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.
