of the grounds on which they rely, and these documents have, we understand, been furnished to and exchanged with the solicitors for these persons, so that each is in full possession of the case of the other. From the reply put in by the Provost and Fellows, it appears to us that the questions now to be discussed are mere questions of law, and it is the wish of the Visitors that the proceedings should be regulated, as nearly as the case will admit, according to the forms adopted by the ordinary courts of justice, and we rely on our learned Assessor to carry out this intention. Mr. PIGOT, Q.C., for D. C. Heron.-May it please your Graces, I appear on behalf of Mr. Denis Caulfield Heron to state the circumstances and reasons on which he now appeals to your Graces. By his memorial, presented to your Graces, he has prayed that you will institute an inquiry into his case and adopt such means as may seem good to your Lordships for securing to him the advantages of scholarship to which he is advised and believes he is rightfully entitled. Mr. Heron has in that memorial fully set forth the circumstances under which he appeals from the decision of the Provost and Senior Fellows of Trinity College, and I shall state from it so much as is necessary for the purpose of putting the court in possession of the merits of his case. [Counsel then proceeded to read the portions of the memorial in the introduction, ante pp. 2, 3.] The board, &c. have, in their answer, with great candour admitted the facts stated in the memorial, so as fairly to raise the question of law. [Counsel here read parts of the answer of the board, see ant. pp. 7, 8, 9.] Thus there is no controversy as to the manner in which the examination has been held, and if Mr. Heron had been elected Calcott must have been excluded. On appeal from that decision of the Board the question, whether Roman Catholics are eligible to, or should be excluded from scholarships, now for the first time comes to be solemnly argued. It is not, however, the first time that it has been agitated. In the year 1836 proceedings had been instituted with a view of putting the question in course for adjudication, but the party mistook his mode of proceeding. He had recourse, in the first instance, to a court of law. That tribunal was found inapplicable; and he died before he could bring the question before the Visitors. In discussing the legal question now submitted to the Court, it is very important to consider what was the state of the law in the earlier times in order to come to a right understanding as to what is the law at present, in relation to scholarships of this College. The first and material question which presents itself is, what was the law on this subject, as affecting Roman Catholics, prior and up to the passing of the Relief Act in 1793 (33 Geo. III. c. 21,); what was their condition up to that period? My first proposition is, that there was no parliamentary enactment, (there certainly was not any principle of common law,) which, (for I am now considering the question independantly of College statutes, charters, or ordinances,) precluded Roman Catholics from becoming scholars. From the period commencing in the reign of Henry VIII., and terminating in 1793, when the Roman Catholic Relief Act was passed, a line of distinction clear, plain, and broad is to be found between the provisions, applicable to certain classes in the College, and those applicable to all others in the College, including as I shall show the scholars. The Irish statute of the 28th Henry VIII., c. 13., entitled an Act against the authority of the Bishop of Rome, required that the oath of supremacy contained in the 6th sec., should be taken by persons specified in the 7th sec. namely, among others, "all and every person, at the time of 66 66 his or their entry into religion, and every other ecclesiastical person, at the time of his taking of orders, and all and every other person which shall be promoted to any degree of learning in any university within the land, at the time of his promotion or preferment." It is true that Trinity College was not then incorporated, though a university, as is well known did exist as a seminary of learning; but the statute was material as shewing that this oath of supremacy was, so far as universities were concerned, pointedly confined to those who should obtain any degrees of learning. That act, though repealed by the 3d and 4th Philip and Mary, c. 8., was re-enacted in nearly the same terms by the 2nd Elizabeth, c. 1. The 7th section contains the oath of supremacy, and by the 10th sec. " every person "which shall be promoted or preferred to any degree of learning in any university that shall hereafter be in the realm, before he shall be preferred to any such degree of "learning is required to take that oath." The English Act of 3 and 4 William and Mary, cap. 2, was extended to this country by Yelverton's Act, the 21st and 22nd George III. cap. 48. sec 3. Ireland prescribed another oath of supremacy, and a declaration against transubstantiation, which every person being a master, governor, head, or fellow of the College or University of Dublin " was bound to take and subscribe. These were the only acts which were in force in relation to Universities, up to the passing of the statute in 1793, with the exception of the 17th and 18th Charles II., ch. 6. By the 5th section of that Act, "all Masters and other heads, Fellows, Chaplains, and Tutors of, or in any college, hall, house of learning, or hospital, and every public professor in, and reader in any Universities, College or Colleges, which are or shall be within this realm," were bound to subscribe a declaration to the following effect :-"I do declare that it is not lawful upon any pretence, to take arms against the King: and that I do abhor that traitorous practice of taking arms by his authority, against his person, or against those that are commissioned by him; and that I will conform to the liturgy of the Church of Ireland, as it is now by law established; and I declare," &c. denouncing any obligation from the oath called the solemn league and covenant. The first part of this declaration was repealed by the 4th Geo. I., ch. 3., as inconsistent with the principles of the revolution of 1688. The rest, respecting a statement of religious faith, remains. From all this it is plain that throughout the whole progress of parliamentary legislation, from the reformation downwards, the legislature had constantly in view the distinction between the heads and fellows of Colleges and those taking degrees in learning, from others in the institution; and that, in relation to the religious distinction of those very persons, passed the act for securing their conformity to the Protestant liturgy, which manifestly does not include Scholars. So far, neither the statute law of the land, nor the common law, excluded Roman Catholics from scholarships. Now, what was the state of the law in relation to the charter statutes of the college?-On examination of these it will be seen, that a corresponding distinction existed to that which prevailed in the statute law of the land. The Corporation of the College includes the Provost, Fellows, and Scholars: The heads of that corporation are the Provost and Fellows. With regard to the Provost, he must, by the letters patent, comprising the charter statutes of Charles I., have a religious qualification, "Sit etiam professor in sacrâ theologiâ, vel ad minimum Baccalareus in eâdem facultate," (a) one of his duties, is to assist at administration of the sacrament of the Lord's supper on particular days, as appears from the chapter de cultu (a) Appendix, p. v. divino. (a) There is a distinct regulation as to all the Fellows being Protestants in the same chapter (b); but no such provision was requisite, and therefore none such is made in relation to graduates or scholars. With respect to scholars, when the crown thus took upon it to legislate for the college, it did not exclude Roman Catholics from scholarships by any distinct regulation concerning scholars; but they and all other classes comprised under various denominations as "Scholares," "Studentes," and "Studiosi," were left to, and controlled by the rules, for the general discipline of the college. Thus (c), the Provost and Fellows were bound to see that no Roman Catholic doctrines were propounded or cherished privately or publicly within the college. This was a general prohibition of these tenets embracing scholars, because embracing all students. So too, Scholars as well as all other classes were bound, till the dispensation, by Geo. II., p. 339, to attend prayers at St. Patrick's Cathedral, on Sundays in lent (d); to join in the daily prayers according to the ritual of the Protestant Church, (e); and in daily reading or hearing of the Bible, (f) and to attend chapel. (g) The catechist was to instruct in the catechism all the students (for such is the meaning of scholares (h); as it is explained in the same passage, "Hujus auditores tam Baccalaurei quam omnes studentes juniores." Auditores being not mere listeners but persons engaged in the exercise, as appears by regulations with regard to Greek, Hebrew, and Divinity lectures, and disputations in which the word is so used, especially in the last case-" Auditores cujuslibet classis respondebunt, et opponent per vices." The dean was required to punish, by fine or cor (b) Ap. p. ix. "Assistat," &c. (d) Ap. vii. "Post," &c. (f) Ap. p. viii. "Tempore," &c. (k) Ap. xi. "Volumus," &c. (a) Ap. p. viii. "Sacrosanctum," &c. |