"is wont to make out a list of the Candidates, and mark "after the name of each a number, (as 1, 2, 3, &c., up to "9), indicating the order of merit of the Candidates "answering to himself. That from these lists another list "is prepared, in which the sum of the marks given to each "Candidate by the several Examiners is entered opposite "the name of each Candidate.

"That after the last Scholarship Examination, Dr. Luby, "one of the Examiners, showed to the Candidates for scholarship the final list as prepared, which was as "follows:-Nesbitt, 11; Rutledge, 11; Davis, 12; Irvine,

12; Denis C. Heron, (your memorialist) 13;-—-eleven "Candidates, the sum of whose marks amounted to 14, 15, " or 16; Calcott and three other Candidates, whose marks "amounted to 17, then the rest of the Candidates, whose "marks amounted to more than seventeen.

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"That the Examiners usually elect the Candidates to “fill the vacancies in scholarship according to the merit of “their answering, as indicated by their position on this list, (unless there be some weighty reason for departing from "such a course), and at the last election, Nesbitt, Rutledge, Davis, Irvine, the 11 Candidates whose marks amounted to “14, 15, or 16, and Calcott, were elected to fill the sixteen "vacancies then existing, and your Memorialist was not "elected, although his answering was judged by the Exa"miners to be superior to twelve of the Candidates so "elected.

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“That upon the 12th June, the day appointed by the "statutes for the election of Scholars, your Memorialist was sent for by his tutor, Mr. Jellett, who then informed "him that he (Mr. Jellett) had been sent for by the Board, "and asked why your Memorialist had not taken the "Sacrament according to the Church of England, and "whether your Memorialist was willing to take the Sacrament, to which queries he (Mr. Jellett) had answered

"that your Memorialist was a Roman Catholic, and had "not gone in for the Scholarship Examination with any “intention of conforming to the religion of the Church of England. Mr. Jellett then asked your Memorialist if he was satisfied with the answers he (Mr. Jellett) had truly stated as your Memorialist's reasons for not taking the "Sacrament.

"That upon a subsequent occasion, Mr. Jellett stated to your Memorialist that he believed Roman Catholics were by law excluded from being Scholars, and that the taking "of the Sacrament was only required as a test, but whether "the taking the Sacrament was the result of custom or a bye-law of the Board he could not say.

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That your Memorialist waited on the Provost, and "was informed by him that the Board considered Roman "Catholics were excluded from the Corporation of College, "and therefore from Scholarship by the Emancipation Act "of 1793, and that he (the Provost) did not know of any "other Act or Statute relating to the question; and that "in case your Memorialist should present himself as a "Candidate at any future examination for Scholarship, he (the Provost) believed that the Board would reject him on account of his being a Roman Catholic-no matter "how good his answering might be.

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"That from the inquiry which was made of your "Memorialist's tutor by the Board, and from the opinion "of the Board as stated by the Provost, your Memorialist "believes that he was not elected by the Examiners, solely on account of his being a Roman Catholic.

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"That formerly no test of taking the Sacrament was "required of Candidates for Scholarship, and such custom "has arisen of late years, by which Roman Catholics are prevented from reading for Scholarship, so that few cases like the present have occurred."

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The Memorialist then submits that the Visitors, as well

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by the common law right of visitation vested in them, as also under the charters of Elizabeth and Charles I., were "a competent tribunal to determine all doubts as to the construction of College law respecting the admission of "Roman Catholics to Scholarships," and "to redress the wrong he had suffered by the conduct of the Examiners “in not electing him to the Scholarship, solely on the ground "of being a Roman Catholic." The Memorial then set out such portions of parliamentary statutes and of College charters and statutes as Mr. Heron relied on as establishing his right to be elected, and prayed that the Visitors would "institute inquiry into the case, and adopt such means as might seem good to them for securing to him the advan"tages of Scholarship, to which he is advised and believes "he is rightfully entitled."

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The Visitors declined to comply with the prayer of this Memorial, conceiving that the Memorialist had not made out a case for their interference in the matter; and, in consequence, Mr. Heron, on the 12th of June, 1844, caused a writ of mandamus to be issued out of the Court of Queen's Bench, commanding the said " Lord Archbishop of Armagh " and Lord Archbishop of Dublin, being such Visitors of "the said College as aforesaid, and each of them, that they "should, without further delay, proceed to hear and deter"mine the said appeal of the said Denis Caulfield Heron, "and give such judgment and make such order therein, as "should to them, as such Visitor or Visitors of the said College as aforesaid, seem reasonable and fit, and con"sonant to the true intent and meaning of the statutes of "the said College and the laws of this realm in that behalf, "or show cause to the contrary."

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To this mandamus the Visitors made their return on the 2nd November, 1844, and thereby, after setting forth certain portions of the statutes and charters of the College, stated that, under and by virtue of the provisions therein con

tained elections were made to fill the vacant places of scholars by the Provost and senior fellows in the manner in that behalf set forth; that the examination was held in June, 1843, pursuant to the said statutes, by the Provost and senior fellows, and that on the 12th of June, being the day of the election, "the said Provost and Senior Fellows "elected to these sixteen vacant places of Scholars in the "said College, sixteen of the Candidates for such vacant places, and that the said Provost and Senior Fellows did "then and there reject the said Denis Caulfield Heron, and "decline to elect him to one of the said sixteen then vacant

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places of Scholars in the said College, and that upon the day appointed by the said statutes in that behalf, the "said sixteen Candidates so elected were duly admitted "according to the said statutes into such the said sixteen “then vacant places of Scholars in the said College, and "that thereupon the said number of seventy Scholars in "the said College, as directed by the said statutes, was

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then and there filled up, and the election of Candidates "to the said sixteen vacant places for Scholars in the said College perfected and completed by the said Provost and "Senior Fellows, according to the form so directed by the "said letters patent and statutes, and that the sixteen "Candidates who had been so elected into the said sixteen places, then vacant for Scholars in the said College, were thereupon declared to have been so elected such Scholars "by the said Provost of the said College as required by "the said statutes, and were afterwards duly admitted "into, and have since enjoyed the rights and privileges of "Scholars of the said College."

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They further returned, that by the Letters Patent of 3 Wm. IV. they were bound to hold visitations only when "in their discretion they should deem it expedient from just and weighty causes." That they had no jurisdiction or authority, save in such matters as were expressly stated in

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the Charters and Letters Patent of Elizabeth and Charles I. to be submitted to them, and that they were not bound to exercise such authority or jurisdiction as was in them, according to the discretion so vested in them. That they were advised, and submitted, "that the said Provost and "Senior Fellows for the time then being were fully and wholly authorized and empowered by the said Royal Charters, or Letters Patent, and Statutes then in force (of themselves), finally to perfect and complete the elec"tion of Candidates for the said sixteen places for Scholars "in the said College, vacant in the said year, 1843, "without any appeal from such election when completed " in the manner prescribed by the said respective Charters, or Letters Patent and Statutes to them as such visitors "of the said College."(a) And that they had no jurisdiction to hear the matter of the appeal, or grant the relief prayed. To this return Mr. Heron objected, on the following grounds.

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That it appeared by the return, and the whole of the charters and statutes referred to, as well as by the portions of them set out, that the Visitors had jurisdiction to hear and determine the matter of the appeal; and that such jurisdiction so appearing, the Visitors had not any option or discretion vested in them to entertain or reject the appeal, but that they were bound to hear and determine it, and give judgment thereon; that it did not appear by the return that the Provost and Senior Fellows had power, finally and exclusively, to perfect and complete the election without any appeal to the visitors; that the Visitors did not directly aver, but only attempted, argumentatively and by inference, to suggest their want of jurisdiction in the matter of the appeal, and their absolute and uncontrolled discretion to entertain or reject it, and that the return was

(a) See Appendix, p. vi.