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
others quâ Legate as appears in the Decretals where (d) De Officio Legati cap. 1. Alexander the Third resolves that the Arch-Bishop could not hear Jure Metropolitico matters Episcopal that came not to him per Appellationem that is by a Legal way but Jure Legationis he might such as were brought unto him only per quaerimoniam §. 7. The Style of Legates a Latare when first used ☞ The Name of Legatus a Latere is first found in our Historians to be given to Johannes (e) Hoveden Anno 1189.177 a. 10. Anagninus Cardinalis Anno 1189 and altho' the power of these Legates was great yet it is manifest that what they did was only so far as they had the Kings permission so that in some respects it may be said whatever they did in Visitations and other matters was by the Kings Authority and sufferance for which purpose we have that Memorable Letter (a) Vita Hen. Chichelsey ab Ant. Duck Edit 1617. p. 79. from Henry Chichelsey to King Henry the Fifth which I shall give in the words it was Writ in Be Inspection of Laws and Chronicles The Legatines power by our Kings permission was exercised in most Cases was there no Legate a Latere sent into no Lond and especially into your Reagm of Yngland witoute great and notable cause And that when thei came after thei had done her Legacie abiden but litul wyle not over a yer c. And yet evir that was tretyd with or he cam into the Lond whon he should have exercise of his power and how mych shold be put in Execution an a venture after he had bee reseyved he whold have used it too largely to great oppression of your peple A further proof that Legates here could do nothing contrary to the Laws and Customs of the Land appears in this particular I shall now recite ☞ Henry Beaufort the Rich Bishop of Winchester The first Cardinal that was a Privy Councellor who was Cardinal of St. Eusebius Son of John a Gaunt and so of the Kings Blood and was employed by Martin the Fifth as General against the Bohemians and to that end Erected his Cross Anno 1429. 8 H. 6. was sent Legate into England and was made one of the Kings Privy Council and is noted to be the first that of that Order was so Admitted Yet we find that he was to (b) Râ—t parlâ—â— 8 H. 6. N. 17. His protestation to absent himself when matters of difference betwixt the King and Pope were debnted make a protestation that as often as any matter cause or business did concern the King his Kingdom or Dominions on the one part and the Apostolic See on the other which was to be Communed and Treated of in the Kings Council the Cardinal should absent himself and no ways be present at the Communication of the same It further appears how Legates Executed by the Kings Allowance or Connivance the powers given them by the Pope because if they did otherwise no person being the Kings Subject was so great but he was forced to gain his pardon for the Offence if he Committed any Hence we find that even this (a) Rot. Parl. 10 H. 6. N. 16. He Petitions for pardon if he had done any thing against the Laws being the Kings Subject great Cardinal caused a Petition to be Exhibited in Parliament That he the said Cardinal nor none other should be pursued vexed impleaded or grieved by the King his Heirs or Successors nor by any other person for cause of any provision or offence or Misprision done by the said Cardinal against any Statute of provisions or per cause of any Exemption Receipt acceptation admission or execution of any Bulls Papal to him in any manner By all this I hope the Ingenuous Reader will sind The Inference hence that what the Popes Legats did in Visitation or otherwise was by the Kings superadded Authority that what Visitations were made of the University of Oxford by the Popes Legats whereof I shall give several Instances in the sollowing Section doth no ways Infer that thereby the Kings power of Visiting was exauctorated but that whatever they did was in subordination to the Kings pleasure or as allowed by his Laws §. 8. Concerning the Arch-Bishop or Bishops Visitations The other Visitors of the University were either the Arch-Bishops of Canterbury as Metropolitans or the Bishops of Lincoln as Dioecesans or the Local Visitors I shall now endeavor to prove that whatever they did in Visitation as well as other External Regiment was by order allowance or connivance of the Kings of England so that though I shall here after produce their Visitations yet it will appear that the Kings Supreme Authority was thereby no ways prejudiced I need not here enter into the claims our Ancient Kings made to the Investitures of Bishops having touched it before nor how for their Baronies Homage is required of them It is most manifest that our Kings have Interposed their Authority even in allowing or dis-allowing of their persons This is clear by the Speech of Wolstan (a) Ailred de Miraculis Edw. Col. 406.37 Here we may note that the Alteration was by agreement at the Confessors Tomb Bishops allowed by the King. that he had compelled him to take the Pastoral Staff. So King Edward the Third wrote to Pope Clement the Sixth that his Progenitors long since upon Vacancies by their Kingly Right conferred the Cathedral Churches freely on fit persons and afterwards at the Instance of the See of Rome under certain Forms and Conditions granted that Elections should be in the said Churches by their Chapters §. 9. I need not insist upon the Kings of England seizing the Temporalities of Bishops into their hands and so Suspending them a Beneficio for those who will take the pains to look into Mr. Pryns Historical Collections will find many Instances thereof ☞ The Statutes of Provisions the complaints against the Popes Provisions in Mat. (b) Anno 1240. fol. 532.43 fol. 549.18.22 Anno 1246. fol. 669.9 Paris and the Parliaments of King Edward the Third and Richard the Second clear this point And when Anno 1349. the Pope wrote to the King that he would not hinder or permit these to be hindered to receive the Benefices who were by the Court of Rome by Bulls promoted The King Answered that he well would accept those Clerks so provided which were of good condition and were worthy of Promotion but others he would not If then the very admitting the persons to the Dignity and Office were in the Kings power as by the Conge d'eslire is well known it cannot be doubted but that the Exercise of their Government I speak not here of their Sacerdotal Function was according to the Kings Laws §. 10. How far the Canons were allowed in England We may therefore now consider how far the Ecclesiastical Canons were allowed by our Kings and how called his Laws ☞
prerogative in punishing Offenders in such manner as it was done by his Commissioners §. 3. The Bishop of Lincoln the Ordinary Visitor before Oxford was made a Bishops I now proceed to shew See by King Hen. 8. that the Bishop of Lincoln was the Ordinary Visitor In the Visitation by the Bishop of Tusculum it appears that the Legate Impowered the Bishop of Lincoln or his Arch-Deacon or the Chancellor or others the Bishops Deputies to see to the performance of what he had Decreed By which some show of Jurisdiction was left to him who was the Dioecesan and by the Canons of the Church had the Visitation in Ordinary of all under his Jurisdiction which by succeeding Councils I shall shew * Cap. 4. Sect. 4. §. 10. hereafter was his Right and declared such even without Appeals from him or any Exemption and that they executed it appears by many examples in the Bishop of Lincolns Register yet by the Instances following we find it was often disputed especially if they attempted to do any Exorbitant Act. Robert Grosthead Bishop of Lincoln (a) Wood Antiq. lib. 1. fol. 106. a singular Patron of the University being Dead Henry Lexinton Succeeded who not being content with the usual power exercised by his Predecessors designed to enlarge his Jurisdiction so that the University was forced to defend it self by shewing the Bull of Pope Innocent the Fourth granted to them a little before his Death Dated at Avignion (b) Wood Antiq. A. fol. 48. b. and in Harus de Privilegiis fol. 4. a. the 5th Kalend of October the 12th of his Pontificate wherein he Confirms and Defends their Liberties and Immunities granted top them by Bishops Kings Noble-men and others A 2d was (c) A. D. 24. a. granted by the said Pope directed to the Bishops of London and Salisbury for the Conservation of the persons Liberties and Immunities of the University A 3d. Dated 11th November the same (d) Farus de privil 4. A. D. 23. b. Year Confirming their Immunities Liberties and Customs And a 4th Dated (e) F. F. 75. the same day and place in Confirmation of their Statutes and this was Confirmed after by the Bull of Sixtus the Fourth §. 4. The Bishop of Lincolns complaint to the Pope against the disobedience of the University But it seems that the Bishop of Lincoln Complained to Alexander the Fourth Successor to Innocent that the Clerks in the Castle of Oxford refused to obey the Authority his Predecessors had Enjoyed upon which the Pope by his Bull Dated * Lib. Taxation per Dominum Norwych c. Bulla 14. The Pope confirmes the Bishops claim at Naples the 5th of the Kalends of February 1 o. Pontificatus Decreed that the Bishop might Exercise his Authority notwithstanding any Letters to the contrary heretofore obtained from the Apostolic See or to be obtained unless full mention of the present Bull was Inserted And it (a) Chron. Osnil sub An. 1258. The Bishop Visits appears Anno 1258. 42 H. 3. That this Bishop Lexinton made an Inquisition into the Rights of the University and by his Delegates examined in the Chappel of the Infirmaries the Instruments and Charters of their Possessions and Rights appertaining to the Church of Osney concerning the Church of St. Greg. Situated in the Castle of Oxford This Bishop Lexinton persisted in this Claim of Jurisdiction Bishop of Lincoln changeth the Lectures and Statutes and complaint of it is made to the King. so that on the 17th of the Ides of March about Nine Masters of Arts came to St. Albans where they made their complaint before the King in the Chappel of St. Oswin against the Bishop of Lincoln (b) Venerunt ad St. Alban quidum Magistri Oxoniae Circiter 9 Artistae qui querula voce coram Rege Reposuerunt querimoniam de Episcopo Lincolniensi qui contra Statuta Universitatis Antiqua Approbata nitebatur Libertates Scholarium enervare Statutus est dies responsionis ad instans Magnum Parliamentum Mat. Paris ad An. 1257. that he endeavored to enervate the Liberties of the Scholars against the Ancient and approved Statutes of the University and a Day for Answering was appointed at the Great parliament that the Reasons of both Parties being heard they might be appeased It appears not how the matter was determined yet it is manifest that they had resort to the Kings Authority in the matter and his referring it to the Parliament is no more then as in Arduous Causes the Kings refering a matter to his Supreme Court of Judicature the House of Lords which give the Kings Judgment and not as Mr. Pryn mistakingly or willfully applys all such things to the Sovereign power of the two Houses Tho' the King Anno 1257.41 H. 3. composed the business yet the Bishop kept his Official there that * Annales Me. Bustonenses Ms when any Statutes were made by the Chancellor and University he might see that the Bishops Authority was not Infringed as we find that David Arch-Deacon of Derby Canon of Lincoln did that Year the 4th of the Nones of June enter his Protest that they should do nothing in prejudice of the Bishop or his Successor ☞ Here we cannot but observe that the Statutes are changed by a Visitor and how the Members of the University finding themselves aggrieved by their Ordinary Visitor have recourse to the King as their Supreme Judge and Visitor Yet the Bishop of Lincoln as Diocesan Insists on his Privilege to see that no Statutes were made without his Approbation all which power our Kings now have §. 5. The Arch-Bishop of Canterbury Visits The first Visitation I find of the University by the Arch-Bishop of Canterbury was (a) Wood Antiq. Oxon. lib. 1. fol. 205. In hac Visitatione Academias ipsas Metropolitica Authoritate ingressus est M. Parker Antiq. Eccleae Brit. Fol. 198. Anno 1278. 6 E. ◠At which time Stephen Bishop of Paris Visited that University But this seems designed principally to Refute and Condemn some Errors crept into the Schools which in Theology philosophy and Logic he disputed against and with the consent of the Masters Regents and non Regents he Exploded and Condemned with this Censure viz. That if he were a Master of Art that Defended them he he should be Degraded and if a Bachelor of Art should be uncapable of any other Degree The Arch-Bishop appoints Statutes to Degrade and Incapacitate Students from taking Degrees and should be Expelled From hence we may find some Footsteps of a Visitors Incapacitating some besides Degrading and Expelling §. 6. Anno 1281. 9 E. 1. The Chancellor of the University having assumed some Ecclesiastical * Harus de privil Oxon. fol. 13. b. Oliver Sutton Bishop of Lincoln Questions the Chancellors Authority Rights and used to take Cognizance of the faults of Clerks that belonged to the Court Christian Oliver Sutton being made Bishop of Lincoln exacted an
be found amongst you and not otherwise 'T is a great grief to all sober Men to see any who would be thought True Sons of the Church of England act like Men frighted out of their wits and Religion as you have certainly done Never any True Son of the Church of England was or will be disobedient to his Prince the Loyalty which she hath taught us is absolute and unconditional Tho' our Prince should not please or humor us we are neither to open our Mouths or lift up our hands against him Yours like all other Corporations is the Creature of the Crown and how then durst you make your Statutes spurn against their Maker Is this your way to recommend and adorn our Religion and not rather to make it odious by practising that in such a froward manner which our Church Professes to abhor Do we not pray for the King as the Head of it under Christ Do we not acknowledge him for the Fountain of Honor And does not Solomon Command his Sons to fear God and the King the one with a Religious the other with a Civil fear Is he not the Lord 's Annointed and not to be toucht but with Reverence either in his Crown or Person And why should we not render then to all their dues Fear to whom Fear and Honor to whom Honor Is not this an Eternal tye both of Justice and Gratitude For where the Word of a King is there is Power And who may say unto him what dost Thou Are we not next to God and his Good Angels most beholden to him for our safety whose Honor and Lawful Authority We are now come to Vindicate Is he not the Father of our Country and ought he not to be more dear to Us than our Natural Parents especially considering how Indulgent he has been to Us and what care he dayly takes to keep us from biting and devouring one another we know not why Is not he the Center of the Kingdom and do not the concurrence of all Lines meet in him and his fortunes and how can we then understand the limits of self love if a tender Sense of his Honor and happiness be not deeply rooted and imprinted in our Souls 'T was neither dutifully nor wisely done of you to drive the King to a necessity of bringing this Visitation upon you And as it must needs grieve every Loyal and Religious Man in the Kingdom to the heart to find Men of your Liberal Education and Parts so Untractable and Refractory to so Gracious a Prince so it will be very mischievous to you at the Great Day of Gods Visitation Who will then be the greatest loosers by your Contumacy For God will Revenge this among your other Crimes that you have behav'd your selves so ungratefully towards his Vicegerent as to oppress his Royal Heart with grief for your Stubbornness to whom by your chearful Obedience you ought to have administred much cause of rejoycing They who Sow the Seeds of Disobedience have never any great reason to boast of their Harvest for whatsoever they vainly promise themselves in the beginning they are in the end ashamed and afraid of the Income of their evil Practices and indeed every sort of disobedience hath so ill a report in the World that even they who are guilty of it themselves do yet speak ill of it in others Let therefore the disreputation and Obloquy which it will inevitably bring upon you make you out of Love with it or if that will not do let the Stings of your guilty Consciences and the fear of Divine Vengeance restrain you or if you are still Insensible of all these yet at least let the present fear of those Temporal Punishments which the Laws of the Kingdom have superadded to the Contemners of Gods and the Kings Authority oblige every Soul that hears me this day to be Subject to the Higher Powers If neither a most Merciful God nor a most Gracious King can please you your wages will he recompence upon your own Heads Were it not for this Serpent of discontent and jealousies which are now so busie in it this Kingdom would be like the Garden of Eden before the Curse a Mirrour of prosperity and happiness to all the World besides but this Serpentine humor of Stinging and Biting one another and of Tempting Men to Rebel against God and the King because others who differ from us in Judgment are as happy as our selves will as certainly turn us as it did our first Parents out of Paradise Our Nation is in greater danger of being destroyed by Prophanness then Popery by Sin then by Superstition by other Iniquities then by Idolatry and I pray God we may not see Sacrilege once more committed under the pretence of abhorring Idols as I my self have seen in this place If there be any among you who have sinn'd with so high a hand against our Gracious Sovereign as the obdurate Jews did against our Saviour saying we will not have this Man to Rule over us such your petulant humor such your shameful Injustice and Ingratitude will deserve the just Animadversions of this Court. What distempers this College is sick of which we are now come to visit by the Kings Commission your selves are best able to tell us We are informed of too many already and yet we suspect there may be more and therefore be but Ingenuous and make a Conscience of giving us sincere Answers and you shall find that we will abate nothing of the just measures of our Duty for fear or favor to satisfie the Importunities of any Man being well assured that God and the King will bear us out I am sorry that you should any of you run so far upon the score of the Kings Royal Patience and Pardon as some of you have already done And that you should be in such vast Arrears of Duty and Respect to him as you are But they go far who never turn The Influence you may have upon other parts of the Kingdom makes me Charitably hope that your future Fidelity and Allegiance will for ever Answer your Duty and the Kings just Expectation And therefore I hope it will not be in vain for me to exhort you in the Bowels of Christ to a more entire submission and obedience because if such Men as you bred in so Famous an University are not thoroughly convinced of the necessity of it the more Popular you become the more pernicious will you be in encouraging your deluded Admirers who have their Eyes upon you from all parts of the Kingdom to be as Disobedient and Contumacious as your selves by which the Honor and Authority of the King may be diminished and the peace both of Church and State come to be endanger'd Obey them who have the Rule over you either in Church or State and submit your selves before it be too late for your contumacious behaviour towards them will yeild you no profit at all but your Obedience much every way the former will
Magdalen College in Oxon runs thus Dispensing with any Statutes or Constitutions to the contrary in St. Mary Magdalen College it self Any Statute Constitution or Order to the contrary notwithstanding with which We are pleas'd to Dispense at this time Dated July the 19th 1679. §. 4. A Statute of the Founder dispensed with concerning the Lady Margarets Preachers An Example of a statute of a Founder Abrogated by the King appears in this following directed to the Chancellor of Cambridge Whereas the Lady Margaret late Countess of Richmond and Derby in her Foundation for a Preacher in the University of Cambridge did oblige him to Preach at Twelve or Thirteen several Towns in several Counties and accordingly did allow him what was in those days a Competent salary and sufficient for the discharge of the Expence of his Journey We understanding that the salary for the said Preacher is now very small and inconsiderable Therefore being disposed to free the said Expensive Duty have thought fit and accordingly do hereby Dispense with all those that shall be her Preachers for the future for their not Preaching at the places provided they do all other Exercises in the University unto which by the said Foundation or Custom they are obliged and Our pleasure is The Kings pleasure that the Oath be altered that you alter the Oath which the said Preachers at their Entrance were to take according to these premises and to cause these Letters of Dispensation to be Registred c. Dated October the 30th 1679. In another Mandate Directed to the Chancellor of Cambridge I find as followeth Trusty Concerning conferring Honorary Degrees c. Whereas We have been given to understand that several Disputes have heretofore risen in that Our University about Conferring Honorary Degrees without time or exercise upon Baronets and Knights who were Members of Our said University We have thought fit in order to the settling of that matter for the time to come hereby to signifie to you that we are Graciously pleased to allow it c. with a Clause that the Letters be Registred Dated October the 30th 1679. §. 5. Dispensation with Statutes that oblige to enter into Deacons Orders after being two Years Master of Arts. There being a Statute in Queens College Cambridge Another of the like nature That every Fellow after being two Years Master of Arts must Enter into Deacons Orders or else quit his Fellowship Mr. Charles Palmer is Dispensed with Dated November the 18th 1679. In another Mandate I find that John Cudworth B. A. is allowed to Travel for seven Years whereas by the Statutes of Christs College in Cambridge he is obliged to Enter into Holy Orders before that time is Expired which he cannot do now in regard of his being under the Age required in such Cases We do Dispense with his not Entring into Holy Orders till after his return Dated December the 31st 1679. Mr. John Lytcote is Dispensed with Another for Mr. Lytcote now Sir John Lytcote for not entering into Holy Orders for Four Years and yet enjoy his Fellowship any Statute c. notwithstanding Dated January the 13th 1679. But upon the 20th of December 1680. after reciting the foresaid Mandate it saith the King for particular reasons revokes it The cause was for that John Lytcote now Sir John Secretary to the Earl of Castlemain and now Resident at Rome upon his Travels having Discovered some of Oates his Pranks and brought several of St. Omers Youths for Witnesses the late King was Induced to withdraw his Dispensation whereby he might be either bound to quit his Fellowship or to enter into Orders so that it was presumed he would either declare himself a R. Catholic or quit his Fellowship §. 6. The re-inforcing of a Mandate not presently obeyed This next is an Instance of a Mandate endeavored to be eluded which was re-inforced by a subsequent Mandate directed to the Master and Fellows of Trinity College in Cambridge March the 12th 1680. Trusty c. Whereas We were Graciously pleased by Our Letters Mandatory bearing Date the 8th of November last to require you to Admit John Couper Bachellor of Arts of that our College into the first Fellowship that should become void after the Date thereof and upon some difficulty made Our Right Trusty c. Cousin c. Robert Earl of Sunderland then Our Principal Secretary of State did the 29th of November following by Our particular Direction signifie Our pleasure in behalf of the said John Couper that you should Immediately choose him a Fellow according to the Intent of Our said Letter notwithstanding which We are Informed that you have not yet chosen him Whereas the Most Reverend Father in God William Lord Arch-Bishop of Canterbury hath Certified that he is acquainted with the State of this Case and humbly conceives that he doth deserve some relief from Our Favor and Goodness We have thought fit hereby to require you to Admit him the said John Couper into the first Fellowship that is or shall become void pursuant to Our said Letter whereby We expect your ready Complyance as having been induced to it upon particular considerations any Statute or Statutes of that Our College as to the time of Election or as to the Degree of Master of Arts which he hath taken or ought to take or any other Statute Custom or Constitution to the contrary notwithstanding §. 7. The Mandate for removing the Duke of Monmouth from being Chancellor of Cambridge and appointing the Duke of Albemarle Chancellor There is another power in the Crown which because it is conteined in the following Mandate I shall Transcribe at length as I find it directed to the Vice-Chancellor of Cambridge to be Communicated to the Senate ☞ Trusty c. We Greet you Well Whereas the Undutiful Behavior of Our Natural Son James Duke of Monmouth hath given Us great Cause to Remove him from Our Service and any further Attendance on Our Person whereby he is rendered uncapable of discharging any longer the Office of Chancellor of that University either to Our satisfaction or profit and whereas We are given to understand that by the Ancient Statutes thereof the Chancellor was chosen to his Office but for Three Years and by a late Statute of Queen Elizabeth The King reserves to himself the power of Interpreting Statutes of the University but for Two Years only and whereas We have ever reserved to Our Self the power of Interpreting the Statutes referring to the Election of your Chancellor We think fit to Declare the Chancellors place void and the Senate thereof to be in full Liberty to proceed to a New Election and that you may not want a fit Person to remind Us from time to time of all things that may tend to the Encouragement of good Litterature The advantages to the University by the Kings Nominating a Chancellor and all things else that may maintain that Our University in the splendor and prosperity
was before the Court in that the Vice-President and Fellows that were Electors were Cited and their Plea for their Election was Examined and discussed and upon full hearing was by the Lords Commissioners Adjudged to be void and null so that the Vice-President and Delegated Fellows were in this Case his Proxies §. 3. The fourth Objection It is Fourthly objected See here p. 67. That Dr. Hough was Ejected out of a Free hold for Life without any Writ of Ejectment or Tryal at Common-Law contrary to the freedom of a Subject To this I Answer That there are two sorts of Free-holds viz. Absolute and Conditional as to the first it is true that no person can be dispossessed of it but by due course of Law and in case of resistance no other way but by the Sheriff and his Posse Comitatus But in a Conditional or Attendant Free-hold as this of a College is a Man may be dispossessed without that Course if he perform not the Condition of his Free-hold so Thomas Coveney sometime President of this College was deprived of his Free-hold Attendant on the Presidentship for that he was not entred into Holy Orders and another substituted in his place without a Sheriff or Posse Comitatus for not performing some conditions required by his Office tho' duly Elected Therefore much more might Dr. Hough be Ejected by the Lords Commissioners Sentence who never was de Jure President In this Case the Free-hold is only Attendant upon the Office so that by whatever Legal proceeding the Office is declared and adjudged void by the same the Attendant Free hold ceaseth any more to appertain to the person Ejected or Deprived So a Parson hath an House and Glebe-Land and by his Ordinary is suspended or deprived ab Officio Beneficio immediately his Right ceaseth as to that Free-hold during his suspension or deprivation yea it is more here for he is as a person Dead So in any like Case an Officer that hath an House Garden c. annexed to his Office and holds that Office durante beneplacito Regis this is his Freehold while he holds the Office but when ever the King gives him a Supersedeas the Free-hold Attendant upon that Office from that moment ceaseth to be his Free-hold now the Decree of the Lords Commissioners of Deprivation Expulsion or Suspension is as much a final Judgment against Dr. Hough whose Cause was of their Cognizance as any Verdict in a Court of Common Law for Ejectment c. Hence the Reader may Judge how groundless and bold an Assertion it was in Dr. Stafford to say See here p. 75. that as to the Decree of his Majesties Commissioners against Dr. Hough they humbly conceived it was null and void in it self he being thereby deprived of a Free hold for life the which he was duly and Legally possessed of without ever being called to defend his Right or any Misdemeanor objected against him When the Doctor could not but know that Dr. Hough had neither Right to Presidentship or Free-hold if he were not duly Elected and that he could not be if the Kings Mandate and the re-inforcing of it up on the Petition of the Society that he would be obeyed was of any force as I shall in the next Paragraph further clear §. 4. The fifth Objection It is Fifthly objected that it doth not plainly appear that a Mandate implyes a Prohibition especially when the person proposed is by the Statutes of the College in no capacity to be Elected it being as Dr. Stafford urged See here p. 78. a contradiction in Terminis that to Command to Elect a person uncapable should oblige not to Elect a person capable To this first I Answer in General Answer That the Mandate having those express words in it Any Statute Custom of Constitution to the contrary in any wise notwithstanding wherewith we are Graciously pleased to dispense in that behalf takes off all disability from the person to be Elected As the Kings Pardon Absolves the Criminal from undergoing the Penalty of the Laws and restores him to the condition of a good Subject so that the person being in all respects as capable as if he had been Statutably Qualified as in the Answer to the first Objection I presume is cleared The Question is first whether any thing was to be done by the Fellows but to obey after they had received his Majesties Answer to their Petition And Secondly whether that Mandate Implyed an Inhibition and Command to chuse no other As to the first part the whole Discourse hath been a Set of Arguments to prove by a Deduction of Instances the obedience that hath or ought to have been payed to the Kings of England in all Cases where they have Insisted upon having their pleasure obeyed And there is good reason for it since there hath been either an * So I find that King Henry the 5th especially reserved to himself and Successors the power of dispensing with any of the Statutes made or to be made as appears in a dispensation for Residence granted to Dr. Blanford 21 Aug. 1663. Express or Tacit reserve according to the Construction of the Law in all the Grants made to the Universities or particular Founders Impowring them to make Statutes that the Kings should have a power to alter change amend abrogate or annul them at their pleasure However the Kings of England have by their Gracious Concessions in other particulars limited their power to act conformable to Laws made Yet in this particular of College Statutes it may be truly said of them as of the Roman Emperors what (a) Quicquid principi placet legis habet vigorem instit de lege naturali §. sed ever pleaseth the Prince hath the force of a Law as may be seen Cod. de constit principis l. 1. In principe Instit de lege naturali § sed So we find in the Civil Law whatever (b) Quodcunque igitur imperator per Epistolam subscriptionem Statuit Legem esse constat quod principi Fide constit Princ. Tit. 4. the Emperor appoints by his Epistle and Subscription is to be esteemed a Law. This may look like a Character of an absolute Prince who is Solutus Legibus but it is what is most true in Relation to Universities for by the constant practice it is experienced that tho' sometimes Mandates of our Kings have been eluded or evaded or by Petitions have been Recalled yet when our Kings Insisted upon them they were obeyed according to the words of the Digests (a) L. merito ◠2. sed de F. quod Infra Accursius in comment that a Mandate requires a ready obedience so that in Civil Law it is a known Rule that Rogatio Domini praeceptum est Mandatum Spontaneam obsequii praestationem prae se fert Instit ut de Attil Tut. § penult And the absoluteness of a Mandate is yet further cleared by the Rule in
alledged that he should have been proceeded against by Libel and have had a Copy of his Charge and used such expressions as gave just offence to the Court so that tho' the Sentence of Suspension was pronounced See p. 35. here for his Contempt in not obeying His Majesties Letters Mandatory for Electing and Admitting Mr. Anthony Farmer President of that College yet if it had not been because of his disagreeable deportment to the Court it is probable he had at that time no more Incurred the Censure of the Court than the rest of the Fellows who concurred in the said Election As to the affixing the Sentence on the College Gates See chap. 1. sect 2. p. 43. that was not a material circumstance nor whether Mr. Anthony Farmer was then or after laid by or whether he was unfitting by reason of his Immorality or otherwise It is necessary for every Court to Assert it's Jurisdiction and much more ought the Lords Commissioners to do it being they have such Ample powers from the King so that whatever Contempt was offered to their Lordships was to the King himself and that Dr. Fairfax persisted to the last in denying the Authority of the Lords Commissioners and disobeying the Kings Mandate for Admitting the Bishop of Oxford President or submitting to him as such appears by his last Answer to the Question proposed October the 25th whether he owned their Lordships Jurisdiction To which he replyed See here p. 84. 85. Under Correction he did not And being asked whether he would submit to the Bishop of Oxon as President His Answer was he would not nor could not because he was not his Legal President Whoever considers this obstinacy persisted in to the last cannot think the Lords Commissioners could do less than they did Had this been done in another Kings Reign perhaps it might have been Interpreted a Questioning the very Supremacy it self which how fatal it was to John Fisher Bishop of Rochester and Sir Thomas Moor is worthy to be considered both as a demonstration of our Kings Clemency and that the Doctor hath not so much reason to complain of the hard usage However the Doctor thought himself obliged to the observation of the Statutes and to submit to the President only he and the rest of the Fellows had chosen yet he ought to have considered what Baldus in his Comment upon the Code 3. Tit. 14 n. 7. saith * Qui sunt in aliquo Collegio ratione professionis vel negotiationis Jurisdictionem ejus qui praeest Collegio recusare non possunt non minus tamen sunt sub praeside vel alio Superiore That those that are in any College by reason of their Profession or Negotiation there ought not to refuse the Jurisdiction of him that presides in it yet they are no less subject to the President or another Superior which Superior or rather Supreme I take the King to be Besides if the Doctor and the rest of the Fellows would have considered that in relation to College Statutes however it may be disputed in other matters the King hath the same power as the Emperors had and that is to be found in the Digests thus * Quodcunque igitur Imperator per Epistolam subscriptionem Statuit vel cognoscens decrevit vel de plano Interlocutus est vel Edicto praecepit Legem esse Statuit Dig. lib. 1. Tit. 4. n. 1. Therefore whatever the Emperor appoints by Epistle and Subscription or knowing doth Decree or plainly doth express or Commands by Edict is to be esteemed a Law. Which is Literally true in all the Kings power of dispensing with or Suspending College Statutes for since it is clear by many Instances before insisted upon that the Kings of England have power to alter abrogate and annihilate Statutes of Colleges much more must they have the power to Dispense with or Suspend them ☞ Therefore when any person refuseth to submit to the Kings Authority in this particular he is deservedly punishable by Suspension or Deprivation Neither ought Fellows of Colleges assume to themselves a power of Judging of the Reasons why the King Grants Mandates in favor of any particular person or to deny their obedience to the person so recommended by Mandatory Letters because they have heard or can prove some Immortalities against him for if that liberty of opposing the Kings Mandate upon any such grounds were once allowed the Kings power must be solely precarious and every Mandate of the Kings would be lyable to disputes and debates and the Kings Sovereignty and Authority would dwindle to an Impotent wish that he might obtain his desire instead of being positively obeyed which would be such a condition of the Monarchy as would render it contemptible and whoever endeavors to lower the Dignity of the Crown in such a manner deserves just Chastisement for it which was but the bare Suspension of the Doctor from his Fellowship at first but by his perfisting in his undutifulness to the highest Degree of denying the Kings Authority he was justly punished by Expulsion and after with Incapacitating §. 9. The seventh Objection It is Seventhly Objected by some of Magdalen College that no Commission can be granted under the Great Seal to Visitors to place and dis-place Members of Colleges whose places are Free-holds ad Libitum or discretion These are the words of the Oxford Relation pag. 21. But they must proceed according to Legal discretion that is by the Laws and Statutes of the Land and Local Statutes of the College And places concerned consigned rather for the Headship and Fellowships of Colleges are Temporal Possessions and cannot be Impeached by Summary Proceedings For this they Allege the Case of Dr. Thomas Coveney President of the same College who was deprived in Queen Elizabeths time by the Bishop of Winton the Local Visitor thereof Established by Royal Authority and he Appealed to the Queen But by the Advice of all the Judges it was held that the Queen by her Authority as Supreme Visitor could not medle in it but he must bring his Action in Westminster Hall because Deprivation was a cause merely Temporal The King they own has a great Authority Spiritual as well as Tmeporal but no Commissioners can be Authorized by the Crown to proceed in any Commission under the Great Seal or otherwise but according to Law in Spiritual Causes by the Canon Law in Temporal by other Laws and Statutes of the Land. And wherein the Proceedings in some Commissions are directed to be Summarie de plano sine strepitu forma Figura Judicii those words are to be applyed to shorten the Forms of Process and not for matter of Judgment For Magna Charta provides for our Spiritual as well as Temporal Liberties §. 10. Answer to it by parts To Answer this Objection distinctly we must consider the several parts of it for it is an huddle of several matters jumbled something confusedly to set off the matter
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