OXFORD UNIVERSITY.

A PAPER has been circulated this week in the University of Ox- ford, containing the " Case on the part of the University" in re- ference to the legality of the Royal Commission ; with the Opinion of eminent counsel thereon-to the effect that the Commission is "unconstitutional and illegal, and such as the University and its members are not bound to obey." We subjoin the Opinion in full; reserving to ourselves the right of future criticism.

The legal question is one which we leave to be settled with the Crown lawyers, who, if the opinion be correct, stand convicted of a blunder.

It remains to be seen what course will be taken by the vener- able and inert body which it principally concerns. They may per- ' chance, with something of the spirit of their forefathers, gird themselves up to do battle in a constitutional cause : and so far they may command a certain amount of favour from pub- lic opinion. But wo betide them if they reckon too much upon this. They will be pierced with the reed they lean on, if they trust to the chance of rousing popular sympathy upon a mere point of abstract constitutional law, whilst the public mind is for the most part turned against them. The public desires an end-" si possis recte"-if possible by lawful and con- stitutional means, but at all events it desires an end ; University Reform, instructional, economical, and organic. To defend itself against a supposed illegal attack is the least part of the work which the occasion now requires from the University. If it con- tent itself with this, it will bring down on itself, even with greater and more assured certainty, rapid destruction. An act of Parlia- ment sweeps away all the cobwebs of law. The true work of the University is to bestir itself instantly and actively-nay, even now the work ought to have been begun-to accomplish by its own means and through a delegacy of its own body lawfully constituted,

those ends towards which the Royal Commission has been most laudably, even if illegally, directed

THE OPINION.

" We are of opinion that the Commission is not constitutional, or legal, or such as the University or its members are bound to obey; and that the Com- mission cannot be supported by any authority of the Crown either as visitor, or under any prerogative or other right.

" As to visitatorial authority, it may be granted that formerly the P4::e and other ecclesiastics interfered in the affairs of the University ; but the Univer- sities were then considered ecclesiastical bodies, and subject to the jurisdic- tion of the ordinary : and it may also be granted that the power which had been exercised by the Pope as supreme ordinary was, after the Reformation, claimed by the Crown, and that acts were done by it under that claim : but it is clear now that the Universities are lay, civil corporations; and this cha- racter they would have received by the act of 13 Eliz, c. 29, if they had not possessed it before : and 'being lay corporations, the ordinary neither can nor ought to visit,' [see the case of Sutton's Hospital, 10 co. 31. ] and con- sequently the Crown cannot visit under any supposed ecclesiastical claim. " The other acts of the Crown referred to m the Case do not prove any visitatorial authority ; they are either the just acts of Royal prerogative, such as for the preservation of the peace, the administration of justice, &c., or the exercise of powers given to the Crown by Act of Parliament ; the most remarkable of which were those conferred by the act of 1 Eliz. e. 1, s. 18, from which the High Commission Court took its origin, (and which will be mentioned again below) : or if extending further, they may well be referred to undefined notions in those days of the prerogative, to the personal character of the Sovereign, or to pecuhar necessities of disturbed periods, which are no precedents for other times. As Lord Mansfield said on this subject, 'the Crown did in fact formerly exercise a power over the Univer- sities which cannot be supported by any sound principles of law. It is now most certain that those corporations are lay incorporations.' Rex v. Univer- sity of Cambridge, 1 W. Bl. 650.

'Again : the present Commission does not purport to be issued by the Crown as visitor of the University, nor does it allude to any visitatorialau- thority ; while, on the contrary, it directs inquiries as to Colleges over which, as they have their own special visitors, the Crown can have no authority as visitor.

"The visitatorial right, properly so called, is annexed to eleemosynary foundations alone ; and it arises from the right of a donor to regulate the distribution of his gift according to his intention. The University, however, is not an eleemosynary foundation, but a civil corporation ; and as such it is subject to the control of the Court of Queen's Bench, which, upon complaint, acts with regard to it by mandamus, or otherwise, as it acts respecting other civil corporations. This species of control has sometimes, though inaccu- rately, been called visitatorial, [see Rex v. Chancellor etc. of Cambridge, 1 Str. 557. 2 IA. llaym. 1334] ; but where there is a visitor a mandamus will not be granted as to any matters within his jurisdiction. [See Parkin- son's case, 1 Show. 74, Widdrington's ease, T. Raym. 31, Rex a. Warden of All Souls Coll. Oxon. T. Jones, 174. Rex v. Alsop, 2 Show. 170.] "And further, it does not appear that the Crown over assumed or used the title of visitor of the University ; and it is clear that the Crown has not in any way interfered with the University since the time of James II, when the Ecclesiastical Commissions were finally abolished.

"We are consequently of opinion that this Commission cannot be sup- ported by any visitatorial authority in the Crown.

"Next, as to the constitutional and legal character of the Commission. It purports to authorize an inquiry iu order to the expression by the Commis- sioners of an opinion only, not the adjudication of any disputed questions. The subjects of this inquiry, as regards the Univerity apart from the Col- leges, are its rights, franchises, and property, and the conduct of its mem- bers ; all of which are brought into question, not in the regular course of law, but without any accusation being stated, or any accuser appearing, without there being any power to adjudicate upon and settle the questions which may be raised, and without any appeal from the Commissioners' re- port, or any means of correcting inaccuracies in their representations. "No such commission appears to have been at any time heretofore issued respecting the University, and no like commission has ever yet been de- clared valid by a court of justice : on the contrary, such commissions, not sanctioned by Parliament, have, even in very early times, been repeatedly condemned by Parliament and by the Judges : 2 Rot. Parl. 15th Ed. H. No. 14, No. 40; 15th Ed. III. st. i. c. 2; 2 Rot. Parl. 18th Ed. III. No. 3 No. 5, and resp. No. 1, 18th Ed. III. st. 2, c. 1, and c. 4; 3 Rot. Pail. 2d Hen. IV.-No. 22; 3 Rot. Parl. 5th Hen. IV. No. 39; 2 Inst. 478, 4 Inst. 163, 165, &c. 42 Ass. pl. 5. See also 2 Inst. 50, 51.

"The commissions which in later times were issued under the great seal by Hen. VIII and Ed. VI, were considered by Lord Coke and the other Judges in 9 Jac. I as illegal, except where their powers were derived from act of Parliament, 12 Co. 84; and see Sir Robert Atkyns's discourse con- cerning the Ecclesiastical Commissions in 11 State Trials, p. 1152, n, (ed. 1811.)

"Afterwards, the act 1st Eliz. c. 1, s. 18, which established the High Com- mission Court, enabled the Crown to give to the Commissioners in that court the largest powers ever legally exercised by any commissioners • but when their commissions purported to give further powers by virtue Of the Royal prerogative alone, such further powers, though often exercised and submitted to, were adjudged illegal whenever contested, and the Commis- sioners were restrained by prohibition from exceeding the powers expressly given by Parliament. Lord Coke refused to act on such it commission, con- sidering it illegal, and holding that where a commission is against law com- missioners ought not to sit by virtue of it ; and all the other Judges named in that commission concurred with him. (See 12 Co. 49, 84, 85, 88, 4 Inst. 332, Cro. Car. 114, and Drake's Case, ibid. 220.)

Subsequently, in consequence of the oppression and mischiefs' oc-. casioned by such commissions, the set of 1 Eliz. c. 1, s. 18, was repealed by the act of 16 Car. I. c. 11; which also enacted that thenceforth all such com- missions should be utterly void. "King James II, notwithstanding, issued upon the strength of the Royal prerogative alone a like commission, under which the memorable visitatien of Magdalen College in Oxford was held, 12 State Trials 1, &c. (See also 11 State Trials, 1143, &c.) "This led to the declaration in the Bill of Rights, 1 W. and M. sess. 2, e. 2, that that commission was 'utterly and directly contrary to the known laws and statutes and freedom of the realm '; and it was enacted, that the commission so issued, and all other commissions of the like nature, are 'il- legal and pernicious,' and ought not in anywise to be drawn thereafter rife example.' " It may be said that the present Commission differs from the Ecclesiasti- cal Commissions above referred to, inasmuch as it directs inquiry only, whereas the former commissions directed the Commissioners to hear and de- termine, &c. But commissions for inquiry and discovery alone are illegal; because they put parties to answer otherwise than according to the old law of the land, (see Magna Charts, 9 Hen. III. c. 29, 25 Ed. Ea. st. 5. c. 4, 42 Ed. III. c. 3.) and because, as Lord Coke writes, under theme man may be unjustly accused by false evidence, and he shall not have any remedy;

a .party may be defamed, and he shall not have any traverse to it,' 12 Co. 31. 64.

"It is stated to have been suggested that the Commission is legal, because it does not purport to give compulsory powers for obtaining evidence : but in fact the Commission does purport to give such Towers. It purports to ' au- thorize and empower the Commissioners to call before them such persons as they may judge necessary,' and also to call for and examine all such books, documents, papers, and records, as they shall judge likely to afford them the fullest information.' This assumption of authority is illegal; for the Crown cannot, by its own authority, compel persons to give information, except in the regular course of administering justice, the course of which the Crown cannot alter; and the Commissioners cannot compel persons to give evidence, and they cannot legally administer an oath even to willing witnesses ; and wanting these powers, they cannot secure to any party a just and fair in- quiry. (See 2 Inst. 479. 719, n. : 12 Co. 19. 49: 3 Inst. 175.)

" Lord Bacon's argument referred to in the Case, that voluntary ' benevo- lences' might legally be solicited by the Crown, has long been exploded and condemned. The Crown and the subject are not on equal terms in such cases ; and the Crown cannot constitutionally solicit against a subject that which it cannot command. And this principle seems especially true and reasonable as to an inquiry in which the subject has not the safeguards or helps which the law gives for the investigation of truth, and where he has no remedy of appeal in case wrong conclusions are drawn. Many commis- sions for inquiry alone have issued in modem times, and have been generally submitted to ; but none of them, so far as we are aware, have been tested in courts of justice. They have not, however, been invariably submitted to: for example, the Municipal Corporation Commission met unqualified and successful resistance from the Merchant Tailors' Company in Loudon, acting under the advice of Sir James Scarlett, Sir William Follett, and Mr. Ben- nell. Sir James Scarlett's very elaborate opinion on that Commission may be found in the Annual Register for 1833, p. 158.

"The like argument from modern usage was urged in favour of additions made without authority of Parliament to Ecclesiastical Commissions ; but it mis refuted by Lord Coke, and rejected by him and all the Judges. (See 12 Qf the ynd 4 Inst. 332.)

Mate thicring, then, that the object of this Commission is inquiry alone, 7;01 Qll., of authorized by Parliament, that there is no precedent for such V,.'ssion as regards the University, and no judgment of any court of jusr..■ Ostablishing any like commission ; considering also the authorities of common law and of Parliament against such commissions, and that serious mischiefs may ensue from it ; we are of opinion that this Commission is not constitutional or legal, and that it is not such as the University or its mem- bers are bound to obey. " Having said this, we feel it scarcely our province, in advising upon mat- ters of law and constitutional principles, to express an opinion whether or not the University or its members ought to obey this Commission : that question, if intended to be considered apart from legal obligation, seems rather a question for the members of the University than for its legal advisers.

"It is the constitutional course and practice of the Crown to recall and cancel instruments which it has issued, whenever they have been issued im- providentlp or incautiously. "If the University, having regard to the rights, liberties, and privileges of its present and future members, shall, upon consideration, think that it ought not to submit to the authority of the Commissioners until the legal validity of their Commission shall have been established by competent au- thority, we are of opinion that the best and most respectful course will be for the University to bring under the consideration of the Crown the nature of this Commission, in order to the discussion of its legality, and to its be- ing recalled and cancelled if illegal ; and that, for such purpose, the Uni- versity should petition her Majesty in Council, stating in effect the loyal wish expressed in the case, 'to show every possible deference and respect to the Crown,' the nature of the advice which the University has received re- specting the Commission, the dangers which may be apprehended from the precedent if the Commission is allowed to continue, and to pray accordingly that the Commission may be recalled and cancelled ; or otherwise, that it may be reconsidered by her Majesty in Council, and that, in the latter case, the University may be heard by counsel against it.

Signed,

"Lincoln's Inn, Hardt 3, 1851." J. B. KENYON.

G. I. Tugs rat, RICHARD BETHELL, HENRY S. KEATLNG,