lodg'd elsewhere and any application made to him to concern himself in it is null and void unless made by the Rector and Four at least of the seven senior Fellows Upon the whole then I hope it appears by what has been said That Mr. Colmer had no grievance done him That if he had he had no liberty of Appealing That the Bishop of Exeter neither as Ordinary nor otherwise is Judge of Appeals and ought not in Justice to have received his The Author of the Account entitles his Second Section Concerning the proceeding of the Bishop and his Commissary upon the Appeal Upon which Subject I shall not much insist for if the Appeal it self was unlawful All that was done pursuant to it is so too He takes some pains to free the Bishop from any imputation of partiality to Mr. Colmer I Charge him with none I only argue against his Jurisdiction He quarrels with the Rector for denying the Jurisdiction of the Court when all that the Rector and Fellows did was only to tender a Protestation against the Commissaries intermedling with Mr. Colmer's Case They submitted to him as the Visitors Commissary and desired him to proceed ad alia Visitationis negotia He relates some extravagant Expressions of the Rectors which were never said by him all that he said like it amounting to no more than this That from censures inflicted within the College no Redress was to be sought elsewhere The two Protestations tender'd at that time are transcribed and inserted at the end of this Discourse to rectifie some mistakes that the Author has committed relating to this business I pass by also what he says concerning the Vice-Chancellor's having no Title to the Cognizance of this cause the Question not being here whether the Vice-Chancellor have or no But whether the Visitor What follows is declamation The third Section concerns the Offences of the Rector and others which oblig'd the Visitor to make his Solemn and General Visitation The first Offence that he alledges is That as soon as Mr. Colmer was reinstated by the Commissary he was immediately after his departure again Expell'd or rather Disown'd by the Rector For the Justice of this second Sentence I refer to the Relation given of it before and the Depositions that were taken in the Cause The only Objection made against this Second Sentence of Expulsion is that either Mr. Colmer was now a Fellow or not If a Fellow why disavowed If not how could he fall under the Rector's Jurisdiction He was not a Rightful Fellow because expelled by those that had power to expel him and for an Offence that merits Expulsion by the Statute But he was a Pretended Fellow because restored by the Commissary who exercised a pretended Authority therein His Name was writ in the Book again he kept his Chamber and his Place in the Hall and Chappel He pretended himself to be a Fellow and consequently subjected himself to the Government of the College The Rector would not have claimed any Jurisdiction over him if he would have laid no claim to his Fellowship But by so doing he subjected himself to the Jurisdiction of the Statute so that Mr. Colmer at least by his own admittance must be bound by this Second Sentence because by claiming his Fellowship he own'd the Rector's Authority But there is no Statute provided for the Expulsion of Intruders and pretended Fellows There is a Statute provided for the Expulsion of Fellows and a man may be a Fellow that has not a good Title to his Fellowship Officers de Facto are liable to the same Penalties for undue executing of their Offices that Officers de Jure are If a meer Lay-man be inducted into a Benefice he is whilst he continues in possession a Parson de Facto he is equally subject to his Ordinary as if he were a Clerk A Gaoler de facto shall answer for Escapes Nay and we find a difference made betwixt an Officer that has a colour of Right and one that has not so much as that Mr. Colmer had a colour to claim his Fellowship because reinstated by the Visitor's Commissary who had a Jurisdiction in the College by the Statute and claim'd the Cognizance of Mr. Colmer's Cause So that he was at least a pretended Fellow or a Fellow de facto and therefore subject to the Laws of the Society The other Crimes that he reckons up are personal to the Rector with which the world has or will receive satisfaction that he is unworthily aspers'd The fourth Section concerns the Visitation it self the Evidence there given and the Sentences there pronounced In this Part the first particular to be discoursed of is the ground upon which the Rector and Fellows protested against the Bishop's Visiting at that time viz. because Dr. Masters by a Commission from the Bishop had lately exercis'd Acts of Jurisdiction and Visitation in the College and that therefore within the Term of five years which was not yet expir'd his Lordship was barr'd from any other Visitation The Question then is Whether Dr. Masters's coming and acting as he did was a Visitation within the intention of the Statute de Visitatione or not That it was may be argued 1. Because the Grant of License to the Bishop of Exeter to Visit the College is exprest in these words viz. Liceat Domino Episcopo c. absque requisitione ullâ de quinquennio in quinquennium semel ad dictum Collegium per se vel suum Commissarium c. libere accedere c. 'T is not mention'd whether to Visit the Whole or a Part whether to make a general Enquiry of matters relating to the Statutes or only some one or more Only the Visitor is empowered to come in person or send his Commissary upon what occasion soever once in five years and must have liberum accessum They may freely come and exercise their Power of Visiting The Bishop has Authority when he so comes or sends super omnibus singulis particulis Articulis in dictis Statutis contentis c. Rectorem Scholares Electos interrogare inquirere c. But if he does not think fit or find no occasion to make a general Visitation may he not confine himself or restrain his Commissary to some particulars Cui licet quod majus est ei licet quod minus Et Omne majus continet in se minus But whatever Power he exerts whether generally or but in a particular Case proceeds from him as Visitor because he has no Authority within or over the College in any other capacity nor can exercise any act of Jurisdiction but at the times appointed by the Statutes for his Visitation Now Dr. Masters did libere accedere and made use of the Visitor's Authority in several Acts. He set up a Citation summon'd the Rector and Fellows call'd over their Names adjourn'd from time to time and from one place in the College to another sentenced a
Fellow to be restor'd awarded him Costs and wrote his Name in the Book And what tho his Proceedings in taking cognizance of Mr. Colmer's Cause were illegal and therefore protested against by the College Does a Visitor's stretching his Authority beyond its bounds make his Visitation therefore stand for nothing At that rate he may do as many Illegal Acts as he will and the Wisdom of the Founder in composing this Statute of Visitation consists only in tying him up from doing the College any good and looking to the due execution of their Statutes oftner than once in five years 2. The Commission by which Dr. Masters acted was granted by the Bishop by virtue of that Clause in the Statute that gives him leave to come or send his Deputy to Visit 3. The Bishop stiles himself in the Commission Jonathan Providentiâ Divinâ Exon Episcopus Collegii Exon in Academiâ Oxon Patronus Visitator So that he conceived himself entitled to make out such a Commission no otherwise than as he was Visitor And as such Mr. Colmer had appeal'd to him Ad nos Exon. Episcopum praedictum Collegii Exoniensis memorati Visitatorem legitimum ritè legitimè appellaverit 4. That the Commissary did visit may be inferred from the Notion of a Visitation which the Author himself has given us and we may presume it comes from Dr. Bouchier The Nature of a Visitation says he is a voluntary Enquiry into matters Criminal and Correction thereupon Now Dr. Masters's coming was voluntary he came at no request unless Mr. Colmer's Appeal must stand for a Request And he was to enquire into matters Criminal viz. Whether Mr. Colmer were guilty of Incontinence Ad cognoscendum discutiendum hujusmodi causam appellationis totumque negotium principale cum suis incidentibus emergentibus dependentibus annexis connexis quibuscunque Et ad audiendum hinc inde proposita proponenda ad probationes admittendum He was likewise to enquire Whether the Rector and Fellows had done Injustice in expelling him And that Correction was to follow upon this Enquiry is manifest For if the person that had been censured should have been found a Criminal the Punishment of Expulsion was to have been entirely inflicted For upon Mr. Colmer's Appeal the Bishop had granted an Inhibition by which it was intended he should remain in possession till the re-hearing of his Cause That Dr. Masters's coming was really a Visitation is so clear that the Author is forc'd to have recourse to a distinction betwixt a general and a particular Visitation and therefore calls that of the Bishop in person a solemn and general Visitation But all we desire is to have Dr. Masters his coming and acting as he did stand for a Visitation be it general or particular it is all one to us The Statutes make no difference they give way to no Visitation at all without requisition more than once in five years And that a Visitor's exerting any act of Jurisdiction within a College when he has no Authority but as Visitor has been accounted a Visitation may appear by what hapned in another College in Oxford not many years since where Dr. Morley late Bishop of Winchester was their Visitor and confin'd as the Bishops of Exeter are in our Case to a quinquennial Visitation That Bishop must be allowed to understand the extent of his Authority as well as another and equally concern'd to support it yet when a Member of the College that had been debarr'd of a Fellowship carried a complaint to him as Visitor he refused to take cognizance of it because five years were not elaps'd since his last Visitation And tho he did it afterward he was empower'd by a Royal Commission so that he was not sensible of any Jurisdiction that he had as Ordinary to receive the Appeal and conceiv'd his coming or sending to determine it by his own Authority as Visitor to be as much a Visitation as what the Author calls a solemn and general Visitation or at least concluded that the Statutes by which he was empowered to Visit but once in five years debarr'd him from taking any Judicial Cognizance of the Affairs of the College at other times But the Bishop of Exeter had power to receive and determine this Appeal as Ordinary This is a new Doctrine never heard of in the College before nor perhaps ever thought on till of late That he was apply'd to by Mr. Colmer as Visitor and granted Dr. Masters his Commission as such and that Dr. Masters was receiv'd by the College as the Visitor's Commissary has been observed already to which may be added that the word Ordinarius is not so much as in the Commission nay and that he acted as such by complying with the Statute de Visitatione in not adjourning his Commission beyond the three days limited by the Statute has been opened in the Narrative But when the Bishop was resolved upon Mr. Colmer's second Expulsion to come himself then was this Invention set on foot That the determining an Appeal was no Visitation because the Commission was restrain'd to the hearing and determining that Cause only and he might receive an Appeal as Ordinary This is the next fallacy that the Author goes upon and which has as little appearance of Law and Reason as any of the rest For how comes the Bishop of Exeter to have Episcopal Jurisdiction over the Members of Exeter College The Jurisdictions of Bishops are circumscrib'd within the limits of their several Dioceses which bounds are set to them either by positive Laws in being or by immemorial Custom which presupposeth a Law And they are not only bounded as to Place but with respect to the subject-matter of their Jurisdiction viz. the Causes that fall under their Cognizance Where an Act of Parliament or a Canon received and submitted to as a Law of this Nation does not empower a Bishop to hold Plea there he has no Authority and if a Bishop breaks this boundary and invades the conusance of Causes that are not what the Law calls Spiritual because submitted to the Jurisdiction of the Ecclesiastical Courts he incurs the Penalty of an old Statute that of Praemuniri The College being a College of Divines and the Visitor an Ecclesiastical Person has it seems with the help of some misapplied words in the Statutes Ordinarius Visitator and per censuras help'd the Doctor and the Author to dress up a Notion of Episcopal Jurisdiction in this Case whereas the Bishop's Authority is wholly conferr'd upon him by the Statutes and as Visitor only and the Visitation of a College by virtue of a Right derived from the Founder let who will be entitled to it is an act of Temporal Jurisdiction because the Founding of a College and giving them Laws for the good Government of the Society is a meer Temporal Act which a Temporal Lord is as capable of as a Spiritual and such Temporal Lord or other Lay person may equally exercise
Records were compiled and are therefore called the King's Books And to enforce this meaning than which none but Cavillers would have thought of any other it may be further observ'd that the word of the Statute is Taxatum which looks backward and can have no reference to a Private Act of Parliament made above a Hundred years afterwards Besides that St. Ann's Living cannot be said to be taxed at a Hundred pounds a year for it is the Parish that by the Act of Parliament is taxed to make it 100 l. a year The words must the rather be understood of the King's Books because of the subject matter which is the consistency or inconsistency of a Fellowship and a Benefice In ascertaining which the Statute conforms it self to the Law of the Land by which there is a difference betwixt Livings under and over 8 l. per annum as to their compatibility And the 8 l. which the Law takes notice of to this pupose is 8 l. in the King's Books and no where else But says the Author the Condition of his Parsonage is That he shall reside upon it four parts in five of the year and the Condition of his Fellowship is That he shall not be absent from the College above fifty days The Stat. de Exitu Scholar ab Vniversitate c. does indeed mention Fifty days as the utmost time allowed to be absent from the College upon ordinary occasions But this clause follows Illis qui propter negotii Collegii aut ex speciali causâ gratiâ inferius in hoc statuto annotandâ absentes fuerint in numero absentium minimè computatis Now the Gratia inferiùs annotanda is this Non prohibemus tamen quin scholaribus electis quibuscunque ex causis promotionis ipsorum mortis vel gravis infirmitatis parentum seu precipuorum amicorum vel causis consimilibus urgentibus per Juramentum si opus fuerit petentium hujusmodi licentiam in presentiâ Rectoris vel eo absente subrectoris majoris partis Scholarium domi existentium affirmandis approbandis per eosdem concedatur certum tempus quo abesse possint Here no time of absence is limitted but the Rector and Fellows are at liberty for a cause to be approved of by themselves to give leave for absence as long as they please Habito respectu ad causas personas intervalla locorum circumstantias hujusmodi So that a Fellowship has no such condition annex'd to it as the Author tells us it has A Fellow indeed must not be absent above Fifty days without leave but with leave he may be absent Five Hundred It is to be observ'd too That causa Promotionis is one of the weighty Causes for which the Statute allows a Licence for absence to be obtain'd without restraining it to any certain time Which word I understand not if this be not its meaning Where a Fellow is in hopes of or is advanced to a preferment that does not make a Cession expresly within the Statute de Promotione causis deserendi c. In such case he may have leave from the House to be absent as long as they think fit to give leave To which may be added another consideration which perhaps is peculiar to this case of Dr. H. and has a considerable influence upon the merits of it Says the Author The Condition of his Parsonage is That he shall reside upon it four parts in five of the year There is such a Clause in the Stat. of 30 Car. 2. But the Author ought likewise to have considered that by the Act of 1 Jac. 2. The Rector is to have a House built at the charge of the Parish And be it further enacted That the said Commissioners or any Seven of them shall within thirty Days after their Constitution make or cause to be made an estimate in Writing under the Hands of some sufficient Person or Persons qualified for the same of the Charge of Building and Finishing the said Church and Steeple and a House for the Rector c. and equally Assess and cause the said to be Assessed and Levied c. So that Provision is made for the Building as of a Church so of a Parsonage-house at the Charge of the Parish And since there cannot be Legal Residence without a Parsonage or Vicaridge-house the Duty o◠Residence enjoyned by the Act cannot be supposed to take place till there be a House built for the Rector to reside in Till then not being obliged to Residence his living is not inconsistent with his Fellowship according to the Authors own Interpretation of the Statutes Involuntary Non-residence is not Non-residence within the Stat. of Hen. 8. or 13. Eliz. as when a Parson is absent by reason of an Inhibition from the Bishop And consequently Dr. H's Non-residence not being voluntary cannot be a Breach of the Proviso in the late Statute The Law is very clear That when there is no Parsonage-house upon the Glebe the Incumbent is excused for Non-residence till there be one Godolph Repertor Ecclesiasticum pag. 319 320. Num. 9. and so it was resolved Co. 6. Rept in Butler and Goodale's Case And in this Case the Parish being to build the Parsonage-house there is no Default nor Lachess in the Doctor which might have been imputed to him if himself were by the Law to build it Now the late Statute cannot be supposed to enjoyn any other Residence than the Law requires and consequently not till there be a House built to reside in For the end of the Law in obliging Parsons to Residence is maintaining of Hospitality and preventing Dilapidations as well as serving the Cure neither of which can be performed where there is not a Parsonage-house to live in So that upon the whole matter Dr. H's accepting of St. Ann's Living is not a Cession within the Statute de Promotione c. because it is not a Benefice taxed in the Kings Books at 8 l. per Annum Nor is it within the first Clause because it is not Obsequium Officium nor Exercitium within the meaning of that Clause Nor if it were is he obliged to be Absent from the College by reason of it till the Parsonage-house be built because the Proviso in the Statute cannot take place but from that time What follows is either Raillery or a plain Justification of the Doctor in resigning his former Living about eight or ten years ago For if as he acknowledges he kept himself therein to the Letter of the Statute then he did not Elude but fully comply with the Design of the Legislator which was that his Statutes should be observed in the plain literal Sense and that if he did not like his Preferment he should have Liberty to Resign it within that time and keep his Fellowship which was accordingly done sine fraude ulla absque pensione aliqua This Remark I shall only add tho the Cause needs it not That Grants of Priviledges as well as Pardons