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man has never been held forth. Some spe- | master and fellows have not a power of pucific charges have been brought against the nishing any fellow of the college, till it is accused person, and whether the crimes were clearly proved that he has offended against real or fictitious, the disciples of St. Dominick some one of the college statutes; and that carried on the appearance of justice. Even then they are empowered to inflict only such the persecutors of Galileo did not think the punishment as the statute requires." tendency of his philosophy a sufficient cause I have said, that I had no opportunity of for confining him in prison. They brought vindicating myself from the supposed charges; forward the charges on which he was con- and the master and the five fellows refer your demned, namely, for contradicting the scrip- lordship to some course of proceedings, which tures and violating the laws of the holy see. not having seen I might invalidate, by reTo remove a man from college on the sup- peating only my former assertion. But it is posed evil tendency of his publications, is to very extraordinary that the master and the open a door for the worst of persecutions. The five fellows should pretend to say, that I had first printed Bibles in England were burnt, three opportunities offered of making my debecause of their supposed dangerous tendency, fence, when three of the other fellows, who and if this pretexi were allowed, students were present with them during the whole of must hereafter shut up their books, lest, if the time, declare, as one reason for dissenting by a regular attention to college duties, they from the resolution of removing me from the should offend some of the body who might college, that I had no opportunity given of be notorious for a disregard of all order and vindicating myself. Their words are, « It apdecorum, the publishing of a book should pears to us to be repugnant to the principles of render them obnoxious to every species of justice, and contrary to the rules observed in vindictive malice and resentment.

every court, to pass sentence on any person Under this head, I beg leave to offer to your before he has had an opportunity of answering lordship's consideration the following histo- to the particular charges brought against him, rical fact, which shows, in the strongest which, in the present instance, was not al manner, 'the sense of the whole bench of lowed to Mr. Frend." In addition to this bishops, on a similar occasion. In 1701, the evidence, given by three very respectable lower house of convocation took into consi- members of our college, one of whom is a deration bishop, Burnet's Exposition of the tutor, and exemplary in the discharge of thirty-nine articles of the church of England; every part of that office, I do declare, and am and coming to several resolutions upon it, willing to attest upon oath, that the account laid them before the upper house, which delivered to your lordship is founded on a proceeded, among others, to the following gross misrepresentation. conclusion :“ That the lower house of convo- The master and the five fellows assert, that cation's censuring the book of the bishop their sentence, for such they call their resoluof Sarum, in general terms, without men- tion, was virtually passed, by a majority of tioning the particular passages on which the fellows; and, as a proof, allege, that a the censure is grounded, is defamatory and majority of the fellows being present at the scandalous."*

meeting, and the major part of that meeting The reason for not pointing out the parti- baving concurred in the sentence, such sencular statutes against which I am supposed to tence is valid, anıl to be considered as passed have offended, is ridiculous and puerile in the by the whole meeting, though some of the extreme. The statutes are given us as a rule fellows expressed their dissent to it. The of conduct, and to prevent arbitrary pro- consequence of this reasoning is, That if a ceedings : Í have sworn to obey these sta- master of the college, regardless of his duty tutes, and to submit to a punishment ac

and his oath, should make a party amongst cording to the statutes, but not to any other. the fellows to injure another, should closet The college has certainly a right to punish a five of the fellows, and, by promises, solicitamember for an offence contra bonos mores, tions, or threats, bring them over to his purbut the offence is punishable only according pose, he may drive any person from the colto the statutes. Any punishment, not au- | lege, of whom, through prejudice, he has thorized by the statutes, a fellow of this col- conceived a bad opinion, or from whose fall lege is not bound to submit to ; and if the he expects to derive an advantage. But the master should pretend to enforce it, he does it author of the statutes was not so inattentive under the peril of perjury: for he has taken to the liberty and independence of the an oath to govern according to the statutes. fellows; he was aware of the abuses which This subject has been well stated in the in general prevail in bodies of this sort, and protest laid before your lordship by three of would not permit a person to be exposed to the fellows present at the meeting on the the continual injuries which he might rethird of April. “ We conceive, that the ceive from the inirigues of a master and five

fellows The smaller crimes bave punishSee Historical Essay upon the Govern- ments assigned to them, to be inflicted by the ment of the Church of England, by George master or president, and dean : the greater Reynolds, LL. D. archdeacon of Lincoln, P. crimes, by the master, and majority of the 194. Frend,

fellows. Bishop White's interpretation cannot apply to this case; for it was made for your lordship think yourself justifiable in asthe relief of the fellows in certain cases, in suming a discretionary power of banishing a which, from the inconvenience or impossibi- clergyman from his living, who, by his oath, lity of assembling all the fellows, the college is obliged to residence, such punishment not might be liable to sustain some detriment; being enjoined by any law of the church? but in his interpretation there is no reference There is no inconsistency between the two to any statute on punishment, and it is con- statutes pointed out by the master, and the fined solely to three statutes which limit cer- five fellows. To make such inconsistency, tain elections with respect to time. In the they must suppose, that the fellow, who, in present instance, there can be no reason for virtue of the latter, shall be put out of Comnot expecting the concurrence of a majority mons, is not obliged by the former to dine in of the fellows, if the sentence were justifiable; the hall at his own expense; or if any such. since the meeting was not confined to any inconsistency should be allowed, it is certainly particular time, and the master was vested not a similar one, as it arises from an express with sufficient authority to bring all the fel-injunction of the law-maker. And, if the lows together. As there was more than a founder of the college had thought fit, among majority of the fellows present, and only six other punishments, to appoint that of temconcurred in the resolution of removal, the porary removal, and to add, that it might be proper mode of arguing is, that not only those inflicted by the master, and six of the fellows, four who dissented from the resolution, but there would be no doubt of the obligation on all the rest who did not appear disapproved every fellow to comply with it; but as the entirely of the master's conduct, in pre- master, and the five fellows, have not tending to call the fellows together on a sub brought the least shadow of a proof that this ject, in which it is evident they thought them is the case, my objection remains in full selves not at all concerned. For I cannot force. allow the master and fellows of this college On the whole, I cannot help observing to any right to decide on the merits of a work your lordship, that the master, and the five written by one of their body. The statutes fellows, have failed in their answer to every give them no such power, and if a fellow of one of my objections. Being sensible of the the college should, by printing or publishing, weakness of their cause, and the badness of act contrary to the laws of the realm, he is in their arguments, they pretend to talk of the common with other Englishmen, liable to be lenity of their sentence, and of the situation brought before the tribunal of justice. in which they suppose me to be placed. The

Instead of answering my last objection, and offence, of which they conceive me to be pointing out the statute which warrants their guilty, is an ideal one; thc statutes would not resolution of removal, the master and five have warranted them in punishing me by fellows are content with saying, that the col-total expulsion; and if they had, the exchange lege could pass such a sentence under that of expulsion for a temporary removal, must, general and necessary anthority which it pos- on my part, have been optional. So far from sesses in all cases of discipline, whether speci- giving the master and five fellows, any credit fically described in the statutes or not. But for their lenity, I conceive them lo have done unfortunately for them, I have taken an oath the utmost in their power, for which they to obey, and will obey only in those cases imagined that they had the least semblance prescribed by the statutes, and the same oath of a pretext, and the injustice of their conduct which obliges me to obey only in certain is apparent in the total irrelevancy of their cases, is a sufficient proof that the college can sentence. For, what has the publishing of a demand obedience only in those cases. book, containing speculative opinions, to do

The punishment of a fellow, by a tempo- with the behaviour of an individual?' What rary removal from his college, is not known misbehaviour could they ever charge me with? in the university, except in those colleges, in What certificate of good behaviour do they which it is enjoined by their stat'ites, and I require? What proofs will satisfy Mr. Plamhave good reason for saying, that the asser- pin, who is a tutor in the college, and nototion of the master and five fellows, con- rious for neglect in the most material part of cerning the frequent practice of such amotion his office, that of giving lectures? If proofs in the university at large is without founda- were requisite, I could bring them signed by tion. But were this true in other colleges, the most respectable members of this univerwe are to be governed by our own laws, not sity, and the first literary characters in the by the laws or practice of any other commu- kingdom; and I should have the utmost connity. Where the punishment of removal is tempt for myself, if my character could be statutable, the inflicting of it supersedes the in the least hurt by any imputation which the duties required by the other statutes. On master, and the five fellows, have endeavourthis principle the suspension of a clergyman ed to fix upon it. Instead, therefore, of reab officio, 'is perfectly consistent with his quiring a certificate of my good behaviour general obligation to discharge the duties of elsewhere, let them first produce some proofs his office : such obligation being only condi- of my misbehaviour during my residence tional, and dependant on his own conduct, among them; and if they could do that in a and the judgment of his superior. But would satisfactory manner to your lordship, the cone

sequences are well known. As to this worse than inquisitorial manner of proceeding, by examining witnesses without confronting them with the accused, by refusing to hear a man in his own defence, by condemning him without pointing out the statute against which he has offended, by passing a sentence which is totally illegal, and has no connexion with the supposed crimes, I am persuaded it must be as disgusting to your lordship, and every other liberal mind, as it is to, my lord, your lordship's very obedient servant,

W. FREND.

On the 16th of July, the master of the college called a meeting of the fellows, and in it read to us a paper which he professed to have received from the bishop of Ely, and on the twenty-sixth of July, it was copied into the order-book of the college, as appears from the following extract:

July 26, 1793. At a meeting of the master and all the fellows resident in college, Mr. Frend having appealed to the visitor against the sentence contained in the foregoing page, and the visitor having dismissed the appeal, and affirmed the sentence in the following words :

To the reverend the master and fellows of St. Rhadegunde, or Jesus College, in the university of Cambridge.

Gentlemen; I have carefully perused the appeal of the reverend William Frend, of your college, against the proceedings had and sentence passed upon him, as publisher of a pamphlet, intituled Peace and Union recommended to the associated bodies of republicans and anti-republicans; by the master and major part of the fellows of your society, together with the answer of the said society, and the reply of the appellant, and the several documents therein referred to, and having duly deliberated thereupon, I dismiss the said appeal, and affirm the sentence of amotion.-I am, Gentlemen, your constant wellwisher,

July 13, 1793.

JAMES ELY, visitor.

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This case was afterwards, by Mr. Frend, brought before the court of King's-bench. It is thus reported 5 Term Rep. 475.

Thursday, Jan. 23d, 1794.

The King against the Bishop of Ely. RAINE moved, and was supported by GIBBS, for a rule calling on the bishop of Ely to show cause why a mandamus should not issue, directed to him, commanding him as visitor of Jesus College, Cambridge, to hear and determine an appeal of the reverend W. Frend, late a fellow of that college, against a sentence

of amotion.

that in April last he was " removed from his It appeared from the affidavit of Mr. Frend college" by a sentence of the master and fellows, on a charge of having written a seditious pamphlet: that the defendant appealed against this sentence to the bishop of tionable passages in the pamphlet had been Ely, as visitor, on the grounds that no excepproduced; that no laws of the college, against which the appellant had offended, were pointed out; that the appellant had no opportunity of vindicating himself; that there was not a majority of all the fellows of the college concurring in the sentence, as the statutes required; and that the punishment was not statutable: that in answer to this appeal the visitor that they had examined evidence remaster and five of the fellows asserted to the lating to the publishing of the pamphlet, by which they were convinced that Mr. Frend was the publisher; that the appellant had defend himself; and that the sentence which three distinct opportunities given to him to they had taken upon themselves to inflict, fellows: that to this answer the defendant was virtually passed by a majority of the replied that the evidence was false; that, with respect to the opportunities offered to him of making a defence, the master and five fellows had misrepresented the case to the visitor, and that three other fellows had protested against the sentence on this ground that Mr. Frend had not had an opportunity of answering the charge. "That upon the appeal thus made to the visitor, the answer of the master and the five fellows, and the reply of the appellant, the visitor, without reference to any of the statutes of the college, without noticing the allegations of the appellant, or the want of proof on the part of the master and five fellows, without specifying any reasons (agreeably to the constant practice of former visitors) for his concurrence with the sentence of the masters and fellows, in short with a simple declaration that he had duly deliberated upon these things, determined in these words, "I dismiss the said appeal, and affirm the sentence of amotion."

The counsel for the rule admitted that this court had no authority to compel the bishop to exercise his visitatorial power in any particular mode, or to correct his sentence, how

and he has exercised his judgment upon the whole. If therefore we were to interfere, it would be for the purpose of controlling his judgment. But any interference by us to control the judgment of the visitor would be attended with the most mischievous consequences, since we must then decide on the statutes of the college, of which we are ignorant, and the construction of which has been confided to another forum.

Ashhurst J. When a visitor refuses to receive and hear an appeal, this court will compel him to exercise his visitatorial power: but we have no authority to compel him to form a particular judgment on the merits. Here the bishop has heard and decided; and I think that the appellant does not state the ground of his application correctly, when he says that the bishop has not heard the appeal.

ever erroneous, if that sentence were pronounced after hearing the merits of the case on appeal; Philips v. Bury, 1 Ld. Raym. 5, 2 T. R. 346; but contended that in this case the bishop had not heard the appeal of Mr. Frend at all; for that though he received the appeal, he dismissed it without hearing any of the parties. They also mentioned R. v. the bishop of Lincoln Tr. 25 Geo. 3, B. R. [2 T. R. 338.]; where the court said they had a right to compel a visitor by mandamus to hear an appeal, in order that he might form his judgment on the merits of it. Lord Kenyon, C. J. If there were the most remote probability of raising a question in this case, we ought to grant a rule to show cause, in order that the question might be further investigated But as there is no probability of throwing fresh light on this case, and as according to the circumstances now Buller J. The whole turns on the equivocal disclosed the rule which applies to cases of use of the word, "heard." The appellant this description has been so clearly settled thought he had a right to be heard personally for near a century (since the case of Philips before the visitor, and that the bishop ought v. Bury) that it ought not now to be brought not to have decided without hearing parol in question again, I think it would be unjus- evidence. But that is not the course of protifiable to put the bishop to the expense of ceeding on these appeals. Here the appellant showing cause against a rule, which is desti-states that he did appeal; that the college tute of every foundation on which it can rest. It was settled in Philips v. Bury, in which determination the profession has ever since acquiesced, that this court has no other power than that of putting the visitatorial power in motion (if I may use the expression), but that if the judgment of the visitor be ever so erroneous, we cannot interfere in order to correct it. Now here the visitor received the appeal; each party disclosed his case to him; the whole merits of the case were before him;

sent their answer to the bishop; and that he (the appellant) replied to it; then the bishop did hear the appeal in the way in which such appeals are usually heard.

Grose J. If the bishop had not exercised his judgment at all, we would have compelled him: but it is objected that he has not exercised it rightly; to this I answer that we have no authority to say how he should have decided. Rule refused.

577. Proceedings in the Case of DANIEL ISAAC EATON,* upon an Indictment for publishing a Libel, intituled, "The Second Part of the Rights of Man, combining principle and practice." By Thomas Paine. Tried at Justice Hall, in the Old Bailey, before Sir John William Rose, Serjeant at Law, Recorder of the City of London, on Monday, the 3rd Day of June: 33 GEORGE III. A. D. 1793.

INDICTMENT.

At the general session of Oyer and Terminer, of our Lord the King, holden for the city of London, at Justice-hall, in the Old Bailey, within the parish of St. Sepulchre, in the Ward of Farringdon without, in London aforesaid, on Wednesday, the twetieth day of February, in the thirty

See the next case; and in this Collection, the trials of this same Daniel Isaac Eaton, in 1794, and 1812 post. VOL. XXII.

third year of the reign of our sovereign
lord, George the Third, king of Great
Britain, &c.

London,? THE jurors for our lord, the
}
to wit. king, upon their oath present,
That Daniel Isaac Eaton, late of the parish of
St. Botolph, without Bishopsgate, in the ward
of Bishopsgate, in the city of London, afore-
said, bookseller; being a wicked, malicious,
seditious and ill-disposed person, and being
greatly disaffected to our said sovereign lord
the now king, and to the constitution and go-
3 C

vernment of this kingdom, and most unlawfully, wickedly, seditiously and maliciously, devising, contriving, and intending, to scandalize, traduce, and vilify our said lord the now king, and the hereditary succession to the crown and regal government of this kingdom, as by law established, and to alienate and withdraw from our said present sovereign lord the now king, the true and due obedience, fidelity and allegiance, of his subjects, and wickedly and seditiously to disturb the peace and tranquillity of this kingdom: on the seventeenth day of January, in the thirtythird year of the reign of our said present sovereign lord the king, with force and arms at the parish aforesaid, in the ward aforesaid, in London aforesaid; he the said Daniel Isaac Eaton, unlawfully, wickedly, maliciously and seditiously did publish and cause to be published, a certain scandalous malicious and seditious libel, intituled, "Rights of Man, Part Second, combining Principle and Practice, by Thomas Paine, Secretary for Foreign Affairs to Congress, in the American War, and Author of the Works intituled Common Sense, and the First Part of the Rights of Man. London, printed for H. D. Symonds, Paternoster row, 1792." In which said libel are contained (amongst other things) divers scandalous, malicious, and seditious matters, of and concerning the hereditary succession to the crown and regal government of this kingdom, as by law established, that is to say, in one part thereof according to the tenor and effect following, that is to say, "It cannot be proved by what right hereditary government" (meaning amongst other things the said hereditary government of this kingdom), "could begin, neither does there exist within the compass of mortal power a right to establish it" (meaning such hereditary government). "Man has no authority over posterity in matters of personal right, and therefore, no man or body of men, had, or can have a right to set up hereditary government," (meaning amongst other things, the hereditary government of this kingdom.) And in another part thereof, according to the tenor and effect following, "Hereditary succession" (meaning amongst other things the said hereditary succession to the government of this kingdom) "is a burlesque upon monarchy, it puts it in the most ridiculous light, by presenting it as an office, which any child or ideot may fill. It requires some talents to be a common mechanic, but to be a king requires only the animal figure of man, a sort of breathing automaton, this sort of superstition may last a few years more, but it cannot long resist the awakened reason and interest of man." And in another part thereof according to the tenor and effect following, that is to say, (6 A government calling itself free, with an hereditary office" (meaning amongst other things, the government of this kingdom, with an hereditary office of king thereof) "is like a thorn in the flesh, that pro

duces a fermentation which endeavours to discharge it." And in another part thereof, according to the tenor and effect following, that is to say, "Hereditary system" (meaning amongst other things the hereditary system of succession to the crown of this kingdom) "therefore, is as repugnant to human wisdom, as to human rights, and is as absurd, as it is unjust.”

And in another part thereof, according to the tenor and effect following, that is to say, "Whether I have too little sense to see, or too much to be imposed upon, whether I have too much or too little pride or of any thing else, I leave out of the question, but certain it is, that what is called monarchy" (meaning amongst other things the monarchy of this kingdom)" always appears to me a silly contemptible thing, I compare it to something kept behind a curtain, about which there is a great deal of bustle and fuss, and a wonderful air of seeming solemnity, but when by any accident the curtain happens to be open, and the company see what it is, they burst into laughter." And in another part thereof according to the tenor and effect following, that is to say, "That monarchy" (meaning amongst other things the monarchy of this kingdom) "is all a bubble, a mere court artifice to procure money, is evident (at least to me) in every character in which it can be viewed." And in another part thereof according to the tenor and effect following, that is to say, "It can only be by blinding the understanding of man, and making him believe that government is some wonderful, mysterious thing, that excessive revenues are obtained. Monarchy" (meaning amongst other things the monarchy of this kingdom) "is well calculated to ensure this end. It is the popery of government, a thing kept up to amuse the ignorant, and quiet them into taxes," in contempt of our said lord the now king, in open violation of the laws of this kingdom, and to the great danger of our happy constitution, to the evil example of all others in the like offending. and against the peace of our said lord the king, his crown and dignity.

Witness,

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