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CASE
AS TO THE
PROPOSED DEGRADATION AND DECLARATION
IN THE STATUTE OF FEB. 13,
SUBMITTED TO
SIR J. DODSON, Knt. QUEEN'S ADVOCATE ;
AND
R. BETHELL, Esq. Q. C.
WITH THEIR OPINION OF ITS DECIDED ILLEGALITY:
ACCOMPANIED
WITH NOTES
ON THE HISTORY AND NATURE OF
ACADEMICAL DEGREES,
AND ON THE HISTORY OF SUBSCRIPTION
IN the
UNIVERSITY OF OXFORD.

OXFORD,
¦PRINTED BY W. BAXTER.
FRANCIS MACPHERSON, HIGH STREET;
W. PICKERING, 177, PICCADILLY, LONDON.
1845.

TO THE READER.
It should be stated, that all the references to the
Statutes of the University, in the following Case, are
made to copies (which were laid before Counsel) of
the Statutes as they stood when Mr. Ward was admitted
to his Degrees, and prior to the late revision. None
of the changes made upon the late revision have any
bearing upon the present questions: and the most
important Statutes cited have not been altered at all.
The same observation applies to the account given
of the ordinary mode of admission to Degrees.
It will be noticed, that the 39 Articles are spoken
of in the Case as having been first published in their
present form in 1562. This would not be accurate, if
it were understood of the form in which they are now
usually printed, which was settled in 1571, with vari
ations from that of 1562. But it was the view taken by
the framer of the Case, that the variations subsequent
to 1562 had not at present the force of law; the Articles
referred to and established by the Act of 13 Eliz. cap.
12, being those of 1562. The 36th Canon of 1603 also
refers to the Articles of 1562: and though the Canon
mentions " the Ratification," which belongs to the
edition of 1571, this could not have the effect of giving
legal validity to alterations made in the Articles esta
blished by Parliament.

CASE.

The University of Oxford is a lay Corporation established
in ancient times, and endowed with many important juris
dictions and privileges by Royal Charters of different Kings
of England, which have been confirmed by Acts of Par
liament. It has also been endowed with other privileges
and jurisdictions, and with considerable Church patronage,
originally and immediately by Act of Parliament; and it
returns two Members to the House of Commons. Under
these Charters and Acts it possesses an extensive Criminal,
Civil, aud Ecclesiastical Jurisdiction over its own Members,
aud also (within certain limits) over strangers. It is governed
by a body of Statutes, the power of altering or adding to
which resides in its principal corporate Assembly, called the
House of Convocation. By these Statutes, the powers of its
Courts, Assemblies, and Officers, the privileges, duties, and
qualifications of its Members, the modes of admission to
Membership, and advancement to Degrees, and the entire
system of executive and judicial administration, and cor
rective discipline within the University, are defined and
regulated in very considerable detail.
The University of Oxford, like other Universities of
•Europe, has always exercised the power of granting Degrees

in the different Faculties of Divinity, Law, Medicine, Music,
and Arts. This power is a special privilege, derived by its
Charters from the Crown : and it is submitted for the con
sideration of Counsel, whether the Degree is not in the
nature of a franchise, or dignity, the possessor of which, when
once conferred, holds it from the Crown, and not merely
from the University, through which the Crown grants it.
(See Bentley's Case, Duke's Charitable Uses, 250, and
particularly the observations of Fortscue J. p- 254.)
The Degree continues in force, -with all its collateral ad
vantages, though the Graduate should cease lo be a Member
of the University, either by expulsion, or by voluntary
retirement. It may, perhaps, be worthy of notice, that
Degrees are a source of Revenue to the Crown, a Stamp
duty being imposed upon them, which is paid by the
Graduate. The Degree of Bachelor of Arts entitles its possessor
(theoretically and according to the form of admission) to
teach or give Lectures in certain subjects, either within the
University, or elsewhere: but this Degree does not under
any circumstances confer any of the higher Academical
franchises, or any title to a vote in the governing body of
the University, either at the election of the Members whom
the University sends to Parliament, or for any other purpose.
The Degree of Master of Arts (according to the form of
admission) authorizes the party to teach or to give Lectures
in a more extended range of subjects; and it also entitles
him (so long as he continues a Member of the University)
to all the higher Academical franchises, including the Parlia
mentary franchise, and the right of taking part in the disposal
of the University's patronage, as a member of the governing-
body : The loss of this Degree, therefore, is disfranchisement
for all these purposes.
The Degrees of B.A. and M.A. are required by several
Acts of Parliament, and by the Statutes of many charitable

foundations, (including Colleges in the University itself, which
are distinct eleemosynary Corporations, exempt from the
jurisdiction of the University, though within its precincts
and recognised by its constitution,) as necessary qualifica
tions for valuable offices and benefits, collateral to and
independent of the University.
The Degrees of B.A. and M.A. are conferred upon either
Laymen or Clergymen, without distinction. The former is,
by the custom and regulation of all the Bishops of England,
required as a condition precedent to Ordination, except in
special cases. The latter, by the regulations of some of the
Inns of Court, confers special advantages upon persons
desiring to be admitted to the Bar".
According to the Statutes of the University, all Degrees
arc given by an Academical assembly, called " The House
of Congregation," which is distinct from the House of Con
vocation. The qualifications required for the Degree of
B.A. are, 1, Matriculation, aud a certain period of residence
and study in some College or Hall within the University;
and 2, Testimonials of having satisfactorily performed and
passed certain exercises and examinations. These pre
liminaries being completed, and certain other forms gone
through, a " Grace" for the Degree must be first allowed
by the College or Hall to which the party graduating belongs,
and then granted, upon the petition of the party through one
of the Officers of that College or Hall, by the House of
Congregation, at a meeting prior to that at which he is to be
admitted. The " Grace" is proposed, and put to the vote,
upon the representation of the Petitioner, (verified by the
personal testimony of his proponent, and by the production
of certain Certificates,) that he has complied with " omnia,
quae per Statuta Universilalis requirunturf in order to his
admission to that Degree. If voted by the majority there
present, without dissent from the Vice-Chancellor or the
' See Supplementary note I.

two Proctors, the Grace is pronounced " simpliciter concessa.'
Up to and inclusive of the time of passing the Grace, the
graduating party is not called upon to make any profession
of his adherence to the Thirty-nine Articles of the Church of
England, beyond the subscription required of him at his
first Matriculation into the University, which is a bare
subscription unaccompanied by any declaration, and is
required even from boys between the ages of 12 and 16,
in whose case the usual oaths are dispensed with.
On the day appointed for his admission to the Degree,
the party is introduced into the House of Congregation, after
having read, or heard read over, in the presence of the
Officer of his College or Hall who presents him, the Thirty-
nine Articles of Religion. On entering the " Apodyterium,"
or Vestibule of the House of Congregation, he subscribes
those Articles, and also the three Articles mentioned in the
thirty-sixth Canon of 1603, in the presence of the Proctors,
according to the following Statute of the University.
Tit. IX. Sect. 5. §. 3.
" Cum prsesentandus vel praesentandi ad Apodyterium
Domui Congregationis vicinum devenerint, eorum quilibet
Articulis Fidei et Religionis in Synodo Londini Anno Dom.
1562, editis et confirmatis (lectis prius, vel alio recitante
auditis, in prajsentia praesentatoris sui,) necnon tribus Arti
culis in 36°. Canone comprehensis (lectio prius ibidem, et
publice, coram prsesentatore, in prsesentia Procuratorum,)
subscribet ; qui quidem tres Articuli descripti sunt Canone
36°. libri Constitutionum et Canonum Ecclesiasticarum, in
Synodo Londini ccepta Anno Dom. 1603."
The following are the three Articles of the thirty-sixth
Canon, with the form of subscription to them which that
Canon enjoins, and which is used in the University.
I. " That the King's Majesty, under God, is the only
Supreme Governor of this Realm, &c. (following the words
of the Oath of Supremacy.)

9
II. " That the Book of Common Prayer, and of Ordering
of Bishops, Priests, and Deacons, containeth in it nothing
contrary to the Word of God, and that it may lawfully be
used ; and that he (the Subscriber) himself will use the form
in the said Book prescribed, in public prayer and Adminis
tration of the Sacraments, and none other.
III. " That he alloweth the Book of Articles of Religion,
agreed upon by the Archbishops and Bishops of both Pro
vinces, and the whole Clergy, in the Convocation holden at
London, A.D. 1562; and that he acknowledgeth all and
every the Articles therein contained, being in number nine
and thirty, besides the Ratification, to be agreeable to the
Word of God."
" To these three Articles" (the Canon proceeds) " whoso
ever will subscribe, he shall, for avoiding of all ambiguities,
subscribe in this order and form of words, setting down both
his Christian and Surname, viz. " I. N. N. do willingly and ex
animo subscribe to these three Articles above mentioned,
and to all things that are contained in them."
It may be proper here to notice, that the thirty-sixth
Canon makes the subscription to these three Articles
necessary, not only as a preliminary to all ordinations, and all
institutions, &c. to Ecclesiastical benefices, but also to the
admission of any one " to preach, to catechise, or to be a
Lecturer or Reader in Divinity, in either University" [the
Latin, which is of equal authority with the English, says,
" ad concionatoris, prcelectoris, aut catechislce munus exer-
cendum in alterutrd Academid:"] leaving the coercion ofthe
Universities, in case of their disobedience, " to the danger
of the Law, and His Majesty's censure." The same sub
scription, (with a slight qualification as to the second Article,)
is required by the seventy-seventh Canon from all persons,
who " shall teach youth either in public School, or pri
vate house;" [Lat. " sive in Schola aliqud publicd, sive
in privatis mdibus pueros docebit vel erudiet :"] while, by the

10
seventy-eighth Canon, the Degrees of M.A. and B.A. are
recognised as entitling their possessors to teach, " In what
parish Church or Chapel soever there is a Curate, which is
a Master of Arts, or Bachelor of Arts, or otherwise well
able to teach youth," &c. It is submitted to the consideration
of Counsel, whether, having regard to the form of the
admission to Degrees in the University, " ad legenditm," &c.
the subscription required by the Statute Tit. IX. Sect. 5.
§. 3. may not be considered a compliance on the part of the
University with the requisitions of the thirty-sixth and
seventy-seventh Canons, or one of them, as understood at
the time when this Statute ofthe University was framed".
After subscription, the next step is presentation. The
party graduating is presented by his proponent, who
addresses the Vice-Chancellor and Proctors in the following
form. "InsignissimeVice-Cancellarie,vosqueegregiiProcuratores,
prassento vobis hunc meum scholarem in facultate Artium,
ut admittatur ad lectionem cujuslibet libri logices Aristotelis,
et earum insuper Artium, quas et quatenus tenetur audivisse ;
testorque ilium in prassentia mea, legisse, (vel, lectos audi
visse,) Articulos Fidei et Religionis, quibus modo subscripsit
coram Procuratoribus ; ac speciatim tres Articulos in Canone
36° comprehensos : fide mea data, huic Universitate." The
two Proctors then add their testimony to the fact of the
subscription having been made in their presence. Oaths to
observe the " Statutes, privileges, customs, and liberties" of
the University; to abstain from promoting feuds and dis
sensions ; and not to abuse the privilege of admission to the
public Library, together with the usual oaths of supremacy
and allegiance, and an admonition from the Proctors to wear
the Academical dress within the University, are next ad
ministered to the party graduating. When this is done, the
>> See Supplementary note II.

il
Vice-Chancellor (who presides, in the Chancellor's absence,
in all the Academical assemblies) confers the Degree in the
following form.
" Domine, ego admitto te ad lectionem cujuslibet libri
Logices Aristotelis, et insuper earum Artium, quas et quatenus
per Statuta audivisse teneris ; insuper, auctoritate mea et
totius Universitatis, do tibi potestatem intrandi, Scholas,
legendi, disputandi, et reliqua omnia faciendi, quae ad
Gradum Baccalaurei in Artibus spectant."
The same preliminary formalities are gone through, and
the same form of admission mutatis mutandis is used, without
any variation material to the present purpose, when the party
proceeds to the Degree of Master of Arts, or to any of the
Degrees in the other faculties. On every such occasion the
same subscriptions and oaths are administered, without
regard to the circumstance that the party must necessarily
have made and taken them previously, upon his admission to
the lower Degrees.
The Graduate, once admitted to the status of a Master of
Arts, and continuing to be a member of the University,
acquires a right to vote and act as a member ofthe House of
Convocation, and (during a certain period) of the House of
Congregation also : and, as already stated, he acquires the
parliamentary franchise, and a share in all the other benefits,
powers, and franchises, (whether conferred by Act of Parlia
ment, by charter, or otherwise,) which belong to the govern
ing body of the Corporation.
There are certain causes, for which, by the Statutes of the
University, a Graduate may be deprived of this or any other
Degree. The power of depriving in such cases is given by
the Statutes to the House of Convocation, and also to the
Chancellor or Vice-Chancellor of the University, in the
character (it is submitted) of President of the House of
Convocation, and to be exercised by him there. It is upon
the legality of a proposed deprivation of Degrees, founded

12
upon the publication of a work which is considered to contain
positions contrary to the Thirty-nine Articles of the Church
of England, that your advice is, in the first instance,
solicited. The general powers of the Chancellor, the Vice-Chancellor,
and the House of Convocation, (otherwise called the " Con
gregation of Regents and Non-Regents," as distinguished
from the House of Congregation, which is called " the
Congregation of Regents,") are defined by the Statutes,
Tit. xvii. sect. 1. §. 2. and sect. 2. §. 2. and Tit. x. sect. 2.
§. 1—8.
The following are the only parts of the Statute, Tit. xvii.
sect. 1. §. 2. " De Officio, Potestate, et Auctoritate, Cancel
larii," which are conceived to be material.
" Etsi Universitas et Civitas Oxoniensis suis a se invicem
Juribus et magistratibus distinguuntur, ea tamen est Cancel
larii praerogativa, ut non solum totius Universitatis, sibi soli,
sub Domino Rege, concreditae et commissi, peculiarem
habeat custodiam ; sed etiam totius quoque municipii sive
civilatis Oxoniensis, et suburbiorum ejusdem, communem
cum praetore urbano custodiam obtineat ; legesque cum
consensu Universitatis condere possit, quae burgenses etiam
sive oppidanos, eorumque communitatem, in ordine ad
Universitatem, obligandi vim habeant.
" Caeterum quoad Academiam, ejusque Regimen, Can
cellarii munus est, publicum totius Universitatis Regimen
curare ; libertates et privilegia ejus tueri, necnon concordias
et compositiones quascunque super iisdem, cum consensu
Universitatis, inire ac stabilire.
" Congregationes Regentium, necnon Regentium et non
Regentium, convocare, in quibus nihil sine ipsius aut Vice-
Cancellarii sui consensu proponi, aut suffragiis permitti, fas
est. Homines dignos, qui Statutis Acadeniicis requisita
compleverunt, ad Gradus Scholasticos promovere, et in-
dignos Moribus aut Scientia ab iisdem repellere.

13
" Controversias omnes circa causas civiles, spirituales, et
criminates, intra Universitatem terminabiles, pertinentes
ad Scholares, vel personas sive utrinque sive ab altera
tantum parte privilegiatas, audire, dirimere, ac ter min are ;
Foris-facturas et Amerciamenta inde provenientia Universi-
tati applicare.
" Commissarium suum Generalem, sive Vice-Cancellarium,
aut Locum- tenentem, annuatim nominare.
" Seneschallum Academiae et Sub-Seneschallum, quoties
eorum officia vacaverint, eligere — Curias et Leetas (quae et
Visus Franci-plegii dicuntur), Dies Festos et Juridicos
Universitatis (vulgo Law Days) celebrare ac tenere,
" Item contra Statutum Universitalis delinquentes, poena
corporali, mulcta pecuniaria, incarceratione, degradatione,
suspensione, Graduum, dis-communicatione, proscriptione,
bannitione sive expulsione ab Academia, censuris Ecclesi-
asticis, aut alio quocunque modo rationabili, {prout qualitas
delicti exiget, et quateitus Slatutis et Privilegiis Universi
tatis permissum est,) respective punire. Delicla contra qua:
speciali nullo Statute cautum est, vel quibus nulla per
Statuta irrogatur poena, pro arbitrio {sive in Judicio sive
extra) punire 
" Ordinationes etiam et Statuta (poscente sic usu) cum
consensu Universitatis sancire, vel sancita abrogare."
With reference to some of these powers, it may be con
venient in this place to state, that the Chancellor has a Court
of Ordinary jurisdiction within the University, "pro expedi-
endis majoris momenti causis in Universitale controversisf
in which the Vice-Chancellor, or a Commissary appointed
by him, is the Judge. The constitution and practice of this
Court, and the course of Appeals from its decisions, (first to
Delegates appointed by the House of Congregation, then to
Delegates appointed by the House of Convocation, and ulti
mately, if these two Courts of Delegates do not agree in af
firming the Judgment of the Court below, to the Queen in

14
Council0; the right of appeal being in certain special cases
entirely denied,) are framed upon the principles of the Ec
clesiastical Law, and are regulated by Title XXI. of the
Statutes, " De Judiciis," which contains twenty-two chap
ters. In this Court all Criminal Cases within the Jurisdiction
of the University, all Civil Actions, and all Ecclesiastical
causes of which the Chancellor is the Ordinary Judge, are
tried. The Ecclesiastical Jurisdiction of the Chancellor
(previously to the late Church Discipline Act) tvas co-extensive
with that of any other Spiritual Judge, and exclusive of the
Diocesan and Prerogative Courts. It appears to have
originated in a Bull of Pope Boniface VIII. A.D. 1300, con
firmed by another Bull of Pope Sixtus IV. A.D. 1479. Pope
Boniface's Bull exempts " Scholares et alias personas juris-
dictioni Cancellarii dicti studii pro tempore existentis
subjectos, in ipsos studio pro tempore degentes, etiamsi
fuerint in sacris ordinibus constituti, etc. ab omni jurisdic-
tione, dominio, vel potestate quorumcunque Archiepisco-
porum, necnon Episcoporum, et aliorum ordinariorum ju-
dicum," etc. ; and proceeds to give Jurisdiction to the
Chancellor in the following words, " Ipsos Scholares et per
sonas alias, quamdiu in praefato studio, ut praefertur, degerint,
praedicto Cancellario subjicimus: ita ut de excessibus de-
lictorum, et crimiuibus commissis per Scholares et alias
personas hujusmodi, cognoscere et punire, et omnimodam
jurisdiction em etiam ecclesiasticam et spiritualem in eosdem
Scholares et personas alias, emercere libere et licile valeatf
The validity of this Grant, so far as it purports to exempt
the University from the Metropolitical Visitation of the
Archbishop of Canterbury, has been disputed, and may
- It is presumed that this is the effect whieh would be given (under the Acts
constituting the Judicial Committee ofthe Privy Council, as the Supreme Court
of Appeal in Ecclesiastical Causes, instead of the High Court of Delegates
formerly constituted by Royal Commission issuing out of Chancery) to the words,
" Dominum Regem in Cancellarid," which are the words of the Statute, Tit.
xxi. §. 19.

15
possibly still be doubtful; though it is believed that all
privileges granted to the University by Papal Bulls may be
shewn to have been confirmed by subsequent Royal Charters,
which are themselves confirmed by Acts of Parliament. So
far, however, as these Bulls give a Spiritual Jurisdiction to
the Chancellor of the University, their validity does not seem
to admit of doubt : for the Chancellor's powers to proceed
by Ecclesiastical censures is distinctly recognised in Charters
of King Edward III. and several later Sovereigns; and a
power to certify excommunications into the High Court of
Chancery by significavit, like other Ordinaries, having been
several times given to the Chancellor of the University by
his predecessors, was finally made perpetual by a Charter of
King Henry VIII. (2 Ayliffe's Oxford, 109.) The form
of such a significavit will be found in Fitzherbert's Natura
Brevium, p. 64. And Ayliffe (writing in 1723) says, " That
the Chancellor of this University has exercised Jurisdiction
among Scholars and others in Ecclesiastical Causes for a
great length of time, appears from very ancient Records."
2 Ay I. 107.
The late Church Discipline Act (3 and 4 Vic. c. 86. Sect.
23.) is conceived to have made an important difference
in this respect, and (probably) to have entirely abrogated
the Ecclesiastical Jurisdiction of the Chancellor over Clerks
in Holy Orders for penal or criminal purposes. It is also
submitted, whether the effect of Sections 3 and 22 of the
same Act, is not to give the Bishop of Oxford, within whose
Diocese the University is locally situated, the Criminal Juris
diction thus taken away from the Chancellor, subject only
(as to the mode of its exercise) to the provisions of the
Act. The next Statute to which it is necessary to draw the atten
tion of Counsel is that relating to the powers of the Vice-
Chancellor. Tit. XVII. Sect. 2. §. 2. Of this the following
passages are all that is conceived to be material.

16
§. 2. De Auctoritate et Officio Vice-Cancellarii.
" Statutum est, quod, quicquid de consuetudine vel Statutis
Universitatis Caucellario cum prcesens fuerit, permittitur,
hoc idem, in ejus absentia, a Vice-Cancellario fieri possit ;
nisi quod, negotiis momenti ac ponderis, Cancellarii, etiam
absen tis judicium sit consulendum.
" Ipsius etiam est, ut Conciones, Praelectiones, et Dispu-
tationes, et omnia ordinum exercitia, debite peragantur, pro-
spicere. Ut non nisi digni moribus et Doctrina ad Gradus
Academicos promoveantur. Ut omnes contra Statuta Univer
sitatis delinquentes, vel inhoneste viventes, praesertim scan-
dalosi, contumaces, seditiosi, et pacis perturbatores severe
puniantur; .... Et ut Hcereiicos, Schismaticos, et quoscunque
alios minus recte de fide Catholicd, el doctrina, vel disciplina
Ecclesice Anglicance sentientes, procul a finibus Univer
sitatis amandandos curet.
" Quem in finem, quo quisque modo erga Doctrinam vel
disciplinam Ecclesice Anglicans affectus sit, subscriptions
criterio explorandi ipsi jus ae potestas esto.
" Quod si quis S. Ordinibus initiatus (sive pr^fectus
Domus cujusvis, sive alius quis) Articulis Fidei et Religionis,
a Synodo Londini A. D. 1562. editis et confrmatis; necnon
tribus Articulis comprehensis Canone 36° Libri Constituti-
onum et Canonum Ecclesiasticorum ediii in Synodo Londini
eapta A. D. 1603, subscribere a Vice-Cancellario requisitus,
TER ABNUERIT VEL RECUSAVERIT, ipsofado AB UNIVERSITATE
exterminetur et banniatur. Eadem esto poena Bene-
ficiati cujusvis in Universitate commorantis, qui ab Episcopo
Diceceseos requisitus subscribere recusaverit.
" Quod siquis de schismate suspectus, Vice-Cancellarii
judicio, assidentibus ipsi Praefectis in Ordinario ipsomm
conventu0, reus hujus criminis compertus fuerit ; pro prima
vice, mulcta pro arbitrio Vice-Cancellarii ipsi irroganda
c i. e. in the Hebdomadal Board of Heads of Houses and Proctors, which is a
kind of Executive Council in the University, and meets weekly.

17
erit. Sin obstinate in errore perseveraverit, praeter mulctam,
arbitrio Vice-Cancellarii irrogaudam, erroris sui veniam,
flexis genibus, suppliciter petet, eique palam in Domo Con-
vocationis renuntiabit. Quod si recusaverit, aut rursus in
eodem genere deliquerit, banniatur.
" Ulque tarn Condones quam Libri, quibus malesance
opiniones propagantur, cohibeantur. . . . Ut Curias
et Tribunalia publica, pro dignitate Universitatis debite
celebrentur, ac teneantur. . . . Ut Lites quae in Curia
ipsius Commissarii tractantur, summarie, simpliciter, et de
piano, absque strepitu et figura Judicii, sola veritate iuspecta,
absque mora et dilatione (quantum fieri potest) audiantur, et
decidantur, et executionem inde debitam sortiantur."
With reference to this Statute, the following questions are
incidentally suggested for the consideration of Counsel ;
1st, Whether the proceeding which it authorizes before the
Vice-Chancellor, with the assistance of the Board of Heads
of Houses, for the correction of schism, is to be considered
(in the case of persons in Holy Orders) a proceeding for an
offence against the Laws Ecclesiastical before an Ecclesi
astical Court, within the meaning of, and so as to be pro
hibited by, the 23d Section of the Church Discipline Act ?
(See Dean of York's Case, 2 Ad. and Ell. New Cases, p. 33
et seqq.) 2dly, Whether the offence, described by the word
" schisma," includes the publication of a book which a
Court Ecclesiastical would pronounce to be contrary to, or
defamatory of, the Articles of the Church of England? Upon
the latter question the title and language of the 27th Canon
of 1603 appear to have a bearing, which may be material.
That Canon is headed thus :
" XXVII. Schismatics {Lat. Schismatici) not to be admitted
to Communion."
And it prohibits the administration of the Holy Communion
" to any that are common and notorious depravers of [Lat.
frequenter et notorie calumniatur] the Book of Common
B

Prayer, &c. or of any thing that is contained in any of the
Articles agreed upon in the Convocation, 1562." With
reference also to the question, whether the publication of such
a work is " an offence against the Laws Ecclesiastical," and
punishable as such, the 5th Canon of 1603 may be referred to.
" Canon V. Impugners of the Articles of Religion, esta
blished in the Church of England, censured." [Lat.
" Doctrinae Articuli in Ecclesia Anglicana stabiliti, pii et
orthodoxi."] " Whosoever shall hereafter affirm, that any of the nine
and thirty Articles agreed upon by the Archbishops and
Bishops of both Provinces, and the whole Clergy, in the
Convocation holden at London in the year of our Lord 1562,
for avoiding diversities of opinions, and for the establishing
of consent touching true religion, are in any part superstitious
or erroneous, or such as he may not with a good conscience
subscribe unto; let him be excommunicated ipso facto, and
not restored, but only by the Archbishop, after his repent
ance and public revocation of such his wicked errors." The
Canons of 1603, bind the Clergy, {Middleton v. Crofts,
2 Atk. 650); and the power of the Ecclesiastical Courts to
pronounce Excommunication in " definitive sentence" by way
of " spiritual censures for offences of Ecclesiastical cog
nizance," is not taken away or affected by the Act of 53
Geo. III. Cap. 127.
It remains to state the material parts of the Statutes
relating to the House of Convocation, and to the powers of
Legislation and Degradation in particular.
The first of these Statutes Tit. X. sect. 2. §. 1. is as follows.
§. 1. " Enumeratio Negotiorum quce adDomum Convocationis
spectant." " Quandoquidem negotia maj oris momenti cum maj ore
deliberatione sunt tractanda; et quae ad universam spectant
Academiam, ab universis approbari congruum est; Statutum
est, ut in Convocatione Doctorum, Magistrorum Regentium

19
et non Regentium (prout de antiquo fieri consuevit) de
majoribus negotiis, ac totum Universitatis corpus tangentibus,
deliberetur et determinetur.
" Veluti de Legibus et Statutis rogandis vel etiam abro-
gandis, interpretandis, moderandis; de Officiariorum Elec-
tionibus; de Delegatis ad certa negotia nominandis; de
Dispensationibus licitis concedendis; de Pra^sentationibus
ad Beneficia; de computis sive Ratiociniis examinandis et
approbandis ; de Fundis sive Praediis Universitatis dimittendis
sive elocandis; de Literis ad Regiam Majestatem, Praslatos,
Proceres, ac Judices, sive alios quoscunque couscribendis ;
DE AMOVENDIS ACADEMIC DEHONESTAMENTIS, ET GRADU PRI-
vandis. Denique de quibuscunque Universitatis statum, dig
nitatem, et incolumitatem spectantibus."
Seven Chapters follow ; the first of which is,
Tit. X. Sect. 2. §. 2. De Statutis et Decretis in Domo
Convocations condendis et interpretandis.
This Statute provides that all Acts of new or interpretative
legislation shall first be approved, in the form in which they
are to be proposed, by the Board of Heads of Houses ; after
which they must pass the House of Congregation, and sub
sequently that of Convocation ; being adopted by which,
they become law in the University after the expiration of
thirty days.
" Siquid vero interim (dum suspensa manet Statutorum
Auctoritas) contra quam iis cautum est, poena dignum com-
mitti contigerit; vel {in universum) si quod delictum inci
dent, contra quod speciali nullo statuto cautum fuerit;
Vice-Cancellarius {assidentibus sibi Procuratoribus et Prae
fectis JEdium in Conventu Ordinarii) pro arbilrio pcenam
irrogabit; donee speciali aliquo Statuto, contra hujusmodi
delictum, provisum fuerit."
The same Statute defines the Cases, in which the power
of legislation or interpretation is to be exercised, as follows:
B 2

20
" Si quando ex usu Academic futurum videbitur, aliquid
de novo statuere vel decernere, vel, si quando circa Decreta
et Statuta jam condita, vel in posterum condenda,
DUBITATIO aliqua emergat, unde ulterior eorundem ex-
planatio requiratur {modo ne, sub explanandi obtentu,
sensus statuto cuivis affigatur, omnem ipsius vim eludens
aut enervans ; neve h^c explanandi potestas ad statuta
Regia Auctoritate sancita vel confirmata extendatur,
sine speciali ipsius Regis licentia.)"
The five next Chapters relate, severally, to the custody of
the Statutes, to Cases in which the House of Convocation
may dispense with particular requisitions of the Statutes; to
cases in which the House of Convocation is noi to have that
power ; to elections in the House of Convocation ; and to
the nomination of Delegates, and their functions. The
remaining Chapter, which closes the Title, is that most
material to the present case.
" §. 8. De Degradatione.
" Cum nonnulla sint delicta, qua, contra Statuta hujus
Universitatis admissa, Qraduum privatione plectuntur ; alia
vero, quae (licet alibi commissi), propter infame supplicii {quo
vindicantur) genus, Aetrahi prius insignia Academica et delin-
quentes exauctorari postulant ; ne stigmata delinquentium,
Personis merito inurenda, simul Qraduum Academicorum
dignitati labeculam aspergant; unde aliqua ad ipsam Uni
versitatem redundet infamia.
" Statutum igitur est, quod quoties hujusmodi se tulerit
occasio, si delinquent intra Universitatem prmsens fuerit,
Vice-Cancellarius {indicia prius Convocatione) ipsum
Habitu gradui competente indutum, in Domo Convocationis
sistendum curet, ubi ipsum Vice-Cancellarius gravi ac severa
Oratione increpabit, simulque atrocitatem criminis sui ei ob
oculos ponet, deinde ipsius mandate e Bedellis inferioribus
unus singula Gradus sui insignia, primo Pileum, mox Capu-

21
tium, deinde Capam, postremo Togam detrahet; ac eum in
modum cunctis insignibus Academicis exutum et nudatum e
Domo Convocationis proturbabit.
" Quod si intra Universitatem prcesens non fuerit, Vice-
Cancellarius (indicta itidem Convocatione) ibidem delin-
quentis crimen, et pcenam Degradationis per Statuta {aut
alias ex Decreto superioris Curia, vel ex congruo) irrogandam
declarabit. Deinde, Doctorum, Magistrorum Regentium, et
non Regentium assensu rogato, Instrumentum publicum a
Registrario palam recitari faciet in quo Nomen, Gradus, et
Crimen delinquentis exponantur ; et ipse, de consensu
Doctorum, et Magistrorum Regentium et non Regentium,
Gradu omni Academico exutus et exauctoratus pronuncietur
et declaretur. Mox idem instrumentum, sigillo Officii sui
munitum, Valvis Magnae Scholarum Portae appendendum
curabit." There are only four special offences against the Statutes,
to which the Statutes themselves annex the penalty of
Degradation. 1. If any one appointed to be an Examiner, refuses to
serve in that office, or misconducts himself in it, " si in delicto
contumaciter perstiterit, illico Gradu Magistrali privetur, et
quacunque ulterioris Gradus capacitate sibi interdictum
sciat." (Tit. ix. sect. 2. §. 3.)
2. If any one presented " Ad Incipiendum in aliqua
facilitate," and having taken the oath " quod Incipiet realiter
intra annum," and having obtained no dispensation, " nihilo-
minus hand Inceperit ; privetur, ipso facto, non solum
Gradu ad quem novissime praesentatus fuerat, sed et aliis
omnibus quos prius susceperat." (Tit. ix. sect. 7.)
3. If any one does not surrender himself to an officer
producing the Vice-Chancellor's Warrant for his arrest, or
(being arrested) tries to escape, " si Scholaris fuerit, ban-
niatur, et, si graduatus fuerit, gradu privetur." (Tit. xxi.
§. 14.)
4. The order of appeals prescribed in those causes, in

22
which an appeal is given, is directed to be strictly observed,
" sub poena Excommunicationi.s, Bannitionis, et Degra
dations, ei qui secus fecerit infligenda." (Tit. xxi. §. 19.)
There is no Statute which provides that the punishment
of degradation shall be inflicted in case of the deviation of a
Graduate, either in his private sentiments, or in his public
writings, from the doctrinal standards of the Church of Eng
land, or for any other Theological cause. Nor is there any
Statute which states or implies that the Subscription to the
thirty-nine Articles of 1562, and the three Articles of 1603,
required of Graduates before admission to their Degrees, is
regarded by the University as a promise or prospective en
gagement, on the part of the Graduate, to continue, while
he shall hold his Degree, in the belief signified by that
Subscription ; or that the University confers the Degree
upon the faith and condition of such a continuance ; or
that the University intends a subsequent departure from
that belief to operate as a forfeiture of the Degree.
On the contrary, the point appears to be one which the
Statutes, by necessary implication, have determined the
other way. For the Statute, " De Auctoritate et Officio Vice-
Cancellarii," already quoted, contemplates the very case of a
suspected lapse intoheresy, or other doctrinal error, of Members
of the University, and empowers the test of Subscription to
be in that case re-administered, not to all Graduates, but to
persons in Holy Orders only: and in the event of persons in
Holy Orders declining to subscribe, and so confessing their
departure from the belief of which Subscription is the evi
dence, it directs, not that they shall be deprived of their
Degrees, but that they shall be banished from the precincts
of the University. The circumstance of Subscription being
repeated before each successive Degree under the Statutes,
instead of being made once for all; the time at which it is
required, {after, and not before, the passing of the Grace for
the Degree) ; and the form in which it is given, {de prcesenti,
not de futuro,) all appear to point to the same inference ;

23
viz. that it is not a proper Academical Test, intended as a
pledge for the future, and as the permanent condition of
Academical privileges, but an Ecclesiastical Test, incorpo
rated by the University with the form of admission to its
Degrees, in obedience either to the letter or the spirit of the
Canons ofthe Church.
The Rev. William George Ward, of Balliol College,
was admitted to the Degree of B.A. in 1834, and to that of
M.A. in 18P7, in the usual manner. It is a matter of no
toriety, that his opinions upon theological subjects were at
that time widely different from those which he now professes;
and there is no reason to suppose that he subscribed the
Articles at that time insincerely, or in any sense different
from that usually received. In 1844, ten years after his ad
mission to the one Degree, and seven years after his admission
to the other, he published in London, (being then, as now, a
Resident Member of the University,) a work entitled, " The
Ideal of a Christian Church considered," copies of which
were afterwards sold by the directions of his publisher in
Oxford. In this work, views are expressed on the subject of
the Church of Rome and its doctrines, and of the English
Reformation, and of the proper mode of interpreting the
Thirty-nine Articles, repugnant in themselves, and expressed
in language still more repugnant, to received opinions.
Public attention having been directed to the Book, the Board
of Heads of Houses and Proctors at Oxford appointed a
Committee to examine it; and the Committee having selected
certain passages for condemnation, the following Resolutions
were, upon their suggestion, adopted by the Board.
RESOLUTIONS.
" Oxford, December 13. At a Meeting of the Hebdomadal
Board, held this day, it was agreed, — That whereas it is
notoriously reputed and believed throughout this University,
that a Book entitled " The Ideal of a Christian Church

24
considered," has recently been published in Oxford by the
Rev. William George Ward, M.A., in which Book are con
tained the following passages; viz.
" P. 45. (note). — ' I know no single movement in the
Church, except Arianism in the fourth century, which seems
to me so wholly destitute of all claims on our sympathy and
regard as the English Reformation.' "
" P. 43. — ' For my own part, I think it would not be right
to conceal, indeed I am anxious openly to express, my own
most firm and undoubting conviction, — that were we as a
Church to pursue such a line of conduct as has been here
sketched, in proportion as we did so, we should be taught
from above to discern and appreciate the plain marks of
Divine wisdom and authority in the Roman Church, to
repent in sorrow and bitterness of heart our great sin in
deserting her Communion, and to sue humbly at her feet for
pardon and restoration.' "
" P. 68- — ' That the phrase, ' teaching of the Prayer
Book' conveys a definite and important meaning, I do not
deny ; considering that it is mainly a selection from the
Breviary, it is not surprising that the Prayer Book should,
on the whole, breathe an uniform, most edifying, and deeply
orthodox, spirit ; a spirit which corresponds to one particular
body of doctrine, and not to its contradictory. Again, that
the phrase, ' teaching of the Articles,' conveys a definite
meaning, I cannot deny ; for (excepting the first five, which
belong to the old theology) they also breathe an uniform
intelligible spirit. But then these respective spirits are not
different merely, but absolutely contradictory. As well
could a student in the heathen schools have imbibed at once
the Stoic and the Epicurean philosophies, as could a humble
member of our Church at the present time learn his Creed both
from Prayer Book and Articles. This I set out at length in two
pamphlets, with an Appendix, which I published three years
ago ; and it cannot therefore be necessary to go again over the

25
same ground ; though something must be added, occasionally
in notes, and more methodically in a future chapter. The
manner in which the dry wording bf the Articles can be
divorced from their natural spirit and accepted by an orthodox
believer ; how their prima facie meaning is evaded, and the
artifice of their inventors thrown back in recoil on them
selves — this, and the arguments which prove the honesty of
this, have now been for some time before the public' "
" P. 100. (note) — ' In my Pamphlets, three years since, I
distinctly charged the Reformers with fully tolerating the
absence from the Articles of any real anti-Roman determin
ation, so only they were allowed to preserve an apparent
one ; a charge which I here beg as distinctly to repeat.' "
" P. 479. — ' Our Xllth Article is as plain as words can
make it on the ' Evangelical' side, (observe in particular
the word ' necessarily') ; of course, T think its natural
meaning may be explained away, for I subscribe it myself
in a non-natural sense.' "
" P. 565. — ' We find, oh most joyful, most wonderful, most
unexpected sight ! we find the whole cycle of Roman
doctrine gradually possessing numbers of English Church
men.' "
" P. 567. ' Three years have passed since I said plainly,
that in subscribing the Articles I renounce no one Roman
Doctrine.' "
" And* whereas the said William George Ward, before the
publication of the said Book, was admitted to the respective
degrees of B.A. and M.A. of this Univeisity on the faith
of the following declaration, which declaration was made
and subscribed by him before and in order to his being
admitted to each of the said Degrees; that is to say: ' I
allow the Book of Articles of Religion agreed upon by the
* Kecital of Mr. Ward's subscription at the time of admission to his Degrees
in Arts.

26
Archbishops and Bishops of both Provinces, and the whole
Clergy in the Convocation holden at London in the year of
our Lord God 1562; and I acknowledge all and every the
Articles therein contained, being in number Thirty-nine,
besides the Ratification, to be agreeable to the word of God :
" And whereas the said passages of the said Book appear
to be inconsistent with the said Articles, and with the said
declaration, and with the good faith of him, the said William
George Ward, in making and subscribing the same:
" In a Convocation, to be holden on Thursday, the
13th day of February next, at one o'Clock, the foregoing
passages from the said Book will be read, and the following
proposition will be submitted to the House;
" That6 the passages now read from the Book entitled ' The
Ideal of a Christian Church considered' are utterly incon
sistent with the Articles of Religion ofthe Church of England,
and with the declaration in respect of those Articles made
and subscribed by William George Ward previously and in-
order to his being admitted to the Degrees of B.A. and M.A.
respectively, and with the good faith of him, the said William
George Wardfnrespecl of such declaration and subscription ."
" Before the question ' Placetne, &c.' is put, the Vice-Chan
cellor will give Mr. Ward an opportunity of answering to the
charge of having published such passages so inconsistent as
aforesaid. " If this position is affirmed, the following proposition will
be submitted to the House :
" That1 the said William George Ward has disentitled
himself to the rights and privileges conveyed by the said
Degrees, and is hereby degraded from the .'aid Degrees of
B.A. and M.A. respectively.
' First Proposed Resolution : to be submitted to Convocation on the 13th
of February.
f Second Proposed Resolution : depriving Mr. "Ward of his Degrees in Arts.

27
" Before the question ' Placetne &c.' is put, the Vice-
Chancellor will give Mr. Ward an opportunity of stating any
grounds he may have for shewing that he should not be
degraded." It will be observed, that Mr. Ward, in some of the selected
passages, speaks of his " subscribing" in a " non-natural
sense," &c. This, however, it is conceived, must be under
stood to mean, either that he assumes the correctness of the
theory of a continuing subscription, and states the sense in
which alone his subscription is to be considered as con
tinuing ; or else that, if called upon to subscribe again, he
is ready to do so, upon that interpretation which he declares
himself to have adopted, and of the consistency of which
with the intention of the authority which imposes the
Articles he professes himself to be persuaded. The fact
unquestionably is, that he has never, since graduating as an
M.A. (when he did not hold his present opinions upon the
subject), been called upon by the University to repeat his
subscription. It will also be observed, that the proposed measure of
deprivation is expressly grounded upon an alleged breach of
faith on Mr. Ward's part towards the University, with respect
to the subscriptions, 8fc. made by him at the time of his
admission to his Degrees.
Whether such a breach of faith, if the allegation were
established, would enable the University, under its present
Statutes, to resume the Degrees, may possibly admit of
doubt. But it is submitted, that (laying entirely out of the
question whatever is privately known of the history of Mr.
Ward's opinions) no retrospective inference as to the honesty
of subscriptions in 1834 and 1837 can be drawn from a
publication in 1844, which the University might properly
adjudge to be inconsistent with subscription in 1844. And,
if the imputation of bad faith is founded upon the theory of
a tacit continuing subscription annexed as a condition to the

28
Degree, it must fail, if that theory should appear to be un
sound. Nor does it seem any answer to this to say, that, if
Mr. Ward were now called upon to subscribe, (as he might
be, under the Statute de Auctoritate et Officio Vice-Cancel
larii,) he would subscribe in an evasive sense. For Mr.
Ward could not now be called upon to subscribe in respect
of his Degrees, but only in respect of his Orders : and if he
were to refuse subscription, when so called upon, he could
not for that reason be deprived of his Degrees, but would
only incur banishment from Oxford : while, if he were to
subscribe in his own sense, he would seem to stand in a very
different position, in respect of good faith, from one who
concealed his opinions, and did not give the proper autho
rities the opportunity of bringing his views to the test of the
Ecclesiastical law.
The question, therefore, simply takes this shape — whether,
assuming Mr. Ward's publication to be such as a Court of
competent jurisdiction might pronounce to be " utterly in
consistent with the Articles," in the passages objected to,
(he being a Clerk in Holy Orders,) he can be deprived of his
Degrees on that ground, by a vote of the House of Con
vocation, in the absence of any special Statute of the
University authorizing deprivation on such ground, in the
absence also of any imputation of a crime rendering him
amenable to infamous punishment, and antecedently to the
sentence of any Ecclesiastical Court, or other judicial
tribunal, upon his case ? It is conceived that a publication
of the character assumed, by any Clergyman, is a spiritual
offence, punishable in the Ecclesiastical Courts : that it
would have been punishable in the Ecclesiastical Court of
the University, (even if it is not now punishable under the
Statute against schism,) but for the Church Discipline Act ;
and that, while so punishable, the House of Convocation
could not, by a summary vote of degradation, have super
seded or anticipated the action of the Court having proper

29
jurisdiction over the case. If so, does the Church Discipline
Act, by removing the jurisdiction from the University to the
Bishop of Oxford (supposing that to be its effect) alter the
case ? If an Ecclesiastical Court, having competent juris
diction, were capable of sentencing, and were in fact to
sentence, Mr. Ward to lose his Degrees, the Statute De
Degradaiione would probably authorize the House of Con
vocation to execute such a sentence : but it is submitted
that, from the nature of the alleged offence, that Statute
would not apply under any other state of circumstances.
The second branch of this case, on which the opinion of
Counsel is desired, stands upon considerations entirely
distinct from those affecting Mr. Ward. It is proposed11 by
the Board of Heads of Houses to submit to the same Meeting
of Convocation by which Mr. Ward's case will be determined,
an alteration of the Statute " de Officio et Auctoritate Vice-
Cancellarii," by which the Vice-Chancellor will for the future
be enabled at his discretion to impose upon any Member of
the University, lay or clerical, and whether a Head of a
College or Hall or not, who may be suspected of heterodoxy,
the existing test of subscription, together with a new inter
pretative Declaration, which is to be made before subscription
in the following words, on pain of banishment from the
University :
"Ego, A. B., Articulis Fidei et Religionis necnon tribus
Articulis in Canone xxxvi0. comprehensis subscripturus,
profiteor, fide mea data huic Universitati, me Articulis istis
omnibus et singulis eo sensu subscripturum, in quo eos ex
animo credo et primitus editos esse, et nunc mihi ab Uni-
versitate propositos tanquam opinionum mearum certum ac
indubitatum signum '."
h Third -proposed Resolution : For imposing a new religious test upon
suspected members of the University.
' This declaration is proposed to be introduced in the altered Statute by a
preamble (immediately following the words " subscriptionis criterio explorandi

30
As to the legality of this, as well as the other proposition,
strong doubts have been expressed.
In the first place, this appears to be the exercise of an
interpretative, rather than a legislative power, by Convo
cation. But, under the Statute Tit. x. sect. 2. §. 2. (already
cited), the interpretative power of Convocation cannot be
exercised, with respect to Statutes confirmed by the Crown,
without the special license of the Crown. The Statute, " de
Officio et Auctoritate Vice-Cancellariif was confirmed by
King Charles I ; and it is presumed that no license has been
obtained from the Crown for the proposed interpretation.
Secondly, it seems questionable whether the House of
Convocation has the power to take away the vested corporate
rights of those who are already Members of the University,
by making the continuance of those rights depend (especially
at the discretion of an individual) upon their compliance
with an ex post facto condition, which did not exist when
they were admitted.
Thirdly, considering that the University is a national
institution, endowed by the State with singular privileges for
the sake of the benefit accruing to the nation from the
advancement of learning, and considering also that as well
the status and duties of Members of the Church of England
in respect of doctrine, as the liberties of Dissenters in the
same respect, are established by the law of the land; it
seems doubtful whether the House of Convocation has the
power to narrow the terms upon which the subjects of the

ipsi [sc. Vice-Cancellario] jus ac potestas esto," in the present Statute.) The
proposed preamble is as follows :
" Quoniam vero Articulos illos Fidei et Religionis, in quibus malesance
opiniones, et pr&sertim Romanensium errores, reprehenduntur, ita nonnulli
perperam interpretati sunt, ut erroribus istis vice et ne vim quidem adversari
videantur; nemini posthac, qui coram Vice-Cancellario, utpote minus reote de
doctrina vel disciplina Ecclesia: Anglicams sentiens, conveniatur, Articulis
subscribere fas sit, nisi prius declarationi subscripserit sub hoc forma • 
Ego, fyc."

31
Crown are now admitted to participate, and continue in the
participation, of the benefits of the University, by any new
religious test. It is believed that all the present Statutes
imposing religious tests were confirmed by the Crown in the
Reign of King Charles I.
Fourthly, it is submitted a fortiori, that as the Clergy of
the Church are responsible for the quality of their doctrine
to the Ecclesiastical Courts of the land, the House of Con
vocation cannot impose any new doctrinal test upon the
Clergy. A large proportion of the Members of the Uni
versity must necessarily be Clergy, under the Statutes of the
University, and by the constitution of particular Colleges, as
recognised by and adopted into the constitution of the Uni
versity. Fifthly, it is suggested, with even more confidence, that
no authority within the University can legally require
Clergymen or others, who are required by law upon certain
solemn occasions to subscribe the Thirty-nine Articles of
Religion, and the three Articles mentioned in the thirty-sixth
Canon, with a simple declaration of their " unfeigned assent"
thereto, to subscribe the same test at a different time with a
declaration that they do so in a sense, which is, or may be,
different from the legal sense. If this were permitted, the
policy of the law which requires subscription (being to secure
conformity in the legal sense of the Articles subscribed)
might be entirely defeated; for the intei pretation imposed
by the inferior authority would have an obvious tendency, in
the absence ofa declaratory legislative Act, to apply itself in
the mind of the subscriber to the subscription required by
law. Both subscriptions might in fact be required from the
same person in the same day, in which case it would be
clear that, without a perfect consistency of the Academical
with the legal sense, both could not be subscribed consist
ently with the legal duty of the party. Besides which, it is
submitted, that the legal duty of every Clergyman is to

32
adhere to the same in which he is required by law to sub
scribe the Articles, not only at the time of subscription, but
always; and that, if in his public teaching he afterwards
departed from that sense, he is punishable by law.
This being so, it seems difficult to conceive that he can be
too jealous of his obligation to adhere upon all occasions to
that sense, or that any authority less than the Supreme
Legislature can be permitted to inflict upon him a forfeiture
of any of his civil rights, for declining to declare that he
understands or accepts the Articles according to any private
gloss or interpretation. For, if he has even any reasonable
ground, such as might occasion difficulty to a scrupulous
conscience, for apprehending that this may not result in a
sense identical with the sense of the law, it would seem to
be a plain duty under such circumstances to abstain from
paltering with the legal test in a double sense k.
The law upon the subject of Subscription appears to be
as follows.
The Thirty-nine Articles (having been reduced to that
number from Forty-two, originally published in the reign of
King Edward the Vlth) were several times republished iu
the reign of Queen Elizabeth, and under her authority, with
variations in some (though not in all) of them, by different
Convocations of the Clergy of the Provinces of Canterbury
and York.
The first publication in the present form took place in
the year 1562.
In 1570, the Act of 12 Elizabeth, Cap. 12, " for the
Ministers of the Church to be of sound Religion," was passed.
By this Act, all Candidates for Deacon's Orders, (before their
Ordination,) and all persons to be admitted to any Benefice
* The weight of this argument seems increased, when it is considered, that
the express object of the new test, to be declared in the University Statute, (as
it is proposed to stand,) will be merely to ascertain how the person called upon
to subscribe stands affected towards the doctrine and discipline ofthe Church
of England.

33
or Cure (within two months after their induction,) are
required to subscribe the Thirty-nine Articles, the latter
with a declaration of their " unfeigned assent to the same."
And, " if any person Ecclesiastical, or which shall have
Ecclesiastical living, shall advisedly maintain or affirm any
Doctrine directly contrary to the said Articles," he shall be
cited before the Ecclesiastical Court, and (not in making his
submission) shall be deprived of all his Ecclesiastical pro
motions. In 1603, (1 Jac. I.) the Canons of that date were enacted
by the Convocations of the two Provinces of York and Can
terbury, and confirmed by the Crown, though not by Par
liament. The three Articles of the thirty-sixth Canon
combine with the Declaration of adherence to the Thirty-
nine Articles of 1562, as " agreeable to the word of God,"
a more negative and therefore less stringent Declaration of
submission to the Book of Common Prayer, &c. then in use;
viz. that it " contains nothing contrary to the word of God ;''
that it " may lawfully be used ;" and that he, the Subscriber,
will use it.
Contemporaneously with these Canons, some alterations
were made in the Book of Common Prayer, together with a
very important addition, viz. that part of the present Cate
chism which relates to the doctrine of the Sacraments, and
which was drawn up by Bishop Overall, a divine whose
sentiments are known to have been much more " High
Church" than those of the supposed framers of the Thirty-
nine Articles. These alterations and additions continued in
use till the Rebellion, though it may be doubted whether
they ever became law till the passing of King Charles the
Second's Act of Uniformity.
At the beginning of King Charles the First's reign, upon
the advice of the Bishops commissioned to examine into the
charge brought against Dr. Montague, (of having published
Works of a Popish tendency, and contrary to the Articles.)
C

3*
and who acquitted the Doctor, the Royal Declaration which
has ever since stood and now stands prefixed to the Thirty-
nine Articles in the common editions of the Prayer Book,
was issued. This Declaration (which was never confirmed
by Parliament) seems to have been understood as giving an
advantage to the High Church party, and is supposed to
have been indirectly pointed at as a grievance in a Petition
from the House of Commons to the King. {CardweWs Docu
mentary Annals, vol. i. p. 169.) It enjoins all persons " not
to put their own sense or comment to be the meaning of"
any of the Thirty-nine Articles, but to " take the Article in
ihe literal and grammatical sense ;" and it expressly pro
hibits all persons in the Universities to abstain from fixing
new senses upon the Articles " either way, other than is
already established in Convocation with our Royal Assent,"
on pain of Ecclesiastical censures.
Upon the Restoration in 1662, further alterations were
made in the Book of Common Prayer, the tendency of which
was in accordance with the views of the High Church party,
then in power. Of these alterations, those in the Ordination
Services, and the Service for Consecration of Bishops,
require to be particularly noticed. The language of these
Services, in which the distinction between the three Orders
of the Ministry had not previously been strongly marked,
was then so far changed, as to mark that distinction strongly:
and particularly an addition was made to the words pro
nounced by the Consecrator, at the moment of consecrating
a Bishop, which had previously been the same as those used
iu conferring the Order of the Priesthood, so as then for the
first time to express a difference between the office of a
Bishop and that of a Priest. The doctrine that those two
Orders were identical was held, as it is well known, by the
Presbyterians ; and at the time when this change was made,
many of the Clergy in the Church of England were of Pres
byterian opinions. On the other hand, the Roman Contro-

35
versialists had objected to the Church of England, that her
form of Consecrating Bishops was deficient in necessary
matter, as not purporting to confer any different authority
from that given to Priests; and there is historical ground
for believing that this objection had its influence with Arch
bishop Sheldon and Dr. Sancroft, who were chiefly instru
mental in promoting the change.
In 1662, the Act of Uniformity (13 and 14 Car. II. cap. 4.)
was passed, which gave the force of law to the present Book
of Common Prayer, with the Catechism and other occasional
Services, and the Services for Ordination and Consecration, as
settled at that revision.
By this Act, instead of the mere submission to and use of
the Established Liturgy, which had been required by the
previous Act of Uniformity (1 Eliz. c. 2.) and the 36th Canon
of 1603, every beneficed Clergyman is required, within two
months from his induction, to declare publicly in Church
his assent to the present Book of Common Prayer in the
following form :
" I, A. B. do here declare my unfeigned assent and con
sent to all and every thing contained and prescribed in and
by the Book, intituled, ' The Book of Common Prayer, and
Administration of the Sacraments, and other Rites and Cere
monies of the Church, according to the use of the Church of
England ; together with the Psalter or Psalms of David, pointed
as they are to be sung or said in Churches; and the Form or
Manner of Making, Ordaining, and Consecrating of Bishops,
Priests, and Deacons."
By Section 13 and 14, all the then Incumbents of Benefices
who should not before the ensuing St. Bartholomew's day
have received Episcopal Ordination, were deprived; and
Episcopal Ordination to the Priesthood, for the future, ac
cording to the form and manner of the Book then prescribed,
was made necessary to render any person capable of future
admission to any Benefice in the Church; and those who
c 2

36
without such ordination, should " presume to consecrate the
Sacrament of the Lord's Supper," were made liable to a
penalty; with an exception in favour of foreigners or aliens
of the foreign reformed Churches, acting under license from
the Crown.
By Section 17, every Governor or Head of any College or
Hall in either of the Universities of Oxford and Cambridge,
is required, within one month after his admission, publicly to
" subscribe unto the 39 Articles of Religion, mentioned
in the Statute made in the 13th year of the reign of the late
Queen Elizabeth, and unto the said Book, and declare his
unfeigned assent and consent unto, and approbation of, the
said Articles, and of the same Book, and to the use of all
the prayers, rites and ceremonies, forms and orders, in the
said Book prescribed and contained," in the form required
by Section 3. {supra.)
By Section 19, every Lecturer and Preacher in England
(the University Preachers excepted) is required to be licensed
by the Bishop, and in the Bishop's presence to read the 39
Articles, " with Declaration of his unfeigned assent to the
same :" and also to declare his assent to the Book of Common
Prayer, &c. in the form prescribed by the Act.
Sections 30 and 31, to which the attention of Counsel is
particularly requested, are as follows:
" XXX. Provided always, That whereas the 36th Article
of the 39 Articles of Religion, &c. is in the words following,
viz. " That the Book of Consecration of Archbishops and
Bishops, and Ordaining of Priests and Deacons, lately set
forth in the time of King Edward the Sixth, and confirmed at
the same time by authority of Parliament, doth contain all
things necessary to such consecrating and ordaining, neither
hath it any thing that of itself is superstitious and ungodly:
and therefore, whosoever are consecrated or ordered accord
ing to the rites of that book, since the second vear of the

37
aforenamed King Edward the Sixth unto this time, or here
after shall be consecrated or ordered according to the same
rites, we decree all such to be rightly, orderly, and lawfully
consecrated and ordered."
" XXXI. It be enacted &c. That all Subscriptions
hereafter to be had or made unto the said Articles
by any Deacon, Priest, or Ecclesiastical person whatsoever,
who by this Act, or any other law now in force, is required
to subscribe unto the said Articles, shall be construed, and
be taken to extend, and shall be applied for and touching
the said 36th Article unto the Book containing the form
and manner of Making, Ordaining, and Consecrating of
Bishops, Priests, and Deacons, in this Act mentioned, in
such sort a-nd manner as the same did heretofore extend
unto tlie Book set forth in the time of King Edward the VI.
mentioned in the said 36th Article, any thing in the said
Article, or in any Statute, Act, or Canon heretofore had or
made to the contrary thereof in any wise notwithstanding."
By tbe Act of Union with Scotland (5 Anne, cap. 8. sect. 7.)
the Act of 13th Elizabeth, cap. 12. and King Charles the
Second's Act of Uniformity, are made fundamental and
unalterable laws of the United Kingdom.
This being the state of the Statute Law on the subject of
Subscription, it remains to be considered, whether there is
a substantial divergence between the Subscription now
required by law, and a Subscription accompanied by the
prefatory Declaration proposed to be hereafter required (at
the Vice-Chancellor's pleasure) from Members of the Uni
versity of Oxford. In order to this, it is not conceived to be
necessary that the two should be obviously irreconcileable
to every mind: but it is assumed that a substantial divergence
will exist, if it should appear that the Declaration proposes
a criterion of the sense of Subscription, foreign lo and in
part exclusive of the criteria known to the law, and not
naturally or necessarily tending, when applied by right

38
reason and an honest mind, to a result identical with the
legal sense.
The objections taken to the Declaration on this head,
may perhaps appear most clearly by the following com
parison of it with the rules which (it is conceived) would
be properly applicable for the purpose of ascertaining the
legal sense of Subscription.
1. The Subscription, as administered bylaw, refers nothing
to the private opinion of the Subscriber. It requires him to
accept the Document itself, in its true sense, so far as known
to him at the time; that sense being one which is ascertained,
whenever questions arise, by the authoritative exposition of
the proper Courts, and in the mean time may be investigated
through those principles by which the Courts are guided in
their exposition of Documents of the same character. But
the proposed Declaration refers every thing to the private
opinion of the Subscriber, concerning a question of fact with
reference to each Article ; viz. what was the sense in which
the first promulgators of that Article intended it to be under
stood? If there should be a clear judicial decision upon
the point, contrary to the Subscriber's personal conviction
upon this question of fact, he is not even left at liberty
to subscribe according to the judicial decision, but is required
to proceed upon his private judgment. If a Judge inter
preting a Will in the Court of Chancery were obliged to
decree according to his sincere belief of what the Testator
meant; or if in expounding an ancient Statute he were
compelled to adhere to what he privately thinks the Legislators
meant11; it is obvious that he would frequently be precluded
from giving that Judgment which it is now his duty to give.
And the Declaration on this point seems to have a double
vice: for on the one hand it binds the Subscriber to that

k A Sfatute is never interpreted by any reference to the intention of the
Framer of the Act, or to the views of Parliament in passing, otherwise than
as the same are expressed or can be cullerted from the language ofthe Statute.

39
sense which he believes to have been intended, though it
may not be the sense to which a judicial interpretation (past
or future) would bind him ; and on the other hand, it binds
him to nothing more than what he may have persuaded
himself, by means of a more or less partial or prejudiced
historical investigation, to have been the actual intention
of the Legislators at the time. The effect of this is curiously
illustrated by the fact, that Mr. Ward, and another writer of
similar opinions, have publicly declared it to be the result of
their enquiry into the history of the times, that it was the
deliberate intention of the first propounders of the Articles
to use language, which should unite a superficial shew of
Protestantism with a studied absence of " any real anti-
Roman determination;" and it appears to be, in a great
measure, by such historical reasonings, that they reconcile
Subscription with their actual views. The Declaration would
apparently give a greater latitude to such reasoners than the
present legal Subscription.
2. The intention of the imposer, to be investigated.
according to the rules of law, is that to which obedience is
due. In the case of the Subscription required by law, the
true imposer is conceived to be the supreme Legislature for
the time being of Church and State ; aud in enquiring into
the intention of the Supreme Legislature for the time being,
all laws in force which relate to the subject matter, at what
ever time enacted, may be material. But the new Declaration,
(not to insist upon the ambiguity of the terms themselves,
primitus editos,) represents either the Convocation of 1562,
or the University of Oxford1, adopting in 1844 the sense of
the Convocation of 1562, as the imposer; and treats every
thing subsequent in date to 1562 as irrelevant to the discovery
of the sense.
1 It must be remembered, that the new Test is, by the express words of the
Statute, proposed to be applied for the sole purpose " eocplorandi, subscriptions
criterio, quo quisque modo erga docthinam et disoiplinam Ecclesi.e
* NGLlBAN.fi affect-us sit."

40
3. By law, documents of equal authority, and in pari
materia, whether contemporaneous or not, must be construed
together, so as to elicit from the whole a consistent sense ;
and if there is an apparent variance between them, the later
in date repeals or modifies, or authoritatively fixes, the sense
of the earlier: for " omne posterius majorem vim habet."
If in any thing, therefore, there were an apparent variance
between (what might originally have been considered) the
meaning of any of the XXXIX Articles, and the clear mean
ing of a later Document made binding by the Act of Uni
formity, (e. g. Bishop Overall's additions to the Catechism,
or the Ordination and Consecration Services as altered at
Archbishop Sheldon's revision,) the latter could not possibly
be put out of account in determining that sense ofthe former,
which is now law. And most assuredly, no interpretation of
the XXXVIth Article in particular would now be legal,
which adhered to its original construction, without regard to
the 30th and 31st Sections of the Act of Uniformity. The
proposed Declaration, however, does not allow the Sub
scriber to pay regard lo any Act of Parliament, Canon, or
other Document whatever, of later dale than the first pro
mulgation of the Articles, in order to ascertain the sense in
which he subscribes ; compelling him, if and so far as the
effect of a proper regard to later Documents would be to
vary the interpretation, to subscribe in that sense which has
ceased to be law.
4. By law, the Articles, in connexion with the other
Documents of like authority, and in pari materia, must be
construed by the grammatical exposition of the words they
contain, in that sense which the context, the general in
tention as collected from the instruments, and such authori
tative expositions as may exist, impose upon them. No
recourse can be had to extrinsic evidence, except to raise
and solve ambiguities : and the evidence admissible for this
purpose cannot go directly to the de facto intention, but

41
must be confined to proof of the circumstances in which the
framers stood, and the history of the terms of art (if any)
which they have used. The new Declaration, however, not
only permits but compels the Subscriber to subscribe in that
sense which he may believe to have been originally intended,
though his belief upon the subject may entirely be founded
upon the opinions of historians, or divines, or other similar
sources of information, which, would be wholly inadmissible
as evidence in Courts of Justice for that purpose.
Counsel are requested to advise, on behalf of several
Members ofthe University, who are anxious that no illegal
measure should be passed in Convocation, upon the following
questions. 1. Whether Corporations in general have the power of
passing privilegia or penal Bye-laws against their Members;
and if not, whether there is any thing in the nature of the
University of Oxford to take it out of the ordinary Rule ?
2. Whether the Statute " De Degradatione" authorizes the
House of Convocation to take away Degrees by an exercise
of its Legislative power ; and if not, whether it authorizes
the deprivation of Degrees in Arts for a Theological offence,
such as that imputed to Mr. Ward ?
3. Whether, if Mr. Ward's Case were within the class of
offences contemplated by the Statute " De Degradatione," it
would not be necessary that it should be adjudicated upon
by a Court competent to enquire into offences against the
Doctrine and Discipline of the Church of England before
the University could proceed to deprivation ?
4. Whether the proposed deprivation of Mr. Ward's De
grees can be supported in law on any other ground ?

42
-5. Whether it is competent for the University under the
Statute, Tit. x. sect. 2. §. 2. to pass the proposed new Test
without license from the Crown, supposing them to be other
wise incompetent to do so in law ?
6. Whether, assuming there to be no impediment under
the Statutes of the University, the power of compelling any
Member of the University to fe-subscribe the Articles with
the proposed Declaration ofthe sense in which he subscribes,
upon pain of banishment from the University, can be legally
conferred upon the Vice-Chancellor by the House of Con
vocation ?

OPINION.

We are of opinion, that the House of Convocation
has not the power of depriving Mr. Ward of his Degrees
in the manner or on the grounds proposed.
A Degree is a certain Dignity or Title of Honour,
which the University derives its right to confer by
Grant from the Crown, and to the Rank or Status
thus conferred the Law has annexed many privileges,
both Ecclesiastical and Civil". The University can
have no power of taking away this Dignity and the
Franchises with which it is accompanied0, unless such
power be derived from the same source, namely, Royal
Grant, or has been created by some Statute or Bye-
Law which has received the sanction of the Crown, or
been confirmed by Act of Parliament.
But upon an examination of the Statutes of the
University, we do not find any Statute which confers
upon or recognises in the House of Convocation a
jurisdiction or authority to deprive any one of its
members of his University Franchise p, except only in
the subordinate office of publicly executing the ante-

" 1 Strange, 557 ; Selden, 326.
0 See Maiden on Origin of Universities and Academical Degrees.
P The Universities were first incorporated by Stat. 13 Eliz. c. 29; and as
the powers and authorities of the House of Convocation are fully defined by
Statute, there can be no room for the claim of a prescriptive right.

44
cedent Decree of a Court of competent Jurisdiction9:
and we are therefore of opinion, that the proposed Act
of Degradation will, if it passes, be illegal' : and inas
much as, by its consequences, it would deprive Mr.
Ward of certain legal rights, we think it may be
properly made the subject of application to the Court
of Queen's Bench, and that such Court would by
Mandamus compel the University to restore Mr. Ward
to his Degrees3, and to the Status and Privileges which
he now holds in respect of them.
We desire to observe t, that we give no opinion on
the question whether Mr. Ward, by the publication of
the Doctrines contained in his Book, has or has not
committed an offence against Ecclesiastical Law ", which
might be made the subject of a proper judicial pro
ceeding before a competent Tribunal ; but simply that
in our view of the case the House of Convocation is
not such a Tribunal, and that the notion that it can
degrade by virtue of some general or legislative power,
appears to us to be erroneous.
Should the Resolution pass, Mr. Ward may have
another remedy, namely, an appeal to the Crown as
Visitor of the University ; and this may be resorted to
even if the Court of Queen's Bench should, on an ap
plication for a Mandamus, decline to interfere.
With respect to the Second Statute, which in effect

t See Bagge's Case. 1 1 Cote, 93, b.
r Kex. v. Richardson. 1 Bun. 517.
8 Bentley's Case. 1 Strange, 557, Lord Raymond, 1334.
' Cases Tempore Hardwicke, 212.
» See the Proclamation of James I. prefixed to the Articles, and Stat. 13
Eliz. u. 12.

45
proposes to annex a new sense to Subscription, We
are of opinion that it is contrary to Law". The Law
requires the Clerical Subscriber to take the Articles
in their literal and grammatical sense, but the proposed
Statute requires him to take them in that sense in
which he believes them to have been originally framed y
and promulgated, and also in the sense in which he
believes them to be now accepted and taken by that
Body which at the time of his Subscription constitutes
the University2. Thus the belief or conjecture of the
Subscriber upon these two difficult subjects of enquiry
is substituted for the legal interpretation. Should
this Statute pass, protesting Members of Convocation
might perhaps appeal to the Queen in her capacity of
Visitor of the Unversity; but a shorter remedy will be,
to apply for a Prohibition, in case the Vice-Chancellor
shall proceed to require any Member to subscribe the
Articles with the proposed Declaration.
JOHN DODSON.
RICHARD BETH ELL.
Doctors Commons,
Jan. 17, 1845.

* 13 and 14 Car. 11. u. 4. The Preface to the Articles.
y primitus editos.
1 et nunc mihi ab Universitate propositos.

SUPPLEMENTARY NOTES
SENT IN WITH THE CASE FOR THE OPINION OF COUNSEL.

On the history and nature of Academical Degrees.
Tins is a subject involved in considerable obscurity; and there is
perhaps no publication in which more information relating to it may
be found, than in Professor Maiden's little work upon " The origin
of Universities and Academical Degrees;" a Copy of which is left
herewith. The attention of Counsel is particularly requested to the
passages marked at pp. 21, 54, 76, 110 — 115.
From some of these it will be seen, that, from a very early period,
the Degrees of Universities acquired a definite character under the
authority of Popes and Princes; and that, by special Papal grants,
the Degrees of particular Universities were rendered valid licenses to
teach in the faculties in which they were given, not only within the
limits of the University by which they were conferred, but throughout
Christendom, (p. 21.) And it will also be seen, that " such privileges
as the see of Rome claimed the power of bestowing, were given to the
University of Oxford," by Bulls and Constitutions, in which special
regulation was made as to some of the Degrees conferred there.
It will be remembered, that, during all the medieval period, the
power of teaching publicly could not be assumed without license from
the Church.
To particular Degrees (e. g. that of Doctor) large general privileges
were given by the Canon law. (2. Ayl. Oxf. 195, 196.)
By the later Statute law of England, and by the course of the
Ecclesiastical law down to the present time, similar incidents have
been annexed to particular Degrees. Instances occur in the Act 21

48
Hen. VIII. cap. 13. sect. 23. enabling " Doctors and Batchelors of
Divinity, Doctors of Law, and Batchelors of Law Canon, which
shall be admitted to any of the said Degrees by any of the Universities
of this Realm, and not by Grace only," to hold pluralities in the
Church: the Act 13 Eliz. c. 12. sect. 6: the Act 17 Car. II. c. 3.
sect. 6: and the 127th Canon of 1603, which requires every one
who shall be admitted " a Chancellor, Commissary, or Official, to ex
ercise any ecclesiastical jurisdiction,'' to be " at the least a Master of
Arts, or Batchelor of Law." By the Constitution of the College of
Advocates, under Royal Charter, the Degree of D.C.L. is a necessary
qualification for admission to that body.
The principal, if not the only, decided Case upon this subject,
(degradation having always been a punishment of extremely rare use,
and in fact scarcely known in practice, in either University,) is that
of Dr. Bentley, who was deprived of all his Degrees in 1817, by a
vote of the House of Congregation at Cambridge, without citation or
hearing, on the relation of the Vice-Chancellor that he had been
guilty of a contempt towards the process of the Vice-Chancelloi's
Court. The University had by their Statutes express power to deprive
" pro ulla causa rationabili." Dr. Beniley applied to the Court of
King's Bench for a Mandamus, which was granted; the whole Court
resolving, " that a Mandamus would well lie in this case, because
these Degrees in the University were to be looked on as more than
bare titles of honour or -precedency, several temporal advantages
being annexed to them by Acts of Parliament," (2. Lord Raymond,
1338.) In their return to the Mandamus, the University stated the
proceedings, the cause, and the material parts of their Statutes : and
the Case was twice fully argued, first by Comyns, (afterwards C. B.)
and afterwards by Yorke, then Attorney General, for the University.
At the first hearing, " the whole Court were strong of opinion that
the return was ill, and that a peremptory Mandamus ought to issue."
(2. Lord Raym. 1838.) At the second hearing, Yorke admitted that
" the power of granting Degrees flows from the Crown;" and that
" if the Crown erects an University, the power of conferring Degrees
is incident to the grant." But he contended, that " those Degrees
cannot properly be called freeholds, or civil temporal rights : they
were originally only in nature of licenses to Professors in several
Professorships, and are now titles of distinction and precedence.''
" They are taken notice of '," he said, "in Acts of Parliament for
collateral purposes: and though the Acts have annexed collateral
privileges to them, that will not alter the nature of them, nor take

49
away the power the University had over them before. It does not
follow, that, if temporal rights are annexed to these Degrees, the
University would be deprived of their power of degrading." The
Court, however, decided, that (as it did not appear by the return that
redress could be had elsewhere) a peremptory Mandamus for Dr.
Bentley 's restoration to his Degrees ought to issue : considering the
ordinary rules as to the removal of members of Corporations to apply,
and holding that a Degree was such a right as could not be taken
away by the University, except in a proceeding warranted by their
Statutes, and conducted according to the rules and principles of law.
" The Court," says Lord Fortescue, (himself one of the judges who
decided the Case,) " thought most of the objections to the return to
be good;" though it grounded its judgment only on one of them.
(Fort. 205.) The judgments delivered by the different members of
the Court will be found most fully reported in 1 Strange 557 : from
whence they are copied into Duke's Charitable Uses, 250.
Before leaving this subject, it may be expedient to notice, that
there are five distinct modes of proceeding, by which the University
of Oxford grant Degrees, only one of which is noticed in the Case,
as being at once the ordinary method observed with respect to Mem
bers of the University, and the method actually observed in
Mr. Ward's instance. With regard, however, to the question of the
nature of Degrees, and their existence in the view of the University
apart from mere Academical faculties or functions, — as also with
regard to the question, how far there is a real connection between
the Degree and Subscription to the thirty-nine Articles of 1562, and
the three Articles of the thirty-sixth Canon, the other modes of con
ferring Degrees may perhaps be considered not irrelevant.
The Ordinary mode is that by Exercises, and Graces in Congre
gation : of which a full account is given in the Case. The four
Extraordinary modes (all of which are in actual use) with their
incidents, are the following.
1. Gradus ex decreto Convocationes vel Congregationes ;
granted to Members of the University by special dispens
ation.
2. Gradus per diploma : granted to Members or Non-Mem
bers, by vote of Convocation.
3. Gradus ex incorporatione, or " ad eundem:" and granted
to Graduates of any other University desiring to become
Members of the University of Oxford, by vote of Convo
cation. D

50
4. Gradus honoris causd: granted by vote of Convocation to
persons of distinction, whether Members of the University
or not : but most usually to strangers.
No Subscription to the Articles, or any other Religious test, is
required for admission to any Degree by either of these four modes.
The three former confer a full participation in all the privileges
and franchises of the University upon those who receive them,
if Members (or should they afterwards enrol themselves as Mem
bers) of the University : the fourth does not. — And the second of
these modes may be, while the fourth constantly is, resorted to for
the purpose of conferring the external status of the Degree upon
strangers to the University, intending so to continue.

II.
On the history of Subscriptions in the University of Oxford.
There was no Statute of the University which required Subscrip
tion to the Thirty-nine Articles, or any other Theological test, before
Matriculation, or before admission to any Degree, till 1576.
The passing of the Act of 13 Eliz. cap. 12. having for the first
time given a legal establishment to the Thirty-nine Articles of 1562,
and required Subscription to them from all the existing as well as all
future Clergy, the Bishops and the Heads of the Universities then
(in 1570) began to press Subscription " to the Liturgy, Ceremonies,
and discipline of the Church." (Wood's Annals, vol. 2. 172.)
Canons for this purpose were passed in the Convocations of the
Clergy, held in 1571 and 1575.
In 1576, and 1581, Statutes were passed by the House of Con
vocation at Oxford requiring every Graduate on his admission to
each Degree, and every Student above twelve years old on his matri
culation, to subscribe the Thirty-nine Articles : but no particular form
of Subscription or accompanying declaration was required. ( Wood's
Annals, vol. 2. pp. 205, 257.) — No further Statute was passed upon
the subject till 1617.
That no reliance was placed upon this Subscription by the Puritan
party, then dominant in the University, as adequate for the exclu
sion of the Romanising party of the day, is evident from the History
of the times. For it appears that occasional tests of a very different
character were imposed by the individuals in authority upon sus
pected and obnoxious persons ; (see Wood's Annals, vol. 2. p. 174.1

51
and graces for Degrees were then frequently stopped by majorities in
Congregation, " and they could never pass," (says Wood, p. 174.)
" unless they had large and sufficient testimony of their faith, and
had purged themselves by oath of all heretical opinions." Yet,
during the whole of this excited period, there is no recorded instance
of any Graduate having been deprived of his Degrees for a Theolo
gical cause : and many notorious Romanists lived and died unmo
lested in the University.
In 1584, Archbishop Whitgift issued his celebrated Articles touch
ing preachers and other orders for the Church, by which he directed
Subscription to be required by all Ordinaries, from all who were to
be admitted " to preach, read, catechise, minister the Sacraments, or
exercise any other Ecclesiastical function, in the form ofthe three
Articles afterwards adopted into the thirty-sixth Canon of 1603.
These orders had not the force of law, but they were enforced and
obeyed in many places. In 1589, Sir Christopher Hatton, then
Chancellor of Oxford, sent the second and third of the Archbishop's
Articles (omitting the promissory words in the second) to the
University, with a Letter in these words : — " Forasmuch as by your
Statutes and orders Subscription is so oft required, I have thought
it convenient for the avoiding of all exceptions, doubts, or quarrels
which might be made, to commend unto you one direct and plain
fonn to be used and observed by every one according to your several
Statutes, (saving that I leave you to your own course for Subscription
used in your matriculation,) without either addition, substraction, or
qualification of any thing therein contained, in manner and form as
here ensueth, &c." (2. Wood's rfnnals, p. 238.)
The Archbishop's Articles were very distasteful to the Puritan
party, and Hatton's orders do not appeal- to have been acted upon.
Hatton himself complains, in a Letter of the succeeding year, that
nothing has been done in the matter. And it is stated by Wood,
(p. 278.) that the first Subscription to Whitgift's three Articles
which appears upon the University Registers, is that of one Bull, (a
suspected Graduate) in 1602.— The Chancellor's injunctions had
much the same kind and degree of authority in the University at
that time, which was conceded to those of the Archbishop in the
Church. In 1616, (Wood's Annals, p. 323.) King James the First, being
informed of the increase of Calvinism and Puritanism in the Univer
sity, and that.for want of Subscription to the three Articles con
tained in the thirty-sixth Canon, not only Lecturers, but divers other

53
preachers in and about the University positively maintained such
parts of doctrine as were not maintained or allowed by the Church of
England," sent a series of Royal Injunctions to the University, of
which the two first are thus stated by Wood.
" 1. His Majesty signified his pleasure, \haXhe would have all
that take any Degree in Schpoles to subscribe to the three Articles.
" 2. That ho Preacher be allowed \o preach in the town, but such
as were conformable, both by subscription, and every other way."
' Upon this, a Committee of Delegates, of which Laud (afterwards
Archbishop) was a member, was appointed by the Convocation of
the University, i to. draw up Statutes in accordance wijh the King's
command: and their labours., (which, in Wood's opinion/would have
been fruitless, hut '..for- Laud's zeal in the work,) resulted in the
adoption by the University in the following year, (1617,-)of. Statutes
for Subscription at the time of graduating, whieh are substantially the
same with those now in force, no material change having peen made
at the general revision and republication of the University Statutes
in their present shape in 1633. At the same time the Statutes which
have since regulated the granting by the University of licenses " con-
cionandi per omnem Angliam" (Tit. ix. sect. 9. §. 1, 2.) were also
drawn up and passed.
The adoption of these Statutes, says the Historian of Oxford,
" was the first step towards the suppressing of that reputation whiph
Calvin and his writings had attained to in the University." {2. Wood's
Ann. p. 323.)

THE END.

BAXTER, PRINTER, OXFORD.

YALE UNIVERSITY LIBRARY

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