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
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
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-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-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
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.
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
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
Civil Law that the Prince (b) Princeps Rescribens contra jus si sit certificatus de ipso facto videtur quoad hoc illud jus tollere Lancelottus de Attentatis par 2. q. 4. Limit 18. n. 6. Re-scribing that is Re-inforcing his Mandate contrary to Law that is contrary to such Statutes that he hath power to Abrogate if he be certified of the special Fact seems as to that particular to Abrogate the Law or Statute It is clear also that a mandate may either be by Epistle or Message which shews that the Fellows of the College were to receive the Kings Answer by my Lord President See here p. 8. when they delivered their Petition against Mr. Farmer that the King would be obeyed as a Re-inforcement of the former Mandate seeing the words of the Law are Ideo per nuncium quoque (c) L. obligatio Mandat §. 2. Ideo Mandati vel contra per Epistolam Mandatum suscipi potest and what part they are to Act that receive such Mandates is clear by what we find thus expressed Qui Mandatum (d) L. si quis alicui 27. §. 2. qui Mandatum F. Mandati vel contra suscepit si potest id explere deserere promissum Officium non debet alioquin quanti Mandatoris Intersit damnabitur Si vero Intelligit explere se id Officium non posse Id ipsum quam primum poterit debet Mandatori nunciare Vt is si velit alterius operâ Utatur quod si cum possit nunciare Cessaverit quanti Mandatori Intersit tenebitur Si aliqua ex causa non poterit nunciare securus est The Sense of which is that he that receives a Mandate if he can do it ought not to defer the performing of it otherwise he shall be condemned or punished so deeply as the concern of him that sends the Mandate is but if he understands that he cannot fulfil the Command he ought upon the first opportunity by Message to relate this to him that sends the Mandate that he may employ another and if when it is in his power he surcease from doing of it he shall make satisfaction to him that sent the Mandate as much as he is Interested But if for some cause he cannot return this Message he is excused That the signification of the Kings pleasure in this case is sufficient appears in that Rule often inculcated by our (a) Si de voluntate apparet de potestate non est disputandum Id. a. cap. 4. 12. n. 5. Author if the will and pleasure of the Prince appears we are not to doubt of the power As to the Second Question §. 5. ☞ That this Mandate included a prohibition to choose any other person besides him that was named in the Mandate seems clear to me by the known Rule Intus existens prohibet alienum If therefore the Fellows were bound to choose him whom the King appointed by his Mandate See this replyed to in the Answer to the first Objection cap. 7. sect 1. parag 7. then surely they could choose no other and that is enough to make a prohibition For the person who is bound to choose one Commanded surely cannot choose another for he hath no liberty to choose any but him for whom the Mandate was directed so that there seems no Medium but either to obey and then the liberty of all other choice is taken from him which amounts directly to the prohibition of all other persons This was what Dr. Tho. Smith prudently advised the Morning of the Election here pa. 7. or he should Suspend all Election till he had prevailed with the King to have re-called his Mandate and this had been tho' not exquisite Dutifulness yet a more civil respect to the King. But in the Civil Law we find that those things (a) Mandato contineri ca videntur sine quibus Mandatum explicari non potest l. Invitus 19. Tit. de procurat are Judged to be contained in a Mandate without which the Mandate cannot be explained Now I think it is impossible to explain the positive Mandate to choose Mr. Farmer without understanding that by that the choice of all other persons was forbid which is still made apparent by another Law (b) Mandato aliquo ea quoque Mandata Intelliguntur quae ex co consequuntur l. Indebit 47. de condit Indebit that in any Mandate those things also are understood to be Commanded which follow naturally or consequenter upon it as it doth in this Case that if Mr. Farmer by vertue of the Kings Mandate was to be chosen none other could be chosen or what is aequivalent all other persons without a revoking of that Mandate were forbid to be chosen Upon this supposition therefore that an Inhibition was in the Case it is easie to conclude how great a Crime it was in the Fellows to dis-obey for it was no less than to dispute the Kings Sovereignty and Jurisdiction than which there can be no Crime greater but open Rebellion for there is but that difference betwixt one that draws the Sword to resist the Kings Authority and one that by Vote and obstinacy doth it but that one is Armed and the other un-armed for the denying the Authority is alike in both Therefore we Read in Lancelottus that he that contravenes (c) Contra veniens Inhibitionem incurrit paenas Inhibitione contentats Idem n. 17. dehinc videmus quod Inhibitione contra veniens videtur Judicem in sua Jurisdictione contra venire De Attentatis par 2. c. 20. n. 10. an Inhibition is said to contemn the Judge in his Jurisdiction and the like must be said of the dis-obeyer of the prohibition of a King now what a Crime the contempt of a King is may best be learnt from the punishments the Laws of all Nations inflict upon the Transgressors a measure of which because those unfortunate Gentlemen have felt by their persisting to the last in so great an obstinacy I shall not at present touch upon §. 6. As in an Inhibition Is qui Inhibet co ipso videtur velle quod si contra fiat Actus non valeat Idem Ampl. 10. fol. 375. Non solum Regula procedit in Inhibitione expressa verum in Inhibitione Tacita pro ut est illa quae resultat ex a vocatione causae quam princeps ex certa scientia facit quoniam per hujusmodi avocationem videtur Princeps Judici partibus Inhibere Idem Amp. 4. n. 2. the Prince or Superior that forbids by that very Act seems to will that no Act shall be valid which is against it so a Command to do any thing must be a forbidding of doing the contrary as Lancellottus observes The Civilians do further distinguish betwixt an Express and a Tacit Inhibition as when a Prince doth avocate the Cause from any Court for when a Prince doth this of his certain knowledge he lays an Inhibition on the
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
Chester Sir Robert Wright Lord Chief Justice of the Kings Bench and Sir Thomas Jenner one of the Barons of the Court of Exchequer with particular Power to them or any two of them to visit St. Mary Magdalen College in the University of Oxford the Commissioners thought fit to meet at the Council Chamber this day being the 17th of Ooctober 1687. The Commission was Read and the same Officers confirmed as before The Lords Commissioners for Visiting Magdalen College agreed upon the following Citation in Order to their Visitation By Thomas Lord Bishop of Chester Sir Robert Wright Knight Chief Justice of the Court of King's Bench and Sir Thomas Jenner Knight one of the Barons of His Majesties Court of Exchequer His Majesties Commissioners amongst others for Ecclesiastical Causes and for the Visitation of the Vniversities and all Cathedral and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Incorporations or Foundations and Societies and particularly Authorized and Impowered by His Majesties Letters Patents to Visit St. Mary Magdalen College in the Vniversity of Oxford c. YOu and either of you are hereby required forthwith to Cite and Summon Mr. John Hough the pretended President and also the Fellows and all other the Schollars and Members of the said College of St. Mary Magdalen in the said University of Oxford to appear before Us in the Chappel of the said College on Friday next being the 21st day of this Instant October at Nine of the Clock in the Morning to undergo our Visitation and further to Answer to such matters as shall then and there be objected against them Intimating thereby and we do hereby Intimate unto them and every one of them that We Intend at the same time and place to proceed in our said Visitation the absence or contempt of him the said pretended President or the said Fellows Schollars or other Members of the said College or any of them to the contrary notwithstanding And of the due Execution hereof you are to certifie us at the time and place aforesaid Given under the Seal which we in this behalf use the 17th day of October 1687. Subscribed To Thomas Atterbury and Robert Eddows Or either of them On Wednesday October the 19th the Citation was fixed on the College and Chappel Doors and on Thursday the Commissioners entred attended by the three Troops of Horse that Quartred in the Town §. 2. The Proceedings of the Lords Commissioners at Oxford on Friday morning Octo. 21. 1687. I shall from the Register Original Papers the Bishop of Chesters notes or the Printed Relation give a Faithful account of the First and Second Visitation FRIDAY Morning THe Lords Commissioners appointed by His Majesty under the Great Seal Out of the Register Note the reason why the Commissioners left the Chappel was by reason of the crowd and for that provision was not made for their sitting there for Visiting St. Mary Magdalen College in Oxford met on Friday Morning the 21st of October 1687. In the Chappel of the same College and Adjourned to the Hall where their Commission being Read their Lordships took upon them the Execution thereof and Ordered the Fellows Names to be called over And Dr. John Hough with several of the Fellows and Schollars appearing the Lord Bishop of Chester spoke to them upon the occasion of the Visitation as followeth Gentlemen IF he who provokes the King to Anger sins against his own Soul what a Complicated mischief is yours who have done and repeated it in such an Ingrateful and Indecent manner as you have done and upon such a trifling occasion You were the first and I hope will be the last who did ever thus undeservedly provoke him There is a great Respect and Reverence due to the Persons of Kings and besides the Contempt of his Authority in this Commission you were so unreasonably Valiant as to have none of those fears and jealousies about you which ought to possess all Subjects in their Princes Presence with a due veneration of his Soveraignty over them 'T is neither good nor safe for any sort of Men to be wiser than their Governors nor to dispute the Lawful Commands of their Superiors in such a licentious manner that if they sometimes obey for wrath they oftner disobey as they pretend for Conscience sake The King is God's Minister he receives his Authority from him and Governs for him here below and God resents all Indignities and injuries done to him as done to himself Now God hath set a Just and Gracious King over us who has obliged us in such a Princely manner as to puzle our Understandings as well as our Gratitude for he hath bound himself by his Sacred promise to support our Altars at which he does not Worship and in the first place to maintain our Bishops and Arch-Bishops and all the Members of the Church of England in their Rights Privileges and Endowments No doubt but he will do his own Religion all the Right and Service he can without unjust and cruel Methods which he utterly abhors and without wronging ours which is by Law Established and by his own Sacred and free promises which have been more than once renewed and repeated to us without our seeking or solliciting for them which we under some Princes might have been put to crave upon our bended Knees This is a most Royal and Voluntary Present the King hath made to his Subjects and calls for a suitable veneration from them notwithstanding the pretended Oxford Reasons which were Publish'd by whose means and endeavors you best know to obstruct it As if the King had not Thorns enough growing in his Kingdom without his Universities planting more Now a Prince so exceedingly tender of his Honor as he is so highly Just to all and so kind beyond example to his Loyal Subjects and Servants of what persuasion soever is one under whom you might have had all the ease satisfaction and security imaginable if you had not been notoriously wanting to your selves and under a vain pretence of acting for the preservation of our Religion you had not wilfully against all Reason and Religion expos'd it as much as in you lay to the greatest scandal and apparent dangers Imaginable Your disingenuous disobliging and petulant humor your obstinate and unreasonable stifness hath brought this present Visitation upon you and might justly have provoked His Majesty to have done those things in his displeasure which might have been more prejudicial to this and other Societies then you can easily imagin But tho' you have been very irregular in your provocations yet the King is resolved to be exactly Regular in his proceedings And accordingly as he is Supreme Ordinary of this Kingdom which is his Inherent Right of which he never can be divested and the unquestionable Visitor of all Colleges he hath delegated his Commissioners with full Power to proceed according to the just measures of the Ecclesiastical Laws and his Royal Prerogative against such offenders as shall
be found amongst you and not otherwise 'T is a great grief to all sober Men to see any who would be thought True Sons of the Church of England act like Men frighted out of their wits and Religion as you have certainly done Never any True Son of the Church of England was or will be disobedient to his Prince the Loyalty which she hath taught us is absolute and unconditional Tho' our Prince should not please or humor us we are neither to open our Mouths or lift up our hands against him Yours like all other Corporations is the Creature of the Crown and how then durst you make your Statutes spurn against their Maker Is this your way to recommend and adorn our Religion and not rather to make it odious by practising that in such a froward manner which our Church Professes to abhor Do we not pray for the King as the Head of it under Christ Do we not acknowledge him for the Fountain of Honor And does not Solomon Command his Sons to fear God and the King the one with a Religious the other with a Civil fear Is he not the Lord 's Annointed and not to be toucht but with Reverence either in his Crown or Person And why should we not render then to all their dues Fear to whom Fear and Honor to whom Honor Is not this an Eternal tye both of Justice and Gratitude For where the Word of a King is there is Power And who may say unto him what dost Thou Are we not next to God and his Good Angels most beholden to him for our safety whose Honor and Lawful Authority We are now come to Vindicate Is he not the Father of our Country and ought he not to be more dear to Us than our Natural Parents especially considering how Indulgent he has been to Us and what care he dayly takes to keep us from biting and devouring one another we know not why Is not he the Center of the Kingdom and do not the concurrence of all Lines meet in him and his fortunes and how can we then understand the limits of self love if a tender Sense of his Honor and happiness be not deeply rooted and imprinted in our Souls 'T was neither dutifully nor wisely done of you to drive the King to a necessity of bringing this Visitation upon you And as it must needs grieve every Loyal and Religious Man in the Kingdom to the heart to find Men of your Liberal Education and Parts so Untractable and Refractory to so Gracious a Prince so it will be very mischievous to you at the Great Day of Gods Visitation Who will then be the greatest loosers by your Contumacy For God will Revenge this among your other Crimes that you have behav'd your selves so ungratefully towards his Vicegerent as to oppress his Royal Heart with grief for your Stubbornness to whom by your chearful Obedience you ought to have administred much cause of rejoycing They who Sow the Seeds of Disobedience have never any great reason to boast of their Harvest for whatsoever they vainly promise themselves in the beginning they are in the end ashamed and afraid of the Income of their evil Practices and indeed every sort of disobedience hath so ill a report in the World that even they who are guilty of it themselves do yet speak ill of it in others Let therefore the disreputation and Obloquy which it will inevitably bring upon you make you out of Love with it or if that will not do let the Stings of your guilty Consciences and the fear of Divine Vengeance restrain you or if you are still Insensible of all these yet at least let the present fear of those Temporal Punishments which the Laws of the Kingdom have superadded to the Contemners of Gods and the Kings Authority oblige every Soul that hears me this day to be Subject to the Higher Powers If neither a most Merciful God nor a most Gracious King can please you your wages will he recompence upon your own Heads Were it not for this Serpent of discontent and jealousies which are now so busie in it this Kingdom would be like the Garden of Eden before the Curse a Mirrour of prosperity and happiness to all the World besides but this Serpentine humor of Stinging and Biting one another and of Tempting Men to Rebel against God and the King because others who differ from us in Judgment are as happy as our selves will as certainly turn us as it did our first Parents out of Paradise Our Nation is in greater danger of being destroyed by Prophanness then Popery by Sin then by Superstition by other Iniquities then by Idolatry and I pray God we may not see Sacrilege once more committed under the pretence of abhorring Idols as I my self have seen in this place If there be any among you who have sinn'd with so high a hand against our Gracious Sovereign as the obdurate Jews did against our Saviour saying we will not have this Man to Rule over us such your petulant humor such your shameful Injustice and Ingratitude will deserve the just Animadversions of this Court. What distempers this College is sick of which we are now come to visit by the Kings Commission your selves are best able to tell us We are informed of too many already and yet we suspect there may be more and therefore be but Ingenuous and make a Conscience of giving us sincere Answers and you shall find that we will abate nothing of the just measures of our Duty for fear or favor to satisfie the Importunities of any Man being well assured that God and the King will bear us out I am sorry that you should any of you run so far upon the score of the Kings Royal Patience and Pardon as some of you have already done And that you should be in such vast Arrears of Duty and Respect to him as you are But they go far who never turn The Influence you may have upon other parts of the Kingdom makes me Charitably hope that your future Fidelity and Allegiance will for ever Answer your Duty and the Kings just Expectation And therefore I hope it will not be in vain for me to exhort you in the Bowels of Christ to a more entire submission and obedience because if such Men as you bred in so Famous an University are not thoroughly convinced of the necessity of it the more Popular you become the more pernicious will you be in encouraging your deluded Admirers who have their Eyes upon you from all parts of the Kingdom to be as Disobedient and Contumacious as your selves by which the Honor and Authority of the King may be diminished and the peace both of Church and State come to be endanger'd Obey them who have the Rule over you either in Church or State and submit your selves before it be too late for your contumacious behaviour towards them will yeild you no profit at all but your Obedience much every way the former will