"natural station, viz. :-immediately after the fellows and "fellow commoners, but above the pensioners and other "students. It is true that the Provost, Fellows, and "Scholars are called the 'nobiliora membra,' but this lan

guage is not employed to distinguish the scholars from "the other students who are not considered members of "the college; but it is used in contradistinction to the ignobiliora membra,' the cook, butler, and other menials, "for, after speaking of the nobiliora membra, the first "chapter proceeds thus: His annumerari volumus tan

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quam membra ignobiliara sed tamen huic copori ommino "necessaria inferiores aliquot ministros cujusmodi sunt coquus manceps janitor, &c.' The eleventh chapter "directs that the scholars, in presence of the fellows, "modeste et humilitèr se gerant capitibus denundatis, a "sufficient proof that no approach of academic rank was

intended to exist between the scholars and fellows; and "the ninth chapter directs, that the scholars shall be ser"vientes ad mensam præpositi, a sufficient proof that they 66 were not intended to rank above the fellow commoners, "who were to dine at the table on which the scholars were to wait.

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"The introduction of the word scholars into the name of "the University had an obvious propriety: it was a literary institution, and its name naturally included, not only that "of the head, which was almost essential to every corporation, but also of those who were to impart, and of those "who were to receive instruction within the University. "It has been supposed by many, and not without some reason, that the word 'scholares' in the name of the University, was intended to designate the students generally, and not those only who are termed scholars "of the house."

Thus it is plain, that the object of the scholarship was to aid the student in his studies. In all this the scholar

The

resembles the sizar; and that resemblance is still further illustrated by the qualification required in each. former must be "ad logicam in aulâ descendam idoneus,”(a) the latter "modò idoneus sit auditor logices." (b) charter statutes, therefore, appear to indicate, that both must be students before they become scholars or sizars.

The

If, then, as I have shown, scholarship is incident to studentship, does it not follow, that the Roman Catholic being admitted a studiosus, will not be debarred from the incidents to that character by reason of his religion? Rewards, which stimulate to study, are not less important than corrective discipline, which represses what is wrong. Why is it that the Roman Catholic student is allowed the inducement of sizarship, if he be not allowed the similar one of scholarship? The only privilege which the scholar has is the elective franchise; but that has nothing to do with the academic character. It was not conferred when scholarships were instituted; for the elective franchise was, for the first time, granted by the charter of James I., and the College was founded by Queen Elizabeth. Does any argument arise from the impolicy of granting this franchise to Roman Catholics, as indicated by the Act of 1793 ?-Far from it. On the contrary, the very Act which was the foundation of the letters patent of 1794, which, as we contend, opened scholarships to Roman Catholics, itself conferred the elective franchise on them;and if Roman Catholics were excluded from scholarships that would present this anomaly, that they would be the only class of electors, after the Act of 1793, from which Roman Catholics would be excluded. No argument can be drawn from the scholar's oath to obey the statutes. truth that is begging the very question in dispute,-namely, what statutes and regulations they are bound to obey. But

see how these oaths are practically modified. Both the fellows and scholars swear, not only to obey the statutes of the College themselves, but also to see that others observe them; and yet, since the admission of Roman Catholic students under the letters patent of 1794, the reading of the Bible during dinner, and other religious observances, are now omitted. It cannot be contended that the fellow's oath is thereby violated. But the question as to the oath to be taken by scholars is altogether premature; for it is not to be taken till after election. Besides, the oath cannot be itself used as furnishing an argument for the exclusion of Roman Catholics. An oath is a personal obligation, and may be a personal bar. It is the test of the conscience of him who takes it. If he can take it with safety to his own conscience, and without violation of his religious belief, the object of the oath is answered, and no objection can be made. Though Mr. Heron be admitted, the heads of the College will still be Protestant-the administration of its funds will still be in Protestant hands,-but the incentives to learning and industry will be enlarged by opening to Roman Catholics that object of just and honourable ambition to which neither the statute law of the land, the common law, or the local regulations of the College, forbid him to aspire. As to the mode of granting relief, if the Court be in favour of my client, there can be no difficulty, but I abstain at present from that consideration, conceiving the question of law is alone now to be decided.

Mr. MOORE, Q.C. for the Provost and Senior Fellows of Trinity College:

The question now before the Court is purely a legal one, and I shall, agreeably to the recommendation of the Court, endeavour to confine myself strictly to a legal consideration of it. On the part of my clients I am instructed to say, that they are most willing and anxious to submit fully to

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the consideration of the Court this grave and important question whether by the statute law of this country, or by the statutable regulations, or charters of Trinity College, Roman Catholics are admissible to, or excluded from, Scholarships. It is important that such a question should not be left in doubt, and it has now come before the Court in such a manner as to admit of its final determination. I am bound, however, on their behalf to submit to the Court, in the first instance, the precise position in which the College stands in relation to the relief sought by the appellant, inasmuch as the College, though submitting the general question to the Court, have yet protested against its jurisdiction to grant the particular relief sought in this case. The mandamus directs the Visitors "to hear and determine "the said appeal of the said Denis Caulfield Heron, and give such judgment, and make such order therein as shall "to you, as such Visitors of the said College as aforesaid, "seem reasonable, and fit, and consonant to the true intent and meaning of the Statutes of the said College, and the laws "of this realm in that behalf." Now, the relief sought by the appellant in the prayer to his Memorial, is—" that you "will institute an inquiry into the case, as detailed in his Memorial, 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." So far as the inquiry into the case, and the question arising generally upon it, my clients have not the slightest objection; but I submit it is quite beyond the power of the Court to make any adjudication to secure to the appellant the advantages of Scholarship. Against the granting this latter part of the relief sought by the appellant, it is, that the Provost and Senior Fellows of Trinity College respectfully protest. The election of Scholars is entrusted by the statutes to the Provost

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and Senior Fellows exclusively. (a) The Electors are bound by a solemn oath, administered after the parts of the statutes relating to the subject have been read to them, to elect such persons as in their consciences they believe those statutes mean or openly describe, without affection, dislike, or favour. (b) As has been already observed on the other side, regard is to be had in the election to four distinct considerations,—the poverty, ability, learning, and moral character of the Candidate. As to two of those qualifications, namely, ability and learning, there had been an examination by which Mr. Heron's relative position had, in the opinion of the Electors, been ascertained, and marks had been given to him and each of the other candidates, denoting their respective merit on those points. These criteria this Court can still have recourse to on an investigation; but, with regard to the two other qualifications, namely, poverty and moral character, no possible ground can be suggested by which this Court can arrive at a knowledge of the relative claims of any of the Candidates. The Court is, therefore, without information on two of the four qualifications on which the Electors had come to their decision, and it is for that reason impossible for this Court now to comply with that portion of the relief sought for by the appellant.

The ASSESSOR-I have read the appeal and the reply to it; and it strikes me that the point, upon admission, is now so narrowed, that if the Court be of opinion Roman Catholics are eligible to Scholarships, it must follow that the appellant has been illegally excluded.

Mr. MOORE-Admitting, even, that the electors did come to a wrong conclusion, and that the sole ground of exclusion was the religion of the appellant, how could Mr. Heron be admitted a Scholar without displacing some (b) Ap. p. x.

(a) Ap. p. vi. "In Discipulorum," &c.