence sot down 
 with the verb ' sum' of whatever tense it be, means that the 
 sentence is ipso facto incurred, unless by a future participle its 
 nature be altered. '« Verba esse, et erit, quando per se 
 *' ponuntur, habent, atque retinent Tempus suum, cum vero 
 " pra^teritojunguntur, vim Suamamittunt atque in praleritum 
 *' transeunt." — ^iw/^.'s GcUiiis — Noc. Atlic. 
 
 * This Letter was written by the Rev. Mr. Soiithernwood, Fellow 
 first of King's, afterwards of Eton College, and is dated from 
 Walkern, a Living of King's College, which he held till his dealh 
 upon which his pnpers were left to Mr. Betham, a Fellow of Kfon 
 and by him to Dr. Glynn, who bequeathed them to Kijig's College.
 
 According fo the most usual grammatical construclion 
 ^' adeptus fuerit" Avoiild be styled Futurura cxactum ; future 
 as (o (he promulgation of tbe Slatute, but actual possession as 
 lotlie Follow. 
 
 The diiliculty attending such tenses as " fuerit" is acknow- 
 ledged by all grammarians, as they are used for the present, 
 past, or fulure. Instances of whicli maybe easily produced 
 from the Statutes. In affixing therefore the sense, the context 
 or intention must be the guide, according to the rule laid down 
 in the Statutes- themselves : " Juxta planum scnsum commnmni 
 " intellect urn et expositionem grammaticalcm et litera'em 
 " magis et aptius ad casum, ct praetensum dubiuni do quo 
 *' quasritur et agitur applaudenlem." 
 
 A person, therefore, who wishes conscientiouslj' to understand 
 the meaning, will first examine the Statutes upon this point. 
 In which it will be found that leave is s:\vcu to the Provost in 
 the most express, and explicit manner, to hold *' Quajcunqnc 
 '' Beneficia Ecclesiastica uiuim vel pliua" but that no such 
 leave is given to the Fellows. That under a Statute of dis- 
 qualifications, it is stated that one who shall have gained 
 " Beneficium Ecclesiasticum" must resign v.ithin a certain 
 time. That under the 2jd Statute, to a Fellow infirm and 
 deprived of all other statutable allowances, and sent away from 
 College, '• Beneficium" below £10. per aiuuim in value, i« 
 allowed to beheld in diminution of, not in addition to, the salary 
 of £;I0. ordered to be paid (ohimamuially. He will find residence 
 enjoined, and other duties incompatible with the Cure of a 
 Parish Church, or other preferment. If he looks at the 
 practice of the earliest times, he will find it contrarv to the 
 ])ossession of a Living either jirevious or subsequent Jo tliR 
 election, lie will find Dispensation to have been sued fur aitd 
 granted as a release from this very point, and the present 
 Members to have pleaded the same Dispensation in their own 
 defence. From such an examination, tlie result must be a 
 conviction that each Fellow was intended to beloni>: to Eton 
 College exclusively, itj which annual offices, and other duties, 
 afforded sufficient occupation of ihcir time. Unless indeed it
 
 should he aJmiKed, that the disqualificalion consisted in tha 
 time, not the act of possession, so (hat a person presented to a 
 Living \\illiin the least possible time before li is election was 
 intended (p remair), but the I't-llow, who accepted one sub-, 
 sequeiitlj, (o quit his Fellowship; an absurdity which can 
 scarcely be defended. 
 
 Admitting the Colleges of William of Wickham to have been 
 the prototypes of Eton and King's, which we do most readily, 
 not only from the assertion of the reply,* but also from a recoril 
 of an agreement styled " arnica compositio" between these 
 Colleges for mutual defejice, A. D. 1444, during the life of 
 our Founder, wherein is sot forth the identity of the foundation^ 
 as to their constitution ; we conceive that a reference to these 
 prototypes will alibrd considerable assistance in interpreting 
 doubtful passages, as any deviation from the model cither by 
 addition or omission must strongly mark the intention of our 
 Founder, 
 
 In the Statutes of St. Mary, Winton, no mention is made 
 of property either temporal or spiritual, nor any disqualification 
 annexed to it in the corresponding Statute *' Propter quas 
 " causas, «Scc." 
 
 The insertion therefore of it in the Eton Statutes clearly shews 
 that the Founder intended such disqualification. And the clause 
 being taken from the New College Statutes, A\hich afhx an 
 ad valorem tenure to each property, and no such value beino* 
 affixed to Ecclesiastical property in the Eton Slatuies, but 
 Benefices forbidden under general terms, we conclude that the 
 objection lay against the tenure of any Livings without regard 
 to their value. 
 
 The 23d Statute, or at least the part quoted, ought not to bq 
 resorted to for the interpretation of any other Statute, lor the 
 following reasons. 
 
 It is framed for a Fellow labouring under the leprosy, (sq 
 the same disease is termed in the Statutes of Maydalen 
 
 * By the word reply in this, and other places in this documejit is 
 ioteuded the auay^er o(.lbe l-'cliovvs of Etpn. — ]S\-te bij the Editor,
 
 57 
 
 College, Oxford, '^ moibum perpettmm confagiosum (Lepram 
 " quod absit,") Avhicli disease lias long since ceased in 
 England. ' '^'!' ''■•;':"''> ■" '• • 
 
 It is contrary to the tenor of the Statutes in general, and to 
 llie following Statutes in particular : " De comniuni annmi 
 *' liberatura" by depriving the Fellow of gown cloth — " l)e 
 " communis" by depriving him of commons — " De absentia" 
 by ordering him to remain out of College entirel}' — " De 
 *' devillatione," which forbids a Fellow to sleep out of College 
 Avithin five miles of Eton ; in deducting from his animal stipend 
 of £10. as much as he shall receive from other property below 
 £\0. per annum ; and lastly, if Beneficium in this place signify 
 a Living, by permitting him to hold one under £10. per annum 
 contrary to the 25lh Statute. 
 
 A Statute, so contrary to all the others, ought not to be brought 
 forward to interpret another, to uhich itself is an exception ; 
 and a Fellow ought to be precisely in the state there set Ibrtb 
 before he can claim under tliis Statute. 
 
 There is moreover a difficulty respecting the words Beneficium 
 Ecclesiasticum, and Beneficium. 
 
 It may be asserted that there was no need to use that epithet 
 in repeating the species of property, but such is not tiie usage 
 of the Statutes, they are redundant rather than concise, and 
 •where the word Ecclebiasticum is left out in otlier Statutes 
 there is a qualifying adjective or other term. 
 
 The sentence immediately following runs thus : " Si vero 
 " quis Capellanoruni, Scbohuium, Clericornuj aut ('horustarum 
 *' sivc tredecim patiperum puerorum aliqua inlirmitale labora- 
 " verit, &c., ncc Beneficium habeat nee reditus unde possit 
 " sustineri nee amicos, &c." :•- i ■ 
 
 In the above sentence Beneficiuni is applied to Scholars from 
 eight to nineteen years (jf age, to (Choristers, Singing Men, and 
 poor Scholars tbrbidden to take Orders belore twenty-five years 
 of age; and lest it should be supposed that Beneficium a])plied 
 to Capellani alone, who were in Orders, we beg leave to slate 
 that the sentence is taken verbatim from the \Vinchesler Statutes, 
 •Vvjth the exception of the personsj it being confined to b(tys
 
 alone. '^ Si vero aliquis Scholarium," &c. What meaning 
 therefore, can we affix to the word Beneficiiim, as a Scholar of 
 Eton swears he Jias not five marks per annum ; unless it be 
 that of an annual payment issuing out of tjthes, or lay impro- 
 priation. From the above statement we conceive ourselves 
 justified in asserting that no Fellow held Ecclesiastical Prefer- 
 ment previous to the year 1769, either under the 25th or 2Sd 
 Statutes ; the two cases quoted by Eton College coming under 
 neither of them : riot under the 25th as being subsequent 
 presentations ; not under the 23d, as the Livings were above 
 jglO. per annum. Upon what pretence they Merc bolden, we 
 know not, certainly not by virtue of any Statute.* 
 
 A Dispensation is a voluntarily act of grace and fiivour 
 releasing to any single person or community of men, the 
 obligation of a Law or Statute, others remaining bound not only 
 in other cases, but the like. 
 
 This definition will suit exactly the Dispensation granted by 
 Queen Elizabeth. By the general grant she released the whole 
 body from the Statute under certain limitations ; by the private 
 one she released John Chambers, the others remaining bound 
 in that particular. 
 
 From what she released the whole body, the preamble states^ 
 and probably in the very words of the suit; and the present 
 Fellows of Eton having pleaded that Dispensation as a full and 
 complete justification of their conduct, have identified them- 
 selves with those, who sued for that Dispensation, and therein- 
 admitted that a Fellowship is not tenable by Statute, but by 
 virtue of the said autiiority. We moreover assert, ihat the 
 construction introduced in the year 1769, and still maintained, 
 was, and is contrary to tliat vviiich was received and sanctioned 
 by uu usage of 329 years, and likewise that the interpretation 
 
 * One of (lie Cases quoted, 
 Richard Hopton took the Living of Piddle Hiiiton at the lime that 
 the Colioge was nearly destroyed by Edward IV'. It being his 
 intention to unite Eton with Windsor, the I'Vllows during some 
 years had no stipends, and were reduced to four in number.
 
 5C> ■ 
 
 of tlie 2.j(l Slaluto was never heard of previous to the agilatioit 
 of the present question, a space of 375 years. 
 
 From all which it follows that the defence attempted to be 
 set up, being neither ponfirmed by practice, nor the true con* 
 strnction of the Statutes, is i,nonndless and untenable. 
 
 No notice having been taken of our arguments against the 
 Dispensation, as to its validity, we pass overall allusion to that 
 part of our appeal. ' - 
 
 As the Fellows of Eton make frequent reference to the conduct 
 of our predecessors during the Reigns of Charles I., Charles 
 II., and James I [., wc reply that no acts of our predecessors 
 bind us, and particular if unstatutable. The temper of the 
 times, when prerogative was iu many cases paramount to law, 
 may be alledged in their excuse. The cause which they sup-, 
 ported was just and right, but the means used, unstutuablc. 
 The cause of Fton College unjust, but tlie defence statutable, 
 in the refusal to obey letters mandatory, and even the decree of 
 Archbishop Laud, as it was unstatutable, •,,' 
 
 Had the Visitor interpreted the Statute as he states in his 
 letter, " concerning the choice of Fellows from King's College 
 " to Eton, J am clear of judgement, as I liow stand advised, 
 'i that the Statutes of Eton do require it to be so," and not 
 given way to practice, sJicceeding Visitors would have 
 enforced such a decree without having recourse to the support 
 of Regal Authority. No merit, however, attaches to the 
 Fellows of Eton, as they accepted Dispensations, when accord-, 
 ing with their wishes, and opposed them, wiien contrary. 
 
 Having replied to the defence drawn from the Statutes, and 
 grounded upon existing documents, we proceed to one of a 
 direct contrary nature, consisting of presumption and con- 
 jectures, lu \'; 
 
 Our supposition that the Dispensation was ignoranter concessa, 
 is declared improbable from the well known character of Queen 
 Elizabeth. The instance however, advanced, tends to con- 
 firm, rather tlian overthrow that opinion. Had the Queen 
 read the Statutes, with what propriety coidd she have ordered 
 the vibiUUiou fluted. The stalulable cleclion of the Pi;qvost \\m
 
 '60 
 
 (lie real Cause, as her Letter shews. " \Vc hear tliat the 
 *' Fellows of our College of Eton next Windsor, without our 
 " assent, and without our pleasure therein being by them 
 ^' sought, have chosen one to be their Provost, of whom an 
 *' evil fame is dispersed." Vide Strype. The case, as stated 
 by Strype, shews that the visitation was not by Statute, but 
 under a Commission. The reason for displacing the Provost is 
 not bad conduct or cliaracter, but because tlie election aws 
 seemingly without consideration of law or congruence. The 
 Fellows, likewise, who refused to acknowledge tlie commission, 
 were expelled. The Archi^ishop, who, as Visitor, was bound 
 to guard faithftdly the Statutes of Henry VI., thus writes to the 
 Secretary : " That he had sent him a copy of the qualifications 
 *' of the Provost according to the Founder's Statutes. Not that 
 *' cither that Statute (grounded on an Act of Parliament) or any 
 *' other should prejudice better order than was therein devised, 
 ** as some injunctions, which they should devise for their order, 
 *' should not be peradventure agreeable to the old Statutes." 
 
 That the Dispensation was granted at the instance and advice 
 of Sir 'i'homas Smith, is nothing but surmise ; others have 
 attributed it to Provost Day. But Sir Thomas Smith, Iiowever 
 great in abilities, was not very nice as to Statutes. As Jie 
 accepted the Provostship from Edward VI. in direct opposition 
 to the Statutes, and a Ijayman instead of a Sacerdos, on which 
 account he was removed by Queen Mary, 1554, notwithstand- 
 ing he pleaded a Dispensation of Edward VT. 
 
 The succeeding arguments are employed for the purpose of 
 inducing your J^ordship to countenance the presumption of 
 some legal and competent authority, according to the usage of 
 the Courts of Jjaw. With this uitent various cases are cited. 
 We shall not attemjit to examine them, as \\c do not admit that 
 any reference ought to be made to the practice of such Courts 
 in the present question. The plea of presumption can only be 
 set up when no original cause can be produced, and such is not 
 the case at present. 
 
 The Defendants when culled upon to stale upon what autho-
 
 61 
 
 rify tliey noted, and wlicllier tliey bad an Act of Parliament, 
 replied that (liey had no Act of Parliament, but transmitted a 
 copy of the Dispensation, allirming it to be of full and sulli- 
 cient authority. 
 
 Jn this Instrument no reference is made to any Act of Parlia- 
 ment, but it is evidently a grant originatiog with the Queen, 
 and an act of private grace and favour. 
 
 The terms contained therein have been complied with, and 
 acted upon both by the then existing- body, and all succeeding 
 Fellows to the present time. And the other Dispensations, 
 which we have quoted, prove that similar acts of Royal favour 
 Jiavebeen received, and deemed valid without any hesitation. 
 
 The Act of Parliament requisite, must either have been a 
 public Act comprising more subjects than the Eton Dispensa- 
 tion, or a private Bill confirming that gratit. 
 
 That a public Act should have perished without the least 
 Aracc of its existence being lct>, and that of so late a date as the 
 reign of Elizabeth, is we believe without example; nor will ifc 
 gain easy credit that even a private Bill should not have been 
 4ioticeil, ulien we find in the Rolls of Parliament during that 
 reign, Bills recorded, conlirming Lcttters Patent to other 
 Colleges. But that the Act in question should not only be los6 
 from the public Records, but even from the Archives of Eton 
 College, so completely that no copy, or trace, or even tradition 
 remain, is a matter in itself so incredible as to warrant a direct 
 opposite conclusion. 
 
 As therefore the Dispensation, which is allowed to be a veal 
 Act, whatever its defects maybe, refers its origin to theQueen'fi 
 will and ple:isure, or, in other words, the prerogative power as 
 at that time exercised ; the presumption of an Act of Parliament 
 is rendered entirely uimecessary. Admitting, however, the 
 authority of those cases, upon exanu::ation it will be fouml that 
 they do jiot ap|)ly to the question before your Lordship, inas- 
 much as the presumption of Grants, l/Ctters Patent, Charters, 
 and Records, allowed to be supplied in those cases, were all 
 cases, in which the Crown was capable of making such Grants, 
 -&c. But in a few pages foUow'uig} in thp same volume of M r. East's
 
 62 
 
 tieports, in the case of Goodlitle v. Baldwin, (Ilth East, 488) 
 where tliesamc arguments were used, the Court of King's Bench 
 decided that there could be no ground or room for the admission 
 of such presumptions, in cases Avhcre there existed a prior 
 Statute precluding the Crown from any such power, which we 
 contend the Statutes of Eton College do; consequently all such 
 instruments, even if they were actually granted, were void 
 ab initio, and lliose authorities therefore of no weight in the 
 present case. But it is somewhat extraordinary that the 
 Kespondents should be driven to implore your Lordship to 
 presume a Statute to authorise a measure, which from Queen 
 Elizabeth's time hitherto, they have ailopted, Avithout any 
 i-efercnce to any idea that any such Statute ever existed. And 
 before that time the only instance in which the Founder dis- 
 pensed with the Statutes, in (his respect, he made a special, 
 and not a general exception, which affords a contrary inference 
 to that the Respondents contend for. Such legal arguments, 
 however, we do not presume to touch upon, further than just to 
 state that we do not admit of their application, leaving all such 
 observations to our Counsel, if it should please your Lordship 
 to have the case argued before you upon legal grounds, in 
 which we pretend not to be conversant. 
 
 The supposition that the Founder himself left some Statute 
 empowering his successors to alter the Statutes, as the change of 
 times might warrant, is so directly at variance with the strict 
 prohibitions on lliis very point in the Statutes themselves, that 
 we beg leave to abide by them as our answer. 
 
 The expedience of the measure, which forms the most pro- 
 minent feature of the defence, and leaves nothing unattempted 
 to prove the breach of the Statute more beneficial than its 
 observance, we enter upon with reluctance, as having in our 
 Appeal avoided whatever might give personal oflence ; we fear 
 that on such an investigation it will scarcely be possible. We 
 shall, however, do our utmost endeavours. 
 
 Taking the matter in a general view, we cannot allow that 
 those persons, who obtained the Dispensation, looked forward 
 to any of those beneficial consequences; which arc attributed
 
 to this measure., Jior ilo we atlmit that (liey in any wise proceed 
 from (hat caus)C. liulcctl, of the various topics contained under 
 this head, there is not one, to uliich we cati give an unqualified 
 •iissent. 
 
 The election of actual Fellows from Kinij's College we claim 
 as our right, and therefore cannot admit the list adduced, asaa 
 act of good w ill and kindness, but on the contrary, wc conceive 
 that the election of every person not belo:iging to the College, 
 whilst a proper and tit candidate can be (bund in our Body, is a 
 Tiolation of the Statute, and infringement of our riglils. 
 
 The contradiction of our assertion that not the smallest notice 
 vas taken of the Felluvvs of King's in the disposal of their 
 jjiivings^ is u mistatement of our words, which ran thus : " In 
 the (irraiigcDicni of (heir Livings," alluding to the arrangement 
 which took place 1767, of ^hich your J/ordship has a copy. 
 The seven Livings {vdduced, confirm the truth of our statement, 
 being the presentations of individuals, and not of the Ijodj 
 collectively. " . 
 
 The following statement will shew more clearly what attention 
 Las been paid to the t'fjllows of King's College on this head. 
 
 From i440 to 1815, we arc unable to find more tlian 33 Fel- 
 lows of King's presented to Lton College Livings ; and, as we 
 before stated, since the arrangement of 1767, all these preseji- 
 iatious have beei» options, or private gilts to relations or friends'. 
 
 On the other side, nine Fellows of Eton have retained King's 
 College Livings with their Fellowships. 
 
 The enumeration of the Fellows of Kinir's, classed as to ace 
 and degrees, for the purpose of shewing the small number 
 (puilified for an Eton Fellowship, is by no means correct. The 
 tea Members ou tlic different lines maybe in Orders, or quit 
 those lines and take Orders, and even be presented to a College 
 Living, as slated in a decision by our V ibitor upon an A]'>pcal. 
 
 The eight iiacbt.'lor I'ellows may be rendered eligible by a 
 Xiambeth degree or mandate, at least such, we presume, must 
 liave been the case with one of the present Fellows of Eton. 
 
 The appointmeiit of the Assistants exclusively froju King's 
 CgilegOp which, is s«t forth as an extruoidiuary act of" kindness
 
 64 
 
 and attention, cannot be placed to the Fellows, such appointment 
 beii!^ in the upper and lower Masters. But the real motive for 
 the prelercnce given to Fellows of King's, must be ascribed to 
 the same cause, which induces the Heads of all similar Found- 
 ations to avail themselves of the services of those, who have 
 been brought up within their walls, as being well acquainted 
 with the customs and mode of education. To expedience, 
 therefore, rather than kindness, these appointments must be 
 placed. Our assertion that the Members of Kinjr's and the 
 Yioys of Eton are benefitted by a quick succession, will remain 
 valid, until it can be proved that superannuation is beneficial 
 to the one, and an early provision in life hurtful to theotiier. 
 
 In respect to Eton College, as the Fellows have little or no 
 concern with the management of the School, and no duties to 
 discliarge requiring knowledge from practice and experience, a 
 cht-nige would be scarcely noticed. 'IMiat the Provost has duties 
 \vhich require permanency, we readily grant. 
 
 The reply states, that the Statutes do not order their Livin«Ts 
 to be given to King's College; granted ; nor to the Fellows of 
 Eton, and a Benefice moreover is incompatible with a Fellow- 
 ship. In what manner then ought Trustees (for such we deem 
 the Provost and Fellows) to dispose of this property? To the 
 benefit of the Society in general, or of aliens, their own friends 
 and relations? The Scholars, who are undoubtedly Members, 
 are in their own persons incapable of taking any such Prefer- 
 ment, but can derive great benefit from a proper disposal of it, 
 if given to the Fellows of King's to promote succession. But 
 the case is still stronger; the prohibition is by some means 
 evaded, and each Fellow takes one Eton College Living ; this 
 act renders the property divisable, and as the Scholars have a 
 right not only to their statutable allowances, but to a participa- 
 tion of whatever beyond the letter of the Statutes may be divided 
 *' in comraunem utilitatem," their share of such property ought 
 to be disposed of as much as possible to their advantage, and 
 this can be effected no otherwise than by presenting Fellows 'of 
 King's, in order to prevent superannuation. In the time of tfie 
 Fouiidor, and even as he contemplated the future state of las
 
 65 
 
 College, tiie loss (jF King's College was not so mneli feU, as a 
 maintenance, ciotlun<»', and education, free from all ex pence, 
 were in tlicraselves olijecfs of the greatest value ; but according 
 to the present existing circumstances, the disappointment is a 
 very serious evil ; on tliis account the arrangement of 1767, by 
 assigning the whole of the Livings to the Provost and Fellows, 
 witlioiit any regard being paid to the interest of the Scholars, 
 appears unjust, neither can a continuation of such a system be 
 deemed less so. U is, therefore, a duty which tliey owe to their 
 own Members a!)stract('d from all good will to King's College ; 
 and instead of entering into calculation of chances, and exactly 
 detiuing rights, and balancing proI)abiliti('s, we venture to assert 
 that were all the Livings, even those held by the Fellows tlieui- 
 sclvcs, presented to the Members of King's College, for the 
 purpose of benefiting at the same time the Scholars of p]ton, and 
 the Fellows of King's, they would be found a very inadequate 
 compensation for the privations which the one part has under- 
 gone, and the other is still labouring under. 
 
 The object of the Founder is well known to have b'cn the 
 promotion of learning and religion, but the Statutes will shew 
 that he did not conceive that affluence necessary for this pur- 
 ])osc, which is laid claim to, and indeed enjoyed, under the 
 assumed plea that such was the intention of the Founder. 
 
 The allowance set forth by Statute to each Fellow, of a single 
 room, a gown, commons at 2s. per week, and a stipend of 
 £10. per annum; with all the ilitlerence that can be granted in 
 the value of money, gives no sanction to a claim beyonil that 
 of a moderate income. Neither did it enter into his plan, that 
 the respectability of his Fellows should rest upon splendour, 
 and magnificence. In order to ensure respect, he enacted 
 Statutes, punishing even with expulsion, such as failed iu 
 duty and obedience : but he left it to the wisdom of the Fellows 
 to ensure the esteem of the Scholars by their behaviour and 
 attention. The hospitalily enjoined by the Statutes was relief 
 to the mendicant btranger, as set forth in the Statute de 
 liospitalitate. 
 
 The privation of properly by Ldward IV. has not in tlie
 
 66 
 
 least impaired the income of a Fellow, and the support of a 
 family is directly contrary to the intention of the P'ounder. 
 
 Should even some external shew be snpposed necessary for 
 preserving authority, the very means resorted to, defeat the 
 proposed end. The greater the number of Livings be, whicii 
 each Fellow possesses, the less he resides at Eton, and conse- 
 quently is less seen and noticed by the Boys. 
 
 To the Fellows of Eton, no person acquainted with the 
 internal management of the School can possibly attribute its 
 flourishing state; much of this depends upon the caprice of 
 parents, still more on the conduct of the Master. 
 
 The asylum of the Cloysters, which is held forth as the 
 honorable retirement for those, who have been labouring in the 
 School, will be found upon examination to have received few of 
 its ?>Iembers from that class. And it appears from the list of 
 Fellows, that out of 230, not more than 20 have been chosen 
 from the Assistants ; and that even at this time it is not a settled 
 practice, the late election will prove, at which a person, who 
 had never been an Assistant, was chosen in preference to three 
 Candidates, of whom two had been for many years Assistants, 
 and one was actually in that situation. Upon a review of the 
 arguments brought forward under the head expedience, it will 
 appear that the Member of King's College can experience the 
 kindness of the Fellows of Eton in three points only, namely, 
 the Livings, the election of Fellows, and the appointment of 
 the two Masters. In respect to the Livings, seven of them are 
 stated to be holden by King's luen at present, out of these, 
 three have been given by Provosts. One by Provost Roberts, 
 which procured a resignation for his son ; one by Provost 
 Davies, for the promotion of succession, the very point for 
 which we are contending, (and we here take tiie opportunity of 
 gratefully acknowledging his farther good will in a legacy of 
 ^2000. for tiie purchase of Livings ;) and one by the present 
 Provost. Four, therefore, only remain to the Fellows, and 
 when two of these are known to have been presented to a near 
 relation, the list will not tend greatly to shew their kindness on 
 this head, la respect to the election of Fellows, Oiie instance
 
 67 
 
 nione can be brought of tlie election of an actual Fellow, and 
 that person tlie son of the Provost, and previous to his A.M. 
 de/j^ree in the University. 
 
 The ap^)()iatment of the two Masters, we liave before 
 explained. In all the other instances and argumejits, the 
 Fellows are either very sliiijlstly or not at all concerneil : but we 
 affirm that in no degree whatsoever, directly or indirectly, any 
 one of the subjects quoted under expedience, is caused, ])ro- 
 .niotcd, or influenced by the tenure of Ecclesiastical Preferment 
 v.ith a Fellowship. 
 
 We beg leave, therefore, to submit to your Lordship tlie 
 following observations; the present defence inaterinlly differs 
 from that transmitted to King's College ; the Dispensation 
 being apparently abandoned as invalid, unless your Lord&hip 
 be pleased to sanction one of the two presumed audiorities, 
 cither an Act of Partiament, or a subsequent Statute by the 
 Founder. The present defence is grounded upon Statutes, 
 but how such Statutes authorise previous or subsequent pre- 
 sentation is not set forth, nor attempted to be explained. 
 Practice is directly at variance with any such construction ; and 
 lastly, the expedience so much isisisted upon does not stand the 
 test of examination. 
 
 We should have closed our remarks as above, had not the 
 reply made frequent allusions to t!ie election of Eton Fellows, 
 denying any priority of claim on our part. We therefore 
 humbly beg leave to submit to your Lordship's judgement the 
 Statute of Eton *' de electione Sociorum," as we conceive that 
 the present system, even regulated as it is by Archbi^liop Laud, 
 to be unfair and injurious to the rights of King's College. Tlie 
 Statute runs thus: *' De Sociis Coliegii nostri Regalis Canta- 
 " brigia3 vel de his qui prius fuerunt in eodem et ex caus's 
 " Ileitis et honcstis recesseraut ab ipso vel de Pre.sbyleris 
 *' Conductitiis ejusdcm Coll. de Etona vel de iis qui prius 
 *' fuerunt in eodem habllcm et sufficientem aut alias de 
 '• Collegiis vel locis aliis juxfa ipsorum discrefionem nomincnt 
 '•' vel cligant Presbytcrum." We contend that according to 
 
 • r 2
 
 68 
 
 ihe true conshuction of the Statute, the election ought to pro- 
 ceed in the precise order therein set fortli, namely, that the 
 Electors having sworn to lay aside all hatred, partiality, and 
 afTection, should choose from the actual Fellows of King's 
 College, a Member, or Members, provided such can be found 
 therein, " habiles, et sufficientes," in default thereof from 
 (hose who had been at King's, and so on proceeding from class 
 to class only in default of a person or persons not being found 
 '' habiles, et sufficientes" in the immediate preceding class. 
 And we deny that an indiscriminate choice from any one of the 
 classes stated, is either allowed, or consistent with the intention 
 of the Statute. 
 
 Our reasons for the above assertion are as follow : — 
 
 That the construction of the sentence, according to the plain 
 and grammatical sense, is thus best preserved, it being a 
 positive injunction, and not alternative as to the Fellows of 
 King's, being without any " vel" preceding, which is an evident 
 sign that the mind of the Founder, in the first place, determined 
 the choice to be made out of the Fellows of Kin<j's Colleire, so 
 long as tiiere were able and sufficient men amongst them to be 
 found ; but as on account of the times such deficiency might 
 happen, he goes on to prescribe the order in which the Electors 
 arc to proceed in their choice. 
 
 That the absurdity of laying open the election to all persons 
 indiscriminately, having previously set forth certain persons as 
 entitled to a preference, is thereby avoided. 
 
 The Statute itself, as admifted by Arclibishop Laud, was 
 taken from the Winchester Statute, designated in the rej)ly, 
 the prototype of Eton College, which Statute runs thus : — " De 
 ^' Sociis Col!, nostri Osoniai vel iis qui prius fuerunt in eodern, 
 " et causis Ileitis, et houcstis recessernnt ab ipso, primo qui 
 " sufficienter sciatet valcatpricdictic capclke juxtaordinationes, 
 " ci Stuluta Coll. nostri prope Wintoniam deservire, delude 
 ^' de Presbyteris conductitiis, vel de iis qui prius fuerunt in 
 ^' eodem habilem, et sufficientem, ac poslea de CoUegiis vel 
 " locis aliis juxtadiscretioncm ipsorum uomiucnt, &c."
 
 69 
 
 Upon tlic iiijunclions of the a)>ovc Statute ^ve uiuleisland tliat 
 the Fellows of New College, Oxfbid, are invariably chosen 
 Fellows of Winchester, and the Archbishop admits that the true 
 meaning of the Eton Statute demands the same order of election. 
 The preference due to the Fellows of Kind's College has been 
 allowed, and acknowledged, not only by those to whom the 
 point has been submitted, but even by the Fellows of Eton, 
 who in the year 1755, in the case of a lapsed Fellowship, 
 addressed the following Letter to the Visitor. 
 
 " Speramus autem Paternitatem tuam cam ralionem habi- 
 
 " Inram hujus honoratissimi Collegii quam Fundator cjusdem 
 
 " {Jenry Vl. l>ona3 mcmoria) Ilex in te reposcit. Et quia du- 
 
 " bitamus an unquam Paternitas tna Statuta nostra perlegerit, 
 
 " uecessariuni existimamns si£;nilicari Paternitati tua? liberum 
 
 " esse undccunque hominem idoneum as;5uniere, vcl nominarc 
 
 " cum liac tanien cautione ut qui in Collcgio Regali Cantab. 
 
 " cducati sunt ca^teris ouniibus prieferantur." 
 
 VISITOR'S REPLY. 
 
 *' Et quia nullus in Coll. Reg. Cant, educatus quern 
 *' omnibus pr:i,'ferri Statuta Coll. Pra^dicti postulant prout 
 " per litcras vestras fuit iutimalum nobis sese olUulit pra]- 
 " ferendum." 
 
 It must be evident that t!ie admission of the preference, 
 allowed both by the Fellows of Eton, and (he Visitor, can 
 depend only upon the election being carried on according to 
 the order prescribed in the Statute, and as such obligatory autl 
 binding, not voluntary and arbitrary. 
 
 As then the Fellows of King's College liavc hitherto had 
 cause to lament that the Archbishop, contrary to his better 
 judgement, and in opposition to the well known maxim " Quod 
 " non valet ab initio tiactu temporis non convalescil," should 
 by a decree irregular and unslatutabl;,', have given sanction 
 to a practice founded upon a perversion of the Statute, and 
 iiUraduced during the turbulent and unsettled stale oi the (wo
 
 70 
 
 Colleges ; so Me liumWy trust ti)at your Lordship, xiyon a full 
 examination of our reasons, as above staled, will be pleased by 
 a true interpretation, to replace the Fellows of King's in that 
 rank and order of election, which our Founder reserved for 
 thein when he prohibited their removal to any other College* 
 as long as their abilities and conduct should entitle their 
 Members to such a situation. And iarther privilege than this 
 •we neitljer seek nor expect. 
 
 Filially, we implore your Lordship to take info your con-» 
 sideration the beneficial consequences which must ensue to the 
 Mensbcrs of both Colleges, as long as these Foundations shall 
 maintain their existence, coeval indeed, as we trust, with tiie 
 British Constitution itself, should your Lordship re-establish 
 us, by a decree, in our long with-held rights. A decree which 
 will not only ensure peace and liarmony for succeeding ages 
 between the two Bodies, but fulfil the will of our Founder as 
 expressed in his charter, " Ut dicta Collegia nostra quae de 
 *' propitio mutui amoris fiaterni peri)eluo fcedere connectan-^. 
 *' tur, eo perfectionc ampliorcque unitate et dilectione mutuu 
 *' solidius tirmentur quo persona; dlctorum CoUegiorum sicut 
 " uniub duntaxut Fundaliojiis auctorilale fulciaiitur."
 
 71 
 
 COPY OF THE VISITOR'S DECREE. 
 
 On tlic fifth (lay of August, in Uic year of our Lord 
 One Thousand Eight Hundred and I'iftcen, before the Right 
 lleverend Father in God, George, Lord Bishop ofLincohi, 
 V^isilor of King's College, Cambridge, and of Eton College, 
 and Interpreter of the Statutes of the said Colleges ; at the 
 Palace of the said Right Reverend Father in God, situate at 
 Buckden, in the county of Huntingdon ; present, the under- 
 signed Notary Public and Actuary Assured : 
 
 A business of Appeal and Complai7it promoted and 
 ■brought by the Provost^ Fellowsy and Scholars of 
 Jung's College, Cambridge ^ 
 
 AGAINST 
 
 The Provost and Fellows of Eton College. 
 
 The Visitor having maturely deliberated, and, by and with 
 the advice of his Assessors, the Right Honourable Sir William 
 Grant, and the Right Honourable Sir Vv'^illiarn Scott, pro- 
 nounced against the Appeal, and declared that the Fellows of 
 l^Jton College were enabled to hold one Benefice by virtue of the 
 Dispensing Statute of Queen Elizabeth. 
 
 He likewise enjoins all future Fellows of Eton College not to 
 exceed the indulgence granted by the Dispensing Statute, by 
 attempting to hold more than one Benefice, whether taken 
 before or after their election, in conjunction with their Fellow- 
 sliip. 
 
 The Visitor directs that this Decree be entered in the Book 
 of Statutes belonging to Eton College. 
 
 Which I attest, 
 
 George Jenner, ' GEORGE LINCOLX, 
 
 Notary Public, 
 
 Actuary Assured. • (L.S.)
 
 n 
 
 The Provost and Fallows of King's CuIIcge, hSwg by no 
 means satisfiod, as may well be snijposcd, v,'\i\\ the Visitor's 
 decision, addressed a second Appeal to him soon after the 
 promuig-ation of the above decree, in the following terms : 
 
 To the Right Reverend Falhtr in God, George, Lord 
 Bishop of Lincoln, Visitor of King's College, Cambridge, 
 and of Eton College. 
 
 MY LORD, 
 
 We, the Provost and Fellows of King's College (our du(y 
 and submission to your liordship's decree premised) humbly 
 present ourselves to your Lordship as Appellants, in behalf of 
 ourselves and successors, against the acceptance and use of 
 the Dispensation of Queen Elizabcih by the Fellows of Eton, 
 as being a direct violation of the ca<h, which each candidate 
 elect must necessarily take, in order to qualify himself to 
 become an actual Fellow: — " Item quod lion impetrabo Dis- 
 *' pensationem aliquam contra juranienla raea prredicta et 
 '' contra ordir.ationes et Statuta de quibus pra^miltitur ant 
 " ipsorum aliquod nee Dispcnsationeni hiijusmodi per n;e 
 " alium vel alios publico vel occulte impetrari aut fieri pro- 
 " curabo dircctc vel indirecte et si forsan aliquam hujusniodi 
 " impetrari vel gratis offerri aut concedi contigerit cujns- 
 " cunquc fuerit aucloritate sen si generalitcr vel spccialiter 
 " aut alias sub qnacunque forma verborum concessa ipsA 
 *' non utar nee eidera conscntiam quovismodo sic me Dcus 
 '' adjuvet et hac saiicla Dei Evangelia." 
 
 This oath, we conceive to have been deemed by our T oimder 
 
 so strong an obligation on the conscience of the Members of his 
 
 two Foundations, as to render them utterly incapable of making- 
 
 use of any Dispensation, vvliich his successors, regardless of his 
 
 prohibiiion, might be induced to grant. Actuated by motives of 
 
 general utility to the two Colleges, we submit to your Lordship 
 
 this our Appeal; humbly praying that by virtue of your 
 
 visitatorial power, you Avill be pleased to decree, that all future 
 
 Fellows of Eton are restrained by this oath from accepting and 
 
 ci'.joying any Dispensation, at whatever time, and by whatever 
 
 authority, it may have been, or shall be hereafter granted. 
 
 King's College, Cambridge, Dec. Jblj.
 
 73 
 
 The Visitor Imvin;^, wliilst the former Appeal was niiclcr 
 consideralioti, deciarcd (hat ho -was ready to receive any com- 
 rnufiicatioDs uponthe subject from any individual, tlie following 
 observations upon the admission oath of the Fellows of Eton, 
 were addressed to him, l)y a Member of King's College, afcvr 
 days after the second Appeal: - . 
 
 MAY IT PLEASE YOUR LORDSHIP; 
 
 The Founder of Eton College devised, and appointed two 
 safeguards for the preservation of the Statutes. The one, a 
 proiiibition to his successors or other persons against allering, 
 interpreting, or dispensitig with the Statutes in general, or any 
 l)art of tliem, guaranteed by an Act of Parliament. The oilier, 
 by a general oath from each Fellow at his admission to keep liis 
 Statutes, as set forth by him; and moreover, by a particular 
 and special oath against suing for, accepting or using any 
 Dispensation. 
 
 Of these two defences, the first has been destroyed by Queen 
 Elizabeth arbitrarily granting a Dispensation, in opposition to 
 an Act of Parliament. 
 
 The second forms the subject of the present Appeal. 
 
 In order to understand the matter fnliy, it will l)e necessary to 
 examine this oath in respect to the Dispensation itself, to the 
 I'ellows cf Eton, and the nature aisd importance of the oath 
 itself. 
 
 The Dispensation in tlie present case is not (obe considered in 
 respect to the p^ower of the Crown, but as to the extent of the 
 terms in which it is drawn up. Now in these, not the slightest 
 allusion is to be found to the oath, and surely no implied sense 
 can be used for the purpose of giving a meaning beyond what is 
 actually contained in the v/ords used by the Queen : if defective, 
 to whatever cause such defect may be attributed, it must abide 
 by its defects, until some new power can be found to grant 
 anabsohition, or Dispensation, full and complete. If a man make 
 a mistake in his will, the Legatee must abide by the terms;
 
 74 
 
 and a deficient Act of Parliament cannot be rectified by a con- 
 structive meaning, but must await amendment by the same 
 power which enacted it. 
 
 The Dispensation suspends those Statutes, which forbid tlie 
 tenure of Livings, and enjoins the Provost to permit the Fellows 
 to enjoy tliis grant, notwithstanding any Statutes to the contrary. 
 In all this, not a word is nien(ioncd of the oath, which cacli 
 Fellow has already taken ; (and if tiie oath had been known to 
 the Queen, this was the place to have mentioned it, for the 
 conscience of the Fellows required relief on this point by some 
 more explicit and effectual mode, than an injunction to the 
 Provost not to interpose his authority.) 
 
 A special oath required a special release. When the 
 Founder dispensed (a right reserved to himself) with Ihe 
 Statutes, or altered them, the extent of the alteration or Dis- 
 pensation is marked with the greatest precision. Can it then be 
 supposed tliat a power assuming his authority, and imitating 
 him, would act intentionally witJi less accuracy, and expicct 
 obedience, by a supposition of its will on those points, which it 
 had not even noticed, and yet so important as to require 
 particular attention; for such importance cannot be denied to 
 the oath in question ? 
 
 The Oispensation, therefore, cannot but appear defedive as 
 to ihe oath ; but as it cannot be doubted that the Queen intended 
 to efi'ect wiiat she set forth, to wisat can we attribute this, but 
 her ignorance oi the existence of such an oath : whicli could 
 only be ascertained either b}^ her reading the Statutes, or by 
 the recital of it in the petition for the Dispensation. 
 
 That her Majesty should have read tlirough such a work, 
 is scarcely piobable, or that, if she had done so, she would have 
 left unrsoticed so iniportant a point : aiid if the preamble to the 
 Dispensation recites, as it appears to do, the words of the 
 petition, as not the smallest hint is given of the oath in question 
 it was impossible tor her to coiijecture, or even sus])ect its 
 existence. 
 
 It was the part of the petitioners to stale the matter in general 
 terms, that the Queen might believe that she dispensed wilU
 
 75 
 
 merely certain Statutes forbidding; (he (enure of Livings, as it 
 certainly must have excited her astonisliment, had she known 
 that the Fciiiioners iiad piedi^ed themselves by a most solemn 
 oath, neither to sue for, nor accept, nor use any Disijensation. 
 Th(! defect thcMi must be attributed, not to th(; neglect or over- 
 sight of the Qiu'en, but concealment ou the part of the 
 Petilioners. 
 
 In this assertion we are borne out by the consideration of the 
 second part, viz. the conduct of the Fellows in respect to the 
 oalh, which cannot but appear most extraordinary. In direct 
 violation of the oath, the Feliows petitioned for this Dispensa- 
 tion as a body, and as to individuals, J. Chambers, as well 
 as nsany others, from the reign of Elizabeth to the year ]769, 
 sued for and used sucii relief irom the Statutes without any 
 aj)parent concern or reluctance. Uarsli as it may seem in 
 accounting lor such conduct, we are coaijielled to accuse them, 
 eithgr of omitting the oath at their admission, or of being 
 totally regardless of its obligation, or of mental reservation ; no 
 otiier reason can possibly be suggested. 
 
 As, however, so many persons, and those of high character 
 in other respects, are in5j»!icated in this charge, we can scarcely 
 believe that they inteniionally disregarded their oath, but at- 
 tribute their conduct to the omission, a cause indeed less heavy, 
 but of a serious rmlure. 
 
 This omission of the oath Itas indeed frequently been 
 rumoured, but the llev. lioger iiugget, Conduct of Eton, 
 in his books now in the ilrilish Museum, directly accuses them 
 of it, and states the time and ])lace where, being himself pre- 
 sent, he heard a Fellow, whom lie names, ifi a conversation 
 upon this very sul)jcct declare, tiiat he never Imd taken the 
 oath, and never would have taken it, as he could not have 
 used the Dispensation without perjury. 
 
 The accuracy of the above person has been called in ques- 
 tion, and in a collection of facts in many folio volumes, it is 
 very possible that things may have been admitted which are 
 not correct, but in this case, as he heard the speech, which 
 lie quotes, it must be a wilful act of misrepresentation^ and not
 
 76 
 
 incorrectness. It is likewise stated by him, that in the Provost's 
 Statute-Book, which is the general book used at the admissions, 
 the oath in question is marked at the side, and sucli will be 
 found to be the case, although the marks are now faint from 
 their antiquity. 
 
 The omission of oaths at the present time, which are equally 
 enjoined by the Statutes, gives a great degree of probability to 
 the charge, to say the least of it. The omission, however, must 
 liave depended entirely upon the will of the person admitting 
 the Fellow, and therefore in some cases, perhaps, did not take 
 place. 
 
 The oath itself, as far as we can find, was first introduced by 
 William of Wickham into the Statutes of his Colleges, and 
 Henry the Sixth, taking these for his model, inserted it in the 
 admission oaths, to be taken by the Provost and all other mem- 
 bers of his two Foundations. It was likewise used by Provost 
 Waynileet in his Statutes for Magdalen College, Oxford. — 
 And lliis oath forms a striking difference between these Colleges 
 and all others, whose members only swear to observe the 
 Statutes. 
 
 At the late hearing at the Court of Doctors' Commons, little 
 notice was taken of the oath ; ]Mr. Abbot did not mention it ; but 
 llie Eton Civilian stated, that it was directed against the Pope, 
 and not agaiiist the King. — 'j'his assertion is certainly liot cor- 
 rect, as the succeeding Kings are noiuinally prohibited from 
 dispensing with theSiaiuies. I>ut whether correct or not, it tends 
 to a conclusion very dili'erent from the intended one, namely, 
 a confutation of his own argument. The Civilian maintained 
 llie dispensing power of the Pope from the earliest times, and 
 (.cr.lc'ndi-ii, fiiat all this power descended to Henry the Eighth 
 l)y A(t oi i*arliament; and that again it was revived by Act of 
 Parliament in Elizabeth, and continued in the Crown at least 
 (ill the Ilevolution. Now if this oath formed a bar to the 
 Pa{)al Dispensation, (as it was framed by a Bishop, who must 
 have been a competent judge of the Papal rights, and inserted 
 by Henry Vl., whose character is too well known to permit the 
 jsuspicion of his atienipiing any thing derogatory to the Pope,
 
 of -wliom he even obtained bulls for the foundation of his 
 Colleges, and as moreover his Statutes were compiled by the 
 first lawyers of his time,) it must have been equally so to 
 Henry the Eiglitli, as far as his authority was derived from 
 the Pope, ami likewise to Elizai)eth ? and thus, from the 
 Civilian's own arguments, the Crown possessed no power of 
 dispensing with this oath. 
 
 The admission oaths have been of great importance as a 
 defence of the College of Eton. 
 
 Edward the Fourth, at his accession under the Act of 
 resumption, guaranteed the rights and privileges of Eton 
 College ; but within a few years he changed his mind, and 
 wislied to destroy Eton College, and unite it to his liivourito 
 ibundation of Windsor : to effect this, he did not make use of 
 his prerogative, but wrote to the Pope, stating, that iicnry the 
 Sixth had founded a College at Eton, which was useless and 
 incomplete, as no chapel was buiU, and desiring him to 
 absolve the Provost and Eellows from their oaths, and order 
 them to surrender their riglils and charter to Windsor; and 
 accordingly Eugenius the First issued a Hull, absolving them 
 from their oaths, and ordering them, under a heavy anathema, 
 to surrender everything to Windsor College. Provost West- 
 bury refused to oI)ey this tJnl!, ar.d entered a protest against 
 tliis power of the Pope, as having sworn to defend the rights of 
 tlie College, and to accep/t no absolution from his oalli, de- 
 claring, that -whatsoever he might surrender would be und; r 
 corporal fear. In this opposition he continued, and kept the 
 College together many years (about l.">.) The King alter- 
 Avards changed his mind, and ^vrote to the l\)pe, desiring the 
 Jjull might be recalled, as he hod Ijeen misinformed in respect 
 to Eton, which he now found to be of great utility. The Pope 
 Eugenius the Second wrote to the .Arclibisliop of Canlerbiuv, 
 desiring him to exanune the atlair, and withdraw the Bull. — 
 To what can the preservation of Eton College be attributed, 
 but the resistance against the Papal power^ grounded upon the 
 Provost's oath.
 
 78 
 
 The oath against Disponsaiion was likewise pleaded by Eton 
 College against King Charles II. upon the election of Dr. 
 Cradock, when, after a liearing of Counsel on both sides, before 
 the Privy Council, the election was established to the exclnsiou 
 of tlie Provost Waller, sent by the King, who, as a layman, 
 had received a Dispensation from the Statutes on that point. 
 
 To the unwillingness of the Fellow in 1769 to sue for a 
 Dispensation, as it appeared to him a direct violation of his 
 oath, the new construction of the Statute respecting church 
 prefiL^ment is due. 
 
 This oath likewise formed the sole defence of Ma£:dalen 
 College against tiie arbitrary power of King James; the mem- 
 bers of which did not deny his Majesty's power to dispense 
 with their Statutes, but their own ability to accept and use any 
 Dispensation, as being uHder the superior obligation of their 
 oath. 
 
 The difficulty arising from this oath was always felt and 
 acknowledged by those, who wrote in defence of King James's 
 measures, who lamented that Founders should insert such 
 obligations, which only tended to perplex scrupulous con- 
 sciences, and afford uniijrages to such as are unwilling to yield 
 to their superior's dispensations, to insist more earnestly and 
 tenaciously upon this obligation. 
 
 Jf then the obligation can be pleaded against a compulsory 
 act, surely it must be stronger in the present case, where the 
 acceptance is voluntary on the part of tlie Fellow. 
 
 To the ignorance of the extent of the Dispensation the ready 
 acquiescence of the greater part of the Fellows may be attri- 
 buted ; few have read the graiit, but it has been acted upon as 
 a matter of tradition rather than deliberation. Can the same 
 excuse be hereafter alleged by future Fellows ? Can they 
 with a safe conscieiice continue to take this oath, knowins; 
 that they are about to use a Dispensation, which they specially 
 bind themselves to God not to use? 
 
 As, therefore, t!ie present Dispensation does not even notice 
 or affect to repeal the admission oa'h, the obligation remains 
 6>till in fcrce upon the consc^Mice of the person bworn, so that
 
 79 
 
 lie cannot possibly use tlic grant without a direct and volujiiary 
 violalion ot" this solciun ciig;i£:en)efit. 
 
 And tliat he may not by any subfcrfiij^'c or oniission, or plea 
 of custom, enjoy uilh impunity the fruit ol' iiis violalion, the 
 Founder has appointed a V isitor as guardian, under tixed and 
 prescribed powers, of his Statutes, siriclly for!)idden iiimsclf 
 to make, or to allow others to make, any aUeration. 
 
 To the wisdom and judgement of this projector, the redress 
 of this breacli of the Statutes, by the lu^llows of i^ton, is 
 humbly, but confidently submitted by the Fellows of King's 
 College. 
 
 We must here observe that the above observations, for 
 reaRons best known to the author, \>ere sent to tin; \' isitor 
 without a name ; they uiiglit not, therefore, claim that alteii- 
 tioa, which we tliink they deserve.
 
 80 
 
 The following is the decision of the Visitor upon this second 
 Appeal : 
 
 On Monday the eighth day of April, in the year of our Lord 
 One Thousand Eight Ilunflred and Sixteen, before the Right 
 Reverend Father in God, George, by Divine permission, 
 Lord Bishop of Lincoln, VisUor of King's College in the Uni- 
 versity of Cambridge, and of Eton College, and Interpreter of 
 the Statutes of tiic said College, in the Deanry House, London, 
 situate in Dean's Court, London : 
 
 A Business of a Second Appeal and Complaint, promoted 
 and brought hy the Provost and Scholars of King's 
 College^ 
 
 AGAINST 
 
 The Provost and Fellozcs of Eton College : 
 
 The Lord Bishop of Lincoln, Visitor of King's College, in 
 tlie University of Cambridge, and of Eton College, declared 
 that he had taken for his Assessors, the Right Honourable Sir 
 William Grant, Knight, and the Right Honourable Sir William 
 Scott, Knight, Doctor of Laws, and assured George Jeniicr 
 to be his Actuary, and i-.c then (by and with the advice of the 
 said Assessors, as he declared,) dismissed the said second 
 Appeal, and pronounced thai the o:.di now taken by the Fellows 
 of Eton College against obtaining, or using a Dispensation, is 
 to be understood as applying to the Statutes of the said College, 
 as the same stand moditied by the Statute* of Queen Elizabeth, 
 and is limited in the exient of its obligation thereby, and that 
 this was implied by the decision given upon the former Appeal. 
 
 Which I attest, 
 
 George Jenneb, GEORGE LLNCOLN. 
 
 Notary Public, 
 
 Actuary Assured. (L. S.) 
 
 *" Vid. Remarks on WUliam&'s Report. — Noiebj/ Edit.
 
 To tl](; above tlocuments we hesi; Iravc to subjoiti tli^ 
 followi)i<r observations upon Mr. Williams's report of t!ie 
 pleadings : — 
 
 Mr. Williams, wlio foiiriil it necessjiry to abridge tlie case, 
 lias filled two p:i'^-es wiLJi an altesnpt to correct a mistake, as 
 he tertns it, into wliicli both parties have fallen respecting tlid 
 election of the Winchester Fellows from t!ie actual I'ellows of 
 New CoHeire, which he denies to I)e on account of the Statute, 
 or to have been a universal though a general practice. As, 
 iiowcver, Arclibishop Laud, an Oxonian, upon an appeal of 
 King's College, 163'S, states such to have been tlie invariable 
 custoiu, and founded upon the Statute, and Wood, the 
 Oxonian Antiquarian, asserts the same, if this practice hi\(^ 
 been departed from in a single instance of late date, and thiit 
 under the peculiar circumstance of a fatiier, who had resigned 
 his Fellowship to make room for his son, being re-elected upon 
 the premature death of that son, still the uninterrupted prac- 
 tice of upwards of four centuries v.ill bear out the assertion of 
 its universality as well as statutableness. 
 
 Mr. W. in the small portion of the work, which can be 
 called his own, iiamelj, the introduction, is far from accurate. 
 
 Page ix.'J — instead oi mujorili/ it should have been all 
 the Fellows. .. ^ • ' 
 
 Ibid.'] — The appeal docs not laj a claim to the Livings, but 
 states tJjat such a disposal would be agreeable io the Founder's 
 intentions, and this is contirmed l)y Archbi&hop Laud's 
 opinion. 
 
 Page xiv.] — TIic time called reasonable was not thought 
 so by the Visitor, who, having waited eight months, called 
 for an answer, and after repeated letters, compelled it to be 
 given in at tlie end of ten montlis. The real history of the 
 answer is as tbllows : Upon the apjjcal being received, the 
 Provost of Eton at first doubted the power of tlie Visitor; 
 this being over-ruled, every attempt was made to induce the 
 appellants to withdraw it ; these failing, time was requcifcd
 
 for examining records, &c. &c. The case was then entrnsleil 
 to a Civilian, who drew up an answer, which, however, fell 
 so short of the expectation of the Fellows of Eton, that it was 
 rejected with acrimony ; and, upon the pressing letter of the 
 Visitor, Mr. (now Judge) Abbot was applied to, and drew up 
 the answer as given in. 
 
 Ibid.'] — The long sentence upon the cause of the appeal 
 being carried into a public court, might have been spared, 
 being totally groundless. The Visitor wrote officially to K ing's 
 College, stating that, having read the appeal, answer, and 
 reply, he was ready to give his decision, but that the Fellows 
 of Eton had earnestly requested that they might be heard by 
 Counsel, and as they were so materially interested, he had 
 consented, and therefore he ordered King's College to provide 
 themselves with a Civilian and common Lawyer. 
 
 Page xv.] — Mr. W.'s reasons for curtailing, and garbling 
 the appeal, answer, and reply, are by no means satisfactory. 
 The majority of those likely to be readers of his book, were 
 those connected with the two Colleges, and as much contra- 
 diction had prevailed from ex parte representations, it was 
 earnestly wished that the whole case should appear as delivered 
 to the Visitor. Only some few pages more would have been 
 required for this purpose. As a legal case, it cannot be of any 
 value, as the dispensing power was not entered into with suf- 
 ficient depth or research by the Counsel, and the Assessors 
 (possibly as sitting in a Court of no authority, but certainly 
 for reasons best known to themselves) declined the exposition 
 of their sentiments. 
 
 In the Report many points of the appeal are omitted, which 
 deserved notice, such as the case of Magdalen College, 
 Oxford, and the injury sustained by King's College from the 
 retention of their Jjivings by the Fellows of Eton, an injury 
 so far admitted even by the Fellows themselves, that an offer 
 was made that it should never be repeated if King's College 
 would withdraw the appeal. 
 
 In the answer of the Fellows of Eton many points of equal 
 hiipor.iincc duc left out, but with this dillcrencc, that Mr.
 
 83 
 
 Abbof, wLo drew up the case, introduced all his legal argu- 
 ments into Ills sj)ecch before the Visitor: but the whole of the 
 arguments upon the expediency of the breach of Statute are 
 omitted, upon which the Fellows of Eton laid so great a stress 
 that the reader would be tempted to cry out, 
 
 *' Cura quid cxpediat prior est quam quid sit lioncslum." 
 
 In the reply of King's College the omissions are more nu- 
 merous, and as these omitted passages were direct answers to 
 assertions made by the Fellows of Fton, they were important. 
 Dates in many places are left out, and pages of reference to 
 Statutes. But more particularly, in order to correspond with 
 the omissions in the Eton answer, the whole reply to the expe- 
 diency is passed over. • , 
 
 Mr. W. allirms that the substance of the pleadings is stated 
 in the precise order, and language, in which they were exhi- 
 bited, Did this assertion rest entirely upon Mr. W.'s accuracy, 
 little credit could be attached to the Keport, as the speeches 
 were not taken in short-hand, but merely from notes. But 
 Mr. \V. took a more ccrlain course, by submitting his Re- 
 port to the respective pleaders, who thus, by correcting, and 
 revising their own speeches, have stamped upoii them aa 
 authenticity. 
 
 We take this opportunity of noticing an assertion made in 
 the appeal, of the probability that the Dispensation was granted 
 " ignoranter," Avhich is declared improbable in the Eton 
 answer. In Strype's Life of Archbishop Parker, (p. 315.) it 
 is slated, that one Wood, a Fellow of All Souls' College, 
 privately obtained a Dispensation from Queen Elizabeth, con- 
 traiy to (he oath he had taken not t(i sue for nor accept one. 
 The Warden and Fellows refused to abide by this, and wrota 
 to her Majesty, who referred the matter to the Archbishop. 
 Although great interest was made in Wood's behalf, tlie 
 Archbishop decided that he had " stepped into manihst 
 perjury to sue for a Dii^pensation agaitist the Founder's 
 Statutes." This case is parallel with lluit of the Fellows of 
 Eton, and with respect to those, who made suit to the Qiuen,
 
 84 
 
 and accepted tbc Dispensalionj must be liable to the same 
 sentence. 
 
 Page 63.] — "This specious, and indirect reasoning," as it 
 is truly called, is completely proved to be false by examining 
 the case.* John Sever was Provost at tlie time of Clerc's elec- 
 tion, and upon his resignation Willi;im Waynfletc, made Fellow 
 one year after the dispensation to J. CIcricus, was appointed by 
 Henry VI. to be Provost. Upon his removal to the See of 
 Winchester J. Clerc was made P/ovost, not ho\vev(T by the 
 King but the Fellows, the King, altiiough he liad reserved to 
 Jiimsclf the right of appointment, having waved it in this 
 inslancc. 
 
 Page 61.] — The case of Boswcl is very cxtrnordinnry, 
 unless there were two persons of that name. He appears to have 
 lield no less than three liyings. And ii» the case of Piddle 
 Hirston the College paid to the V^icar a pension of five marks 
 per annum during the time Hopton held it, the value of 
 the living being nine marks. Upon Hopton's resignation the 
 same Vicar resumed it. 
 
 Pag e 7 i .]— A mistake is made in respect to the dis<;incc ; it 
 ought to have been, a bcncticc requiring by its admission oatii 
 continual residence. 
 
 Page 77.] — The Fellows of King's are mentioned in tiie 
 statute of election, but there is no statute respecting the giving 
 away preferments. 
 
 Page 92.] — Instead of King's College read Winchester. 
 
 Page 91. —Dr. Lushington commences with an objection ill 
 timed, if true, as it ought to have been made upon the receipt of 
 the appeal, not in a court, which was granted at the particular 
 request of his clients ; but it is in fact gronndlf ss. An apj^eal is 
 not amongst m.ajora negotia, as the Statute ol V^isitation shews, 
 neither is any seal necessary. The franuMs of the Statutes were 
 not guilty of sUch an absurdity. The seal can be used only by 
 the consent, and in the presence of the Provost; and what 
 
 * Vid. Eton Answer, page 20, 27.
 
 sr> 
 
 P;ovObt Vvoukl seal an appeal agaiiist liiinsolf, or any act or 
 person, wlilcli he chose to su])port. Dr. Ln-hihgton also 
 reasons as if tlie appeal was the act of individuals, vh.cn the 
 reply fully proved the contrary. At the same time it may be 
 asserted that individuals arc allowed by the Statutes to appeal 
 without the concurrence of the whole body. 
 
 Page 95.] — The Follows of King's did not lay claim to the 
 livings as a stalidable r}<^lif, but stated that such a disposition 
 would best accord with tiie Founder's intcrilions. 
 
 Page 9G.j — xlrchbishop Laud's powers v/ere derived from 
 the Statutes, not from Charles 1. He was both Ordinary and 
 Mctropolitical Visitor; the See of Lincoln beinor at that time 
 seised by him upon the deprivation of Bishop "Williams. Thus 
 J) is visitation did not proceed from the prerogative of the 
 crown. ' 
 
 Page 97.] — A discretion in the choice is perfectly reconcile- 
 able with a priority of right in the parties eligible. The 
 discretion is given as to (he personal qualification of the 
 candidates, and if no one is found qualified in (he first class, the 
 electors may proceed to the other classes in order, but still the 
 first class retains it's priority as (o future elections. 
 
 Ihid.^ — Archbishop Laud's (!etcrmii;a(ion was an infringe- 
 ment. He declared that tlie Statutes ordered the election in the 
 first instance to be made irotn actual J'eilows of King's, ai.d 
 then, because the })ractice had been contrary, decreed that 
 five should be elected froi. actual and former Fellows of Kings, 
 thus acting in direct viohuion ef the S'atutes, wliicli forbid 
 custom to sanction any deviation. 
 
 Ibid.] — The terms of the Winchester Statute are no nioie 
 imperative as to election of actual Fellows of New College, than 
 those of Eton, as to the election of FelIo\\s oi"Kii!gs. Those 
 who are,, and those who have been I cllows, are placed in l!;c 
 same order and words. — V^id. page 5G of tlie Report. , . < 
 • ' Page 98.] — T,l e (imcs wisicli succeeded the dethronement of 
 the Founder, were tiuu^s of great confusion ; die College was 
 all but destroyed, and the nuniber of Fellows reduced to four. 
 
 J bid.] — Kiiig's College will be pcilect^j sa-isfied if the 
 expressed cojiditions of the Statules be complied with.
 
 86 
 
 Page 100.] — *' Pensio annua," and " singulis annis" arc 
 not equivalent. Pensio annua not only includes the sum paid 
 yearly, but a continued ainiual payment; singulis annis one 
 confined to the dura(ion of each year. Singuli is always used 
 in the Statutes in a restrictive sense, whether applied to time, 
 person, or place. The Vice^Provost is to be elected singulis 
 annis, thus guarding against a longer continuance in office, the 
 boys are to lodge three in a room, the Fellows singuli singulis 
 cameris. — The usage of the word in a restrictive sense in the 
 passage referred to, might be shewn, was it worth while to enter 
 more fully into a contest now decided upon. 
 
 Page 102.] — Three instances are allowed by the Fellows of 
 Eton, — Clerc, Francis, and Horman, 
 
 Page 104.] — The 25(h of Henry VIII. declares the power 
 of dispensing to be in the King, and Parliament, and that ihej/ 
 Lave the power of authorising persons to dispense, and in the 
 act intituled" concerning Peter Pence, and Dispensations" in the 
 ;20th section a power is granted to the King to appoint a com- 
 mission under the great seal, to visit Monasteries, Colleges, &c. 
 In the case of Colt and Glover, it was Lord Hobart alone who 
 made this assertion, and it is noticed as being the first time it 
 ever was made. The subjoined case of Armiger t). Holland is 
 an ecclesiastical case, and had no reference to Colleges. 
 Neither of these cases bear upon the question. 
 
 Page 106.]^ — Lord Coke's accuracy on this point has been 
 ^questioned, or rather disproved. 
 
 Page 107.] — Fromthe jarring claims of Bishops, Popes, &c. 
 no rule of right can be drawn. The Papal interference is 
 allowed to have l)een an usurpation. 
 
 'JMie i'tatutes stated to have been dispensed with at Oxford, 
 A. D. 1^75, were bye laws, which \\ere not universally agreed 
 lo, and caused great contests. As a reference to Parliament is 
 mentioned on this very point, it is impossible now to ascertain 
 what the King did of himself, and how far Parliament acted. 
 These cases should not Lave been brought forward, as they are 
 not instances of pure prerogative, but mixed with Parliamentary 
 iniCiference.
 
 m 
 
 Ibid.'] — In tliisliworth's Calleclious rcfcrretl fo, it will be 
 tourid that Arclibishai) Laud claimed a power of visitinj^ the 
 two Universities, in respect to their observance of the liturf^y 
 and discipline of the established church, but disclaims any 
 intention of attempting to intermeddle with the statutes of the 
 ditl'erent colleges. 
 
 Page 108.] — Arundel dispensed with the oath, and Statutes 
 of Trinity Hall, merely in allowing m:)re commons fo the 
 Fellows, the Statutable allowance being insufficient according to 
 the change of times. Lord Coke made the same allowance in 
 respect to a Hospital, saying that it must have been the intention 
 of the Founder, that a suHicicncy of commons should be 
 allowed. 
 
 Ibid.] — What is here attributed to Henry TV', is by others to 
 the Black Parliament. Tiic words of I'nller are these;, (after 
 reciting the decree of the King v.x I^atin) "afterwards the King 
 confirmed the same with fhe consent of the liords and Commons 
 in Parliament, as in the Tower lio.vles doih plainly appear." 
 
 Ibid.] — Seventeen ought to be 27, a very important anrichro- 
 nisra, as the act' eiiipowering the King to visit Colleges passed 
 in (he 25fh year of his reign.* 
 
 Page 109.] — Jus licgium is not here to Ix? understood as an 
 act of prerogative, but a commission aufliorized by an act of 
 Parliament. In a comnn'ssion from Henry V^ i 1 1 . fo Dr. l*arker, 
 and others, to visit Cambridge, are these words : " whereas our 
 most loving and obedient subjects in this our last session of 
 Parliament, have given, and granted to us full power and 
 authority to order, alter, and relbrm all Colleges," &c. &c. 
 Under this authority Henry could claim submission from all 
 Colleges. 'J'he Commission of Dr. Lcigli referred to Papal 
 ceremonies and al)uses of Statutes. 
 
 The implicit obedience of King's College is very probable, 
 but is nowhere mentioned. 
 
 * Tills anachronism belong'; to the Pleader, not fhe Heporler.
 
 S8 
 
 til tlio reijrn of Marv, the Collci^e refused to submit to a 
 visi<atioii by Cardinal Pool, witlioMt the proviso that they 
 should do uothifig- coritrary to their Statulcs. 
 
 Ibid.'] — Edward the Sixth appointed eis^ht Commissioners as 
 lie was empowered to do by Act of Parliament of the 25lh of 
 Henry tiie Ei<rhth. 
 
 Page 110.] — Peter House had no Statutes from Hngode 
 Balshamj its Founder. Montacule the seventh Bishop of Ely 
 gave tlu'm, and as nothinp: regular had passed, Edward the 
 Sixth's Commissioners arranged and ibrmed the present code. 
 — Vid* King v. Ely, — Dunford and Earrs Jirporls. 
 
 No Statutes were given to St^ Jolm's by their Foundress; 
 a second foundation took place by a commission of Henry the 
 Eighth, and tl;e Bishop of Ely was appointed Visitor, and 
 called Secondary Founder. 
 
 New Statutes were added by Queen Elizabeth ; but the right 
 of Bishop Fisher to give Statutes has been doubled. — •Burrow''s 
 J? c ports 
 
 The oath is not so strict, not a word is mentioned respecting 
 dispensations. 
 
 The new Statutes of Eton were never forthcoming. 
 
 Sir Thomas Smitli's Dispensatioii was granted by Edward 
 the Sixth, and aimuUed by Queen Mary. 
 
 Page ill.] — That Henry the Eighth did not conceive he 
 •was entitled to exercise such a power previous to the 26th year 
 of his reig?ij is evident from tlie preamble to the commission 
 granted by him to Ur. Parker, above quoted. 
 
 Ibid.'] — Tliat no Act of Parliament was passed authorising 
 (he alteration of College Statutes is very true; neither do we 
 know of any dispensation granted for that purpose, nor is any 
 one here quoted. The Roman Cat liolic Religion was abolished 
 by the oatii of supremacy, which each member was compelled 
 to take, and the use ct tlie Liturgy, which was enjoined to be 
 read in all chajiels ; audit is rather to be lamented, that the 
 Act made no mention of this superseding power in respect to 
 the Statutes of Colleges. Tiic Colleges of tl'.e new I''oundation, 
 UB liiev arc called, or those (bunded after the Reformatio.), of
 
 89 
 
 course have Statutes framed accordins^ with the Protestant 
 ceremonies, but all tliosc previous are obliged to act in direct 
 violation of their statutes. 
 
 Page 1 12.]— Can any act of Charles the First be cited, as 
 promoting the reformation ? • ' ' 
 
 Page 1 13.]—" Flower of the Prerogative," a truly precious 
 flower transplanted from the Papal Hot-bed, which, having 
 shed its banefnl influence for several centuries over the rights ot 
 the subjects, at length tlestroyed the King, its owner! 
 
 Page 114.J— The great men at tlie Revolution did not, how- 
 ever, throw their sanction over the advisers of James the Second, 
 in the dispensing power, as all the Judges, >vho gave their 
 opinion that it was legal, were excepted from the bill of in- 
 demnity. The Bill of Rights likewise only professes not to 
 invalidate such grants, &c. which could be legally made, not 
 to authorise illegal ones — such as Elizabeth's Dispensation. 
 
 Ibid.'] — Magdalen College did not resist the election of a 
 President by interference of the (^rovvn, " as attacking the 
 religion of tlie nation," but as being contrary to their Statutes, 
 and refused a dispensation. 
 
 Page 115.] — The statement here is not so correct as that set 
 forth in the Appeal. Henry the Eighth endowed several 
 Colleges, and granted that they should be ruled by Statutes 
 specified in the indentures, which were given, but not indented, 
 and therefore null. And the authority for making these being 
 reserved to Henry, and not to his heirs, Queen Mary, by virtue 
 of an Act of Parliament, had power granted to her to give 
 Statutes to the said Colleges, and alter them at pleasure. The 
 same power was granted to Elizabeth in a new Act, an. l'""- 22 ; 
 and ngain, 35 Eliz. Sd sect. " all Letters Patent of Henry the 
 Eighth, made in the 27th year of his reign, shall be good,&c." 
 Edward the Sixth had no Act for this purpose. 
 
 Page 116.] — The inherent power of the Crown to visit, 
 and alter, and dispense with statutes is here asserted, but no 
 attempts to prove its legitimate authority are produced: this 
 assertion is totally overthrown by what has been before stated 
 
 res])ccting Henry the Eighth. t - • ■ • ■■ -• 
 
 H
 
 ,90 
 
 Tlie learned Civilian forgets that be has not given the origin 
 of the assumed dispensing power. We have that still to seek. 
 He has indeed attempted to confonnd the Jus Ecclesiasticnnfi 
 and this together, but the weakness of such attempt must strike 
 every one who reads Mr. Warren's Speech. 
 
 Page 117.] — The case here supposed, is an extreme one ; 
 as previous to such a devolution, the Bishop of Lincoln, the 
 Archbishop of Cantejbury, and their two Chapters must be 
 removed. A. D. 1593, Eton College presented their new 
 Provost to the Chapter of Canterbury, the two Sees being 
 vacant. 
 
 The Dispensation with mala prohibita, and not with mala 
 per se, was a distinction introduced by Lord Coke, and as 
 Judge V aughan says, has more tended to perplex than clear 
 up the question. 
 
 Page IIS.] — As the Kings are the heirs and successors 
 mentioned in the prohibition, there can be no doubt that it 
 included them. 
 
 Page 120.] — The meaning of " non commode observari" 
 is put beyond doubt by the preceding words : "whereas, on 
 account of the falling olf of lands, and rents, &c. as well 
 through dangers and losses, all these Statutes cannot commode 
 observari. ^^ — Eton Stat. 
 
 Had the Dispensation been a compulsatory, or a privatory 
 act, it might have been pleaded as preventing the observance of 
 the Statutes ; but on the contrary, it is a cumulatory indulgence 
 granted at the request of the Fellows themselves. Neither can 
 the loss of property be pleaded, as the means of indemnification 
 resorted to have more than compensated for the property taken, 
 as tar as the Fellows arc concerned. 
 
 The word commode has been a favourite at Eton. Some 
 years since, a Fellow of Eton wished to take more livings than 
 agreed upon by the then Fellows, and quoted in defeiice, " si 
 commode haberi possit," from which he was afterwards called 
 Dr. Commode. 
 
 Page 121.] — The Colleges of Cambridge and Oxford have 
 no reason to fear ^ Statutes, which were given by comniissloijers
 
 91 
 
 legally api)oii!(c(l, ^voult^ liave sufficient antliority, anrl no 
 altenilioii lias l;ikcn jjlace but \sitli tliose Colleges, ^vlucll liad 
 jiota regular body of Statutes, 
 
 Page l^!^.]— Not this dispensaiion, but the private one to 
 J. Chambers. King's College knew nothing of ihcse transac- 
 tions. There was no copy of the Eton Statutes in their library 
 for at least a century about that time, as was proved at a visita- 
 tion in 1600 by Provost Goade. 
 
 Page I2J.] — The mode of proceeding with respect to tlie 
 election of a Provost, was, by a rccommenchitioa to the College 
 from the King. No dispensation was ever issued. 
 
 Page 124.] — Where, in the appeal or reply, is any attempt 
 made " to mark a distinction betv\cen the acts of a whole body, 
 and the acts of individual Fellows"? r i,', ; 
 
 '•Page 125.] — Can the Fellows of Eton plead usage agaitist 
 their oath, by which consududo &c. are forbidden to be 
 impleaded ? . 
 
 Page 120.] — The living relations of Dr. Slecch know, that 
 he had a dispensation; and Mr. Southernwood, who lived near 
 that time, asserts it in his letter as a matter of personal know- 
 ledge. Dr. Cook never had one, and the remark in the letter 
 is a hit at him for Sjolding prefernjent without it. ^ 
 
 ' Page 127.] — it was liot asserted, that jnore tiian one case of 
 re-election had taken place, but the spirit of this construction 
 is acted upon whenever a beneficed person is elected a Fellow, 
 and takes another living afterwards, tiic first by the miscon- 
 struction of the Statute, the sccoiid by the Dispensation. ' 
 
 Upon the not declaring vacancies, the less said the better. 
 
 Page 127.] — If all the ordinances in the 38th Statute of 
 Kino's College can only apply to events after becoming Scholar 
 or i* ellow ; suppose a Sciiotar of Eton (and some remain until 
 20 years of age,) should marry, can he plead the future con- 
 struction in his favour, and demand admission at Kii:g's, 
 having been duly elected? or should his marriage be concealed 
 until admitted, can he shelter himself under this construction 
 from expulsion ? He certainly may, as well as the Fellows of 
 
 H a
 
 9t 
 
 Eton; as he does not swear at his admission (hat he is not 
 married, and marriage is not staled as an obstacle to his 
 election. 
 
 Page 129,] — The argument is plausible taking marricige 
 as an abstract question opposed to celibacy. But will it appear 
 so considered in respect to the rest of Ihe Society ? 
 
 The constitution olthe College was monastic. Can any class 
 of its members change at will their condition without trenching 
 upon the rights, and properties of the others ? In order to 
 render marriage even not hurtful, a new constitution ought to 
 have been framed, setling forth the due proportion of stipencd, 
 commons, and lodging to each class, reference being had to the 
 Statutes, and not leaving to interested persons an unqualified, 
 arbitrary management of the whole. That no advantage has 
 arisen to the College from the marriage of the Fellows or Masters, 
 may easily be proved. 
 
 Page 130.'] — It will be necessary to shew (hat the great men 
 here referred to, ever read the Statutes of Eton College. Jn 
 the reign of Elizabeth, the Fellows tell the Visitor they doubt his 
 having read them ; and as no Visitation was held by any one of 
 those mentioned, it is not very probable. Bui even if they had 
 read them, it proves nothing; as they did not obey the injunc- 
 tions of the Statutes in other respects, why should they parti- 
 cularly notice this one violation ? 
 
 The above speech has been highly extolled, and gained (he 
 learned Civilian much applause; with what justice, let the 
 unpn'judiced reader judge for himself. 
 
 The merit of having made the best defence of which his case 
 was capable, we are wilUng to allow him ; more v.e cannot. Is 
 any extraordinary acuteness of reasoning, are any particular 
 traits of eloquence exhibited thereiii? 
 
 J.t is not less wisdom in a pleader than in a general, to assume 
 in a desperate case, such an attitude as the French call imposunlc, 
 arid never was this more necessary than on the present occasion, 
 or better executed. For conscious of the ignorance of the 
 audience, on every point of the case, of the Counsel opposed to 
 him on all those unconnected with law, the Doctor boldly
 
 quofcd, or ralLer misquoted, the Eton ami King's College 
 Statutes, tiuvelled into the dark ages in search of Papal autho- 
 rities, cited books now obsolete, such as Fuller's History of the 
 Church, and Cambridge, and some, of which he knew not even 
 the Title, as he callsWood's iiistoriaet A itiquitates Oxonienses, 
 bis Athenie Oxonienses, books difi'ering from each other even in 
 language, the one being in Latin, the otiier in English. 
 Moreover he not only hurls defiance, but loudly declares 
 himself in»pregnab!e. If, however, the Jus Ecclesiasticum be 
 considered as irrelevant to a ques'ion respecting lay corporations, 
 his assertions provt d groundless, his dates false, his quotations 
 garbled and defecllNe, as many iiavebeej!, and almi>st the whole 
 might be included in one general denial, his vaunted impregna- 
 bility must be at an end, as the remainder of his works may be 
 carried with the slightest assault. 
 
 The applause bestowed on this speech, may be attributed to 
 the same cause, operating very diilerently on two knids of 
 hearers, the audience, and Judges, not to its own intrinsic 
 merits. 
 
 An audience incapable of detecting misrepresentations of 
 subjects totally unknown to them, gave credit to assertions 
 thrown out wkh such appearance of truth, and enforced with all 
 the studied arts of declamation. 
 
 Whilst the Judges listened with more than complacency to a 
 speaker, who rendered piausible sentinients according with the 
 decision >\hich they haii already determined upon. But if 
 either the learned Doctor or his liicnds Hatter themselves that his 
 speech contributed in the slightest degree to promote the decree^ 
 they are grossly deceived. The case was determined before the 
 hearing, and liowever the Judges might be pleased at seeing the 
 audience swaLowing with admiration IJie varnished statements, 
 they were loo dieply read ui the la\\s, and too much masters of 
 the real cause, to pay any attention to arguments ot which they 
 knew the true value. 
 
 But to proceed with the Report — 
 
 Page 13S-4.]— "The latter term" &c. The learned Ad- 
 vocate here reasons upon wrong grounds j the doubt is respect-
 
 94 
 
 ino' " Bcncficiiim Ecclesiasticum in one senfence, and ** Bene- 
 ficiiun" in the following, whether they mean the same — vid. 
 reply. 
 
 Ibid.'] — The same error as above noticed prevails in this 
 passage about singulis ainiis : the assertion that the verbs in 
 the 25lh Statute are future, and not so in the 23d. is a very 
 extraordinary one ; in the 23d. the verbs are habuerit, obtinuerit, 
 in the 25lh. adeptus fuerit, assecutus fuerit, and in the Statute 
 of King's College referred to, (he very words are joined habuerit 
 et assecutus fuerit. But the truth is all these tenses being in the 
 subjunctive mood, have necessarily a future signification, 
 although they represent the present, past, and future tenses. 
 Beneficiura quamvis litigiosum existat K. C. Stat, quamvis 
 litigiosum fuerit. Et. Slat. In the dispensation of John Clerc 
 the matter is put beyond doubt by an additional word, '* Bene- 
 ficium quod prius habuerit." 
 
 Page 133.] — " Eton College is a Royal Foundation, &c." 
 If it be true that a King never could grant away in perpeluity 
 possessions belonging lo him, but Ihat his successors might 
 reclaim them, in Avhat a situation those bodies corporate, and 
 individuals n)ust be, who have been entirely endowed with 
 properly arising from lar.ds, &c. fallen to the crown by the 
 suppression of ir.onaslerits, &c. since all these stand in (he 
 same situation as (he Colleges of Henry VI. Eton was endowed 
 with estates, part of which came to the founder from suppressed 
 alien Priories, and part from (he Dulchy of Lancaster. 
 Moreover, the grant of them was regularly ratified by an Act 
 of Parliament under the denomination ui a charier enumerating 
 and describing each estate. Edward 1 V . after the dethronement 
 of Henry, although he called him King dc facto not de jure, did 
 not seise any of this property jure corona;, but obtained an act 
 of resumption, legally entitling him to take such estates as were 
 not excepted in the act. Sinsilar acts had been obtained by 
 preceding Kings, and even by Henry himself, for the same 
 purpose. Neither did Edward, when he wished to destroy 
 Eton College, do so jure corome, but applied to the Pope for a 
 Bull revoking the oaths, which he conceived a complete
 
 95 
 
 obstacle (o Ills nltcmpts ; ncillicr in his IcUor to the Popr*, docs 
 he call it our Collei^e, but a Colleoc at Eton. Jn some oi;l 
 writings of King's College, it is mentioned that Edward left 
 untouched, even by the act, the property of tlie Dutchy of 
 Lancaster, wliich he conceived Henry entitled to as Duke. 
 
 Page 136. J — The case of Peter-House has been before 
 described, and is not analogous. ; 
 
 Ibid.~\ — The diflerence between what was done by Laud, 
 and the Queen, was this; Laud acted as Visitor siatutably ; 
 the Queen interfered in op[)osition to the Statuies. Tiie letters 
 patent were forenibrcing obedience to the V^isilor's decree. 
 
 The decree transmitted to {\\q: two Colleges, after a delibera- 
 tion of so many months, and at so heavy an expence, deserves 
 particular consideration. Its extreme brevity is one of its 
 most remarkable features. — All former Visitors, npon appeals 
 from the Colleges of Henry VL had given at full length the 
 grounds, upon which their decisions were founded. The 
 present Visitor had beeri accustomed to act in a similar manner, 
 and shewn great knowledge of the Statutes, and even when an 
 extraordinary a|;])eal was determined at his house, after a 
 hearing of Counsel, his Assessor (Sir J. Macdonald) in giving 
 judg!nent, set fbrlh at full length the reasons of his decision : 
 why then, it maj' be asked, was not the same mode pursued in 
 the present case ? The mader was suliicienlly notorious, and had 
 attracted much public attention ; why disappoint all parties by 
 declining to give sentence in public, and by so concise a decree? 
 That the Visitor intended to have pursued his usual mode of 
 giving his decision at full length, is beyond all doubt, but 
 one of the Assessors makes no secret of tleclaring that he pre- 
 vented the Visitor from such iiiteniion, and sent down the decree 
 to Bugden ready drawn up, v^hieii uas signed by hini, and 
 transmitted to the two Colleges. — "Give no reason, your 
 dicision is final, they must acquiesce inyour opinion, be it right 
 
 or wrong." 
 
 Hoc volo sic jubeo stat pro ratione voluntas.
 
 96 
 
 l(s obscurity and deficiency next call for observation. — The 
 decree is divided into two parts ; the one establisliing the dis- 
 pensation, the other deci ling.ao^aiiust the consl ruction of the 
 25th Statute, as set up and acted upon by the Fellows of Eton. 
 ]n respect to the Dispensation, it is slated nndis verbis, " Tiie 
 Fellows are enabled by the Dispensing Statute of Queen Eliza- 
 beth, to hold one Benefice." No comment is added, no 
 mention made of a strict ol)servance of the terms therein con- 
 tained, as to the value of the living;, 40 marks, (26/. 13s. 4c?.) 
 or that a Canonry or Prebend are not Benefices allowed, but 
 a Rectory or Vicarage. But what requires particular notice, 
 the words dispensing stalide, are substituted for Dispensation. 
 Upon this we shall remark hereafter. 
 
 The second part of the decree, which is intended to be pro- 
 hibitory of the practice of taking more livings than one, is 
 couched in such terms, that no indifferent person can guess that 
 a violation of Statute has been for some years in existence, and 
 if so, whether the present Fellows are not permitted to go on 
 in this abuse, as well as enjoy the fruits of the violation already 
 possessed by them. Such appears the ambiguity of the terms 
 * future Fellows,' instead of ' all Fellows' for the future. 
 
 To the decree in general an objection will lie, as assuming a 
 power beyond the Statutes. This might have been avoided by 
 a decree still more concise, (if brevity alone was the object) 
 and at the same time intelligible and statutable, as thus : " The 
 Fellows of Eton are prohibited by their Statutes, from retaining 
 their Fellowships with Ecclesiastical preferment, but are per- 
 mitted to hold one Living by a Dispensation from Queen 
 Elizabeth, provided, however, that such Dispensation be valid, 
 but its validity must be established in a competent court ; as 
 nothing beyond the Statutes is within the Visitor's jurisdiction." 
 
 By such a decision, the Visitor would have exercised his 
 statutable authority to t!'e utmost; whereas at present, be has 
 decided upon a point beyond his power. An Act of Parliament 
 may certainly restrain a strict execution of the Statutes, but 
 over this he has no controul. Neither can he remove a Fellow" 
 for not obeyipg the act. The carrying- this into effect depends
 
 97 
 
 upon powers contained in tbe act itself, appointing certain 
 persons to superintend its observance. In the reign of Queen 
 Elizabeth, Dr. Baker, Provost of K. C. was discovered to be 
 a Roman Catholic. 
 
 l^pon complaint of this, a visitation was held in the Colle£je. 
 — The Visitor, liowever, did not remove him. The Queen, 
 not satisfied with tliis, ordered the Commissioners appointed 
 under the great seal, to visit the College. 
 
 The Provost did not await their arrival, but fled the country. 
 To what can the Visitor's conduct upon this occasion be attri- 
 buted, but the limitation of his powers by the Statutes, which 
 enjoin the sole exercise of the floman Catholic Keligion ; and 
 the enforcement of the Act of Parliament being beyond his 
 authority ? This was under the eye of a most jealous and 
 arbitrary Sovereign, and yet no charge is mentioned as brought 
 against the Visitor tor failing in his duty; but the deficiency in 
 Jiis power, was supplied and remedied by a special authority. 
 
 A serious objection will also lie against the mode of trial, as 
 unstatutable, and defective. 
 
 The Statutes permit the Fellows, as a body, to consult 
 Counsel, if attacked as to their property or their rights, but not 
 in case of an appeal betoie their V^isitor ; in fact, all cases of 
 ■which he can take cognizance, being within the Statutes, have 
 nothing to do with the laws of the ilealm, and require no legal 
 expounder. But what renders the application to Counsel a very 
 nice point, is, a most peremptory declaration in the Statutes, 
 that if any member, either hiuiself or by other persons, attempts 
 io affix a construction or interpnMation contrary to the real 
 meaning, or such as he believes to be so, he shall be deemed 
 guilty of perjury, and expelled. 
 
 Ou the part of the Founder this was intentional, '' ad evi- 
 tandum pericula, qua^ circa Statuta nostra abingeniis hominum 
 iiimis subtiliter, et minus utiliter sentientium possint evenire." 
 — This clause puts an end to the ingenuity of Council, and 
 prevents the twisting and torturing the meaning of a passage. 
 But in addition to its unstatutableness, the mode is in itself 
 insufficient, the subject being totally new to the Counsellor, he 
 
 1
 
 98 
 
 is compelled to follow impTicidy the contents of his brief, be 
 they true or false ; no esatnination of witnesses takes place, no 
 certifying of records; each pa,rty makes his case as plausible as 
 lie can. Such a mode of trial is unheard of in any other 
 court, and would be rej<^cted as incompetent to obtain the 
 truth. 
 
 If it be determined that the Visitor need not go down to Eton 
 to adjudge the ma(ter, it ought, at least, to he carried on and 
 committed to writing, as the partic^s could then reply ; and by 
 demanding proofs of every thing advanced, render the Visitor 
 capable of dccidiiig, according to what appears the truth. 
 
 It may be asserted, that in the present instance the Visitor 
 had taken all these previous steps, if so, we ask what need of 
 hearing the matter repeated, viva voce[? If he was, by means 
 of written documents, perf( ct master of the subject, (and, as 
 no new arguments were brought forward, be certainly was so,) 
 the whole proceeding was unnecessary and superfluous. The 
 entertainment of the audience was not the object of the hearing, 
 but the information of the Judges. And as not a single new 
 fact was produced, it cannot be supposed that such persons as 
 the assessors, who, afler a due examination of the matter, had 
 declared their mind made up, and their readiness to determine, 
 could have their opinions changed by the comments of pleaders, 
 upon the same grounds of evidence. 
 
 To what then, can be attributed tlie application of Eton for 
 sncb a hearing, but the hopes that many assertions, unfounded 
 and unwarranted, thrown out in a long speecli, might nudi'e 
 an impression on the audience, and remain unnoticc^d and un- 
 answered by tlieir opponents, which, if committed to writing 
 and deliberate examination, must be detected and refuted ? 
 
 As the decision rests solely upon the dispensing power of the 
 Crown, a short account of ils origin, progrejs, and fall, 
 appt ais necessary. The dispensing power owes its introduction 
 into this kingdom to the Pope. DispetJsalions, which origi- 
 naliy were relaxations, by Bishops, from church discipline,
 
 99 
 
 «« ibi (lispeusatio ubl rigor est pariculosus," were, by degrees, 
 assumed by the Popes, anil claimed as a prerogative of the 
 Roman See. In the first ages they were unknown, and Pope 
 Innocent, about the beginning af the 13th century, introduced 
 them, asserting, " Paj)a dispensare potest de omnibus prae- 
 ceptis veneris, et novi Testaraonti, etiam contra jus Divinum et 
 Apostolicum." These Dispensations were exclaimed against 
 by all the Kings and Princes of that time, which shews that 
 they were not ancient. The first non obstante publicly noticed, 
 and opposed in England, was that of Pope Gregory the Tenth, 
 in the 24th year of King Henry the Third, A. D. 1^240.— 
 This was the revocation of a grant of former Popes to the 
 Cistercian order; " Indulgentia eidem ordini concessa non 
 bstante." In 1245, complaints were sent by the King, Nobles, 
 and University of England, against the non obstantes. Henry 
 laid before his Parliament the grievances sustained from the 
 Pope; the 5th ran thus: — " Item gravatur regnum Angliai ex 
 muhiplici adventu illius infamis nuncii (non obstante) per queni 
 jnramenti religio consuetudinis antique, scripturarum vigor, 
 jura et privilegia debililantur, et evanescunt." The writers of 
 that age, though Monks, always term it " dctestabiiis adjeclia 
 
 (non obstante.)" '' " 
 
 Henry the Third, although at first he opposed these Dispen- 
 sations, at last began to imitate Ihem, revoking and contradict- 
 ,ing his former patents; being reproved for this, he justified 
 himself by the Pope's example: " Nonne Papa facit similiter 
 subjungens in Uteris suis manifesto non obstante aliquo privilegio 
 vel indulgenta." (M.Paris.) Upon the production of one 
 . of these in the court, Roger Thurkeby, Justice of the Common 
 Pleas, " ab alto ducens suspiria, dixit, eheu bos ut quid* dies 
 expectavimus, Ecce jam civilis curia exemplo Ecclesiasticae 
 coinquinatur, et a siilphureo fonte rivulus intoxicatur." — 
 This shews the time when the use of them was introduced into 
 
 * Copied literally from Matthew Paris's Hiit. Angliae.
 
 100 
 
 * ■ 
 
 England, in civil and temporal causes ; not before the rei»n of 
 Henry the Third, An. 1S52. The same King, revoking a 
 grant to (he Templars, quoted in defence the example of the 
 Pope: " Cui Magister Hospitalis respondit," quid est quod 
 dicis Domine Rex ? absit ut in ore tuo recitetur hoc verbura 
 illepidura, etabsurdum. Quam diujustitiam observes Rex esse 
 poteris, et quara cito infregeris Rex esse desines. — 15 Rich. II. 
 Upon the bill of provisors, the Commons assent, that with- 
 out prejudice to the rights of those in possession by Statute, by 
 the advice and consent of the Lords, the King miglit dispense 
 ■with (lie said Statute until the next Parliament. And they 
 reserve to themselves the liberty of disagreeing next Parliament, 
 and they conclude wi(h observing, this was a novelty not 
 practised before, and ought not to be drawn into an example 
 and precedent for the future, and desire this may be entered 
 upon the Rolls of Parliament. — 16 Rich. 11. Upon laying this 
 Act again before the Commons, they grant, that the King 
 should have such power to moderate it, as he should with his 
 Council judge expedient, but so that it all be laid before the 
 next Parliament, (hat they might upon good advice agree to it. 
 — 17 Rich. 11. Tydeman was made a Bishop by the Pope's 
 provision, but the King did not dispense wi(h (he Statutes, but 
 left it to Parliament, and (he Dispensation was passed by the 
 King, Lords, and Conunons. — 20 Rich. II. The Commons in 
 Parliament do again agree, that the King, with his Council, 
 niay dispense with (he Statute of Provisors, but so that it be 
 examined next Parliament. — 1 Hen. IV. The Commons assent, 
 that (he King shall Ikivc the same power of dispensing with the 
 Statute as his predecessor. — 2 IJcn. IV. The Commons de- 
 clared, ihixi (he dispensation should not ex(end to Cardinals, or 
 fctrangers. — 95 Hen. VIIL An Act was passed destroying the 
 usurped power of the Pope; the preamble runs thus: — It 
 standeth with na(»iraJ equity, and good reason, (hat all and 
 every sucii laws made within this rcahn, or induced by the said 
 sufferance, consent and custom, your Royal Majes(y, and your 
 Lords, spjfilnal and (eraporal, ajid the Commons, represendng 
 the whole state of this realn?, in this your most high Court (^
 
 101 
 
 Parliament, have full power, not only to dispense, but also to 
 authorise some elect persons to dispense with those and all other 
 human laws. 
 
 Charles II. 167.3. Upon the Kin<:j's Declaration of indul- 
 gence to Dissenters, the Commons state : " That Penal Statutes 
 in matters Ecclesiastical, caimot he suspended but by Act of 
 Parliament." The King replied, '' He is troubled that his 
 declaration should give occasion to the questioning his power in 
 Ecclesiastical matters, which he finds not done in the reigns of 
 any of his predecessors: lie dotli not pretend to suspend any 
 laws wherein the properties, rights, or liberties of his subjects 
 are concerned." The Commons reply, that " your Majesty 
 has been misinformed ; no such power has been claimed or 
 exercised by your predecessors : and if it should be admitted, 
 might tend to interrupt the free course of laws, and alter the 
 legislative power, which has always been acknowledged to 
 reside in your Majesty, and the two Houses of Parliament." — 
 William and Mary, 1689. Upon passing a bill of indemnity, 
 the Judges were examined who had given advice to King 
 James on the dispensing power, and it was determined 
 that the asserting, advising, and promoting the disjicn- 
 sing power, and suspending laws without consent of Par- 
 liament, as it had lately been exercised, and the acting 
 in pursuance of such pretended dispensing power, is one of 
 the crimes for which some persons may be justly excepted oi.t 
 of the bill of indemnity. Several Judges were examined, and it 
 ■was voted, that Sir E. Herbert, Sir Francis VVythers, Sir 
 Richard Holloway, Sir Robert Wrigiit, the Earl of Sinider- 
 land, the Earl of Huntingdon, and the Bishop of Chester, be 
 excepted.* 
 
 ,_— — _— ... — - 
 
 * Sir Edward Iferbeit in his Viiidic;ition declared, that he 
 *' utterly denied the Dispensation of the King to Magdalen Colleg<jj 
 to be of any force at all, because there uns a particular right and 
 interest ve,sted in the Metubers of (he College, of choosing their 
 (Bwn Head." — Sir Ednard IhrberCs i'indicution, S\'c,
 
 102 
 
 Bill of Rlgliis, 12 Sect. *' And be it further declared, and 
 enacted bj i!io authority aforesaid, that from, and after the 
 present session of Parliament, no dispensation by non obstante 
 of any statute or any part thereof shall [ye allowed but that 
 .the same shall be held void, and of no effect, except a dispen- 
 sation I)e allowed of in such statute, and except in such cases 
 as shall be specially provided for by one or more bill or bills to 
 be passed during this present session of Parliament. 
 
 The opinions of the Judges upon this dispensing power 
 
 have been various, frequently in its favour, but often con- 
 
 ,tradictory. Tlie grounds, upon which the twelve Judges 
 
 , decided that Henry VII. could dispense with a Sheriff conti- 
 
 -iming in office above a year contrary to the act of Henry VI. 
 
 gS, which barred a non obstante in this case, are not precisely 
 
 known. It is conceived by some that they were influenced by 
 
 ,fear of a King who claimed his title by conquest. In the 
 
 case of Thomas and Sonell this case was fully entered 
 
 upon- It was however stated that although the King could 
 
 dispense, yet in certain instances the person might be disabled 
 
 ;froni accepting the dispensation, by having taken a previous 
 
 oath against such acceptance. The case of Sir Edward 
 
 Hales was well known to be a pretext set up for bringing 
 
 forward the dispensing power. For particulars, vid. Pari. 
 
 lleg. of Wm. and Mary. 
 
 In the case of the Bishops this power was canvassed most 
 j freely, and the arguments against it remained unanswered. 
 
 It must, however, be remarked, that as the Judges before 
 the Revolution were removeable at the King's pleasure (and 
 some of them were actually struck oflf for not assenting to the 
 dispensing power) their opinion loses all its value. But even 
 by the Judges, who were the greatest sticklers for the King's 
 prerogative, a difTcrence has been allowed between public, and 
 .private dispensations, for it has always been admitted that laws, 
 the breach of which are to particular men's damage, cannot be 
 dispensed with. And even the Chief Justice Herbert owns 
 that the King cannot dispense with laws, which vest the least 
 right or properly in any of his subjects. *' There the Pre- 
 rogative ends, where the interest of individuals is concerned,
 
 103 
 
 and a distinction to be made. Boimm publicum^ tlie laws of 
 this may be dispensed with, Bonum singuiorum populi, and 
 ivith the laws conccrninf; that the Kinj^ can not dispense." 
 After the Parliamentary declaration of (he illejjality of (he dis* 
 pensinfij power as heretofore exercised by the Crown, and the 
 punishment of the Kirtji's le^al advisers, it was scarcely to be 
 expected that any professional man in either branch ot th:' Law 
 could have been fotmd to advocate its legality, or any Court, 
 however constiluted, which would have even tolerated, much 
 less approved, such a defence. Such however was the case; 
 but to the honour of (he Common Law, none of ihat branch of 
 the profession would either write or utter a syllable in i(s sup- 
 port, and it rested with the Civilian to repeat all t'lose argu- 
 ments, which, issuing troni the venal and prostituted pens of 
 Lord II(;rber(, and others, were made public under the im{)ri- 
 matur of Sunderland ; argtuTients, in the attempt to eutorce 
 which James II. lost his throne, and the writers were forced 
 to fly into exile. Tliese arguments were now listened to with 
 satisfaction, atid drew forth the compliment that by thissjieecli 
 the Civilian had put himself at the head of his Court. Jint it, 
 may be replied that these arguments, alth )Ug!i advanced with 
 such apparent earnestness, were not the real opinion of the 
 advocate, but the i^est possible for the cause of his clients. 
 Of this we cannot judge. Hut tlie contrast on this very point, 
 between the advocates of the Civil and Common Law, forms 
 a very striking ditference. Mr. Abbot, whose competency to 
 judge how far a Counsellor may proceed in defence of a client 
 must be allowed, would neither in the answer of Eton College, 
 written by him, or in pleading, make use of any defence 
 unconstitutional. 
 
 From the above statement it appears that the dispensing 
 power had not a legal origin, there being no record, or even 
 mention made of its exercise betbre the latter part of tlie reign 
 of Henry 111. and then assumed by him, not under the claim 
 of an ancient prerogative, but as an imilalion of the Papal 
 a;utliorify. 
 
 That the only Act of Parliament which recognizes a dis- 
 pensing power, ileclarcb such to be in the Kujg, Lords, and
 
 104 
 
 Commons collecti-oelt/, and not in the Crown solely, and 
 farther enacts, that a dispensation, in order to be valid, raust 
 be graiited in the form contained in that act, and not 
 otherwise. 
 
 That the dispensations intended by that act did not relate to 
 the suspending laws or statutes, or iu any wise concern private 
 property, but moral and religious rites, ceremonies, and 
 duties. 
 
 It may therefore be asserted, that the dispensation of Queen 
 Elizabeth, not being within the meaning of the aforesaid Act 
 of Parliament, nor even granted in the form prescribed, viz. 
 by the Lord Chancellor, and Archbishop of Canterbury, is, 
 by virtue of the said act, null and void, and that the pro- 
 hibition on the Eton Statutes drawn up, and inserted by the 
 lawyers of Henry VI., amongst whom tlie eminent Fortescue 
 was one, was at that time deemed a legal and sufficient bar and 
 fence against any attempts of succeeding Kings to dispense 
 with those statutes, and must still remain in the same ibrce, 
 unless superseded by an Act of Parliament. 
 
 The dispensation, viewed irj another light, will require con- 
 sideration. Mr. Abbot, unwilling to defend the dispensation 
 by the doctrine of such power being lodged in the Crown, 
 ■wished to support its legitimacy by presuming in its support 
 an act of parliament empowering the Queen to make such a 
 grant. 
 
 In weighing the credit due to this argument, an enquiry is 
 necessarily instituted into the conduct of the succeeding Sovc- 
 reigt)s on this point, and when in the course of investigation it 
 appears that not only down to the Revolution, but even since 
 its absolute prohibition by the Bill of Rights, the dispensing 
 power has been exercised : that it ceased at Eton in 17G9, not 
 from a refusal on the part of the Crown to grant, but of the 
 Fellows to apply for such an indulgence, (a more easy, cheap, 
 and extensive mode of evasion being adopted;) that in othqr 
 Collegiate bodies the same power still gives relief from their 
 statutes and oaths even at the present time, and as no Act of 
 Parliament has been, or is pleaded authorising such exertion of
 
 lOJ 
 
 power, the mind is compelltH] to reject the plea offered by iMr. 
 Abbot ill defence of the grant, but at the same time it fancies 
 that the reason for the brevity, as well as the novelty of the 
 term nsed in the decree may be discovered. 
 
 May it not have been the aim of tlic framcr of the decree 
 (we do not mean tlie Visitor) to avoid as much as possible all- 
 discussion a!)oiit <lio power of the Crown upon this point ? 
 And what means more likely to avoid this than by a variation 
 of the terms. To this may be attributed the change of the 
 word dispensation, the word used by the Queen herself, into 
 the term dispensing slaiitte in the first decree, and in the 
 second the statute of Queen Eiizaix'tii, a term directly opposed 
 to a dispensation. Can it be supposed that this alteration took 
 place without design ? The meaning of the word dispensation 
 every person comprehends, but a dispensing statute conveys a 
 double meaning, and when, in the second decree, the word 
 statute alone is employed, (he mind of the reader is totally led 
 away from considering the instrument as a dispensatiof), but as 
 a regidar statute. Many circumstaticcs tend to confirm this 
 opinion ; tlie real case is known to U^yt, whereas the decree 
 has been studiously inserted in all the newspapers ; hence most 
 of tliose who have heard of the dispensation, seeing a difi'crent 
 term used by authority, will conceive that no di.*pensation has 
 been, as reported, granted, but a real statute, authorising the 
 condnct of the FeUows of Eton. 
 
 If this conjecture be wrong, (lie blame rests with those, wlio 
 not only declined a ])r.hlic declaration of the judgement iu 
 court, but even prevented the Visitor from stating in writing 
 the reasons upon wliicli iiis decision was grounded. A suckleti 
 deviation from a loisg accu.^toined mode of procedure requires 
 explanation, and a suspicion arises that all is not right, w here 
 a concealment of the motives is obviously intended. — \i least it . 
 may be inferred that a conviction of the illegality of {ho grant 
 could alone cause the necessity of thus changing the terms, and . 
 strongly must it argue in tavour of the appellants, when it was 
 found necessary to suit the words of ihe authorising power to
 
 lOG 
 
 the decree, instead of the decree to the words of the authorising 
 power. To what shifts have they had recourse ! 
 
 The Fellows of Eton plead a dispensation, and the Queen 
 declares she dispenses, and calls the instrument a dispensation. 
 But what say the Judges? The parties are mistaken, it is a 
 dispensing statute, or, rather, a statute. Had then the Queen 
 a legislative power, a power to give or alter statutes at her will 
 and pleasure, without complying with the forms of the Act of 
 Parliametit? We reply in the words of the Parliament to 
 Charles II. You are misinformed : no such power has beea 
 claimed or exercised by her Majesty. 
 
 The cases quoted by Dr. Lushington were those of the 
 colleges of St. John's, and Peter-house, which had no statutes 
 left by their founders, and even these were visited by com- 
 missioners appointed under the great seal, and deriving their 
 power from an Act of Parliament. In order to give a plausibi- 
 lity to the word statute, a reference ought to have been made to 
 the new statutes mentioned by Archbishop Parker. 
 
 But as no such statutes have ever been heard of, and more- 
 over if tlicy liad repealed the 25th statute, as there would 
 have been no reason for a dispensation four years after, on this 
 ground no ar<?unient can be raised. Had the matter been 
 referred to the Archbishop, he would probably have given the 
 same opinion as in the case of All Souls' College, since the 
 parties were in the same predicament. 
 
 The grounds of the judgement tlie more they are examined 
 ihe less tenable do they appear, and the cause of avoiding the 
 publicity of giving sentence in court admits of an easy expla- 
 nation, as well as the advice " give no reasons." 
 
 The Appellants, however, have no reason to repent of their 
 attempt to restore to their successors their statutable rights, 
 although they may regret that their efrbrts have been rendered 
 fruitless. 
 
 They have proved that ecclesiastical preferment is untenable 
 by statute, or by dispensation, the Crown being unable legally 
 to make such a grant, or the Fellows to accept it under their 
 ■oath. liow then Lave they lost their cause ? On this point,
 
 107 
 
 ARY FACILITY 
 
 Mil llllillll I 
 
 AA 000 564 013 
 
 \vlierc a total silence .is to the grounds of the decree is kept, 
 credit must be given to report. They have lost it because it 
 was deemed more adviseable that one College should conliimc 
 to suffer an unjust dcjjrivatiou of rights, than the power of tlie 
 Crown be canvassed, or the peace of other Collegiate Bodies 
 hazarded by holding out an example to the members to recover 
 rights ^vithhcld by the same illegal authorhy. 
 
 FINIS. 
 
 J, HODSON", PKINTKU, CAMBRIDCF.
 
 ERRATA et ADDENDA. 
 
 Page 5 line 23, /or, Prvoesf, read, Provost. 
 
 .... 8 ... 19, /(^r, sue-, rertf/, succession. 
 
 .... 12 ... 6, for, statutoque, read, statutorum. 
 
 .... 14 ... 19, for, addcndi ipsns, read, addendi, ipsas. 
 
 .... 16 ... 18, for, concessa, read, concessa. 
 
 .... 18 ... 23, for, intentione, 7'ead, intentloni. 
 
 ... .25 ... 16, for, inexperience, 7'ead, inexpedience. 
 
 ....28 ... 4, for, E.C. P., reaJ, E.C. p. 
 
 43 ... 26, for, 8, read, 30. 
 
 ....44 after line 16, insert, REPLY of KING'S COLLEGE. 
 
 ... .48 ... 4, for, prasligit, read, pra^eligit. 
 
 .... 55 ... 30, for, Dispensafion, read, a dispensation, 
 
 ....66 ... 15, /or, And, read, As. 
 
 ..-.70 ... 19, /«r, perfecTione, reof/, perfectiore. 
 
 ... ./6. after line 21, insert — For an account of tiie pleadings, 
 which took place before the Visitor at Doctors* 
 Commons, on the 16th and 17th of May, 1M5, 
 ■we refer our readers to (he Report of Mr. 
 Philip Williams, printed for Butterworth and 
 Son, Fleet-street. 
 
 . . . .81 ... 12, for, had, read, has. 
 
 ... .84 ... 11, for, Boswel, read, Ilopton. 
 
 .... 87 ... 10, for, a, read, an. 
 
 . . . .97 . . . 2, " In (he reign," should begin a paragraph, 
 
 . ... lb. ... 34, for. Council, 7'ead, Counsel. 
 
 . ... 99 ... 19, for, coiisuetudiuis, 7'ead, consuetudines. 
 
 ....lb. ... ^7, for, indulgenfa, rc«f/, iiidulgentia. 
 . . .103 . . . 10, for, approved, read, approved of, 
 . . . 104 ... 12j for^ on, read^ in.