more plausibly In the first place it is urged that no Commission can be granted under the Broad Seal to Visitors to place and dis-place Members of Colleges but so as they must proceed according to Legal discretion viz. by the Laws and Statutes of the Land and Local Statutes of the Colleges By this Allegation they would Insinuate that the Lords Visitors did not proceed according to such Laws and Statutes nor could proceed summarily as in the latter part of the Objection they Insinuate To this I reply The Kings Prerogative a part of the Law of the land See chap. 4. §. 1. 2. here that the Kings Prerogative in such Cases is to be taken and accepted as a Fundamental of the Laws of the Land and I hope I have sufficiently cleared the continued use of the Kings of Englands exercising this power in granting Commissions to Visit the Universities and particular Colleges c. Amongst the Patents 26 E. 3. There is a Commission directed to several Commissioners to Visit St. Mary Magdalen College in Rippon which by the Foundation of that College was under the Visitation of the Arch-Bishop of York and to enquire of the several mis-carriages of the respective Members and whether they consumed or wasted any of the Lands or Goods of that College and to return the same to the King who would take care therein So in the Parliament Rolls (a) Rot. Parl. 40 E. 3. n. 12. the Universities of Oxford and Cambridge complained in Parliament of the Fryers Mendicants of both the said Universities how Injurious they were to the Ancient Immunities of the Universities and how faulty and offensive they were to them and it was declared and resolved in Parliament that the King had sole power to redress those Controversies at his Will and Pleasure In the Plea (a) Placit 15 E. 2. n. 10. Rolls 15 Ed. 2. It is declared that the King hath an absolute power to punish contempts and the offences against him as Supreme Ordinary without proceeding in the Common and usual Course of Judicial proceedings ☞ Conformable to this King Henry the 8th granted his Commission for the Visitation of Monasteries and dis-placing several Monks and other Regulars for their mis-carriages as the Inquisitive Reader may find in Dr. Burnets History of the Reformation and that by his Sovereign and Supreme Authority without Act of Parliament So King Edward (b) Rot. Pat. 3 E. 6. 1 part the 6th Commissioned Cranmer Ridley and others to proceed de plano in a summary way against Bonner by the Examination of Witnesses against him and so to Imprison Suspend or Deprive him as they saw cause in pursuance of which Commission they Deprived him of his Bishopric So Queen Mary (c) Rot. Pat. 1 Mariae part 7. granted Commission to the then Bishop of Winchester and others to Impower them to proceed in a summary way to the Deprivation of the then Arch-Bishop of York and other Bishops So Queen Elizabeth (d) Pat. 24 June 1 Regni granted Commission to the Earls of Derby and Northumberland and others to Visit all the Clergy in the North to place and displace them as they saw cause §. 11. Inferences from the foregoing Records By all which Authorities See chap. 4.5 6 and 7. here the Opinion of Parliaments the Antiquities of Presidents and frequent Instances in later days which I have abundantly produced in the foregoing Chapters I hope I have convincingly cleared that the King in all Ages by his Prerogative hath Regulated and Reformed Universities and Colleges punished their offences placed and dis-placed their Members without anything of the Ceremony of Westminster Hall and have been advised by their Judges and Learned Council that it was their Prerogative to proceed by their Commissioners Delegated by them in a summary way to the Suspension and Deprivation of the Bishops and Clergy nor can it be denyed but the Bishops of England have great Free-holds Temporalities and Honorable Baronages to lose by such Deprivations and such were more considerable in the Eye and esteem of the Law than the Exhibitions Headships or Fellowships of any College ☞ Hence it may be noted The Kings of England exercising the power of supension and deprivation by Commissioners upon Bishops Abbots Priors c. may well do it on Members of Colleges that since our Kings have exercised such a power over Monasteries Colleges purely Religious Arch-Bishops and Bishops they may much more exercise the like over Universities and Colleges since whatever power they or their Founders had or have it was never given them by any Statute or any part of the Common Law it being the Kings sole Prerogative to Constitute Coporations or Bodies Politic sole or Aggregate Ecclesiastical or Civil under several and distinct qualifications conditions and trusts and the Universities and Colleges derive their Existence from the Royal bounty of the Prince who made them Corporations Constituted them by the direction of their respective Founders Bodies with Heads and Members to be Governed by such Rules and Statutes as the Founder by the Kings Licence should appoint But it was never certainly Intended that the King by such Grant or Licence should Delegate such Authority to Founders Visitors or the Members of Colleges See chap. 4. sect 1. here whereby to injure his Prerogative or determin the Supremacy which the Law of the Land had Annexed to his Imperial Crown as at large I have cleared before That the King is Supreme Head and Visitor in all Ecclesiastical and Civil causes See cap. 4. here hath been fully proved and that from the King all Judges Ecclesiastical and Temporal derive their Authority And sure a Delegation of power from the King can be no Bar or Estople to the King to exert his Prerogative that he thereby can be concluded from Delegating power to others to correct and reform misdemeanors and offences in Communities created by him or his Ancestors or to supervise the Actions and Management of his Judges Ecclesiastical Local Visitors or persons Commissioned by him As to Dr. Thomas Coveneys Case I shall consider it when I come to Treat of Appeals §. 12. Whether Colleges be of Temporal or Spiritual nature ☞ Concerning the Temporal Estates of the Fellows and the profits of the Fellowships being Free-holds that alters not the Case of the Kings power of Visiting for altho' it is disputed by Learned Authors whether Colleges be of a Lay or Spiritual nature yet it is most clear that they have undergone Visitations the reason of which is because they are the Nurseries of Learning and Piety Qualifications of great Moment to the well-being of Government and consequently require the Princes special care since upon the purity or impurity of these Fountains much good or bad must be derived to the Sovereign and Subject And altho' in the Universities some Studies relate not at all to Divinity as Civil Law Physic c. yet the Body of the Students
LICENS'D By COMMAND this 23d of July 1688. JA. VERNON THE KING'S Visitatorial Power ASSERTED BEING An Impartial Relation of the late Visitation of St. Mary Magdalen College in Oxford As likewise an Historical Account of several Visitations of the Universities and particular Colleges Together with some necessary Remarks upon the Kings Authority in Ecclesiastical Causes according to the Laws and usages of this Realm By NATHANIEL JOHNSTON Doctor in Physic Fellow of His Majesties College of Physicians in London Pereunte Obsequio etiam Imperium Intercidit Tacitus 1 Histor LONDON Printed by Henry Hills Printer to the King 's Most Excellent Majesty for His Houshold and Chappel And are sold at his Printing-house on the Ditch-side in Black-Fryers 1688. TO THE Judicious Reader AS soon as His Majesty had been pleased to lay His Commands upon me to Collect materials for this Subject I could not but reflect that it was to Treat of a matter that I knew not any had Writ upon before and of such a largeness that it takes in not only the Case of Magdalen College but regards all other Corporations and Societies of that Constitution and spreads it self into some branches of the Prerogative Royal Wherefore the nature of the Thing requires a Treatise of me not altogether unsuitable to the Dignity of the persons concerned viz. The King and the Universities which would induce persons of all Ranks to peruse it who desire satisfaction in a matter of such importance both to the Prince and Subject This suggested to me a necessity of enquiring into Records of preceding ages and to render the Work at least a Collection of various instances in several Cases of Visitations Therefore finding no compleat History of any Visitation of our Universities except that of the long Parliament I judged it necessary to give an Impartial account of the proceedings from the Kings Mandate for Mr. Farmer to the close of the Visitations by the Lords Commissioners whereby this and after ages might have an Authentic Precedent if any occasion should happen of this kind and that people concerned might know their Boundaries and in this part I followed the Registers Original Papers Authentic Copies of Letters and Orders or the Diaries accounts of such as were present and actors in the disquisition and in this particular I have used as much diligence as I could not to be imposed upon and had finished most of this before the Oxford Relation was Printed and wherein I differ from that I have done it upon the best Intelligence I could obtain After the finishing of this I judged it not improper before I entred upon Answering the Objections I found urged by the Vice-President and Fellows of St. Mary Magdalen College to clear the Kings Prerogative over the Universities in making and Abrogating their Statutes or dispensing with them and placing or dis placing of their Members which obliged me to consider the matter not only in General but also to descend to many particulars and shew who by the Kings Authority or sufferance have exercised the like Authority In which I have endeavored to follow the most approved Authors and surest Records I have the rather enlarged upon this head that I might afford variety of Cases whereby the distinct claims of Right of Visitation might be Illustrated and this Tract might be a Repertory whereby upon emergences the Original Records might be enquired after If some may judge me too tedious I desire them to consider that it was not enough to clear the point of St. Mary Magdalen College but likewise to discover in what other Cases the Kings of England had exerted their Prerogatives The Contemplation of this led me to touch tho' with a trembling hand the Regalia of our Kings and look into the Laws and usages of former times and in what sort the Soveraignty and Supremacy of our Kings in matters of Ecclesiastical cognizance are declared by the Laws in being In which part I treat of the Kings Authority abstractedly from Doctrinal Religion This I the rather have done that the Subjects of all conditions may observe how great the Authority and Prerogative of the King is in dispensing with University and College Statutes since by the plain and direct Laws that Assert the Kings Right in opposition to all Foreign powers his Supremacy is so Established in Ecclesiastical matters and causes that it is applicable to other purposes than at the first view may appear obvious which I leave to the discussion of those better versed in the Laws than I shall ever presume to be Nevertheless I hope in the treating of this subject it will be owned that I have Introduced no Novelty but Copy'd what is found in History or the public Records and brought to light a Prerogative inseparable from the Royal State of our Kings which some for want of consulting the same have not so well discerned It is to caution the Heads and Fellows of our most eminent Universities not to contend with their Sovereign that I have so copiously produced Instances of the practice of former times and have so largely treated of them before and since the Reformation It was for this end solely and not in the least to erect Trophies for any Victory over the unfortunate that I have pointed out these Sea-marks that others may avoid dashing themselves against the Rock upon which the British Monarchy is so firmly placed that no Tempests of open Rebellion or the highest swelling Seas much less any single Billow can be able to shake It is far from my Intention in this to enter into any dispute about the limits of Ecclesiastical or Secular power It is sufficient that I shew it in some particulars of known practice without examining the grounds any more than as declared by the positive Laws or practice of the respective Sovereigns I know some may look upon this as a matter treated of ex superabundanti yet I thought my self obliged so far to enter into a dissertation upon it as I might thereby make it appear that by the extensiveness of the Sovereignty Universities much more private Colleges both which the Law accounts among the Creatures of the Crown must own a subjection of themselves and their private Statutes to the King as Supreme Neither hath it been any desire to render the Kings Prerogative greater than the Laws and usages of our Kings do manifest that I have shewn how it hath been insisted upon even against some exemptions of the Apostolic See or to Establish any Paradox but only to Assert the just Rights of the Crown at least according to my Reading and do with all deference submit what I have composed to the Judgment of the Learned in our Laws But to leave this I desire the Candid Reader will peruse the Contents of the Book in the following Pages before he enter upon the whole whereby he may see the connexion and sequences of the matter and he must not expect that those Contents are exactly according to the
Bishop of Oxford President § 6. pag. 50. Observations upon it pag. 51. CHAP. II. THe proceedings of the Lords Commissioners in the Local Visitation of St. Mary Magdalen College in Oxford pag. 52. SECT I. The Transactions from the Citation sent October 17th 1687. to the 19th of the same Month. pag. 52. Citation of Mr. John Hough the Fellows Schollars and other Members of St. Mary Magdalen College § 1. pag. 53. The proceedings of the Lords Commissioners Friday Morning October the 21st § 2. p. 54. The Bishop of Chesters Speech pag. 55. Proceedings Friday Afternoon pag. 62. Proceedings Saturday Morning Octob. 22d § 3. Ibid. Proceedings Saturday Afternoon pag. 63. The Lords Commissioners Letter to my Lord President October 22d § 4. pag. 63. The Account sent of the Lords Commissioners procedings till the Evening of October 22d with some supplemental Additions from the Bishop of Chesters Notes and Dr. Thomas Smiths Diary § 4. pag. 65. to 71. The Vice-Chancellor of Oxfords Programma which was published by the Vice-Chancellor without any complaint of the Lords Commissioners as by mistake is expressed § 5. pag. 71. My Lord Presidents Answer to the Lords Visitors Letter of the 22d of October § 6. pag. 72. Dr. Staffords paper in defence of Dr. Houghs Election c. § 7. pag. 74. The Bishop of Oxfords Proxy § 8. pag. 76. The Kings Mandate to the Lords Visitors to Admit the Bishop of Oxford or in his absence by his Proxy if the Fellows refuse to Admit him § 9. pag. 77. 78. Dr. Thomas Smith's Answer about Admitting the Bishop of Oxford § 10. pag. 79. The Admission of the Bishop of Oxford by his Proxy pag. 80. Other proceedings on Tuesday Morning § 11. p. 81. Submission of the Fellows to the Bishop of Oxon conditional § 12. pag. 81. Sentence against Dr. Henry Fairfax and his protestation against the proceedings of the Lords Commissioners § 13. pag. 84. 85. Papers from Mr. John Gilman Dr. Thomas Smith and Mr. William Craddock § 14. pag. 86. 87. The Answer of the Lords Commissioners to the Lord Presidents Letter of the 23d of Octo. § 15. pag. 87. The Account the Fellows gave in concerning their Hospitality and Charities § 16. pag. 90. 91. Dr. Thomas Smiths paper upon the same account § 17. pag. 92. Proceedings Thursday Morning Octo. 27. § 18. pag. 94. The Lord Presidents Answer to the Lords Commissioners Letter of the 25th Octo. § 19. pag. 94. 95. Proceedings Friday Morning Octo. 28. § 20. pag. 96. A paper of the Fellows Justifying their Election § 21. pag. 96. 97. The Fellows refusing to submit to what was required § 22. pag. 95. Dr. Bayleys explication of his Submission § 23. pag. 98. Mr. George Fulhams Answer to the Question about submission and the Sentence of Expulsion against him § 24. pag. 100. SECT II. The Second Visitation by Adjournment of St. Mary Magdalen College by the Lords Commissioners pag. 101. The Kings Mandate for Mr. William Joyner and Mr. Job Allibon § 1. pag. 102. The Lord Bishop of Chesters Speech § 2. pag. 103. to 112. The form of the Petition and Submission required of the Fellows and Mr. Thompsons Answer § 3. pag. 112. 113. Dr. Aldworths Reply and Justification of himself § 4. pag. 114. The Decree of the Lords Commissioners of Expulsion of the Fellows that would not submit § 5. pag. 116. The protestation of the Expelled Fellows § 6. pa. 117. Mandates for other Fellows Ibid and pag. 118. The proceedings of the Lords Commissioners at Whitehall after the return of the Lords Visitors from Oxford § 7. pag. 118. 119. The Sentence of Incapacitating the Expelled Fellows § 8. pag. 120. 121. The Method the Author intends to proceed in pag. 122. CHAP. III. OF the Nature and Constitution of the Societies of the Liberal Arts such as Colleges and Vniversities are pag. 123. SECT I. Concerning Incorporations in General and the Privileges granted to the Vniversities of Oxford and Cambridge by our Kings or by the Popes pag. 123. How all sorts of Societies and Corporations are Founded by the King. § 1. pag. 123. How all Colleges and Corporations are made such by the King. § 2. p. 124. Things requisite to a Corporation § 3. pag. 125. The end for which Corporations are constituted § 4. pag. 126. The power of conferring Degrees in Universities conferred on Subjects by the Sovereign § 5. pag. 127. 128. SECT II. From whom the Vniversity of Oxford hath had 〈◊〉 it's Privileges pag. 129. The Kings of England sole Donors of privileges during the Saxons time § 1. pag. 129. Privileges granted by Kings after the Conquest § 2. pag. 130. The Pope confirms them pag. 131. King Henry 3d. grants privileges during his pleasure § 3. pag. 132. Privileges granted by King Edw. 1st pag. 133. And King Edw. 2d pag. 134. And King Edw. 3d. Ibid. And King Rich. 2d § 4. pag. 135. Inferences from the before recited Charters pag. 136. And from those of King Hen. 4th and King Hen. the 5th and King Hen. 6th § 5. pag. 137. The Method of Founding a College § 6. pag. 137. 138. The confirmation of Pope Sixtus the 4th § 7. pa. 138. The Charters of King Henry the 8th and his power over the Universities § 8. pag. 140. Wrong Printed § 9. King Hen. 8th retaining the Statutes of the University § 10. pag. 141. Falsly § 11. The King seizeth all the privileges § 11. pag. 142. CHAP. IV. COncerning the Visiting of the Vniversities and particularly of that of Oxford pag. 144. SECT I. Concerning the Kings Supremacy and Power in Ecclesiastical Causes and Visitations pag. 144. What power the Kings of England used before the Conquest § 1. pag. 144. In what particulars some of our Kings exercised a power in Ecclesiastical matters § 2. pag. 145. Of Investiture of Bishops § 3. pag. 148. Concerning the Admitting the Popes Legats here Ibid. and 149. Disputes betwixt the Arch-Bishop of Canterbury and the Popes Legats § 4. pag. 150. How the Popes Legats exercised greater power in latter times § 5. pag. 151. The Arch-Bishop of Canterbury Created Legatus Natus § 6. pag. 152. When the Style of Legatus a Latere began to be used here § 7. pag. 153. How the Legats power was allowed by the King in Visitations c. Ibid. and pag. 154. Concerning Arch-Bishops and Bishops Visitations § 8. pag. 155. How the King promoted Bishops c. § 9. pag. 155. How far the Canons were allowed here § 10. pag. 155. 156. Secular Courts Judged here what was to be held of Ecclesiastical Cognizance § 11. pag. 156. The Application of this Discourse to the matter of Visitation c. § 12. pag. 157. In what particulars our Kings claimed not Ecclesiastical Administration § 13. pag. 157. 158. How the Pope obtained greater power § 14. pag. 158. The Kings Supremacy asserted by King Henry the 8th § 15.
Chester Sir Robert Wright Lord Chief Justice of the Kings Bench and Sir Thomas Jenner one of the Barons of the Court of Exchequer with particular Power to them or any two of them to visit St. Mary Magdalen College in the University of Oxford the Commissioners thought fit to meet at the Council Chamber this day being the 17th of Ooctober 1687. The Commission was Read and the same Officers confirmed as before The Lords Commissioners for Visiting Magdalen College agreed upon the following Citation in Order to their Visitation By Thomas Lord Bishop of Chester Sir Robert Wright Knight Chief Justice of the Court of King's Bench and Sir Thomas Jenner Knight one of the Barons of His Majesties Court of Exchequer His Majesties Commissioners amongst others for Ecclesiastical Causes and for the Visitation of the Vniversities and all Cathedral and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Incorporations or Foundations and Societies and particularly Authorized and Impowered by His Majesties Letters Patents to Visit St. Mary Magdalen College in the Vniversity of Oxford c. YOu and either of you are hereby required forthwith to Cite and Summon Mr. John Hough the pretended President and also the Fellows and all other the Schollars and Members of the said College of St. Mary Magdalen in the said University of Oxford to appear before Us in the Chappel of the said College on Friday next being the 21st day of this Instant October at Nine of the Clock in the Morning to undergo our Visitation and further to Answer to such matters as shall then and there be objected against them Intimating thereby and we do hereby Intimate unto them and every one of them that We Intend at the same time and place to proceed in our said Visitation the absence or contempt of him the said pretended President or the said Fellows Schollars or other Members of the said College or any of them to the contrary notwithstanding And of the due Execution hereof you are to certifie us at the time and place aforesaid Given under the Seal which we in this behalf use the 17th day of October 1687. Subscribed To Thomas Atterbury and Robert Eddows Or either of them On Wednesday October the 19th the Citation was fixed on the College and Chappel Doors and on Thursday the Commissioners entred attended by the three Troops of Horse that Quartred in the Town §. 2. The Proceedings of the Lords Commissioners at Oxford on Friday morning Octo. 21. 1687. I shall from the Register Original Papers the Bishop of Chesters notes or the Printed Relation give a Faithful account of the First and Second Visitation FRIDAY Morning THe Lords Commissioners appointed by His Majesty under the Great Seal Out of the Register Note the reason why the Commissioners left the Chappel was by reason of the crowd and for that provision was not made for their sitting there for Visiting St. Mary Magdalen College in Oxford met on Friday Morning the 21st of October 1687. In the Chappel of the same College and Adjourned to the Hall where their Commission being Read their Lordships took upon them the Execution thereof and Ordered the Fellows Names to be called over And Dr. John Hough with several of the Fellows and Schollars appearing the Lord Bishop of Chester spoke to them upon the occasion of the Visitation as followeth Gentlemen IF he who provokes the King to Anger sins against his own Soul what a Complicated mischief is yours who have done and repeated it in such an Ingrateful and Indecent manner as you have done and upon such a trifling occasion You were the first and I hope will be the last who did ever thus undeservedly provoke him There is a great Respect and Reverence due to the Persons of Kings and besides the Contempt of his Authority in this Commission you were so unreasonably Valiant as to have none of those fears and jealousies about you which ought to possess all Subjects in their Princes Presence with a due veneration of his Soveraignty over them 'T is neither good nor safe for any sort of Men to be wiser than their Governors nor to dispute the Lawful Commands of their Superiors in such a licentious manner that if they sometimes obey for wrath they oftner disobey as they pretend for Conscience sake The King is God's Minister he receives his Authority from him and Governs for him here below and God resents all Indignities and injuries done to him as done to himself Now God hath set a Just and Gracious King over us who has obliged us in such a Princely manner as to puzle our Understandings as well as our Gratitude for he hath bound himself by his Sacred promise to support our Altars at which he does not Worship and in the first place to maintain our Bishops and Arch-Bishops and all the Members of the Church of England in their Rights Privileges and Endowments No doubt but he will do his own Religion all the Right and Service he can without unjust and cruel Methods which he utterly abhors and without wronging ours which is by Law Established and by his own Sacred and free promises which have been more than once renewed and repeated to us without our seeking or solliciting for them which we under some Princes might have been put to crave upon our bended Knees This is a most Royal and Voluntary Present the King hath made to his Subjects and calls for a suitable veneration from them notwithstanding the pretended Oxford Reasons which were Publish'd by whose means and endeavors you best know to obstruct it As if the King had not Thorns enough growing in his Kingdom without his Universities planting more Now a Prince so exceedingly tender of his Honor as he is so highly Just to all and so kind beyond example to his Loyal Subjects and Servants of what persuasion soever is one under whom you might have had all the ease satisfaction and security imaginable if you had not been notoriously wanting to your selves and under a vain pretence of acting for the preservation of our Religion you had not wilfully against all Reason and Religion expos'd it as much as in you lay to the greatest scandal and apparent dangers Imaginable Your disingenuous disobliging and petulant humor your obstinate and unreasonable stifness hath brought this present Visitation upon you and might justly have provoked His Majesty to have done those things in his displeasure which might have been more prejudicial to this and other Societies then you can easily imagin But tho' you have been very irregular in your provocations yet the King is resolved to be exactly Regular in his proceedings And accordingly as he is Supreme Ordinary of this Kingdom which is his Inherent Right of which he never can be divested and the unquestionable Visitor of all Colleges he hath delegated his Commissioners with full Power to proceed according to the just measures of the Ecclesiastical Laws and his Royal Prerogative against such offenders as shall
the Regal only and that the Regal privileges should be sent to the King but the Episcopal and Papal should be kept but my Author thinks the last were also sent After this when any office in the University was void the King appointed the Successors so that it is found that even one of the Bedles was so placed This Instance doth sufficiently manifest the Kings absolute power over the Universities in taking into his hands at his pleasure all or any part of their privileges and restoring them when he thinks fit as he did these Anno 1541. 33 H. 8. The King (a) F. F. fol. 107.6 appointed Rules about the Election of the Proctors and ordered several other things relating to the better Governing of the University Anno 1543.35 H. 8. The King restores their privileges conditionally The King restored the Liberties to the University which he had retained from the Year 1522. yet so as the Vice-Chancellor Tresham entred into a Recognizance of 500 l. that the University should exercise none of the privileges granted Anno 1523. by the means of Cardinal Wolsey Thus I have given an Abridgment of what the Laborious Mr. Wood hath related concerning the Kings or Popes Grants of privileges to the University or what I have met with other where relating to this business and shall now proceed in my designed Method referring the Reader for later Charters to the Arcives of the University and the Act of Parliament for Incorporating both Oxford and Cambridge CHAP. IV. Concerning the Visitations of the Universities and particularly of that of Oxford SECT I. Concerning the Kings Supremacy and Power in Ecclesiastical Causes and Visitations §. 1. First what Authority the Kings of England used before the Reformation IT cannot be expected that I should discuss the Controversie here how far the Popes power was exercised in England in matters Ecclesiastical or in things to be done in Ordine ad Spiritualia The Curious may have recourse to the Learned Marca de Regno Sacerdotio the Concordata the Regalia of France and Sir Roger Twisdens Historical Vindication if he would be satisfied in the bundaries of the Ecclesiastical and Secular power ☞ It will be sufficient for my purpose to shew first that long before the Reformation several Kings of England permitted no Canons or Constitutions of the Church or Breves and Bulls of the Apostolic See to be executed here without their Allowance and that in several particulars wherein the Pope in other places by the Canons or the Plenitudo potestatis exercised a special Jurisdiction either some of our Ancientest Kings did the same or if they apprehended any diminution of their Crown or Dignity to attend their exercise by any power not derived from their selves they prohibited them ☞ And Secondly Secondly What power they have exercised since the Reformation That since the Supremacy hath been Established by Acts of Parliament in the Crown The Kings of England may according to the Laws in force not only exercise all the powers they could as Sovereign Princes but likewise whatever the Pope de Jure if not de facto could or did do in the outward Regiment of Ecclesiastical matters and consequently whatever was done in Visitations by the Authority of the Popes Metrpolitans or Dioecesan Bishops may now be done by the Kings of England as Supreme Ordinary §. 2. Before I enter upon this Subject I desire it may be noted These Instances are produced to Induce the Subjects obedience to the King whose Authority ought to be well considered that I bring not the Instances to induce a belief that the Popes according to the Canons of the Church did not oppose some of the practices of the Kings I mention But to shew how Incongruously the Fellows of St. Mary Magdalen College acted who knowing these things and that later Laws had devolved upon the King even the power of the Pope exercised here inforo externo should dispute the Kings Authority in a matter so manifestly appertaining to his Royal Dignity ☞ For Brevities sake I pass the Saxon times King William the 1st for the sure Establishing his Conquest is noted by Eadmerus (a) Histor novorum lib. 1. fol. 6. to which he adds de hujusmodi personis Episcopes Abbates alies principes per totam tenam Justituit de quibus Indignum Judicaretur si per omnia suis legibus non obedirent Idem to have Introduced the Norman usages of his Ancestors tho' he calls them new here Among which he reckons that none in his Dominions should own the Pope but by his Command nor receive his Letters unless shewed first to him and if the Arch-Bishop of Canterbury called and praesided in a General Council of the Bishops he allowed nothing to be appointed or forbid unless they were accommodated to his Will and were first ordained by him nor suffered any of his Barons or Officers to undergo any Ecclesiastical Censure but by his precepts So that I think it not so strange What King William Rufus did Upon the Shism none more fit then the King to resolve whom to adhere to that during the Schism his Son William Rufus claimed as other Princes did a Right to declare to which Pope he would adhere some consenting to Pope Vrban others to Clement Therefore the King demanded of Anselm from which of those Popes he would receive his Pall and the Arch-Bishop Answered him he would receive it from Pope Vrban But the King (a) Rex dixit illum prō Apostelico nondum accepisse nec suae vel paternae Consuetudinis eatenus extitisse ut praeter suam licentiam aut Electionem Aliquis in Regno Angliae Papam nominaret quicunque sibi hujus dignitatis Potestatem vellît praeripere Unum foret ac si coronam suam sibi conaretur Auferre Eadm fol. 25.47 told him that he had not yet received him for Pope nor had it been his or his Fathers Custom hitherto that any should be received as Pope in England without his Licence and Election and whoever would take from him this Power of his Dignity should be esteemed by him as one that endeavored to take from him his Crown And when Anselm Answered that he would not in any thing depart from obedience and subjection to Pope Vrban The King in great wrath protested (b) Nequaquam fidem quam sibi debebat simul Apostolicae sedis obedientiam contra suam voluntatem posse servari fol. 26. N. 1. None to go to Rome but with the Kings leave that the Arch-Bishop could not keep alike or together the Faith which he ought to the King and the obedience to the Apostolic See contrary to the Kings Will. When in the same Kings Reign the Arch-Bishop was sollicitous to have leave to go to Rome and Visit the Successor of St. Peter for the being better instructed in the Government of the Church He received Answer (c) Sed si Iverit pro certo noverit
Ralph de Diceto (c) An. 1175. Col. 597.21 observes that our Kings did in such sort follow the Ecclesiastical Canons as they had a care to Conserve their own Rights hence it is that in the Saxon Laws we find the Kings extending their Commands to the enjoyning of those things in Ecclesiastical matters which by Canons of Councils were agreed to as Sir Roger (a) Cap. 5. N. 6. Twisden hath summed up in Ten particulars ☞ In one of which King Alfred (b) L. L. Aluredi C. 8. pa. 25. Jourval c. 9. Coll. 823. The Decrees of such Councils must be well obeyed when Kings were present reserves to himself the liberty of dispensing event with the Marriage of Nuns In another it appears that the Kings caused the Clergy of their Kingdom to meet in Council and sometimes presided themselves in them tho' the Popes Legat were present as may be seen in Sir Henry Spelmans Councils Page 292.293.189 pasim Ibid. vita Lanfranci C. 6. Col. 1. pa. 7. Florent Wigorn. 1070. p. 434. ☞ It is likewise certain that before (c) Twisden Vindica c. 5. N. 7. p. 99. William the Conquerors time the English Bishops had no Ordinary Courts distinguished from the Lay but both Secular and Ecclesiastical Magistrates sat and Judged together but he finding these proceedings (d) Non bene neque secundum Sanctorum Canonum praeceta not good nor according to the precept of the Holy Canons did by his Charter make a distinction of the Courts that such as were Convented by the Bishop should not Answer according (e) Non secundum hundred sed secundum Canones Episcopales Leges c. to the Hundred but according to the Canons and Episcopal Laws So that in this appears the Foundation of the Tryals in Ecclesiastical Courts according to the Ecclesiastical Laws which yet by our Lawyers are called the Kings Laws §. 11. The Kings Secular Courts determined what matters were to be tryed in Ecclesiastical Courts And it further appears that in Controversies betwixt parties where it hath been disputable whether the Tryal of them appertained to the Kings Ecclesiastical or Secular Courts The Kings Secular Courts have ever been Judges to which Court the cause did belong therefore Bracton (f) Lib. 5. de exceptionib cap. 15. sect 3. fol. 412. a. saith Judex Ecclesiasticus cum prohibitionem a Rege susceperit supersedere debet in omni casu saltem donec constiterit in Curia Regis ad quam pertineat Jurisdictio quia si Judex Ecclesiasticus aestimare possit an sua essec Jurisdictio in omni casu indifferenter procederet non obstunte Regiâ prohibitione Which is agreeable to what we find King William the First did in a Council at Illibon in Normandy Anno 1080. when by the advice of both the States Ecclesiastic and Secular he did settle many particulars to belong to the Cognizance of the Spiritual Judges and concludes that if any thing were further claimed by them they should not enter upon it (a) Donec in Curia Regis monstrent quod Episcopi inde habere debeant till they had shewed in the Court of the King that the Bishops thereupon ought to have it belong to them Whoever desires to be satisfied in the Jurisdiction of the Kings of England in Ecclesiastical matters may sind an Abridgment of them in Sir Roger Twisden (b) Vindicat. c. 5. N. 17. enforced with sufficient Testimonies out of our most Authentic Historians in Eighteen particulars §. 12. The application of these Historical Collections ☞ Upon the whole matter we may conclude that what was done by Archiepiscopal or Episcopal Visitation of the University was by the Kings Authority so that tho' we find not that by Immediate Commission the Kings of England Visited before King Henry the Eighth's time yet we have sufficient grounds to Judge that whatever was done was by the Kings power and Authority Therefore Sir Edward (c) Cawdryes Case 5 Reports p. 8. b. How the Temporal and Ecclesiastical Courts were subordinate to the King according to the Opinion of our Modern Lawyers Cooke lays it down for a Rule that as in Temporal Causes the King by the Mouth of the Judges in his Courts of Justice doth Judge and determin the same by the Temporal Laws of England so in Causes Ecclesiastical and Spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm and that so many of the Ecclesiastical Laws as were proved approved and allowed here by and with General Consent are aptly and rightly called the Kings Ecclesiastical Laws of England and whosoever denyeth this denyeth the King to have full and plenary power to deliver Justice in all Cases to all his Subjects without which he were not a compleat Monarch or head of the whole and entire Body of the Realm according to the words of the Statute (d) Stat. 24 H. 8. c. 12. The King the Fountain of Justice that the Kingly Head of this Body Politic is Instituted and furnished with plenary whole and intire Power Preheminence Authority Prerogative and Jurisidiction to render and yield Justice and final determination to all manner of Folke Resiants or Subjects within the Realm in all causes matters debates and contentions happening to occur insurge or begin within the limits thereof c. §. 13. In what particulars our Kings claimed not Ecclesiastical Administration It must be likewise considered that whatever power our Kings Exercised in Ecclesiastical Affairs they never claimed any in those things the School men call Ordinis as the Administration of Sacraments Celebrating Divine Offices c. but in that which is called Jurisdictionis and that being either Internal where the Divine by persuasion wholsom Instructions Ghostly Counsel and the like convinceth the Conscience This is Sir Roger Twisdens observation whereby it is obedient or External where the Church in Foro exteriori compels the Christians obedience As to the first and second none of our Kings either before or since the Reformation took upon them at all to medle either by assuming to themselves a power of Preaching Teaching Binding or loosing in foro Animae Administring the Holy Sacraments Conferring Orders c. But they took upon them the Ordering of such things as were of outward Policy of the Church as what Men were fit to Exercise them and what subjection the Subjects should yield to Decrees and Constitutions made abroad and what Doctrins were publicly to be Taught which might conduce to the quiet Peace and Tranquility of the Subject and their living in Piety and Vertue §. 14. How the Popes obtained greater powers after the Canon Laws were owned here It is further to be noted that the Popes power was enlarged after the Canon Law was received more than it had been before but if we believe Walsingham (a) Walsingham ad Ann. 1297. it was not Read in our Universities publicly till the 25th of Edward the First
thereunto but also be so far Lord over them that when he seeth cause he may abate or totally remit the Penalty Incurred by the breach of them and dispense with others for not observing of them at all yea generally Suspend the Execution of them c. §. 2. Why the Author Treats not largely on this subject But I foresee it will be alleged that what is urged thus in General and in Theory is to be applyed to the Constitution of the Government of England otherwise it reacheth not the point in Question concerning the Kings power of dispensing with College Statutes To which I Answer first That the Kings power in dispensing with Penal Laws in General having by Solemn Judgment in the Kings Bench been determined and several Treatises published to clear the point of Law and there being so lately a * Jus Coronae Treatise Writ by a Judicious person wherein the Kings power in that matter is Learnedly discussed I may be excused from treating more particularly of that § 3. Observations on the 25 H. 8. C. 21. I shall therefore only note a few observables from the Statute of the 25 of King H. 8. Chapter the 21. Entituled in Kebles Edition 1684. An Act concerning Peter-pence and Dispensations but Originally Entituled otherwise as may be seen in the * 1 2 Phil. M. c. 8. sect 10. Act of Repeal in Queen Maries time and the * 1 Eliz. c. 1. sect 8. Act of restoring it in Queen Elizabeths time to which I shall add the explication of another Act 8 Eliz. Cap. 1. and some few other remarks upon that Head. The Foundation of this Act is grounded upon an Hypothesis The Statute 25 H. 8. c. 21. is founded upon the usage of a dispensing power that a dispensing power is needful in Government and altho' it be the constant Opinion and Judgment of the Courts of Law and all Lawyers that the principal intendment of that Act was to Abolish the Popes power and Authority in England in granting Licences Dispensations Faculties c. Yet from this Act many particulars may be observed I must refer the Reader to the Act it self which will shew not only the allowed usage of a dispensing power by the Popes and Prelates in matters of Ecclesiastical Cognizance by sufferance as the Act Styles it of our Kings but that the Original Right of such dispensations was in the King and so continues It is then First to be noted from the Act The Pope excercised a dispensing power that the Pope claimed by Usurpation as it is there Styled and persuaded the Subjects that he had a power to dispense with all Human Laws yea and Customs of all Realms in all Causes which he called Spiritual But the same Act saith that such claim of the Pope was in Derogation of the Kings Imperial Crown and Authority Royal contrary to Right and Reason The power excercised by the sufferance of the King and in derogation of the Royal Authority Therefore in the close of this Section it is added that because it is now in these days present seen that the State Dignity Superiority Reputation and Authority of the said Imperial Crown of this Realm by the long sufferance of the said unreasonable and un-charitable usurpations and exactions practised in the times of the Kings most Noble Progenitors is much and sore decayed and diminished c. Therefore remedy is provided c. From hence I think with submission Nota. it must be owned that if the Pope usurped this power in derogation of the Authority Royal then that power must be owned to be originally in the King otherwise in the Construction of the Act it could be no Usurpation §. 4. The Ecclesiastical power originally in the King according to this Act. ☞ Besides it 's the general Opinion of the greatest Lawyers of England that according to the Constitution of our Laws all Ecclesiastical power and Authority in England is Originally in the King so derived from him or if otherwise it is adjudged Usurpation and encroachment It being an undeniable Maxim That no person hath power or Jurisdiction in England but the King or what is derived from him and this power of the King cannot be disposed away nor abolished but by express words in an Act of Parliament Yea so Sacred are the Prerogatives of the Crown that tho' in some Cases the Kings of England have by Act of Parliament departed with their Prerogatives So the Statutes of the 23 H. 6. about Sheriffs and 31 H. 6. about Justices of Assize are frequently dispensed with Coke 12 Rep. 14. Hoberts Reports Colt and Glovers Case p. 146. and yielded not to dispense with the contrary by a non-obstante yet such Acts have been judged void So my Lord Hobert upon this very Statute saith that he holds it clear that tho' this Statute says that all Dispensations c. shall be granted in manner and form following and not otherwise yet the King is not thereby restrained The Kings prerogative not restrained by Acts of Parliament on several Cases but his power remains full and perfect as before and he may still grant them as King for all Acts of Justice and Grace flow from him as 4 Eliz. Dyer 211. The Commission of Tryal of Pyracy upon the Statute of 28 H. 8. cap. 53. is good tho' the Chancellor do not nominate the Commissioners as that Statute appoints yet it is a new Law and Mich. 5. and 6 Eliz. Dyer 225. the Queen made Sheriffs without the Judges notwithstanding the Statute of 9 E. 2. and Mich. 13. and 14 Eliz. Dyer 303. The Office of Aulnage granted by the Queen without the Bill of the Treasurer is good with a non-obstante against the Statute 31 H. 6. cap. 5. For these Statutes and the like saith the Reverend Judge were made to put things in Ordinary Form and to ease that Sovereign of Labor but not to deprive him of Power He further adds that notwithstanding the excercise of the Popes Authority yet the Crown always kept a Possession of it's Natural power of Dispensations in Spiratualibus as 11 H. 4. so to retain Benefices with Bishoprics and 11 H. 7. to have double Benefices I might add to these to Reservation in the Statute 2 R. 1 Hen. 4. cap. 6. 2. c. 4. saving to the King his Regality to be found in the Parliament Roll in the Kings Confirmation of Liberties which Sir Ed. Coke 4. Instit 51. complain of for being un-printed as also of King Henry the 4th that he will by the Assent of the Lords Spiritual and Temporal aforesaid and at the request of the said Commons be Counselled by the Wise Men of his Council in things touching the Estate of him and of his Realm saving always his liberty that is his Prerogative for that is properly the King Liberty §. 5. Where to find Arguments for the dispensing power I shall not trouble the Reader with
Books say it was Robbed or derived Because such powers being taken away from the Pope and such as had Authority under him and neither settled in any Court or person by the Statute can re-vest or re-sult to none other but the King as Supreme in all Ecclesiastical as well as Temporal Causes which by Sufferance or Usurpation as the Act saith the Pope had excercised Fifthly By the several Acts and Instances whereby the Kings of England since the making of this Act of the 25th King Henry the 8th have exerted their Supreme Authority it is clear that the Crowns Re-assumption of what the Pope had exercised hath been according to the Laws in being of which I now proceed to give Instances in the Kings dispensing with College Statutes of which I shall give some few in several Cases of many hundreds which are to be found in the Paper Office or Secretaries Books §. 7. An account of the Queens Mandate about Electing of a Master of St. Johns College in Cambridge The first Instance I think fit to Insert is as followeth The Course that was held in the last Election of the Mastership of St. Johns College in Cambridge First Bundel Ecclesiastic Universities Paper-Office The Statute of that College appointeth the Twelfth day after the Vacation to be the day of their Election and no other Secondly The greater part of the Fellows of the College were made for Mr. Alvey a Senior Fellow Thirdly The Lord Treasurer being Informed that Alvey was an unfit Man set down an Inhibition in the Queens Name to defer the Election which Inhibition was obeyed Fourthly The 12th day being passed and no further power left to the Fellows to Elect The Lord Treasurer sent a Letter the second time in the Queens Name Nominating Dr. Clayton and Dr. Stainton Commanding the Fellows to choose one of them and no other Fifthly By Authority of those Letters they choose Dr. Clayton By this proceeding it is manifest that the King may not only by a Mandate of Inhibition stay the Electors from making any choice but nominate the person to be Elected altho' by College Statutes the day of the Election and the Electors were appointed §. 8. The Bishop of Londons Testimony that the King hath dispensed with College Statutes Before I enter upon the particular Mandates I shall produce the Testimony of George Montague Bishop of London in his Letter a Copy of which the Honorable Sir Joseph Williamson afforded me out of the Paper-Office directed to Sir Edward Conway Principal Secretary of State as followeth Right Honorable THe Noble and Vertuous Lady the Lady Denbigh hath layed a Command upon me to deliver my knowledge whether the King hath at any time by his Letters dispensed with the Local Statutes of any College by a Non-obstante and upon a search it appears that his Majesty hath sent Letters of that nature to divers Colleges If this Information may promote her desires and give you satisfaction I shall be right glad and will ever remain London Decemb. 10th 1623. Your Honors Friend to Command and humble Servant Geo. London §. 9. A Mandate dispensing with Incapacities to receive Degrees I now proceed to give some Extracts of Mandates wherein the King dispenseth with College Statutes in one of which Dated December the 11th Anno 1624. the persons within named being some ways Incapacitated to take their respective Degrees were dispensed with as followeth Trusty and Well-beloved We Great you well In a Bundel Docketed Ecclesiastic Universities in the Paper-Office at Whitehall We are Graciously please of Our Royal Favor to Gabriel More Harrington Butler George Bursey and Michael Gilbert to advance them to such Degrees as they are capable of and well deserve by their Learning and diligent Studies tho' in some respects not qualified Therefore Our pleasure is that notwithstanding any Statute or other Ordinance to the contrary you forthwith Create Gabriel More a Dr. in Divinity and you also admit Harrington Butler and George Bursey to the Degree of Master of Arts and Michael Gibert Bachellor of Arts in such Form as is usual in like Case and these Letters shall be your Warrant In a Mandate for one William Morley to be a Schollar of the College of St. A Mandate for a Schollar of St. Mary Winton College without examination Mary of Winton College Oxon without Examination are these words and tho' we have a favorable Eye to your freedom that are the Electors yet in this Our so Extraordinary Recommendation We expect your Dutiful respects to this Our Princely Pleasure and Command so that this Our Will be not dis-appointed for any respet whatsoever Directed to Our Trusty and Well-belove Dr. Princock Warden of St. Mary Winton College in Our University of Oxford and Our Trusty and Well-beloved Dr. Love Warden of St. Mary Winton College near Winchester the under Warden School-Master of the College and two Posers of the Schollars for the Election In a Mandate Dated 3 o. Regni Caroli 1. A Mandate dispensing with the Incapacity by reason of the County For one Gregory Isham I find these words But because We understand that the Country where he was Born layeth some formal Incapacity upon him We are pleased hereby to Dispense therewith and do require that his Country may not be any Impediment to him in that Election Ibid. notwithstanding any Statute or Order to the contrary And these Our Letters shall be sufficient Warrant in that behalf §. 10. The acknowlegement from St. Johns College in Cambridge of the Kings power in dispensing with College Statutes March the 28th Bundel Eccles Universities 1630. c. 1633. In a Letter of the Master and Fellows of St. Johns College to the Earl of Holland the Chancellor about their choosing Dr. Digby according to his Majesties Letters Dr. Beale being then Master I find they allege that he was not capable by some Statutes having not performed some things the Statutes required They write thus Yet his Sacred Majesties Request would have been tye enough upon his most Dutiful and Obedient Servants to have endeavored the accomplishment of his Royal desire had we been enabled thereunto by Dispensation with those opposite Statutes which otherwise we stand obliged by Oath to observe Which plainly shews that if a Dispensation had been obtained or inserted in the Mandate the King had been obeyed I find that the Master and Fellows of Christ College in Cambridge In the Paper Office Ecclesiastica Academica without date being desirous to Capacitate one Norton then but Senior Sophister for a Fellowship sent him with Letters Testimonial to Oxford whereupon he obtained his Bachellors Degree and so was Elected Fellow A Senior Sophister may take Bachellor of Arts Degree by dispensation The Relation saith that the Arch-Bishop hearing of it expressed some displeasure and said he would call him to an Account for his taking the Oath for Bachellor having not full time and being not dispensed with
Imperium and in such matters the Graces and Favors of Preceeding Kings are alterable and suspendible at the pleasure of the Succeeding Sovereign who cannot be Impaired in any Act of his Sovereignty by his Predecessor so that to think that a King of England can by any of his Subjects Constitutions be bound from Visiting or giving his own Interpretation of the Statutes is a great weakness of which I shall Treat more fully in it's proper place and only Infer at present that the obligation of any Subjects Oath neither to take nor Admit of any Dispensation is in it self of no force to obstruct the Sovereign from dispensing and when he doth dispense no Oath is obligatory to any that hath Sworn to observe such Statutes as are not in being while he dispenseth with them ☞ Thus much I thought fit to offer as to what relates to the Secular power As to the Popes Dispensing it was very Incongruous and weak for any Founder to expect that the Members of the Society could oppose the Popes dispensation with any Statute which his Holiness for the time being should think fit to alter or Abrogate for as (a) Validum esse vosum aut Juramentum non petendi dispensationem aut relaxationem voti quamdiu animae volentis utilius est non petere dispensationem Superior tamen potest non obstante tali voto disoensare dispensatio valida est nam vetum subditi non aufert Superiori potestatem dispensandi Jurantes vel volentes c. sub paena ut si fecerint non possunt ab alio absolvi vel dispensari quam à summo Pontifice possunt adhuc absolvi ab Episcopo nam hujusmodi votum vel Juramentum non aufert Episcopis Jurisdictionem Ita communiter D. D. Disp 4. q. 2. punct 1. n. 28. 29. Bonacina determins that tho' the Vow or Oath of any not to seek for a dispensation or relaxation of them be valid as long as the Swearers Conscience is convinced it is profitable to his Soul to keep it and not to seek a dispensation as Rodrique and other School-men there Cited allow and so in like manner not to use a dispensation yet the Superior notwithstanding such a Vow or Oath may dispense and the dispensation is valid and Assigns the Reason for that the Vow of the Subject doth not take away from the Superior the power of dispensing as Azorius Cap. 19. Quaest 13. Sanchez lib. 4. Cap. 8. n. 35. yea he further observes that if one Vow the like is to be understood of an Oath not to do such or such a thing under the Penalty that if they do it they cannot be absolved or dispensed with by any but the Pope yet for all this they may be Absolved by the Bishop for he saith by this the Authority of the Bishop is not taken away Yea I find in Lessius (a) Unde etiam possunt dispensare in voto non petendi dispensationem hoc enim non est reservatum Lessius lib. 2. cap. 40. Dub. 18. n. 134. fol. 568. that the Confessors of the Mendicant Order can dispense with the Vow or Oath to take no dispensation and that by a Privilege Granted them by the Pope if they be partakers of the Faculties Granted to the Benedictines by Pope Martin the Fifth because this is not reserved SECT III. Some other Objections considered either relating to the Visitation in General or urged in Defence of some particular Members of the Society §. 1. A Second Objection I have met with is that the Bishop of Winchester being the Local Visitor appointed by the Statutes of Bishop Waynflet it seemed more agreeable to a formal proceeding that he should have exercised his power of Visitation before the King had ordered Dr. Hough c. to have been proceeded against by the Lords Commissioners for Ecclesiastical Causes To which I answer First in the Resolution of a very Eminent Lawyer that the Local Visitor is appointed and trusted by the Founder and thereby hath a private Trust But the King as King hath a public Trust by operation and construction of Law and by his Sovereign Authority and Jurisdiction is Supreme Visitor and may exercise that Royal Trust as those of the long Robe use to express his Prerogative sometimes when and as often as he pleaseth without any Commanding or expecting the Visitation of the Local Visitor and having the general care of and Inspection into the Manners and Duties of his Subjects may not only Visit Enquire into and Reform the Members of the College as to their Actions but also Visit the Local Visitor himself as to his doing and performances in or about his Trust Secondly It is certain the Arch-Bishop of Canterbury and the Bishop of Lincoln as I have by many Presidents cleared before have Visited notwithstanding the Local Visitors being appointed Therefore much more may the King who is Supreme Visitor Thirdly By the speedy Application of Dr. Hough to the Bishop of Winchester before I presume his Lordship could have notice of the Kings Inhibition he had Admitted him so that he was so far become a party concerned that it was no ways convenient for him to have proceeded in it Fourthly The Local Visitor is appointed only for the ease of the Crown in ordinary Cases But it cannot be supposed that if a Local Visitor should neglect to do his Office or should be partial there should not be a power in the Sovereign to order the Visitor seeing it would be a great deficiency in the Oeconomy of Government that a power should not be lodged some where to compel a Local Visitor to do his duty if he failed in it which can ultimately remain in none but the King. §. 2. The third Objection In the third place in the particular concerns of Dr. Hough it is urged See here p. 67. that the Sentence against him could not be good in Law since he was not Cited before the Lords Commissioners at Whitehall nor appeared in person or by Proxy before them nor had his cause brought before them when Sentence of Expulsion was given against him which those that are his favorers Censure as very hard usage that one should be condemned unheard In Answer to which it must be considered that the King by his Mandate having set aside and suspended the College Statutes for Electing a person Qualified within those Statutes and impowering the College by his Royal Command without breach of their Founders Rule and their Oath upon it to Elect a person not capable of being Elected by their College Statutes as hath been abundantly cleared in the last Section Dr. Hough was not to be considered as duely Elected and so revera was no President therefore could not be taken cognizance of as such But as Fellow he was Cited and did make appearance and was heard as the rest of the Fellows were and under other Circumstances he was not Legally to be taken notice of His cause likewise
remedy had been at Common Law only It were easie to quote the resolutions of several Judges Savil's Reports fol. 83.105 that no Appeals lye to any but the King in person from a Sentence of the Kings Commissioners in Ecclesiastical causes so Baron Savile affirms that no Appeal doth lye from a Sentence in the High Commission Court and that the high Commission Court is not within the meaning of the Statute of the 25 of H. 8. but the Opinion of my Lord Dyer or others do not exclude an Appeal to the King in person Dyer's Reports for 42. who is the Fountain of Justice and all the Statutes of King Henry the 8th and Queen Elizabeth as to the Erecting of Courts and granting Jurisdiction do only remit and restore the King to his Ancient Jurisdiction of Visiting and Reforming abuses recieving Appeals and other Judicial Acts as Supreme Head and Ordinary as Serjant Dacres observes §. 15. The Case of Charles Cottington Esq about Appeals I shall now Instance in a case of later date wherein there being an Appeal made to the House of Lords against a Decree of the Delegates the Lords dismissed it as not coming properly before them ☞ The case was this Ex Autographo In the Custody of the Clerk of the Parliament Charles Cottington Esq exhibited his Petition May the 10. 1678. to the Lords shewing that in the Year 1677. he Travailing into Foreign parts unfortunately fell into acquaintance with one Angela Margareta Gallina Daughter to a broken Gold-smith in Turin in the Dukedom of Savoy The Petition of Mr. Cottington and was contracted to her in the presence of a Romish Priest in Turin that afterwards he found her a vicious person Married to one Frichinone Patrimoniale upon which Information he left her and returned for England Then he sets forth that this Gallina came to England and claimed to be the Petitioners Wife that he had cited her before the Dean of the Arches in a cause de jactitatione Matrimonii and she alleged that before the contract with the Petitioner she was Divorced from Patrimoniale and the Divorce was pronounced by the Arch-Bishop of Turin and that tho' he made it appear that the Sentence was Collusory and in it self void and not to be regarded in England yet the Judge of the Arches had Sentenced the said Gallina to be the Petitioners Wife Then follows the premises so highly concerning your Petitioner both to the peril of his Conscience Honor Body and Estate and concerning this his Majesties Kingdom in the Establishing a Foreign Jurisdiction against the Laws of the Kingdom Your Petitioner humbly Appealeth in the premisses to this High and Honorable Court and humbly prayeth that the said Sentence of the said Dean of the Arches and Commissioners Delegates may be reversed This was referred to the Committee of privileges Referred to the Committee of privileges June the 6th it was ordered that Presidents and Records should be brought and Council to be heard June the 12th The Earl of Essex's Report from that Committee The Earl of Essex made report from the Committee that upon full hearing what was alleged by Council on both sides and upon perusal of several Presidents they are of Opinion that the said Appeal did not come properly before them the Earl of Shaftsbury only dissenting as by his Subscription appears The Order is entred in these words Die Lunae 17 o. Junii 1678. According to the Order of the 12th of this Instant June The House of Lords Order upon it the House took into consideration the Report from the Committee of privileges concerning the Appeal of Charles Cottington Esq from the Commissioners Delegates whether the said Appeals be properly brought before this House The Opinion of the Committee being that the said Appeal did not properly come before this House The Opinion of the Committee being that the said Appeal did not properly come before this House After debate and consideration of Presidents the Question being put Whither to agree with this Committee in the Report It was resolved in the Affirmative and it is thereupon Ordered that the Petition and Appeal of the said Charles Cottington be dismissed the House of Peers It is to be considered in this matter Considerations upon this Case that after the Sentence in favor of this Gallina by the Delegates Mr. Cottington Petitioned the King in person for a review or dis-annulling the Decree which the King refused to grant and upon that the Petitioner Addressed himself to the Lords whose Order I have recited and tho' it be not expressed in the same Order why the matter was not properly brought before their Lordships yet it is well known that the cause was by reason that Appeals in Ecclesiastical causes do not lye before their Lordships If I could have procured the Printed Case I might have enlarged upon this matter and if it be my good fortune to meet with it before the Publication hereof I shall take notice of what may be material in the Appendix §. 16. The Ninth Objection that matter of Fact proves not right It is Ninthly Objected that tho' it be allowed that the Kings of England have sometimes dispensed with College Statutes and done those things I have all along Instanced in yet that proves not the Right or Justice of the thing since à facto ad jus non valet consequentia To this I Answer The Answer there is a vast dis-proportion betwixt the Acts of Kings and of Subjects Constant and un-interrupted usage are the Foundations of the Customs of England which are Incorporated into the Common Law of the Land and so many Rights are determined for private persons But in the Orders of the Sovereign one declaration of his pleasure by Mandate in several Cases is sufficient Precedent tho' but rarely made use of upon the presumption in Law that such Acts of Kings are not without deliberate consultation However the constant practice of the Kings of England which I hope I have fully proved takes away all colour for this Argument And it is most certain if the Kings dispensing power with Statutes and putting in Heads of Colleges Fellows c. by Mandates If the Kings Prerogative in this Case had been against Law it would have been questioned at some time had been against the Law we should at some time or other heard of Actions brought before the Judges against the Kings Authority in that matter and found determinations upon them in favor of the aggrieved which I think is not to be found But the Kings of England have been in Possession of this Prerogative in all Ages The King in Possession of this Prerogative tho' most conspicuously since the Reformation and so this Prerogative must be adjudged to appertain to the King till by some Legal Tryal it shall be determined otherwise It may be upon this Topick rationally urged that tho' the Kings dispensing power in other matters be in
Marginal Notes but according to the matter treated in the several Paragraphs and Pages in some of which he will find some rectifyings of what by chance was mis-printed I must likewise here give satisfaction to the Reader why I have added an Appendix to the whole and thereby plead my excuse why this Treatise hath been so long Printed in the greatest part before it was Published The Reasons of which are these in short Being desirous to obtain an exact account from the Registers of St. Mary Magdalen College concerning Dr. Haddons being Elected upon King Edward the 6ths Mandate knowing the case was exactly Parallel to this in hand I made application to the late Bishop of Oxford and the Vice-President but the Sickness and Death of the first and the taking away of some Keys where the Registers were preserved hindred me from recieving satisfaction from the one or other So that being unwilling to stop the Printing I was forced to pass by that Instance with a Reference to treat of it after and when by applying my self to the Learned Mr. Wood Author of the Antiquities of that University I could get no other satisfaction than appears by his Letter I have Printed I begun to despair of retriving it and so resolved to have closed all without it Yet being very unwilling to neglect any thing I could do in a matter of such Importance I applyed my self to the Right Reverend Bishop Giffard from whom after his Lordships arrival I had small encouragement but at last after repeated sollicitations by his Lordships directions and the industry of a Learned Gentleman and Conference with Mr. Wood the Register was found but so late as the matter could not otherwise be Inserted but in an Appendix I will not trouble the Courteous Reader with the distinct Reasons why other matters are there likewise inserted but only in general that some of them being committed to some hands that had mis-layed them or taken them with them upon some removals from Town I could not retrive them when the matters were Printing which they related to and some few of them have come to my knowledge since Writing of the rest so that the Candid Reader must be desired to place them according to the Notes in the Margents directing for that purpose Lastly I must desire the Reader will not peruse this by parcels or come to the Reading of it with prejudice assuring him the Author is free from passion and private design and hath endeavored to adhere to the Laws for which purpose he hath shewn the whole to some of the eminentest in that Profession and hath had Approbation accordingly N. J. The Candid Reader is desired to Correct these following ERRATA's with his Pen before his Perusal especially those marked* PAge 7. last line for 14th read 15th Page 24. line 21. for 11th read 8th * Page 42. line 5. for more read material * Ibid. line 8. for Attentatar read Attentata * Page 71. blot out complaint made by the Lords Commissioners of * Page 108. line 14. for no read any * Page 125. last line Instead of as by the King alone read as the King himself * Page 144. the last line but four for special read Spiritual Page 152. line 16. for Binops read Bishops Page 161. line 20. for declaredly read declared to be * Page 176. lines 16. and 17. for some one read summary Page 187. line 7. for fuller read full Page 257. line 25. for Cumlative read Cumulative * Page 266. line 24. for simple read scruple * Page 303. line 24. c. Instead of the word Free-hold read Legal Estate which I amend to avoid needless Cavils since in propriety of Law expression nothing is reputed Free-hold which is not a Tenancy for life * Page 343. line 19. for Students read Statutes Page 346. line 22. for Sancti Evangelii read Sanctis Evangeliis THE CONTENTS CHAP. I. THe proceedings upon the Kings Mandate for Mr. Anthony Farmer to the time when the Lords Visitors were appointed to go to Oxford SECT I. The Transactions from the foresaid Mandate to the Summoning the Vice-President and Fellows of St. Mary Magdalen College in Oxford before the Lords Commissioners at Whitehall Page 1. ad pag. 20. The Kings Mandate for Mr. Farmer § 1. pag. 2. The Authors Method in this Discourse § 2. pag. 3. The Bishop of Winchesters Letter to my Lord President § 3. pag. 4. The Petition of the Vice-President and Fellows to the King. § 4. pag. 5. Dr. Thomas Smith's Paper Read to the Fellows at the Election the 15th of April wrong Dated the 14th § 5. pag. 7. Observations upon it § 6. pag. 8. My Lord Presidents Letter to the Bishop of Winchester § 7. pag. 9. The Bishop Answer Ibid. Observations upon the proceedings § 8. pag. 10. 11. The President and Fellows Letter to the Duke of Ormond § 9. pag. 11. My Lord Presidents Letter to the Vice-President and Fellows § 10 pag. 14. Their Answer § 11. Ibid. The Case of the Vice-President and Fellows § 12. pag. 15. Clauses of the Statutes § 13. pag. 17. Address of the President and Fellows to the King. § 14. pag. 19. SECT II. The Proceedings before the Lords Commissioners for Ecclesiastical Affairs The Summons of the Vice-President and deputed Fellows to appear before his Majesties Commissioners for Ecclesiastical Causes § 1. pag. 21. The Answer of the Vice-President and deputed Fellows why they did not obey the Kings Mandate § 2. pag. 22. Copy of the Statute for Regulating the Election of a President § 3. pag. 26. to 34. The proceedings of the Lords Commissioners to pronounce the Election void § 4. pag. 35. The Sentence of Suspension of Dr. Charles Aldworth and Dr. Henry Fairfax § 5. pag. 35. The Order of the Lords Commissioners for publication pag. 36. Mr. Atterbury's Letter how the Fellows received the Order § 6. pag. 7. The Orders of the Lords Commissioners concerning Mr. Farmer § 7. pag. 38. Citation of the Fellows for dis-obeying the former Order of the Lords Commissioners pag. 39. The Kings Inhibition to the Fellows c. § 8. pag. 40. Order to Mr. Atterbury to affix the Order concerning Dr. Pudsey and Dr. Fairfax upon the College Gates § 9. pag. 41. The Answer of the Fellows why they obeyed not the Order of 22d of June § 10. pag. 42. SECT III. The Transactions from the Mandate for the Bishop of Oxford to the Lords Commissioners Visiting of St. Mary Magdalen College pag. 43. The Kings Mandate to the Fellows to Admit the Bishop of Oxford President § 1. pag. 44. The Lord Presidents Letter to the Senior Fellow c. § 2. pag. 45. Dr. Pudsey's Answer to it § 3. pag. 46. Bishop of Oxfords Letter to the Senior Fellow § 4. pag. 47. Dr. Pudsey's Answer pag. 48. My Lord Presidents Letter to the Bishop of Oxford § 5. pag. 49. Papers of Some of the Fellows why they cannot Elect the
reduced to this unfortunate necessity of either disobeying his Will or violating their Consciences by a notorious perjury §. 13. Some Clauses of particular Statutes to which the foregoing Case Relates IN the Statute concerning the Election of a President his Character is thus described That he must be a Man of good Reputation and good Life of approved understanding good manners and temper and discreet provident and circumspect both in Spiritual and Temporal Affairs In the same Statute the Oath which every Fellow is obliged to take before he can give his voice in the Nomination of a President is this That he will name one or two of the Fellows of St. Mary Magdalen College or of those who have formerly been Fellows there and have left the place upon a Legal and creditable account Or that he will name one or two of the Fellows of St. Mary Winchester College commonly called New-College in Oxford or of those who have formerly been Fellows there and have left the place upon a creditable account After this the Thirteen Senior Fellows Swear that of the two that are nominated they will with all speed Elect one to exercise the Office of President whom in their Consciences they think most proper and sufficient most discreet most useful and best qualified for it without any regard to love hatred savor or fear c. As in the forementioned Statute is more largly exprest Part of that Oath which all Persons take when they are admitted actual Fellows runs thus ITem I do Swear that I will not procure any Dispensation contrary to my foresaid Oaths or to any part thereof nor contrary to the Statutes and Ordinances to which they relate or any of them nor will I endeavor that such Dispensation should be procured by any other or others publickly or privately directly or indirectly And if it shall happen that any Dispensation of this sort shall be procured or freely granted or obtained of what Authority soever it be Whether in General or particular or under what Form of words soever it shall be granted I will neither make use of it nor in any sort consent thereunto So help me God. Endorsed on the back of this April the 24th 1687. The Case within Stated was then Publicly Read by the Vice-President of St. Mary Magdalen College in Oxford at a Meeting of the Fellows and Generally approved of in the Presence of me James Almont Public Notary §. 14. The Address of the Fellows of St. Mary Magdalens College to his Majesty sent to my Lord President to be delivered to the King. May it please your Most Excellent Majesty VVE your Majesties most humble and most dutiful Subjects the Fellows of St. Mary Magdalen College in Oxford being deeply afflicted with the late sence of your Majesties heavy displeasure grounded as we in all reason humbly presume upon the most unkind mis-representation of our actions in relation to the Election of a President into your Majesties said College do humbly beg leave to prostrate our selves at your Royal feet offering all real Testimonies of Duty and Loyalty And as we have never failed to evince both our principles and practices to be truly Loyal in obedience to the Commands of your Royal Brother and your Sacred Self in matters of the like Nature So whatsoever way your Majesty shall be pleased to try our readiness to obey your Royal pleasure in any instances that does not interfere with and violate our Consciences which your Majesty is Studious to preserve we shall most gladly and effectually comply therewith A stubborn and groundless resistance of your Royal Will and Pleasure in the present and all other Cases being that which our Souls eternally abhorr as becomes Your Majesties most Dutiful and Obedient Subjects Alex. Pudsey D. D. Tho. Stafford L. L. D. Jo. Rogers B. D. Main Hammond B. D. Rob. Almont B. D. Ja. Bayley M. A. Rich. Strickland B. D. Hen. Dobson M. A. Ja. Fayrer A. M. Jo. Harwar A. M. Geo. Hunt A. M. W. Cradock M. A. Jo. Gilman M. A. Ch. Penyston M. A. Hen. Holden M. A. John Smith D. D. Tho. Bateman M. A. John Davys M. A. Edw. Yerbury M. A. Rob. Thornton M. A. Rob. Hyde M. A. Robert Holt M. A. Stephen Weelks M. A. Franc. Bagshaw M. A. SECT II. The Proceedings before the Lords Commissioners for Ecclesiastical Affairs §. 1. HAving thus far related what was Transacted betwixt His Majesty and the forementioned Lords and the Vice-President and Fellows of St. Mary Magdalen College His Majesty thinking it expedient that they should be called to an account for their disobedience ordered the Lords Commissioners for Ecclesiastical Causes to proceed against them Poceedings of St. Mary Magdalen College in Oxford Extracted out of the Register-Book from the 28th of May May 28. 1687. to the 5th of August By His Majesties Commissioners for Ecclesiastical Causes and for the Visitation of the Vniversities and of all and every Cathedral and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Incorporations or Foundations and Societies COmplaint having been made unto Us that the Vice-President and Fellows of St. Mary Magdalen College in the University of Oxford have refused to comply with His Majesties Letters Mandatory for Electing and Admitting Mr. Anthony Farmer President of the said College in the room of Dr. Clark Deceased and that notwithstanding His Majesties said Letters they have Elected Mr. John Hough President of the said College You and either of you are hereby required to Cite and Summon the said Vice-President and Fellows requiring them or such of the said Fellows as they shall Depute in their behalf to appear before Us in the Council Chamber at Whitehall upon Munday the Sixth of the next Month of June at Four in the Afternoon to Answer to such matters as shall be objected against them concerning the premisses And of the due execution hereof you are to certifie to Us then and there Given under our Seal the 28th of May. 1687. To Thomas Atterbury and Robert Eldows Or either of them §. 2. The Answer of the Vice-President and Deputed Fellows c. Ex Registro Upon June the 6th the Vice-President and Deputies of the Fellows appear and do desire time which is allowed till this day Sennight June the 13th they attend with their Answer which being Read the Lords took time till the 22d Instant for the further consideration of the matter The Answer of the Vice-President and other Fellows of St. Mary Magdalen College in Oxon whose Names are hereunto subscribed being Deputed by the rest of the Fellows of the said College to the Question proposed by the Right Honorable and Right Reverend the Lords Commissioners for Ecclesiastical Causes c. Why they did not obey His Majesties Letters requiring them to Elect and Admit Mr. Anthony Farmer President of the said College THe said Vice-President and other deputed Fellows answer and say That the said College of St. Mary Magdalen in Oxon is a
at St. Mary Magdalen College MR. Thomas Atterbury Messenger was sent with this Order to the College and he returns Answer June the 24th that he came thither that day and enquired for Dr. Pudsey who he understood was Senior Fellow upon the place and told him that he was directed by the Lords Commissioners to apply himself to him as Senior Fellow and desired him to Assemble the rest of the Fellows that he might deliver to them the Orders from the said Lords Dr. Pudsey reply'd That he did not Act as Senior Fellow for that he was made Burser but would endeavor to get him an Answer at Five a Clock as soon as Prayers were done at which time he told him that he had no power to Assemble the Fellows neither could he any ways do it so long as there was a President on the place the Fellows had no Authority to Act There being two or three Fellows with this Doctor one of them asked Mr. Atterbury to see the Orders to which he Answered If he with Dr. Pudsey and the rest would receive them he would deliver them to them but would not Read them So he shewed them the Indorsment that they were directed to them and offered to deliver them to them But they refused saying they had no Authority to call an Assembly neither could they do it therefore it was not fit they should receive them and being desired to tell him if that was their final Answer they said yes so he told Dr. Pudsey he must give a speedy Answer to the Register Mr. Bridgman to whom he sends this account and adds that the Doctor treated him with very good words and Invited him to Dine with them while he stayed in Town Thus far Mr. Atterbury's Letter I now proceed to what was done next §. 7. The Orders of the Lords concerning Mr. Farmer upon the Reading his defence At a Court held c. the 1st day of July 1687. Mr. Anthony Farmer gave in his Answer to the Complaint exhibited against him by the Fellows of Magdalen College which was Read and the Court Ordered to hear the matter at their next meeting when all parties concerned are required to Attend and that Compulsories should be granted to both sides for Witnesses e Registro The Form whereof was as followeth By His Majesties Ecclesiastical Commissioners for Ecclesiastical Causes c. YOu and either of you are hereby required forthwith to Cite and Summon James Fayrer Master of Arts of Magdalen College c. to appear personally before us in the Council Chamber Friday the 29th day of July Instant at Four of the Clock in the Afternoon then and there by vertue of this Citation as Witnesses to give their Testimonies in the matter depending before us betwixt the Fellows of St. Mary Magdalens College in Oxford and one Mr. Anthony Farmer under pain of the Law and Contempt thereof And of the due execution hereof you are to certifie us the day and year aforesaid together with these presents Given under our Seal the 1st day of July 1687. To Thomas Atterbury and Robert Eddows Or either of them July the 1st Their Lordships having been informed Out of the Register that their foresaid Order of June the 22d had not been obeyed Ordered the following Citation By His Majesties Commissioners c. WHereas We thought fit by our Order of the 22d of June last Citation of the Fellows for disobeying the former Order to enjoyn and require the Fellows of St. Mary Magdalen College in the University of Oxford to cause our Orders for the vacating the Election made by them of Mr. John Hough to be President of the said College and for Suspending Dr. Charles Aldworth from being Vice-President and Dr. Henry Fairfax from his Fellowship in the same to be affixed on the Gates of the said College and whereas we are given to understand that our said Order hath not been obeyed by the said Fellows You and either of you are hereby required to Cite and Summon the said Fellows of St. Mary Magdalen College requiring them to appear before Us in the Council Chamber at Whitehall upon Friday the 29th Instant at Four in the Afternoon to Answer the said Contempt and of the due execution hereof you are to certifie Us then and there Given under our Seal the first day of July 1687. Superscribed To Thomas Atterbury and Robert Eddows Or either of them §. 8. During this interim before the Fellows appeared before the Lords Commissioners the King according to former Presidents sends this following Inhibitory Mandate to the Fellows of St. Mary Magdalen College JAMES R. TRusty and Well-beloved Inhibitions sent to the Fellows neither to Elect nor Admit any Fellow or Demy till the Kings further pleasure was known which is according to former Presidents as in due place will be shown We Greet you well whereas We are informed that a Sentence or Decree lately made by Our Commissioners for Ecclesiastical Affairs touching an Election in that Our College hath not been obeyed Our will and pleasure is that no Election or Admission be made of any person or persons whatsoever to any Fellowship Demyship or other place or Office in our said College until We shall signifie Our further pleasure any Statute Custom or Constitution to the contrary notwithstanding And so expecting your ready obedience herein We bid you farewell Given at our Court at Windsor the 18th day of July 1687. In the third Year of our Reign By His Majesties Command Sunderland P. Superscribed To Our Trusty and Well-beloved the Fellows of St. Mary Magdalens College in Our Vniversity of Oxford §. 9. Order to Mr. Atterbury c. to affix the Decree concerning Mr. Hough Dr. Aldworth and Dr. Fairfax upon the College Gates The next Court was held the 29th day of July At which time I do not find that the Fellows of St. Mary Magdalen College did exhibit their Answer why they obeyed not the Order of the Lords Commissioners of the 22d of June nor that their Lordships required it but I find in the Register this following Order to affix the Sentence on the College Gates By His Majesties Commissioners c. WHereas We have thought fit to declare pronounce and decree Out of the Register that the Election made of Mr. John Hough Batchellor in Divinity to be President of St. Mary Magdalen College in the University of Oxford is void and to amove the said Mr. John Hough from the place of President of the said College And whereas We have also thought fit to Suspend Dr. Charles Aldworth from being Vice-President of the same and Dr. Henry Fairfax from his Fellowship in the said College you and either of you are hereby required to cause our Orders Vacating the said Election and Suspending the said Dr. Aldworth and Dr. Fairfax Copies of which under our Seal are hereunto Annexed to be affixed on the Gates of the said College to the end that due notice may be taken
prove like the Sin of Witch-craft but the latter will be better accepted than Sacrifice because in that you only offer up a beast to God but in this you Sacrifice your Passions you slay them and offer them up to Gods service Remember Error seldom goes in Company with Obedience and that none are so likely to find the way to Eternal happiness in the end as they who follow the Conduct of their Superiors from the beginning not with Eye service as Men pleasers but in singleness of Heart Fearing God and the King and whatsoever you do do it heartily as unto the Lord and not unto us Men And the Lord give you understanding in all things The Speech being ended the Lords adjourned till the Afternoon to the Common Room of the College FRIDAY Afternoon AT which time the Court being sat Dr. Hough in behalf of himself and the Fellows demanded a Copy of their Lordships Commission which was denyed him and the Court ordered to proceed and then admonished the Fellows to produce the Registery of the College Affairs and also to give an account of what Leases had been Lett for two Years last past together with the Benefactions given to the College and likewise ordered them to bring in the Buttry Book to Morrow Morning to which time they adjourned §. 3. SATVRDAY Morning October 22d 1687. DR Hough was called in and it appearing to their Lordships that his Election to the Presidents place was made null and void by a Sentence given by the Lords Commissioners for Ecclesiastical Causes and that he the said Dr. Hough had legal notice of the same but notwithstanding the said Sentence he had and did still refuse to submit thereunto The Court ordered him forthwith peaceably to depart the College and deliver up the Keys of the Lodgings and struck his Name out of the Buttry-Book and having so done declared to the Fellows that he was Actually Expelled and admonished them not to own him as their President Then the Court askt the Fellows whether they would amdit the Bishop of Oxon their President according to the Kings Mandate but all of them refused except Mr. Charnock but said they would not oppose it Then adjourned till the Afternoon SATVRDAY Afternoon DR Hough came into the Court and made his protestation against the proceedings and appealed from the same as Illegal Unjust and Null as he asserts Whereupon there was a Tumultuous Hum or Acclamation made by the by-standers which gave the Court some disturbance in so much that they thought fit to bind over Dr. Hough in 1000 l. and two Sureties in 500 l. each to appear at the Kings Bench and again admonished Dr. Hough to quit the College which he accordingly did that Night Then adjourned to Tuesday Morning Thus far out of the Register But because the Paper sent with the Letter to the Earl of Sunderland is more full in several particulars I shall Insert it after the following Letter together with such Additions as the Bishop of Chesters own Journals afford me §. 4. The Lords Commissioners sent the Following Letter to my Lord President Dated 22d October 1687. MY LORD BY His Majesties Messenger See the Answer to this after the Programma §. 6. we have sent your Lordship a particular account of our proceedings here to which we humbly refer in which your Lordship will perceive the Temper of that Society My Lord we hope your Lordship will easily believe that we are not unwilling to do any thing which may vindicate the Kings Honor and Authority but we humbly desire to be well advised by your Lordship in the Methods of it for we are now a little at a stop by reason of the Bishop of Oxon's not appearing in Person having no Power as we humbly conceive either by the Kings Mandate or by our Commission to Admit him by Proxy His Majesties Letter Mandatory for the same being directed to the College who all but two or three do as yet refuse it We therefore humbly Pray your Lordship to dispatch His Majesties Mandate directed to Us to Admit the Bishop or his Proxy or that you would please to give us some other Directions such as your Lordship in your Great Wisdom shall Judge more expedient We do crave leave also to Intimate to your Lordship that it is our humble Opinion that We cannot proceed any further then Expulsion against Dr. Hough which your Lordship will find already done according to the Power we have by the Commission and we humbly Pray your Lordships Pardon and further Commands which shall be readily obeyed by His Majesties most Dutiful Subjects and Your Lordships most humble Servants Tho. Cestriensis R. Wright Tho. Jenner My Lord since the Writing of this Letter We have reason to believe we shall have an entire submission from the College on Tuesday next for Dr. Hough since his Expulsion hath left the College and taken Lodgings in the Town §. 4. The account sent by the Lords Commissioners of their proceedings till Saturday night Octob. 22. Oxford the 22d Octob. 1687. HIs Majesties Commissioners for Visiting the College of St. Mary Magdalen in Oxford Note that what is conteined betwixt these is what is in the Bishop of Chesters and Dr. Thâ—mas Smiâ—hs Diary and not in the Account sent by the Lords Commissioners Friday Afternoon being Yesterday viz. Thursday the 20th of October come at the time appointed viz. Friday Octob. 21. for the President Fellows and Schollars thereof to appear their Lordships took upon them the Execution thereof My Lord Bishop of Chester made a Speech to them upon the occasion of the Visitation and after an adjournment of the same to the Afternoon there then appeared Dr. Hough and several of the Fellows and most of the Schollars and Officers of the College Dr. Hough objected to the shortness of the time from the notice of the Visitation and prayed a Copy of the Commission and time to consider of it which was over ruled by the Court saying that if he and they could take any advantage from the Commission he hoped the King and their Lordships did not intend to bar them of it And in his own Name and the greatest part of the Fellows said that he submitted to the Visitation so far as was consistent with the Laws of the Land and the Statutes of the College and no further and that he could suffer no alteration of the Statutes neither by the King nor any other Person for which he had taken an Oath from which he could not swerve and thereupon Quoted the Statutes confirmed by King Henry the Sixth and their Oath that they should submit to no Alteration made by any Authority The Oxford Relation saith that my Lord Chief Justice answered you cannot Imagin that we Act contrary to the Laws of the Land and as to the Statutes the King has dispensed with them Do you think we come here to Act against Law Then the Sentence given the 22d Day of June 1687.
Against Dr. Hough's Election and for the removing him from the Office of President of the College was Read and he was asked whether he knew of it being given against him He replyed he had notice of it but said he was no party to it and so was advised it did not any wise concern him The Sentence likewise against Dr. Aldworth and Dr. Fairfax for suspending them was Read and the Petition of Dr. Aldworth Dr. Fairfax and others delivered to my Lord President on the Tenth of April last being about Five Days before their Election of Dr. Hough was also Read to them to which was replyed that they had no * It was Answer sufficient to have obliged them not to have proceeded to Election till they had particularly made out their Information against Mr. Farmer Answer from my Lord President but that the King expected to be obeyed and they receiving no other Mandate than that for Admitting Mr. Farmer they proceeded to Elect Mr. Hough Then after their Lordships orders to them to bring in some Books viz. The Register and other Papers relating to the Revenues and Government of their College which the Doctor promised they should have next Morning they adjourned to Eight of the Clock this Morning SATVRDAY Octob. 22d VVHo being met and such Books brought in Dr. Hough being called in The words of the Account are their Lordships proceeded and proposed these two Questions to Dr. Hough whether he was willing c. the Bishop of Chester told him Doctor here is a Sentence under Seal before us of the Kings Commissioners for Visiting the Universities by which the Election to the Presidentship of Magdalen College is declared Null and Void which you heard Yesterday Read and of which you Confess your self to have Legal notice before by being fixed upon the Doors This Sentence and the Authority by which it was passed you have contemned and in contempt thereof have kept Possession of the Lodgings and the Office of President to this day to the great contempt and dishonor of the King and his Authority Are you yet willing upon better and second thoughts to submit to the Sentence passed by their Lordships against you or not To which he Answered that the Decree of the Commissioners is a perfect Nullity from beginning to End as to what relates to him he having never been Cited nor ever appeared before them either in his Person or Proxy Besides his Cause it self was never before them Their Lordships never enquiring or asking one question concerning the Legality or Statutableness of the Election These Arguments will particularly be answered for which reason he is informed that That Decree was of no validity against him according to the Methods of the Civil Laws but if it had he was possessed of a Freehold according to the Laws of England and Statutes of the Society having been Elected as Unanimously and with as much Formality as any of his Predecessors Presidents of the said College and afterwards Admitted by the Bishop of Winchester their Visitor as the Statutes of the College required and therefore he could not submit to that Sentence because he thought he could not be deprived of his Freehold but by Course of Law in Westminster-Hall or by being some way Incapacitated according to the Founders Statutes which are Confirmed by King James the First Second Question put to Dr. Hough was whether he would deliver up the Keys and Lodgings as by a Clause in the Statutes of Admission he is tyed to do to the use of the President who hath the Kings Letters Mandatory to be Admitted into that Office. To which he Answered that there is not neither can there be any President whilst he Lives and obeys the Laws of the Land and the Statutes of the place and therefore doth not think it reasonable to give up his Right nor the Keys and his Lodgings now demanded of him He takes the Bishop of Winchester to be his Ordinary Visitor and yet he would deny him the Keys he takes the King to be his Extraordinary Visitor as he believes but it had been controverted whether the King had Power to Visit as in Coveny's Case 4 o. Eliz. and looked upon their Lordships Commanding it to be a requiring him to deliver up his Office. He said he had appeared before their Lordships as Judges and that he now Addressed himself to them as Men of Honor and Gentlemen and did beseech them to represent him as Dutiful to His Majesty to the last degree as he always will be where his Conscience permits to the last Moment of his Life and when he is Dispossest here he hopes they will intercede that he may no longer lie under His Majesties displeasure or be frowned upon by his Prince which would be the greatest affliction that could befall him in this World. Then their Lordships admonish'd him three times to depart peaceably from the Presidents Lodgings and to Act no more as President or pretended President of the College in Contempt of the King and his Authority which he refusing to do Mr. Lee Proctor to the Lords accused his Contumacy and prayed the Judgment of the Court The words of the Account are then the Lords proceeded to give Judgment against him viz. That he forth with c. which was thus pronounced The Lords Commissioners for Ecclesiastical Causes and for Visiting the Universities have Decreed the Presidents place of this College to be Null and Void Therefore we by the Authority to us committed do Order and Command you Dr. Hough forthwith to quit all pretensions to the said Office upon which they Ordered his Name to be struck out of the Buttry-Book which was accordingly done and admonished the Fellows and other Members of the Society no longer to own him as their President Then the Kings Mandate for Admitting the Bishop of Oxford was Read See for this sect 2. § 3. and they were then Ordered to withdraw and being soon after called in again the Question was put to the Fellows singly one by one whether they would Admit the Bishop of Oxford their President according to the Kings Mandate Dr. Pudsey said he would submit to the King and would be by but could not Act being Burser Dr. Thomas Smith replyed From Dr. Smiths Diary See his other Answer §. 10. My Lords Commissioners if it be the Kings pleasure to make the Bishop of Oxford President of this College and your Lordships Acting by that Authority have declared and made him such I do because I must submit I make no opposition Mr. Charnock said he was ready to obey the Kings Mandate all the rest of the Fellows refused to receive him as President as being against their Statutes and Oaths and that which would make them guilty of Perjury All whose Verbal Answers were taken in Writing by the Lords Commissioners and their Lordships after some time said if you think we have not taken the Answer right put them in Writing
to be as fairly Elected * This was a bold Assertion and I hope to prove it as false and as Legally Possessed as ever any since the Foundation of the College I cannot submit to the Bishop of Oxon as President so he was ordered to withdraw After this the same Question was put to all the Fellows singly who all refused to Sign the submission except Dr. Thomas Smith and Mr. Charnock who were not pressed having as their Lordships said behaved themselves Dutifully towards the King Mr. Thompson desired to be excused from subscribing for that he had given his Vote for Mr. Farmer and had not concurred with the Society in any thing they had done since in this business and declared he never had been disobedient nor ever would be Then their Lordships produced a Petition sent to the Earl of Sunderland upon the report of the Kings Mandate for Mr. Farmer which he had Signed therefore pressed further his subscribing the submission This he owned but said it was before the Kings Mandate was produced but after it was shewn at the Election he Voted for Mr. Farmer in obedience to the Kings Command and promised to obey the Bishop of Oxford whereupon their Lordships excused him §. 5. Then the Lords called for the Buttry-Book and caused all the Names of those Fellows who refused to subscribe to be struck out and the Fellows so struck out being called in the Sentence of Expulsion was Read to them in this Form. By His Majesties Commissioners for Ecclesiastical Causes and for Visiting of the Universities and all Cathedrals and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Corporations or Foundations and Societies and particularly impowered to Visit Magdalen College in the Vniversity of Oxford WHereas in our Visitation of the said College it appeared to us that Dr. Charles Aldworth Dr. Alexander Pudsey Dr. John Smith Dr. Thomas Bayley Dr. Thomas Stafford Mr. Robert Almond Mr. Mainwaring Hammond Mr. John Rogers Mr. Richard Strickland Mr. Henry Dobson Mr. James Bayley Mr. John Davies Mr. Francis Bagshaw Mr. James Fayrer Mr. Joseph Harwar Mr. Thomas Bateman Mr. George Hunt Mr. William Cradock Mr. John Gilman Mr. George Fulham Mr. Charles Penyston Mr. Robert Hyde Mr. Edward Yerbury Mr. Henry Holden Mr. Stephen Weelks Fellows of the said College have been severally guilty of disobedience to His Majesties Command and obstinately contemned His Majesties Royal Authority and do still persist in the same We have thought fit upon mature consideration hereof to declare pronounce and decree that the said Dr. Charles Aldworth c. and every of them be Deprived and Expelled from their respective Fellowships and we do by this our Sentence and Decree Deprive and Expel them from their said several respective Fellowships Given under our Seal the 16th of November 1687. About Twelve a Clock as soon as their Lordships rose the Decree for the Expulsion of these Twenty Five Fellows was fixed on the College Gates in the Form aforesaid §. 6. The Expelled Fellows give in their Protestation against the Lords Commissioners Decree The Fellows under-named then gave in Papers subscribed by themselves to the Lords Commissioners in this Form. May it please your Lordships I Do profess all Duty to His Majesty and respect to your Lordships but beg leave to declare that I think my self injured in your Lordships Proceedings and therefore Protest against them and will use all Just and Legal ways of being relieved Novemb. the 16. 1687. Others desired that the like Protestation might be entred for them Charles Aldworth James Bayley Joseph Harwar John Gilman Tho. Bateman Edw. Yerbury Stephen Weelkes Then their Lordships Ordered them to withdraw Register and proceeded to Admit others into their places and in order thereunto called for those who were recommended by His Majesties Mandates viz. (a) Dated 11. November Mr. Charles Goring Mr. Thomas Higgons (b) Dated 12. Nov. 1687. Nov. 13. 1687. Mr. Fairfax Mr. Robert Hill Mr. John Warburton Mr. Francis Haslewood and Mr. Lawrence Wood. But none of them appeared except Mr. Thomas Higgons whereupon their Lordships sent for three of the Demys viz. Mr. Samuel Jenefar Mr. Mander and Mr. Hanson and the two last desiring to continue Demys their Lordships Admitted Mr. Higgons and Mr. Jenefar Fellows they taking the usual Oath of a Fellow Then Mr. Bradley Whalley Mr. Walter Walsh and Mr. Midleton were called but Mr. Midleton not appearing Mr. Whalley and Mr. Walsh were Admitted Demys and took the Oath of a Demy and their Names were entred in the Buttry-Book Then their Lordships took into their consideration the Case of the absent Fellows the non-appearance of Mr. Maynard Mr. Hicks and Mr. Goodwin seeming excusable by the Certificates produced and Oaths made in their behalfs and also it appearing that they and Mr. Francis Smith who is Travelling abroad had not been any ways concerned in the whole Affair their Lordships thought fit to excuse them And left the Expulsion of the rest viz. Mr. Hawks Mr. Holt and Mr. Thornton to the President who they conceived had full Power to Expell them if hereafter at their return to the College they should refuse to make their submission in the same manner as proposed to the rest of the Fellows and so the Lords Commissioners concluded What followed after their Lordships return to London §. 7. What was done by the Lords Commissioners at Whitehall Out of the Register At a Court held in the Council Chamber at Whitehall the 28th of November 1687. Present the Lord Chancellor Lord President Lord Chamberlain the Bishops of Duresm Rochester and Chester the Lord Chief Justice Wright the Lord Chief Justice Herbers and Mr. Baron Jenner The further Account of the Proceedings of the Visitation of St. Mary Magdalen College in Oxford was Read upon which it was moved The Lords Commissioners resolution to Incapacitate the Expelled Fellows c. that the Expelled Fellows should be further proceeded against by a Sentence of Incapacity The Lords upon debate were of Opinion that the said Fellows ought to be incapacitated from receiving any Ecclesiastical Preferments for the future and direct that Mr. Sollicitor General Sir Robert Baldock Sir Thomas Pinfold and Dr. Hedges shall Attend the next Morning at Nine of the Clock upon this matter At a Court c. the 29th of November 1687. Mr. Sollicitor General Sir Robert Baldock Sir Thomas Pinfold and Dr. Hedges attend and have the following Paper delivered to them The Lords think it requisite that the Fellows lately Expelled out of St. Mary Magdalen College should be Incapacitated from receiving any Ecclesiastical Preferment for the time to come and desire you to consider of the Method and best manner of proceeding herein Their Lordships appointed them to give them their Opinion upon the matter upon Munday next at Ten in the Morning but the Meeting was put of till Thursday the 8th of December At a Court the 8th of December 1687. Present the
Lord Chancellor Lord President Earl of Huntingdon the Bishops of Duresm Rochester and Chester the Lord Chief Justice Wright and Baron Jenner Mr. Sollicitor General Sir Robert Baldock Sir Thomas Pinfold and Dr. Hedges gave their Answer upon the Paper given them the 28th of the last Month concerning the Fellows lately Expelled out of St. Mary Magdalen College the Lords enter upon debate of the matter and put off the further consideration thereof till Saturday the 10th Instant at Four in the Afternoon At a Court the 10th of December 1687. The last mentioned Lords being present The Lords re-assume the Debate concerning the Fellows lately Expelled out of St. Mary Magdalen College and agree upon the following Order §. 8. At a Council held in the Council Chamber at Whitehall the 10th of December 1687. Present Lord Chancellor Lord President Earl of Huntingdon Lord Bishop of Duresme Lord Bishop of Rochester Lord Bishop of Chester Lord Chief Just Wright Baron Jenner By His Majesties Commissioners for Ecclesiastical Causes and for the Visitation of the Vniversities and of all and every Cathedral and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Incorporations or Foundations and Societies WHereas we thought fit by our Order of the 22d The Sentence of Incapacitating Day of June last to declare and decree that the pretended Election of Mr. John Hough now Dr. John Hough to the Presidentship of St. Mary Magdalen College in the University of Oxon was void and therefore did amove the said Mr. Hough from the place of President of the said College And whereas the Fellows of the same were likewise Convened before us for their disobedience to and Contempt of His Majesties Authority by making the said pretended Election and it now appearing unto us that the said Dr. John Hough Dr. Charles Aldworth Dr. Henry Fairfax Dr. Alexander Pudsey Dr. John Smith Dr. Thomas Bayley Dr. Thomas Stafford Mr. Robert Almond Mr. Mainwaring Hammond Mr. John Rogers Mr. Richard Strickland Mr. Henry Dobson Mr. James Bayley Mr. John Davys Mr. Francis Bagshaw Mr. James Fayrer Mr. Joseph Harwar Mr. Thomas Bateman Mr. George Hunt Mr. William Cradock Mr. John Gilman Mr. George Fulham Mr. Charles Penniston Mr. Robert Hyde Mr. Edward Yerbury Mr. Henry Holden and Mr. Stephen Weelks lately Fellows of the said College do persist in their disobedience and contempt we have thought fit upon mature consideration of the matter to Declare Decree and Pronounce and we do accordingly Declare Decree and Pronounce that the said Dr. John Hough Dr. Charles Aldworth c. as before recited and every of them shall be and from henceforth they are hereby declared and adjudged Incapable of Receiving or being Admitted to any Ecclesiastical Dignity Benefice or Promotion and that such and every of them who are not as yet in Holy Orders shall be and are hereby declared and adjudged uncapable of Receiving and being Admitted into the same And all Arch-Bishops Bishops and other Ecclesiastical Officers and Ministers within the Realm of England are hereby required to take notice of this our Sentence Order and Decree and to yield Obedience thereunto Given under our Seal the 10th Day of December 1687. The Lords agreed to send a Duplicate of the foregoing Order under their Seals to every Arch-Bishop and Bishop which accordingly was done Thus I have drawn to a Conclusion the whole Proceedings concerning this College as to the Declaring Void the Election of Dr. Hough and the Suspending of Dr. Aldworth and Dr. Fairfax by the Lords Commissioners at Whitehall and the Expelling the forenamed Fellows by the Lords Visitors at Oxford together with this Finall Decree of Incapacitating them by the Lords Commissioners at Whitehall in Conjunction with the Lords Visitors at Oxford I shall now proceed to give an Historical Account of the Nature of the Societies or Incorporations called Colleges and Universities Secondly Some Visitations of the Universities of Oxford or particular Colleges by Legatine Metropolitical Episcopal or Local Visitors or by the Immediate Authority of the Kings of England from Age to Age. Thirdly Several Instances of the Kings of Englands Dispensations with the Statutes of Universities or particular Colleges Fourthly I shall Answer the Objections CHAP. III. Of the Nature and Constitution of the Societies of the Liberal Arts such as Colleges and Universities are SECT I. Concerning Incorporations in General and the Privileges granted to the Vniversities of Oxford and Cambridge by our Kings or the Popes §. 1. All sorts of Societies and Corporations are Founded by the King. BEfore I Treat of the Royal Foundation or the particular Charters or Bulls granted to the University of Oxford I think it convenient as a Preliminary to give the Ingenuous Reader a short abridgment of what our Common Lawyers have delivered how the Incorporations of this Kingdom are all Constituted by the Kings of England Priviledged from the Crown and are at the sole Will and Pleasure of the Sovereign who may at his pleasure for mis-user non-user or abuser dissolve them according to Common-Law First of the Subject matter of such Incorporations A Corporation is the same according to (a) Lib. 2. fol. 5. 6. Coke 10 Rep. 29. The Ancient and Modern use of the word University Bracton which the Civilians Style Collegium or University Si Rex concesserit says he alicui Vniversitati sicut Civibus Burgensibus so that in his time an Incorporation by the Name of Citizens and Burgesses was called an University in the same Sense that Communitas was Styled signifying any Society that was under some special Denomination so Bodinns saith by the word Collegium no particular Society is determined but under that Name Corporations of several natures are contained and whether Lay or Ecclesiastical is specified by the ends for which they are Constituted but now the word is generally restrained to the Academies of the Liberal Arts. ☞ All Natural persons (a) Coke 10. Rep. fol. 14. Of the Constituting parts of a Corporation as such are capable of holding or taking this Right of a Politic Capacity and as all the natural persons are an Essential part constituting the Body Politic (b) 21 E. 4. fol. 22. so all the operations and exercise of the Rights are only performed by the Natural persons Therefore when the Question is of non-user or abuser of Franchises by a Corporation it must of necessity be intended for some Act (c) Atturny Generals Argument for Quo Warranto against London fol. 2. or negligence of the Natural persons or those Officers imployed by them For whatever Franchises any persons enjoy they do it as Usu-fructuaries §. 2. How all Colleges and Corporations are made such by the Sovereign It is to be considered that such Societies ought to be Constituted by none but the Sovereign otherwise the Government would be in danger if Liberty were granted for persons to enter into Combinations For however specious they might at first make the end of their