HEARING DATE 2 May 1878
Oxford college - Mandamus - Fellowship - Visitor - Universities Tests Act, 1871 (34 Vict. c. 26) - Endowment with Religious Test - Hertford College Act, 1874 (37 & 38 Vict. c. 55).
HEADNOTE
By the Hertford College Act, 1874, Magdalen Hall in the University of Oxford was dissolved, Hertford College created, and the property of Magdalen Hall transferred to Hertford College. An endowment for a lay fellowship restricted to members of certain specified churches was afterwards accepted by Hertford College. T., who was not a member of any of the specified churches, tendered himself for examination as a candidate, and was informed that he might be examined if he desired it, but he must understand that he would not be elected even if he stood at the head of the list. T. did not present himself for examination and M., a duly qualified candidate, was elected after examination to the fellowship. After the election T. applied to the Queen's Bench Division for a mandamus:-
Held, overruling the decision of the Queen's Bench Division, first, that there was no refusal to examine T.: secondly, assuming that T. was refused examination, the office being full of a candidate properly qualified, a mandamus would not lie commanding the college to examine T. and to proceed to an election: and that T.'s remedy, if any, was by way of appeal to the visitor.
The operation of the Universities Tests Act, 1871 (34 Vict. c. 26) is confined to colleges subsisting before it was passed, and the Act does not prevent the creation in the universities of fresh colleges, the endowments of which are confined to the members of a particular religious community.
The University Tests Act, 1871, is not incorporated with the Hertford College Act, 1874, and s. 13 of the latter Act which provides "that nothing in this Act contained shall be construed to repeal any of the provisions of the Universities Tests Act, 1871," does not render Hertford College a "subsisting college" within the meaning of the former statute.
INTRODUCTION
ERROR on the judgment of the Queen's Bench Division to a demurrer to a return to a mandamus directed to the principal, fellows, and scholars of Hertford College, Oxford, commanding them to examine the prosecutor as a candidate for a vacant fellowship in the college, and to proceed to the election of a fellow pursuant to the statutes of the college. 2 Q.B.D. 590
The material facts as stated in the return, the arguments, and the cases cited, all appear in the judgment of the Court.
COUNSEL
Dec. 14, 15, 16. Herschell, Q.C., and R. S. Wright, for the prosecutor.
Sir H. S. Giffard, S.G., and C. Bowen, for the defendants.
PANEL: LORD COLERIDGE, C.J., BAGGALLAY, BRAMWELL, AND BRETT, L.JJ
Cur. adv. vult. 2nd May 1878
Lord Coleridge, C.J
This is an appeal from a judgment of the Queen's Bench, ordering a peremptory mandamus to issue to the principal, fellows, and scholars of Hertford College in the University of Oxford, commanding them, by the principal and fellows, to examine Alfred Isaac Tillyard on such subjects as the governing body shall determine, as a candidate for a vacant fellowship, the election for which was advertised to be held on the 2nd of December, 1875; and to proceed to the election of a fellow pursuant to the statutes of the college. The argument here and below took place on demurrer to the return; and it has been admitted that the return of the college states the facts contained in it fully and frankly, so that we have the whole case before us. Grave questions, not only as to Hertford College, but affecting the Universities of Oxford, Cambridge, and Durham, have been raised and must be decided, whether we confine ourselves to the peculiar facts of this particular case, or consider the construction to be placed upon the University Tests Act, 1871, in regard to colleges created after the passing of that Act, or in regard to endowments first added after the passing of that Act to colleges subsisting when it passed.
The material facts are these:-
There is a distinction in the University of Oxford between colleges and halls. Colleges are corporations, with power to hold property, and with endowed fellowships belonging to them. Halls are not corporations, have not power to hold property, and have no endowed fellowships belonging to them.
There was a college in Oxford called Hertford College, which was put an end to by Act of Parliament in 1805. At that time there was near Magdalen College, and standing on ground belonging to that college, a hall, called Magdalen Hall. When Hertford College was put an end to, its property, site, and buildings were conveyed by Act of Parliament to the chancellor, masters, and scholars of the University of Oxford in trust for the principal and other members of Magdalen Hall, to enable the hall to be removed to the site of Hertford College, and there to be carried on as a hall. The removal took place, and about 600l. a year (besides the buildings of the hall) were held by the university, partly for the benefit of the principal of the hall, partly for certain university scholars, who were obliged to reside in the hall as students. The University Tests Act (34 & 35 Vict. c. 20) passed into law in 1871, and Magdalen Hall was within the second section of that Act, a subsisting "college" in the university when it passed, and as such clearly within the scope of its provisions; so it remained till the year 1874. In that year the Hertford College Act (37 & 38 Vict. c. 55) passed into law. By the effect of its second section Magdalen Hall was dissolved, and Hertford College was created and incorporated. The corporation consisted of the former principal of Magdalen Hall, who is made principal of the new college and four other gentlemen, by name: the scholars who before the Act were scholars in Magdalen Hall, "and all persons who shall hereafter be duly appointed to be fellows and scholars respectively, of or in the college hereby created, and their respective successors as principal, fellows, and scholars respectively of or in the said college."
Thirty thousand pounds had been given by a munificent person (whom there is no need to name), and this sum is by the Act, together with the former property of Magdalen Hall, transferred to the new corporation "for the endowment of fellowships in the said body."
It is not necessary to consider whether it could be disputed, because in this case it is not disputed, that all this endowment is held subject to the University Tests Act, 1871, and that no religious test can be applied to the principal, and to such fellows and scholars of Hertford College as hold offices, the emolument of which proceeds therefrom. But since the creation and incorporation of the college by the Act of 1874, that is to say in 1875, a very large sum of money amounting to above 4800l. a year has been added to the endowment of the college, exclusive of the old Magdalen Hall property, and of the 30,000l. above mentioned. And arrangements have been made with the college, by which this additional endowment is to be further increased, so as to amount at last in the whole to above 8000l. a year. The whole of this additional endowment has been given to the college, with "the desire and intention" of the donor, expressed in his instrument of gift, that it "should be limited to members of the Church of England or Ireland, or of the Protestant Episcopal Churches of Scotland, the British Colonies and the United States of America." It is in respect of a fellowship founded in 1875, and endowed out of this latter and additional endowment, that the question before us has arisen. The fellowship in dispute became vacant by the marriage of the gentleman who held it, in October, 1875. Two fellowships had already been filled up by election in the year 1875, beyond which number, by the 22nd section of the Hertford College statutes, the college are not bound to fill up vacancies which occur within any one year. In the latter part of the year 1875, however, the college advertised that there would be an election to the fellowship now in dispute, and stated in the advertisement that candidates must be members of the Church of England or of Ireland, or of the Protestant Episcopal Churches of Scotland, the British Colonies, or the United States of America. The prosecutor thereupon by a formal notice to the college, intimated that he intended to contest the legality of the limitation above mentioned, and that he proposed to present himself "as a Nonconformist candidate" for the vacant fellowship.
To this notice the principal replied on behalf of the college, to the effect that the limitation mentioned in the advertisement would be adhered to. The subsequent proceedings, as much may turn upon the exact form of them, are best stated in the language of the return of the college.
"On the 13th day of December, 1875, the said Alfred Isaac Tillyard called on the principal at the said college, and stated that he had called to make his application complete, and also to obtain a more definite reply to his question of the 9th day of December, and asked whether he could be admitted to an examination as a Nonconformist. He was informed by the principal that the election could only take place according to the advertisement. Thereupon the said Alfred Isaac Tillyard inquired if that was not tantamount to saying that he could not be admitted to the examination as a Nonconformist, and that it would of course prevent his going in for the examination if he knew that he should not be elected. The said Alfred Isaac Tillyard was thereupon informed by the principal that he might be examined if he desired, but that he must understand that he would not be elected even if he stood at the head of the list.The examination of candidates for the vacant fellowship began on Tuesday, the 14th of December, 1875. Save as aforesaid, the said Alfred Isaac Tillyard did not present nor tender himself at or for such examination, nor was he examined among the candidates. The said examination terminated on Friday, the 17th of December, 1875."
After the examination was over, on the 20th of December, the prosecutor again applied to be examined and elected.
"On the 20th day of December the said Alfred Isaac Tillyard wrote to the Reverend Richard Michell, D.D., principal of the said college two letters, in the words and figures following respectively:-"The Avenue, Cambridge, December 20, 1875.Sir, - May I respectfully trouble you once more to lay the inclosed letter before the governing body of Hertford College. It contains a request that I may be examined and elected as a Nonconformist to the fellowship you have advertised. I shall reach Oxford to-day, and any reply to the Mitre Hotel, High Street, will receive immediate attention.
Your most obedient servant,
To Rev. R. Michell, D.D.
Alfred I. Tillyard."
----------------------------
"The Avenue, Cambridge, December 20, 1875.
To the governing body of Hertford College, Oxford.
Gentlemen, - I am informed that you proceed to the election of a fellow to-morrow (21st inst.). I request that you will examine and elect me as a Nonconformist. I shall be present at Oxford for that purpose, and any communication addressed to the Mitre Hotel, High Street, shall receive immediate attention.
Your most obedient servant,
Alfred I. Tillyard."
On the 21st day of December, 1875, the Reverend Richard Michell, principal as aforesaid, wrote and sent to the said Alfred Isaac Tillyard a letter in the words and figures following:-
"Hertford College, December 21, 1876.Sir, - I am requested by the governing body of Hertford College to acknowledge the receipt of your letter of yesterday's date.
The examination of candidates for the vacant fellewship in this college began, according to the terms of our printed notice (a copy of which was sent to yon on December 11), on December 14, and terminated on Friday last.
When you called upon me in the evening on Monday, December 13th, you declined to go in for the examination.
The governing body are therefore at a loss to understand on what grounds you now ask to be examined and still more to be elected.
I am, Sir, yours faithfully,
R. Michell."
And on the 21st of December Mr. Maude, a duly qualified candidate, was elected after the examination to the vacant fellowship. And the college contend that as the fellowship is full of a duly qualified candidate, that fact is alone and of itself an answer to the mandamus.
It will presently appear that we do not shrink from expressing an opinion upon the larger questions which have been argued before us, but we must say that the particular facts above detailed as to the application of the prosecutor and the election to the fellowship do appear to us to afford an answer to this writ at the suit of the prosecutor. And we add in consequence of what was said in the Court below, that we can see no reason in morals or in honour, why if the particular facts of the case afford an answer, the college should hesitate to rely upon them. A generous benefactor, having given 30,000l. without conditions to the college, has given, and is in course of giving, an additional sum equal to a large fortune, not as a so-called munificent testator, when he can make no further use of it himself, but in his own lifetime, and out of means which he might lawfully spend upon himself and his pleasures. This large sum the college has received at his hands upon certain conditions, which it is plain they did not think illegal, and which were certainly not in any degree in themselves disgraceful or immoral. The prosecutor who must certainly be aware that the donor, who is still living, did not wish to extend his bounty to him, claims to share it, or to try to share it, in spite of the donor's wish; and why, under these circumstances the college should not hold the prosecutor to his strictest legal rights, or refrain from availing themselves of any legal answer to a claim so purely legal, we are entirely unable to comprehend.
It may be further observed, that not only is this an objection which the college were justified in taking in defence of the gentleman who was elected to the fellowship, and who is admitted to have been in himself a perfectly fit and proper person to be elected; but that the objection, rightly considered, goes to shew that the courts of law have no jurisdiction over that which is really the question between the parties. For if the prosecutor had been examined, and had passed the best examination, and the college nevertheless had elected Mr. Maude in preference, because of his religious opinions, it is plain that the prosecutor could not have successfully applied to a court of law to reverse the election. And this shews that by withdrawing from the examination, and then complaining that he was refused examination "as a candidate," he is bringing, or attempting to bring, indirectly the decision of the question under the jurisdiction of a tribunal, which directly could exercise no such jurisdiction over it. If the result should be, that the matter is left to the judgment and conscience of the members of the college, it is a result, in which, subject to the observations we are about to make, we should acquiesce without reluctance.
Do, then, the circumstances accurately looked at (and for this reason the paragraphs of the answer containing them have been set forth in the words of the return) afford a legal answer? We think they do. It seems plain that the prosecutor here did not pursue a proper course. By the general law, and by the statutes of Hertford College* all that any one who desires to be elected can claim, at first, is to be examined in accordance with the 19th section. Whether the University Tests Act, 1871, applies or does not apply to this fellowship, is for this part of the argument immaterial; this, in any view, is the first claim which a man must make who is desirous to be elected. Passing an examination is indeed a condition precedent to election; but it does not follow, and the words of the statute are carefully framed to prevent its following, that superiority in the examination gives an absolute and unqualified title to be elected. The prosecutor apparently, from his letter of the 20th of December, 1875, assumed that it did; but this is a mistake.
*Section 19: The governing body shall elect such persons to be fellows as, after examination in such subjects as the governing body shall with reference to each vacancy determine, the governing body shall deem to be the most deserving to be fellows of the college, and best qualified to promote its interests as a place of religion, learning and education; provided that if two-thirds of the total number of the governing body, other than the principal, at a meeting convened after notice at least thirty days before the day of election, shall, with the consent of the principal, determine to elect any person to be a fellow without examination, the governing body shall elect such person.
Now the only thing, which, at the time he asked for it, he was entitled to ask for, was never refused him. Intellectual examination he may have been entitled to ask for, and intellectual examination was not only not refused him, but was in terms offered him by the principal. I am not forgetting the terms in which that offer was made; it was, however, made in fact. But he never presented himself for this intellectual examination; he had notice of the time and place of it, and he voluntarily stayed away. This being the case, what is there to shew, nay, what kind of presumption is there, that, even on his own view of the statutes and of the law, he would have had a right to the fellowship? There is nothing. If we assume that the college are wrong in the view they take of the application to themselves of the University Tests Act, 1871, still the prosecutor is in no condition to avail himself of their mistake.
It is said, no doubt, and with truth, that he claimed to be examined and elected, in his own phrase, as a "Nonconformist candidate," and that as such the college refused to examine him. The phrase, to "examine as a candidate," may be open to exception; but probably the meaning which the prosecutor desires to convey is, that he was told that after he had been examined by the college, the college would not elect him, although he did best in the examination, because he was a Nonconformist. Let us assume that the reason given for the intention not to elect him, if he did best, was a reason not warranted by law. Still it seems that he must give some sort of reason for believing that otherwise, and independently of this wrong reason, he is entitled to what he asks for, or, in other words, that the wrong view of the law taken by the college is a wrong to him.
This is a proceeding to redress a personal grievance, and unless there is some sort of evidence that a personal grievance has been suffered, it is not our duty to correct by mandamus a theoretical mistake in law on the part of Hertford College, even if we thought they had made it.
Take a case strictly analogous, but free from the disturbing influence, which the question of doctrinal tests appears to exercise over many minds. Suppose the case of a candidate for a fellowship, of unquestioned intellectual eminence among his fellow candidates, but believed, wrongly if you please, to have some grave disqualification of another sort, social, moral, or religious, brutality of manners, extreme profligacy, or open and avowed disbelief in the foundations of all religion, and that such a man were told that whatever examination he passed the college would not elect him; could such a man decline the examination, dispense with any proof of his independent fitness, and come for a mandamus to vacate the election of a perfectly fit person on the ground of proof, conclusive if you will, that there had been a total mistake as to the existence of his own supposed disqualification? Surely not. But the case of such a man is in principle really the case of the prosecutor.
Furthermore, it is, as we have said, quite plain, that if the prosecutor had passed the best intellectual examination the college were not bound ipso facto to elect him. If, indeed, a man could shew a good ground for believing, as it is quite possible he might, that he had passed the best examination, that he had no moral or social disqualification, but that the college had, nevertheless, refused to elect him from motives wrong, illegal, or corrupt, he would not be without a remedy; but his remedy would be, not mandamus, but appeal to the visitor. Not mandamus, because a court of law can deal only with the acts not the motives of the actors; and if the electors' acts were legal, as where a discretion is left to them, and they act within it, mandamus is inapplicable. It has been suggested that the power of the visitor would be also an inapplicable remedy, because it can be exercised only in respect of those who are already members of the college. For this proposition the case of Rex and Reg. v. St. John's College, Oxford 4 Mod. 368, was cited in the argument. But when that case is looked at it will be seen that there is no decision of the Court, as reported in 4 Modern; and the language cited to us is the language of counsel. It is certainly true that Lord Holt is made to say in the report of the case in the volume which bears the name of his reports Holt, 437, that a visitor has no jurisdiction over a scholar till he is admitted. The case is distinguishable, for an ascertained and definite private right of property in the Mayor of Bristol had been there interfered with by the college. But, at any rate, the case stands alone and has not been followed, while there are cases directly in point, and of great weight, which shew that the authority of the visitor is as complete over admissions to fellowships as over amotion from or deprivation of them. Such is the case of St. John's College, Cambridge v. Todington (1 Burr. 158; 1 Burn's Eccl. Law, ed. 1842, p. 463, from the Historical Collections of Rushworth, vol. ii. pp. 324-332). The form of the proceeding was prohibition. The college sought to prohibit the Bishop of Ely from proceeding to hear, as visitor, an application against them at the suit of a rejected candidate. After long and repeated argument the rule was discharged; and in the elaborate judgment of Lord Mansfield he lays down the proposition in terms that the bishop, as visitor, was judge of such a complaint, and that his jurisdiction was "most evident." And with him entirely agreed Sir Thomas Denison and Sir Michael Foster.
In the case of Rex v. Warden of All Souls College, Oxford (T. Jones, 174), which was an application for a mandamus to the college at the suit of a rejected candidate, the very point is taken that though a motion and correction belong to the visitor, admission and refusal do not. But it is taken only to be overruled by the whole Court. In the case of Ex parte Wrangham (2 Ves. 609), there was an appeal to the Lord Chancellor as visitor of Trinity Hall, Cambridge, on the part of a rejected candidate. Lord Loughborough heard and decided the appeal without question as to his jurisdiction on this point, though he seems to have doubted at that time whether the Lord Chancellor were the proper minister to exercise the visitatorial power of the Crown.
In the case of Rex v. Master and Fellows of St. Catharine's Hall, Cambridge (4 T. R. 233), there was an application to the King's Bench for a mandamus to the college to declare a particular fellowship vacant, and to proceed to a new election. Lord Kenyon refused the rule on the express ground that the Lord Chancellor was the visitor, and that the jurisdiction over such a matter was with the visitor, and not with the courts of law. It is useless to multiply cases after authorities such as these. It might be done, however, and I abstain from it only because the contention on the part of the prosecutor is new, and seems unfounded. Certainly, at one time of my life I was familiar with appeals to the visitors of colleges by rejected candidates to reverse the results of elections; and perhaps I may be forgiven for saying that the college of which I was a fellow was ordered, while I was one, by the visitor to admit, and did admit to a fellowship, a gentleman whom the college had rejected upon grounds which the visitor, the Bishop of Exeter, deemed insufficient, and against which the rejected candidate successfully appealed.
If from cases of admission and refusal, we turn to cases of amotion from fellowships, the books are really full of cases in which the Courts have refused to interfere, and have remitted the applicant to the visitor. It is true that in cases of this sort the applicant had been a member of the college, in the case before us, and in like cases, he desires to become one. But in neither class of case is he a member at the time of the application, and we are unable to see that the distinction in fact makes any difference in principle.
There are cases no doubt of which Reg. v. St. Peter's College, Cambridge (9 L. J. (N.S.) Q. B. 321), is an example, where the question arising on a pure point of law, as a right to nominate entirely apart from the statutes, the college being indifferent, the machinery of mandamus has been used for the purpose of trying title, but such cases in no way interfere with the principle just laid down. There are cases also, no doubt, in which the Court has granted a rule when the existence of a visitor is left in doubt, in order to see upon the return whether they have jurisdiction or not.
It has been argued that in this case the appeal to the visitor would be nugatory, because the Chancellor of Oxford is the visitor appointed by the statutes, and he has already, under the same statutes, sanctioned the conditions of donation, which it is contended are illegal. If, however, the visitor have jurisdiction, and if the reasons given by Lord Mansfield, in St. John's College, Cambridge v. Todington, for confining college disputes to college tribunals, are, as we think they are, still strong and cogent, this is no argument; and it is, moreover, reasonably certain that the chancellor would hear the matter argued in a judicial spirit, uninfluenced by any previous opinion of his own, and probably with the assistance of some eminent lawyer as his assessor. In this respect also, therefore, we think that the prosecutor has not followed the proper course, and that the particular circumstances of this case are an answer to his application.
The further point has been made that the office is full, and that therefore if the writ goes the college cannot obey it. It has been answered that this would indeed be so if the office were the proper subject of a quo warranto; but that as it is not, it follows that mandamus lies. For that proposition no authority is cited in the Court below except Reg. v. St. Martin's in the Fields 17 Q. B. 149; S. C. 20 L. J. (Q.B.) 423. But that decides no such proposition; it decides only that where an office, to which quo warranto applies, is full, mandamus will not be granted. The converse of that proposition is not necessarily implied in the decision of the Court, and the expressions of the judges in the cases of Rex v. Mayor of Cambridge 4 Burr. 2008; Rex v. Corporation of Bedford Level 6 East. 356; and Rex v. Churchwardens of St. Pancras 1 A. & E. 80 (each of these cases decided with expressions of doubt and on their own particular circumstances) by no means warrant the unqualified proposition laid down in the Court below by my Brother Lush that "where quo warranto does not lie mandamus is the only remedy." Probably the expressions of Sir Hugh Hill in the case of In re Barlow 30 L. J. (Q.B.) at p. 271 are a correcter statement of the law, "unless the Court can see clearly that there is another remedy equally convenient, beneficial, and effectual, the writ of mandamus will be granted, provided the circumstances are such in other respects as to warrant the granting of the writ." To the proposition thus limited we should without difficulty assent, but in this case the circumstances are not such as to warrant the granting of it.
On the point that the office is full, and that this is of itself an answer to the application for the mandamus, as an abstract point of law the cases and the dicta are conflicting. Basset's Case Sid. 286 is cited in Viner, Mandamus R. 13, for the proposition, which when looked at it hardly sustains, that it is no good return that the office is full; while on the other hand the judgments of Lord Macclesfield and Eyre, J., in Sir Gilbert Heathcote's Case 10 Mod. 48 as reported, seem to assume that mandamus will not be granted where an office is full of a candidate properly qualified. We should, however, agree with the Court below in their conclusion on this point if we agreed with their premises. If the election of Mr. Maude were absolutely null, if the election had been merely colourable, we should be prepared to hold that the circumstances of its having taken place in fact, and of the candidate being accidentally well qualified, might be disregarded; and, that as there had been in law no election, mandamus ought to go to compel the college to hold one. But this is not in our judgment the true view of the case.
It is on all hands conceded that the Courts have no power to compel the election of a particular person, and that the discretion of the college, as to electing this candidate or that, is left by the statutes absolute. "Such persons as they shall deem to be most deserving to be fellows of the college and best qualified to promote its interests as a place of religion, learning, and education," are the words, which ascertain the duty. But this is not a legal duty, nor have the Courts the power to enforce it. It is a moral duty, to the discharge of which the conscience is bound, and which there is no reason to doubt has been discharged in the colleges of the universities since the passing of the University Tests Act, 1871, and in reference to its provisions with honour and integrity. But the election being thus discretionary, and no legal consequence of the result of the examination, the cases cited to us, in which it has been held that the exclusion of a qualified candidate (who, in certain events, would have had a legal right of election), makes the subsequent election null and void, have no application. And in this sense, and with these qualifications, we think that the office being full is another answer to this proceeding.
It has been said that this line of reasoning seems to shew that even the "subsisting" colleges, those to which in its terms the University Tests Act, 1871, applies, may evade its provisions with impunity, at least as regards any interference of the courts of law. They may; as other men may evade plain duties which bind in honour and in conscience, if they hold their peace and disregard clear moral obligation. It is not lightly to be supposed that bodies of educated men will unite in dishonourable and unconscientious courses; but if such things often happened, there can be no doubt that Parliament would not, as it ought not, to hesitate to turn a moral obligation disregarded into a legal one which could be enforced. That is no reason, however, why a court of law should do what Parliament has deliberately abstained from doing. We may refer with entire agreement to the instructive judgment of Lord Loughborough, cited in Ex parte Wrangham, 2 Ves. 609, for strong reasons of sense and convenience, why we should not even desire to bring questions relating to college fellowships under the jurisdiction of courts of law. For these reasons, then, upon the facts of this particular case, we think there is no ground for issuing the mandamus. The prosecutor was not refused examination, he did not place himself in a condition to claim more of the college than the college had offered; if he had and if they had improperly refused him his wrong would be one corrigible by the visitor and not by the courts of law; and in the sense in which we have explained it the plenarty of the office is an answer to the writ.
Such are the reasons, apart from the broader questions, raised and decided in the Court below, which have led us to differ from the conclusion of the Court. But the case fairly raises those broader questions, and we proceed to give judgment on them. Besides the duty in not encouraging doubts on an important practical matter which we do not in any degree share, these questions are raised by the return, they were argued and decided in the Court below, they were elaborately argued before us, and if this case should go further it may be essential for the guidance of the college in this very election, that they should be decided.
The questions are two -
1. Does the University Tests Act, 1871, bind Hertford College proprio vigore? 2. Is Hertford College made subject to the University Tests Act, 1871, by the provisions of the Hertford College Act, 1874?
Upon the first point the judges below differed. My Brother Mellor held that the University Tests Act, 1871, did govern Hertford College proprio vigore; my Brother Lush held that it did not. On this point we agree with my Brother Lush.
Hertford College was not a subsisting college when the University Tests Act, 1871, passed; and it is to subsisting colleges in terms the 3rd section of the Act, and as far as the imposition of tests is concerned, the whole Act is carefully confined. It is said, indeed, by my Brother Mellor, that "it could never have been intended by parliament that the repeal of the restrictions, tests, and disabilities effected by the University Tests Act, 1871, should be limited to existing colleges and existing endowments." We are not, however, concerned with what parliament intended, but simply with what it has said in the statute. The statute is clear, and the parliamentary history of a statute is wisely inadmissible to explain it, if it is not; but in this case, if it could be referred to, it would appear beyond all controversy Parliamentum voluisse quod dicit lex.
We are clearly of opinion that the University Tests Act, 1871, does not of itself prevent the creation in the universities of fresh colleges, the endowment of which may be confined to the members of a particular religious community. It does not indeed appear to have been the intention of parliament that no endowments should be allowed to be created in colleges which might be founded after the passing of the University Tests Act, 1871, in favour of particular forms of religious belief. The Act provided that the wishes of founders expressed, speaking generally, centuries ago, should not now prevail in a state of things altogether different, which could not have been foreseen, and which might, possibly at least, have modified the expression of their wishes. But it was to "subsisting colleges" only that its operation was expressly confined. The statute, as we have said, is clear, and we are satisfied that in thus construing its language we are following its spirit, and effecting its real object.
In considering the second question it is important to bear in mind the particular circumstances of the creation of Hertford College, which in the earlier part of this judgment we have set out in detail. It is formed in part out of an institution which was a "subsisting college" within the meaning of the University Tests Act, 1871, and the buildings and endowments of that institution are part of the buildings and endowments of Hertford College. It is carefully provided by the 3rd and 4th sections of the Hertford College Act, 1874 (37 & 38 Vict. c. 55), that endowments belonging to, and holders of office in, the old institution shall remain, on being transferred to the new institution, subject to the same legislation which would have governed them if they had still belonged to, and held offices in, the old.
To these endowments, therefore, and to the persons who held in the new college the emoluments which proceed from these endowments, the University Tests Act, 1871, undoubtedly applies. Such persons cannot be required in the words of the Act "to belong to any specified church, sect, or denomination." Furthermore as the college statutes and the Hertford College Act, 1874, do not either of them authorize in terms the imposition of any tests in respect of the 30,000l. which is mentioned in the preamble and dealt with in the second section of the Act, it is clear, at least at present, that no test could be imposed by the college in respect of offices endowed out of that sum without some alteration of the language both of the Act and of the statutes of the college. But the question before us does not arise as to any such office. It arises in respect of an office created and endowed after the passing both of the University Tests Act, 1871, and of the Hertford College Act, 1874, and it is contended that endowment and office are nevertheless both within the provisions of the latter Act, because the 13th clause of the Hertford College Act is in these terms: "Nothing in this Act contained shall be construed to repeal any of the provisions of the University Tests Act of 1871."
Now, first by the 5th section of the Hertford College Act, 1874, the college may "make such regulations, ordinances, and statutes for the election of the fellows thereof as to them shall seem meet," subject, it is very true, "to any Act for the time being in force for the government of the university or colleges therein;" that is to say, subject to the law. But we have said already that the University Tests Act, 1871, though no doubt prospective and for all time as to the university, is not prospective in regard of tests as to the colleges, except such colleges as were subsisting therein at the time of the passing of the Act.
The 3rd section of the University Tests Act, 1871, is in the clearest terms prospective in respect of any office, including fellowships, in any college subsisting at the time of its passing.
So that, while it leaves the matter open as to any possible future colleges, it prevents the application of any test to any endowment, present or future, in subsisting colleges. It therefore is not a statute subject to which this power of the college is to be exercised. The proviso in the 5th section of the Hertford College Act prevents in effect the exercise of this power in respect to old offices or old endowments; and the 6th section, though not directly applicable to this argument, has yet an important practical bearing on the question; as shewing that with regard to certain statutes the control of the Queen in Council, and the power to interpose by either House of Parliament, is carefully preserved.
But the 7th section is still more important. By it the college are empowered "from time to time to accept such gifts and endowments as may be made to them for the endowment, improvement, establishment, or maintenance of (inter alia) fellowships within the said college, and for any other lawful purpose, upon such terms and conditions as may with the sanction of the chancellor of the said university be agreed on between them and the respective donors." It is in respect of a fellowship established under the provisions of this clause, as to the endowment of which all the conditions of this clause have been complied with, that the question before us has arisen.
It is very probable that the clause was passed with the knowledge that what has happened was about to happen, and for the purpose of legalising the creation and endowment of this very fellowship. But whether this is so or not, it would be difficult to find apter words to describe the transaction, than the words of the clause, which college and donor alike have understood as authorizing them to transact it. It is said, however, that the 13th section makes the transaction nugatory and unlawful, incorporates the University Tests Act, 1871, with the Hertford College Act, 1874, makes the college a subsisting college within the University Tests Act, 1871, and prevents the reception by it, though otherwise on this view lawful, of any endowment confined to the members of any specified church, sect, or denomination. This would be, as it seems to us, to put an altogether unreasonable and strained construction on a section expressed in the language of the 13th section here.
It is a complete and sufficient answer to say that as the new college and the new offices are not and never were subject to the University Tests Act, 1871, none of the clauses of the Hertford College Act, 1874, are, according to the interpretation we have put upon them, construed so as to conflict with the 13th section. But it is also true that there is enough in the history of the foundation of Hertford College, and the incorporation into it of the old endowments and old offices belonging to Magdalen Hall, to explain the general saving of existing rights effected by the words before us. The earlier sections of the Hertford College Act, 1874, had specially dealt with these matters, and the last section may have been well added to secure the important objects dealt with in those sections; to ascertain their meaning, if it was obscure; to effect their object, if the language of the sections themselves had left it doubtful; and to provide that such parts of the new institution as had been subject to the old law should so remain, notwithstanding their forming part of a whole which, as a whole, was not so subject. Had it been intended to incorporate the University Tests Act, 1871, with the Hertford College Act, 1874, a sort of incorporation of which the statute book affords countless examples, there are words familiar to us all and in common use which might have been, and which we think it is fair to say would certainly have been, used. And no example was given us in which such an incorporation of one statute with another had been held to be the effect of such language as this. On this point, therefore, we differ from the Court below, and are of opinion that the University Tests Act, 1871, does not affect this fellowship, through the Hertford College Act, 1874, any more than it does by its own strength.
For all these reasons we are of opinion that the return of the college in this case is good, and that the judgment of the Court below must be reversed.
DISPOSITION
Judgment reversed.
SOLICITORS
Solicitors for prosecution: Woollacott & Leonard.
Solicitors for defendants: Markby, Tarry, & Stewart.