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
all Jurisdictions whatsoever that a Founder may reserve to himself or confer upon another This invading of Temporal Rights under a pretence of Ecclesiastical Authority and particularly invading and encroaching upon the Temporal Rights of Founders occasioned that remarkable Statute of Provisions made in the 25th year of the Reign of K. Edward III. in which the King Lords and Commons entitle themselves to their Temporal Rights such as the Custody of Voidances Presentments Collations c. as Lords and Advowees and declare against disturbances of free Elections c. as being against the good disposition and will of the first Founders The same will appear by perusing the other Statutes against Provisors All the Rights of a Founder belonging to him as such are recoverable by the Common-Law of the Realm and if controverted are determinable by That and That only The Right of Visitation is one of them when reserv'd to the Founder or by him settled upon or invested in any other person whoever is entitled to it derives his Title from him and it is a Temporal Right For a Visitor because himself falls out to be an Ecclesiastical Person to apply Ecclesiastical Censures upon such an occasion is as proper as if a Bishop should Excommunicate his Tenant for not paying his Rent or his Servant for not performing the Duty of his place Ann. 3 4 Eliz. Coveney President of Magdalen-College in Oxford appeal'd to the Queen in Chancery from a Sentence of Deprivation given by the Bishop of Winchester Founder and Visitor of that College The discussing of which Appeal was committed to Justice Brown and Justice Weston who after divers Conferences with the Civilians resolved That the Appeal did not lie for that this Cause was out of the Statutes of 24 25 Hen. 8. Nor did he observe the Order of the Statutes i. e. he ought not to have appeal'd to the Queen from the Sentence of the Bishop but if the Cause had belonged to Ecclesiastical Conuzance the Appeal ought to have been from the Bishop to the Archbishop and from Him to the Queen And this matter of Deprivation was meerly Temporal and as by a Lay-Patron Ex hoc sequitur says the Book That if the President be Expell'd he may have an Assize or other Action at common-Common-Law per que c. Dyer fol. 209. a. This is an Authority in point That the Visitation of a College by a Founder or his Successor is a matter of meer Temporal Right Nor do the words in the Statutes that are laid hold on warrant any such Inference as is made from them That of Ordinarius Visitator does not deserve an Answer Nor must the words per Censuras needs be understood so as to give the Visitor the Jurisdiction of an Ordinary It is not said per Censuras Ecclesiasticas nor if it had been express'd so would it have prov'd the Point since an Archdeacon may inflict Ecclesiastical Censures The word Censura signifies no more than a Penalty and sometimes less a Rebuke a Reprehension The late Act of Convocation at Oxford is called Censura tho it proceeded from no Ecclesiastical Authority When a man is said to have been censur'd in the Star-Chamber no body understands the meaning to be That that Court Excommunicated him It may with as much reason be pretended That where ever the word Judex is used Judex Ecclesiasticus must be understood as that the word Censura must of necessity import Ecclesiastical Censures But if the Statute had been full in it and that Ecclesiastical Censures had been express'd yet the Bishop's Title to his Episcopal Jurisdiction there would have been never a whit the better For how can the private Statutes of a College bring any Crime whatsoever within the lash of Excommunication for which a person is not by the Law of the Realm liable to that Censure A Foundâ—r of a College may direct That if I will enjoy the fruit of his Benefaction I shall conform to the Orders and submit to the Discipline of the Society But he can no more subject me to Excommunication for breaking his Statutes than to loss of Life or Limb or of my private Estate I hold not them of him nor enjoy them by any Right or Title derived from him So that if this College were scituate within the Diocese of Exeter yet the Members thereof would not as such be subject to him as Bishop nor would Offences against their Statutes bring them under his Episcopal Power because his Jurisdiction over them as Visitor is a Temporal Jurisdiction and his general Jurisdiction over the whole Diocese as Ordinary is of quite another nature And quando duo Jura concurrunt in unà personâ aequum est ac si essent in diversis Besides all this no Instance can be found by traditionary Report or the Monuments of the College that ever any former Bishop of Exeter exercised a Spiritual Jurisdiction over Exeter-College or any Member of it or did ever in any Instruments of theirs to the College assume that Name or in any wise claim the Authority implied in it and yet the College is of near 400 years standing But whereas the Author tells us p. 37. That this as all other Colleges in Oxford being exempt from Episcopal and Metropolitical Jurisdiction is immediately subject to the Ecclesiastical Jurisdiction of the Visitor if he be a Person competent and fit to exercise such Authority he must mean if he mean any thing That whatever Authority a Bishop has the Persons that are subject to such Authority are subject to his Ecclesiastical Jurisdiction and then if a Bishop be Lord of a Mannor within his Diocese or at least in a place exempt he being a Person competent and fit to exercise such Authority may Excommunicate his Tenants for not appearing at his Court and performing the Services incident to their Tenures A Bishop that is Chancellor for Example or Justice of Peace may Excommunicate Suitors and Offenders and enforce his Orders by Ecclesiastical Censures This is every whit as rational as that a Bishop being a Visitor of a College c. should take his Episcopal Authority along with him when he goes to Visit the Visitation of a College being an act of Temporal Jurisdiction as much as any of the rest But the Colleges in Oxford are exempt from Episcopal and Metropolitical Jurisdiction and therefore they must be subject to the Ecclesiastical Jurisdicton of their Visitor if a Person competent c. What will become then of those Colleges whose Visitors are of the Laity must they be subject to no Ecclesiastical Jurisdiction at all Yes both are subject to the Ecclesiastical Jurisdiction belonging to the University which belng now legally exempted from the Jurisdiction of any Bishop or Archbishop the Chancellor of the University who was formerly always an Ecclesiastick had the Jurisdiction transferred to him And since of later-times Lay-men of higher Rank have been elected into that Office the Statutes have provided That the Vice-Chancellor
who is to execute the Powers be a Person in Holy Orders So that there is no necessity to invest the Visitor with Episcopal Jurisdiction because the University is exempt from that of the Bishop of the Diocese or Archbishop of the Province Nor was this College for ought we can be inform'd of ever reputed to be within the Diocese or belonging to the Diocese of Exeter It was anciently within that of Lincoln and has since been exempted together with the rest of the University but not subjected to that of Exeter nor of any other Bishop whatsoever It is set free ab omni Jurisdictione Dominio vel Potestate quorumcunque Archiepiscoporum neenon Episcoporum aliorum Ordinariorum These are the words And this Exemption reaches to every particular College and every Member of every College and has been always maintained accordingly and strictly insisted upon by the University particularly in that famous Controversie Temp. Rich. 2. when Archbishop Arundel pretended a Right of Visitation there and again in K. Charles I.'s time when Laud was Archbishop But yet we cannot think we are beholden to this Exemption for our being free from the Episcopal Jurisdiction of the Bishops of Exeter forasmuch as the College was never subject to them as Ordinaries and cannot therefore properly be said to be exempted from a Jurisdiction that never had a being Nor can the Founder be suppos'd to have had it in his thoughts to cloath the Visitor with such an Universality of Jurisdiction as is contended for If that had been his intention or if he had thought it implied in the word Ordinarius he would not have restrain'd him as he has done He can exercise no Jurisdiction but at times of Visitation he cannot Visit but once in five years unless requested by the College and when he comes his Visitation can last no longer than two or three days at most He cannot expel a Scholar without the consent of the Rector and Three of the seven senior Fellows tune in Vniversitate praesentium nor the Rector without the consent quatuor ex septem maximè senioribus supradictis that is tune in Vniversitate praesentibus nor can he inflict any Punishment at all but secundum exigentiam Statutorum To which may be added That the Visitor can put no sense of his own upon the Statutes that shall be binding but upon request made to him by the Rector and the major part of the Fellows Vid. Stat. de Admiss Scholar Item interpretationibus injunctionibus declarationibus expositionibus per Reverendos in Christo Patres Successores primi originalis Fundatoris nostri Episcopos super dubiis Statutorum emergentibus ad eosdem Episcopos ex consensu Rectoris majoris partis Scholarium delatis faciendis obediam Since therefore the Bishop of Exeter has no Jurisdicton as Ordinary within Exeter-College and has really incurr'd a Praemunire for acting as such it is consequential thereupon That whatever he has done as such is illegal and the cause arising out of his Diocese void in Law There is an end then of his Excommunications and of his Suspension ab Officio Beneficio And his declaring Dr. H.'s place void which is in effect an Amotion and depriving the Rector without the concurrence of such of the Society as the Statute requires â—o consent to such Acts of the Visitor was such a Declaration and Deprivation as the Statutes do not warrant For these he did as Visitor And the Rector and five at least of the Seven maxime seniorum were present in the Vniversity so that their Concurrence might have been had But the Concurrence of Seniors to all Publick Acts is always understood to mean the consent of those that are the most senior of those that are present true present in the Vniversity as these were and he that by his own Crime incapacitates himself from performing any Acts of his place is by the Rules of Law and Reason reputed as absent And it would be absurd in expelling a Rector to require the consent of those Fellows that are participes Criminis and are by the Visitor himself for that Contempt suspended ab Officio c. This is begging the Question And whether it were a Crime or Contempt to oppose and protest against the Bishop's Visiting at that time is yet sub Judice And if it were a contempt the Bishop at least was no proper Judge of it For since he could not exert all the Powers of Visitation without their Concurrence and they protested against his power to visit then and insisted upon it as a matter of Right that they were not obliged to appear the Bishop ought not to have proceeded in his Visitation till this Difference between him and them had been determined He petitioned the Councel indeed and they left him to the Vsual course of Law But instead of taking that Course he makes himself Judge in his own Cause and since he could not amove them one by one as Visitor because that could not be done without the Concurrence of the Rector he having two strings to his Bow betakes himself to his Episcopal Jurisdiction and suspends them ab Officio Beneficio by whole-sale The course of Law which he might have taken and would have done if the Peace and Quiet of the College had been so much his care as the asserting his own double-fac'd Jurisdiction and perhaps revenging some pretended Affronts is this He might have had a Mandamus out of the Court of King's Bench directed to the Rector c. of Exeter College to command them to receive him as Visitor and to submit to him as such Upon the return of which Writ the College might have shown cause why they did not By this means the matter would have been fairly and judicially determined by a proper Court in whose judgment all parties would have been compellable to acquiesce But instead of this the Bishop who in this Controversy concerning his Right to Visit at that time was but a party makes himself a Judge in his own Cause Which is so contrary to common sense that we read in our Books that even an Act of Parliament made against natural Equity as to make a man Judge in his own Cause would be void in it self for Jura naturae sunt immutabilia Hob. 87. 8 Co. 118. This Suspension therefore of the Seniors ab Officio Beneficio being done by the Bishop as Ordinary where he had not the least pretence to the Jurisdiction of an Ordinary and he in pronouncing it having made himself a Judg in his own Cause was in it self a Nullity and the Rector and Fellows so Suspended were not in the least incapacitated thereby and consequently his declaring Dr. H's place void without the Concurrence of the Rector and Three of the maximè Seniores then present in the Vniversity was a void Declaration and not warranted by the Statutes And his Deprivation of the Rector afterwards without the consent of Four of
THE CASE OF Exeter-Colledge IN THE UNIVERSITY OF OXFORD Related and Vindicated LONDON Printed and are to be Sold by Randal Tayler neer Stationers-Hall 1691. TO THE READER THe late Proceedings of the Bishop of Exeter as Visitor of Exeter-Colledge in Oxford were so directly contrary both to the Statutes of the Colledge and the Laws of this Realm that the Rector and Fellows who opposed his Lordship therein little thought there would have been any cause to publish a Vindication of their conduct in that Affair especially when they found that his Lordship had no other grounds for his Porceedings then what have been publish't in a late Pamphlet Entitled An Account of the Proceedings of the Right Reverend Father in God Jonathan c. It was hoped the weakness of that Pamphlet would be obvious to all judicious and intelligent Readers and that the badness of his cause was sufficiently detected by the weakness of his defence But since it appears that some persons who know no better or are willing to be deceiv'd are impos'd upon either by the Bishop's Character or the credit of two Civilians and perhaps some bold dashes in the late Pamphlet as Greatness and Reputation are apt to give a colour to things that in themselves have none They began to conceive it might not be improper to let the unthinking part of their adversaries understand that they had much more to alledge in their own Vindication then had been said to run them down Yet was this design retarded because one part of their Cause to wit the Visitor's Power as Ordinary was in contest betwixt him and the Rector in the Court of King's Bench. But that having been since decided in favour of the Rector it s hoped the judgement of the Court upon that part of the Cause may facilitate the belief that the rest of his Lordships Proceedings have been all of a piece with that The design of the ensuing discourse is to satisfie all that are concern'd or will concern themselves in this Controversie that there was just cause for Mr. Colmer's first and second Expulsion that his Appeal to the Visitor was not only not warranted by but directly against the very letter of the Statutes of the Colledge that Dr. Master's his executing a Commission from the Bishop was a Visitation within the intention of the Statutes and that the Visitor has no Episcopal jurisdiction over the Colledge or any of its Members Which particulars if they be cleared we are not concern'd to give a superfluous answer to little and insignificant suggestions that trench nothing at all on the merits of the Cause The Author of the Account has that province left entirely to himself of urging immaterial passages and misrepresenting them too Our design is peace which to obtain all expressions of rancour and harsh reflexions are abstained from nor is any thing here set down but what tends to the justification of the Colledge in point of Right Even the displaying of Mr. Colmer's personal guilt had been forborn had it not given the first rise to the present disorders and if his own obstinacy had not put his Judges upon a necessity of vindicating the Justice of their Sentence But the main stress of this whole Affair centring in the Visitor's Jurisdiction the Rector and Fellows are heartily sorry that his Lordship did not meet with a more creditable occasion of asserting his pretended Jurisdiction then that which does in the nature of the thing tho not in his Lordships intentions tend to the encouragement of Vice and Debauchery and that in a Society instituted to be a Seminary of Learning and Vertue And they cannot but take notice because they hope it will make an impression in favour of them upon unprejudiced minds in what manner the illegality of his Lordships proceedings is backt by those who abett him to wit with force and violence riots and disturbances even at the performance of God's publick Worship the particulars whereof are not thought fit to be here inserted A good Cause is always best maintain'd by proper and legal methods whereas passion and force are generally signs of a bad cause as well as of ill men The CASE of Exeter-Colledge in the Vniversity of Oxford Related and Vindicated WIthin the compass of three quarters of a year two Bastard Children were born of young Women then in the Service of Bed-makers belonging to Exeter-Colledge One Anne Aris appeared to be with Child about Mich. 1688. and towards the latter end of the next Summer one Anne Sparrow was in the same condition The Rector and Senior Fellows thought as well they might that it highly behoved them for the Reputation of the Colledge to endeavour the wiping off such a double scandal Which could no otherwise be done then by a discovery who were the true Fathers of the said Bastard-children and if upon Examination and Proof it should appear that any Member of the Colledge had been faulty therein then to proceed against such Member as the Statutes of the Colledge direct Upon enquiring into the matter there appear'd violent presumptions of Mr. Colmer's Guilt As First Anne Sparrow confesttoh er Dame Thomasin Smith who was Mr. Colmer's Bed-maker that Mr. Colmer was the Father of her Child Secondly Thomasin Smith confest that after the said Anne Sparrow was disabled from working Mr. Colmer was at the charge of maintaining her These two particulars the said Thomasin Smith disclosed upon her Examination before the Rector Thirdly Ferdinand Smith Thomasin's husband being Examined by the Rector said that the Father of one of the Children was Father of both but refused to confess who that was or from whom he had money for keeping Anne Sparrow because a Gentleman he said would be expell'd and he should lose his Friends Fourthly The other young woman Anne Aris had laid her Child to the said Ferdinand Smith who Fled into the West and was furnished with money by Mr. Colmer for his Journey by whom about three months after he was taken into his Service and brought back to the Colledge Fifthly Ferdinand Smith gave bond to the Overseers of the Poor to save the Parish harmless penalty 40. l. One of the Overseers being Cook to the Colledge and charged by the Rector for unfaithfulness in his Office in taking bond of a man that was not solvent replied that he should not have taken it if he had not been bid to do it by a Gentleman who promised the Parish should come to no damage This Gentleman upon farther Examination appear'd to be Mr. Colmer who afterwards did not deny it Sixthly Presently after Anne Sparrow's delivery viz. about a weeks end it being nois'd about that Mr. Colmer was the Father she was removed and hid by Mr. Colmer or by some of his friends which upon his own Examination before the Rector he could not deny Seventhly The then Vice Chancellor now Lord Bishop of Bristol being applyed to by the Rector to Examine Ferdinand Smith as a Justice upon the
c. to expel a Fellow that is legitimè convictus c. And this Oath says he is accessary to that Statute and therefore does not tie up the person expell'd from Appealing unless he be legitimè convictus Whether Mr. Colmer was legitimè convictus or no within the intention of the Founder we shall enquire by and by But this fallacy of the Oath being accessary as he calls it to this Statute must not escape without a detection When an Oath is imposed by a Law upon such as Act by Vertue thereof or are bound by it to put it in execution or to obey accordingly there the Oath is relative to the Law and the Obligation of it reaches no farther then the Law carries it But where an Oath is imposed by a separate distinct Law without any such relation there the Law that imposeth the Oath creates a duty of performing it in the genuine sense that the words import and in this case of ours in the plain litteral and Grammatical sense If there were a Statute of the Colledge concerning Appeals allowing them in some cases and restraining them in others and an Oath enjoyned to observe the Statutes or that Statute in particular there the Oath would be what the Author calls accessary But in this case there is no provision made by any clause in any Statute for Appeals at all but particular directions for the final ending of controversies and punishing offences within the Colledge and an Oath imposed to acquiesce in such determination To prove that one may appeal if not expell'd according to the appointment and direction of the Statute he quotes a clause out of the Probationer's Oath si contingat me quod absit juxta formam exigentiam statutorum a praedicto Collegio expelli seu amoveri c. Nunquam c. Whereas the question is upon the Fellow's Oath in which those words secundum formam exigentiam Statutorum do not occur Tho if they were there it would not alter the case much unless it was made appear that Mr. Colmer was not Statutably Expell'd He was Expell'd by the Persons that have authority by the Statutes to Expell and for a crime that by the Statutes deserves Expulsion so that the forma exigentia was at least so far observ'd And if it were screw'd farther and made to extend to the merits of the cause then it were impertinent to impose an Oath not to Appeal and at the same time to leave men at liberty to Appeal when ever they find or think themselves aggrieved His second Argument is that the Statute requires a legal conviction legitimè convictus c. If the Founder had required what we call a legal conviction he would I presume have used the word legalitèr or secundum legem terrae or the like legitimè not being a word that enforces a reference to the Common-Law If he had required a legal conviction he would not have directed the prosecution to be before persons that cannot in a strict acceptation of the word legally convict A legal conviction is upon Oath which the Rector and Senior-Fellows have no power to administer and some of the crimes mention'd in the Stat. de causis propter quas Scholares c. are such as a man cannot be legally convicted of but by Jury as willful man-slaughter manifest perjury c. and yet of these a Scholar may be legitimè convictus within the intention of the Statute Coram Rectore c. who cannot impannel a Jury So that the word legitimè convictus cannot in the nature of the thing import the strictness and formality of a legal conviction But says he the proofs were so far from making a legal conviction c. Proofs making a conviction is another of his Expressions that no body else would have used It is the Verdict of a Jury or the Sentence of a Judge that makes the conviction Proofs are but Evidence and a man may be legally convict without them as when a Jury finds a Verdict upon their own knowledge But according to this Gentleman's interpretation of the Statute the word legitimè convictus must signifie convicted upon such proof as would upon a Tryal at Law be sufficient legal proof to convict and every man that is not so convicted may appeal Which as it is a new-fangled Interpretatton and scarce deserves an answer So it is contrary to the common acceptation of words A legal conviction which he would have the words of the Statute Import may be tho the Evidence be deficient and the Jury corrupt as a judgement of a Court in a cause depending before them judicially is a legal judgment tho there be error in it Every Verdict in a criminal cause is legale judicium parium and is so true in the eye of the Law that the party convicted has no remedy tho he be wronged for there lies no Attaint in criminal matters So the Sentence of the Rector and Fellows in Mr. Colmer's case was legitima convictio because they had conusance of his cause and as the Law of the Realm cuts off Appeals from the Verdict of a Jury in criminal causes so do the Statutes of the Colledge bar all Appeals from such a Sentence Words are to be understood secundum subjectam materiam the word proof generally speaking is understood of proof by Jury which is the common-Common-Law trial but how many Cases have we in our Books in which that word is otherwise taken because determin'd so by the subject matter Legitimè convictus in the Statutes of a Colledge must of necessity be understood of such a Conviction as the Statutes direct But the Statutes neither do require nor can prescribe what we call a Legal Conviction because they cannot invest the Rector c. with authority to hold a Court and administer Justice according to Law But for a full and clear answer if what has been said do not suffice let us examine how the word Legitimè is apply'd in other Statutes and hear the Founder explaining himself In the Statute de Elect. Rector ejus juramento we find the word Legitimè twice used 1. Where all Scholars in nominationibus electionibus admissionibus aliisve negotiis utilitatem Collegii concernentibus c. interesse habentes ac rite legitimè secundum consuetudinem vocati requisiti and then refusing to give their Votes for the Election of a new Rector are subjected to a penalty Here the word legitimè is explained by per consuetudinem the custom of the Colledge 2 dly Before they proceed to Election the Statute must be read per Subrectorem aut eo absente vel legitimè impedito per Scholarem maximê Seniorem c. here legitimè impediri imports a reasonable cause of absence 3 dly In the Statute de sedendo ad mensam Battellarii nec in aulâ nec alibi intrà Collegium absque causa legitima approbata alium quam Latinum aut Grecum exercitent sermonem sub paenâ pro
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
and Restitutions are always to be taken in the most benign and beneficial Sence but according to the Interpretation that this Gentleman would put upon the Statutes the priviledge in Question would dwindle into just nothing at all and consequently this Gentleman does very well defend the Priviledges of the University which yet he once Swore to maintain Mr. Vivian's Case has little in it His Right to his Fellowship depends upon his Election into Mr. Colmer's place who having been statutably expell'd as we insist and hope we have proved Mr. Vivian was duly Elected into it The Deprivation of the Rector is the next and last thing to be considered The Author tells us The Visitor resolved to confine himself strictly to the methods which the Statutes direct in the Deprivation of a Rector A good Resolution but how far the Bishop deviated from it may appear in these following Particulars 1. Whereas by the Statutes the Consent of Four of the Seven Senior Fellows is necessary to the Deprivation of a Rector his Lordship took upon him to Suspend all the Seven but Two that he might incapacitate them to dissent from his design to Deprive him Which is the more apparent by this That the Rector was deprived for Contumacy in not appearing at and owning him as having a Right then to Visit which if it were a Crime the rest of the Fellows who opposed and protested against his Visitation were equally guilty and yet they are only Suspended I say The Rector was deprived for Contumacy because no other cause of Deprivation is alledg'd in the Sentence a fewe other Bombast-words being only mentioned in a Parenthesis and supposed to express the cause of his Contumacious Absence 2. He takes in Mr. Colmer who had been expelled and whose Expulsion occasion'd all this trouble to be one of the Seven Seniors who were to sit in Judgment upon the Rector that Expelled him 3. To make it yet more Statutable he takes in Four more of the Juniors who were Registred by the Rector as obnoxious to Expulsion and by their Votes the two Seniors of the Seven dissenting and other two being present in the Hall and not asked their Consent he proceeded to pass Sentence of Deprivation against the Rector And this exactness was observed says the Author because the Statute expresly requires the Consent of four E septem maxime senioribus tunc in Vniversitate presentibus No this exactness was declined because if the Visitor had confin'd himself to the Statutes he could not have compast the Rector's Deprivation because he could not have the Majority of the Seniors of his side and therefore it was necessary for him to lay them aside whereby he deprived the Rector of the benefit of having his proper Judges So that the Objection remains They that did consent were not Four of the Seven maximè seniores But that 's all one The Bishop was satisfied that the Statutes were sufficiently observed in the concurrence of those that subscribed to the Deprivation though not the Seniors If the Bishop were satisfied all 's well The Reasons of the Bishop's satisfaction have been answered already But supposing there had not been these Irregularities in the Manner and Method of his Deprivation what was he deprived for Why the Sentence expresses it Propter ejus manifestam multiplicem contumaciam circumstantiis variis aggravatam in non submittendo se Visitationi nostrae Ordinariae sed contumacitèr se absentantem c. So that he was deprived for Contumacy And herein the Bishop confined himself strictly to the Statutes because among all the Causes mentioned in the Statute Propter quas causas Rector privari Officio debeat Contumacy is not reckon'd up as one Nor if it had can the Rector's non-appearance in the Case in question be reputed a contumacious absence because he insisted upon it as a Right not to appear Nor was it his own single Act but that of the College the Protestation having been tendred under the Seal of the College The Rector having been thus Illegally deprived and his Excommunication whereby the Visitor enforc'd his Sentence having by the Court of Kings-Bench been declared to have been pronounced Illegally let the New pretended Rector at his peril make use of any violent methods to gain Possession To legal Remedies if he thinks he has any the Law is open which whether it be of his side or no neither the Visitor nor Civilians nor his own Set of Junior Fellows are to be Judges Thus we have gone through the merits of the Controversie now depending between the Bishop of Exeter and the Rector and Senior Fellows of Exeter-College and it is hoped that notwithstanding the vain Allegations and mistaken Inferences of the Author of the Account it is plainly proved That Mr. Colmer was lawfully expelled both the first and the second time That he could not by the Statutes Appeal any where That the Visitor had no Right to receive his Appeal as Visitor by the Statutes of the College and that as Ordinary he had no Right either to receive the Appeal or to do any thing else relating to the College or any Member of it That Dr. Masters his coming was a Visitation within the intention of the Statutes and therefore that the Bishop could not Visit again till five years were expired That being opposed in his second Visitation by those without whose concurrence he could not exert the Power of a Visitor he ought not to have proceeded till that Controversie had been setled That he had no Authority to suspend any of the Fellows That the voidance of Dr. H.'s place was Illegal both as to Matter and Form and the Rector's Deprivation no better Copies of Mr. Colmer's Appeal of the several Protestations of the College both against the receiving it and against the Bishop's Second Visitation and some Petitions to and Orders of Council relating to this Cause are here inserted and are as followeth IN Dei Nomine Amen! Coram vobis Notario Publico publicâque Authenticâ Personâ ac testibus fide dignis hic praesentibus Ego Jacobus Colmer Collegii Exoniensis infrà Vniversitatem Oxon. A. M. Dico allego in his scriptis animo appellandi deque Nullitatibus iniquitatibus injustitiis omnibus singulis infrà scriptis aequè principaliter querelando omnibus melioribus viâ modo juris formâ quibus possim efficaciùs aut debeo ad omnem quemcunque juris effectum exindè quovismodo sequi valentem Quod licet inter caetera In Statutis Collegii Exoniensis praedicti specialiter Statutum provisum ordinatum est in Rubricâ De Causis propter quas Scholares privari debeant in hâc quae sequitur verborum formâ aut consimili in effectu viz. Quod si quis Scholarium vel Electorum Adulterii Incontinentiae Haeresis pertinacis Homidicii voluntarii Perjurii manifesti crebrae Ebrietatis alteriusve Publicae Turpitudinis coram Rectore Sub-Rectore Decano