Sunday, December 21, 2014

A Degree of Confusion

When and how did Durham University gain the right to award degrees?

This sounds like it should be a simple question – and Wikipedia, as always, has an answer [1]:
"The University of Durham was … granted its Royal Charter with explicit degree awarding powers by King William IV on 1 June 1837."
Unfortunately there is a problem with this answer: it is, quite simply, wrong. The Royal Charter [2] does not contain 'explicit degree awarding powers' (although it was granted by William IV on 1 June 1837).
It's easy to see how the confusion arose. It is often stated [3] that Durham gained its degree awarding powers in 1837 from the charter. Also, the first degree students graduated a week later on 8 June 1837, at the same convocation that formally received and accepted the charter. It is also the case that virtually all British universities founded by Royal Charter have a clause in their charter explicitly mentioning degree awarding powers. (The only other exception I've found to this is Edinburgh, whose 1582 charter merely grants the town the right to found a college – not a university [4]; they seem to have then started granting degrees without any authority whatsoever!)
So, if not from the Royal Charter, how (and when) was Durham granted degree awarding powers? The official Durham University website is quite clear that the when was 1832, but not so clear on the how [5]:
"Durham became one of the England's leading centres of medieval scholarship, along with Oxford and Cambridge. Indeed, three Colleges - now part of Oxford University - were founded from Durham (University College and Balliol College, and in 1286 Durham College was run from Durham to train scholars for Durham for 300 years until it became incorporated into the University of Oxford as Trinity College). Henry VIII and Oliver Cromwell's attempts to formally establish a University for the North in Durham were subsumed by politics and North-South rivalries, and it was not until 1832, as the Prince-Bishopric declined [and] lost his powers, was Durham finally endowed with the Castle and lands and granted degree awarding powers by the king as England's third University. Durham University is the inheritor of a continuous line of learning and scholarship dating from Bede and Cuthbert to the present day."
Clearly the implication of this is that the Durham University Act of 4 July 1832 granted the degree awarding powers. Indeed, the act and the charter were the only constitutional documents to come from the government prior to the first degrees being awarded, so the degree awarding power must, if it came at all, come from one of these.

The Possible Implications of University Title

But if these power were explicit in the act, then why the confusion? Why did William Van Mildert (Bishop of Durham) refer in the House of Lords debate on the act (22 May 1832) to the "privilege of conferring degrees, if hereafter committed to the University by charter" [6]? Why did a Mr Walters (a lawyer advising the University, as far as I can make out) write to Charles Thorp (Archdeacon of Durham and the first Warden of the University) on 6 June 1832, saying that (once the bill passed) he saw 'nothing they want from the Crown by a Charter except the power to grant degrees, and surely it is premature to ask for this' [7]?
Lord Althorp (John Spencer, then Chancellor of the Exchequer and the senior member of the Government in the House of Commons) did say in the Commons debate on the bill on 27 June 1832 that "the Dean and Chapter would reserve to itself the right of bestowing Degrees on those persons only who were members of the Established Church" [8], with no mention of the necessity for a charter, but it would be a stretch to go from this to him thinking no charter was needed. It also appears that Van Mildert was aware that there may be implications in the use of the title 'university': he had written to Thorpe on 5 Jan 1832 that 'there is an issue over calling the body a university' and on the following day sent another letter where he enclosed 'extracts of The Standard newspaper on the distinction between a university and a college being based on the power to grant degrees and faculties from a discussion at Trinity College Dublin' [9]
Overall, however, it appears that, at the time of the passage of the act, it was widely (if not universally) believed that a separate charter with explicit degree awarding powers would be needed – so it seems certain there was nothing explicit in the act. The first real hint that this might not be the case came from an unlikely source – Mr William Tooke, MP, one of the founder members of the council of the 'University of London'.
This 'University of London', later to become UCL, was a joint stock company founded on 11 February 1826 – technically a 'for profit' enterprise, although it never paid a dividend [10]. It had opened on 1 October 1828, and had been trying since 1830  to obtain a royal charter that would enable it to award degrees. Tooke spoke in the House of Commons on 4 July 1833 (coincidentally the first anniversary of the Durham University Act) to propose a motion in favour of the granting of a charter with degree awarding powers to the 'University of London' [11]. While most of his speech is not relevant to this discussion, one part is:
"It is not generally known, that no university whatever is entitled to confer degrees, by grant of any Charter whatever, the claim so to do being considered as incident to the name and title of University, and, therefore, King's College, although it has a Charter, can at present claim no such right; the name is consequently the sole matter in dispute, the University of London praying to be incorporated as such"
This same point – that the title of University, legally bestowed, includes the right to award degrees – was then turned on the 'University of London' in the Privy Council on 9 April 1834 by Sir Charles Wetherell (a former Attorney-General, then representing the University of Oxford), in a speech which he later published [12]. He argued that [13]:
"It will be necessary to examine this subject a little more minutely, and particularly with reference to the power of conferring degrees, and the nature of a University. The only place where I can find any legal discussion on matters so little brought under consideration as these, is the argument of Mr. Attorney General Yorke, in Dr. Bentley's case, which is reported in 2nd Lord Raymond, 1345. … In this proposition of Mr. Yorke, two principles are laid down. The first is, that the "granting degrees flows from the Crown;" and the second is, that if "a University be erected, the power of granting degrees is incidental to the grant." I much question whether either of these principles has been adverted to by the parties applying for this grant: but here they must be closely examined, in several points of view. There can be no difficulty here upon the doctrine of foundership. The subject-matter granted, is the power of conferring degrees; an emanation, as Mr. Yorke expresses it, from the Crown. It is the concession of this power that constitutes the direct purpose and the essential character of a University."
Incidentally, Wetherell also confirms that Durham "is a University constituted under a particular Act of Parliament, with its own particular government provided for it by the Act" [14].
In the case Wetherell refers to, Yorke appeared for the University of Cambridge [15]. It thus appears that lawyers acting for both ancient universities , and at least one major figure in the campaign for the 'University of London', thought that the grant of the title of University implicitly included the right to award degrees.
On 9 September 1835, the Municipal Corporations Act was passed. This act contained the provision (in clause CXXXVIII) that "nothing herein contained shall affect or interfere with the rights and privileges granted by charter or Act of Parliament to the University of Durham." [16], with the previous clause making similar provision for Oxford and Cambridge. It is notable that the status of Durham as a university was recognised in statute law then, almost two years prior to the grant of the royal charter.

Events in Durham

Meanwhile, back in Durham, the University had already opened (on 28 October 1833), and the first students matriculated into the (at the time 4 year) BA course. The 'first calendar' (from autumn 1833) stated that the university was "Founded by Act of Chapter with the Consent of the Bishop of Durham 28 September 1831. Constituted a University by Act of Parliament 2nd and 3rd William IV., Sess. 1831-2." [17], the same document laid out the basic requirements for the degrees of BA, MA and BD. Thorp noted in a letter to Van Mildert on 5 December 1833 that the 'Dean and Chapter [were] anxious to ascertain place and value of degrees and how regarded by the Bishops.' [18]. From the replies Van Mildert received, almost all of the bishops (including both archbishops) were quite happy to value Durham degrees alongside (or even above, in the case of the Bishop of Norwich) Oxford and Cambridge degrees, with Hereford, Exeter, and Rochester being the only Bishops refusing [19].
On 9 May 1835, the Chapter of Durham sought the advice of Mr Walters [20]:
"Agreed, that the sketch of statutes be submitted to Mr. Walters, and his attention be directed to the provisions of ihe Act of Parliament, it being the intention of the dean and chapter to act strictly in conformity with the Act, but without unnecessary interference in the concerns of the university ; and that Mr. Walters be requested to give his opinion whether the University may proceed under such a constitution to act and confer degrees."
It appears that the idea that a charter may be unnecessary had taken root. Just a couple of months later, on 20 July, the chapter resolved [21]:
"The recommendation of the weekly chapter of the 13th June last to this chapter "to declare the intention of conferring degrees in pursuance of the powers of the university under the Act of 1st & 2d William the 4th from and after the Easter term of 1836; and that, in order to carry this intention into effect, this chapter do give a fundamental statute constituting a senate and convocation in the university, with the ordinary functions of such bodies," having been considered, it is ordered that the statute drawn by Mr. Walters, with the alterations now made, be sealed, and that this chapter be adjourned until Saturday next the 25th instant for the purpose of sealing the same, and that the recommendation of the weekly chapter as to the conferring of degrees be, and the same is hereby confirmed."
Although they still hedged their bets, adding [22]:
"Ordered, that the warden be directed to consult with the Lord Bishop of Durham on the best mode of applying to the Crown for the charter to the University of Durham."
The fundamental statute sealed by the Dean and Chapter, and by the Bishop of Durham, contained the following regulation [23]:
"(10.) Degrees in the several Faculties shall be conferred by the Warden in Convocation, but the grace for a degree shall be allowed by the Dean and Chapter, before it shall be allowed in Convocation."
Durham now had a fundamental statute that allowed it to grant degrees – but it was from the Dean and Chapter, not from the Crown. What was the legal status of this?
On 24 January 1836, Thorp received a legal opinion from Wetherall, stating that [24]:
'The Durham University is founded as such, and is so termed in the Act. It is to a great extent endowed, and has every pretension to be placed as nearly as may be on a footing with the two ancient universities, or in other words to be made a substantive individual university. Their claim to have a charter enabling them as a distinct body to grant degrees should now be urged.'
This seems to back up the idea that a charter was needed. Thorp goes on to write on 13 February that 'When the period of degrees draws near they will petition the Crown for a Charter enabling the University to grant them' [25], but by 27 February he is telling Lord Melbourne (the Prime Minister) that 'The right of degrees is perhaps inherent in a university, but to prevent doubts a charter from the Crown or a declaration by the Crown lawyers that a charter is unnecessary, is desirable' [26]. Finally, another opinion from Wetherell (via a letter from William Palmer, Senior Tutor of the University of Durham) advises [27]:
'that it was thought prudent to omit mention of degrees in any petition for a charter, retaining only the incorporation of the individuals as a university. The petition would apparently aim at nothing but the right of holding property and having a common seal, while the word university would carry the degrees.'
It appears that this course was finally decided on. It took a while for the charter to wend its way through Whitehall, but when it appeared, it was quite different from other university's charters.

The Durham Difference

One significant difference is that Durham's charter refers to the University as having been "established under our Royal sanction, and the authority of our Parliament" – this is explicitly not a foundation charter and recognises that Durham was already a university prior to the granting of the charter.
More importantly, while other university charters contain a large number of clauses laying out their statutes, in addition to the incorporation  (London's, granted 28 November 1836, contains around 15 clauses [28]), Durham's has none. In particular, these statutes are normally where the rules on granting degrees are to be found.
Instead, Durham's charter recognises the fundamental statute of 20 July 1835 as having been passed "by virtue, and in pursuance of the trusts and powers in the said Act of Parliament [the Durham University Act 1832], and of every other power enabling them in that behalf."
This statute, as noted above, included a clause stating that Durham could award degrees "in the various faculties". By confirming that this was within the powers granted to the Dean and Chapter by the act, the charter tells us that the 1832 act which named Durham a university also, by virtue of granting that title, gave it degree awarding powers.
On 8 June 1837, one week after the charter had confirmed Durham's degree awarding powers, Durham became the third university in England to grant degrees when the first BAs graduated.


[1] History of Durham University, retrieved 21 December 2014
[3] e.g. Shaw's Academical Dress of Britain and Ireland, Nicholas Groves, 2012, p. 156: "The University of Durham was founded by the Dean and Chapter of Durham in 1832, and gained the right to award degrees in 1837."
[4] The Story of the University of Edinburgh, vol. I, Sir Alexander Grant
[5] Our History and Values, retrieved 21 December 2014
[6] Hansard
[7] Calendar of the Charles Thorp Correspondence, THO/649. Note that this and all other quotes from the Thorp Correspondence  are from the summaries available online, rather than from the letters themselves.
[8] Hansard
[9] Durham Cathedral Library Van Mildert Letters, VML 211-213 and 214-217. As with the Thorp Correspondence, quotes are from the summaries available online, rather than from the letters themselves.
[11] Hansard
[13] Ibid., pp. 77 - 80
[14] Ibid., p. 41
[17] Durham University; earlier foundations and present colleges, J. T. Fowler, 1904, Appendix IV, p. 239
[19] Ibid., THO/139,141-145, 148-150,152-155, 157-164, 166a,168a
[21] Ibid.
[22] Ibid.
[23] Ibid., Appendix 16, p. 142
[25] Ibid., THO/201a
[26] Ibid., THO/214
[27] Ibid., THO/226

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