Corpus of Modern Scottish Writing (CMSW) - www.scottishcorpus.ac.uk/cmsw/ Document : 526 Title: Memorial for Thomas Thomson concerning the controversy between Faculty and Regius Professors Author(s): Anonymous Memorial for Thomas Thomson M. D. Profeſsor of Chemistry, John Couper M. D. Profeſsor of Materia Medica, Robert Cowan M. D. Profeſsor of Forensic Medicine & Medical Jurisprudence, Andrew Buchanan M. D. Profeſsor of Theory of Medicine, John [¿] [¿] M. D. Profeſsor of Midwifery, and Lewis D. B. Gordon Esqr Profeſsor of civil Engineering and Mechanics, all of Glasgow College. * Note. Besides the six memorialists there are three other Regius profeſsors in the Univesity those of Botany, of Surgery, & of Natural History. The commiſsion of the Profeſsor of Surgery is a restricted one like that of the Profeſsor of Chemistry. The Memorialists and Regius Professors in the University of Glasgow appointd since the year 1809. The professorships of Surgery and Midwifery were founded by the crown in 1815. Those of Chemistry and Botany in 1818. To these were added a professorship of Materia Medica in 1831, of Medical jurisproduce & a professorship of Theory of Medicine in 1839, and of Civil Engineering and Mechanics in 1840. In the Commiſsions granted by the crown to some of these professorships certain limitations are introduced, which wil be afterwards noticed: But in the others, and particularly in the more precent appointments, the Commissions "give and grant to the professor named," "all rights and prvileges which belong to "any other professor in the said University." In point of fact however the Regius Professors who have been appointed during the present century, have been excluded from several very important rights and privileges enjoyment by other professors in the University: And it is the object of the present Memorial to obtain advice how far that exclusion is well founded in law. The whole professors composing the Senaturs academicius of the University of Glasgow are according to the existing state of matters divided into two claſses: one consisting of fourteen individuals including the principal, who are called Faculty professors; and the other consisting of nine who are professors in the University, but without being members of the Faculty. The Faculty professors claim for themselves exclusivel, and at present exercise the following importand rights and privileges as stated in the |Report of the Glasgow University Commiſsioners appointed in 1836. "The faculty Professors draw salaries from the funds 'and property of the University of which they 'claim to themselves the exclusive right of 'management and distribution subject to the 'controul of the Visitors, viz. the Rector, the Dean of 'Faculties, and the Minister of Glasgow for the time 'being. They further claim a right with the consent 'of these visitors to distribute any surplus of the 'College funds that may accumlate after payment 'of the ordinary expenses has been provided for. 'Accordingly since the Year 1798, they have 'made three divisios of this surplus among 'themselves, by means of which the Sum of '£150 has been added to the salary of each. Note. Betwixt 1783 and 1798 they had added £70 to each salary, so that the entire addition to each salary amounts to £220, which each Faculty profeſsor draws from the College funds 'In addition to this, each of them enjoys the 'use of a free house within the University. 'The Faculty professors moreover administer 'the whole patronage of the chairs, to the exclusion 'of the Regius Professors." It is proper here to mention that in point of fact each of the Faculty professors draws £220 per ann. of addl. Slary from the College funds, there housing appropriatedto themselves each £70. per ann. from that fund ancedentaly to 1798. After the above statement of the actual privileges [¿] aſsumed by the Faculty Profeſsors, the Commiſsioners proceed" 'There are no traces of such a distinction 'among the professors having existed before the 'beginning of the present century. Previously to 'that period every professor appointed by the 'Crown was admitted to his share of the Revenue 'derived from the University property, as well 'as to the exercise of all the privileges of the 'General body. Towards the close of the 'last century however the property of the 'Colleg having increased so as to yield an 'annual surplus, a desire appears to have 'arisen on the part of the professors who 'had been appointed previously to that date 'to appropriate to themselves not only the 'patronage but the surplus funds, to the 'exclusion of any future professors to be 'appointed by the Crown." Such reference within rights & privileges aſsumed by the Faculty unleſs decidedly advised by their Counsel, [¿] material to the question they propose [¿] under judicial investigation, to a different cause, do not contemplate It may be here explained that the Memorialists have no intention of interfering with the right of of any of the Faculty professors to their existing salaries, or to the poſsession of the houses which any of these individuals at present hold within the University. However doubtful may have been the right of the Faculty to appropriate the increasing funds of the University to the augmentation of the existing salaries of the Faculty professors exclusively the Memorialists do not propose to go back upon the past, or to say that the salaries as augmented ought to be diminished in future. Neither do they contemplate any interference with the right of the existing incumbents to the poſsession of the houses which they hold as attached to their office. The Memorialists feel and admit the justice of the observation of the Commiſsioners, that although "the appropriation to the ex'clusion of the Regius Professorships originated 'in usurpation and derived no Countenance 'from the charters of the College, yet having 'been sanctioned by long usage, any interfer'ence with the existing appropriations, in so 'far as the proper funds of the University 'are concerned, should not be disturbed." And accordingly, the extent to which they carry their claim for admiſsion into the rights and privileges of the other professors is simply this - that in future they shall be "allowed to participate in the adminis'tration and management of the funds 'and property of the University, and in the patronage of its chairs, so far as these belong to the professors of the University: that they shall be allowed to participate along ith the Faculty professors in any future surplus income [¿] from the University property, beyond what is at present appropriated to the existing chairs; and that where Vacancies occur in the poſsession of any of the houses within the University, they shall have an equal right along with the Faculty professors to the occupation of these houses in their turn. In so far as regards the justice or expediency of the separation which is at present made between the Memorialists and the Faculty Professors, they may refer to the Reports of both the Commiſsions of 1830 and 1837 as containing a clear expression of opinion that the distinctions which are alleged to exist between the two claſses of Professors, are highly inexpedient, and ought - if legislative interference were required - to be abolished by [¿]. In the Commiſsion of 1830, the opinion of the Commiſsioners on the point was thus expreſsed: "It appears to be 'eſsential for the well being of the University 'and harmony of the professors, that the dis'tinction at present subsisting between the 'members of the Faculty and the members of 'the University should cease, the Endowments 'already appropriated to the different chairs 'remaining unaltered. The examinations and 'documents before us contain abundant 'evidence of the mischiefs arising from the 'different powers and privileges belonging to 'the two claſses of Professors. The destruction appears 'not to be well founded in principle, as we cannot 'perceive on what gound it can be maintained 'that Professorships instituted by the crown 'the Course of this Century, should not belong 'to the College, and be on the same footing with 'Professorships instituted by the Crown 'so late as the middle of the last 'century." The Commiſsioners of 1837 completely concurred in this opinion, stating that they considered the distinction "as invidious 'and unjust - detrimental to the interests 'of the university - injurious to the Crown's 'prerogative, and deriving no Countenance 'from the rights and charters of the 'university." The Memorialists then may probably take it for granted that the equity and reasonableneſs of their claims, and the inexpediency of keeping up the existing line of separation between the Professors of the University and those of the Faculty - evidenced as these are by the unanimous opinion of two succeſsive Commiſsions of enquiry, do not admit of being seriously or at all events plausibly disputed. And therefore without dwelling farther on this matter they proceed to the question whether there exist any legal grounds on which the distinction between the Faculty and University Professors with regard to their rights and privileges, can in the face of the grant of equal privileges contained in the Commiſsioners from the crown, and of the plain equity and expediency of putting all Profeſsors on an equal footing, be maintained. It will immediately be seen that on the legal merits of the question, both Commiſsions numbering among theirmembers some of the ablest and most learned members of the Bench and the Bar, have expreſsed an opinion scarcely leſs strong than that which has been already quoted in regard to the matter of expedienc. But as it is likely that in the event of any action by the Regius professors for the Vindication of their rights being resorted to, they will be met with the objection that this precise question has already been decided by a Judgement of the Court, pronounced in the case of one of the Regius Professors, Mr Muirhead, in 1809, and that consequently the point is res judicata against the please maintained by the memorialists, it is neceſsary before considering the evidence connected with the Memorialists' claim, to [¿] to this prejudicial plea of res judicia; a plea which they humbly think after an explanation of the circumstances in which the judjment above referred to was pronounced, Cannot be stated so as to exclude the decision of the question upon its merits with the Crown and those professors to whom it has granted or may grant Commiſsions in future. For it will be kept in view that the question is by no means one merely involving the rights or patrimonial interests of the memorialists under their commiſsions. The question said to have been decided in 1809 involves in the most direct manner the privileges of the Crown: since if the please likely to be maintained by the faculty professors in opposition to the memoralists claims are well founded, the crown though entitled to appoint Regius Professors in the University of Glasgow would have no power to confer on thes professors any right to share even in such funds as may prospectively arise; any right of control or administration of these funds; any share in the patronage exercised by the members of the University; nor in short any participation in the benefits or privileges at present monopolized by the Faculty Professors. In other words, the Commiſsions at present granted y the crown, which profess to bestow on the professors the "whole rights and privileges" poſsessed by any other professor in the University, would be entirely ultra vizes of the crown; and its provilegs would be reduced to those of naming and paying new professors, who were to be excluded in the most important particulars from the rights and privilegs poſsessed by all other professors up to the present century, that such a restriction would be very prejudicial to those intersts, of which the crown by the aſsertion of its legitimate privileges is the Guardian, the commiſsioners both of 1830 and 1837, were agreed. Speaking of the limitation which after the decision in the case of Muirhead, about to be noticed, had been introduced by the Crown into the Commiſsions granted by it, and which exist in the Commiſsions of one of the memorialists, they observe: The original commiſsion of the Profeſsor of Midwifery in 1815 contained the restrictive clauses, but that of the present Profeſsor of Mid more of the profe wifery who was appointed this year does not contain those clauses. Thus though there were originally three, there are now only two restricted commiſsions; more of the profeſsors of chemistry & [¿] the latter profeſsors not in parity to this memorial. "In the Commiſsions of all these Regius Pro'fessors, excepting the professor of Botany, certain 'restrictions have been inserted, declaring that 'the Professors were to have no management 'or Participation in the funds of the College 'nor any vote in the election of professors, and 'that they were not to take any part in 'the exmination of Candidates for degrees, 'or recieve any advantage from the fees paid 'by them. It appears strange that such res'trictions should have been inserted. There 'can be no doubt of their being very inglorious 'to the interests of the crown, and we concur 'in thinking that they were calculated to 'promote a very inexpedient and anomalous 'distinction in the University. [¿] the facts [¿] with the plea res judicata, which is likely to arise, the memoralist, The Memorialists cannot hope to add any thing to the very distinct statement of the Commiſsioners In the apendix to the first Report of 1830, the Circumstances Connected with Mr Muirhead's actions are thus explained. "An important question affecting the prero'gative of the Crown, as well as the distinctive 'privilege of Professors of the University and of 'the College of Glasgow, occurred in the year '1807. Mr Lockhart Muirhead having obtained 'from his late Majesty a Royal Mandate insti'tuting a Professorship of natural History in 'the University and presenting him to that 'office, claimed a participation in all the 'rights and privileges of the members of the 'Faculty previously on the Establishment. 'When the presentation was given into 'the Faculty, a majority of the Members 'resolved to investigate the legality of the ap'pointment, and instituted a proceſs of declartor 'against Mr Muirhead and the officers of state, 'calling in question the right of the Crown 'to make additions to the Corporation of the 'College vested with valuable Property and 'important privileges, without their consent, 'whatever might be said of the right to make 'additional appointments in the University 'as separate and distinct from the College, 'and therefore excluding to have the appoint'ment declared null and void. It is stated 'in some of the papers which have been 'transmitted, that a change of Ministry 'occurred soon after the appointment was 'made, and it is alleged that the opposition 'to the reception of Dr Muirhead arose in 'some Measure from political considerations. 'There is reason to believe however that the 'Lord Advocate who came into office, concurred 'with two other Lawyers who were Consulted, in 'thinking that no doubt culd be entertained 'about the right of His majesty to erect new 'Professorships in the University and college, 'and to invest the new professors with all the 'rights and privileges belonging to the other 'members of the Faculty. The opinion of two 'other Lawyers who were afterwards consulted, 'was more favourable to the views of the 'Majority in the College, and is stated in one 'of the papers to have been in direct opposi'tion to that of the three eminent counsel 'first obtained, of whom his Majesty's 'advocate was one. it was on the 20th of 'October 1807, that the Faculty gave in'structions to their agent to raise an action 'of declarator against the officers of state 'and Mr Muirhead; and within a onth 'afterwards the then Lord Advocate became 'Rector of the University, and from that moment 'was in the anomalous Predicament of appearing 'as one of the members of the College & University 'who carried on the action against the officers 'of State as well as against Mr Muirhead, who 'in maintaining his own claim was called 'upon to aſsert the validity of the presentation 'granted by the Crown. It is said in the 'Information for the Lord Rector and majority 'of the Faculty," (stated May 12. 1808, p.37) 'that "no appearance was made for the Officers 'of State, but the other parties were fully heard." 'The Court of Seſsion on the 16th of May 1809, 'pronounced the following judgment:- "The Lords 'having resumed Consideration of the [¿] 'informations for the parties and advised the 'same with the additional information and 'torts produced, Find that Mr Lockhart Muir'head as a Professor in the University of 'Glasgo is entitled to sit and vote in the 'Comitia and Senatus thereof, he previously 'taking and subscribing the oaths in such 'cases required; but find that his appoint'ment as a professor of said University does 'not entitle him to infringe upon or participate 'in the patronage and patrimonial and other 'rights of the present Professors of the College 'of Glasgow or their succeſsors in office, and 'particularly does not entitle him to claim 'any of the houses allotted for the present 'professors and their succeſsors in office, 'or to sit and vote in any meetings of the 'Faculty or of the principal and masters of 'the said College held for the purpose of 'administering their said rights: Find that 'the said Mr Lockhart Muirhead is not debarred 'from bringing forward in competent form, when'ever he may think fit, a claim upon the 'surplus or excrescent funds of the University 'arising from the tack of the archbishoprick 'of Glasgow or otherwise, and unappropriated; 'which claim to be determined in the first 'instance by the Trustees appointed by the 'said tack, or other administrators of such 'funds, with all answers and objections 'against the same, are reserved entire: Find 'it unneceſsary to determine in regard to 'the custody of the Museum or Repository of 'natural Curiosities referred to, in respect 'all claim to that effect has been abandoned 'by Mr Muirhead: Farther find that 'the expenses incurred in this litigation by 'the said Henry Glasford (Lord Rector) and the 'parties concurring with him; must be de'frayed out of the common funds of the 'College; and recommend to the administra'tors of said funds, with the consent of the 'Visitors of the College, to defray also out of 'the said funds, the expenses incurred by 'the said Mr Lockhart Muirhead; and decern "and declare accordingly." Had the rights of the Crown been 'duly vindicated, we are confident that this 'judgment could not have been pronounced. 'The judgement does not find that the only 'proper numbers of the College are the 'Principal and the Professors whose 'claſses were instituted by the original 'Charter. On the contrary the Professor of 'Astronomy is included as a proper member 'of the Faculty or College, although his claſs 'was instituted by the Crown in 1760, and yet 'a claſs instituted by the Crown in 1806 is put 'on a different footing. Other professorships are 'also included, instituted long after the date 'of the original foundation. Participation in 'funds previously appropriated to particular 'chairs was a different question. But how 'in any other respect a professorship instituted 'by the Crown in this century, should not 'be on a footing with a professorship insti'tuted after the middle of the last century, 'we have not seen any explanation. The 'former point was the one the individual 'was chiefly interested in, and the other 'more general points may have been 'in past taken for granted or conceded. 'In the circumstances however, it is plain 'that the decision can be no precedent against 'the Crown, or control the Royal right of 'Visitation, or any other prerogative of the 'Crown." In the Report of the Commiſsion of 1837, the Commiſsioners observe:- "We desire to 'speak with due respect of any decision of the 'Court of Seſsion; but in common with our 'predeceſsors, we acknowledge that we have 'not been able to discoveer any good grounds 'either in the terms of the Foundation 'charters, or in the History of the University, 'for the judgment thus pronounced. It 'seems highly probable that the circum'stances adveted to by our predeceſsors 'had prevented the merits of the case 'from being fully and fairly brought under 'the notice of the Court; and we feel strength'ened in this inference by observing that in 'the very analagous case of Burnet & Simpson '24 Jany 1811, a directly opposite judgment 'had been pronounced. It would be out of 'place for us to enlarge upon the merits of a 'judgment on which so dcided an opinion has 'been pronounced by our predeceſsors, who 'numbered amont them several of the most 'distinguished lawyers in Scotland, including, 'among other judges of great eminence, the 'present heads of both divisions of the 'Court.' It is true that while the Commiſsioners in both Reports thus expreſs a strong opinion against the judgment on its merits, and their conviction that if the rights of the Crown had been duly vindicated, it never would have been pronounced, they give no direct opinion how far it may now be regarded as res judicata. "Doubts 'have been suggested as to whether in the 'circumstances in which it was pronounced 'the judgment in Muirhead's case can be 'held to constitute res judicata against the 'Crown. before this we shall not presume 'to offer an opinion; but we think the 'removal of the distinction a matter of 'such importance to the interests of the 'Uniersity, that we take the liberty of 'humbly suggesting to your majesty the 'propriety of consulting the law officers of 'the Crown, as to whether that object can 'be effected under your Majesty's visitorial 'powers, or whether it may require an 'act of the Legislature." With great deference it appears to the Memrts that any interference of [¿] in this matter, is quite out of the question. The Faculty Professors either have or have not [¿] themselves, and their ſucceſsors in their several Professorships, a vested interest in the property and [¿] belonging to the university & College, to the exclusion of all new opportunities which vested interest is fulfilled by a [¿] of [¿] of the [¿] of Seſsion, if it exist. With ſuch vested interest it seems impoſsible that [¿] can interfere. If on the other hand, there be no ſuch vested interest - if the Decree of Declaration have no binding force or effect beyond the [¿] against when it was presumed, then, it is ſubmitted, the prerogative of the Crown remain in full force, to deal with the Univeersity and its funds according to the legal rights univerrsally acknowledged to arise out of the Royal prerogative, to direct the administration of such funds where they have not been specially appropriated by the donors. The memorialists are inclined to think that looking to the circumstances detailed in the Reports it cannot be held that the [¿] in the case of Muirhead forms any res judicata against the Crown or those Regius Professors who have since received unqualified commiſsions, and who stand in this matter upon the right of the Crown. For now appearance was made for the officers of state, and for this reason that the Lord Advocate by whom that appearance naturally would have been entered, became himself, in about a month after the Declarator was raised, Rector of the university, and Consequently one of the pursuers of the Declarator, and could not have appeared in the contradictory character of Pursuer and Defender. The judgment then [¿] the Crown is a mere decree in absence, the officers of State not having appeared or been represented in the action. Now it is a judgment on the merits after [¿] contestatio, which alone founds res judicata; and on the part of the Crown the Contract of [¿] contestation was never entered into, and no judgment of course on the merits could pronounced against them. If the former judgment then does not form any res judicata against the Crown, it seems plainly to follow that it cannot affect such of the Memorialists at least as hold unlimited Commiſsions from the Crown. They stand in the Crown's [¿] & consequent rights, tried as if the judgment in the case of Muirhead, which bound only the individual parties litigating, had never been pronounced. It is true that in any view the effect of the former judgment as a precedent may remain; but if the question is still open, the Memorialists think there are good grounds for now anticipating that a differet judgment would be pronounced. With regard to the merits of the question, the Memorialists do not propose in this memorial to go minutely through the evidence but rather to State its general results, as these will be sufficient to enable Counsel to form an opinion as to the probability of succeſs or failure in any action of Declarator which the Memsts. may raise. The case of the Faculty professors (if the memorialists may aſsume that it is now [¿] the same grounds as in the Case with Mr Muirhead) rests entirely on this, that the College and the University are different bodies or incorporations; that the former has certain funds and certain privileges attached to it, and specially limited to the members composing the college; that the professors in the university, as such, have no right to any participation in these: that consequently though the crown may appoint a professor in the University, it cannot make him a professor in the College, or Communicate to him any share of the funds, patronages or other privileges which they hold to be unalterably destined to a fixed number of individuals to whom no addition can be made except with their own consent. The Memorialists concieve that this supposed distinction between the College and the University - as if the College was a separate incorporation within the University, having funds and goverened by laws of its own, is altogether without fundation. the University in its original condition appears to have existed without endowment. It consisted of four separate faculties, composed of doctors or masters in theology, canon law, civil law, and the arts, each faculty having had its own statutes and rules, and all forming integral parts of the university. In the outset undeniably they were not separate Corporations. The house provided for the accomodation of the stuents in the arts appears to have been known by the name of Pædagogium, or Collegium [¿]. It was originally lent as appears by the Bishop, just as the Chapter house of the Dominicans was given for the lectures in theology and canon law, but in the year 1459 James Lord Hamilton bequeathed for this purpose a tenement of houses and four acres of land, not to any near or future establishment or college of his own founding, but in expreſs terms to the existing principal regent in the pædagogium or college of arts in the University of Glasgow, and the other regents and their succeſsors therein for the use of the said seminary. He founded no new College therefore, but simply gave the accommodation of a house to one of the Faculties in an existing seminary. At the reformation the Uniersity was in a manner extinguished; almost all its members being clergymen of the Catholic persuasion were dispersed and deprived of their honours and enmoluments. The three higher faculties which had no peculiar funds, and were composed entirely of Churchmen, disappeared altogether, and the University was in fact reduced to its remaining faculty of arts, which retained poſsession of the house and ground bestowed by Lord Hamilton. Considerable additions to the funds of the University, and alterations in its constitution, were subsequently made The first which is of material importance is a charter by the city of Glasgow, conveying for University purposes various parts dues [¿], and stated in 1572l But it is plain that by that charter no new college or any incorporation separate from the University was erected or proposed to be erected. This charter proceeds on the narrative that the schools and gymnasia of the place had fallen into lamentable decay, and that the provosta and magistrates had resolved, "Pædagogium nostrum 'Glasguense, quod pro sumptuum [¿] pene 'Corruciat, et in quo disciplinarium Media, pro 'nimia Pauperate, extincta [¿], renovare 'restaurare, &c, ut in hac [¿] 'bonarum artium studia reviviscerent, pristinumque decus et gloriam tuerentur. They therefore taking the advice of Mr Andrew Hay, "Rectoris pro tempore universitatus nostre Glasguensis," and other persons, did give to the said College or Pædagogium, various rents, dues [¿] &c which had been bestowed on them by Queen Mary, "una cum practibus, proventitius 'reditcibus, et [¿] emolumentis [¿], dicto 'nostro Collegio ac pædagogio prius solvi solitis et 'Consuetis" &c The charter of King James in 1577, generally called the nova erectio, which contains the extreme poverty of this seminary, and endows and enriches it, as a subsisting establishment, with a variety of funds; limiting at the same time the number and appointing the duties of his several members. It begins, "Sciatis &c quod [¿] intelligentes quod 'annua proficua et [¿] collegii [¿] pædagogii 'Glasguensis [¿] exigua [¿], ut ac nostra [¿] 'minime sufficientia sing ad [¿] 'principalem magistriuos, bursaries, et officiarios 'neceſsarios," &c, therefore "[¿], disponimus, 'et pro peripetuo Conforinamus dicto Collegia '[¿] pædagogio Glasguensi," the rectory and vicarage of Goven and other subjects, "[¿] non 'omnes alios rectitus, fructus et emolumenta, 'prædicto collegio antea, per [¿] ordinem 'sen quovis modo, donata et conceſsa". It seems plain therefore that there was here no new College incorporated or founded within the university, though a new constitutoion was given to the whole seminary, accommodated to the charge of religion and the progreſs of learning. The existence of the College of Arts, and its subsistence as a known establishment, is taken for granted on the one hand, and that of the University, of which it then constituted almost the only remains, on the other; and the grants are made to that faculty, which from the decay of the othershad come to aſsume the principal importance and discharge the chief dueties of a University. In the subsequent charters, Commiſsions of visitation, and other public acts, the college and University are invariably spoken of as one and the same body. But their real identity will appear still more distinctly when the usage with regard to the appointment of professors is kept in view. The Memorialists request the attention of Counsel to the following important facts in the case, which, after examining the evidence as to the practice, they think is its fair result. Paper apart 1. That every professor in the University of Glasgow, including every existing faculty professor, and his predeceſsors, hold their commiſsions not as professors in the College, but as profesors in the University. This is not the leſs true tho' of the 14 Faculty Professors, six only are appointed by Commiſsions from the Crown, the other eight being appointed by the Faculty, without any Commiſsions at all, but de plano inducted in the Faculty, and taking their places in the Senate, without any other formality, or authority, except their previous induction in the Faculty; - whereas the Regius Professors are formally inducted, on Presentation of the Crown Commiſsions, in the Senate. Of the 8 Chairs to which the FAculty appoint, four at least were originally instituted by the Crown; The power of supplying vacancies however appears to have been either accorded to, or usurped by, the Faculty, until usage estalished to them a right of nomination. The Nominees of the Faculty, as well as the Professors obtaining Commiſsions from the Crown, became Professors in the University, and it is as ſuch that those who style themselves Faculty Professors enjoy the existing rights and privi¬ leges to which they lay claim. are appointed by the Faculty and hold no commiſsions at all - they are inducted in the Faculty & take their places in the Senate without any [¿] or authority whatever, which the Regius profeſsors are for¬ mally inducted in the Senate. Of the 8 claims fitted upon The Faculty [¿] at least were instituted by the Crown. The power of appointing to more chairs was pro¬ bably usurped by the Faculty, the practice being overlooked by the Crown, till it became usage. 2. That although the Faculty consisted originally only of 4 members and now consists of 14, of whom ten were added by the Crown after the first consti¬ tution of the University, no attempt was made up to 1807, to dispute the right of the Crown in point of law to make such appointments, Carrying with them the right to participate in the funds belong¬ ing to the College. 3. That in point of fact in every one of the ten instances in which the Crown founded new professorships in the College, the persons appointed to the professorships entered into poſsesion of their rights and privileges and were received without objection as members of the Faculty by virtue of their commiſsions as professors in the University merely. 4. That o late as 1760, in the case of the Professorship of Astronomy, the professor appointed by the Crown under a Commiſsion similar to the unqualified Commiſsions of the memorialists, was received as a faculty professor, and his succeſsors ever since have enjoyed the same privileges with the other Faculty professors. The fact that 10 out of 14 of the Faculty Professors posseſs their right to their alleged privileges solely in virtue of appointments by the Crown as professors in the University, appears to be decisive of the identity of the College with the University; and the fact that in every instance up to the present century where the Crown appointed a professor, that professor as a matter of course was received as a Faculty professor, seems to be equally Conclusive as to the power of the Crown to conver on its Regius professors a participation in the college Funds, on whatever footing those funds might originaly have stood. The only answer made to these indispu¬ table facts by the FAculty professors in the former action, was, that in all these instances they Consented to the admiſsion of the professor named by the Crown, sometimes because they had actually applied for the foundation of the new professorship; sometimes because they approved of it as useful or neceſsary: and that the consequent admiſsion of these Professors into the privileges of the Faculty being matter of voluntary consent on their part, cannot be founded on as implying an admiſsion of the Crown's right to Confer the privilege. But it seems impoſsible to explain away this uniform usage on the ground of voluntary content. 1do The argument of the Faculty Professors must be, that though the College be a species of incor¬ poration poſsessing funds of its own belonging to a limited number of professors (originally four) the Crown could add to the number of these Professors if the existing members of the College Consented. But if the Crown could not add to their number by its own inherent authority, it surely could not do so merely by the Consent of the Consented. But if the Crown could not add to their number by its non-inherent authority, it surely could not do so merely by the Consent of the existing members. These at any one time were trustees merely for their succeſsors in office - liferenters and administrators of rights which they Could not unpair and were bound to transmit a they received them, entire and undiminished to those who Came after them in the same character. They might dispose of them in so far and for so long as they were vested in their own persons; but all their acts and deeds with regard to them must be null and void as soon as they came to affect any one having a right arising in future under the original foundation. They coudl not therefore permanently increase their own numbers, and thus sink the value of that share of power or emolument which was originaly vested in a limited number. And if the professors themselves could not add one to their number, it neceſsarily follows that they could communicate no power to any other person to do this by giving their consent to it. If there be any power therefore to diminish the value of professorships by adding permanently to their number, it must evidently be a power altogether independent of the Consent of those in poſsession of the offices for the time: and the admiſsion that the Crown has such a power provided the existing professors consent to its exercise, is working leſs than an admiſsion that it has such a power whether they consent or not. And in both the sort of consent given by the College, is past the consent of parties who knew that no objection could be stated with effect. The Memorialists may refer to the following paſsage in the Information for Mr Muirhead, which appears to them correctly to state the footing on which their appointments took place; and the kind of consent which the College now Represent as a voluntary departure from their legal right of objection. It is a consent never once applied for or Required by the Sovereign, but manifested 'sometimes by thanking the King for his good¬ 'neſs in indowing a chair so much wanted, - 'sometimes by representing that such and such 'an additional professorship would greatly 'increase the utility of the seminary, - and 'sometimes merely by receiving and admitting 'with alacrity and proper respect the new 'professor presented to them by the Sovereign. 'Your Lordships will see the detail of these 'new nominations at sufficient length in the 'sequel; but the Informant must inform you 'in general at present, that there is no one 'instance in which there is anything like 'a consent preferable to the Pecuniary or 'personal interest of the individual pro¬ 'fessors or their succeſsors, - no waiving of 'their own claims to individual dignity or 'emolument, - no hint of intimation that 'they ever could have aſserted such claims, or 'that it was neceſsary to renounce them, to 'make way for the Royal Prerogative. The only 'Consent in short which appears on the face 'of the Record in these instances, as a public 'official consent on the part of the College, 'as the guardians of learning and education;- 'a testimony more or leſs direct, that the 'new chair was requisite or beneficial, and 'that they had no objection to state against 'its erection, on the grounds of public utility 'or the general interests of literature.' First, it is plain from the terms of the different Royal visitations, that the power of the Crown to add professors to the differ¬ ent faculties in the University at pleasure, if that power were disputed, is plainly aſsumed and taken for granted. In that of 1664 - which resulted in several important additions to the Establishment, the following clause from the instructions to the Commiſsioners shews in what light the powers and authority of the Sovereign were considered by all parties at that period - "And the said 'Commiſsions are then and there to [¿] 'and by the present state of the University, 'and to call and cite before them all the 'masters professors &c, and to take order for 'changing, annulling or removing professions 'which are found to be useleſs, and for erecting 'and establishing other and more professions 'as shall be found to be convenient for the 'University and fo the good of the Church and 'Kingdom." The instructions thus given are also quoted as a rule for the subsequent Commiſsions in 1690 and 1717, and were indeed the basis of all the great improvements which have since been made in this seminary. These visitors did not find it neceſsary to suppreſs or annul any of the existing profes¬ sorships, but they reported, "that it will be 'neceſsary to have more professors of several 'faculties, Viz. at least one other professor of 'theology, one professor of humanity, one 'professor of civil and canon law, and one 'professor of mathematics; all which the 'University formerly had, but cannot for the 'present poſsibly have through want of 'revenue." This report was approved of by the Sovereign, and point of fact all these professorships were afterwards erected and endowed on the strength of this recom¬ mendation. The Visitations in 1717 & 1718 were and productive of such important consequences. They were intended chiefly to settle & determine the powers of the particular Courts & offices in the University. However the preamble contains these very remarkable words: - "And after the 'Reformation the said University was in a very low 'and sinking State, until by the munificence 'of us and our Royal predeceſsors &c, the Same 'hath not only recovered its former state, but 'has likewise been enlarged by the addition 'of several new professions; while at the 'sometime several disorders and irregularities 'have of late' &c. The Commiſsioners are also distinctly empowered to Regulate and establish every thing with regard to the Govern¬ ment and policy of the University and management of the [¿], and "to suspend 'or deprive any of the members thereof in 'virtue of this authority, notwithstanding of 'any rules, laws, foundation charters, or practice 'to the Contrary, and to do all things sichlike 'and as freely in all respects, as we ourselves, 'or any of our Royal ancestors might have done." They are likewise referred to the proceedings of the former Commiſsion in 1664 as a precedent to be followed by them. The terms of these acts of visitation, which were not only Submitted to without murmur at the time, but have never been maintained to be other than legal exertions of prerogative, prove the extent to which the Crown has al along aſserted its powers, and the members of the Univesity have submitted to their aſsertion. The Memorialists do not intend to go through the circumstances attending the Creation of all the ten new professorships which have been established since the date of the Nove Erectio in 1577, and the holders of which are all now admitted to be integral members of the College and to participate in its supposed privileges. Prior to the Com¬ miſsion of visitation in 1664 indeed it is difficult to trace under what circumstances the appointments took plce; though as the college does not aſsert for itself a right of creating professors at its own hand, it is plain the appointments must have proceeded from the Royal authority alone. That Commiſsion it will be observed suggested to the Sovereign as the only person entitled to remedy the deficiency, that there would be wanting for the use of the Univer¬ sity at least one other professor of theology, one of humanity, one of medicine, one of law, and one of mathematics, and this report being approved of by the King, because a warrant and authority of course from that quarter to erect such professorships as soon as funds could be provided for their endow¬ ment. No step however appears to have been taken to supply these deficiencies for several years; and the first attempt that was made, though it did not terminate in a permanent estab¬ lishment, is yet important in reference to the right of the Cornw. It is thus entered in the minutes for the year 1686: "Mr 'Thomas Gordon one of the Regents, going 'up to London this Summer, obtained in his 'own favour, without acquainting either prin¬ 'cipal or Masters, a presentation from the 'King to be professor of the oriental languages 'in this college, with the salary of 600 merks 'yearly as the interest of 10,000 merks entered 'by the said presentation to be raised out of 'the vacant stipends their belonging to the 'College of Glasgow by act of Parliament, and 'laid aside as a fund for the foresaid salary." The College it appears objected to this appoint¬ ment; but not in any degree on the ground that the King had no power to make a new professor in the College without their consent. The sole ground of their opposition was, that the funds on which his salary was allocated were all exhausted by previous appointments; and they accordingly declined to receive him. The sequel is thus stated in the College Record: - "Wherefore being cited at 'Mr Thomas his instance to compear before 'his Majesty's secret counsel to see his gift made 'effectual, the Lords appointed a Committee 'of their number to examine the whole matter, 'and particularly the ccounts of the College's '[¿] with the vacant stpidends; and 'after diligent trial made, found there could 'be no such salary established upon him out 'of the vacant stipends for that time, but 'remitted the affair to a general visitation 'of the College; and in the interim, ordain the 'Masters to admit him by virtue of his 'Majesty's presentation; which was accordingly 'done in January thereafter 1687." Nothing seems to have been done for some time after this, till 1691, when one of the regents agreed to teach Mathematics, and entered upon that office accordingly. In the same year the principal goes to London to solicit the Restoration of the professorships pointed out in the visitation 1664, and is directed to carry along with him the original of that visi¬ tation as the most authentic document of their neceſsities. In 1693 King William gave £300 per annum to the University; and in 1705, the College, which appears at that time to have been as anxious to multiply its professors as it now is to prevent their multiplication, again directed the principal to make application to his majesty that the professorships mentioned in the visitation 1664 shoudl be erected; and he reports that "he had waited upon the Secretaries of State 'for that purpose, who had been pleased to 'promise to procure from his Majesty the 'gift desired." All this shews sufficiently in what hands the erection of these professorships was understood to be vested; and on the faith of this promise, the College accordingly resolves that humanity shall be taught against October 1706. Paſsing to the ear 1708, it appears that Queen Anne granted £210 per annum to the College, one part for the salary of a professor of oriental languages, and another for that of professor of anatom and botany; in consequence of which these two professorships were accordingly erected. In 1713 a gift was obtained from the same sovereign, appropriating £90 of King William's gift of £300, as an annual salary for a professor of civil law, and £40 for a salary to a professor of medicine; and it is stated in the College minutes, that the principal when he produced this deed, "also reported that by my Lord High Treasurer's favour, the nomination of the Professors 'was left to the University, as appears by the 'gift itself which was produced and read." These new professors are accordingly nominated on this occasion by the College; but it is very re¬ markable, and shews in a very striking manner the extent of the Sovereign's admitted prerogative in such matters, that notwithstand¬ ing the permiſsion thus given to the University to nominate to these chairs in the first instance, the original incumbents were no sooner dead than the Crown aſsumed to itself the right of appointing these professors of its own cre¬ ation, and has never since exercised that right without challenge or remonstrance on the part of the University. The next new professorship is that of Church history in 1716; which was most manifestly and indisputably founded and erected by the Sovereign; without the least inter¬ ference or cooperation on the part of the College. An application had been made for a renewal of their tack of the Archbishoprick; and the principal in reporting the succeſs of that appli¬ cation, states to the College, "That besides Con¬ 'firming King William's grant, his majesty had 'been most graciously pleased out of his royal 'bounty to grant a new gift of £170 for the uses 'specified in the said gift, viz £100 for the 'yearly salary of a professor of Ecclesiastical 'history, and £70 for augmenting the smaller 'salaries" &c. This is the whole that appears as to this nomination on the part of the College; and without any sort of Communi¬ cation with them, the King in 1720 iſsued his royal presentation to Mr Dick to be pro¬ fessor in that department, and has continued ever since to nominate to that chair without opposition. The appointment of Dr Brisbane as first Professor of Anatomy and Botany, is equally the work of the Crown alone. Queen Anne had granted £30 in 1708 as a salary for such a professor, but no professor appears to have been nominated till 1719, when a royal pre¬ sentation was iſsued in favor of the gentleman now mentioned, without any sort of inter¬ ference on the part of the College. The last nomination previous to Mr Muirhead's, was that of Dr Alexander Wilson to be professor of astronomy in 1760; an appointment also made by the Crown without the least objection from the College. Now if in every instance where the crown has added a new professorship it is found that the person so appointed steps into the poſsesion of all the privileges of the Faculty Professors in the College, and that by virtue of a Commiſsion in his favour as professor in the University, what conclusion can be formed as to the alleged consent on the part of the College, except that it was a consent decently given, because it could not in point of law have been refused; and that whither objected to or not, the Royal Commiſsion conferred on the new professor all the privileges posseſsed by his brethren. It surely is out of the question to say that if the professors who were in poſsesion of the existing income of the University or College, which up to a recent period was scanty enough, never once for a period of new members who made that slender provision still leſs; this acquiescence on their part can can be explained on any other principle except a convention that the sovereign had full power to create new professorships in the University; and that in so doing he made the new professors members also of the College, which in truth posseſsed no separate existence from the University. And that such must be the nature of the power residing in the Crown; and such the true explanation of the conduct of the college, will be the more apparent when it is kept in view from what source those very funds have been derived out of which alone surplus revenue can arise in which the Regius professors can hope to participate. If all the funds said to belong to the College and of which the Faculty professors claim the monopoly, had been derived from the bounty of individuals, and no part of them from the liberality of the Crown; the plea that the Crown could not introduce a new member to participate in such funds, would at least be more plausible; though even then the Memorialists apprehend it would be unfounded. But the incquitable and startling nature of the plea of the Professors appears Conspicuous when it is kept in view that in truth the only funds from which any substantial additions in future can be looked for, are funds which have mainly flowed from the donations of succeſsive sovereigns to the University of Glasgow; while even in the case of funds derived from other sources, there appears to have been no intention of giving a monopoly of the funds to the members existing at the time to the exclusion of future members added by the Royal authority. It is requisite to attend to the terms of the original charter from the Town of Glasgow, which plainly contemplates no limi¬ tation of the funds bestowed by it upon the existing limited number of members, but on the contrary expreſsly destines the Surplus funds for the foundation of additional professorships. By this charter of 1572, it will be observed the funds and subjects are not given in property to the professors and their succeſsors in office, but to the College in general and to the Principal and professors merely as Trustees for the purposes therein expreſsed. The expense of a public Table is first to be defrayed; a salary of 60 merks to then to be paid to the principal, twenty merks to the Agents, and other salaries to the other founded persions: "et si subducto calculo," it is added, "quid fuerit residui ex gymnasii 'reditibus, id omne in maninus neceſsarios 'gymnasii usus, collegii separationem &c 'visitatorum arbitrio impentatur." Then follow these important word: " Et quia 'speramus fructus et emolumenta collegii accus¬ 'cent et [¿], volumus quod quindecim 'personis superdictus (that is, the whole founded 'persons) sufficienter sustentatis, si quid virtute 'donationis nostræ collegii reditibus neceſserit, 'id studentibus et scholaribus pauperibus [¿] 'aut pluribus regentibus et præceptoribus [¿] ', si ita res collegii postulaverit, rectorque 'academic, decalus facultatis &c neceſsarium aſse 'provideant." These persons last mentioned are the visitors appointed to represent the founder in the subsequent charter of King James. Here then it will be observed the surplus funds are expreſsly appropriated to the appointment of new Regents (or professors) of the interests of learning should require it; so that the only question, it would seem, which could remain would be who was to have the power of nominating these new professor¬ ships. But as the College have never claimed for themselves the right of instituting profeſsorships though they may have instituted lectureships on certain branches, and as the power of the Crown to institute professorships in the Univeerity is not disputed, it would seem to follow even according to the terms of the Charter from the City, that such professors were to participate in the funds conveyed by it for the purposes of the College. The terms in which the Royal Charter of 1577 is conceived, are not materially differ¬ ent. The whole of the funds aſsigned are given to the College in general; specific salaries are appointed for the principal and other founded persons; and it is added, "Si quod [¿] 'in pios usus Collegii impendatur, corum 'arbitrati quo postea in hac fundatione collegio '[¿]." These visitors are the Rector and the dean of faculties, and the min¬ ister of the High Church of Glasgow. "Corumque 'consilio, quicquid fuerit residui, sen ex [¿] [¿], sive ex hac nostra fundatione, id 'omne in neceſsarieos collegii usus, aliosque 'uses gymnasii [¿] praeterimittendos, distibu¬ 'atur." Under these Charters it certainly appears that the principal and professors were not to have the disposal, and for leſs the poewr of appropriately to themselves any part of the funds provided to this University, beyond the particular salaries and appointments with which they are there provided; and that all the surplus which they now allege to be patrimonially vested in them, is to be disposed of according to the judgment and discretion of the visitors appointed by the founder. It will of course be recollected that all visitors represent the Sovereign, and are liable to be superseded by the direct act or interference of the King, who is by vitue of his prerogative, the supreme visitor of all universities and seminaries of learning. In this case therefore, the surplus in question was doubly at the disposal of his majesty, first, through the mediation of his ordinary visitors representing his person; and secondly, by his more direct inteference either by deed of gift, or by an extraordinary commiſsion of visitation. So far with regard to the funds derived from the original charters. The remainder consists in sums gifted by the Crown at different times out of the bishop's rents. The most considerable of these is £300 per annum granted to the Uni¬ versity by King William in 1693. £70 of this is given to Bursars, and the Remainder originally directed to be applied for extinguishing the College debt, and when that should be discharged, "for 'such pious uses within the University (not the 'College merely) as should seem good to his 'majesty and his royal succeſsors." Accordingly in the reign of Queen Anne, a great part of the debt being discharged, £100 of this money is granted by her Majesty to supply the deficiency of the ordinary revenue; and the remainder of it appropriated as salaries for two new profes¬ sors of Civil law and medicine, then first established and endowed by the Sovereign. The deficiencies in the ordinary revenue having been soon after sup¬ plied, the £100 per annum appropriated to this purpose has since been employed, by the cnsent of the succeſsive sovereigns, to augment from time to time the salaries of the professors, and forms a principal part of that fund from any eventual participation in which the Faculty professors are anious to exclude those professors whom the sovereign has appointed or may appoint in time to come. The other donations are all conceived in the same style. In 1708 Queen Anne was pleased to grant £210 annually to the University; a part of it to be applied or salaries to a new professor of anatomy and botany, and to another new professor of oriental languages, then first founded and endowed by her bounty; and the remainder to augment the salaries of certain of the professors, according to a scheme contained in the deed. This gift has been re¬ newed by all the subsequent sovereigns, each for his own life only. In 1715 King George the I endowed a new professor of Church history and granted a salary of £100 out of the Archbishop's visits. He gave at the same time £70 per annum out of the same fund," for "augmenting the onetime salaries of the professors "of the said University"; and in 1760 George III erected a Professorship of astronomy with a salary of £50. Such is the state and application of the funds belonging to this University. All the later donations being charged upon the bishop's rents it was thought proper, more than a century ago, to grant them a lack of the archbishopric of Glasgow on very favourable terms; and this tack has ever since been renewed from one 19 years to another by the Barons of Exchequer. The rents of the archbishopric being mostly payable in Grain, the revenue of the College has of couse been increased by the rises in the price of that commodity, and a part of this incrse has at different times been applied by the authority and direction of the Visitors, to enlarge the salaries of the professors. Another part of it has been employed by the same authority, in building the dwelling houses with which all these professors are now accomodated, and of which they have their choice ſelection in the rotation of their seniority. Any future increase of the funds of the college must arise from the improvement of the teinds paid in grain from the parish of Govan, or from the accumulation of the £100 per annum of King William ad Queen Anne's bounty, - all of which are expreſsly declared to be at the disposal of the Visitors, and constitute the whole funds from which any future augmen¬ tation of salary can poſsibly be derived. It is conceived tht the above details make it clear that the Faculty professors canot maintain that the funds granted to the College either by the City of Glasgow or by the Crown, are vested irrevocably & atrimonially in them in such a manner as to entitle them to resist the King's presentation upon the ground that his Majesty would thus be giving away a property over which he had no Control, and that on the contrary, the whole of the surplus fund above the settled salaries of the professors, is entirely and exclusively at the disposal of the King and his visitors. Accordingly one of the first ads of the last commiſsions of Royal Visitation in 1722, was "to prohibit the principal 'and masters from applying any unappropriated 'funds for augmentation of salaries without their consent and approbation": And the Court of Seſsion by decreet of Declarator pronounced in November 1770, expressly found, "that the rector, dean of faculty, & minister of 'the High church were visitors of the said college; 'by whose advice and consent only all the sur¬ 'pluses of the College revenue, after paying the 'Masters' salaries and other standing burdens 'are to be disposed of, and applied to pious and 'neceſsary uses of the College." It appears then to the Memorialists looking to the terms of the Charters to the College in combination with the reserved rights of the Crown; - to the uninterrupted usage which has followed down to 1760; - and to the nature and source of the revenues in which the Regius professors claim participation; that these points are clear. 1 That there is in truth no distinction between the College & University as separate incorporations; and that the admiſsion that the Crown can make a pro¬ fessor in the University is really equivalent to a conceſsion that it can make a professor in the College: 2nd That even if the identity of the two were held to be doubtful, the inherent power of the Crown with regard to Universities as interpreted by the usage of two Centuries, proves that under the Commiſsion to a pro¬ fessor in the University the Crown has the right of conferring a participation in all the privileges of the College: And 3rd That as the greater part of the revenue in which the Memorialists claim a prospective right to par¬ ticipate, have flowed from the royal bounty, the please of the Faculty professors which would exclude the Crown from any Controul over its own donation, is manifestly inequitable and entitled to no favour. The Memorialists were curiou to know on what ground the Faculty professors in their observations on the Report of the last Commiſsion would place this claim of exclusive privilege, and whether they meant to impugn the Conclu¬ sions of the Commiſsioners on any new grounds which had not been agreed in the case of Muirhead. On looking at their obser¬ vations however, they can perceive nothing new except a reference to a charter of Charles the First, which will be immediately adverted to. The paſsage is as follows. "A radical error in the Report seems to be a 'mistaken view of the origin and character of 'the University. It appears to have been 'aſsumed that the University is entirely a 'royal foundation, that its endowments are 'principally the gift of the Crown, and that 'therefore the King is entitled, in virte of his 'prerogative, not only to visit the University from 'time to time, and to see that the statutes are 'observed, but also directly, or through the instru¬ 'mentality of visitors, to new model the Insti¬ 'tution, to alter the appropriation of the College 'funds, to divert them to purposes different from 'those for which they were bestowed, and to 'multiply indefinitely the number of founded 'persons without making any provision for 'their support or endowment. In opposition to 'this view it is contended that neither with 'reference to its property, nor its constitution 'and mode of government, can either the 'University or the College of Glasgow be con¬ 'sidered as exclusively a Royal foundation.' 'The additions to their property made by 'the Crown have no doubt been considerable 'but on the other hand it is allowed, even in the 'Report of the Commiſsioners that this University 'has been more indebted to "Private bounty than 'to the fostering Care of the higher powers, either 'ecclesiastical or civil." The bulk of the College 'property was derived from Lord Hamilton 'in 1459, Archbishop Beatoun in 1557, the town 'of Glasgow in 1572, Archbishop Boyd in 1581; 'and liberal donations at different periods for 'special Purposes, proceeding both from private 'individuals and from Corporate bodies," But 'above all the College owes the prosperous con¬ 'dition of its estates and revenues to its own 'prudent and economical administration; to the 'upright and independent spirit in which the 'funds under its control have been uniformly 'managed, which has been admitted & applauded 'by all who have examined the subject with 'candour and attention, and of which the main 'principles have ever been self denial, as far as the 'emoluments of the professors were concernd, with 'liberality in all matters of public interst. As 'the College is more indebted to private benefactions 'and her own good and economical administration 'than to the royal bounty for her property, she 'appear to have been no leſs independent in the 'principles of her constitution and the structure 'and application of her laws. All the ancient 'statutes are ordained by the authority of the 'University. Subsequently to the nova Erectio 'and independently of any provisions made in 'that charter, the College has exercised rights of 'the most important nature and of the highest 'authority. The creation of several professorships 'within the faculty, may be referred to as a 'Conspicuous evidence of the truth of this aſser¬ 'tion. The testimony of these facts is not invali¬ 'dated by the instances which new professor¬ 'ships have been founded by the crown. Down 'to a veery late period, these have not only been 'invariably accompanied by a new endowment, 'but instituted either at the direct request or ''with the explicit aſsent of the College. 'It is indeed said that the Commiſsioners 'have seen no explanation why the subsequent 'professors instituted by the Crown in this 'Century should not be on a footing with 'those instituted before the middle of the 'lst," A most satisfactory explanation is 'to be found in the Charter of King Charles 'I, dated 28th June 1630, and satisfied in 'Parliament. It was produced to the 'Commiſsioners, but though the most recent, and 'therefore the most important, in various respects 'of all the Royal charters, appears to have been 'overlooked. This charter comprehends a new dispo¬ 'sition and confirmation of the whole property 'of the College at the time, and not only ascertains 'the whole amount granted by the Crown, but 'exhibits the limitation of disponees to whom 'the same is granted. The terms are "in favourem 'dicti Collegii Glasguen. Præfectorum Regentium 'magistrorum studentium omniumque mem¬ 'borum corporis et incorporationis nunc existen. 'corumque succeſsorum" &c. On these statements the Memorialists would shortly remark. 1. That in the Report of the Commiſsioners it is not aſsumed that the University was entirely a Royal foundation originally; - but on the other hand it is equally clear that the Crown came into the place of its founders, and that it is to Charters from the Crown that all the rights and privileges of the University as such are owing. 2. That the nova Erectio of James 6 & the terms of the Commiſsions of visitation already quo¬ ted, and acquiesced in by the University, suffi¬ ciently prove tht the Crown reserved to itself and had the power of exercising the right of remodelling the institution, and increasing the number of those who were to be participant in its funds; a right which in any view would be held by law to belong to it. 3. That the memorialists believed it to be incorrect that the bulk of the College property is derived from private sources, and that on the con¬ trary the more valuable part of it has flowed from the Crown. That at all events it is only by the addition of the funds flowing from the crown that there is or can be any surplus beyond the existing salaries, which greatly exceed the revenue flowing from College property derived from other sources; - while it will always be kept in view that the Memorialists do not seek to disturb existing arrangements or to touch existing salaries, and ask only a share of any surplus that may hereafter arise. 4. The Memorialists do not exactly Know what is meant by the statement that several new Professorships have been created within the Faculty. It cannot surely be said that the College by their own authority have created any professors in the University; and if the Professors in the University nominated by the Crown, were admitted under their Commissions, as was the fact, as Professors in the Faculty, this surely is an argument not in favor of the views of the Faculty Professors bt against them. 5. Reference is made to a Charter by Charles I as containing a new Dis¬ position and grant of the whole College property, and which it is alleged limits the Dispenees to whom it is granted. It will be observed 1st that the granting of this Charter by the Crown on the shewing of the Faculty Professors themselves, implies the power of the Crown to deal with the funds of the University and to regulate the parties among whom they were to be distributed. It involves therefore the general power of the Crown to regulte the number of members in the College as well as the Univeersity, if they are to be considered separate. 2nd. The Charter throughout is in favor of the "College and University," the two bodies being plainly treated as one. 3rd The Disposition of College Property to members then existing and their succeſsors, [¿] could not be construed to abridge the right of the Crown to increase the Number of these succeſsors as the interests of learning should require. No doubt if subsequent to the date of a Charter containing, such limitation to members now existing and their successors, the crown had in his instance aſsumed to itself, or exercised the right of nominating, Professors in the University who were to be Professors in the College, while previously to such limiting Charter the Crown Professors in the University became co ipso Professors in the Faculty, there might be something in the argment drawn from the terms of the Charter: but as, subsequent to this Charter of Charles the first, the various Commiſsions of visitation were iſsued, and almost all the Crown presentations [¿] of profeſsors who are acknowledged Members of Faculty took place, it is plain that this Charter [¿] if it contained words impling a restriction to the same number of Professors as existed at its date, could not afford "a most satisfactory explanation" why the Professors now nominated by the Crown should not lie upon the same footing as those nominated during the last century. P after apart 4. In point of fact these words nunc existen. are not in the in the Charter - at least they are not in the Record of the Charter which has been carefully examined. The words nunc existen. do exist in one passage in the Copy of the charter as given in the Evidence of the Commiſsion of 1830. p. 247 last line. Do these words not occur in the re¬ cord of the charter in that passage? Ratification and Confirmation of this Crown Charter by Parliament. the words "now existing" no where occur as they aſsuredly would have done had these words [¿] the chapter confirmed, been intened to operate as a limitation of the nature or extent of the Granters confirmed. mMid and granted to his Majistie And Act of Parliament confirms the Charter of 1630 To and in favours of the University "and Colledge of Glasgow, principall Maisters, "Regards, haill members and in¬ "corporation of the samyne and their "successors forever." In another part it reseinds the act 1621, and ordains the act 1617 annexing the Kirk of Renfrew "to the said College of Glasgow" "to stand in "full force strength and effect [¿] of the said Universities of Glasgow haill members and incorporatioun of the Samyn" Now the Sovereign and Estates forsaids of new again be the voice [¿] & Suffrage of this haill Parlia¬ ment "And disponit and particularly conformit "to the said Universitie & College of Glasgow, and to the principall Regents Maisters haill members bodie and incorporatioun thairof, and thair succeſsors for ever 4c. The words "nunc existen" relied on by the Faculty Profeſsors &c so exaltingly referred to, as implying a limitation of the rights ocnferred by King Charles' Charter, to the then existing establish¬ ment, and the succeſsors of the Indivi¬ dual Members of that establishment to the exclusion of any New Members who might afterwards be added to the University & College, occur only once in the whole charter, tho the description of the Disponees and [¿], exple¬ tive of the general denomination of "universitatis of Collegii Glasguen," be repeated nine times - In the first de novo [¿] clause, which rebukes specially to the Dona¬ tions of certain ecclesiastical properties & [¿], his Majesty de novo gives & conforms "in favourius dicti Collegii Glasguen, Præfectounem, Regentinum, Magistrorum, Studentium, omni¬ umque Membrorum corporis et incor¬ porationis [¿] nunc existen, corumque succeſsorum in perpetus, totam et integrum &c But in two subsequent Clauses de novo [¿] the Grants are in the first, in favourem dicti collegii et universitatus Glasguen, et totius "corporis Membrorum et incorporationi "[¿] corumque succeſsorum in per¬ "petiuii - omnia eet [¿] priviligium" in the second - "dicto collegio Glasguen "profectis, Regentibus Magistrus & [¿] incorporatioun [¿] corum¬ "que [¿] omni tempora [¿] "et in perpituum, [¿] & - no such words as "nunc existen - occuring in either of these. Further a Grant of the Teinds of the Parishes of Goven Renfrew &c. made for the first-time to the College by this Charter, is, "in "[¿] dictii collegii de Glasgow, "præſatisque personis, corumque Succeſso¬ "ribus in futurum - vizt. Præfecti, Re¬ "gentibus Magistus, Scholasticus, Stu¬ "dintibus et bursariis [¿] "et [¿] decimus [¿] " Will the Faculty profeſsors pretend thus this Grant was [¿] to the use of the Masters Scholars Students & Bursurs then existing, excluding any person in the Crown who made the Gift to add to the number of those who were to participate in its bounty beyond the then existing Members. The proposition is too afraid to be maintained [¿] more faculty profeſsors. In truth the words nunc existen, coupled with the words corumque succeſsorum, can it is submitted on no sound construction be interpreted as implying a limitation of the Grant to the then existing individuals, was [¿] the university & College, to the exclusion of additional members nominated by competent authority, these words being plainly synonimous with those used in an English ordinance [¿] [¿] Cromwells in 1654, by which he [¿] contain [¿] to the University of Glasgow and the Prncipal Profeſsors and Regents thereof - "present & in time to [¿]". Accordingly in the Ratification and Conformation of this Crown Charter by Parliament; the word now existing" no where occur as they assuredly would have done had these words in the Charter Confirmed, been intended to operate as a limitation of the nature or extent of the grants Confirmed. The act of Parliament confirms the Charter of 1630 "maid and grantit be his Majestie To and In favours "of the University and Colledge of Glasgow, "Principall, Maisters, Regents, haill members "and incorporatioun of the samyn and "thair succeſsors for ever." In another part it reseinds the act 1621. and ordains the act 1607 annexing the Kirk of Renfrew "to "the said College of Glasgow" "to stand in "full force strength and effect in favours "of the said Universitie of Glasgow haill "members and [¿] of the samyn" Then the "Sovereign and Estates [¿] "of [¿] again be the voice [¿] and "suffrage of this haill Parliament [¿] "mortified, dotted and disponit and "particularlie Conformit to the said "Universitie & College of Glasgow, and "to the Principall, Regents, Maisters, "Members bodie and incorporatioun thairof, "and thair succeſsors for ever, all and "sundrie, lands, teinds, Kirks, Tenements "houses" &c. and declares the same to be "Ane guid valide and perfect richt and "inſeſtment to the said Univeristie & "College of Glasgow, hail members & "incorporatioun of the samyn and to "thair succeſsors for ever, for thair [¿] "and free bracking joysing and poſseſing of "all and whatsomever exprest and set doune "in the said Charter and Inſeſtment in "sick forme and manner as if the samyn "had been particularlie [¿] and "disponit to the said Universitie and "College of Glasgow by our Sovereign Lord "and Esttes foresaids by express words "voice and consent of this Parliament" ratifying this Charter, passed immediately after it was granted, and to which it is of any doubt as to the true intent and meaning of the terms and limitations of the grant; But in this act there is not only no limitation to members then existing but the Ratification, on the contrary, is in the broadest and most unequivocal language in favor of the University and College, and for behoof of the Members of the University and Colleges - these, it may be observed, being thoughout viewed as identical. Upon the whole it is submitted that the reference, made by the Faculty Professors to this Charter and the Ratifications of it, is any thing but felicitous; And that the true reason for the Commiſsioners not having specially noticed it in their Reports, is, not that they overlooked it but that it shows no new light on the rights of the members of the Establishment, and certainly introduces no change in those rights as fixed by the antecedent Charters referred to and quoted. "all and sundrie lands teinds Kirks "Tenements houses &c. and declares the same to be "Ane guid valide and perfect "right and inſeſtment to the sid "Universitie & College of Glasgow, haill "members and incorporatioun of the samyn "and to thair succeſsors for ever for thair "peaceable ane free bracking joysing "and possessing of all & whatsomever "exprest and set downe in the said "Charter and Inſeſtment in sick "forme and manner as if the samyn "had been particularie mortified "and disponit to the said Universitie "and College of Glasgow by our "Sovereign Lord and estates fore¬ saids by express words voice and consent of this present Parliament" Such are the terms of the Act of Parliament ratifying this charter paper immediately after it was granted, and to which it is merely proper to look for the explanation of any doubt as to the true intent & meaning of the terms and limitations of the grant, But in this set there is not only no limitation to members then existing, but the Ratification is on the contrary, in the broadest & most [¿] language in favour of the University and College, and for behoof of the Members of the University and college, - these, it maybe observd, being [¿] viewed as identical. Woudl it not be desirable to procure authentic extracts of this charter & of the confirmation of it by Parliament to lay before the Counsel? Upon the whole it is submitted, that the reference made by the Regius Profeſsors to this Charter & the Ratification of it is any thing but felicitous; and that the true reasons for the Commiſsions now having specially [¿] it in this report, is not that they overlooked it but that it throws no new light on the rights of the Members of the establishment, & certainty introduces no change in the rights as [¿] by the [¿] Charters referred to & quoted. It remains to be noticed that the Memorialists do not all stand precisely in the same posi¬ tion, five of their commiſsions being in the general terms men¬ tioned in the outset, while on eis of a limited nature, and specially declaring that he is to have no management or participation in the funds of the College, no vote in the election of Professors &c. Copies of the form of a limited and unlimited Commiſsion will be found in the Appendix. The Commiſsion con¬ taining the limitations is that of the Profeſsors of Chemistry. On this subject it will be recol¬ lected the Commiſsions in their first Report expressed themselves thus - "It appears to us that "they have been very unwisely "and incautiously introduced, making "the Crown as it were a party "against itself, to promote a "most inexpedient and anomalous "distinction in the University "The objectionable character of "such restrictions by the Crown "itself in its own appointments, "and the narrow purposes for "which alone such restricitons "could have been suggested, are best "illustrated by the fact that the "Regius profeſsors have been asked "to perform, and do in fact per¬ "form, the duty of examining "Candidates for Medical Degrees, "as the duty otherwise for a long "period, could not have been "performed." It may be observed that The consequence of their [¿] in the Examinations being indisputable These Profeſsors recieve a Share of the [¿] fees those who have [¿], as well as those who have [¿] commiſsions On the whole matter the Memorialists wish to be ad¬ vised by Counsel 1. Whether the former judgement in the case of Muirhead, being pronounced in an Action to which the Crown were not parties, can form res judicata against the Crown and the profesors who hold commiſsions from the Crown entitling them to the whole privileges of profeſsors in the University. 2. Supposing it not to form res judicata, what effect is likely to be given to it as a precedent in the Court of Seſsion. Keeping in view that substantially the whole facts and reasonings on which the Memorialists found, were under the consideration of the Court in the former case. 2. Will the limitations in certain of the ecisting Commiſsions bar the Profeſsors holding them from participating in the funds and patronage of the College to the extent claimed, supposing the other Professors to have a good case on the merits: Or may not the Crown recal the limitation and place these Professors on the same footing with those more recently appointed. 4. Generally - Is it the opinion of Counsel that it the Regious Professors would succeed in establishing, by legal Process, their right to all the Privileges Immunities & Emoluments enjoyed by the Faculty Professors? If Counsel shall answer this query in the affirmative they will please to give directions as to the nature and form of the action to be raised & insisted in and whether all the Memorialists, or only the former, the latest appointed profeſsor would be [¿] While the [¿] Meml. has been in case of preparation circumstances have recurred in relation to Mr. [¿] accommodation, with a Claſsroom in the College to which it seems necessary to request the attention of Council The correspondence, & Document, relative thereto are are given in an appendix.