by one Simon a Monk of Walden ☞ It is likewise to be noted that altho' as I have shewn before the first Race of our Kings did frequently oppose some Rights the Popes claimed by Canons yet within the compass of an Hundred Years after the Conquest The Popes Jurisdiction in four particulars by the Canons or little more the Court of Rome obtained four great points of Jurisdiction First of sending Legats into England Secondly drawing Appeals to Rome Thirdly the Donation of Bishoprics and other Dignities in the Church Fourthly the Exemption of the Clergy from Secular Power Notwithstanding all which several Kings reassumed their Rights and Jurisdiction as occasions offered until the Reign of King Henry the Eighth as the Statutes of Mortmain Provisoes c. do manifest §. 15. The Kings Supremacy asserted by King Henry the 8th But in King Henry the Eighth's time a Total Rout was given to them all In the Twenty fourth of his Reign all Appeals to Rome were taken away and Established in the King and all Sentences made or to be made with England declared to be Authentical notwithstanding any Act from Rome The grounds of which Act are set forth in the (b) Stat. 24. H. 8. c. 12. Parag. 1. Preamble That this Realm of England is an Empire Governed by one Supreme Head and King The Lawyers Judge this Statute not to be Introductory of any new power but declatory of the Ancient Rights of the Crown having Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politic Compact of all sorts and Degrees of People divided in Terms by Names of Spirituality and Temporality been bounden and own to bear next to God a Natural and humble obedience Then follows the plenitude of the Kings power as before I have related after which follows That the Body Spiritual hath power when any cause of the Law Divine happens to come in question or of Spiritual Learning This Statute was made to exclude the Popes power which King Henry the 8th rejected that it was declared Interpreted and shewed by that part of the Body Politic called the Spirituality without the Intermedling of any exterior person or persons by which the See of Rome is intended to be utterly Excluded and all Canons of Council likewise not allowed of by the King and his Laws to declare and detemin all such doubts and to Administer all such Offices and Duties as to their Rooms Spiritual doth appertain and the Laws Temporal for Tryal of property of Lands and Goods and for the Conservation of the people of this Realm in Unity and Peace without Rapine and Spoil was and yet is Administred Adjudged and Executed by sundry Judges and Ministers of the other part of the Body Politic called the Temporality and both the Authorities and Jurisdictions do conjoyn together in the due Administration of Justice the one to help the other By which it is easie to infer that this Statute exterminates and abolisheth all Forreign power so that whatever before this was Transacted here by the Popes or their Legats is now to be declared and determined by the King or such as by Law are appointed to hear and determin such matters under him §. 16. The Kings power of Visiting c. In the Twenty-sixth of the same King it is enacted That the King his Heirs and Successors shall have full Power and Authority from time to time to (a) Stat. 26 H. 8 c. 1. The Kings power of Visiting Visit Repress Redress Reform Order Correct Restrain and Amend all such Errors Heresies Abuses Offences Contempts and Enormities what soever they be which by any manner of Spiritual Authority or Jurisidiction ought or may lawfully be Reformed Repressed Ordered Redressed Corrected Restrained or Amended most to the pleasure of Almighty God the increase of Virtue in Christs Religion and for the Conservation of the Peace Unity and Tranquility of this Realm any Uses Customs Forreign Laws Forreign Authority Prescription or any thing or things to the contrary hereof notwithstanding It is known that the Title of Supreme Head of the Church given by that Act to the King his Heirs and Successors was Repealed by Queen Mary The Title of Supreme Head changed and was never restored but in the First of Queen Elizabeth all the powers given by the Act of 26 H. 8. are restored to the Crown under the Name of Supreme Governor For in the first of Queen Elizabeth such Ancient Jurisdictions over the Estate Ecclesiastical are restored to the Crown The restoring of Ancient Jurisdiction as by Queen Mary had been Repealed and all Foreign powers repugnant to the same are abolished I shall only insert what relates to the present matter Stat. 1. Eliz. Parag. 17. Parag. 17. It is thus Enacted That such Jurisdiction Privileges Superiorities and Prehemenences Spiritual and Ecclesiastical as by any Spiritual and Ecclesiastical power or Authority hath heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and persons and for Reformation Order and Correction of the same and all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be Vnited and Annexed to the Imperial Crown of this Realm Parag. 18. The Kings power in Ecclesiastical matters And in the 18th Paragraph The Queen her Heirs and Successors shall have full Power and Authority by Letters Patents under the Great Seal to Assign Name and Authorize c. such person or persons c. as the Queen her Heirs and Successors shall think meet to exercise use occupy and execute under them all manner of Jurisdictions Privileges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within their Dominions to Visit Reform Redress Order Correct and Amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or may lawfully be Reformed Ordered Redressed Corrected Restrained or Amended c. Which seems to me 25 H. 8. c. 21. Parag. 20. The King Supreme Visitor notwithstanding Mr. Pryns exceptions clear by another Act of Parliament the words of which are Provided that the said Arch-Bishop of Canterbury or any other person or persons shall have no power or Authority by reason of this Act to Visit or Vex any Monasteries Abbys Priories Colleges Hospitals Houses or other places Religious which be or were Exempt before the making of this Act c. But that Redress Visitation and Confirmation shall be had by the Kings Highness his Heirs and Successors by Commission under the Great Seal to be directed to such persons as shall be appointed requisite for the same In fine whoever considers the Accumulated power of our Kings most own à fortiori that whatever Visitatorial Power was excercised before King H. 8ths time was by the Kings allowance and all since
§. 6. An account of the whole matter as in the Parliament Roll. I shall now give an account of the matter as it appears in the Parliament (d) Rot. Parl. 13 H. 4. N. 15. Roll. First there is the Arch-Bishops Petition to the King that with the Assent of the Lords Spiritual and Temporal and the Commons Assembled in the said Parliament the Schedule Annexed might be confirmed Which Schedule contains the Declaration of King Richard the Second as it is to be found in Mr. Pryn wherein it appears that the ground of the Contest and differences was about a Bull of Exemption pretending to exclude the Arch-Bishop of Canterbury and his Successors and all other Ordinaries and Founders of the said University and Colleges from Visiting and all other Ordinary Jurisdiction which Bull by a venire facias was brought into the Chancery at Westminster and the Chancellor and Proctors shewed a sufficient Warrant under the Universities Seal to produce the Bull in Chancery and to answer there and to do and receive what should be ordered and determined by the late King Richard the Second and his Council as appears by the Records of the Chancery and after the Chancellor and Proctors for themselves and the University submitted themselves in the foresaid matters (a) Ordinationi definis ioni dicti nuper Regis to the Ordinance and Determination of the said King. ☞ The King after mature and fuller deliberation with his Council clearly considering that the Bull was procured in prejudice of his Crown and to the revoking or enervating of the Laws and Customs of his Realm and in favor and emboldning of Heretics and Lollards Murtherers and other Malefactors Ordained and by his Breve or (b) In fide Logeancia dilectione quibus sibi tencbantur Ac sub poena amissionis privilegiorum Universitatis praedictae sub forfeitura omnium aliorum quae sibi foris facere potuerunt ne dictam Bullam in aliqua sui parte exequi seu excercere seu Beneficium quoddam Exemptionis per Bullam illam aliqualiter reportare seu recipere presumerent Mandate Commanded and forbid the Chancellor Masters Doctors and Scholars of the said University on their Faith Allegiance and the love that they ought him and under the penalty of losing the privileges of the said University the forfeiture of all other things which they could forfeit that they presumed not to execute or exercise the said Bull in any part of it or any ways to presume to enjoy or receive any benefit of Exemption by the said Bull But to renounce all the Exemptions and Privileges contained in it before Richard Kendall the Kings Clerk and Notary and should transmit an Instrument for that purpose under the Seal of the said University by the said Clerk under the Penalties aforesaid After which follows the Kings Sentence as before In this part it may be observed how the King discovers his Authority and Prerogative over the University in injoyning them to renounce the Popes Bull and not to Execute c. The King may deprive the University of all privileges for disobedience it under the penalty there mentioned which demonstrates that for contempt and dis-obedience the King may not only Suspend and Deprive any Member of the University but take away all their Privileges c. which would be well considered by those who obstinately refuse to obey the Mandate of a King of England §. 7. The account of the latter Visitation Then follows the account of the later Visitation of the Arch-Bishop in the 12th 12. H. 4. of Henry the Fourth as before related where Richard Courtney the Chancellor and Benedict Brent and John Birch the Proctors opposed him and he and the University submited themselves to the Arbitrament Judgment Ordination and Decree of the King and the King Summoned them to appear before him at Lambeth upon the 17th of September where hearing all things and having consideration of the Submission made to King Richard and the Ordination Judgment and Determination of the same the King Confirmed and Ratified the same And further ordered if they obeyed not the Arch-Bishop c. all their Franchises Liberties and all the Privileges of the same University should be seized into the hands of the King and his Heirs till they performed it and the Chancellor and Vice-Chancellor and Proctors of the University for the time being and their Successors and the University shall pay to the King and his Heirs 1000 l. Then follows that this Schedule being seen and examined and understood with mature and diligent deliberation Note here the Kings peculiar power in passing an Act of Parliament The King in full Parliament affirmed and declared that all and every thing contained in the same Schedule were done Arbitrated Ordered Considered Decreed and Adjudged by him And the Lords Spiritual and Temporal and the Commons in the said Parliament who had full deliberation likewise of the same approved ratified and confirmed it Upon the whole matter of this great contest about the Arch-Bishops Visitation I think the King and the Parliament were at that time the more Inclined to confirm the Arch-Bishops power because that kept the Visitatorial power within the Kings Dominions and Excluded Exemptions which the State of England was rarely inclined to favor as being mostly as prejudicial to the Crown as the Bishops And Wickliffs Doctrin spreading the King was more willing the Arch-Bishop should Visit the University because it was his proper Office to see to the preservation of the Establish'd Religion and if the University had been left to the Visitation of the Chancellor the opinion of Mr. Wickliff might have the more encreased since the temper of the Members might have been changed from the Doctrin professed since so many in the University were then said to have embraced it §. 8. The reasons why the Author hath given so large an account of this I have insisted the longer upon this particular for two Reasons first to shew that the Government ordering and reforming of Universities were then Judged to be of Ecclesiastical Cognizance especially in those matters which appertain to the Doctrins taught in them which even in their Philosophical Disputes in some measure effected Religion even the taking of Degrees except in the faculty of Physic was in Ordine ad Spiritualia as appears in those Constitutions which prohibit any from having Benefices but such as had taken Degrees in Universities a further Illustration of the former of these Inferences I shall clear when I speak of Bishop Rippingdons Visitation Secondly The misapplication of Mr. Pryn. To shew the mis-application of Mr. Pryn who finding by the Transactions of King Richard the Second and King Henry the Fourth and those of King Charles the First concerning Arch-Bishop Lauds Visitation that those Kings determined the matter in favor of the Arch-Bishops thereby would Infer that the Visitation of the University of Oxford appertained to the Black
matter confirming what hath been Asserted in the preceding discourse § 15. pag. 257. 258. 259. CHAP. VI. COncerning the Kings of England's Dispensing with the Statutes of the Vniversities by their Mandates pag. 260. SECT I. Concerning the Kings dispensing power in General and in some particulars to the beginning of King Charles the 2ds Reign pag. 200. Concerning the Kings dispensing power in General § 1. pag. 260. Why the Author treats not largely on this subject § 2. pag. 262. Some observations upon the 25 H. 8. C. 21. § 3. pag. 262. That the Statute is Founded upon the usage of a dispensing power Ibid. That the Pope exercised a dispensing power by sufferance in Derogation of the Royal Authority pag. 263. The Ecclesiastical power originally in the King according to this Act. § 4. pag. 263. The Kings Prerogative not restrained by Acts of Parliament in several cases pag. 264. Where to find Arguments for the dispensing power § 5. pag. 265. Some Paragraphs of the Act 8 Eliz. C. 1. explained Ibid. The Queens power in matters Ecclesiastical Supreme and absolute pag. 266. Inferences from this Statute pag. 266. Observations upon the Statute 25 H. 8. C. 1. by Judge Hobart pag. 267. Greater powers seem to be Implyed in Section 17. and 18. of this Statute worthy consideration pag. 267. Some further observations upon the Statute 25 H. 8 C. 21. § 6. pag. 267. An account of the Queens Mandate about Electing a Master of St. Johns College in Cambridge § 7. pag. 269. The Bishop of Londons Testimony that the King hath dispensed with College Statutes § 8. pag. 270. A Mandate dispensing with Incapacities to receive Degrees § 9. pag. 270. A Mandate for a Schollar of St. Mary Wintons College without Examination pag. 271. A Mandate dispensing with the Incapacity by reason of the County Ibid. An acknowledgment from St. Johns College in Cambridge that the King may dispense with College Statutes § 10. 272. A Senior Sophister may take Bachellor of Arts Degree by dispensation pag. 272. SECT II. Concerning Dispensations with the Statutes of the Vniversities or particular Colleges from the Year 1670. 22d of King Charles the Second to this present time pag. 273. Mandate for Dr. Lloid taking his Degree two years before the Statutes allow § 1. pag. 273. The words of Dispensation to be noted § 2. pag. 244. Mandate for Thomas Chapman to have the Degree of Master of Arts without performing exercises pag. 274. Dispensations for Charles Otway otherwise Incapable either as to the County or his Years pag. 275. Mandate for Mr. Josuah Ratcliff contrary to the Statutes of the College pag. 275. Dispensation for Mr. Edward Finch not being of the County c. for Dr. Hawkins not to perform exercises § 3. pag. 276. Dispensing with the Statutes of St. Mary Magdalen College for Mr. Craddock Ibid. A Statute of the Lady Margaret the Foundress dispensed with § 4. pag. 277. Concerning conferring Honorary Degrees pag. 277. Dispensation with Statutes for entring into Orders § 5. pag. 278. Another of the same nature for Sir John Lydcote with it's revocation pag. 278. A Mandate endeavored to be eluded re-enforced § 6. 279. The Mandate for removing the Duke of Monmouth from being Chancellor and substituting the Duke of Albemarle § 7. pag. 280. The Kings power to Interpret Statutes and nominate Chancellor pag. 280. 281. The King grants power to the University to confer Degrees upon such as the Chancellor or Vice-Chancellor shall recommend § 8. pag. 281. The re-enforcing of it pag. 282. The Kings Mandate for making new Statutes for regulating Degrees at the Universities Petition § 9. pag. 282. A Command to the University to grant a dispensation § 10. pag. 283. The revoking of a Mandate pag. 284. The Kings Order that Mandates should not be granted without Testimonials of the Arch-Bishop of Canterbury and the Bishop of London § 11. pa. 284. The recalling of a Mandate after the former § 12. pag. 285. The Conclusion § 13. pag. 286. CHAP. VII THe Answer to the Arguments used by the Vice-President and Fellows of St. Mary Magdalen College in defence of their proceedings pag. 288. SECT I. Answer to what is urged in their Justification from the Obligation of their Oaths to observe their Statutes p. 288. The Objection concerning the Statutable qualification of the persons for whom the King granted Mandates § 1. pag. 288. The Answer of the definition of an Oath and the divisions of it and who may vacate them § 2. p. 289. Oaths subject to the power of a Superior pag. 290. The Sovereign hath power to alter and adnul Statutes pag. 290. A Statute being revoked the Swearer no longer obliged to observe it § 3. pag. 291. So by the Sovereigns prohibition the execution pag. 292. The Superior can remit the obligating of an Oath § 4. pag. 292. The Tacit condition of the Superiors allowance always to be understood pag. 293. This head further Insisted upon § 5. pag. 294. The reason of it § 6. pag. 295. The Objection that the Kings Tacit consent is Implyed and the Oath before the Election Answered § 7. pag. 295. The Objection Answered that the Fellows Swear to Admit no dispensation pag. 296. to 300. SECT II. wrong put SECT III. Some other Objections considered either relating to the Visitation in General or urged in defence of some particular Member of the Society pag. 300. A second Objection Answered that the Local Visitor should have first ordered the business before the Lords Commissioners had taken cognizance of it § 1. pag. 300. The Objection Answered that Dr. Hough was not cited nor appeared by Proxy § 2. pag. 301. The Objection that Dr. Hough was Ejected out of his Free-hold without Tryal at Common Law. § 3. pag. 302. Answer to the Objection that a Mandate doth not Imply a prohibition § 4. pag. 304. In some Grants a reservation of power to dispense with Statutes pag. 305. What power the Emperors Edicts and Mandates have in Civil Law. pag. 305. 306. That a Mandate Implys a prohibition § 5. pag. 307. The Judgment of Civilians in this matter pag. 308. An epxress and Tacit Inhibition § 6. pag. 309. Dr. Staffords Dilemma Answered pag. 309. A parallel Case of Dr. Haddon in King Edward the 6ths time § 7. pag. 310. The Reason why the Author Inserted this no sooner pag. 310. An Abridgment of Dr. Haddons Case pag. 311. A fuller account of it to be in the Appendix pag. 312. The Sixth Objection in behalf of Dr. Fairfax § 8. pag. 312. The Answer to it pag. 313. Dr. Fairfax punished for dis-obedience and denying the Lords Commissioners Authority Ibid. Observation from the Civil Law upon it pag. 314. The Reason why the Kings Mandates ought not to be disputed pag. 315. The seventh Objection out of the Oxford Relation § 9. pag. 316. The Answer § 10. pag. 317. The Kings Prerogative a part of the Law
uniting yet they might abuse the Power to the detriment of the Common-weal therefore in the Digests we find the Law thus (d) Lege neque Societas i. f. quod cujuscum que Vniversitatis neque Societas neque Collegium neque hujusmodi Corpus passim omnibus habere conceditur nam legibus Senatus-consultis principalibus constitutionibus eares coercetur Agreeable to which I find in the Letter from King Edward to the Pope in behalf of the University that it enjoys (e) In Regia Benevolentia recumbit speciali Rot. Rom. 11. E. 2. M. 14. Intus it's Privileges by special Royal Benevolence By the Constitution of our Laws this Right as all Jurisdiction and Franchises are is Lodged in the Crown and thence only derived So (a) Rex habet omnia Jura in manu suâe quae ad Coronam ad Laitatem pertinent potestatem Regni Gubernaculum Habet etiam Justitiam Judicium quae sunt Jurisdictiones habet etiam ea quae ad pacem pertinent Ea quae dicuntur privilegia licet pertinent ad Coronam possunt ad privatas personas transferri sed de gratia ipsius Regis speciali Bracton upon the Question quis concedere potest libertates quibus qualiter referuntur thus resolves it The King saith he hath all the Rights in his own Hands which appertain to the Crown and his Lay-Power and the Government of the Kingdom He hath also Justice and Judgment which are Jurisdictions and those things which appeartain to Peace He further observes that those things which are called Privileges tho' they appertain to the Crown may be transferred to private persons but of the special Grace only of the King. ☞ All the Law Books Unanimously agree that none can make Corporations but the (b) 49 E. 3.4.49 Ass 8. King and such Power cannot be prescribed for it inherent in the Crown Therefore Sir Edward (c) Co. 10. Rep. f. 33. b. Coke calls them Creatures of the Crown The Nature of some (d) Atturny Generals Argument for the Quo Warranto Ms. p. 9. Corporations is to be Constituted by the King alone as the Dean and Chapters Majors and Commonality some have been by the Popes alone and some mixt by the King for the Temporal Possession by the Pope for their Spirituality However the King is still the Donor Fountain and Spring from whence these and all other Liberties flow §. 3. Things requisite to a Corporation My (c) Suttons Hosp fol. 29. Lord Coke saith there are Four things that are of the Essence of a Corporation First a Legal Authority which he saith is Four ways First By Common Law as by the King alone which therefore is said to be by Common Law as the most known and regular way Secondly By Authority of Parliament Thirdly by the Kings Charter Fourthly By prescription which in effect are all by the King for what is by Act of Parliament is certainly so and what is by prescription is presumed to have obtained a Grant from the Crown which in process of time hath been lost and so by the Tacit allowance and consent of Successive Kings acquires a Right His other Essential parts are in the Operative words of which there is no need to discourse here ☞ By the Statute of Merton (a) Id. p. 26. b. no Grant of Lands to Pious or Charitable uses are good without the Kings Licence For this purpose the Kings Grant is absolutly necessary for that it was solely in his Power to Grant and the Donor of the Lands without the King can do nothing to establish a perpetuity Without capacitating the Incorporating cannot be effected for the Inhabitants of a Village or City are single persons which are not in a Capacity to take any Lands in Succession the like is to be said of Liberties Privileges and Immunities but only to their Singular Heirs but such Inhabitants are in a Capacity to be Incorporated by the King and after such an Incorporation to have a Succession of Lands Tenements and Hereditaments §. 4. The end of Corporations ☞ The general intent and end of all Civil Incorporations allowed by the Policy of the Law (b) Atturny Generals Argument ut supra is in order to better Government subservient to the Oeconomy of the whole by such prescribed Rules as the Kings of England have been Graciously pleased to limit them by which as Emergences happened might be altered by the same Power that bestowed them ☞ Bishop Saunderson (a) Quum ex concessione principum idque ex gratia speciali corporentur istiâ—s modi Societates nec aliis gaudeant juribus privilegiis vel potestate extra ea quae vel ex diuturna temporis praescriptione vel ex chartis diplomatibusque Regiis constare potest fuisse sibi concessa De obligatione Conscientiae praelect 7. sect 28. according to his Judicious way of expressing matters saith the Sodalities Bodies Corporate or Colleges are as Members of the great Body the Kingdom or Common-wealth and are contained in it as the Inferior Orbs of the Heavens are in the Superior That these are Incorporated by the Grants of Princes of their special Grace and enjoy not any Rights Privileges or Powers besides those which by prescription of long time or from Royal Charters it appears they have had Granted to them Therefore whatever Power they have of making any Laws for their Government it is derivative and no way Primitive and is ultimately resolved into the Supreme Regal Power as it 's true Original Therefore such like Societies or their Magistrates cannot at their own Arbitrament constitue or exercise any Power in making Laws but according to the manner and measure of the faculty Indulged to them by the Prince ☞ Hence it is that whoever is the Founder of a College the King calls it upon all occasions Our College and the Members likewise in all Applications to the King say Your College for tho' the particular Founder give the Land yet as it is a College or Corporation the King is the Founder ☞ So it is (b) Patrick Case Trinit 18. Car. 2. Keble Rep. 2d St. fol. 65. vouched for Law that the King without the Ordinary may Erect Universities and this is not a Prerogative our Kings only enjoy but we find it frequently in the Grants of the Modern Roman Emperors and Kings §. 5. The Power of conferring Degrees in Universities conferred on Subjects Examples of the Emperors giving Power to Count Palatines to make Doctors in Divinity Law Physic and Philosophy which are the peculiar Degrees conferred by Universities quâ Vniversities by the Grants of Privilege from their respective Sovereigns may be found in Tho. (a) Thesi 22. c. Sagittarius cited by Mr. Selden ☞ So Rudolphus the second Emperor of Germany (b) Sacri Lateranensis Palatii Aulaeque nostrae Caesariae Imperialis Consistorii Comitu Doctores Licentiatos Baccalaureos in utreque Jure
thereunto but also be so far Lord over them that when he seeth cause he may abate or totally remit the Penalty Incurred by the breach of them and dispense with others for not observing of them at all yea generally Suspend the Execution of them c. §. 2. Why the Author Treats not largely on this subject But I foresee it will be alleged that what is urged thus in General and in Theory is to be applyed to the Constitution of the Government of England otherwise it reacheth not the point in Question concerning the Kings power of dispensing with College Statutes To which I Answer first That the Kings power in dispensing with Penal Laws in General having by Solemn Judgment in the Kings Bench been determined and several Treatises published to clear the point of Law and there being so lately a * Jus Coronae Treatise Writ by a Judicious person wherein the Kings power in that matter is Learnedly discussed I may be excused from treating more particularly of that § 3. Observations on the 25 H. 8. C. 21. I shall therefore only note a few observables from the Statute of the 25 of King H. 8. Chapter the 21. Entituled in Kebles Edition 1684. An Act concerning Peter-pence and Dispensations but Originally Entituled otherwise as may be seen in the * 1 2 Phil. M. c. 8. sect 10. Act of Repeal in Queen Maries time and the * 1 Eliz. c. 1. sect 8. Act of restoring it in Queen Elizabeths time to which I shall add the explication of another Act 8 Eliz. Cap. 1. and some few other remarks upon that Head. The Foundation of this Act is grounded upon an Hypothesis The Statute 25 H. 8. c. 21. is founded upon the usage of a dispensing power that a dispensing power is needful in Government and altho' it be the constant Opinion and Judgment of the Courts of Law and all Lawyers that the principal intendment of that Act was to Abolish the Popes power and Authority in England in granting Licences Dispensations Faculties c. Yet from this Act many particulars may be observed I must refer the Reader to the Act it self which will shew not only the allowed usage of a dispensing power by the Popes and Prelates in matters of Ecclesiastical Cognizance by sufferance as the Act Styles it of our Kings but that the Original Right of such dispensations was in the King and so continues It is then First to be noted from the Act The Pope excercised a dispensing power that the Pope claimed by Usurpation as it is there Styled and persuaded the Subjects that he had a power to dispense with all Human Laws yea and Customs of all Realms in all Causes which he called Spiritual But the same Act saith that such claim of the Pope was in Derogation of the Kings Imperial Crown and Authority Royal contrary to Right and Reason The power excercised by the sufferance of the King and in derogation of the Royal Authority Therefore in the close of this Section it is added that because it is now in these days present seen that the State Dignity Superiority Reputation and Authority of the said Imperial Crown of this Realm by the long sufferance of the said unreasonable and un-charitable usurpations and exactions practised in the times of the Kings most Noble Progenitors is much and sore decayed and diminished c. Therefore remedy is provided c. From hence I think with submission Nota. it must be owned that if the Pope usurped this power in derogation of the Authority Royal then that power must be owned to be originally in the King otherwise in the Construction of the Act it could be no Usurpation §. 4. The Ecclesiastical power originally in the King according to this Act. ☞ Besides it 's the general Opinion of the greatest Lawyers of England that according to the Constitution of our Laws all Ecclesiastical power and Authority in England is Originally in the King so derived from him or if otherwise it is adjudged Usurpation and encroachment It being an undeniable Maxim That no person hath power or Jurisdiction in England but the King or what is derived from him and this power of the King cannot be disposed away nor abolished but by express words in an Act of Parliament Yea so Sacred are the Prerogatives of the Crown that tho' in some Cases the Kings of England have by Act of Parliament departed with their Prerogatives So the Statutes of the 23 H. 6. about Sheriffs and 31 H. 6. about Justices of Assize are frequently dispensed with Coke 12 Rep. 14. Hoberts Reports Colt and Glovers Case p. 146. and yielded not to dispense with the contrary by a non-obstante yet such Acts have been judged void So my Lord Hobert upon this very Statute saith that he holds it clear that tho' this Statute says that all Dispensations c. shall be granted in manner and form following and not otherwise yet the King is not thereby restrained The Kings prerogative not restrained by Acts of Parliament on several Cases but his power remains full and perfect as before and he may still grant them as King for all Acts of Justice and Grace flow from him as 4 Eliz. Dyer 211. The Commission of Tryal of Pyracy upon the Statute of 28 H. 8. cap. 53. is good tho' the Chancellor do not nominate the Commissioners as that Statute appoints yet it is a new Law and Mich. 5. and 6 Eliz. Dyer 225. the Queen made Sheriffs without the Judges notwithstanding the Statute of 9 E. 2. and Mich. 13. and 14 Eliz. Dyer 303. The Office of Aulnage granted by the Queen without the Bill of the Treasurer is good with a non-obstante against the Statute 31 H. 6. cap. 5. For these Statutes and the like saith the Reverend Judge were made to put things in Ordinary Form and to ease that Sovereign of Labor but not to deprive him of Power He further adds that notwithstanding the excercise of the Popes Authority yet the Crown always kept a Possession of it's Natural power of Dispensations in Spiratualibus as 11 H. 4. so to retain Benefices with Bishoprics and 11 H. 7. to have double Benefices I might add to these to Reservation in the Statute 2 R. 1 Hen. 4. cap. 6. 2. c. 4. saving to the King his Regality to be found in the Parliament Roll in the Kings Confirmation of Liberties which Sir Ed. Coke 4. Instit 51. complain of for being un-printed as also of King Henry the 4th that he will by the Assent of the Lords Spiritual and Temporal aforesaid and at the request of the said Commons be Counselled by the Wise Men of his Council in things touching the Estate of him and of his Realm saving always his liberty that is his Prerogative for that is properly the King Liberty §. 5. Where to find Arguments for the dispensing power I shall not trouble the Reader with
itaque non tollit nec excludit solitas conditiones gives the reason why in such like Oaths Tacit Conditions are to be understood Because an Oath follows the nature of the Act upon which it falls for the Accessory follows the nature of the principal as it is a known Rule in Law Therefore if the Act have a Tacit Condition the Oath is likewise to be Judged to have the same and this is Confirmed because the Oath is not therefore added that the promise purpose or contract shall be otherways observed than as it is wont in it self to be understood But in that manner to be Interpreted as those things are which cannot be revoked if the obligation be to keep them or e contra Therefore such an Oath neither takes away nor excludes the Customary conditions that is such as are before mentioned and are always supposed to be implyed Thus far that Judicious Author §. 7. If it be objected that the General Oath Objection See p. 16. here p. 25. which the Fellows take at their Admission to observe the Statutes which had the Kings Tacit consent did oblige the Fellows to take that Oath before the Election and so to go to Election ☞ For Answer we may consider Answer that tho' an Oath in it self be lawful especially so long as the Prince or Superior forbids not the performance of what was Sworn to yet in the case of the Magdalenians the King had expresly commanded them to choose one he appointed and that Included a Prohibition for he that Commands me to Elect this Man forbids me to Elect another and this is agreeable to the Explication the Church of England gives of the Fifth Commandment He that Commands me to Honor Father and Mother forbids me to dis-honor them And Bishop Sanderson (a) Si Superior quamprimum rem rescierit Statim dissensum suum palam peremptorie subdito significaverit prohibueritque Id in quod Juratum est fieri cessare continuò obligationem Illam Juramenti Transitorii subditum vi obligationis Officii quae permanens est perpetua rencri contra quam Juraverat facere Sanderson de Jurament oblig praelect 7. sect 6. pag. 243. well observes that if a Superior as soon as he knows the matter doth presently openly and peremptorily signifie to the subject his dissent and forbids that to be done which is Sworn to Instantly that Transitory obligation of the Oath ceaseth and the subject by force of the obligation to his Office or Supremacy which is permanent and perpetual is obliged to do contrary to what he hath Sworn to And the same most Judicious Bishop is so far from allowing such subjects at least Fellows of Colleges to resist the Mandate of their Sovereign under pretence that they have Sworn to the contrary that he saith expresly that the subject ought not in those things in which he is subject to another Swear to do any thing without at least presuming his Superiors consent his words are Non debet Subditus in iis rebus in quibus alteri subest Jurare se facturum quicquam absque praesumpto saltem Superioris sui Consensu Hence in the Instance Bishop Sanderson brings of the Sons obligation to obey his Fathers Command tho' it hinder him from performing his own Oath he observes that the Son Swore to act with the Tacit consent of his Father which he had reason to suppose the thing being lawful in it self and yet the Oath is rescinded which directly Answers the Objection ☞ It is further urged Second Objection that the Fellows bind themselves by Oath neither to seek to obtain any Dispensation with any of their Statutes nor yet Admit of any directly or indirectly obtained which is the highest of Tyes that an Oath can bind to without a direful Imprecation which is annexed in some Statutes To this I Answer that such Oaths are ill imposed by Founders not so much because the obligation is in it self not to be dissolved but because it may perplex some scrupulous Consciences and may afford Umbrages to such as are unwilling to yield to their Superiors dispensation to insist more earnestly and tenaciously upon the obligation I rather believe such Clauses have been Inserted by Founders to prevent as much as in them lay the Members of the Societies to Innovate matters than that they could foresee that it was more obligatory by the addition of that Clause We may easily Judge that all Munificent Founders would contrive all the ways whereby their Gifts and the uses and applications of them might be perpetuated as we see in several persons settlements of their Estates whereby they endeavor to Entayl them to their Heirs past all possibility of Alienations yet by the Laws of the Land which are not favorable to such perpetuities we find dayly examples of docking the most Artificially contrived Entayls ☞ Now that any Founder in the time when the Roman Catholic Religion was Established here could think that such Clauses could be perpetually obliging I can see no reason when they could not but know that none of their Statutes or Constitutions had any force but as they were confirmed by their Sovereigns whether Civil or Ecclesiastical and in all such Cases tho' the present Sovereigns whether the King of England or the Pope did ratifie them yet this could bind neither of their Successors ☞ For as to the King it is a Rule in Common-Law that general words of an Act of Parliament where the King is not named cannot bind him as may be seen in the Authorities Cited in the (a) Cro. 3d. part Ascoughs case fol. 225 Magna Charta c. 11. Margent ☞ If therefore the Common-Law which seems in many particulars less to favor the Prerogative be so just to the King that he is Exempted from the force of an Act of Parliament in which he is not named surely he must be exempted from a College Statute in which he is not named Secondly If the King had been excepted by Name the exception had been Null for the Founder neither if Living would have Exempted the Society from the Kings Paramount Jurisdiction neither could being a subject if he would have done it as (b) Cujus i. e. Regis Jurisdictioni sodalitium Illud neque voluisse fundatorem neque subditus cum fuerit si vellet potuisse omnino constare Wood Antiq. Oxon lib. 1. fol. 403. Dr. Bayly urged to Mr. Prynn upon the Parliaments Visitation Anno 1647. ☞ Thirdly If it be further urged that the Founders Founded the Colleges and Endowed them on condition the King would allow the Society to be Governed by their Statutes which is but an unproved presumption as not appearing in any Charter I have met with yet if such conditions were to be found the Succeeding Kings at least are not obliged in point of strict Justice to observe such Orders or Decrees of their Predecessors because Par in Parem non habet potestatem aut
and in defence of the Doctrin of the Church of England As also to let all know how happy it had been if the Fellows had hearkned to his honest sober and faithful advice which was assented to by Dr. Aldworth Dr. Fairfax and Dr. Pudsey at their private Conference before proceeding to Election tho' they after changed their minds ☞ It hath been the practice in former times and according to the Canon Laws that when any Superior enjoyned any matter upon Inferiors which they judged to be prejudicial to their Rights It was their Duty rescribere to Write to the Prince or other Superior to shew him wherein by such Mandate their Rights were invaded or what other inconveniences might ensue and not to proceed forthwith to do that which was forbid especially not to proceed to Election as here they did when the King had after their Petition presented to him expressed himself that he would be obeyed In Duty and Obedience therefore they should have stayed their Election and represented their Case more particularly and it is most certain that the neglect of this and the contempt of the Kings Authority were the Original causes of all that hath befallen them but I shall leave this and proceed in the matters of Fact. §. 7. My Lord President to the Bishop of Winchester Whitehall April the 16th 1687. My Lord I Have received your Lordships Letter of the 8th Instant with an Address or Petition inclosed in it from St. Mary Magdalen College in Oxford which I laid before the King who had before granted his Mandate in behalf of Mr. Farmer to be Elected and Admitted President of that College and being since informed that notwithstanding the same they have made Choice of Mr. Hough His Majesty Commands me to acquaint your Lordship that his pleasure is you should not Admit Mr. Hough to be President till further Order from him Lord Bishop of Winchester I am MY LORD Your Lordships most humble Servant Sunderland P. This being sent to the Bishop he returned this following Answer the next Day My Honorable Lord THis Morning I received yours of the 16th Bishop of Winchesters Answer by the hands of Mr. Smith one of His Majesties Messengers In which your Lordship signifies to me His Majesties pleasure not to Admit Mr. Hough to be President of St. Mary Magdalen College Oxon until further Order from him But Mr. Hough being Yesterday Morning presented to me by some of the Fellows of the College as Statutably Elected I did according to the Trust reposed in me by the Founder after he had taken the Oath enjoyned by the Statute Admit him Presdent and am certain when the Statutes of the College are laid before His Majesty he will find that I have not violated my Duty in performance of which I never was nor ever shall be remiss as I desire you to assure him from Farnham Castle April the 17th 1687. Your most humble Servant P. Winchester §. 8. By the Statutes there are five days allowed for the Bishop of Winchester's confirmation ☞ By this it appears how sedulous the new Elected President and the Fellows were to have the Election confirmed presuming that this being done the President would have a Legal Right and could not be removed but by course of Common Law But I hope to shew hereafter that the practice of the Kings of England and of the Visitors appointed either by the Kings or the Popes the latter of whose power our present Laws give his Majesty hath been to dispense with Statutes and to place and displace for disobedience Heads of Colleges and Fellows by the significaton of their Royal pleasure or to Impower Visitors by Commission to do the same and of this it cannot be conceived that the Members of the College could be Ignorant but that they rather were animated to lay hold of this opportunity to see if they could dispute the Kings Authority or which is of equal concern to many render the King's Actions disobliging whereby they might gain the point of raising iealousie and male-contentedness in peoples minds with which designs I will not charge all the Members of the Society But it is too apparent that those who underhand encourged them to persist in their opposition designed some such matter I now pass to their Application to his Grace the Duke of Ormond their Chancellor and the Representing their Case in the best dress they could and shall only note at present that these were like to have little effect since they were the justifyings of their actions upon such slender grounds as in the sequel will be made appear and carried no tokens of relenting or repentance for their by-past disobedience so that the King could not look upon them as any Acts of theirs that might induce him to a Clemency or Pardon where they would not own their failor of duty but were a denial of his Sovereign and Supreme Authority of dispensing and being obeyed contrary to the known Laws and practice of his Royal Predecssors as I shall make clear when I come to Answer their Objections and shew the obligation to their Oaths of owning the Kings Supremacy and the Sovereign Jurisdiction the King hath to alter and make null their Statutes that any ways Impugn his Prerogative over such Societies and Corporations which owe their Foundation and subsistence to the Royal pleasure and may be proceeded against when the King pleaseth by a more sever method of Quo Warrante whereby they may be totally suppressed Whereas the King in great Clemency proceeded only by way of Visitation which is a most undoubted Prerogative of the King that must ever be owned by those who question the extent of the Ecclesiastical Commission I now proceed to the Address the Society made to his Grace the Duke of Ormond as followeth §. 9. The President and Fellows of St. Mary Magdalens College Oxon to the Duke of Ormond then Chancellor May it please your Grace VVE the President and Fellows of St. Mary Magdalens College in Oxford sensible of the Honor and Benefit we enjoy under your Graces Patronage and how much it Imports us to have recourse to your Advice in all those difficulties wherewith we are prest having as we fear displeased His Majesty in our late Election of a President do humbly beg leave to represent to your Grace a true State of our Case and hope you will please to Inform the King how uncapable we were of obeying his Commands His Majesty was pleased upon the Death of Dr. Henry Clark President of this College to Command us by his Letter to Elect and Admit Mr. Anthony Farmer into that Office a person utterly uncapable of it by our Statutes as we are ready to make appear in many particulars And since we have all taken a positive Oath of obedience to them and that Exclusive of all Dispensations whatsoever We humbly conceive we could not obey that Command in favor of Mr. Farmer unless he had brought those Qualifications with him
prove like the Sin of Witch-craft but the latter will be better accepted than Sacrifice because in that you only offer up a beast to God but in this you Sacrifice your Passions you slay them and offer them up to Gods service Remember Error seldom goes in Company with Obedience and that none are so likely to find the way to Eternal happiness in the end as they who follow the Conduct of their Superiors from the beginning not with Eye service as Men pleasers but in singleness of Heart Fearing God and the King and whatsoever you do do it heartily as unto the Lord and not unto us Men And the Lord give you understanding in all things The Speech being ended the Lords adjourned till the Afternoon to the Common Room of the College FRIDAY Afternoon AT which time the Court being sat Dr. Hough in behalf of himself and the Fellows demanded a Copy of their Lordships Commission which was denyed him and the Court ordered to proceed and then admonished the Fellows to produce the Registery of the College Affairs and also to give an account of what Leases had been Lett for two Years last past together with the Benefactions given to the College and likewise ordered them to bring in the Buttry Book to Morrow Morning to which time they adjourned §. 3. SATVRDAY Morning October 22d 1687. DR Hough was called in and it appearing to their Lordships that his Election to the Presidents place was made null and void by a Sentence given by the Lords Commissioners for Ecclesiastical Causes and that he the said Dr. Hough had legal notice of the same but notwithstanding the said Sentence he had and did still refuse to submit thereunto The Court ordered him forthwith peaceably to depart the College and deliver up the Keys of the Lodgings and struck his Name out of the Buttry-Book and having so done declared to the Fellows that he was Actually Expelled and admonished them not to own him as their President Then the Court askt the Fellows whether they would amdit the Bishop of Oxon their President according to the Kings Mandate but all of them refused except Mr. Charnock but said they would not oppose it Then adjourned till the Afternoon SATVRDAY Afternoon DR Hough came into the Court and made his protestation against the proceedings and appealed from the same as Illegal Unjust and Null as he asserts Whereupon there was a Tumultuous Hum or Acclamation made by the by-standers which gave the Court some disturbance in so much that they thought fit to bind over Dr. Hough in 1000 l. and two Sureties in 500 l. each to appear at the Kings Bench and again admonished Dr. Hough to quit the College which he accordingly did that Night Then adjourned to Tuesday Morning Thus far out of the Register But because the Paper sent with the Letter to the Earl of Sunderland is more full in several particulars I shall Insert it after the following Letter together with such Additions as the Bishop of Chesters own Journals afford me §. 4. The Lords Commissioners sent the Following Letter to my Lord President Dated 22d October 1687. MY LORD BY His Majesties Messenger See the Answer to this after the Programma §. 6. we have sent your Lordship a particular account of our proceedings here to which we humbly refer in which your Lordship will perceive the Temper of that Society My Lord we hope your Lordship will easily believe that we are not unwilling to do any thing which may vindicate the Kings Honor and Authority but we humbly desire to be well advised by your Lordship in the Methods of it for we are now a little at a stop by reason of the Bishop of Oxon's not appearing in Person having no Power as we humbly conceive either by the Kings Mandate or by our Commission to Admit him by Proxy His Majesties Letter Mandatory for the same being directed to the College who all but two or three do as yet refuse it We therefore humbly Pray your Lordship to dispatch His Majesties Mandate directed to Us to Admit the Bishop or his Proxy or that you would please to give us some other Directions such as your Lordship in your Great Wisdom shall Judge more expedient We do crave leave also to Intimate to your Lordship that it is our humble Opinion that We cannot proceed any further then Expulsion against Dr. Hough which your Lordship will find already done according to the Power we have by the Commission and we humbly Pray your Lordships Pardon and further Commands which shall be readily obeyed by His Majesties most Dutiful Subjects and Your Lordships most humble Servants Tho. Cestriensis R. Wright Tho. Jenner My Lord since the Writing of this Letter We have reason to believe we shall have an entire submission from the College on Tuesday next for Dr. Hough since his Expulsion hath left the College and taken Lodgings in the Town §. 4. The account sent by the Lords Commissioners of their proceedings till Saturday night Octob. 22. Oxford the 22d Octob. 1687. HIs Majesties Commissioners for Visiting the College of St. Mary Magdalen in Oxford Note that what is conteined betwixt these is what is in the Bishop of Chesters and Dr. Thâ—mas Smiâ—hs Diary and not in the Account sent by the Lords Commissioners Friday Afternoon being Yesterday viz. Thursday the 20th of October come at the time appointed viz. Friday Octob. 21. for the President Fellows and Schollars thereof to appear their Lordships took upon them the Execution thereof My Lord Bishop of Chester made a Speech to them upon the occasion of the Visitation and after an adjournment of the same to the Afternoon there then appeared Dr. Hough and several of the Fellows and most of the Schollars and Officers of the College Dr. Hough objected to the shortness of the time from the notice of the Visitation and prayed a Copy of the Commission and time to consider of it which was over ruled by the Court saying that if he and they could take any advantage from the Commission he hoped the King and their Lordships did not intend to bar them of it And in his own Name and the greatest part of the Fellows said that he submitted to the Visitation so far as was consistent with the Laws of the Land and the Statutes of the College and no further and that he could suffer no alteration of the Statutes neither by the King nor any other Person for which he had taken an Oath from which he could not swerve and thereupon Quoted the Statutes confirmed by King Henry the Sixth and their Oath that they should submit to no Alteration made by any Authority The Oxford Relation saith that my Lord Chief Justice answered you cannot Imagin that we Act contrary to the Laws of the Land and as to the Statutes the King has dispensed with them Do you think we come here to Act against Law Then the Sentence given the 22d Day of June 1687.
Against Dr. Hough's Election and for the removing him from the Office of President of the College was Read and he was asked whether he knew of it being given against him He replyed he had notice of it but said he was no party to it and so was advised it did not any wise concern him The Sentence likewise against Dr. Aldworth and Dr. Fairfax for suspending them was Read and the Petition of Dr. Aldworth Dr. Fairfax and others delivered to my Lord President on the Tenth of April last being about Five Days before their Election of Dr. Hough was also Read to them to which was replyed that they had no * It was Answer sufficient to have obliged them not to have proceeded to Election till they had particularly made out their Information against Mr. Farmer Answer from my Lord President but that the King expected to be obeyed and they receiving no other Mandate than that for Admitting Mr. Farmer they proceeded to Elect Mr. Hough Then after their Lordships orders to them to bring in some Books viz. The Register and other Papers relating to the Revenues and Government of their College which the Doctor promised they should have next Morning they adjourned to Eight of the Clock this Morning SATVRDAY Octob. 22d VVHo being met and such Books brought in Dr. Hough being called in The words of the Account are their Lordships proceeded and proposed these two Questions to Dr. Hough whether he was willing c. the Bishop of Chester told him Doctor here is a Sentence under Seal before us of the Kings Commissioners for Visiting the Universities by which the Election to the Presidentship of Magdalen College is declared Null and Void which you heard Yesterday Read and of which you Confess your self to have Legal notice before by being fixed upon the Doors This Sentence and the Authority by which it was passed you have contemned and in contempt thereof have kept Possession of the Lodgings and the Office of President to this day to the great contempt and dishonor of the King and his Authority Are you yet willing upon better and second thoughts to submit to the Sentence passed by their Lordships against you or not To which he Answered that the Decree of the Commissioners is a perfect Nullity from beginning to End as to what relates to him he having never been Cited nor ever appeared before them either in his Person or Proxy Besides his Cause it self was never before them Their Lordships never enquiring or asking one question concerning the Legality or Statutableness of the Election These Arguments will particularly be answered for which reason he is informed that That Decree was of no validity against him according to the Methods of the Civil Laws but if it had he was possessed of a Freehold according to the Laws of England and Statutes of the Society having been Elected as Unanimously and with as much Formality as any of his Predecessors Presidents of the said College and afterwards Admitted by the Bishop of Winchester their Visitor as the Statutes of the College required and therefore he could not submit to that Sentence because he thought he could not be deprived of his Freehold but by Course of Law in Westminster-Hall or by being some way Incapacitated according to the Founders Statutes which are Confirmed by King James the First Second Question put to Dr. Hough was whether he would deliver up the Keys and Lodgings as by a Clause in the Statutes of Admission he is tyed to do to the use of the President who hath the Kings Letters Mandatory to be Admitted into that Office. To which he Answered that there is not neither can there be any President whilst he Lives and obeys the Laws of the Land and the Statutes of the place and therefore doth not think it reasonable to give up his Right nor the Keys and his Lodgings now demanded of him He takes the Bishop of Winchester to be his Ordinary Visitor and yet he would deny him the Keys he takes the King to be his Extraordinary Visitor as he believes but it had been controverted whether the King had Power to Visit as in Coveny's Case 4 o. Eliz. and looked upon their Lordships Commanding it to be a requiring him to deliver up his Office. He said he had appeared before their Lordships as Judges and that he now Addressed himself to them as Men of Honor and Gentlemen and did beseech them to represent him as Dutiful to His Majesty to the last degree as he always will be where his Conscience permits to the last Moment of his Life and when he is Dispossest here he hopes they will intercede that he may no longer lie under His Majesties displeasure or be frowned upon by his Prince which would be the greatest affliction that could befall him in this World. Then their Lordships admonish'd him three times to depart peaceably from the Presidents Lodgings and to Act no more as President or pretended President of the College in Contempt of the King and his Authority which he refusing to do Mr. Lee Proctor to the Lords accused his Contumacy and prayed the Judgment of the Court The words of the Account are then the Lords proceeded to give Judgment against him viz. That he forth with c. which was thus pronounced The Lords Commissioners for Ecclesiastical Causes and for Visiting the Universities have Decreed the Presidents place of this College to be Null and Void Therefore we by the Authority to us committed do Order and Command you Dr. Hough forthwith to quit all pretensions to the said Office upon which they Ordered his Name to be struck out of the Buttry-Book which was accordingly done and admonished the Fellows and other Members of the Society no longer to own him as their President Then the Kings Mandate for Admitting the Bishop of Oxford was Read See for this sect 2. § 3. and they were then Ordered to withdraw and being soon after called in again the Question was put to the Fellows singly one by one whether they would Admit the Bishop of Oxford their President according to the Kings Mandate Dr. Pudsey said he would submit to the King and would be by but could not Act being Burser Dr. Thomas Smith replyed From Dr. Smiths Diary See his other Answer §. 10. My Lords Commissioners if it be the Kings pleasure to make the Bishop of Oxford President of this College and your Lordships Acting by that Authority have declared and made him such I do because I must submit I make no opposition Mr. Charnock said he was ready to obey the Kings Mandate all the rest of the Fellows refused to receive him as President as being against their Statutes and Oaths and that which would make them guilty of Perjury All whose Verbal Answers were taken in Writing by the Lords Commissioners and their Lordships after some time said if you think we have not taken the Answer right put them in Writing
if they would Admit and Instal the Bishop of Oxford made President by the King and declared such by their Lordships Dr. Pudsey being first asked the Question refused to Act but seemed to yield to be present Dr. Thomas Smith being askt the same Question by the Bishop of Chester Read the following Answer My Lords Commissioners I Answer with all Humble and Dutiful submission to the Kings Majesties Authority and your Lordships Visitatorial Power That it is not in my Power to do this Your Lordships who have deprived Dr. Hough and have declared the Bishop of Oxford President may Instal him This Method being altogether new and extraordinary I cannot be satisfied how I can or ought to be the Executioner of your Lordships Sentence Besides I beg leave to propose a short Case to your Lordships whether or no I can Instal or give Possession without being Impowered and Authorized by a Rule out of the High Court of Chancery or Kings Bench for my Security if there were nothing of Conscience in the Case To this the Lord Chief Justice replyed to this purpose that as they were His Majesties Commissioners for this Visitation they had the Kings Power of Chancery and Common Law. Then the Lords adjourned to the Chappel * The words of the Register are and forthwith admitted the Bishop of Oxon Presi ent by his said Procurator from thence they adjourned to the Presidents Lodgings and finding the Door lockt demanded the Keys but they being not to be sound they ordered the Door to be broken open which was accordingly done and the Lords went in and viewed the said Lodgings having so done adjourned to the Common Room and Entred the Bishops Name as President in the Buttry-Book where the Bishop of Chester put Mr. Wiggins into the Presidents Seat where he took the Oaths which the Statutes enjoyn to the President at his Admission and the Oath of Allegiance and Supremacy the latter of which the Bishop of Chester Ordered him to take upon his Knees which he did accordingly then their Lordships Conducted him to the Door of the Presidents Lodgings where knocking Thrice and the Doors not being opened they returned to the Common Room and Commanded Mr. Atterbury to fetch a Smith to knock open the Door which was done accordingly their Lordships being present all the while and none of the Fellows but Mr. Charnock assisting or being as much as present at either of the performances §. 11. Then their Lordships being returned to the Common Room Oxford Relation pa. 30. they Entred the Bishops Name into the Buttry-Book Dr. Fairfax saith the Oxford Relation desired leave at leisure to speak and being permitted he told their Lordships that they had been doing that which he by no means could consent to The Bishop of Chester told him he was big to be delivered of his own Destruction and asked him if he would submit to the Bishop of Oxon Installed President by Vertue of the Kings Mandate to which the Doctor Answered he would not nor could not because they had a Statutable and Legal President already Register And the Lords having ask'd the Fellows if they would now submit to the Bishop of Oxon as their President they desired time and their Lordships gave them till the Afternoon to consider of it and the Court ordered them to give in an Account of what Gifts or Provisions were made by the Statutes for poor Travellors c. to Morrow Morning Then the Lords demanded of them if they had Elected or Admitted any Members since the Kings Inhibition to which they reply'd that they had Admitted none but Mr. Holden who was Fellow Elect before and his Year of Probationship Expired and if he had not then been Admitted he must have stood Expelled by their Statutes Then adjourned till two in the Afternoon §. 12. TVESDAY Afternoon THe Fellows being called in Register the Question was again put to them whether they would submit to the Bishop of Oxon as their President to which they gave in an Answer in Writing as followeth VVHereas His Majesty has been pleased by His Royal Authority The submission of the Fellows to cause the Right Reverend Father in God Samuel Lord Bishop of Oxon to be Installed President of this College we whose Names are hereunto Subscribed do submit as far as is Lawful and agreeable to the Statutes of the said College This Clause was Equivocal Alex. Pudsey Tho. Bayley Tho. Stafford Charles Hawley Rob. Almont Mainwaring Hammond John Rogers Hen. Dobson Ja. Bayley Jo. Davys Fran. Bagshaw Joseph Harwar Geo. Hunt. Tho. Bateman Willi. Craddock Jo. Gilman Geo. Fulham Hen. Holden Steph. Weelks Charles Penyston Dr. John Smith gave in a Paper Writ and Signed by himself in the same words Dr. Thomas Smith gave in his Paper of submission as followeth in § 14. The Demys subscribed a Paper in the same Form whose Names are Tho. Holt Senior Samuel Cripps Sam. Jenifar Rich. Adams Rob. Standard Rich. Vessey Charles Goreing John Brabourn Geo. Stonehouse Lawrence Hyde Geo. Woodward Charles Alleyn Willi. Fulham Rich. Watkins Dan. Stacy Willi. Sherwin Jo. Renton Maximilian Bush Ben. Gardiner Tho. Welles Willi. Bayley Tho. Higgains Jo. Cross Tho. Hanson Hen. Levet Harington Bagshaw Benjamin Mander The Chaplains subscribed the like whose Names were Tho. Mander Hen. Holyoake Tho. Brown. Fran. Haslewood The Choristers subscribed the like whose Names were Sam. Broadhurst Charles Wotton Tho. Price John Bowyer Tho. Turner John Shutleworth Edward Slack Willi. Inns. Miles Stanton Richard Wood. Rob. Wordsworth Joseph Stubbs The Clerks subscribed the like submission whose Names are Stephen Nicols Charles Morgan John Smith Willi. Ledford Willi. Harris Tho. Ryley Jo. Russel Tho. Williams The under Porter of the College would give in no Paper of submission The Oxford Relation saith that to the submission Oxford Relation the Clause was added and no ways prejudicial to the Right of Dr. Hough Page 31. In the Original Paper I found it scored out and as the Relation saith it was yielded to by the subscribers because the Lord Chief Justice and Barron Jenner as Judges declared that it was insignificant since nothing they should do could Invalidate Dr. Hough's Title but lest them still at liberty to be Witnesses for him or any other way serviceable to him in the Recovery of his Right upon which assurance the Society * If this be as related it shews the great condescention of the Lords Commissioners to have won them to obedience was prevailed with to leave it out §. 13. The Lords askt Dr. Fairfax if he owned their Jurisdiction Out of the Register Octo. 25th 1687. to which he reply'd (a) His words were under Correction I do not that he did not then he was askt if he would submit to the Bishop of Oxon as President to which he refused to do (b) His words were I will not nor cannot because he is not my Legal President And the Sentence was
the Regal only and that the Regal privileges should be sent to the King but the Episcopal and Papal should be kept but my Author thinks the last were also sent After this when any office in the University was void the King appointed the Successors so that it is found that even one of the Bedles was so placed This Instance doth sufficiently manifest the Kings absolute power over the Universities in taking into his hands at his pleasure all or any part of their privileges and restoring them when he thinks fit as he did these Anno 1541. 33 H. 8. The King (a) F. F. fol. 107.6 appointed Rules about the Election of the Proctors and ordered several other things relating to the better Governing of the University Anno 1543.35 H. 8. The King restores their privileges conditionally The King restored the Liberties to the University which he had retained from the Year 1522. yet so as the Vice-Chancellor Tresham entred into a Recognizance of 500 l. that the University should exercise none of the privileges granted Anno 1523. by the means of Cardinal Wolsey Thus I have given an Abridgment of what the Laborious Mr. Wood hath related concerning the Kings or Popes Grants of privileges to the University or what I have met with other where relating to this business and shall now proceed in my designed Method referring the Reader for later Charters to the Arcives of the University and the Act of Parliament for Incorporating both Oxford and Cambridge CHAP. IV. Concerning the Visitations of the Universities and particularly of that of Oxford SECT I. Concerning the Kings Supremacy and Power in Ecclesiastical Causes and Visitations §. 1. First what Authority the Kings of England used before the Reformation IT cannot be expected that I should discuss the Controversie here how far the Popes power was exercised in England in matters Ecclesiastical or in things to be done in Ordine ad Spiritualia The Curious may have recourse to the Learned Marca de Regno Sacerdotio the Concordata the Regalia of France and Sir Roger Twisdens Historical Vindication if he would be satisfied in the bundaries of the Ecclesiastical and Secular power ☞ It will be sufficient for my purpose to shew first that long before the Reformation several Kings of England permitted no Canons or Constitutions of the Church or Breves and Bulls of the Apostolic See to be executed here without their Allowance and that in several particulars wherein the Pope in other places by the Canons or the Plenitudo potestatis exercised a special Jurisdiction either some of our Ancientest Kings did the same or if they apprehended any diminution of their Crown or Dignity to attend their exercise by any power not derived from their selves they prohibited them ☞ And Secondly Secondly What power they have exercised since the Reformation That since the Supremacy hath been Established by Acts of Parliament in the Crown The Kings of England may according to the Laws in force not only exercise all the powers they could as Sovereign Princes but likewise whatever the Pope de Jure if not de facto could or did do in the outward Regiment of Ecclesiastical matters and consequently whatever was done in Visitations by the Authority of the Popes Metrpolitans or Dioecesan Bishops may now be done by the Kings of England as Supreme Ordinary §. 2. Before I enter upon this Subject I desire it may be noted These Instances are produced to Induce the Subjects obedience to the King whose Authority ought to be well considered that I bring not the Instances to induce a belief that the Popes according to the Canons of the Church did not oppose some of the practices of the Kings I mention But to shew how Incongruously the Fellows of St. Mary Magdalen College acted who knowing these things and that later Laws had devolved upon the King even the power of the Pope exercised here inforo externo should dispute the Kings Authority in a matter so manifestly appertaining to his Royal Dignity ☞ For Brevities sake I pass the Saxon times King William the 1st for the sure Establishing his Conquest is noted by Eadmerus (a) Histor novorum lib. 1. fol. 6. to which he adds de hujusmodi personis Episcopes Abbates alies principes per totam tenam Justituit de quibus Indignum Judicaretur si per omnia suis legibus non obedirent Idem to have Introduced the Norman usages of his Ancestors tho' he calls them new here Among which he reckons that none in his Dominions should own the Pope but by his Command nor receive his Letters unless shewed first to him and if the Arch-Bishop of Canterbury called and praesided in a General Council of the Bishops he allowed nothing to be appointed or forbid unless they were accommodated to his Will and were first ordained by him nor suffered any of his Barons or Officers to undergo any Ecclesiastical Censure but by his precepts So that I think it not so strange What King William Rufus did Upon the Shism none more fit then the King to resolve whom to adhere to that during the Schism his Son William Rufus claimed as other Princes did a Right to declare to which Pope he would adhere some consenting to Pope Vrban others to Clement Therefore the King demanded of Anselm from which of those Popes he would receive his Pall and the Arch-Bishop Answered him he would receive it from Pope Vrban But the King (a) Rex dixit illum prō Apostelico nondum accepisse nec suae vel paternae Consuetudinis eatenus extitisse ut praeter suam licentiam aut Electionem Aliquis in Regno Angliae Papam nominaret quicunque sibi hujus dignitatis Potestatem vellît praeripere Unum foret ac si coronam suam sibi conaretur Auferre Eadm fol. 25.47 told him that he had not yet received him for Pope nor had it been his or his Fathers Custom hitherto that any should be received as Pope in England without his Licence and Election and whoever would take from him this Power of his Dignity should be esteemed by him as one that endeavored to take from him his Crown And when Anselm Answered that he would not in any thing depart from obedience and subjection to Pope Vrban The King in great wrath protested (b) Nequaquam fidem quam sibi debebat simul Apostolicae sedis obedientiam contra suam voluntatem posse servari fol. 26. N. 1. None to go to Rome but with the Kings leave that the Arch-Bishop could not keep alike or together the Faith which he ought to the King and the obedience to the Apostolic See contrary to the Kings Will. When in the same Kings Reign the Arch-Bishop was sollicitous to have leave to go to Rome and Visit the Successor of St. Peter for the being better instructed in the Government of the Church He received Answer (c) Sed si Iverit pro certo noverit
and several others were Expelled as had been done in New-College And the Society of Magdalen College were so averse from the Roman Catholic Religion that not only they got neither Altar or Holy Vestments but none of the Fellows came to Mass and the very Clerks and Choristers would not perform their Offices so that the Visitors were forced to have all Holy Offices performed by their own Priests Ibid. fol. 13. b. they punished the Juniors that refused Punishments inflicted by the Visitors either with striking them out of Commons or Scourging them and one Aldworth Bachellor of Art for Contumelious Usage of Priests and coming in unseasonably to the Mass of the Exequies of King Henry the Sixth was Commanded that every Day he should be at Mass and kneeling at the South Pillar in the middle of the Church should perform his Prayers to the Example of others The same Commissioners found the President of Corpus Christi College Robert Morwent and the Senior Fellow Henry Walsh very observant Id. fol. 276. a. who brought to light the Holy Vestments Cushions Silver Vessels Candlestics and other Ornaments which they had hid in King Edward the Sixth's time and excepting John Juel after Bishop I find none left that College but from the other two besides the Fellows Ejected in Edward the Sixth's time about Eighteen or Twenty this Year and the next were removed §. 2. Cardinal Pools Visitation Anno 1556. Id. fol. 278. b. 3 4 Ph. Mar. Cardinal Pool appointed and entire Visitation of the University of Oxford and the Visitors were James Brooks Bishop of Gloucester Nicholas Ormanet of Padua in good esteem with Julius the Third Pix M. M. n. 22. and Dator to him or Marcellus the Second Henry Cole Doctor of Laws Provost of Eaton Robert Morwent Doctor in Divinity President of Corpus Christi College and Walter Wright Arch Deacon of Oxford These proceeded upon Thirty Two Questions Two Questions proposed by the Visitors First whether their Statutes were observed two of which were the most Material First Whether the Foundations Statutes and Laudable Customs of the University and of every College and Hall were observed by all and singular that were concerned and if it were answered Negatively they were required specially to express which were not observed and for what cause The Second was Second whether after the Reformation any things were used contrary to the Canons c. whether in the time of the Schism any thing was appointed or brought into use which was against the Ancient Canons or Ancient Foundations Statutes Privileges and Customs and to this if they Answered Affirmatively they were to express particularly what they were and for what cause §. 3. The Cardinal appoints Statutes The Visitors following the Example of those that Visited in King Edward the Sixths Reign purged out of all public Libraries all Books which maintained the Protestant Doctrin and those in private Libraries they burnt and either Punished or Expelled the Possessors In E. p. 38. They certified the Cardinal especially of the Defects of the University Statutes and he being Chancellor instead of Mason that laid down the Office sent a Book of Statutes to Mr. Raynolds the Vice-Chancellor and Commanded him that they might be in force till there being joyned with him some in every Faculty they might determin which were to be Antiquated and which to be retained which being so Revised had the Sanction of the Chancellor and Convocation which being strict against the Reformed drove many from the University Our Author Notes that the Lectures were less frequent in this Queens time as well as in King Edward the Sixths and fewer received Degrees which may be Imputed to the Changes made in Religion in their short Reigns but he saith the great care of the Magistrates of the Universities in this Queens Reign was to recover the profits of the Societies and to Repair their Buildings and the Schools In this Third and Fourth Year of King Philip and Queen Mary Cui Papa commisit Visitationem Reformationem Studiorum Generalium Cardinal Pool Visited the University of Cambridge as he was Legate to whom the Pope Committed the Visitation and Reformation of the Universities called General Studies This Visitation the Cardinal performed by Delegates and I find one Robert Brassy Master of Kings College urged that his House was wholly referved to the Discretion of the Bishop of Lincoln not only by the Kings Letters Patents Fox Acts and Monuments Vol. 3. p. 763.766 but also by the Grant of Confirmation of the Bishop of Rome himself under a Penalty if he should suffer any Stranger to Intermedle But the Commissioners Answered that they were fully Authorized for the Order of the matter by the Cardinal out of whose Jurisdiction no place nor person was Exempted So that tho' he persisted the next Day in his Allegation yet he and the Students submitted and were all Sworn and Examined to the Interrogatories propounded to them yet some of them Swore conditionally so as their Faith given to the College were not Impeached thereby Something like the Salvo of some Members of St. Mary Magdalen College that they would yield obedience saving the Right of Dr. Hough which was prudently denyed to be Admitted by the Lords Visitors I now pass to the Reign of Queen Elizabeth SECT III. The Visitations in Queen Elizabeths Reign §. 1. Queen Elizabeths Inhibition ANno 1559. Fol. 281. b. Queen Elizabeth intending to Visit the University of Oxford Writ to the Magistrates of the same not to Elect any heads of Houses Fellows Scholars c. forbidding them to proceed to the Election of any President Fellow or Scholar or of any Officer of the University and forbid all Alienations or Changes of Possessions and all other things to be done by the University except what was necessary for the Cultivating their Lands till the Visitation and this she did because some were so forward to begin a Restoring things to the condition they were in in King Edward the Sixth's time before her Order By which the Queens Authority and Circumspection are clearly discovered §. 2. Queen Elizabeth appoints Visitors After some few Months she appointed her Visitors Wood lib. 1. fol. 282. viz. Richard Cox Bishop of Ely John Williams Baron of Thame but he Died in October John Mason Kt. sometimes Fellow of All-Souls and several Years after Chancellor Thomas Benger Kt. William Kingsmyll Esq John Warner Custos of All-Souls College Walter Wright Doctor of Laws Arch-Deacon of Oxford John Watson Master of Arts Chancellor of St. Pauls London Robert Benger Esq c. to whom she Commands they should Act with all Humanity and abstain from all Roughness These Visitors coming to Oxford cast out of the Chappels of the Colleges and Parish Churches all things that related to Superstitious Worship as it was Styled that is the use of the Roman Worship recalled those that were banished or put out
Bishop Writes another Letter to the President Informing him of the Receipt of the Secretaries Letter and adds I continue in my former Opinion towards them to wit that I would be loth that they should be Expelled if by any means the Statutes may relieve them and therefore I require you Mr. President and the Fellows that you choose none now at the next Election into their Rooms Here Obedience is payed to the Secretaries Letter of advice but that their places may stand in the same Terms as they are till I may hear what by you and them may further be spoken and considered by the Statutes to the end the Statutes may be truly observed and in the mean season no Men be of that Calling wronged I have willed them to absent themselves from the next Election for good consideration and my hopes is that none of that Society will move any troubles in or about the Election for any matter now hanging in doubt and not decided for that will breed slander to the Calling and danger to themselves so he orders the President and others to attend him the First of August about the Controversie Dated at Losely the same day and Year with the former I have not found among these Papers what was the Issue of this great Controversie but from what doth appear make these following remarks §. 8. The first observable from these short Statutes Upon the whole matter we may observe First That these strict and Indispensable Statutes in former times as well as now and in all times to come have and will Create great troubles in this College unless there be in the Sovereign a Visitatorial as well as Dispensing Power to Terminate endless Quarrels when as in this Case both Parties shall insist upon Grammatical and Literal sense of the Statutes and tho' the Bishop of Winchestr hath a power of Interpretation yet he is so tyed up to the Literal and Grammatical sense that he must unavoidably be put some times to great streights to determin matters ☞ Secondly However Rigidly the Statutes seem to be worded yet none can Judge that the Kings Dispensing Power can be restrained since neither the Founder could so bind either his Sovereign or the Pope nor could any of those bind their Successors by any Charter or Grant from such inhaerent Prerogatives annexed to their very Offices as I shall make clear when I come to consider the Arguments used concerning the force of these Statutes ☞ Therefore Thirdly I rather Judge that the Founder as Entaylers of Estates upon their Posterity to preserve nodosam Aeternitatem often do had a great desire that his Statutes should be perpetually observed but he could not be supposed to have such an over weening Opinion of his own prudence but that some Cases might happen whereby the Kings of England might Judge it convenient to alter them so that I Reasonably think the utmost of his design and hopes might be that the Society it self should not have the power of altering them but to Exclude the Sovereign by their Prerogative or Acts of Parliament to Suspend alter or Abrogate them was as much beyond his power to enjoyn as it was vanity in him to presume would thereby be effected Fourthly In the Secretaries Letter we may observe that he threatens the Queens Authority if the Bishop of Winchester their Visitor would not do the Fellows Justice and in the Bishops Letter to the President he Suspends all those on both parties from giving their Voices in the next Election which must be a force upon the Statutes for Election if the Bishop could not Interpret their Statutes but in the Literal and Grammatical sense for it is very probable it might be known by a Literal and Grammatical sense whether they were Fellows or not and if they were Fellows the President was as much bound by Oath to Admit their Voices as they obliged to give them and if the persons excepted against were no Fellows then the Five were unlawfully Expelled and so ought to have had Voices so that whether way soever the matter were determined I cannot conceive the Statutes or Interpretation was Literally and Grammatically observed which is the great plea of the Magdalen Fellows §. 9. The Case of Mr. Wilson I shall now shew that in the Controversie about the matter of the Head of a single College the Queen appointed Commissioners in a summary way to determin it Anno 1577. 19 Regni The Case was this A Controversie arising betwixt William Wilson Bachellor of Divinity In the Paper Office Bundel Anno 1577. 19 Eliz. and Thomas Bishop of Lincoln for that the Bishop refused to Admit him as chosen Rector of Lincoln College in Oxford the said Wilson Appealed to Edmund Grindal Arch-Bishop of Canterbury whose Official Dr. Bartholomew Clerk Admonished and Commanded the Bishop to Admit him and that the Bishops Commissioners should not under the pain of contempt do any thing to the prejudice of the said Wilson and the Arch-Bishop committed the determining the matter to certain Commissioners And Thomas Underhil Proctor of the University protested against the Commissioners of the Arch Bishop as not competent Judges and that the Examination of the matter belonged to the Chancellor of the University Upon all which The Queen takes the Cause out of all their hands and Grants a Commission to the Bishop of London and Rochester Sir Christopher Wray Knight Chief Baron of the Exchequer Sir William Cordel Knight Master of the Rolls Thomas Wilson John Gibson and John Griffith Doctors of Law upon the Petition of Robert Earl of Leycester Chancellor the Doctors Masters and Scholars of the University of her certain knowledge and sole motion and of the plenitude of her power Commanding them Eight Seven Six Four Three or Two of them calling the Reverend Bishop of Lincoln and William Wilson in person and all others by Law to be called in General Summarily and in plain Form without noise and Form of Tryals only seeing to the truth of the thing and the Fact Summarie in plano sinc strepitu forma Judicii and attending solely the aequity by all Manners and Forms by which they can better and more efficaciously proceed in and upon the Truth of the Premisses according to the Privileges and Exemptions of the said University and in the Cause or Causes aforesaid with their Incidents Emerging Depending Annexed or Connexed whatsoever and to determin it with a due end removing all Appeals and Complaints Nullity and Petition whatsoever and notwithstanding any Statutes Canons and Customs on the contrary published or the Law Suit depending causing all that in the premisses they shall Ordain to be firmly observed by Lawful remedies of the Law. Dated the 23d of April the 19th of her Reign 1557. By this it is apparent that the Kings of England may Suspend the power of the Arch Bishop and of the Chancellor and Local Visitor and by Commission appoint others in a Summary way not according
appoint Visitors and the giving this power to the King is Cumlative not Privative as appears 2 H. 7.6 B. 5 Coke 5 B. and it leaves a concurrent Jurisdiction as is clear in F. N. B. 21 C. and 51 B. and 80. which is sufficient to Answer the Objection of the Fellows of St. Mary Magdalen College that the Bishop of Winton being their Local Visitor if he were satisfied to confirm the Election they could not be adjudged faulty by any other Visitors Here cap. 7. sect 3. of which point I shall have occasion to Treat hereafter ☞ But to proceed (a) Idem Patricks Case Hill. 18 19 Car. 2. Keebles Reports fol. 164. 2d part Thirdly By 10 H. 7.18 and the Bishop of Winchesters Case the King may exempt any Ecclesiastical Corporation from Ordinary Visitation and consequently hath the power in himself ☞ Fourthly If there be no (b) Idem fol. 166. Visitor properly appointed by the Founder the Chancellor and Vice-Chancellor have the Government of any College who are the proper Officers of that distinct Common-wealth of Learning and they are Established or fortified in that by the Kings Letters Patents Fifthly Altho' King James the First (c) Id. fol. 168. 3 Regni gave the Chancellor of Cambridge power of Visiting Queens College there yet the King remains Visitor as Heir to King H. 6. Husband to Queen Margaret that Founded it as the Judge there Asserts but if it had been a private Founder the King shall not lose the Right of Visitor as Sovereign since the Licence for the Foundation is from the King of what private Foundation soever so if there were no Visitor appointed by the Charter of a Founder the Chancellor is Visitor and Superior to him is the King. Sixthly In the same Case it is laid down (d) Idem fo 169. Statutum de as Argument that there is a Visitor Temporal as the Founder and Ecclesiastical to examin correct and amend things done contrary to the Rules of their Order which were declared by the Canons of the Church whereof the Bishops were the Natural Visitors and it is plain that (e) Asportatis Religiosorum 35 E. 1. Anno 1307. cap. 2. no Abbot Prior Master Warden or any other Religious person of whatsoever condition State or Religion he was being under the Kings power or Jurisdiction should depart into any other Country for Visitation or upon any other color by that means to carry the Goods of their Monasteries or Houses out of the Kingdom It is also in the Argument laid down as the Reason why the claim was made in the time of King Richard 2d and the Act 13 H. 4. for the Arch-Bishop of Canterburies Visitation of the University of Oxford that it was only about matters of Faith by Reason of Heresie and Lollardism But in matters of breach of Statutes c. the Founder or Visitor Communi Jure had the right and tho' the King granted the power which the Founder had yet he never intended to grant away his own Supreme Authority thereby or could grant the Right of his Successors ☞ These matters I have noted in this Case that the Ingenuous Reader may know that what I have discoursed of in this Section is agreeable to the sentiments of the Reverend Judges an expression of (a) Judge Windham Patricks Case fol. 166. ut supra one of whom I find in these words Both Jurisdictions Lay and Spiritual are derived from the King as the Sun and Moon take light of God. I lay no stress upon any Analogy of the comparison further than that it thereby appears how fundamental a matter it is in our Laws that all exercise of Authority Discipline Government and external Oeconomy in Church and State are derived from the King as having a Creative and annihilating power in several things that depend solely upon his good pleasure which if any thing do in his whole Dominions it is in the disposal of matters of the Universities as I now shall make more evident in the following Chapter CHAP. VI. Concerning the Kings of Englands dispensing with the Statutes of the Universities by their Mandates SECT I. Concerning the Kings dispensing Power in General and in several particulars to the beginning of King Charles the Seconds Reign §. 1. Concerning the Kings dispensing power in General HAving given a large account of the Kings power in Visiting the Universities and in Abrogating old and making new Statutes by his absolute and Supreme Authority To clear the point yet more I shall shew by particular Instances wherein our Kings have dispensed with the Statutes of the Universities or particular Colleges For there can be no greater Argument of the Right and Prerogative of any power than the un-interrupted excercise and usage of the same Before I descend to particulars it may be expected that I should discourse something of the Kings dispensing power in General but the point being determined by the Judges and the Arguments for it being so generally known I shall be the shorter upon this head ☞ This power of dispensing seems to be a most necessary Prerogative that no Sovereign whether Ecclesiastical or Civil can want whence we find in a (a) Omnibus autem à nobis dictis Imperatoris excipiatur fortuna Cui ipsas Deus Leges subjecit Legem animatam committens hominibus Novel 105. circa finem Constitution of Justinian de Consulibus a reservation of that power which he thus expresseth from all these things which have been said by us Let the Emperors State be excepted whereunto God hath subjected the very Laws themselves sending him as a living Law to Men as it is Translated from the Greek Agreeable to which is what Aeneas Sylvius (a) Convenit Imperatori Juris Rigorem Aequitatis fraeno Temperari cui soli Inter aequitatem jusque interpositam interpretationem licet incumbit Inspicere de Ortu Authoribus Imperii observes that it is the part of the Emperor or Sovereign to attemper the Rigor of Law with the Bridle of Equity to whom alone it is lawful and a duty to see to the Interpretation which lyeth Interspersed betwixt Law and Equity since no Law can sufficiently Answer the varieties and un-thought on plottings of Mans nature and in Tract of time Laws at first just and equitable become unprofitable and harsh and this moderating of Laws saith he is so annexed to the Prince that by no Decree of Man it can be taken from him This is also agreeable to the Opinion of the most Learned Primate (b) Ushers power of Princes pag. 76. of Ireland whose Judgment most of our Judicious Protestant Divines have ever held in high esteem His words are positive Laws as other works of Men are imperfect and not free from dis-commodities if the strict observation of them should be pursued in every particular Therefore he saith it is fit that the Supreme Governor should not himself only be exempted from subjection
the many Authorities might be brought to prove this more particularly pa. 129. to 137. here the curious may find several Collected by the Author of the Church of England's Behavior under a Roman Catholic King to which may be added the Act declaring the making and Consecrating of the Arch-Bishops and Bishops of this Realm to be good lawful and perfect The ground of which Statute was some Mens questioning whether the same were duly and orderly done according to Law or not The Act lays this for a Foundation Some Paragraphs in the Act 8 Eliz. c. 1. explained 26 H. 8.1 That King Henry the 8th was justly and rightly re-cognized and acknowledged to have the Supreme Power Jurisdiction Order Rule and Authority over all the Estate Ecclesiastical of the Realm and after Recites how the Kings and Queens of this Realm had full power and Authority by Letters Patents c. from time to time to Assign Name and Authorize such person or persons as they shall think meet and convenient to excercise use occupy and execute c. all manner of Jurisdictions Privileges Preheminences and Authorities in any wise touching or concerning Spiritual or Ecclesiastical power or Jurisdiction within this Realm c. Then follows That the Queen being lawfully Invested in the Imperial Crown of this Realm c. and having in her Majesties Order and disposition all the said Jurisdictions Powers and Authorities over the State Ecclesiastical and Temporal The Queens power in matters Ecclesiastical Supreme and absolute c. hath by her Supreme Authority at divers times sithence the beginning of her Reign caus'd divers and sundry grave and well Learned Men to be duly Elected Made and Consecrated Arch-Bishops and Bishops c. and after Fellows which is to be noted that in her Letters Patents for the same she hath not only used such words and Sentences as were accustomed to be used by King Henry the 8th and King Edw. the 6th in their Letters Patents made for such Causes but also hath used and put into her Letters Patents divers other general words and Sentences whereby her Highness by her Supreme Power and Authority hath dispensed with all Causes or doubts of any Imperfection or dis-ability that can or may in any wise be objected against the same c. so that to all those that will well consider of the effect and true intent of the said Laws and Statutes and the Supreme and absolute Authority of the Queens Highness and which she by her Majesties said Letters Patents hath used and put in Ure c. it is and may be very evident and apparent that no cause of simple ambiguity or doubt can or may justly be objected From hence it is easie to infer Considerable Inferences resulting from this Statute that there is in the Crown such a Supreme and absolute power in Ecclesiastical matters as the King may dispense with Acts of Parliament even in such a concern as Consecration Confirmation or Investing of any person c. Elected to the Office or Dignity of any Arch-Bishop or Bishop within this Realm for if there had been no variation by the Queens Letters Patents from the Form and Methods in the Acts of King * 25 H. 8. c. 20.5 6 E. 6. c. 16. sect 3. u. 4. Hen. the 8th or Edw. the 6th or that of Queen Elizabeth 1 o. Cap. 2. there had been no need of Inserting general words or dispensations in the Queens Letters Patents This Note Answers all that can be alleged concerning Mr. Farmers Incapacity Hence may be noted if the Queen could by her Supreme power and Authority thus dispense with dis-ability in Bishops much more may the King with dis-abilities occasioned by College Statutes which at pleasure he can alter and abolish But to return to the 25th of H. 8. Observations upon this Statute by Judge Hoberts Reports fol. 156. The power granted to the Arch-Bishop by the Act is in Ordinary matters such as usually the Pope or Prelates of the Realm dispensed with and in un-wonted Cases also which it seems by the Letter of the Act to be of vast extent so that my Lord Hobert saith that tho' it seems to give power over all Dispensations granted from Rome wonted and un-wonted and all dispensations generally Yet it must have construction such as were allowable and allowed by the Laws and Practice of this Realm for else it should make our Yoke heavier than before Yet I cannot conceive but the power may be extended further than the ordinary power the Popes or Prelates practised See the Statute sect 17.18 where greater power seems to be implyed worthy consideration otherwise there needed not to have been such provision made that in un-wonted Cases the King or Council should allow them and if the Arch-Bishop refused the King might appoint two Prelates or other persons to grant them and it is probable that this Act may be construed to other purposes than a Faculty-Office only §. 6. Some further observations upon the Statute 25 H. 8. c. 21. But I shall conclude this matter with the following Observations upon this Statute which I take to be clear and undeniable First That the Pope did here by his Bulls and Breves grant Dispensations in various Cases Erected Constituted and Visited Colleges and Abrogated their Statutes as I have cleared in the foregoing Chapter Secondly That by this Act the Popes General or Universal power and Authority in England in all Cases was Totally abolished and taken away from him as to the excercise of it Thirdly That some part only of that general power and Authority which was excercised by the Pope was by that Act Vested Lodged and Delegated in and to the Arch-Bishop as the dispensing power for Marriages Bastardy c. and other matters there expressed which was properly to be called the Popes ordinary power and was so lodged and delegated in the Arch-Bishop to save the King from trouble in such ordinary and common Cases but not to take away the Kings ordinary power Supremacy Fourthly That the Popes extraordinary power which he exercised in England is as well abolished here by this and other Acts as his ordinary power But so much of the Popes Authority and power either ordinary or extraordinary as was at any time excercised by him here in England and which is not by the said Statute Vested and Delegated in the Arch-Bishop is by a necessary Construction revived and revested in the King and re-united to the Crown by all those Acts which declare the Kings * See. Stat. 24 H. 8. cap. 12.25 H. 8. c. 20. 21.26 H. 8. c. 1. c. 3. c. 13.31 H. 8. cap. 9.37 H. 8. c. 17.1 Eliz. c. 1. c. 4.8 Eliz. c. 1. Supremacy yea tho' the Statutes had been silent therein for that the Crown by this and other Acts is entirely remitted and restored to all it 's Ancient Jurisdictions and Prerogatives exercised by the Popes from whence our Law
Books say it was Robbed or derived Because such powers being taken away from the Pope and such as had Authority under him and neither settled in any Court or person by the Statute can re-vest or re-sult to none other but the King as Supreme in all Ecclesiastical as well as Temporal Causes which by Sufferance or Usurpation as the Act saith the Pope had excercised Fifthly By the several Acts and Instances whereby the Kings of England since the making of this Act of the 25th King Henry the 8th have exerted their Supreme Authority it is clear that the Crowns Re-assumption of what the Pope had exercised hath been according to the Laws in being of which I now proceed to give Instances in the Kings dispensing with College Statutes of which I shall give some few in several Cases of many hundreds which are to be found in the Paper Office or Secretaries Books §. 7. An account of the Queens Mandate about Electing of a Master of St. Johns College in Cambridge The first Instance I think fit to Insert is as followeth The Course that was held in the last Election of the Mastership of St. Johns College in Cambridge First Bundel Ecclesiastic Universities Paper-Office The Statute of that College appointeth the Twelfth day after the Vacation to be the day of their Election and no other Secondly The greater part of the Fellows of the College were made for Mr. Alvey a Senior Fellow Thirdly The Lord Treasurer being Informed that Alvey was an unfit Man set down an Inhibition in the Queens Name to defer the Election which Inhibition was obeyed Fourthly The 12th day being passed and no further power left to the Fellows to Elect The Lord Treasurer sent a Letter the second time in the Queens Name Nominating Dr. Clayton and Dr. Stainton Commanding the Fellows to choose one of them and no other Fifthly By Authority of those Letters they choose Dr. Clayton By this proceeding it is manifest that the King may not only by a Mandate of Inhibition stay the Electors from making any choice but nominate the person to be Elected altho' by College Statutes the day of the Election and the Electors were appointed §. 8. The Bishop of Londons Testimony that the King hath dispensed with College Statutes Before I enter upon the particular Mandates I shall produce the Testimony of George Montague Bishop of London in his Letter a Copy of which the Honorable Sir Joseph Williamson afforded me out of the Paper-Office directed to Sir Edward Conway Principal Secretary of State as followeth Right Honorable THe Noble and Vertuous Lady the Lady Denbigh hath layed a Command upon me to deliver my knowledge whether the King hath at any time by his Letters dispensed with the Local Statutes of any College by a Non-obstante and upon a search it appears that his Majesty hath sent Letters of that nature to divers Colleges If this Information may promote her desires and give you satisfaction I shall be right glad and will ever remain London Decemb. 10th 1623. Your Honors Friend to Command and humble Servant Geo. London §. 9. A Mandate dispensing with Incapacities to receive Degrees I now proceed to give some Extracts of Mandates wherein the King dispenseth with College Statutes in one of which Dated December the 11th Anno 1624. the persons within named being some ways Incapacitated to take their respective Degrees were dispensed with as followeth Trusty and Well-beloved We Great you well In a Bundel Docketed Ecclesiastic Universities in the Paper-Office at Whitehall We are Graciously please of Our Royal Favor to Gabriel More Harrington Butler George Bursey and Michael Gilbert to advance them to such Degrees as they are capable of and well deserve by their Learning and diligent Studies tho' in some respects not qualified Therefore Our pleasure is that notwithstanding any Statute or other Ordinance to the contrary you forthwith Create Gabriel More a Dr. in Divinity and you also admit Harrington Butler and George Bursey to the Degree of Master of Arts and Michael Gibert Bachellor of Arts in such Form as is usual in like Case and these Letters shall be your Warrant In a Mandate for one William Morley to be a Schollar of the College of St. A Mandate for a Schollar of St. Mary Winton College without examination Mary of Winton College Oxon without Examination are these words and tho' we have a favorable Eye to your freedom that are the Electors yet in this Our so Extraordinary Recommendation We expect your Dutiful respects to this Our Princely Pleasure and Command so that this Our Will be not dis-appointed for any respet whatsoever Directed to Our Trusty and Well-belove Dr. Princock Warden of St. Mary Winton College in Our University of Oxford and Our Trusty and Well-beloved Dr. Love Warden of St. Mary Winton College near Winchester the under Warden School-Master of the College and two Posers of the Schollars for the Election In a Mandate Dated 3 o. Regni Caroli 1. A Mandate dispensing with the Incapacity by reason of the County For one Gregory Isham I find these words But because We understand that the Country where he was Born layeth some formal Incapacity upon him We are pleased hereby to Dispense therewith and do require that his Country may not be any Impediment to him in that Election Ibid. notwithstanding any Statute or Order to the contrary And these Our Letters shall be sufficient Warrant in that behalf §. 10. The acknowlegement from St. Johns College in Cambridge of the Kings power in dispensing with College Statutes March the 28th Bundel Eccles Universities 1630. c. 1633. In a Letter of the Master and Fellows of St. Johns College to the Earl of Holland the Chancellor about their choosing Dr. Digby according to his Majesties Letters Dr. Beale being then Master I find they allege that he was not capable by some Statutes having not performed some things the Statutes required They write thus Yet his Sacred Majesties Request would have been tye enough upon his most Dutiful and Obedient Servants to have endeavored the accomplishment of his Royal desire had we been enabled thereunto by Dispensation with those opposite Statutes which otherwise we stand obliged by Oath to observe Which plainly shews that if a Dispensation had been obtained or inserted in the Mandate the King had been obeyed I find that the Master and Fellows of Christ College in Cambridge In the Paper Office Ecclesiastica Academica without date being desirous to Capacitate one Norton then but Senior Sophister for a Fellowship sent him with Letters Testimonial to Oxford whereupon he obtained his Bachellors Degree and so was Elected Fellow A Senior Sophister may take Bachellor of Arts Degree by dispensation The Relation saith that the Arch-Bishop hearing of it expressed some displeasure and said he would call him to an Account for his taking the Oath for Bachellor having not full time and being not dispensed with
To which it was Answered that the Oaths of both Universities were in effect the same yet they Commenced every year some at three years standing some at 3 a half yet do not think themselves for-sworn altho' they have no dispensation because they suppose the granting of the Grace do's Include a Tacit dispensation By this it is most apparent that not only the Kings dispensation had absolved from Perjury but that the University also by an Act of the Senate may dispense with a Statute and tho' it be but a dispensation Implyed it is valid SECT II. Concerning Dispensations with the Statutes of the Vniversities or particular Colleges from the Year 1670. 22d of King Charles the Second to this present time §. 1. A Mandate for a Dispensation for Mr. William Lloid having the Degree of Dr. of Divinity two years before the time limited by the Statutes of the University 23. June 1670. I Have in this following part culled out of the Books of Mandates for Arch-Bishoprics Bishoprics Deaneries Prebends Rectories and Masters or Fellows of Colleges c. some few Presidents which may shew the usuage of the latter times touching the Kings dispensing with College or University Statutes which I might have begun at the late Kings Restauration but that the Books of the then Secretaries of State are mostly wanting or they are not digested into Order in the Paper Office. However those few Instances of several kinds may serve to clear the point beyond dispute By this following Mandate will appear the reason why the power of Dispensation with Statutes may be necessary The Mandate runs thus William Lloid of St. Johns College in Cambridge Master of Arts one of Our Chaplains wanting two Years of his full standing to take the Degree of Doctor of Divinity being shortly to return to his Charge to Portugal where he may probably remain longer than the said two Years and so be hindred from taking the said Degree at his due time c. We having the Approbation and consent of Edward Earl of Manchester Chancellor of that Our University have thought fit to signifie Our pleasure unto you in his behalf hereby requiring that you Create and Admit him the said William Lloid Doctor in Divinity at the Commencement next coming any Statute or Custom of our said University or direction from Us to the contrary notwithstanding Dated 23d of June 1670. Directed to Our Trusty and Well-beloved the Vice-Chancellor of Our University of Cambridge §. 2. In all the Mandates the express words of Dispensation are to be noted In the Book for the Years 1675. and 1676. Sir Joseph Williamson being then one of the Principal Secretaries of State I find among many other these Dispensations with Statutes of Colleges July the 15th 1675. Henry More Doctor of Divinity and Fellow of Christ College in Cambridge hath Liberty by Dispensation to be absent from the College December the 20th 1675. Richard Lake Master of Arts of Sidney Sussex College obtains a Mandate for the first Foundation Fellowship that shall be Vacant reserving his Seniority according to his standing with this clause Any Statute Custom Order or Letter from Us to the contrary in any wise notwithstanding with which We are Graciously pleased to Dispense for this time in his behalf December the 29th 1675. In the Mandate for Thomas Chapman Bachellor of Arts to have the Degree of Master of Arts the operative words are without any consideration of performing any previous or subsequent Exercises for the same Any Statute c. as in the former February the 12th 1675. Mandate for Sir John Otways Son not capable either as to the County or his Years There is a Memorable Dispensation for Charles Otway Son to Sir John Otway in consideration of the Services of the Father sometimes Fellow of St. John's College The Expressions are That whereas a Fellowship in St. Johns College in Cambridge was void by the Death of Robert Clark which was Founded by the Lady Rokesby and given to the Town of Beverley and for want of a Scholar there to Our County of York at large with a Proviso that they enter into Priests Orders within six Months after Admission There being none of that Town Qualified the said Sir John Otway hath besought Us to Grant Our Dispensation in behalf of his Son Charles Otway who being not Born within the said County of York nor Capable to be Ordained Priest within the time prefixed by the said Statutes after Admission by reason of his want of Age without Our Royal Dispensation We have thought fit and accordingly do hereby Dispense with those particulars in his favor so as to Capacitate the said Charles Otway to stand for and be Elected into the said Vacant Fellowship notwithstanding his not being Born within the County of York and not being of Age. May the 17th 1675. Mandate for Mr. Josuah Ratcliff contrary to the Statutes of the College I find a Mandate in these Terms Whereas Josuah Ratcliff Senior Bachellor of Arts and Scholar of Emanuel College in Cambridge hath by his humble Petition Informed us that by reason of a certain Statute which provides that there shall not be more than one person of any particular County of England at one time Fellow of the said College he is render'd uncapable of being Elected into a Fellowship tho' in all other respects he is fitly Qualified for the same We have thought fit to condescend to his Request herein and do accordingly by these Our Letters Patents Dispense with the forementioned Statute Granting you full Power and Liberty that in case of Examination you find the said Josuah Ratcliff in all other respects fully Qualified for Preferment amongst you you may choose and Admit him into any Vacant Fellowship Directed to Our Trusty and Well-beloved Master and Fellows of Emanuel College in the the University of Cambridge H. COVENTRY §. 3. Dispensation for Mr. Edward Finch not being of the County required by the Statutes I shall now add some I find in the Books in my Lord Sunderlands Office. The Mandate for Edward Finch runs thus Have therefore thought fit to recommend him in very Effectual manner hereby requiring that notwithstanding any obstruction or Impediment that may be in his way by reason of his County you Admit him to the first Fellowship that may become Vacant in Christ College in Cambridge Dated May the 21st 1679. So the Chancellor of Cambridge is Commanded to Confer the Degree of Doctor of Divinity upon Mr. Francis Hawkins Mandate for Dr. Hawkins not to perform Exercises Master of Arts formerly of Peter-house in Cambridge by Accumulation without obliging him to perform the Exercises requisite thereto or Cautioning or Compounding for the same any Statute or Statutes or Constitution of that Our University to the contrary notwithstanding Dated June the 27th 1679. So the Mandate for Mr. Cradock Bachellor of Arts to have the Fellowship void by the Death of Thomas Cradock his Brother in St. Mary
Imperium and in such matters the Graces and Favors of Preceeding Kings are alterable and suspendible at the pleasure of the Succeeding Sovereign who cannot be Impaired in any Act of his Sovereignty by his Predecessor so that to think that a King of England can by any of his Subjects Constitutions be bound from Visiting or giving his own Interpretation of the Statutes is a great weakness of which I shall Treat more fully in it's proper place and only Infer at present that the obligation of any Subjects Oath neither to take nor Admit of any Dispensation is in it self of no force to obstruct the Sovereign from dispensing and when he doth dispense no Oath is obligatory to any that hath Sworn to observe such Statutes as are not in being while he dispenseth with them ☞ Thus much I thought fit to offer as to what relates to the Secular power As to the Popes Dispensing it was very Incongruous and weak for any Founder to expect that the Members of the Society could oppose the Popes dispensation with any Statute which his Holiness for the time being should think fit to alter or Abrogate for as (a) Validum esse vosum aut Juramentum non petendi dispensationem aut relaxationem voti quamdiu animae volentis utilius est non petere dispensationem Superior tamen potest non obstante tali voto disoensare dispensatio valida est nam vetum subditi non aufert Superiori potestatem dispensandi Jurantes vel volentes c. sub paena ut si fecerint non possunt ab alio absolvi vel dispensari quam à summo Pontifice possunt adhuc absolvi ab Episcopo nam hujusmodi votum vel Juramentum non aufert Episcopis Jurisdictionem Ita communiter D. D. Disp 4. q. 2. punct 1. n. 28. 29. Bonacina determins that tho' the Vow or Oath of any not to seek for a dispensation or relaxation of them be valid as long as the Swearers Conscience is convinced it is profitable to his Soul to keep it and not to seek a dispensation as Rodrique and other School-men there Cited allow and so in like manner not to use a dispensation yet the Superior notwithstanding such a Vow or Oath may dispense and the dispensation is valid and Assigns the Reason for that the Vow of the Subject doth not take away from the Superior the power of dispensing as Azorius Cap. 19. Quaest 13. Sanchez lib. 4. Cap. 8. n. 35. yea he further observes that if one Vow the like is to be understood of an Oath not to do such or such a thing under the Penalty that if they do it they cannot be absolved or dispensed with by any but the Pope yet for all this they may be Absolved by the Bishop for he saith by this the Authority of the Bishop is not taken away Yea I find in Lessius (a) Unde etiam possunt dispensare in voto non petendi dispensationem hoc enim non est reservatum Lessius lib. 2. cap. 40. Dub. 18. n. 134. fol. 568. that the Confessors of the Mendicant Order can dispense with the Vow or Oath to take no dispensation and that by a Privilege Granted them by the Pope if they be partakers of the Faculties Granted to the Benedictines by Pope Martin the Fifth because this is not reserved SECT III. Some other Objections considered either relating to the Visitation in General or urged in Defence of some particular Members of the Society §. 1. A Second Objection I have met with is that the Bishop of Winchester being the Local Visitor appointed by the Statutes of Bishop Waynflet it seemed more agreeable to a formal proceeding that he should have exercised his power of Visitation before the King had ordered Dr. Hough c. to have been proceeded against by the Lords Commissioners for Ecclesiastical Causes To which I answer First in the Resolution of a very Eminent Lawyer that the Local Visitor is appointed and trusted by the Founder and thereby hath a private Trust But the King as King hath a public Trust by operation and construction of Law and by his Sovereign Authority and Jurisdiction is Supreme Visitor and may exercise that Royal Trust as those of the long Robe use to express his Prerogative sometimes when and as often as he pleaseth without any Commanding or expecting the Visitation of the Local Visitor and having the general care of and Inspection into the Manners and Duties of his Subjects may not only Visit Enquire into and Reform the Members of the College as to their Actions but also Visit the Local Visitor himself as to his doing and performances in or about his Trust Secondly It is certain the Arch-Bishop of Canterbury and the Bishop of Lincoln as I have by many Presidents cleared before have Visited notwithstanding the Local Visitors being appointed Therefore much more may the King who is Supreme Visitor Thirdly By the speedy Application of Dr. Hough to the Bishop of Winchester before I presume his Lordship could have notice of the Kings Inhibition he had Admitted him so that he was so far become a party concerned that it was no ways convenient for him to have proceeded in it Fourthly The Local Visitor is appointed only for the ease of the Crown in ordinary Cases But it cannot be supposed that if a Local Visitor should neglect to do his Office or should be partial there should not be a power in the Sovereign to order the Visitor seeing it would be a great deficiency in the Oeconomy of Government that a power should not be lodged some where to compel a Local Visitor to do his duty if he failed in it which can ultimately remain in none but the King. §. 2. The third Objection In the third place in the particular concerns of Dr. Hough it is urged See here p. 67. that the Sentence against him could not be good in Law since he was not Cited before the Lords Commissioners at Whitehall nor appeared in person or by Proxy before them nor had his cause brought before them when Sentence of Expulsion was given against him which those that are his favorers Censure as very hard usage that one should be condemned unheard In Answer to which it must be considered that the King by his Mandate having set aside and suspended the College Statutes for Electing a person Qualified within those Statutes and impowering the College by his Royal Command without breach of their Founders Rule and their Oath upon it to Elect a person not capable of being Elected by their College Statutes as hath been abundantly cleared in the last Section Dr. Hough was not to be considered as duely Elected and so revera was no President therefore could not be taken cognizance of as such But as Fellow he was Cited and did make appearance and was heard as the rest of the Fellows were and under other Circumstances he was not Legally to be taken notice of His cause likewise
more plausibly In the first place it is urged that no Commission can be granted under the Broad Seal to Visitors to place and dis-place Members of Colleges but so as they must proceed according to Legal discretion viz. by the Laws and Statutes of the Land and Local Statutes of the Colleges By this Allegation they would Insinuate that the Lords Visitors did not proceed according to such Laws and Statutes nor could proceed summarily as in the latter part of the Objection they Insinuate To this I reply The Kings Prerogative a part of the Law of the land See chap. 4. §. 1. 2. here that the Kings Prerogative in such Cases is to be taken and accepted as a Fundamental of the Laws of the Land and I hope I have sufficiently cleared the continued use of the Kings of Englands exercising this power in granting Commissions to Visit the Universities and particular Colleges c. Amongst the Patents 26 E. 3. There is a Commission directed to several Commissioners to Visit St. Mary Magdalen College in Rippon which by the Foundation of that College was under the Visitation of the Arch-Bishop of York and to enquire of the several mis-carriages of the respective Members and whether they consumed or wasted any of the Lands or Goods of that College and to return the same to the King who would take care therein So in the Parliament Rolls (a) Rot. Parl. 40 E. 3. n. 12. the Universities of Oxford and Cambridge complained in Parliament of the Fryers Mendicants of both the said Universities how Injurious they were to the Ancient Immunities of the Universities and how faulty and offensive they were to them and it was declared and resolved in Parliament that the King had sole power to redress those Controversies at his Will and Pleasure In the Plea (a) Placit 15 E. 2. n. 10. Rolls 15 Ed. 2. It is declared that the King hath an absolute power to punish contempts and the offences against him as Supreme Ordinary without proceeding in the Common and usual Course of Judicial proceedings ☞ Conformable to this King Henry the 8th granted his Commission for the Visitation of Monasteries and dis-placing several Monks and other Regulars for their mis-carriages as the Inquisitive Reader may find in Dr. Burnets History of the Reformation and that by his Sovereign and Supreme Authority without Act of Parliament So King Edward (b) Rot. Pat. 3 E. 6. 1 part the 6th Commissioned Cranmer Ridley and others to proceed de plano in a summary way against Bonner by the Examination of Witnesses against him and so to Imprison Suspend or Deprive him as they saw cause in pursuance of which Commission they Deprived him of his Bishopric So Queen Mary (c) Rot. Pat. 1 Mariae part 7. granted Commission to the then Bishop of Winchester and others to Impower them to proceed in a summary way to the Deprivation of the then Arch-Bishop of York and other Bishops So Queen Elizabeth (d) Pat. 24 June 1 Regni granted Commission to the Earls of Derby and Northumberland and others to Visit all the Clergy in the North to place and displace them as they saw cause §. 11. Inferences from the foregoing Records By all which Authorities See chap. 4.5 6 and 7. here the Opinion of Parliaments the Antiquities of Presidents and frequent Instances in later days which I have abundantly produced in the foregoing Chapters I hope I have convincingly cleared that the King in all Ages by his Prerogative hath Regulated and Reformed Universities and Colleges punished their offences placed and dis-placed their Members without anything of the Ceremony of Westminster Hall and have been advised by their Judges and Learned Council that it was their Prerogative to proceed by their Commissioners Delegated by them in a summary way to the Suspension and Deprivation of the Bishops and Clergy nor can it be denyed but the Bishops of England have great Free-holds Temporalities and Honorable Baronages to lose by such Deprivations and such were more considerable in the Eye and esteem of the Law than the Exhibitions Headships or Fellowships of any College ☞ Hence it may be noted The Kings of England exercising the power of supension and deprivation by Commissioners upon Bishops Abbots Priors c. may well do it on Members of Colleges that since our Kings have exercised such a power over Monasteries Colleges purely Religious Arch-Bishops and Bishops they may much more exercise the like over Universities and Colleges since whatever power they or their Founders had or have it was never given them by any Statute or any part of the Common Law it being the Kings sole Prerogative to Constitute Coporations or Bodies Politic sole or Aggregate Ecclesiastical or Civil under several and distinct qualifications conditions and trusts and the Universities and Colleges derive their Existence from the Royal bounty of the Prince who made them Corporations Constituted them by the direction of their respective Founders Bodies with Heads and Members to be Governed by such Rules and Statutes as the Founder by the Kings Licence should appoint But it was never certainly Intended that the King by such Grant or Licence should Delegate such Authority to Founders Visitors or the Members of Colleges See chap. 4. sect 1. here whereby to injure his Prerogative or determin the Supremacy which the Law of the Land had Annexed to his Imperial Crown as at large I have cleared before That the King is Supreme Head and Visitor in all Ecclesiastical and Civil causes See cap. 4. here hath been fully proved and that from the King all Judges Ecclesiastical and Temporal derive their Authority And sure a Delegation of power from the King can be no Bar or Estople to the King to exert his Prerogative that he thereby can be concluded from Delegating power to others to correct and reform misdemeanors and offences in Communities created by him or his Ancestors or to supervise the Actions and Management of his Judges Ecclesiastical Local Visitors or persons Commissioned by him As to Dr. Thomas Coveneys Case I shall consider it when I come to Treat of Appeals §. 12. Whether Colleges be of Temporal or Spiritual nature ☞ Concerning the Temporal Estates of the Fellows and the profits of the Fellowships being Free-holds that alters not the Case of the Kings power of Visiting for altho' it is disputed by Learned Authors whether Colleges be of a Lay or Spiritual nature yet it is most clear that they have undergone Visitations the reason of which is because they are the Nurseries of Learning and Piety Qualifications of great Moment to the well-being of Government and consequently require the Princes special care since upon the purity or impurity of these Fountains much good or bad must be derived to the Sovereign and Subject And altho' in the Universities some Studies relate not at all to Divinity as Civil Law Physic c. yet the Body of the Students
generally are bred up to Divinity and the hours of Devotion Lectures in Divinity Disputations c. are mostly about Spiritual matters in Ordine ad Spiritualia and Grammar Schools being for Education Vertue and Learning are called Spiritual much more Colleges which are Founded ad Studendum Orandum and if there were none of these considerations yet it is well known that Colleges are to an Eleemosinary end and it is clear in the sense of the Law where persons are lay there may be a Spiritual end 11 H. 4.47 of which matter the curious may find more in * Keebles Reports 2d part page 166. c. Dr. Patricks Case As to the Statute of Magna Charta The Kings Prerogative is not against Magna Charta altho' it grants and confirms many Liberties and Immunities to the people yet it does not deprive the King of his Prerogative who hath the power to Create Courts at Law and give them Jurisdiction as also to Establish Courts by Commission for Regulating deceits oppressions frauds and other matters as seems best to his Royal Will which is no encroachment on our Liberties Temporal or Spiritual as is objected §. 13. The eighth objection concerning liberty of Appeals This leads me to the Eighth Objection made by the favorers of the Ejected Fellows viz. That it is contrary to the Laws of the Land that any person should be deprived of his Fellowship by the Lords Visitors without having liberty to Appeal to the King in his Courts of Justice See pa. 70. here as Dr. Hough words it in his Protestation against the Illegality and Inustice of the Lords Visitors Sentence against him See here pa. 116. and Dr. Fairfax in his Protestation in the same words with the Addition as the Laws Statutes and Ordinances of this Realm will permit in that behalf whose Case differed from Dr. Houghs in that particular that Dr. Fairfax had long enjoyed his Fellowship and was Ejected for his dis-obedience to the Kings Mandate whereas it was disputable whether Dr. Hough was lawfully Elected President But in one particular they alleged that their Cases were alike in that they might have remedy against all such dis-possession of Headship's or Fellowship's in the Kings Courts where relief in all Cases of Property and Free-hold ought to be had ☞ In Crroboration of this Dr. Coveneys Case urged they bring the Instance of Dr. Coveney as in the last Objection is urged that he being deprived by the Local Visitor and Appealing to the Queen by the advice of all the Judges it was held that the Queen by her Authority as Supreme Visitor could not medle in it but he must bring his Action at Westminster Hall because deprivation was a cause merely Temporal §. 14. The Answer In Answer to this First It is apparent in matter of Fact by what I have before from Records made clear that Heads of Colleges Chap. 5. sect 1. §. 10. sect 2. per totum sect 3. §. 3. Fellows c. have been Expelled and deprived by Commissioners for Visitation as appears in the places quoted in the Margent Secondly Coke Instit 4. fol. 339.340 341. Stephen Gardiners Case It is owned that it is not only an usual practice of the Crown to grant Commissions ad revidendum the former proceedings before the proper Judges but likewise the Kings have often granted Commissions with a Clause of Appellatione remota which is a definitive conclusive Sentence from which no Appeals lies ☞ For clearing the point more fully we may consider that the Statute 25 H. 8. C. 19. grants an Appeal from any of the Arch-Bishops Courts to the King in Chancery Appeals according to the Statute 25 H. 8. c. 19. where the King may by Commission Delegate others to determin that Appeal according to the direction of that Act but where Sentence is given by Commissioners Delegated by the Prince and not in any Bishops Court as by Visitation pursuant to the Statute 1 Eliz. c. 2. there Appeals from such a Sentence is not within the Statute of 25 H. 8. c. 19. Yet the King may grant a new Commission to revise the former Sentence Likewise there may be an Appeal to the King in person from all Courts Erected by his Prerogative Appeals to the King in person as from the High Court of Chancery Coke 4. Instit fol. 340. and it is upon Record by Commission 14 Jac. 1. as the words are 14 Jac. 1. par 6. n. 25. that it appertaineth to our princely care and office only to be Judge over all our Judges the meaning whereof can be no other than that from the Judges Sentence and Decrees there may be an Appeal to the King in person 2 Andersons Reports fol. 163. So by the Commission granted by the King to the Commissioners to Visit St. Mary Magdalen College in Oxford the Commissioners were a Court then only for that purpose created by the King Goodmans Case 4. Instit 340. and from any Sentence or Decree pronounced by them the Fellows might Appeal to the King in person but could not Appeal to any Court in Westminster Hall so that the Appeal to the King in Chancery is in such cases as are particularly limited in the Statute of matters in sits in the Courts of Bishops Rolls Abridgment part 2. fol. 233. as Judge Rolls observes who likewise affirms that if a suit be by a Commission General of the King no Appeal can be to the King in Chancery by the words of the Statute for in such Appeals to the King it must be General as he is Supreme Head of all Ecclesiastical Jurisdiction within the Realm and this must be by a Bill Signed by the King after which the King may grant a Commission to Delegates to hear it So that the case of Dr. Coveney is not rightly stated in the Allegation of those of Magdalen College The case of Dr. Coveney not rightly stated that because Dr. Coveney being deprived by the Bishop of Winchester Local Visitor and Appealing to the Queen it was adjudged that the Appeal did not lye because deprivation was merely Temporal and Tryable at Common Law Dyer's Reports fol. 209. for my Lord Dyer only shews that according to the Statutes of 24 and 25 H. 8. the Appeal was to be from a Sentence in the Arch-Bishops Court to the King in Chancery but Dr. Coveneys deprivation was not by any Sentence in the Arch-Bishops Court and consequently not within the Statutes to bring his Appeal to the Queen in Chancery Now the Artifice used by the favorers of the Fellows is The Artifice used by those of St. Mary Magdalen College in citing this case that they make Dr. Coveney to Appeal to the Queen without mentioning in Chancery and so it was not brought before the Queen as Supreme Visitor and so was not within the Statute either way since the deprivation was by the Local Visitor only and in that case his
remedy had been at Common Law only It were easie to quote the resolutions of several Judges Savil's Reports fol. 83.105 that no Appeals lye to any but the King in person from a Sentence of the Kings Commissioners in Ecclesiastical causes so Baron Savile affirms that no Appeal doth lye from a Sentence in the High Commission Court and that the high Commission Court is not within the meaning of the Statute of the 25 of H. 8. but the Opinion of my Lord Dyer or others do not exclude an Appeal to the King in person Dyer's Reports for 42. who is the Fountain of Justice and all the Statutes of King Henry the 8th and Queen Elizabeth as to the Erecting of Courts and granting Jurisdiction do only remit and restore the King to his Ancient Jurisdiction of Visiting and Reforming abuses recieving Appeals and other Judicial Acts as Supreme Head and Ordinary as Serjant Dacres observes §. 15. The Case of Charles Cottington Esq about Appeals I shall now Instance in a case of later date wherein there being an Appeal made to the House of Lords against a Decree of the Delegates the Lords dismissed it as not coming properly before them ☞ The case was this Ex Autographo In the Custody of the Clerk of the Parliament Charles Cottington Esq exhibited his Petition May the 10. 1678. to the Lords shewing that in the Year 1677. he Travailing into Foreign parts unfortunately fell into acquaintance with one Angela Margareta Gallina Daughter to a broken Gold-smith in Turin in the Dukedom of Savoy The Petition of Mr. Cottington and was contracted to her in the presence of a Romish Priest in Turin that afterwards he found her a vicious person Married to one Frichinone Patrimoniale upon which Information he left her and returned for England Then he sets forth that this Gallina came to England and claimed to be the Petitioners Wife that he had cited her before the Dean of the Arches in a cause de jactitatione Matrimonii and she alleged that before the contract with the Petitioner she was Divorced from Patrimoniale and the Divorce was pronounced by the Arch-Bishop of Turin and that tho' he made it appear that the Sentence was Collusory and in it self void and not to be regarded in England yet the Judge of the Arches had Sentenced the said Gallina to be the Petitioners Wife Then follows the premises so highly concerning your Petitioner both to the peril of his Conscience Honor Body and Estate and concerning this his Majesties Kingdom in the Establishing a Foreign Jurisdiction against the Laws of the Kingdom Your Petitioner humbly Appealeth in the premisses to this High and Honorable Court and humbly prayeth that the said Sentence of the said Dean of the Arches and Commissioners Delegates may be reversed This was referred to the Committee of privileges Referred to the Committee of privileges June the 6th it was ordered that Presidents and Records should be brought and Council to be heard June the 12th The Earl of Essex's Report from that Committee The Earl of Essex made report from the Committee that upon full hearing what was alleged by Council on both sides and upon perusal of several Presidents they are of Opinion that the said Appeal did not come properly before them the Earl of Shaftsbury only dissenting as by his Subscription appears The Order is entred in these words Die Lunae 17 o. Junii 1678. According to the Order of the 12th of this Instant June The House of Lords Order upon it the House took into consideration the Report from the Committee of privileges concerning the Appeal of Charles Cottington Esq from the Commissioners Delegates whether the said Appeals be properly brought before this House The Opinion of the Committee being that the said Appeal did not properly come before this House The Opinion of the Committee being that the said Appeal did not properly come before this House After debate and consideration of Presidents the Question being put Whither to agree with this Committee in the Report It was resolved in the Affirmative and it is thereupon Ordered that the Petition and Appeal of the said Charles Cottington be dismissed the House of Peers It is to be considered in this matter Considerations upon this Case that after the Sentence in favor of this Gallina by the Delegates Mr. Cottington Petitioned the King in person for a review or dis-annulling the Decree which the King refused to grant and upon that the Petitioner Addressed himself to the Lords whose Order I have recited and tho' it be not expressed in the same Order why the matter was not properly brought before their Lordships yet it is well known that the cause was by reason that Appeals in Ecclesiastical causes do not lye before their Lordships If I could have procured the Printed Case I might have enlarged upon this matter and if it be my good fortune to meet with it before the Publication hereof I shall take notice of what may be material in the Appendix §. 16. The Ninth Objection that matter of Fact proves not right It is Ninthly Objected that tho' it be allowed that the Kings of England have sometimes dispensed with College Statutes and done those things I have all along Instanced in yet that proves not the Right or Justice of the thing since à facto ad jus non valet consequentia To this I Answer The Answer there is a vast dis-proportion betwixt the Acts of Kings and of Subjects Constant and un-interrupted usage are the Foundations of the Customs of England which are Incorporated into the Common Law of the Land and so many Rights are determined for private persons But in the Orders of the Sovereign one declaration of his pleasure by Mandate in several Cases is sufficient Precedent tho' but rarely made use of upon the presumption in Law that such Acts of Kings are not without deliberate consultation However the constant practice of the Kings of England which I hope I have fully proved takes away all colour for this Argument And it is most certain if the Kings dispensing power with Statutes and putting in Heads of Colleges Fellows c. by Mandates If the Kings Prerogative in this Case had been against Law it would have been questioned at some time had been against the Law we should at some time or other heard of Actions brought before the Judges against the Kings Authority in that matter and found determinations upon them in favor of the aggrieved which I think is not to be found But the Kings of England have been in Possession of this Prerogative in all Ages The King in Possession of this Prerogative tho' most conspicuously since the Reformation and so this Prerogative must be adjudged to appertain to the King till by some Legal Tryal it shall be determined otherwise It may be upon this Topick rationally urged that tho' the Kings dispensing power in other matters be in
the Law Books only made out in some particular Cases yet those sufficiently prove that the Original Prerogative of Dispensation being in the King The Original Prerogative of dispensing in the King. it may branch it self to all such matters as the King pleaseth to apply it to which by no particular Act he or his Predecessors as far as they can oblige him have debarred themselves from the exercise of and the continual Series of this dispensing sometime in one other times in a fresh matter is sufficient evidence that our Kings have not given up this Prerogative wholly Thus I have gone through the most material Objections I have met with in the Vindication of the dis-obedience of the Fellows As to the punishments inflicted upon them for it I suppose none will question but they are according to Rules of Law upon supposal the Crimes were clearly proved I should now have closed this Discourse but that I am obliged for the Reasons given in the Preface to add some things that came not soon enough to my Hands A Transition to what is to be Treated of in the Appendix or went too soon out of them which I shall digest into Order of time and put them in this following Appendix AN APPENDIX §. 1. A Mandate for Re-placing a Graduate Expelled HAving been necessitated for the Reasons foregoing to make these Additions I must desire the Courteous Reader to refer them to their proper places noted in the Margent I shall begin with this following Mandate for Replacing a Graduate Expelled out of the University of Oxford in these words Clause 40 E. 3. part 2. M. 8. rot 10. è Ms. D. Hales in Bibliotheca Societatis Lincolniensis lib. B. fol. 180. Rex dilectis in Christo Cancellario Magistris Regentibus Oxonii salutem Supplicaverunt nobis venerabilis in Christo Pater R. Dei Gratia London Episcopus Tho. Russel Prior Provincialis Ordinis Fratrum Praedicatorum in Anglia ut cum Johannes de Wulsington Baccalaureus in Theologia confrater praedicti Prioris ad suggestionem procurationem quorundam inimicorum suorum extra Universitatem praedictam maliciose sine causa rationabili Bannitus extitit in ipsius Johannis grave dampnum susceptionem Altioris gradus in eadem facultate quod volumus ipsum Johannem ad Statum suum pristinum restitui jubere Nos supplicationi praedictae favorabiliter Annuentes vobis Mandamus quod ipsum Johannem ad praedictam Universitatem Statum gradum quibus steterit prius in eadem sine difficultate aliqua Admittatis reconciliatis ipsum sic Admissum reconciliatum omnino quae ad facultatem dictam quous que ad Statum Altiorem juxta Statuta Universitatis illius promotus fuerit facere exercere permittatis ne ob ullum defectum ipsum à potestate nostra deduci reconciliari â—aciamus Teste Rege apud Westm 18 die Nov. In English thus The King to the Well-beloved in Christ the Chancellor and Regent Masters in Oxford Greeting See chap. 4. sect 3. §. 1. pag. 176. and pag. 270. The venerable Father in Christ Ralph by Gods Grace Bishop of London and Tho. Russel Prior Provincial of the Order of the Fryers Preachers in England that whereas John de Wulsington Bachellor in Divinity confrere with the said Prior by the suggestion and provocation of certain his Enemies maliciously and without reasonable cause was Expelled the same University to the great damage of the said John and the hindring of his recieving an higher Degree in the said faculty and that we would Command the said John to be restored to his former State. We favorably allowing the foresaid Petition Command you without any difficulty to Admit and reconcile or restore the said John to the same University and to the State and Degree in which he stood before in the same and that you permit him so Admitted and Reconciled or restored in all things to do and exercise what appertains to the said faculty until he be promoted to an higher State according to the Statutes of the University lest for any defect you make us bring back and restore the said John by our power or Authority Witness the King at Westminster the 18th day of November This being the oldest Mandate I have met with I thought it needful to insert it at length that all might know what Authority the King exercised in that Age. §. 2. Inferences from this Record By this Record it is manifest that the King by Mandate could restore a Graduate who had been Expelled the University and by parity of reason he must have the same Right to place any in the University according to his Royal pleasure and whereas by this Expulsion there was a Suspension of his Degree the King Capacitates him to receive it when the time required by the Statutes of the University was expired altho' he was thus dis-enabled So that in this one precept four particulars of the Kings Prerogative over the University are Asserted expresly The prerogative of the King over the University cleared in four particulars by this Mandate which in the foregoing parts of this Treatise I have by other Instances cleared viz. First that the King is Supreme Visitor to alter at his pleasure the Sentences Decrees or determinations of the University Secondly that tho' the University by their Statutes might stop a Graduate from taking an higher Degree yet the King at his pleasure might restore him to his Pristin State and make him capable of receiving his Degrees at the time limited by the Statutes Thirdly that the King did this without any formal proceedings at Law but by his own Sovereign Authority and pleasure only declared in a Mandate Fourthly that if the Chancellor did refuse to obey the Mandate the King threatens to have his pleasure fulfilled by his Royal power §. 3. The King Founder of Colleges That the King by his Royal Authority Constituted made and Erected Colleges pat 14 E. 3. part 3. M. 9. appears by the following Clause of King Edward the Thirds Charter to Queens College in Oxford in these words Memoratam Aulam cum Praeposito caeteris Sociis per Electionem in futurum habitantibus morantibus in eadem quos ad verum Collegium erigimus existere ex nunc proponimus ut Collegium Licitum approbatum agnoscimus Authoritate nostra plena qua possimus ratificamus confirmamus c. This is Dated 18 January Anno 1340. Granted to Robert Eglesfield of Cumberland Bachellor of Divinity Chaplain to Philippa Queen Consort to King Edward the Third and Rector of Burgh under Stanemore being descended of an Ancient Family in that County and in this Charter the King Grants him liberty to Found it and Endow it with Lands and to appoint the Orders of the Government of it as at large may be seen in the Tower of London and a considerable part of it in Lib. 2. fol. 113. Mr.
Mass Upon the Ejected Fellows grand plea of observing the Literal and Grammatical Sense of the Statute and admitting no dispensation by any Authority soever I see not how the Fellows can avoid being obliged to say the Mass of the Holy Ghost before they go to Election as the Statute expresly enjoyns as likewise to say dayly Masses Solemn Obits and particular Prayers for the Souls of the Founders and Benefactors c. For if they allege that they are prohibited to use such by Act of Parliament they confess that their Statutes are dispensed with by some Authority and that they yield to and allow such dispensation which is against the Literal sence of the Oath which I have recited before Vide pag. 33. here And I hope I have made it clear that the King hath as much Authority to Suspend and so Temporarily abolish any of their Statutes as an Act of Parliament hath to perpetuate it ☞ I need not touch upon the Qualifications required in the persons to be Elected Concerning purchasing of Fellowships as that they should be poor when it is notoriously known that not only in the times long since Fellowships have been bought but Mony payed for Resignations and if I be not misinformed even some of the late Ejected Fellows had not re-inbursed themselves of the Mony they had payed to purchase their Fellowships so that it was grown to a by-word that an Election at St. Mary Magdalen was a Magdalen Fair. Having thus touched upon some of the Statutes which we find the Society have taken upon them to dispense with or abolish Pag. 311. here I proceed to give a true Narrative of Dr. Haddons Case of which I gave an Account before such as I was then able to do but now by the direction of Bishop Giffard and the great care of my Honored friend the Learned Mr. Thomas Fairfax who hath extracted the Materials out of their public Register I am enabled to clear the Case most fully I shall not repeat what I have observed before out of Mr. Woods Antiquities of Oxford but only note how faithful he hath been in his Collections and that this Dr. Haddon was every way as uncapable of being Elected President by the Literal and Grammatical sence of the Statute as Mr. Farmer was But I shall pass to the account I have received from the Register §. 10. Concerning Dr. Haddon Out of the Petition of the College to Edward the 6th Dated the 3d. of July 1552. WHere it has pleased your Highness upon consideration that Dr. Oglethorp President of your College was fully resolved and determin'd to leave and resign at Michaelmass next ensuing his Office aforesaid to direct unto us your most Honorable Letters in favor of Dr. Haddon therein requiring us to Nominate and Elect him to the said Room when it shall be void Like as we have hitherto and shall gladly forbear to condescend upon any other Man in consideration of your most Gracious Letter and much more to proceed to the Election of any other so do we upon our Knees most humbly beseech your Majesty to consider that we your Orators have not only an Ordinance and Statute in your said College whereby we stand specially bounden to Nominate unto the said Office such as have been of our Foundation being Ministers but also are thereunto by our Oaths every one of us strictly enforced and albeit Dr. Haddon is a Man of approved Learning honesty and worthy of much better preferment and such a one as most willingly at your Graces Hands before all other we would thankfully accept Here we must note the different way of this Societies proceeding in King Edw. the 6ths time from the late Fellows proceeding to Election contrary to the Kings express Mandate Nominate and Elect if he were eligible being sorry even with all our hearts that there is an impediment in our Statutes that may restrain our willing minds and good hearts Yet considering he is not of our Foundation that it toucheth us all in Conscience to violate our Statute whereunto we have Sworn and that he is not a Minister which is required by our Foundation and on the other side that we have of our own Foundation sundry persons of much honesty and Learning which are Ministers whereby they may in their own persons further the word of God. Finally that it were not only a great disgracing and discomfort to our College that no one Man of our Foundation could be thought meet to succeed our former President but also it might appear a blemish to the whole Vniversity of Oxford to sustain of all their Students an utter repeal we have thought good to become humble Petitioners to your Majesty most humbly on our Knees beseeching your Highness to be so Gracious Lord and Sovereign to us not to co-act us by your Power Royal and Supreme Authority which we most humbly prostrate do acknowledge and on our Knees Reverence but rather to grant us your Gracious favor that we may have a free Election and follow our Oaths and Consciences c. Subscribed The Vice-President and more part of the Fellows The King persisting Dr. Haddon was Elected and Presented to the Bishop of Winchester thus by the College Reverendo in Christo Patri ac Domino D ro Joanni permissione Divina Winton Episcopo Collegii B. Ma. Magdl in Universitate Oxon. patrono intigerrimo aut cuivis alii admittendi potestatem habenti Gulielmus Reding V. Praesidens Collegii praedicti nec non ejusdem Collegii Scholares salutem in Domino Ad Officium Praesidentis in Collegio tuo praefato per liberam resignationem ornatissimi viri Owini Oglethorpe nuper Praesidentis 27 Septemb. Anno Regni Serenissimi Principis Edw. 6. factam jam vacuam non solum ad contemplationem binarum litterarum praedicti Domini nostri Regis in favorem egregii viri Gaulteri Haddon Scriptarum quam ad Speciale Mandatum ejusdem Principis ex Autoritate Regia Suprema Note here the grounds of the Societies obedience was the Kings special Mandate by his Supreme Authority and his dispenceing with the Impediments of their Statutes and their Oath Autoritate suâ non solum cum Statutorum impedimentis nostroque juramento dispensantis sed etiam interdicentis ne ad alterius cujusque Electionem procederemus quam praefati Gualteri Haddon sufficiendi in praefatum Officium Nos itaque praefati Vice-Praesidens Scholares omissis quibuscunque praescriptiunculis alioquin in hac Electione requisitis sed quas in praesenti observare non potuimus eximium virum Gualterum Haddonum in tui praefati Collegii Praesidentem unanimiter elegimus c. Datum 1 o. Octobris 1552. I need not enlarge upon this matter Inference from this but refer to the Reader to what I have Writ before concerning it only observing Pag. 311. here that notwithstanding Dr. Haddon was no ways Statutably qualified and that the Vice-President and Fellows did urge the obligation of their Oaths yet
Dedimus quoque vobis Authoritatem Collegium Medicinae in aliquo idoneo loco dictae Universitatis Constituendi ac Deputandi aliquod unum Collegium illi Studio quodcunque vobis videbitur To Depute a College for Physicians eos Socios in illo Collegio sic Medicinae deputandos qui ad Medicinam Studium suum velint convertere si ad hoc per vos idonei Judicabuntur Socios Collegii nostri Medicinae faciendos Eos vero qui nolount sequi illam Artem vel ad eandem minus idonei judicabuntur in alia Collegia transferendos vel pensiones Magistro sive Sociis illius Collegii assignandas § 8 Command to all Sheriffs Majors Bailiffs and other Officers and Subjects to assist the Commissioners c. in the Execution of the premises Mandantes omnibus singulis Vice-comitibus Majoribus ac Ballivis ac quibuscunque aliis Officiariis Ministris subditis nostris quatenus vobis cuilibet vestrum in circa Praemissorum Executionem effectualiter assistent auxilientur suffragentur Aliquo Actu Statuto Ordinatione Provisione Proclamatione Non obstante of any Act Statute Ordinance Provision Proclamation or Restriction whatever to the contrary sive Restrictione inde in Contrarium factis Editis Ordinatis Proclamatis sive Provisis aut aliqua alia re Causâ vel Materia quacunque in aliquo non obstante In cujus rei Testimonum c. Teste Rege apud Westmonasterium Octavo Die Maii Anno Regni Edvardi Sexti Tertio Per ipsum Regem c. § 9 In this Commission these particulars may be observed The Authority of the Commission First that in the Preamble the King lays as a Foundation that he is the Supreme Head under Christ in Earth of the Church of England and Ireland so that by vertue of that Supremacy and by his Absolute and Supreme Authority which in other places of the Commission are expressed he appoints this Visitation and the persons within Named his Delegates and Commissioners which of it self if there were not most numerous other Presidents and the necessity of Executing Justice which the King cannot personally do in all places is sufficient to Confute that Ignorant Assertion of a Philonomus that the King cannot Commissionate others to Execute his Authority Secondly What plà ces are to be Visited As to the Subject Matter of the Visitation it is for the Colleges of Windsor and Winchester and the Dioecess of Oxford and the University and all the Colleges of the same and by parity of Reason such Commissions may be Extended to any Lay or Religious Persons Members of Societies and Corporations within the Kingdoms of England and Ireland that are of the same kinds of Foundation Thirdly The persons to be Visited As to the persons the University is to be Visited in the Head and Members so taht the Vice-Chancellor and all the Heads of Houses as also Fellows Scholars Students and all that bear any Office and all persons residing in the Colleges c. are within the purlieu of this Visitation Fourthly The matters to be enquired after The matters to be ensquired of an Regulated are the State of the Colleges which word is very Comprehensive as in several particulars are after branched out Also the Study Life Manners Conversation and Qualification of the persons And this Enquiry is to be made by all the Methods or Ways that the Commissioners can best effect it by Fifthly The nature of the Crimes to be punished The presons punishable are reckoned up the Ciriminals and Delinquents words of a large Extent as Comprehending Offenders against the Laws of God and the King to these are added the Idle and Slothful Students and generally all who do any thing blame-worthy Sixthly The punishments Deprivation and Sequestration The punishments the Commissioners may inflict are the Deprivation of their places as Masterships Presidentships c. their Fellowships and other Offices and the Sequestration of their Stipends Profits and Emoluments whatsoever the good ends for which such punishments are inflicted are expressed to compell them to more upright manners of living Seventhly Contumaces Rebelles We may also note the special punishment of such as are contumacious and obstinate or Rebellious as it is expressed These of whatever state or condition they be are to be compelled to obedience by Ecclesiastical Censures as also by Imprisonment Punishment by Ecclesiastical censures imprisonments c. Recognizances and all other remedies the Laws of the Kingdom appoint Eighthly Changing of Charities to other uses than at first designed Then follows a power to Convert the Monies Yearly Expended for Exequies and Feasts that is such as had been given for Obits Diriges c. to the maintainance of public or private Lectures or other more convenient Forms of Uses Ninthly The Monies also to be dispended by the Founders appointment upon the Choristers Singing Men and other matters relating to the Dayly Ecclesiastical Service shall be Converted to the Teaching the Grammar Youth the Commons of the Fellows or Scholars to the Learning of Philosophy or other Arts c. Tenthly Power of Expelling and substituting others in their places To Expel and Amove all Masters Provosts Presidents Fellows or Scholars whatsoever that are not worthy of their Offices or not proficients If the Commissioners could do it by colour of the breach of the Statutes of the College or Judged it to be for the benefit of the Common-weal or of Learning and power to prefer and substitute another and others in the place of the person removed and to admit the resignations of whatever Provostship Mastership Presidentship Guardianship Fellowships or Office in the said places and to Vacate or declare void the same and to substitute others in their places Eleventhly To unite Golleges and translate Students of one faculty from one College to another Then they have power to unite two or more Colleges into one whether of the Kings or any others Foundation if it appear to them to be for the profit of the University and this by the Kings Absolute Authority As likewise to Translate Students of one faculty from one College to another Twelfthly Altering form of Disputations Statutes c. Also the power of altering Forms of Disputations conferring Degrees and of Divine Offices to Introduce and Assign Injunctions and Statutes and wholly to Annihilate Statutes Ordinances Customs and Compositions contrary to them and this as to the Commissioners shall seem fit for the Regulating Reformation and good order c. of the University ☞ Thirteenthly Note this Yea to exercise all and singular other things concerning Visitation Inquisition and Reformation which may be necessary or in any wise fit to be done altho' not expressed yea tho' the power might require special words Lastly It is to be considered The Kings dispensing power asserted by this Commission that all these powers are given them notwithstanding
any Act Statute Ordinance Provision Proclamation or Restriction to the contrary so that in this one Instance the Kings dispensing power to be put in Execution by Commissioners is most amply manifested Understand it in matters wherein Mandates have been used and whatever power the King can give to Commissioners he may Execute himself by his Royal Mandate and if he can dispense with the Statute surely the obligation of an Oath to observe that Statute ceaseth as I shall largely shew hereafter ☞ By the Execution of this Commission whereof I shall now treat it will be apparent that the design of this Visitation was to abolish the Catholic Religion there and plant the Reformation in the University which they did by changing the Magistrates or Governing part of the Colleges disannulling the old and making new Statutes censuring and punishing all whom they found culpable according to the Articles which they published to abolish the power of the Bishop of Rome and present Clergy and set up the Kings Supremacy Which Articles I am informed are extant tho' I have not yet been so fortunate as to have procured any Copy of them § 10 I shall now Abreviate the proceedings of the Commissioners in that Visitation by which it will appear What the Commissioners did in this Visitation how merciful our King hath been in this last Visitation comparatively to what was then done ☞ First The King praevious to this Visitation Wood Antiq. Oxon. fol. 269. a. In Turri Schol. N. 17. The Suspension of Elections and College Acts during the Visitation in his Mandate to the University Commanded that no Graduate should proceed to the Election of a President or Fellow of any College or do any Act that should hinder the Visitation so that during the Visitation no Statutes were observed and none of the University could attain any Office without consulting the Visitors and my Author saith that the Commissioners especially Cox put in their Friends and Dependents every where into places as he Instanceth in Maurice Ley an Irish Man Fellows made contrary to Statutes who was made a Fellow of Exeter College contrary to their Statutes and Edmund Cooke Esquire wholly Ignorant of University Learning made Fellow of the same College so George Cartwright Born in Nottinghamshire thereby Secluded by the Statutes was made Fellow of Corpus Christi College And by the Mandate aforesaid the Execution of the Statutes of the University were Suspended The Execution of the Statutes Suspended by which means the Jurisdiction of the Masters of Colleges and other University Magistrates being in a manner Abrogated it might remain in the Visitors power only to inflict punishments When the Commissioners had deprived the Choristers and Singing Boys of their Stipends Id. fol. 270. b. Concerning Choristers and Signing-Boys the Towns-men representing the dammage it would be to them by reason their Children were thereby provided for This was something mitigated Some of the Chantries were converted to Stipends but mostly those in Parish Churches whereof some were of the Patronages of Colleges were sold away But of these things and the change of Divine Service I shall not speak because they were according to the Reformation through the Kingdom after the Book of Common Prayer was Established § 11 ☞ The Visitors made a new Book of Statutes which were called King Edward the Sixth's Statutes Id. fol. 271. a. Anno 1549. The Visitors make a new Book of Statutes which altho' in the most part they were contrary to the Ancient Statutes of the University yet they were in force till those were made which now are used I pass by the great destruction made of Books in the public and private Libraries Id. fol. 271. b. The destruction of Books where few that had any Red Letters or were Writ by any in the two last Centuries escaped the Fire or worse uses tho' they were Books of Divinity Astronomy or Mathematics The Books being brought in great heaps into the Market places and publickly burnt of which the Reader may peruse a sad Account in Dr. Heylin and Mr. Wood. I shall omit the Cases of Ralph Skinner and Gualter Haddon till I come to Treat of the Kings dispensing with Statutes § 12 ☞ The severity of the Visitors continued from the Year 1549. to th Year 1553. 10. Mariae Id. fol. 272.273 274. The severe proceedings of the Commissioners in which time by the absenting themselves or Expulsion of so many Fellows the Colleges were left very thin the Writings Bulls Charters and other Muniments especially those granted from Rome were seized the Registers and Repositories searched the Monies taken from the Chests where lodged in former Ages to be in readiness upon any Streights the Houses might be reduced to Yea they sold four or five public Schools to Towns-men who pulled them down and converted the Materials to their own uses and annexed the Grounds to their Gardens So great was the subversion that the Terms were altered from the periods used in former times Terms and Lectures altered and Degrees neglected the Ancient Exercises c. as Lectures scorned and the taking of Degrees by some thought Anti-Christian and others neglected to take any by the apprehension that there should be no use of them and because the Stipends were withdrawn But says my Author we are not to complain of the Violating of the Honors and Degrees in Learning since Learning it self was Expiring and drawing it's last breath the Schools being ruined and the Philosophy Exercises being taken away Those who have a mind to Read the Ravage then made by the Visitors either by their Covetousness or Connivance may find them fully related in the foregoing Authors For a Reformation being designed by the King there was no place in the University for the Unconformable SECT II. The Visitation in Queen Maries Reign §. 1. Queen Maries Visitation ANno 1553. Wood fol. 274. 275. Wood Antiq. Oxon lib. 1. fol. 274.275 Pat. 1. Maria part 6. When Queen Mary came to the Crown she took great Compassion on the University as appears by her Letter in which she sets forth the grievousness of the former Visitation and she bestowed some Rectories upon it by her Charter May 11.1 o. Regni Neither did she omit to Exercise her Authority in Visiting the University in restoring the Roman Catholic Religion as she did through the Kingdom The first that Visited was Steven Gardiner Bishop of Winchester See for the Visitation of Cardinal Pool Anno 1557. a. who was Local Visitor of New-College and Corpus Christi and St. Mary Magdalen College He appointed for his Deputies Sir Richard Read Kt. and Dr. George Wright Arch-Deacon of Oxford Large account in Fox Act sand Mon. Vol. 3. Edit 1640. fal 762. to 780. Upon the 26th of October they Visited St. Mary Magdalen College and Dr. Haddon the late President of his own accord did quit the Presidentship Thomas Bentham the Dean