Bentley case fortescue er report date the king against the chancellor master  and scholar OF the university OF cambridge or doctor Bentley case SC Mod ld  raym Str refer to Bonaker v Evans Q b marquis of Abergavenny v bishop of  Llandaff Q b d mandamus to restore to degree in the university this case be  state pretty much at large from the record Lord Raymond c but in substance be  as follow this be a mandamus grant to restore Richard Bentley to his degree of  doctor of divinity who be degrade by the vicechancellors court in the  university of Cambridge for a contumacy in a civil suit for four pound and six  shilling at the suit of doctor Middleton without have be hear in any court to  this mandamus the university make a return in which they do not say that they  have a visitor which will have put a end to the dispute in b r but they return  a power in the congregation or vicechancellors court to deprive any member for  contumacy and that Bentley be guilty of a contempt in speak opprobrious word  of the vicechancellor and that be say in this case quod foolishly to put in  motion c and that the congregation or vicechancellors court have deprive he  but do not return that he be summon as in fact and truth he be never summon  there be several objection make to this return as first it do not say that the  deposition of his contempt be upon oath but only say the deposition fortescue  of the beadle be read nor do it appear before who the deposition be take and  one may depose by word without oath second objection it be say that the say  deposition be exhibit de contempt pillage which be uncertain for they may  swear de contempt and yet may swear he out of contempt so that this return may  be true and yet the evidence may be he be not guilty so it may be he be  degrade for not be in contempt and fortescue er p so be the case of conviction  king and green mich annae b r this be a conviction for sell bread against the  assize which say only that the witness to the information be swear de in point  of fact materiar for which the information be quash for they ought to set out  what the witness say vide queen and Randal pasch annae three objection it be  too general to say that the congregation or vicechancellors court may degrade  near stubbornness but ought to set out what the nature of that contumacy be  four objection that a custom for the university or vicechancellors court to  create degree can be a good custom it be not true for they can create but they  may confer because this be a right grant to they original from the crown five  objection there be no just and reasonable cause to degrade for a contempt in  word only six objection it be no where show for what cause he be degrade it  only say et superinde and thereupon he be degrade that be only to show what  follow in point of time but nothing else seven objection they have exceed  their jurisdiction very much for the power prescribe for be only to deprive  from all degree in the university and this decree and judgement be to degrade  and deprive he from all title degree fortescue and all right whatsoever ab  omni jure in university which be not prescribe for eight objection in the last  place the party defendant be not summon which be against natural justice and  against the law of God and man Mandamuss or mandatory writ be very ancient as  old as Edward the first if not old and the two main end of they be to expedite  justice and to prevent oppression in great body of man such as corporation  return of mandamuss be answer to the king command they therefore ought to be  true and clear and indeed they require the utmost certainty even much great  than a indictment for that may be traverse but here the king can it traverse  but if the return be not clear a peremptory mandamus go for if the party  quibble or prevaricate he be suppose not to be able to give a better answer in  the next place this be a very proper mandamus for it be to restore a member of  a great corporation to a great office a dignity and a freehold first a office  that concern the government of a corporation and so agree in the return and be  not the government of so great a university as Cambridge of as great concern  as the government of a poor borough second it be a dignity mere civil grant  original by the crown and confer by the university and it be a place for life  but suppose it spiritual the immediate consequence will be loss of temporal  profit in his professorship of divinity c three beside it concern the  legislature for they choose member of parliament and be justice of peace so it  concern the justice of the nation it be observe that the vicechancellor may  have proceed by the civil law in the absence of doctor Bentley and that his  not appear be no obstruction to the proceed in the cause but this be now make  a criminal proceed and find upon a most abominable doctrine I e that a man can  repent that because he have say he will not obey the fortescue process of one  court that he will never obey the process of another suppose they have commit  he for safe custody must he not have have time to defend himself sure he must  it be a dignity mere civil grant original by the crown and confer by the  university the dignity be the same whether apply to a civil or spiritual  person what be aid about degree be only licence to teach be wrong say for  licence to teach be long before degree which be about the year and there be  teach in the school long before there be university and even in king alfred  time there be licence for teach school there be no such thing as a degree till  they be a body corporate and after they be make so and thereupon they have  many grant of great privilege from several king and queen of England and in  particular they have grant to they of the privilege of proceed accord to the  civil law which be all voidable grant until queen Elizabeth time and then all  their right and privilege and in particular this of their proceed accord to  the civil law in their court be confirm and establish by foot of parliament in  as particular a manner as if they have be recite fortescue er p verbatim in  the Act of parliament which be set out in the return otherwise they can not  have set out all their right and privilege this cause be argue several time  and the court be clear of opinion the return of the mandamus be nought in form  and substance and so order a peremptory mandamus to restore he to every thing  he be deprive of by that judgement or decree of the university and the court  think most of the objection to the return to be good but give their judgement  for a peremptory mandamus on one of they only which can not be defend and that  be his not be summon and it must be take they proceed accord to the commonlaw  of England unless they have set out particular that they proceed accord to the  civil law which they may have do and it be not enough to say secundum con  university fortescue as to the not summon the party I will mention some few  among very many case the h the duke of Norfolk marshal of the king bench  absent himself though a place concern the administration of justice yet there  can be no forfeiture until he be summon for he may excuse himself Edward hold  by the chancellor and judge that it be require by the law of nature that every  person before he can be punish ought to be present and if absent by contumacy  he ought to be summon and make default in Charles the first the king versus  Barnardiston recorder of Colchester restore because not summon the twelve of  Charles the second the king versus Campion side the office of townclerk  restore the king and glide W m the queen and sergeant Whitaker hill annae in b  r salk de term sanct mich george I in the king bench