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
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
Election of a new Rector § 1. THis being a true History of the whole Affair how far these proceedings of the Bishop are justifiable and whether the Rector and Fellows have at all been irregular or have acted contrary to the Statutes of the Colledge their own Oaths and Duty is next to be considered As for Mr. Colmer's Expulsion that he was really guilty of the crimes laid to his charge and that the Rector and Fellows had upon the hearing sufficient grounds to believe it cannot but seem very evident to unprejudiced persons by the allegations and depositions abovementioned And when there is sufficient cause for inflicting a sentence it is very weak to ascribe it to a distaste conceived against the person the secret springs whereof are not fit to be published What the Author means by secret Springs of intimacy the Rector understands not But the causes of his distaste against him since are notorious and must be made more so that the proceedings against him abovementioned may appear to have been no contrivance of passion or prejudice as the Author of the Account would suggest where he tells us that upon Mr. Colmer's opposing Sir Kingston's Election the Rector openly declar'd that he would upon that account compass his Expulsion For as no such thing was ever said by the Rector nor any thing to that effect the allegation being utterly false and a malicious invention of a person who throughout this whole proceedure has been forc't to make lies his refuge so the contrary does in some measure appear by the Rector's consenting after this Affair of Sir Kingston's to Mr. Colmer's proceeding Master of Art when it was in his power by the Statutes to deny him that degree two years longer vid. Stat. de temp Assum grad In order to this viz. his Expulsion some months after he charges him privately with incontinence and endeavours to frighten him into a Resignation of his Fellowship That the Rector had good cause to believe him guilty of incontinence does sufficiently appear by the preceding Narrative and if upon information of his guilt in that kind he privately admonished him to quit the Colledge it was an Act of friendship and charity to perswade him if he were conscious of his guilt rather to resign voluntarily than to expose his Reputation by being publickly accused And in the Stat. de causis propter quas Rector priv c. it is appointed that if the Sub Rector and five of the Seniors understand him to be guilty of an offence meriting deprivation they shall perswade him ad voluntariè cedendum Officio I pass by the Relation that the Author gives pages 6 and 7 of Mr. Colmer's conviction before the Rector and Senior Fellows and shall not take any notice of some scurrilous reflexions and the several false allegations that I find there For answer to them I refer to the former Narrative which has been drawn with all the fairness and impartiality imaginable I shall only take notice of what he says Pag. 7. that on Mr. Colmer's side two of the Fellows attested upon Oath that the party which was with Child not only acquitted Mr. Colmer before them but own'd that she had been dealt with to accuse him This the Author calls a plain and express Evidence This Evidence such as it was was given by Mr. Colmer's friends which might justly render it then suspected and by persons who managed the whole Affair on Mr. Colmer's behalf But as it stood then before the Rector and Fellows upon the hearing it amounted to no more then this viz. the woman her self acquitted Mr. Colmer in the hearing of some of his friends and own'd that she had been dealt with to accuse him And what then Because she had said such words to some of Mr. Colmer's friends in private when she was removed out of the way by his means and maintain'd at his charge shall this be thought sufficient to counterpoise what she had confest to her Dame long before the truth of which Confession appear'd by so many concomitant proofs as that of Mr. Colmer's putting the Overseer of the Parish upon taking Ferdinand Smith's security and promising the Parish should not be damnified that of Mr. Colmer's maintaining her when she was big with Child that of Ferdinand Smith's refusing to name who was the Father because a Gentleman would be expell'd which by all circumstances appear'd to be Mr. Colmer and not so much as denying that it was he that of the Midwife's declaring that when Anne Sparrow was in Labour her Dame Thomasin Smith desired her not to urge her to name the Father because she had named him to her who was no other then Mr. Colmer with divers other Proofs and Circumstances aforementioned of which it is far from being the least that Mr. Colmer did not produce Anne Sparrow at the hearing to clear his innocence which he had time enough to have done and would unquestionably have done it if he had not been guilty Not to mention over again the character of his Life and conversation which strengthened the evidence that was brought against him From this Sentence Mr. Colmer appeal'd to the Visitor The legality of which Appeal is now to be enquired into I shall endeavour 1. To prove that no Appeal lies from a Sentence of Expulsion pronounc't as aforesaid and then shall give an Answer to what is urged by the Author of the Account c. to prove that Mr. Colmer might lawfully appeal First Let us consider what the Rector is sworn to for the good Government of the Colledge Omnia singula statuta decreta ordinationes consuetudines ejusdem Collegii firmiter observabo a scholaribus singulis quantum in me fuerit c. observari faciam c. Quodque quanttum in me fuerit in conscientiâ meâ Judicio putabo correctiones punitiones reformationes debitas rationales atque justas de quibuscunque criminibus delictis excessibus scholarium c. pro qualitate delicti ubi poenae punitiones non exprimuntur expressasque juxta formam effectum statutorum decretorum dicti Collegii indifferenter diligenter faciam execrebo seu per alios vel alium fieri exerceri faciam procurabo nisi forsitan aliquando lenitatis comitatis charitatis fraternitatis misericordiae vel clementiae causâ alicui in quo magna vitae emendandae spes videatur favero Now by the Statute de causis propter quas scholares privari debeant c. it is provided Quod si quis scholarium vel Electorum adulterii incontinentiae haeresis pervicacis homicidii voluntarii perjurii manifesti crebrae ebrietatis alteriusve publicae turpitudinis coram Rectore sub Rectore Decano quinque aliis scholaribus maximè senioribus vel majore parte eorundem cum dicti Rectoris Assensu legirimè convictus fuerit ipsum perpetuò exclusum privatum a dicto Collegio nullâ aliâ monitione premissâ
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-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
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
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