Abstract
December 4, 1770 Memorial of the professors and members of the University of Glasgow, arguing that the declarator's articles on revenue management and governance are unsupported by charter or practice.
Document text (uncorrected OCR)
Untitled December 4. 1 770. Unto the R iGHt U n t n o h eR i G The LO R D S of C O U N C IL and S E S S IO N T H E P E T I T I O N O F. T H E Reverend Doctor R O B E R T T R A I L, professor of Divinity; Mr John Miller Advocate, professor o f L aw; Mr Patrick Cumming professor of Oriental Languages; the Reverend Doctor James Wil- liamson professor of Mathematics; and the Rev. Doctor William Wight, professor o f Histo ry in the University of Glasgow. Humbly Shewt T H A T, in the question between the petitioners defenders, and Doctor Leechman and others, pursuers, your Lordships, of this date, pronounced the following interlocutor: ' Upon report of the Lord Ju stice Clerk Ordinary, and having advised the memorials of parties hine inde, with what is above represented, the Lord, in terms of the first three conclusions of the libel, find and declare, f irst, That the whole revenue and property of the college o f Glafgow, (excepting such mortifications for bursars and other uses, which are otherwise conveyed), is, by the foundation-charter, granted by King James the Sixth, anno 1577, and by the other 'sub- subsequent charters and grants, and the statutes of the college, vested in the principal and masters of the said college; and that the sole right and administration thereof belongs to them, the said principal and masters; and consequently that the court of the rector and his assessors have no legal power or au- thority whatever, to meddle with or dispose of the college- money, or revenue of the college, in all time coming. 2dIy, They find and declare, That the rector and dean of faculty of the university of Glasgow, and the minister of the town of G lasgow, are, by the said foundation-charter, appointed visitors of the sa id college, by whose advice and consent only, or of a majority of them, all the surpluses of the college-revenue, after paying the ma- sters salaries, and other standing burdens, are to be disposed of and applied to pious and necessary uses of the college: And there- fore, that in all time coming, all acts and deeds whatsoever of the said administrators, in disposing of such surpluses, shall be held to be null and void, unless they bear that they were done by the ex- press consent of the said visitors or the majority of them. 3dly, T hey find and declare, That, agreeable to the said foundation- charter, the principal and masters or administrators are bound to lay the accompts of the administration of the revenue of the col- lege before the said visitors for examination; and that, without the approbation of the said visitors, the said accompts shall not be held valid and authentic. But, as to the four th and other con- clusi ons of the libel, in respect judgement is not infilled upon by the pursuers, find no necesity to determine these other points; and decern accordingly.' In this question the petitioners have no private interest whatever, and no motive has induced them to engage in defence against this action, but a sense of the duty which they owe to that society of which they have the honour to be members. The more they have considered the claims of the pursuers, and the more they have exa- mined the records of the university, the more have they been satis- fied that the constitution sought to be established is neither authori- sed by the foundation charter, nor supported by the practice or the society. Neither can they discover, that this constitution is likely to produce the salutary consequences which it has been supposed would result from it. Consequences of a very opposite nature would, as they apprehend, certainly follow its establishment Impressed with these ideas, the petitioners think it their duty to submit this case to your Lordships review. When When it was formerly under your Lordshi ps consideration, the number of different points to be argued, and the great variety of e- vidence to be dated, rendered the memorials for both parties 0f an uncommon length; and, from the perplexity in which the cause was by that means'involved, it was difficult to be understood The pe- titioners humbly hope, that they shall now be able to date their ar- gument more shortly and more clearly; and it is, therefore, with the greater confidence that they prefume to bring this cause again under the consideration of the court. In the first place, the petitioners must again submit to your Lord- ships that preliminary objection which they apprehend occurs a- gainst the competency of the present action The pursuers have not brought this action for correcting any misapplication of revenue, occasioned by a transgresio n of the university-regulations. They complain net of any wrong committed; but, imagining the constitu- tion established by the immemorial practice of the university, to be, in some respects, different from that established by the charter of new erection in 1577, they have brought this action for correcting these alledged deviations. If, however, declaratory actions of this nature brought, not to correct any particular abuse, but merely for subverting the established government, and modelling the constitu- tion according to the fancy of some particular member, shall be competent, there will be no end of such litigations. Every commu- nity might harrass your Lordships with disputes of the same kind. The time of this supreme court would be consumed in conjecturing the meaning of the obscure clauses of every anti- quated charter; and your Lordships would find youselves em- ployed, not in correcting injustice and redressing wrongs, but in new- modelling the constitution of every corporation in the kingdom. The petitioners would not have troubled your Lordships with in- si sting upon this preliminary objection, were they not much afraid that the present action, in place of preventing after disputes, will only serve as an example to future members of the university, to at- tempt other innovations, and involve the society in endless litigation. T he pursuers have indeed professed it to be their great object in this process, to prevent all future disputes concerning j urisdiction, by set- tling the real constitution of the universi t y. Why, then, they have selected certain articles of the charter of new erection, which it seems they wish to establish while, at the same time they leave ne- glected glected others, perhaps of equal importance in the government of the society, it seems difficult to explain. Four different articles for which they zealously contended at the commencement of this action, they ha ve now been pleased altogether to depart from. Upon a fifth conclusion of their declarator, they passed from demanding your Lordships judgment, when the cause came to be advised. The common table, to clearly estab lished by the charter of new erection, and for the support of which considerable funds were allotted, the pursuers do not seem de- sirous to revive Why they should leave such a held for after litiga- tion, when their declared object is to terminate all disputes, by as- certaining every dubious point in the constitution, the petitioners must; acknowledge they cannot discover. Another circumstance occurs, which, as the petitioners humbly apprehend, must render it less proper to admit actions of this na- ture with regard to a society such as the present, than with regard to other corporations. All universities are understood to be under the immediate protection of the Hn T G h G L O t D who has the unquestiona- ble power of vi S L f L t O these public societies, for the purpose of cor- recting any abuse in their government, or of altering their constitu- tion in any manner he shall judge expedient. The government of the university of G lasgow has frequently excited the attention of its C nN e i I n o t a G h; and no fewer than d L T G different Royal Com- missions of V isitation have been sent, in order to supply the detects of its constitution, or to correct the abuses of its government. If the constitution of this society now requires an entire reformation, and if it shall be thought expedient to alter the sy stem of government au- thorised by immemorial practice, his Majesty, who has so often te- stified his regard for this institution, may again exert the powers in- trusted with him, and may send a Royal commission of visitation to regulate the government of the university, and, by w ise appoint- ment, prevent hereafter such divisions as now prevail. In the mean time, when your Lordships shall be called upon to correct any mis- application of the university-revenue, you will unquestionably give redress; and, by that means, enforce the observation of what shall appear to be the regulations of the society. But, when no wrong is complained of, and when me alledged deviation from the constitu- tion is neither clear nor evident, but rests upon doubtful and uncer- tain conjectures, it is, with great submission, apprehended to be safer to leave the modelling of the constitution to the visitatorial authority of its Royal founder, than by giving countenance to this action to open a door to endless litigation and dispute. The The petitioners shall now proceed to consider the articles of decla- rator upon which the pursuers insi st; and they shall confine their argument almost intirely to the first and second articles of declara- tor, which are the most important particulars now in controver- sy.The I L h S f E h f L P i G of F G P i e h e f n h is, That the whole revenue of the university is conveyed in property to the principal and ma- sters, and committed entirely to their management, exclusive of the chancellor, rector, and dean of faculty. The SGPnta E h f L P i G of F G P i e h e f n h is, That it should be found and declared, the rector and dean of faculty of the universi- ty, and minister of the town of G lasgow are, by the charter of King James, in 1577, appointed visitors of the college, by whose advice and consent only, or a majority of them, all surpluses of the college re- venue, after paying the mailers salaries, and other standing burdens, are to be disposed of, and applied to pious and necessary uses of the college. The pursuers themselves admit, that, for these forty years past, the practice of the university has been, in every respect, opposite to that system of government which they are now seeking to establish. The management of revenue, and every other important business of the university during that period, has been conducted in a conjunct meeting, of which the chancellor, rector, dean o f facu lty, principal, and profes s rs, have been held the constituent members, in which all the members prelent have acted jointly, without any distinction, and in which no negative has ever been exerted, nor any right to it supposed to exist. And the defenders humbly apprehend it will appear farther, that not only for these forty years past, but from the very period o f the nova erectio o the predent time, the form of the univerdity-govern- ment has been uniformly the same; and that the system of the pur- suers has no foundation either in the statutes or practice of the so- ciety. In support of the I L h S f article of declarator, the chief argument o f the pursuers arises from some of the deeds bearing the funds con- veyed to the society to be granted to the principal and masters nomi- natim, without any mention whatever of the chancellor, rector, and dean of faculty. It is humbly apprehended, however, that all deeds conveying funds to any corporation or community, mult be presumed to have conveyed them to the representatives of the comunity, and to have commuted them to the management of the us ual administrators. In the the dispositive clauses, the granters o f these funds may have erred in the description or enumeration of the representatives of the com- munity; but, at the same time, unless it shall appear in the most clear and explicite manner, that it was intended by the granters, to place these funds under the management of others than the usual administrators, the legal presumption is. that, by these deeds, it was intended merely to secure a certain revenue to the community, and that the granters had no view to direct the manner in which the funds should be managed. T his legal presumption may be applied with peculiar force in the present case; for, in the first place, there occurs a very natural and obvious reason why some of these deeds should bear the funds to be granted to the principal and masters, without any mention of the chancellor, rector, and dean of faculty. When any fund was con- veyed, it is natural to expect it would bear to be granted to those persons of the society who were to reap the immediate advantage o f it, and to be supported by it. The chancellor, rector, and dean of faculty, who have no salaries, and receive no share of the funds, happen therefore to be sometimes omitted in the dispositive clauses o f the deeds, altho’ they are unquestionably representatives and go- vernors of the community, and have entrusted to them a considerable share in the government of the college and administration of its re- venue. By the dispositive clause of the charter of new erection, the funds then granted by the King are conveyed expressly to the principal, to the regents, the bursars, the janitor, and those other servants and mem- bers of the university who were to be supported by them. I f the right of management belongs to those persons in whose favour the grant is conceived, it must necessarily be extended, not only to the principal and masters, but likewise to the bursars and servants men- tioned in that deed, to whom the funds are equally conveyed. It has been said, that it would be absurd to suppole, that the bursars, janitor, and servants, were meant to be intrusted with any share in the management of the college revenue. T his, however, is plainly giving up their argument, as it is supposing the right of the princi- pal and masters to the ordinary administration to rest upon some other foundation, than their being the persons to whom the funds are conveyed in property. The pursuers, therefore, when they de- rive the right of administration of the principal and masters from the funds being conveyed to them, must either admit equally to a share of that administration those other persons, to whom the same 1 funds funds are, in the very same terms, conveyed, or must give up their argument upon this head. That the different deeds conveying funds to the society were not intended to regulate the mode of their administration, and that the legal presumption of the granters having meant merely to secure the revenue thereof to the community in general, must here clearly ap- ply, is farther evident from the tenor of all these deeds, which, in place of conveying the subjects to the principal and matters alone, convey them in general to the whole members of the society. Thus, the act of parliament 16 17, annexing to the college the teinds of the parishes of Renfrew and Kilbride, dispones the same to the s aid college of Glasgow, professors and. G v R G h S thereof. The charter of King Charles I. 28th June 1630, confirms the right t o the teinds of Govan, Renfrew, and Kilbride, in favorem dicti col- legii Glasguensis præfectorum, regentium, magistrorum, studentium, OMN i- U MQ U E M E M B R ORUM C O R P O R I S E T I N C O R P O R A T I O N IS ejusdem. An act of parliament 1633, ratifying this charter, conveys the said subject to the univers ity and college of Glasgow, and to the principal, regents, masters, r e L i i v G v R G h S D RnaN D e t a L t P n h c n h e f L n t T H E R E O F. A charter from King Charles II. conveys the funds thereby grant- ed to the principal, regents, professors, in t n v LtG et pro o f L i L B f e f G et usu dictae u t LT G h S L f e f LS A A gift of a tack of the teinds of Colmonnell from King James in 1685, is granted “ to and in favours of our lovites the h G P f n h e t a c h L t P L c e i of the university of Glasgow, and their s uccessors in office, for the utility and behoof of the said university.' A deed of mortification from John Craig in 1697, dispones the subject therein mentioned ‘ to the rector, principal, dean of faculty, professors, and regents of the university and college of G lasgow.’ Certain donations made to the university by King George I. in 1 7 1 6 and 17 17, bear them to have been granted to and ' in favour of the university of G lasgow, chancellor, rector, principal, dean of faculty, masters, and professors, for the time being, and their successors in office.' A deed of mortification by the family of Ardkinlas, 19th Febru- ary 1733, bears the sums thereby conveyed to have been disponed in favour of the principal, dean of faculty, and professors in the u- niversity of Glasgow, and their succeffors in office, ‘ for themselves, and as representing the other masters, regents, and members of fa- ‘ culty, ' culty, i f any he, scholars, students, and the, rn iG o t L fGa RnB ‘ aN e t a Pnhcnhef Ln N of the said college.' A donation by the archbishop of Armagh in 1733, bears the sum to have been disponed unto the ‘ rector, principal, dean of faculty, and professors, and their successors in office.’ The stile of these different deeds, of which, i f the petitioners were not studious of brevity, a greater number might be quoted, does, in their humble apprehension, clearly show, that nothing can be from thence inferred with regard to the form of the university government. Some of these deeds do expressly dispone these funds to the chancel- lor rector, and dean of faculty, as well as to the principal and masters. The discrepancy between them, in some the chancellor being omitted, in others, the rector being omitted; in others, the dean of faculty; and, in some, the whole professors being omitted; evidently shows, that it could not be thereby intended to put every different fund under a different set of administrators, but merely to secure the revenue to the community, and to leave it to be managed according to the rules already established for the administration of their revenue. If, according to the argument of the pursuers, each branch of the revenue was to be managed by thole members only who are specially mentioned in the dispositive clause of the deed conveying it, your Lordships will observe what confusion would ensue in the management of the university business. Each different fund would be managed by a dist in ct let of administrators, and no uniform plan for the general benefit of the community would be steadily pursued. It seems, therefore, upon the whole more reasonable to conclude, that, from the tenor of these disposi tive clauses, the pursuers can draw no inference in support of their sy stem; but, on the contra- ry, that the granters must be prefumed to have intended to place the funds bestowed under the management of the established representa- tives and administrators of the community; and the uniform practice of the society strongly confirms this explanation of these deeds. From the records of the university, it clearly appears, that, from 1577, to 1688, the principal and professors hardly ever transacted any college business by themselves; but that, upon almost all occa- sions, the chancellor, the rector, and dean of faculty, or at least some of them, were present at the meetings as constituent members, and subscribed the minutes. That there should occur some instances of meetings at which the chancellor, rector, and dean, were not present, is a circumstance of no consequence. The archbishop of G lasgow, the perpetual chan- cellor cellor of the university, did not reside constantly at G lasgow; and, even when he was there, he did not, upon every occasion, take the trouble of attending the college meetings. There occur, however, a variety of minutes, of various dates, from the beginning of the last century, which show, in the cleared manner, that the archbi- shop as chancellor, was understood to be a constituent member of the college-meetings, and had a right to attend them whenever he thought proper.- Since the revolution, the office of p r e t PG i i n h has been in the election of the society; and the persons elected being men of hig h rank and dist in ction, who resided a t a distance from Glasgow, they appear to have been hardly ever present at a college-meeting. At the fame time, their right to sit at those meetings as constitu- ent members has never once been denied, till by the pursuers in the course of this process. I f the archbishop of G lasgow, as chancel- lor of the university, was a constituent member of these meetings, the chancellors elected by the university since the abolition of epis- copacy must enjoy the same privilege: For, when the society as- sumed the power of deeding that officer, they neither abridged nor limited his powers. So lately as the year 1720, the right of the chancellor in this particular was so plainly acknowledged, that it was resolved all proposals with regard to college-business made at their meetings should be transmitted to the chancellor and rector, in order that the sentiments of absent members of such rank and con- sideration might be known. So lately as 17 3 1, when the chancel- lor’s right of nominating a deputy to si t and vote in the college- meetings was contested, the chancellor’s own right to sit and vote there was never called in question. And therefore, upon the whole, it seems plain, that the chancellor mud be still held a constituent member of the college-meetings, and intitled to a share in the ad- ministration of all their affairs; and his absence from the meetings, since the abolition of episcopacy, has proceeded, not from any de- nial of his light, but entirely from his always residing at a di stance. Your Lordships, therefore, when you confine the right of admini- stration to the principal and professors, deprive at once the first offi- cer of the university, its original founder, the fountain of all aca- demical honours, and the member of the mod distinguished rank, of those rights and privileges which, from the very foundation of the university, he has most, ju stly and uninterruptedly enjoy- ed. Till Till towards the end of the last century, there appear to have been few college-meetings at which the C GPfnh was not present. Since the period of the revolution, the university-revenue has great- increased; its affairs have become more complicated; and, while more frequent meetings have become requisite for conducting their business, the rector has been usuallv a person of rank and distinc- tion, residing at a distance from Glasgow; and, being only an an- nual officer, he has seldom had either time or inclination to give the application necelfary for understanding and taking a share in the ma- nagement of their affairs. From these circumstances, he has, du- • ring the present century, attended the college-meetings less frequent- ly than formerly; altho’, at the same time, there occur a sufficient number of instances of his being present, to show that he was held a constituent member of that conjunct meeting which conducted all the business of the university. With respect to the D eet of I e P o i f N D he appears to have been present at the greatest part of the college meetings, both during the last and present centuries. The person elected into that office has been frequently either one of the ministers of G lasgow or of some neighbouring parish, and more frequently still, one of the professors themselves; so that, being more constantly resident in the universi- ty than either the chancellor or rector, he has been more frequently present at the meetings. And that there was no meeting for the management of the reve- nue, or other important business of the society, at which the rec- tor and dean of faculty had not a right to be present as constituent members, appears in the cleared manner from the university records f rom the year 1690, to the present day; during which time, the journals of their proceedings have been regularly kept. For, 1mo, The meetings in which the rector was present, in which the dean was present, or in which neither was present, are not distinguished by different names, but are all marked with the name of the I e P o i f N A 2do, T he whole proceedings of the different meetings are Rated progressively in the same journal, without any distinction of the meetings of the principal and masters, from those at which the rector and dean of faculty were likewise present. And, 3tio, There is not the least difference in the tenor of the minutes, nor the lead dist in ction made between the business transact- ed in these meetings, confiding of the principal and masters, and those those where there were likewise present the rector, and dean of fa- c u l t y.The right of the chancellor, rector, and dean, to be present, as constituent members at the college-meetings, is not only apparent from the minutes, but likewise from the extended deeds of the society Of these last, there occur many in which the chancel- lor is mentioned in the same manner with the rector, dean, princi- pal, and professors; and there are very few extended deeds in which the rector and dean are not mentioned. Thus it appears, that these three officers have been, from the ve- ry date of the nova erectio in 1577, to the present day, held consti- tuent members of the college-meetings, for the administration of re- venue, and every other important business; and have been constant- ly in use to assemble with the principal and professors for that pur- pose. As these officers were condiment members, and were generally present with the principal and professors at the college-meetings; so, in the humble apprehension of the petitioners, it is equally clear, that the whole members acted jointly, without any distinction, ex- cept that the chancellor, when present, presided, and that, in his ab- sence, the rector presided, T his sufficiently appears from the tenor of the minutes and exten- ded deeds, and from their being subscribed by all, or the greater part o f the members. Thus they generally bear, “ That the rector and principal, with consent of the remanent governors and masters of the college, and they all, with one and assent, have a- g r e e d;"or, “ That the principal and regents, w ith express ad- vice, consent, and assent, of the chancellor, rector, and dean of fa- culty; and they all, with one consent and assent;" or, That the Moderators of the university,” meaning the chancellor, rector, dean of faculty, principal, and professors, “ did appoint,” or “ did unai- mously appoint and ordain,” or “ did, nemine diffentiente, appoint" such or such particular things to be done. When, in place of framing their minutes in the form o f a mutual agreement, and adhibiting the subscriptions of all the members who computed the meeting, the form was introduced, of mark- ing the names of all the members present in a sederunt at the head 0f the minute, and of their being subscib e d, only by the preses and clerk, it appears, with equal clearness, that the whole members ac- ted jointly without any distinction. 1m o, The names of all the members present are set down in the sederunt, at the head of the minute, without the least: dist in ction of the rector and dean of faculty from the principal and professors, except that the rect or is marked first, next to him the principal, and thirdly the dean of faculty, 2do The uniform ftile of the minutes is, ‘ The faculty hiving con- sidered &c. do resolve, or do unanimously resolve or resolve, statue and declare,' such and such particular things to be done: And this is the form invariably observed, whether the rector and dean were pre- sent or absent. 3tio, The minutes are held sufficiently authenticated by the sub- scription of the preses and clerk, whether the preses happened to be the rector or principal, which plainly implies their acting in one joint body. 4t0, In the meetings, all questions which occurred were determined by a majority of the whole votes of the members present. T his is proved from a variety of minutes, bearing the particular resolutions of the society therein mentioned to have been determined by a vote. And in particular, from a minute 30th January 17 18, which is the only minute the petitioners have been able to discover in the records of the university, mentioning the particular manner in which each member voted. At that meeting the rector was not present; but the dean of faculty was present, and voted in the question with the other mem- bers present: And as the powers of the rector and dean, with regard to the management of the revenue, are unquestionably the same, it affords the clearest evidence that they, together with the principal and masters, acted in one joint body, without any distiniction. Thus the petitioners humbly apprehend, they have clearly shown, that, when deeds convey funds to a society, the legal presumption is, that they are conveyed to the community in general, and placed under the administration of its usual representatives and managers, unless it shall appear in the most unambiguous manner that the granters o f these donations intended to exclude from the management the or- dinary administrators. 2d o,That this legal presumpeion applies, with peculiar force to the present case, where the various grants conveying funds to the society, plainly import the granters to have had it in their view to secure a revenue to the incorporated body not to regulate the mode of their administration; and where a con- trary interpretation would inevitably lead to this consequence, that almost each branch of the university-revenue would be managed by a distinct and separate set of administrators. And, 3tio, That this inter- interpretation is fully confirmed by the uniform practice of the so- ciety from the 1577 to the present day; showing, that the admini- stration of their revenue, and every other important bufs ness, has been conduced by a conjunct meeting, of which the chancellor, rector, dean of faculty, principal, and professors, have been the con- stituent members, all acting jointly, without any dist in ction. The petitioners have only to add farther, that the consideration of the nature of the university-government, before the period of the nova erectio, tends to confirm the account now given of the constitu- tion since that time. The administration of all the important busi- ness of the society was conduced by a joint meeting, composed of all the members of the faculty of arts, in which number were inclu- ded the chancellor, the rector, the dean of faculty, the principal, and regents. For a long time after the first erection of the university, they appear to have met in the chapter-house of the bishop. The members were beneficed churchmen of rank, wealth, and dignity; and the bishop, the founder, and perpetual chancellor of the univer- si t y, had an unquestionable right to be present, and to preside there whenever he thought proper. When the reformation dispersed the churchmen, who chiefly composed and gave dignity to the faculty of arts, it was natural that the administration should continue with the chancellor, rector, dean of faculty, principal, and professors, the only remaining graduates in the university, and representatives o f the community. It seems perfectly agreeable to this account, that the minister urbis Glasguensis (for at that time there was but one mini- fter) should, as a graduate, be added, by the charter 1577, as a mem- ber of the conjunct meeting. And, in the records of the society, there occur many instances of the members of the conjunct meeting associating other clergymen with themselves, upon various occa- sions, which practice plainly took its rise from the original idea of the joint meeting of all the graduates residing in the university. These circumstances seem to show, that, after the new erection, the administration of the university affairs was understood to remain with those who had ever been held the representatives and governors of the community. T he petitioners therefore humbly apprehend that the sy stem o f the pursuers can receive no support from the terms of the disposi- tive clauses in the different deeds conveying funds to the university. T hey shall only add a single observation upon this head. The pur- suers have argued, that, as the chancellor, rector, and dean, having no salaries, received no share of the university f unds, it was natural to to intrust the administration to the persons more immediately in- terested, the principal and masters. T his argument, however, even according to the system of the pursuers, would lead to introduce e- qually into the administration, the recto r, dean, and minister; be- came it would be the interest of these last to have the funds mana- ged in the most prudent manner, in order that there might be the greater surplus for them to bestow; whereas the principal and ma- sters would be only careful to keep the funds equal to the payment of their own salaries, and might be extremely indifferent with re- gard to the surplus of which they had not the disposal. In examining the other arguments and evidence o f the pur- suers in support of the two first articles of declarator, the petitioners shall confine themselves to three heads; 1mo, The terms of the char- ter of new erection 1577; 2do, The practice of the university; And, 3 tio, The statutes. of Royal visitation 1727; and they shall endea- vour to do it with all possible brevity. With respect to the right of ordinary administration, the petiti- oners apprehend, that the only separate administration committed to the principal and matters by the charter of new erection, was a dis- cretionary power of directing the oeconomus or provisor in purchasing the daily provisions for the common table; and that, in every other respect, the administration of the revenue was left to that conjunct meeting of the representatives of the community, which has been al- ready described. By that charter the oeconomus is appointed to collect the college- rents, and to purchase the daily provisions for the common table. The persons to be maintained out of the college-funds, says the charter: ‘ ‘ Alantur et sustententur pro modo ac facultate redituum dicto collegio assignatorum, s ecundum discretonm gymnasiarchae et regentium s ubscri p t o r u m and the oeconomus is appointed, “ tempestive ex praeccptorum collegio providere in iis quae ad victum pertinent, et fori quotidie curam agere in iis e- mendis quae ad collegii sustentationem pertinent. ’ He is further ordered each day to render an accompt of what he h as purchased (emptorum et importatorum) to the principal and masters, “ ne qua in re minima fraus fiat collegio." These daily accompts are ordered to be recorded in a book; For, says the charter, “ quotidianae rationes in animadversaria redactae magno erunt familiae usui; " and the principal and mailers, una cum oeconomo, are ordered four times in the year to present their ac- compts compts to the rector, dean of faculty, and the minister of G lasgow, to be inspected and examined. Thus the only administration of revenue, specially committed to the principal and matters, was to direct the oeconomus in providing for the common table pro modo ac facilitate redituum dicto collegio assig- natorum, esculenta et poculenta s ufficienter sine luxu et profusione, ut f rugali v ictus ratione ad s eriorem studiorum curam incitentur. In what manner the management of the whole revenue, as to granting tacks, deeds of excambion or sale, or lending out money, should be carried on, is not mentioned in the charter; but it must surely be presumed to have been committed to those who had ever been held the representatives and governors of the community to which the funds were conveyed. As to the disposal of surplus revenue, after appointing the accompts o f the principal and mailers and oeconomus, to be examined by the rector, dean of faculty, and the minister of Glasgow, the charter adds, " Eorunique consilio quicquid fuerit residui, sive ex veteri e- rectione, sive ex hac nostra fundatione, id omne, rentalibus probe examinatis et discussis, in necessarios collegii usus, et sarta tecta turn collegii tum chori Goveani, aliosque usus gymnasii non prae- termittendos, impendatur et distribuatur." And, with reference to this, it is said in a preceeding part of the charter: “ Quod si, sub- ductis rationibus et calculoinito, quid fuerit residui, id in pios usus collegii, et sarta tecta collegii impendatur, eorum arbitratu quos postea in eadem hac fundatione collegio invisendo praefecimus." Upon these two clauses the pursuers found their claim to this ne- gative; and the weight of their argument rests upon the meaning of the words arbitrate and consilium. The word arbitratus, however, if strictly interpreted, must, in place of a negative, import, that the sole and absolute right of dilposing o f every part of the surplus revenue was veiled in the rector, dean, and minister of G lasgow; and yet no such powers have been ever claim- ed by these three persons, or ever known in the practice of the u- niversity. As to consilium, it is humbly apprehended, that it can never be un- derstood to imply any thing farther than advice or joint counsel; and that it cannot be supposed to import any negative in those persons whole cons ilium or advice is required. There occurs farther a very strong reason for taking the word cons ilium in the sense now explained in cases sim ilar to the present. If, If, in such cases, this word was to import a negative, it would be in effect transferring the sole and absolute light of administration in those particulars, from the persons who were to be advised, to those who were required only to contribute their counsel and advice. For, i f the persons appointed to conduct the business of a society were, upon every occasion, to be controuled by an absolute negative in cer- tain other members, it is obvious that the former could never expect to carry into execution any measure, unless it was so contrived, as to be in all respects agreeable to the arbitrary will of the latter. That, in this manner, the right of administration should be wholly trans- ferred to those persons who are only called to assi st with their advice, can never be supposed to have been in the view or intention of the original founders of any community, unless that intention were ex- pressed in the most clear and unambiguous terms. On the other hand, in forming the constitution of any community, it is natural and proper to appoint certain inferior and lets important branches of business to be conduced only by a part of the members, while the more considerable are to be transacted in a meeting consisting of the whole assembled together in joint council and deliberation. In the charters of different communities, the word consilium fre- quently occurs, and yet has not been understood to import a nega- tive in any of the members of these societies. In the constitution of a borough, the bsllivi are frequently appointed to act, cumonsil- praepositi, or the praepositus cum cos il io balivorum, both, cum c o n- silio communitais; but it has never been supposed that a negative was thereby vested in any of those persons. By the charter of new erection of the college by the magistrates of G lasgow in 1572, the surplus-revenue was appointed to be appli- ed, “ ad necessarios usus collegii aut pluribus regentibus et professo- ribus fundandis, si ita res collegii postulaverit, rectorque acade- miae, decanus facultatis, et collegii praepositus, cum ballivorum co n s i l io, necessarium esse provideant, & c.” It has never been imagined, that, by this clause. it was intended to give the balliv i or bailies of Glasgow, a negative upon the rector, dean of faculty, and principal; but only that, upon the occasions there mentioned all these persons should act jointly. The same charter, in another place, appoints, that the rector and dean of faculty, together with the bailies of the town, should twice in the year audite the college-accompts; and, it there was any sur- plus-revt-nue, it should be bestowed " in maximos necessarios gym- nasii udus colleguque reparatiouem, vis itatorum arbitrio et col. “ leg ii legii praepositi Pn tSL i Ln As It would be preposterous to suppose, that, by consilium in this clause, any negative was vested in the prin- cipal, the collegii praepositus, upon the resolutions of the rector and dean of faculty of the university, and the magistrates of the town. Besides, if the principal had a negative, how could any thing be said to be done v is tatorum arbitrio? And, on the other hand, it ar- bitrium gave the visitors a negative, how could any thing be said to be done, cum praepositi corsilio? These words can import no negative; and yet the surplus-revenue is, in this charter, appointed to be dis- posed of by these persons, cum cons ilio praepos iti, in the very same manner in which, in the King’s charter of new erection, it is ap- pointed to be disposed of by the principal and mailers cum consi lio of the rector, dean of faculty, and minister. This word consilium occurs in another passage of the King’s char- ter of new erection, and yet has not been supposed to import any negative. That charter bellows upon the principal a power of cor- recting and admonishing the professors; and, when his admonitions should prove ineffectual, and it should be necessary to proceed against them with greater severity, he was required to do it, cognita causa et adhibito consilio rectoris ct decani facultatis. These expressions import no negative in the rector and dean upon the principal, but merely that he was adhibere eorum cons lium, and that they were all three to deliberate and act jointly. The committing to a conjunct meeting all the important business of the society, is, in every respect, agreeable to the whole tenor and strain of the charter of new erec t. T he principal is appointed to reside constantly in the college, and not to be absent from it, “ nisi re cum rectore academiae, decano facultatis, et caeteris s uis colle- g is regentibus communicata et venia impetrata.” I f the princi- pal should, in any respect, neglect his duty, it is appointed, that, before proceeding to final expulsion, he shall be three times admo- nished per academiae re torem, aecanum facultatis, collegii regentes, vel EORUM MAJOREM P A RT E M. ” It is impossible to believe, that the King meant by his charter to exclude the archbishops of G lasgow the perpetual chancellors of the university, from a share in the administration of that society of which they had been the original founders; and yet such is the system of the pursuers. It is equally impossible to believe, that, if they had been so excluded, the archbishop would have continued to be present at the college-meetings, and to take a share in the management of their af- fairs, and yet it has been shewn that he has ever been held a constituent member member of these meetings. I f the King had intended to vest a ne- gative in certain members of the society, he would not have failed to intrust it to the first officer of the universi t y, the archbishop of Glasgow. The nova erect io therefore, cannot be explained in the man- ner contended for by the pursuers. It must be presumed, that the King meant to leave with the chancellor all the rights and privi- leges which that officer had enjoyed from the first foundation of the institution; and the subsequent practice of the universi t y, clearly con- inning this account, seems to demonstrate that the King meant not to establish any negative, but merely that conjunct meeting which has been so often mentioned. In the foundation-charter of the university of Edinburgh by King James in 1582, the magistrates are authorised to establish professors of the languages, philosophy, theology, medicine, law, and all other sciences: And the charter says, “ Ac etiam praefati, praepositus, bal- livi, et consules, ac eorum successores, cun avisamonto tamen eorum mini strorum, pro perpetuo in posterum, plenam hibent libertatem personas ad dictas profesiones edocendas, maxime idoneas, uti magis convenienter poterint eligendi cum potestate imponendi et removendi ipsos sicut expediverit.” These expresio n s are much stronger than those in the charter of erection of the university of G lasgow, and yet they never have been held to est ablish a negative in the ministers of Edinburgh upon the magistrates; and, when such a negative was claimed by them upon one particular occasion, it was not admitted. Establishing such a negative would have been transferring the election of the whole professors in the univer- sity to the presbytery of Edinburgh. The pursuers have argued, that, unless the word consilium should imply a negative, no measure could ever be said to be taken by the consilium or advice of the rector, dean, and minister. This, howe- ver, is an absolute petitio principii, for it proceeds upon the supposi- tion, that cons ilium imports a negative; whereas, on the other hand, the defenders apprehend, that it implies merely joiu t counsel and de- liberation. The pursuers have also founded upon the words of the act of par- liament with regard to the fund tor the widows and children o f the ministers of the church o f Scotland; but the words of that act, by which it is provided, “ That no part of the said capital shall be lent, but with the advice and consent of the Lord President, &c.” are so very clear as to leave no room to doubt of the intentions of the legislature. The The evidence arising from the practice of the university is next to beconsidered, and it is apprehended ought to have the greatest weight in explaining this charter, the writer of which seems to have been less studious of perspicuity. than of composing elegant Latin. It is said to be the production of the famous George Buchanan, who was one of those writers, who. after the revival of leaning, aban- doned precision for the reputation of elegant composition. The chief circumstance in the practice of the society founded up- on by the pursuers, is, the expressions in the minutes and extended deeds, bearing. That the principal and masters act with the advice and consent of the rector and dean of faculty. From these expressions, the pursuers would infer, 1mo, That the principal and masters were the administrators, and the rector and dean merely vi- sitors adhibiting their consen t; and, 2do, That they import a nega- tive in these two officers. The petitioners shall first examine how far these two inferences are supported by the manner in which these expressions have been used in the practice of the society; and they apprehend they shall show, that the practice has been inconsi stent with, and contradictory to the system of the pursuers. As to these expressions, importing, that the principal and masters were considered as a separate and distinct body from the rector and dean of faculty, it cannot be admitted; for that, 1mo, The minutes and deeds, so far from uniformly bearing, that the principal and mas ters act with the advice and consent of the rector and dean, do, on the contrary, sometimes bear, that recto and dean act withhe advice and consent of the principal and masters — Sometimes that the principal and regents act with the special advice and content of the r e c t o r, dean, and h G v e t G t f y h n d G S S n h S A—Sometimes that the moderators of the university, importing the chancellor, rector, deanD principal, and masters, did appoint, or did unanimously appoint and ordain, or did nemine dissentiente, or comment omnium sonsensu, ap- point, & C.— And frequently, that all the members of the society act with one cons ent and assent. One deed in particular, in 16 2 1, bears it to have been agreed and contracted between the archbishop oj Glas- gow, the principal, and regnts, with express advice and consent of the rector ana dean of f aculty, and they all with ane cons ent on the ane part. And, in another part of the very same deed, it is said, ‘ Likeas,thd principal regentis, rector, and deane of f acultie, fo r themseives, w ith consent of the find reverend father, (i. e, the archbishop), and they all with and conset, binds and obliges them and their successours, & c,’ 2do, 2do, That although, according to the system of the pursuers, the rector, dean, and minister, are the only persons invested with visi ta- tonal powers, and therefore the only persons whose advice and con- s ent should be found mentioned in those minutes and deeds; yet there arc many in which the advice and consent of the chancellor is mentioned in the same manner as that of the rector and dean. I f the archbishop of Glasgow had been constantly redding at G lasgow, and had chose to give consent attention to the college-business, it cannot be doubted, that his advice and consent would have been mentioned in every one of their minutes and expended deeds. The pursuers have indeed produced tw enty four deeds in which he is not mentioned; but three of these are dared between 1638 and 1662, du- ring which time episcopacy was abolished and nine of them are dated after 1689, since which time, it is well known, the chancellor has hardly ever been present at a college-meeting. 3tio, The minister urbis Glasguensis is never once mentioned as having been present, or as adhibiting his consent or assent to any of their transactions; and yet, according to the system of the pursuers, i f these expressions had been adopted with a reference to the nova erec- tion his advice and consent should have been equally mentioned with that of the rector and dean. And there are in process, minutes and extended deeds so very recently after the nova erectio as the year 1578, in which mention is made of the advice and consent of the rector and dean, but not the least of the minister of Glasgow. 4t0, After the revolution, since which time the antient mode of drawing out their minutes has been altogether laid aside, and a new method, already described, introduced, there does not occur a single instance of the expressions of advice and consent being used in the minutes; the uniform stile of which has been, that the faculty hoving considered, do resolve, or do unanimously resolve, or do resolve, statute and declare. & c. I f there was any such meaning as the pursuers contend for, in these expressions of advice and consent, it is altogether inexpli- cable, that the moment the minutes came to be drawn out in a dif- ferent form from that of a mutual agreement, they should have been totally laid aside, without any words of similar import being substi- tuted in their place. The manner in which these expressions have been employed is e- qually inconsi stent with their importing a negative in the rector, dean and minister. Besides the circumstances already mentioned, of these expressions being uniformly used; of their bearing the mem- bers to have acted all with one consent and assent; of the consent of the the minister never being once mentioned, and of the consent of the chancellor and other members being mentioned, as well as that o f the rector and dean. These expressions cannot import any negative: For that, 1mo, They are equally employed in minutes and deeds, with re- gard to matters in which the rector and dean have confessedly no ne- gative, as in those in which the pursuers would bestow it upon them. In the election of professors, the rector and dean have no negative; and yet in these their advice and conset is mentioned. From this it must surely follow, that from the words themselves no negative can possib ly be inferred. 2do, The pursuers have admitted, that in the greatest part of these deeds, these expressions of advice and consent cannot be considered as exertions of this negative. What reason s there then to suppose them to import a negative in any of the extended deeds whatever? As therefore the manner in which these expresions have been em- ployed, are shown to be inconsi stent with, and contradictory to, the system of the pursuers, it may be inquired how far they may be ex- plained consi stently with the defenders account of the university-con- stitution. From antient charters and deeds, expressing the resolutions of any collective body of men, it appears that the members are usually said to have acted cum assens u e t cosenu, or with the assent and cons ent of each other. In contracts, which were probably the first written deeds which men would have occasion to execute, it appears, that, from the great anxiety of the parties to produce a valid obligation, their con- sent was usually expressed with much form and solemnity. In like manner, when any number of periods were met together, in order to deliberate upon some common concern, their anxiety to render ef- fectual their joint deed, and to prevent its being afterwards departed from by any of the members, made it customary for them to express with great solemnity, their assent and consent to the subject of their joint resolution. This mode of expression was, in a particular manner, adopted in universit ie s; and in the university of G lasgow it was the established manner of signifying the joint resolution of the society, long before the new erec tion in 1577. Thus, in the minute of a meeting in 15 18, it is said, “ In qua quidem congregatione dominus rector, viz, Adam Colquhoun canonicus G lasguensis, cum consensu et assensu de- cam f acultaits, viz. Magistri Joanuis Dobie canonicus Glasguensis, quatout quatuor deputatorum, et omnium magistrorum interesseitium, consid e- ratis primitus commodo et utilitate dictae universi tatis, cosenserunt et assenserunt" &c. T here exist hardly any of the extended deeds of the society before the n o v a e r e c t io; but in an old parchment book, containing some of the antient minutes of the society before the reformation, there occurs the scroll of an extended deed, dated in 156-, in which it is said, “ It is appointit, contractit, and finally endit, betwixt the principal re- gent of the padagogue of G lasgow, and Mr Andrew Hay rector of the university of G lasgow, with cons ent of' the deputies of the samya on the ane part, and Mr Henry Gibsoune burges of Glasgow, on the other part, in manner and effect as follows: That is to say, the said principal, and the said Mr Andrew, rector, and deputies of the said university, with consent and of the remaining members of the said university,” &c Thus, as before the charter of new erection, it was usual for the society to express their joint resolution. by mentioning that they act- ed with the assent and consent of each other; so it was natural for the joint meeting, which, after the nova erectio, conducted the affairs of the university, to express their resolutions in that form of words to which they had been fo long accustomed, and to say that they acted with the assent and consent, or with the advice and cons ent of each o- ther. This account is apprehended to be confirmed by the practice o f the university. These expressions having been employed before the nova erectio, when no negative is even alledged to have existed in the constitution;------their being used with regard to the chancellor, as well as the rector and dean of faculty;----- there being no instance of their being applied to the minister urbisGlagen;-the minutes sometimes bearing that the rector and principal act with consent o f the remanent governors and masters; sometimes, that the rector and dean act with the consent and assent of the principal and regents; and many of them, that all the members of the society act with ane consent and assent; are all circumstances perfectly confident with the account given b y the defenders, but absolutely contradictory to that of the pursuers. A deed in 1621 bears, first, the archbishop, principal, and regents, to have acted with the advice and consent of the rector and dean of faculty; and afterwards, in another part of the same deed it is said, that the said principal, regents, rector, and dean of faculty, act with consent of the said reverend Father the Archbishop, and they all with ane ane consent"; which, it is apprehended, demonstrates, in the clearest, manner, that no negative can be inferred from these expresion s. The pursuers would infer a negative in the rector and dean of fa- culty, from the rector, in a few instances, and dean of facul- ty having added the word consents to their subscription of some of the minutes and extended deeds. I f the addition o f the word cons ents had been the distinguishing mark of a visitor, it would have been uniformly used upon all occasions; whereas, in the whole records of the society, there occur but a very few scattered examples of it. In the next place, several of the instances in which it oc- curs are minutes with regard to elections and other business, in which it is not pretended that the rector and dean have any nega- tive. The addition of the word consents occurs likewise in the sub- scription of persons neither in the office of rector nor dean. And the petitioners humbly apprehend they have demonstrated, that, in all cases, the gentlemen who subscribe in this manner had not been present at these meetings, and therefore afterwards signifi ed their ap probation of the resolutions taken by the society, by the addition o f the word cons ents to their subscriptions. The pursuers have also endeavoured to found upon the minutes and extended deeds being in some instances subscribed by the princi- pal and professors in one column, and the rector and dean of faculty in another. This method of subscription, however, was so extreme- ly accidental, and so little uniform, that it cannot have had any such meaning as the pursuers would suppose: And, indeed, more in- stances have been brought of the rector and dean subscribing the minutes in the same column with the principal and professors, than the pursuers have been able to produce of the contrary. In the last place, the pursuers have founded upon two instances, both occurring in 1723, in which it appears, that, in giving an aug- mentation of salary to one of their own number, and in applying a considerable part o f the unappropriated revenue for the building new houses for the principal and masters, they desired to obtain the appro- bation of the rector and dean of faculty. The difficulty, however, in both these instances, arose, not from any idea of a negative vest- ed in the rector and dean, but from an act of the royal commission of visitation in 17 18, forbidding the applying uappropriated funds for augmentation of s alaries, without the commissioners consent. This commission of visitation 17 18 continued still in force in 1723; but, as they had not recorded in the public registe rs of the kingdom any statutes or regulations which they gave the university, which, however was requisite requisite b y the terms of their commisio n, in order to make their sta- tutes binding, it was a matter of doubt how f ar the act, just now men- tioned, was obligatory; and upon that, as well as the expediency of the measures proposed, they desired to have the opinion of their red or, who was then a gentleman of great eminence and dignity in the law. Building houses for their own accommodation was, in effect, increasing their salaries; and, as it might appear to have proceeded from interested motives they were desirous to obtain the approbation of members of such high rank, and so disinterested in the question, as the chancellor, rector, and dean of faculty. It accor- dingly appears, that the chancellor as well as the rector and dean, was consulted; which demonstrates, that the defiring their consent did not proceed from any idea of a negative, but was entirely a piece of complaisance to the superior officers of the society. T his is farther evident, from there being frequent indances of the principal and masters defiring the consent of the rector in the elec- tion of professors; although it never has been alledged, that, in those cases, the rector has any negative. And, to show your Lordships what was the purpose of applying for the consent of the rector and dean, there occurs a minute 9th February 1691, which, after mention- ing the resolution of the faculty to revive the profesio n of humanity, to found a profesio n of civil history, and the establishing a salary of 600 merks per annum for one professor to teach both these branch- es, proceeds as follows: “ The faculty having had sufficient trial of the qualifications of Mr James Knibloe, do resolve to call and elect him to be professor of humanity and civil history in this university, conform to their above act and resolution; and that it may be the more unanimously done, do desire the principal to write to the rector and dean of faculty to meet here the nineteenth day of this month, or to fend their judgements in this affair.” Many instances might be mentioned of their desiring the consent of the rec- tor, in conferring academical degrees, and, upon various other occa- sions, where even the pursuers cannot pretend the rector to have been vested with any negative; which sufficiently shows, that from desiring the consent of the superior officers of the university to any of their measures, no inference can be drawn in support of the pur- suers system. As it has thus been shown, that this claim of a negative in behalf of the rector, dean, and minister of Glasgow, is not founded in the charter of new erection, nor supported by the practice of the am- versity; so, upon the other hand, the petitioners humbly appre- hend, hend, the practice has been, in various respects, such, as demon- strates, that no negative was ever understood to exist in the consti- tation. 1mo, In the whole records of the university, there is not even a single instance of the rector, dean, or minister’s having claimed a ne- gative in any of the meetings, nor upon any of the resolutions of the society. T hat, in the course of 200 years, a power so remark- able should never even once have made its appearance, is so extra- ordinary, that it must amount to a full proof, no such negative was ever estab lished in the society. 2 do, No instance can be produced, of the rector, dean, and minister meeting apart; while, on the contrary, from the tenor, as well as subscription, of the different minutes, the whole members present seem to have acted in a joint body, without any distinc- tion. This seems a demonstrative proof, that no negative ever ex- isted. The natural consequence of estab lishing a negative in certain members of the society would have been, to create constant disputes and disgusts between them and the ordinary administrators, and soon to have transferred the whole powers of administration to the one or the other. When therefore, in place of the least mark of dissention, they appear acting uniformly, with the greates harmo- ny, with one consent and assent, it must be presumed that no such source of discord was ever planted amongst them. 3tio, No instance has been discovered, in the whole records of the university, of the advice and cons ent of the minister of G lasgow be- ing mentioned in the same manner with that of the rector and dean. In all the extended deeds, upon which the pursuers have founded so much, there is not one in which his cons ent is mentioned. There are in process extended deeds, dated the very year subsequent to the no- va erectio, in which, according to the antient univers ity form, mention is made of the assensus et consensus restoris ct decani f acultatis; but not the least of the minister urbis Glasguensis. In what manner can this total silence with regard to the minister be explained, but by suppo- sing him to have been merely a member of the conjunct meeting, with no greater powers than any other member? Having no interest in the university-funds; inverted with no character of dignity like the rector and dean; and having only a simple vote in the conjunct meeting, he came soon to neglect a privilege in which he found him- self so little interested. If, on the contrary, he had been inverted with the power of deciding, sometimes by his calling voice, the application of the funds of the university, and of controuling the administra- tion t i o n o f society, he would most certainly have been called upon to act, and never would have neglected or yielded up his right. 4 t o, There occur many instances, more especially recently after the n o v a erectio,of the minister’s being elected sometimes into the office of rector, and sometimes into that of dean of faculty. If, however, these three members had been inverted with the important authority now contended tor, the powers of two of them would ne- ver have been lodged with one and the same person. It would have been effectually destroying the constitution; as it would have put it constantly in the power of the ordinary administrators to secure a sanc- tion to all their measures, by placing the powers of a majority o f their visito rs in the hands of one person upon whose support they could de- pend. 5 t0, If the dean of faculty had been a visitor, with power to act with the rector and minister in a separate body, and to review the administration of the principal and matters, he, mod assuredlv, would never have been elected out of the number of these ordinary administrators; the very persons whose conduct he was to review, and by whom also he is annually elected. Notwithstanding this, it appears, that, from the very date of the nova erectio down to the pre- sent day, one of the professors has been frequently elected into the of- fice of dean of faculty. When a royal commission of visitation sat at G lasgow in 1664, one of the professors held the office of dean of faculty. Neithee does the practice of the university in this respect appear to have been censured by the royal commissioners, nor any regulation made by them to prevent such an abuse in time to come. To consti- tute however one of the only two visitors who appear to have acted, out of the number, and by the election of the ordinary administrators, is an inconstituency, which it seems imposib le to reconcile with the sy- stem of the pursuers. In the last place, the method of proceeding in the college-meetings has been, upon all occasions, inconfident with this idea of a negative in certain members of the society; for it appears, that the principal and m asters proceeded to transact business, notwithstanding the absence of the rector, dean, and minister, which they could not posib ly have dene, if t ley had supposed these persons to be invested with a nega- tive; nor was the putting their resolutions in execution suspended till the consent of these members should be obtained. Many instances o f this might be quoted: And, in particular, from 1688 to 1727, in so far as timing that period, records of the society exist, a mul- titude of instances have been brought, showing the surplus revenue to have been disposed of by the conjunct meeting already described, and and very frequently by the principal and matters alone, when neither the recto r nor dean were present, nor their consent obtained. Many of these instances are quoted in the defenders memorial, to which they beg leave to refer your Lordships; and to these many more might be added. In all these minutes, there is no mention of the consent of the visitors having been obtained, nor of its being re- quisite. The dean, it is true, was often present upon these occasions; but, at the same time, he does not seem to have sat there as a visitor, or with greater powers than any other member of the meeting. His consent is never mentioned as requisite, and besides, as, by the confes- sion of the pursuers themselves, the consent of a majority of the three visitors, they cannot suppose that the consent of a single visitor would ever be considered as sufficient. Since the year 1 727, the practice of the society has been the same, as the pursuers themselves admit; and therefore, upon the whole, the petitioners humbly apprehend, that this claim of the negative is neither supported by the evidence nor arguments of the pursuers; and that, on the contrary, the practice of the society has been altogether inconsi stent with, and contradic- tory to, that system of government which they seek to estab lish. It only remains, in the last place, to consider the statutes of royal visitation 1727, which the pursuers have asserted to be decisive in their favour. On the other hand, the defenders apprehend that these statutes afford the st r ongest confirmation of the account which they have given of the university-government. The defenders formerly explained at length to your Lordships the circumstances and condition of the university, when this royal com- mission was sent, and they shall not trouble you with resuming it here. T he Commissioners did not attempt to form a compleat sy- stem of regulations for the whole government of the university; they aimed only at correcting the particular abuses which had then recently given occasion to faction and disorder; and they left all o- ther particulars to be regulated by former statutes and practice. These statutes make no mention whatever of the chancellor or dean of faculty. As to the rector, they restore the antient mode of his election; but, with respect to his rights and privileges, are intire- ly silent. As, therefore, they have not deprived the chancellor, rec- tor, and dean of any of the privileges which they then enjoyed, i t must be presumed they left with these officers all the rights which, according to the usage of the university, they were then understood to possess. It It has been clearly shown, that these officers were held constituent members of all the college-meetings; and that the frequent absence of the chancellor and rector [from these meetings, from the time of the revolution, arose not from any denial of their right to attend them, but from the persons elected into thofe offices, being men of rank and dignity, residing at a distance from the university. At the same time, the dean of faculty, being more commonly a person residing at G lasgow, was generally present at the meetings, and his right to si t and act there as a constituent member was never called in question. It is true, these statutes appoint, ' That there be four ordinary faculty-meetings held every sesio n, consisting of the principal and all the professors of the university.’ And farther, ‘ T h at, in case of the principal’s absence, the elded regent shall have the right of calling and presiding in all meetings, and of doing every thing which the principal Pnoia do.' In order to be finished, however, that these regulations did not mean to commit the administration to the principal and masters, ex- clusive of the chancellor, rector, and dean, your Lordships will re- collect, it has been mentioned, that, from the time of the revolution, the chancellor and rector seldom resided in the university; and that, as frequent meetings had become necessary to carry on the society- business, the principal had been in the use of calling these meetings by his own authority, and of presiding in them, in the absence of those officers. It was necessary for the dispatch of college-business, that some persons certainly residing in the university should have the power of calling meetings; and the Commisioners therefore allow- ed the principal to continue in the possession of this power; and, in his absence, bestowed the same power upon the eldest regent. And the statutes say, consisting of the principal and all the professors, merely to remove a doubt which was then entertained with regard to the right of the new founded professors to si t and vote in meet- ings with the old founded regents. These statutes, however, do not deprive the chancellor, rector, and dean of any of their rights and privileges; they merely respect the rights of the principal and professors with respect to each other, and lease the rights of the superior officers to continue as regulated by former usage. The pursuers have said, that the placing the vicarious right o f pre- siding in the eldest regent during the principal’s absence, is precisely agreeable to the nova erectio, which declares, That “ procuratio gym- “ nasii nasii ejusque cura ad eum praecipue pertinebit in qualicunque prae- posit i absentia.” But the pursuers have not adverted, that the pro- curatio gymnasii here meant, is merely the superintending the common table, and the exercising the ordinary discipline over the students in the gymnasium. T he statutes 1727 prohibit the relations o f the principal and ma- sters from being factors for the college, but mention not those of the chancellor, rector, and dean, which, it is said, proves the former, not the latter, to have been considered as the managers of the revenue. But, besides, that the Commissioners had in view some particular abuses then recently committed, it may be observed, that the same argument would prove the rector and dean not to be visitors; because, as the power of visitors is greater, so there is a stronger reason for preventing them from hurting the interest of the college by any partiality to their own friends. And what, in the humble apprehension of the petitioners, demon- strates their interpretation of these statutes to be ju st, is the clear and undoubted practice of the fociety, not only before, but ever si nce that time. From the very date of these statutes, the whole business of the society has been transacted as formerly in that conjunct meet- ing, of which the chancellor, rector, dean, principal, and masters have been held the constituent members. In 1728, the chancellor gave a commission to a vice-chancellor to sit and vote in the meet- ings; and, tho’ the right of the deputy was disputed, the chancellor’s own right was never called in question. Frequently the rector, and st il l more frequently the dean, has been present at the meetings, and no difference has been made, whether they were present or absent. These facts are altogether indisputable; and it is impossible to believe, that, if these statutes of visitation had meant to exclude these offi- cers, a practice would have taken place so repugnant to the com- mands of the royal commissioners; more especially when it is con- sidered, that this society continued, long after, under the inspection and patronage of a noble Lord, who chiefly conducted the visitation 1727. These statutes, as they do not support the system of the pursuers, with respect to the right of ordinary administration, so they are al- together inconsi stent with the idea of the negative. I f the royal commisio n ers had understood any negative to exist in the constit u tion, it cannot be supposed that they would have omitted to mention it in their statutes. Would they have failed to have in- forced it, i f they judged it right, or to have taken it away, if they had had thought it wrong? Would they not have censured the neglect of it in time past, and have enjoined the observation of it in time to come? Would they rot have checked the practice of electing one of the professors into the office of dean of faculty? And would they not have revived the visitatorial powers of the minister of G lasgow? If the royal commissioners had understood these visitatorial powers to exist in the constitution, they never would have overlooked these particulars; and therefore, the intire silence o f the statutes 1727, with respect to them, is, in the humble apprehension of the petitioners, the strongest confirmation of the account which they have given o f the university-government. The practice since 1727 intirely confirms it; and therefore they hope they have fully shown, that these claims of the pursuers have no foundation either in the statutes or practice of the university. With respect to the third article of declarator, the petitioners are. unwilling to trouble your Lordships with saying any thing upon it. T he accounts of the principal, and matters, and oeconomus, which the charter of new erection appointed to be laid four times in the year be- fore the rector, dean, and minister, the petitioners apprehend to have been merely the accompts of the college-rents received by the oecouomus, and the account of the sums expended in providing the common table, and in paying the salaries of the principal, matters, and servants. And, whatever were in this respect the regulations of the nova erectio, the petitioners have fully shown, that the practice has uniformly been to examine and audite the accompts of oeconomus or college-factor an- nually, in the same conjunct meeting which has transacted all the other business of the university. As the common table is now altogether laid aside, it will be difficult to determine in what manner the ac- compts can be four times a year laid before the auditors. And besides all this, the statutes of visitation 1727 make no mention of these auditors, and do not seem to have understood any such establish- ment to exist in the constitution. With respect to the fourth article of declarator, which is, That the rector, dean, and minister shall have the power of inspecting, and seeing that all things be rightly administered according to the rules of the college, the petitioners apprehend, that the clause in the char- ter of new el ection, upon which the pursuers found this claim, can only be applied to the particular of the persons therein mentioned seeing, the funds bellowed, strictly appropriated to the purposes for which they were declined; and this explanation is strongly confirm- ed from tins circumstance, that there does not occur in the records o f of the society a single instance of these persons ever having exercised this general visitatorial power. It is true, the pursuers have passed from insisting on this point at present; but, as the petitioners are desirous to prevent, as far as possible, all future litigation, they do humbly pray your Lordships judgement upon it, and that you will as- soilzie them therefrom. The remaining articles of declarator at first insisted in by the pur- suers, but now passed from, are so apparently ill founded, and so ex- tremely frivolous, that it is hoped they can never again become the subject of dispute: and therefore the petitioners shall not trouble your Lordships with saying any thing farther upon them. The petitioners would not have troubled your Lordships with ar- guing again upon this cause, if they were not apprehensive, that the constitution, for which the pursuers are now contending, and in par- ticular the establishment of the negative, would, in place o f produ- cing any beneficial effects, be attended with the most pernicious con- sequences to the good order and prosperity of the university. They must therefore, with great deference, beg leave to conclude this pe- tition with a very few remarks upon that head. In what relates to the preventing direct embezzlements of the pu- blic money, it may, perhaps, be often very expedient in any commu- nity to bestow the ordinary administration upon some of its mem- bers, and to place a negative in the hands of others; and therefore, in passing accompts, it may he proper, that certain persons should have a check at this nature upon the ordinary administrators. In carrying on, however, the business of the society, in advising the means of improving the public revenue, in determining the mea- sures proper for promoting literature, and during those particular pious uses upon which any part of their funds is to be expended, it is, with submission, apprehended to be more expedient, that all the several admin i strators should act together in joint council and deli- beration. I f one set of administrators are intitled to propole, and another have the right of interposing their negative, these two bodies will seldom maintain a good understanding, and chearfully co- operate in such measures as are truly use fu l. Either those appointed to controul will take little concern in the interests of the community, and their negative will be reduced to a mere matter of form, or, eager to have the chief share in the administration, they will interpose their negative upon every measure not proceeding from their own previous suggestion, and oblige the ordinary administrators to desert an employment in which their opinion is so little regarded. if, I f, however, it should upon any occasion he expedient to estab lish such a check upon the ordinary administrators of a community, it must surely he held preposterous to place, with those who are to be visited, the annual nomination of their visitors. Such a constitution would be surely ill contrived for securing against the abuses in the administration of any society; and yet, such must be the situation of the university o f G lasgow, if the rector and dean are its visitors. The latter of these officers is elected by a majority of votes in that conjunct meeting which has been so often mentioned. And, although the former is anually chosen in a meeting composed of the former reft or, the dean, the principal, and professors, together with the whole students of the university, who have each of them a vote; yet the influence of the professors over the students has been at all times such as to determine the election. By this means the ordinary ad- ministrators have annually the absolute nomination of two of the three visitors who are to review their management. Independent of the bad effects arising from the unlimited power which this would infallibly place in the hands of the principal, as might be easily shown from the great influence which he must neces- sarily have in determining the election, both of the rector and dean o f faculty, there are other very pernicious consequences which must necessarily follow this estab lishment. To display to your Lordships the factions, animosities, and even tumults, which the annual election of these officers has sometimes produced in this so- ciety, even when they were not held to be inverted with any visita- torial authority, would soon convince you of the fatal effects which must certainly follow the rendering these contests of greater import- ance. These annual elections will keep the professors for ever at va- riance. In place of advancing science and literature, they will be perpetually engaged in political strife and contention. T heir great object will be, not to instruct in useful knowledge, but to secure the votes of their students in the important election of the rect or. The great object of the students will be, not to distingu ish themselves by their progress in letters, but by their influence in university-e lec- tions. T he true interests of the society will be forgotten; the useful purposes of the institution will be defeated; and the university will become the seat of tumult and disorder. Another evil yet, will soon ensue. The office of rector has long been filled by gentlemen of rank, dignity, and abilities. But what se- curity is there, that the society will continue to be equally upright in their choice? it unfortunately there should ever arise a party a- mong mong the professors, who should be willing to sacrifice the honour and interests of the society to their own private views, they will soon find it necessary to elect into the visitatorial office persons of a very op- posite character. They will chuse none but those whom they know will give a sanction to all their measures. And the visitors may thus be- come the tool of a party, and may be employed to protect from chal- lenge the plunderers of the public revenue. I f the conduct o f these visitors was to be subject to the controul of your Lordships, it might be a security against any abuse of their power, but could not prevent in their elections those disorders which have been mentioned. While the rector and dean are only members of the conjunct meeting, there is no doubt that the proceedings of that meeting will be subject to your Lordships review; but, if the rec- tor and dean are visitors in the manner now contended for, it is at least extremely doubtful, i f any appeal from their determinations would be competent. In our neighbouring country, it is clearly e- stablished, that, from the sentence or determination of the visitors o f a college, no appeal can be admitted or received in any court o f law. The constitution of colleges in England and Scotland is ex- tremely sim ilar; and the same reason which determined the judges in another country would probably have influence with your Lord- ships. For all these reasons, the petitioners are extremely apprehensive o f the consequence of estab lishing these powers of the visitors; and at the same time, humbly apprehending the system of the pursuers to have no foundation either in the statutes or practice of the universi- ty, they have humbly submitted this question again to the considera- tion o f the court. May it therefore pleas e your Lords hips, to alter your former interlocutor, and to assoilzie the defenders from the three f irst conclus ions of the purfuers declarator; or, at least, to assoilzie them from the second article of declarator, respect- ing the negative in the dispos al of s urplus revenue claim- ed in behalf of the rector and dean of faculty of the uni- vers ity and minis ter o f the town of Glasgow; and, at a- ny rate, to g ive judgment upon the fourth conclus ion o f the purs uers declarator, and to assoilzie the defenders there- from. According to ju stice, &c. R O B. C U L L E N.
