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
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
and in defence of the Doctrin of the Church of England As also to let all know how happy it had been if the Fellows had hearkned to his honest sober and faithful advice which was assented to by Dr. Aldworth Dr. Fairfax and Dr. Pudsey at their private Conference before proceeding to Election tho' they after changed their minds ☞ It hath been the practice in former times and according to the Canon Laws that when any Superior enjoyned any matter upon Inferiors which they judged to be prejudicial to their Rights It was their Duty rescribere to Write to the Prince or other Superior to shew him wherein by such Mandate their Rights were invaded or what other inconveniences might ensue and not to proceed forthwith to do that which was forbid especially not to proceed to Election as here they did when the King had after their Petition presented to him expressed himself that he would be obeyed In Duty and Obedience therefore they should have stayed their Election and represented their Case more particularly and it is most certain that the neglect of this and the contempt of the Kings Authority were the Original causes of all that hath befallen them but I shall leave this and proceed in the matters of Fact. §. 7. My Lord President to the Bishop of Winchester Whitehall April the 16th 1687. My Lord I Have received your Lordships Letter of the 8th Instant with an Address or Petition inclosed in it from St. Mary Magdalen College in Oxford which I laid before the King who had before granted his Mandate in behalf of Mr. Farmer to be Elected and Admitted President of that College and being since informed that notwithstanding the same they have made Choice of Mr. Hough His Majesty Commands me to acquaint your Lordship that his pleasure is you should not Admit Mr. Hough to be President till further Order from him Lord Bishop of Winchester I am MY LORD Your Lordships most humble Servant Sunderland P. This being sent to the Bishop he returned this following Answer the next Day My Honorable Lord THis Morning I received yours of the 16th Bishop of Winchesters Answer by the hands of Mr. Smith one of His Majesties Messengers In which your Lordship signifies to me His Majesties pleasure not to Admit Mr. Hough to be President of St. Mary Magdalen College Oxon until further Order from him But Mr. Hough being Yesterday Morning presented to me by some of the Fellows of the College as Statutably Elected I did according to the Trust reposed in me by the Founder after he had taken the Oath enjoyned by the Statute Admit him Presdent and am certain when the Statutes of the College are laid before His Majesty he will find that I have not violated my Duty in performance of which I never was nor ever shall be remiss as I desire you to assure him from Farnham Castle April the 17th 1687. Your most humble Servant P. Winchester §. 8. By the Statutes there are five days allowed for the Bishop of Winchester's confirmation ☞ By this it appears how sedulous the new Elected President and the Fellows were to have the Election confirmed presuming that this being done the President would have a Legal Right and could not be removed but by course of Common Law But I hope to shew hereafter that the practice of the Kings of England and of the Visitors appointed either by the Kings or the Popes the latter of whose power our present Laws give his Majesty hath been to dispense with Statutes and to place and displace for disobedience Heads of Colleges and Fellows by the significaton of their Royal pleasure or to Impower Visitors by Commission to do the same and of this it cannot be conceived that the Members of the College could be Ignorant but that they rather were animated to lay hold of this opportunity to see if they could dispute the Kings Authority or which is of equal concern to many render the King's Actions disobliging whereby they might gain the point of raising iealousie and male-contentedness in peoples minds with which designs I will not charge all the Members of the Society But it is too apparent that those who underhand encourged them to persist in their opposition designed some such matter I now pass to their Application to his Grace the Duke of Ormond their Chancellor and the Representing their Case in the best dress they could and shall only note at present that these were like to have little effect since they were the justifyings of their actions upon such slender grounds as in the sequel will be made appear and carried no tokens of relenting or repentance for their by-past disobedience so that the King could not look upon them as any Acts of theirs that might induce him to a Clemency or Pardon where they would not own their failor of duty but were a denial of his Sovereign and Supreme Authority of dispensing and being obeyed contrary to the known Laws and practice of his Royal Predecssors as I shall make clear when I come to Answer their Objections and shew the obligation to their Oaths of owning the Kings Supremacy and the Sovereign Jurisdiction the King hath to alter and make null their Statutes that any ways Impugn his Prerogative over such Societies and Corporations which owe their Foundation and subsistence to the Royal pleasure and may be proceeded against when the King pleaseth by a more sever method of Quo Warrante whereby they may be totally suppressed Whereas the King in great Clemency proceeded only by way of Visitation which is a most undoubted Prerogative of the King that must ever be owned by those who question the extent of the Ecclesiastical Commission I now proceed to the Address the Society made to his Grace the Duke of Ormond as followeth §. 9. The President and Fellows of St. Mary Magdalens College Oxon to the Duke of Ormond then Chancellor May it please your Grace VVE the President and Fellows of St. Mary Magdalens College in Oxford sensible of the Honor and Benefit we enjoy under your Graces Patronage and how much it Imports us to have recourse to your Advice in all those difficulties wherewith we are prest having as we fear displeased His Majesty in our late Election of a President do humbly beg leave to represent to your Grace a true State of our Case and hope you will please to Inform the King how uncapable we were of obeying his Commands His Majesty was pleased upon the Death of Dr. Henry Clark President of this College to Command us by his Letter to Elect and Admit Mr. Anthony Farmer into that Office a person utterly uncapable of it by our Statutes as we are ready to make appear in many particulars And since we have all taken a positive Oath of obedience to them and that Exclusive of all Dispensations whatsoever We humbly conceive we could not obey that Command in favor of Mr. Farmer unless he had brought those Qualifications with him
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 ☞
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
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
renounce the said Bull before the Kings Messenger and testifie such their Renunciation by public Instruments I know not wherein the King could discover his power more plainly than in Abrogating the very Bulls of Popes surely he that can do this may Suspend a Statute I know it will be here replyed that the King upon the Controversies betwixt the Arch-Bishop and the University about the Right of Visitation declared for the Arch-Bishop To which at present I shall only reply that the King here was not as a party but as a Judge in a Controversie depending declaring his own pleasure which surely manifests his Supreme Jurisdiction and that appears from the very words of the Parliament (a) Cum quaedam dessentiones lites debatae nuper motae fuerunt inter c. super usu excercitio Jurisdictionis Visitationis dictae Universitatis c. nos volentes hujusmodi dissentiones c. prout Regiae convenit Majestati attentis damnis periculis quae inde versimiliter evenire possent sedare pacificare ac pacem quietem tranquillitatem inter partes praedictas pro viribus confovere c. Pat. 20 R. 2. part 3. M. 9. that whereas some dissentions strifes and debates of late were moved and risen betwixt the Arch-Bishop c. on the one part and the Chancellor of the University of Oxford and several others of the said University on the other part about the use and exercise of Jurisdiction and Visitation the Arch-Bishop claiming it c. as appertaining to his Church of Canterbury c. The King willing to quiet and pacifie the said Dissentions Suites and Debates and to preserve peace quiet and tranquility amongst the parties as it agrees with his Kingly Majesty attending the damage and danger which in probability might happen thereupon considering that Jure Communi the Visitation belonged to the Arch-Bishop c. therefore determins it for him Surely Jus Commune must here be taken as that by Canon Law Common Right or by our Common Law of England this appertained to the Arch-Bishop of Canterbury and then it can be understood no otherways then that virtute officii he might Visit correct and reform all within his Diocess and that Exemptions were breaches of that Common Right and whatever he did quatenus Arch-Bishop or as Legâ—us natus he did by Authority from the King or the Pope and from either of which soever he had them or by the Canons yet none of these can deprive a more Soveraign power from visiting by it's self or it's delegates and the last clause (a) Salvis nobis Haeredibus nostris onmibus aliis quibus in Universitate praeaicta nos progenitores nostri-uti consue vimus temporibus retroactis Id. Pat. of the Patent is therefore to be observed heedfully which is saving to our selves and our Heirs all other Rights or Prerogatives which we and our Progenitors in by past times have been wont to use in the said Universities This further appears if we credit Mr. Woods note upon it that this did not touch the Popes Exemption for if not that it much less effected the Kings Prerogative in general for tho' one King by his Charter may yield it yet he cannot in prejudice to his Successor make it binding to him to which we may add what he further saith that whatever was done it is certain that that Visitation did not then succeed Before I leave this head I must desire the Reader to consider that the Arguments of those who opposed the Exemption were that this Immunity granted by the Pope was not only to the prejudice and grievance of the Metropolitan and Ordinary but likewise to the whole University and was rather a servitude then liberty to them for without that if they had been oppressed by their Chancellor or Vice-Chancellor they might have been redressed by Appeals to the Arch-Bishop but now being reduced under the power of one they were subject to perpetual servitude §. 5. The Arch-Bishops Visitation resisted ☞ Anno 1411. Thomas Arundel the Arch-Bishop intending to Visit the University sent his Letters of Citation (a) Harus in memorabilibus fol. 106. b. to the Chancellor Doctors Masters and Scholars to be ready against his coming and was received by the Chancellor and Proctors and a great conflux of the University and the Chancellor Richard (b) Dum nititur visitare Universitatem Oxoniarum Repulsam passus est Walsing Ypodegma neust ad Ann. 1411. The Kings Authority Courtney told him that if he came as a Guest he was most Welcome but if he came as a Visitor the University was long since by the Popes Bull freed from Archiepiscopal and Episcopal Visitation at which the Arch-Bishop was much displeased and after a Day or two stay he went away and sent the King an account by Letter so the King Commanded (c) Fragmenta veteris Registri Universitatis Oxon Bib. Cotton sub faustina c. 7. the Heads of the University to appear the Day after our Ladies Day to give an account of the Popes Bull which they pretended What followed upon it appears by the Chancellor and Proctors laying down their Offices at Lambeth The Chancellors and Proctors quit their places The King appoints the Senior Theologue to Officiate in the Chancellors stead whether voluntarily or compelled appears not And the King writes to the University that the Cancellarius Natus or Senior of the Theologues should exercise the Office till there should be an Election of another in his place and Commanded that the Papal Exemption should be brought to him Upon this there was such a sadness surprized the Students that the Lectures ceased and they were dispersed The Students leave the University and desist from Lectures and an end seemed to be put to the University according to a Statute made to that purpose that they should use that Remedy if any invaded their Liberties and Privileges Which being imparted to the King he Writ first (d) C. fol. 31. a. displeasedly at the Fact of the Heads and in a second Letter (a) C. fol. 55. b. exhorts them in softer Language to revoke their Lectures and after a while lest the University should receive damage The King gives leave to choose Chancellors c. about October the King Commanded that such should be chosen as might Execute the Offices of those removed for the remainder of the (b) Frag. vet Regist supra Year and the University chose the last Chancellor and Proctors which being certified to the King he took it very ill The King displeased with the Election After which Law Suites being Commenced betwixt the Arch-Bishop and University The King hears the cause and determins for the Arch-Bishop it was agreed that all parties should stand to the Kings Judgment and about the middle of December the King heard it and he appointed that the Sentence (c) Ibid. which King Richard the Second had given should stand
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
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.
pag. 158. 159. The Kings power of Visiting § 16. pag. 159. The Kings power in Ecclesiastical matters and his being Supreme Visitor pag. 160. SECT II. Who Exercised Jurisdiction by way of Visitation or otherwise over the Universities from the 11th of King John to the Year 1390. 14 Ric. 2. pag. 161. The Pope and Legat Suspend Offenders § 1. pag. 161. Cardinal Otho Visits by Legatin Authority § 2. pag. 163. The Bishop of Lincoln Ordinary Visitor of the University of Oxford § 3. pag. 164. 165. The Bishop of Lincoln sometimes opposed § 4. p. 166. The Arch-Bishop of Canterburys Visitation of Oxford § 5. pag. 167. Disputes betwixt the Bishop of Lincoln and the University and the Arch-Bishop with both about Visitation § 6. pag. 168. 169. The University subject to several Visitations pa. 169. The disturbance the Dominicans made in the University of Oxon for setling which the King and Pope shewed their Authority § 9. pag. 171. 172. Appeals to the Pope § 10. pag. 174. 175. Differences betwixt the Arch-Bishop of Canterbury and Bishop of Lincoln about Visitation and the King Interposeth his Authority § 11. pag. 172. Disturbances in Queens College and the proceedings of the Local Visitor and the Kings Orders thereupon § 12. pag. 175. Arch-Bishop Courtneys Visitation § 13. pag. 176. SECT III. Who Visited the Vniversity of Oxford after the 13th of King Richard the Seconds time to the beginning of King Henry the 8ths Reign pag. 178. The King redresseth certain grievances complained of by both Universities § 1. pag. 179. What is to be observed from thence § 2. pag. 180. The Kings Mandate to extirpate Lollards out of the University § 3. pag. 181. Arch-Bishop Arundel Visiting by the Kings leave Commands the Univesity to obey § 4. pag. 182. The Kings power not lessened by such Visitations pag. 184. Arch-Bishop Arundels Visitation resisted § 5. pa. 185. The King hears the Cause of the Universities claiming exemption and determins it pag. 186. An account of this whole matter in Parliament § 6. pag. 186. The King may deprive the University of privileges for dis-obedience pag. 187. An account of a latter Visitation 12 H. 4. § 7. pag. 188. The Reason why the Author hath given so large an account of this Controversie § 8. pag. 189. Mr. Pryns mis-application of the Records about this pag. 189. The King gives Sentence for the Arch-Bishop of York against the Arch-Bishop of Canterbury and gives leave to the Bishop of Lincoln to Visit § 9. pa. 191. The Visitation of the Metropolitan and Diocesan by the Canons § 10. pag. 191. 192. CHAP. V. COncerning the Visitations of the Vniversity of Oxford since the Renouncing the Popes Supremacy in England pag. 193. SECT I. Concerning the Visitations in the Reigns of King Henry the 8th and King Edward the 6th pag. 193. The Charters and Bulls of the University of Oxford Surrendred to the King and Cardinal Wolsey for him and the Kings Visiting the University § 1. pag. 194. The usual Method of proceeding in Visitations of the Universities pag. 194. 195. The Commission of King Edw. 6th to Visit the University of Oxford § 2. pag. 196. The Kings Supremacy and Authority to Visit pa. 196. The places and persons to be Visited § 3. pag. 197. The punishments are Deprivation Sequestration of profits and Ecclesiastical Censures c. § 4. pag. 198. Several other powers granted to the Visitors § 5. pag. 199. Other powers § 6. pag. 200. Further powers given § 7. pag. 200. 201. Command to Sheriffs to Assist Non-obstante c. § 8. pag. 201. What may be observed from this Commission § 9. pag. 201. to 205. What the Commissioners did in this Visitation A Suspension of the Execution of Statutes § 10. pag. 205. 206. A new Book of Statutes made § 11. pag. 206. The severe proceedings of the Commissioners § 12. pag. 207. SECT II. The Visitation in Queen Maries Reign pag. 208. Queen Maries Visitation by Bishop Gardyner § 1. pag. 208. Cardinal Pools Visitation § 2. pag. 209. The Questions proposed pag. 210. The Cardinal appoints new Statutes § 3. pag. 210. The Cardinal Visiting as the Popes Legat. pag. 211. SECT III. The Visitations in Queen Elizabeths Reign pag. 212. Queen Elizabeths Inhibition § 1. pag. 212. Queen Elizabeth appoints Visitors § 2. pag. 212. The Heads of Colleges and others Expelled § 3. pag. 213. Letters about the Visitation of Cambridge by Dr. Parker after Arch-Bishop of Canterbury § 4. pag. 215. Some observations concerning that Visitation pag. 218. An account of the Visitation of Merton College § 5. pag. 218. Observations upon it pag. 219. Secretary Cecils Letter about Visitation § 6. pag. 220. Disturbances about the Election of a President in Corpus Christi College and the Queens Mandate for Electing § 7. pag. 221. The Queen appoints Visitors Ibid. What the Earl of Leicester did as Chancellor § 8. Ibid. SECT IV. A further account of the Visitations of the Vniversities or single Colleges together with the Alteration Abrogating or new Imposing of Statutes of the Vniversities by the Sovereign pag. 223. An account of what is to be Treated of in this Section The Reason why Princes should have a greater power over Universities § 1. pag. 223. 224. Queen Elizabeths Letters Patents for confirming the Statutes of the University of Cambridge altered by her § 2. pag. 225. A Controversie betwixt Dr. Humfreys President and some Fellows of Magdalen College § 3. pag. 227. An account given of it in the first paper § 4. pag. 228. The second paper § 5. pag. 231. to 236. The third paper § 6. pag. 236. to 240. Abstract of Secretary Walsinghams Letter about this matter and the Bishop of Winchesters Answer § 7. pag. 241. Observations from these strict Statutes § 8. p. 242. 243. The Case of Mr. Wilson chosen Rector of Lincoln College § 9. pag. 244. Dr. Fulks Letter about the Queens appointing Visitors of Cambridge § 10. pag. 246. Necessity by Visitation to alter Statutes tho' the University have power to do the same Ibid. Statutes about Apparel § 11. pag. 248. Concerning the need of confirmation of the Spiritual Jurisdiction to the Chancellor c. pag. 248. The Kings appointing constitutions of the University without Visitors § 12. pag. 249. Concerning some Visitations in King Charles the firsts time pag. 250. Concerning Arch-Bishop Lauds Visitation of the Universities jure Metropolitico pag. 250. 251. King Charles the firsts determination concerning the Arch-Bishops Visitation of the Universities § 13. pag. 252. Considerations thereupon pag. 253. The Form of a Commission from King Charles the 2d for Visiting a free Chappel § 14. pag. 254. Inferences from this Record pag. 255. The Conclusion of this Section pag. 255. The Opinion of an eminent Lawyer as to the Kings power over Corporations Colleges c. pa. 255. 256. The Opinion of several Judges in this
of the Land. Ibid. The Kings of England grant Commissions of Visitation in several cases Ibid. Inferences from the foregoing Records § 11. pa. 318. The Kings power in Suspension and Deprivation of Bishops c. by Commissioners consequently may do it on Members of Colleges pag. 319. Whether Colleges be of Temporal or Spiritual Nature § 12. pag. 320. The Kings Prerogative is not against Magna Charta pag. 321. The Eighth Objection concerning the liberty of Appeals § 13. pag. 321. Dr. Coveneys Case urged pag. 322. The Answer § 14. pag. 322. The Method of Appeals according to the Statute 25 H. 8. C. 19. pag. 322. Appeals to the King in person pag. 323. The Case of Dr. Coveney not rightly stated pag. 324. The Artifice used by those of St. Mary Magdalen College in citing this Case pag. 324. The Case of Charles Cottington Esq about Appeals § 15. pag. 325. The Petition of Mr. Cottington Ibid. Referred to the Committee of privileges pag. 326. The Earl of Essex's Report from that Committee Ibid. The House of Lords Order upon it Ibid. The Ninth Objection that matter of Fact proves not right § 16. pag. 327. The Answer pag. 327. If the Kings Prerogative in this case had been against Law it would have been questioned at some time in the Courts of Law. pag. 328. The King in Possession of this Prerogative Ibid. The Original Prerogative of dispensing in the King. Ibid. A Transition to what is to be Treated of in the Appendix Ibid. Contents of the APPENDIX A Mandate for replacing a Graduate Expelled § 1. pag. 329. Inferences from this Record § 2. pag. 331. The Prerogative of the King over the University cleared in four particulars by this Mandate pag. 331. The King Founder of Colleges § 3. pag. 332. The Kings Mandate for taking off an Amercement from the Prior of St. Swithins Ibid. The Kings Mandate to enjoyn the Provost and Members of Queens College in Oxford to submit to the Visitation of the Local Visitor pag. 333. Nota that dis-obedience to the Kings Mandate is Styled Rebellion pag. 333. The Interpretation of a Statute of St. Johns College in Cambridge by the Bishop of Ely their Visitor § 4. pag. 334. Observations upon the Interpretation of the Local Visitor pag. 335. Extracts of some Statutes § 5. pag. 335. How the Fellows of Magdalen College cannot justifie these adhereing to the Literal and Grammatical Sence of their Statutes nor that they cannot be dispensed with pag. 335. Transcript of the Statutes to be served with Males only § 6. pag. 336. Statutes against Dice and Cards § 7. pag. 337. The penalties upon them pag. 339. What is to be observed from them Ibid. Statute concerning Repair § 8. pag. 340. About saying of Masses solemn Obits c. § 9. pag. 340. 341. Concerning purchasing Fellowships pag. 341. Concerning Dr. Haddon § 10. pag. 342. The Petition of the College to King Edward the 6th Ibid. The different way of the Societies proceedings then from the late Fellows proceeding to Election contrary to the Kings Mandate pag. 343. Note the grounds of the Societies obedience was the Kings special Mandate by his Supreme Authority and his dispensing with the Impediments of their Statutes and their Oath pag. 344. Inferences from this Ibid. The Queen Commands Dr. Bond to be Admitted President and declares the Election of Mr. Smith void § 11. pag. 345. This Mandate is very pertinent like that of our King for the Bishop of Oxford which was obeyed by the Society in the Queens time and of which the late Fellows could not be Ignorant pag. 346. The Queen dispenseth with the Statutes Sworn to by the Society and all other thing cause or matter to the contrary whatsoever pag. 346. The Fellows were all present at Dr. Bonds taking his Oath and he was received and Admitted President according to the Queens Mandate Ibid. The Inferences from this Mandate Ibid. An Historical account of King Charles the Firsts dispensing with a Statute of Emanuel College in Cambridge § 12. pag. 347. The Petition of the Master and Fellows of Emanuel College to the Lord Chancellor and the grounds of it § 13. pag. 348. Nine Reasons for the Petition pag. 349. Observations upon the Petition § 14. pag. 350. Dr. Brady's Account of the Kings Nominating the Provost of King's College in Cambridge § 15. pag. 352. THE KING's Visitatorial Power ASSERTED c. CHAP. I. The Proceedings upon the Kings Mandate for Mr. Anthony Farmer to the time when the Lord's 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 UPON the Death of Dr. Henry Clark late President of St. Mary Magdalens College in Oxford the King was Graciously pleased to Grant this following Mandate §. 1. A Copy of the Kings Mandate for Mr. Farmer JAMES R. TRusty and Well-beloved We Greet you well Whereas We are well satisfied of the Piety Loyalty and Learning of Our Trusty and Well-beloved Anthony Farmer Master of Arts of that our College of St. Mary Magdalen We have thought fit hereby effectually to recommend him to you for the place of President of Our said College now void by the Death of Dr. Clark late President thereof Willing and Requiring you forthwith upon Recept hereof to Elect and Admit him the said Anthony Farmer into the said place of President with all and singular the Rights Privileges Emoluments and Advantages thereunto belonging any Statute Custom or Constitution to the Contrary in any wise notwithstanding wherewith We are Graciously pleased to dispense in his behalf And so not doubting of your ready Compliance herein We bid you Farewel Given at our Court at Whitehall the 9th Day of April 1687. In the Third Year of Our Reign To Our Trusty and Well-beloved the Vice-President and Fellows of St. Mary Magdalen College of Our Vniversity of Oxford By his Majesties Command Sunderland P. §. 2. The Authors account of his method of proceeding in this discourse I Have Inserted this Mandate at length as I shall the rest of the Letters and Dispatches because there being nothing that I know of Printed of a Visitation whereby the curious may be satisfied in the very Forms of Address and Proceedings I thought it might be grateful to such and might be Instructive to after times and those who have not access to the Secretaries or Paper Office and I have kept my self as much as I could to the Originals and Registers that as to matters of Fact none might have occasion to find fault with me for giving a partial account neither have I omitted the stress of the Pleadings by Dr. Hough or the Vice-President or Fellows and tho' I have not Interrupted the Series of the Discourse by answering the Arguments as they were Insisted upon yet I have in the close of the Discourse summed up all that
they could or did say by way of Objection and given such Answers to them as the matter required and shall take notice of the late Treatise called A Relation of the Proceedings c. Containing only matters of Fact published on purpose to make the generality of the people favor the Ejected Whereas I hope to make it appear that the King might have proceeded in a summary way and if he had pleased inflicted severer punishments upon them than the Commissioners have done and tho' at some times there seems to be a dutiful behavior in the Fellows and expressions that were agreeable to the condition of humble Subjects and a plea of tenderness of Conscience in not daring to break their Oaths yet in effect whenever they were put upon a pinch whether they would yield to the King's Authority and acknowledge themselves to have acted contrary to their Duties they never would own they had been in the wrong which was the true cause why those that refused to subscribe the submission that was at last proposed to them were so Expelled and however some might at first Interpose for them as the Bishop of Winchester did in the following Letter yet in the progress of this Discourse I shall make it clear that in former times greater punishments than that of Expulsion even to Imprisonments have been Inflicted upon such as have shewed less obstinacy and contempt of the Authority of their Sovereign I now proceed to the Bishop of Winchesters Letter to my Lord President upon the first noise of the Mandate §. 3. The Bishop of Winchesters Letter to my Lord President My Honored Lord. THe Obligation I have upon me as Visitor of St. Mary Magdalen College Oxon occasions this Address For I am informed that great endeavors are used with his Majesty to Recommend one Mr. Farmer who is not at present nor ever was Fellow of that College to be President of it which is directly contrary to the Statutes of the Founder as I am confident some who promote Mr. Farmer 's Interest cannot be Ignorant of And were there not many persons now actually Fellows and several who have formally been in particular the Bishop of Man and Dr. Jessop very Eminent for their Learning and Loyalty and every way qualified according to the Statutes I should not press your Lordship to lay the concern of the College which hath upon all occasions expressed it's Zeal and forwardness in defence of the Crown and as I particularly know in the great affair of the Succession before his Majesty who I hope will leave them to the Rules of their Statutes which have (a) (a) The contrary to this will be made out in Ancient and late times by several instances of this College and others hitherto excepting in the times of Rebellion been constantly observed and which will be the highest satisfaction to that truly Loyal University and promote his Majesties service which has always been the endeavor of Farnham Castle April 8th 1687. To the Right Honorable the Earl of Sunderland President of the Council and One of his Majesties Principal Secretaries of State. These Your Lordships most humble Servant P. Winchester I now shall proceed to give an account what the Vice-President and Fellows did and begin with their Petition to the King upon their notice of the Kings Mandate §. 4. To the King 's Most Excellent Majesty The Petition of the Vice-President and Fellows of St. Mary Magdalen's College in Oxford Most Humbly Sheweth VVE have been Credibly Informed that Mr. Anthony Farmer who was never of our Foundation has obtained your Majesties Recommendation to be President of this your Majesties College in the Room of Dr. Henry Clark lately Deceased We do therefore with all Submission as becomes your most Dutiful and Loyal Subjects most humbly represent to your Sacred Majesty that the said Mr. Anthony Farmer is a person in several respects uncapable of that Character according to our Founders Statutes and do most earnestly beseech your Majesty as your Majesty shall judge fittest in your most Princely Wisdom either to leave us to the discharge of our Duty and Consciences according to your Majesties late Most Gracious * Not Toleration as the Oxford relation hath it Declaration and our Founders Statutes or to Recommend such a person who may be more serviceable to your Majesty and this your Majesties College And Your Majesties Petitioners shall ever Pray c. Charles Aldworth V. P. Henry Fairfax S. T. D. Alex. Pudsey S. T. D. Tho. Smith D. D. John Smith D. D. Tho. Bayley D. D. Tho. Stafford L. L. D. Main Hammond S. T. D. Rich. Strickland M. A. Henry Dobson M. A. James Bayley M. A. John Davys M. A. Jas Thompson M. A. Francis Bagshaw M. A. James Fayrer M. A. Joseph Harwar M. A. Tho. Ludford M. A. Tho. Goodwin M. A. Rob. Hyde M. A. Edw. Yerbury M. A. Rob. Holt M. A. Stephen Weelkes M. A. §. 5. THe foresaid Petition is Endorsed as Dated the 10th of April 1687. And delivered to my Lord President by Dr. Thomas Smith and Captain Bagshaw I find among the other papers delivered me from the Register one from Dr. Thomas Smith read and published at a Meeting of the Fellows at his Return from presenting the foresaid Petition In these words Gentlemen IT is my opinion for I will not pretend to call it by any other Name much lefs by that of advice leaving every one here present to the liberty of his own judgment that his Majesty not having thought fit upon our late Application to him to Revoke his Royal Mandate nor as we pray in the close of the Petition to leave us to our own choice according to the direction of our Founders Statutes nor to recommend such a person as may be more serviceable to his Majesty and to the College We most humbly Petition the King again and represent the several respects referred to in our Petition which render Mr. Farmer incapable of being Elected and admitted President of the College This Method and procedure being most prudent and dutiful and fit to be entered upon immediatly The King having interposed his Royal pleasure and Authority which if it had not been done I readily acknowledge that we not only might but ought to proceed to the Election of a President in that very Instant according to the express Letter of the Statute in every particular But for this let every one concerned be his own Casuist These are my private Thoughts and upon mature deliberation I conceive that I should be very defective in my Duty to the King and my Respect to you whatever Mis-interpretation some possibly may frame of it If I had not made you acquainted with them at this meeting St. Mary Magdalen College April the 14th 1687. Tho. Smith D. D. §. 6. I Insert this for the honor of this Gentleman who is known by his Learned Writings which give account of his Travels to the Port and through part of Greece
of the same and of the due Execution hereof you are to certifie unto Us at the next Court. Given under Our Seal the 29th day of July 1687. To Thomas Atterbury and Robert Eddows Or either of them §. 10. The Answer of the Fellows why they obeyed not the order of the 22d of June At the Court held c. the 29th of July 1687. Mr. Anthony Farmer was heard upon the complaint exhibited against him by Magdalen College I find nothing more relating to him entred in the Register therefore since the Information against him and his defence are to be reckoned among the Attentatar as the Civilians Style them and are no ways material to the discussing or clearing the Authority of His Majesty or the Lords Commissioners I shall wholly omit any account of them and proceed to what was done in the Court. The Answer of the 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 made to the Citation of the Right Honorable the Lords Commissioners of Ecclesiastical Affairs c. THe said Fellows on the behalf of themselves and the rest by whom they are Deputed do Answer that they humbly conceive that the Order mentioned in the said Citation was not Legally served upon them for that Dr. Alexander Pudsey only was desired by the Messenger to call a Meeting of the Fellows to publish the said Order which he declared he could not do for that he was Burser of the said College and had no Authority to do the same nor was the said Order particularly directed to him but to the Fellows in General as the Messenger there declared And when one of the Fellows desired of the Messenger to have it Read the said Messenger refused it saying his directions were to Communicate it to the Fellows at a Meeting whereas the said Fellows cannot meet together till they are Statutably called Saving which Declaration of the said Messenger the Respondents were wholly Ignorant of the Contents of the said Order until the forementioned Citation of the First of July was served upon them And that in the ordinary course of Law all Decrees and Orders of Courts are served and executed by the Ministers and Officers of the said Courts but not by any person or persons upon or against themselves as they conceive the present Case is Alexander Pudsey Tho. Bayley Tho. Ludford Aug. 5th the Deputies of the Fellows attend Out of the Register and give in their Answer in Writing as before recited which being Read were dismissed SECT III. The Transactions from the Mandate for the Bishop of Oxford to the Lords Commissioners Visiting St. Mary Magdalen College §. 1. The Kings Man late to the Fellows c. to Admit the Bishop of Oxford President THe King being willing to place such a President over the College as by the Character he bore in the Church being Bishop of the Diocess might be an Honor to the Society was Graciously pleased to grant the following Mandate JAMES R. TRusty and Beloved 14th Aug. 1687. We Greet you well Whereas the place of President of that Our College of St. Mary Magdalen is now void Our Will and Pleasure is and We do hereby Authorize and Require you forthwith upon receipt hereof to Admit the Right Reverend Father in God Samuel Lord Bishop of Oxon in the said place of President to hold and enjoy the same with all the Rights Priviledges Profits Emoluments and Advantages thereunto belonging any Statute or Statutes Custom or Constitution to the contrary in any wise notwithstanding wherewith we are Graciously pleased and do accordingly hereby Dispense herein We bid you farewell Given at our Court at Windsor the 14th day of August 1687. In the Third Year of Our Reign By His Majesties Command Sunderland P. Superscribed To Our Trusty and Well-beloved the Senior Fellow of St. Mary Magdalen College in Our Vniversity of Oxford or in his Absence to the Senior Fellow resideing there and to the rest of the Fellows of the said College Note that this Mandate was sent after the hearing of Mr. Farmers cause before the Lords Commissioners whose Accusation is Printed in a late Book without his Reply on purpose to vindicate the proceedings of the Electors of Dr. Hough but since there was no Juridical Sentence upon it and the stress of the Case lies not upon his qualifications I shall pass it by and next insert my Lord Presidents Letter pursuant to the Mandate §. 2. My Lord Presidents Letter to the Senior Fellow of the College c. Bath August the 21st 1687. SIR THe King having been pleased by his Letter Mandatory to require the Fellows of St. Mary Magdalen College to Admit my Lord Bishop of Oxford President of that College His Majesty Commands me to let you know that Immediately upon receipt hereof he would have you Assemble the Fellows and Communicate to them His Majesties said Letters and I am further Commanded to tell you that His Majesty expects ready obedience to be paid to his pleasure herein I desire you will send me an Account of your Proceedings as soon as you can that I may acquaint His Majesty with it I am SIR Your Affectionate friend and Servant Sunderland P. To the Senior Fellow of St. Mary Magdalen College To this Dr. Pudsey returned the following Answer §. 3. The Answer of Dr. Pudsey the Senior F 〈◊〉 llow to the foresaid Letter May it please your Lordship UPon Saturday the 27th of August last at Night I received His Majesties Letter Mandatory together with your Lordships In behalf of the Right Reverend Father in God Samuel Lord Bishop of Oxon which I the next Morning Communicated to the Fellows and Read them in the Chappel with all deference to His Majesty and your Lordship the Answer that was given to me was that they humbly conceived the place of the President to be full And because your Lordship requires an Account of the Proceedings of the Society in this matter I send their own words Unanimously agreed upon and in Compliance to your Lordship with all Celerity of dispatch My request is that your Lordship would accept of this Letter with Candor and favorably Interpret it as to the point of Obedience and that I may have the Honor of being accounted Mag. Coll. Oxon. Aug. 28th 1687. Your Lordships most faithful and most humble Servant Alexander Pudsey Subscribed To the Right Honorable the Earl of Sunderland Principal Secretary of State. By this Letter is appears that the Fellows persisted in their obstinacy in not paying obedience to the Kings Second Mandate for admitting the Bishop of Oxford their President §. 4. The Coppy of the Bishop of Oxfords Letter to the Senior Fellow of St. Mary Magdalen College in Oxon or in his absencé to the Senior Fellow residing there Upon the Receipt of the Kings Mandate the Bishop Writ the following Letter to the Senior Fellow of St. Mary Magdalen
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
maxime Vniversitati esset Statuendi Pat 26 H. 3. m. 5. gave Power by his Letters Patents to Gualter Arch-Bishop of York William de Cantilupe and William de Eboraco to receive complaints of the Clerks in the University and to appoint what might be most of use to the University This Arch-Bishop of York was Walter Grey who was such a Benefactor to the University that a Yearly Mass with Placebo and Dirige was appointed for him on St. Martins Day at which all the Regents were to be present From this Record we may learn that notwithstanding any Power the Arch-Bishop of Canterbury or the Bishop of Lincoln might by the Canons claim to Govern the University yet the King by his Prerogative appoints special Guardians for them in his absence §. 3. King Henry the 3d. grants privileges during his pleasure Anno 1244. 28 H. 3. The King Grants for the quiet of the Students of the University of Oxford of his special Grace to the Chancellor and University that during his pleasure they should enjoy several privileges in the causes of the Clerks to hold Pleas in all moveable contracts notwithstanding his prohibition which was that Secular Judges should have no Cognizance of Spiritual matters or on the contrary Dated at Reading the 10th of May 28 Regni By this it appears Nata bene that if such privileges were granted of the Kings special Grace and only during his pleasure how much more must it be judged requisite that Statutes which were to Govern Elections c. should be at the Kings Liberty to continue them or suspend them at his pleasure but of this I shall treat more fully afterwards This very Charter now mentioned is Judged by some to be the Basis and Foundation of the Bull of Boniface the Eighth obtained a few Years after from him ☞ Here once for all the Learned Reader is to observe that as the Kings of England Granted to the University several Secular privileges so the Popes granted them other Religious privileges by vertue of their place Dignity and Right Invested in them by the Canons according to what may be found in the (a) Hanc in super Vniversitatem Romanarum Pontificum Diaecesanorum privilegiia multi modis adornatam sic celsitudo Regis sublimavit A. fol. 8. a. B. fol. 1. b. C. fol. 1. b. History inserted into the old Book of Statutes appertaining to the Chancellor and Proctors of Oxford which runs thus The Kings Highness Exalted this University being adorned with many privileges of the Roman Bishops and of the Diaecesans However tho' the Popes and the Diaecesans granted the University several privileges yet I shall shew hereafter how the Kings of England have exercised a Sovereign power in all Affairs of the University rescinding dispensing with or confirming Statutes at their pleasure ☞ Anno 1249. (b) Claus 42. H. 3. M. 9. Wood Antiq. Ox. fol. 95. lib. 1. Upon the 29th of May 32 H. 3. The King being at Woodstock granted to the Scholars of the University several privileges there recited and by his Letters Commanded the Sheriff Mayor and Bayliffs of Oxford immediately to observe and cause to be observed the said liberties which he caused to be Enrolled the 33d of his Reign and it is observable in this Grant that Ralph Fitz-Nicholas Steward to the King by the Kings Command set his Seal as Witness to this Grant of the King a practice long since laid aside the Kings Teste me ipso being now sufficient §. 4. Anno 1275. King Edward (c) Pat. 3 R. 1. M. 6. the first granted to the University many rights and privileges which it would be tedious to recite they may be seen in the Patent and close Rolls 3 E. 1. M. 18. King Edward (d) Ro. Pat. 8 E 2. part 2â— M. 24. the Second Anno 1315. Granted to the University several privileges confirming to them the Grants made Anno 1244. 29 H. 3. and Anno 1255. 39 H. 3. and 1261. 46 H. 3. ☞ Anno 1317. 11 Ed. 2. The King (a) Rot. Rom. 11 E 2. M. 10. writes to the Pope that whereas Boniface the Eighth had granted to the Universities of France that Grace (b) Vtomnes qui Gradum Magistralis Honoris in quacunque facultate assecuti sunt consimili velitis privilegio Decorare that all who had attained the Degree of Masters in whatever Faculty might every where resume Lectures in the same and continue them at their pleasure without any new examining beginning again or craving Grace from any so he desires he will Adorn the University of Oxford with the like privileges By this it appears that the Pope couâ—d grant the privilege that whoever had attained to Degrees of Masters in this University might enjoy the like Honor in all others But none can infer from hence that the Degrees they took here were by the Popes Grant solely In the same Year we find the King writes to the Pope in behalf of the University of Cambridge desiring him Dictam Vniversitatem perpetuare privilegia quibus c. usi sunt hactenus gavisâ— cum Augmentatione novorum condendorum c. Rot. Rom. 11 E. 2. that he would perpetuate it and would augment with new privileges those which the Chancellor and Scholars of the same University and their Predecessors had hitherto used and enjoyed By which it seems some or at least some general privileges in Forreign parts were desired perhaps such as were craved for the Masters in Oxford Anno 1327. King (c) Pat. 1 E. 3. M. 8. Edward the Third in the first of his Reign by inspeximus confirmed all the privileges which had been granted to the University of Oxford by his Ancestors Kings of England particularly those which King Edward the First had granted confirming the Charter of King Henry the Third ☞ Anno 1353. 27 E. 3. the King (d) Pat. 27 E. 3. M. 5. Pat. 29 E. 3. No. 5. granted several privileges to the University but the Amplest Charter was granted by that King the 29th of his Reign wherein besides several privileges of a Secular nature the (a) Cancellarius possit per censuras Ecclesiasticas compelsere Jam ordinare non possumus variis arduis negotiis praepediti Ordinationem hujusmodi nobis specialiter reservamus Chancellor hath power to compel the Inhabitants of Oxford and the Suburbs to the observance of some of these privileges by Ecclesiastical Censures and appoints that the Sheriff of Oxford should take an Oath yearly to protect and defend the Masters and Scholars of the University and their Servants from violence and concludes that what by reason of various and tedious affairs he could not then he specially reserved for himself to order By which it appears that the power of ordering all things relating to the University was solely in the King. ☞ Anno 1375. 49 E. 3. The Chancellor Masters and Doctors of Divinity and Masters of Arts by power no doubt granted
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
by one Simon a Monk of Walden ☞ It is likewise to be noted that altho' as I have shewn before the first Race of our Kings did frequently oppose some Rights the Popes claimed by Canons yet within the compass of an Hundred Years after the Conquest The Popes Jurisdiction in four particulars by the Canons or little more the Court of Rome obtained four great points of Jurisdiction First of sending Legats into England Secondly drawing Appeals to Rome Thirdly the Donation of Bishoprics and other Dignities in the Church Fourthly the Exemption of the Clergy from Secular Power Notwithstanding all which several Kings reassumed their Rights and Jurisdiction as occasions offered until the Reign of King Henry the Eighth as the Statutes of Mortmain Provisoes c. do manifest §. 15. The Kings Supremacy asserted by King Henry the 8th But in King Henry the Eighth's time a Total Rout was given to them all In the Twenty fourth of his Reign all Appeals to Rome were taken away and Established in the King and all Sentences made or to be made with England declared to be Authentical notwithstanding any Act from Rome The grounds of which Act are set forth in the (b) Stat. 24. H. 8. c. 12. Parag. 1. Preamble That this Realm of England is an Empire Governed by one Supreme Head and King The Lawyers Judge this Statute not to be Introductory of any new power but declatory of the Ancient Rights of the Crown having Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politic Compact of all sorts and Degrees of People divided in Terms by Names of Spirituality and Temporality been bounden and own to bear next to God a Natural and humble obedience Then follows the plenitude of the Kings power as before I have related after which follows That the Body Spiritual hath power when any cause of the Law Divine happens to come in question or of Spiritual Learning This Statute was made to exclude the Popes power which King Henry the 8th rejected that it was declared Interpreted and shewed by that part of the Body Politic called the Spirituality without the Intermedling of any exterior person or persons by which the See of Rome is intended to be utterly Excluded and all Canons of Council likewise not allowed of by the King and his Laws to declare and detemin all such doubts and to Administer all such Offices and Duties as to their Rooms Spiritual doth appertain and the Laws Temporal for Tryal of property of Lands and Goods and for the Conservation of the people of this Realm in Unity and Peace without Rapine and Spoil was and yet is Administred Adjudged and Executed by sundry Judges and Ministers of the other part of the Body Politic called the Temporality and both the Authorities and Jurisdictions do conjoyn together in the due Administration of Justice the one to help the other By which it is easie to infer that this Statute exterminates and abolisheth all Forreign power so that whatever before this was Transacted here by the Popes or their Legats is now to be declared and determined by the King or such as by Law are appointed to hear and determin such matters under him §. 16. The Kings power of Visiting c. In the Twenty-sixth of the same King it is enacted That the King his Heirs and Successors shall have full Power and Authority from time to time to (a) Stat. 26 H. 8 c. 1. The Kings power of Visiting Visit Repress Redress Reform Order Correct Restrain and Amend all such Errors Heresies Abuses Offences Contempts and Enormities what soever they be which by any manner of Spiritual Authority or Jurisidiction ought or may lawfully be Reformed Repressed Ordered Redressed Corrected Restrained or Amended most to the pleasure of Almighty God the increase of Virtue in Christs Religion and for the Conservation of the Peace Unity and Tranquility of this Realm any Uses Customs Forreign Laws Forreign Authority Prescription or any thing or things to the contrary hereof notwithstanding It is known that the Title of Supreme Head of the Church given by that Act to the King his Heirs and Successors was Repealed by Queen Mary The Title of Supreme Head changed and was never restored but in the First of Queen Elizabeth all the powers given by the Act of 26 H. 8. are restored to the Crown under the Name of Supreme Governor For in the first of Queen Elizabeth such Ancient Jurisdictions over the Estate Ecclesiastical are restored to the Crown The restoring of Ancient Jurisdiction as by Queen Mary had been Repealed and all Foreign powers repugnant to the same are abolished I shall only insert what relates to the present matter Stat. 1. Eliz. Parag. 17. Parag. 17. It is thus Enacted That such Jurisdiction Privileges Superiorities and Prehemenences Spiritual and Ecclesiastical as by any Spiritual and Ecclesiastical power or Authority hath heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and persons and for Reformation Order and Correction of the same and all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be Vnited and Annexed to the Imperial Crown of this Realm Parag. 18. The Kings power in Ecclesiastical matters And in the 18th Paragraph The Queen her Heirs and Successors shall have full Power and Authority by Letters Patents under the Great Seal to Assign Name and Authorize c. such person or persons c. as the Queen her Heirs and Successors shall think meet to exercise use occupy and execute under them all manner of Jurisdictions Privileges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within their Dominions to Visit Reform Redress Order Correct and Amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or may lawfully be Reformed Ordered Redressed Corrected Restrained or Amended c. Which seems to me 25 H. 8. c. 21. Parag. 20. The King Supreme Visitor notwithstanding Mr. Pryns exceptions clear by another Act of Parliament the words of which are Provided that the said Arch-Bishop of Canterbury or any other person or persons shall have no power or Authority by reason of this Act to Visit or Vex any Monasteries Abbys Priories Colleges Hospitals Houses or other places Religious which be or were Exempt before the making of this Act c. But that Redress Visitation and Confirmation shall be had by the Kings Highness his Heirs and Successors by Commission under the Great Seal to be directed to such persons as shall be appointed requisite for the same In fine whoever considers the Accumulated power of our Kings most own à fortiori that whatever Visitatorial Power was excercised before King H. 8ths time was by the Kings allowance and all since
is solely derivative from the King as Sovereign Monarch and Supreme Governor SECT II. Who Exercised Jurisdiction by way of Visitation or otherways over the Vniversities from the 11th of King John to the Year 1390.14 Ric. 2. §. 1. The Pope and his Legate Suspend offenders HAving shown in a General way what Prerogatives the Kings of England have exercised in Ecclesiastical Affairs before the Reformation and how all the power the Pope claimed or exercised in point of Government is now by our Laws Invested in the Sovereign I shall proceed to give an Account how till the Reformation the University was Visited punished and governed by the Arch-Bishop of Canterbury some Popes Legats or the Bishop of Lincoln their Dioecesan Yet all these were by the appointment Approbation or consent of the respective Kings the most evident Vestigia of whose Supreme power appeared in the admitting or making void exemptions and privileges even granted by the Apostolic See so that it is not to be thought strange that since the Reformation the whole Ecelesiastical Government being declaredly derivative from the Crown and the Authority of the Pope being by the Laws in force devolved upon our Princes they have excercised a more Despotical Authority over the Universities then over other Incorporations ☞ The First Instance I find of the Popes Suspending and the Kings Recalling the Lectures in the University was Anno 1209. the 11th of King John The occasion of which in short was this (a) Wendover sub Anno 1209. Ms Upon themis-information of the Burgesses of Oxford to the King then at Woodstock that a Clerk had killed a Woman two or three Innocent Clerks were seized and Executed (b) Wood Antiq. Oxon. lib. 1. fol. 59. upon which severity and the detestation of the Burgesses Malice the Masters and Scholars removed out of the Inhospitable Town and Anno 1210. The Pope Interesting himself because they were Clerks Commands the Scholars to Read no Lectures and Anno 1213. sends over Nicholas Bishop of Tusculum his Legate who Anno 1214. (c) In Turri Schol. in pixide P. P. fasci c. 12. N. 2. 3. published his Bull at Ramsey the 7th of the Kalends of July in which besides the severe punishment inflicted on the Burgesses it is plainly expressed that the Bishop of Lincoln the Arch-Deacon of the place his Official the Chancellor or any other Deputy of the Bishop should see to the performance of what was enjoyned and those * Magistri vero qui post Scholarium recessum Irreverenter legerunt Oxoniae suspendentur per Triennium ab officio Legendi Ibid. Masters who Irreverently after the recess of the Scholars had Read Lectures contrary to the Popes Orders should be Suspended from the Office of Reading for three Years But I find that the King gave leave to all to return to the University and upon this occasion being willing to shew some special favor to it and prevent the like mischiefs for the future observing where in their privileges were defective Grants that the Chancellor should have Cognizance of Causes where one party was a Scholar or his Servant In this account it may be observed Inferences from this History that for contempt of the Popes Order the Legate Suspends the Offenders for three Years that the King Grants the leave for their return and gives them new privileges §. 2. Cardinal Otho Visits by Legatiné Authority ☞ Anno 1238. 13 H. 3. Mat. Paris ad Annum 1238. Cardinal Otho came to Visit the University of Oxford as Legate a Latere But had an unfortunate Journy for the Scholars coming in great numbers to pay their respects to him the uncivil Porter (a) Chron. Abendon Ms would not permit them to enter till they forced their passage and a Scholar going to the Legates Kitchin a Ladle full of scalding broth was cast upon him which the Scholars took so heinously that one of them Slew the Legates Brother and the Legate thereupon Fled with some danger to his person Of all which the King being Informed sent Peter (b) Pat. 22 H. 3. M. 7. The Kings Commissioners Interdict Divine Service de Rupibus Bishop of Winchester Ralph Nevil Bishop of Chester then Chancellor of England and others who met the Day after May day in the Church of St. Fridiswyde (c) Flovileg sub hoc Anno. And Suspend Lectures and Exercises and Suspended the University from Celebrating Divine Service and from performing their Exercises and usual Lectures And the Legate Excommunicated the University upon which many left the University but the King d Pat. 22 H. 3. M. 15. Cla. 22 H. 3. M. 15. Commanded that none should depart without his leave and several were Imprisoned and their Goods (e) Id. fol. 90. a. seized into the Kings Hands but by the 15th of May upon (f) Cl. Pat. 22 H. 3. M. 7. The King recalls the Students Sureties given for appearing most were set at Liberty and their Goods restored and those upon this occasion Imprisoned in the Tower of London were released and the Sheriffs (g) Cl. 22 H. 3. M. 13. of several Counties had the Kings Writ to return the Names of those that had retired from Oxford and of the Sureties of those that were to abide the Tryal and other (h) Gl. 22 H. 3. M. 13. Writs Issued out to the Chancellor and the Arch-Deacon of Oxford to warn all others that were in that Riot to return to the University to expect the Ecclesiastical Absolution for their faults and the Legate summoned the (i) Mat. Paris sub An. 1238. Arch-Bishop of York and all the Bishops to consult about this Matter Anno 1239.14 H. 3. The Legate (a) Wood Antiq. fol. 91. a. The Legate gives leave to the Students to return sent an account likewise to the Pope and Cardinals and after dismissing the Council the Legate Writ to the Chancellor that he Exhorting the Academians to repentance should give them all leave to return to the University from whence they had been absent above a Year and had been Interdicted of their Exercises Lectures c. And the punishment Imposed was that the Clerks (b) Idem fol. 48. a. should go from St. Pauls to Duresme House on Foot and after that all the Academians should go bare Foot without Caps or Mantles and should humbly ask the Legate Pardon Appointeth a Pennance which being done the Interdict was taken off and the Scholars returned to Oxford to attend their wonted Lectures and Exercises Thus were they punished there being Murther of the Legates-Brother in the Case the Bishop Robert Grosthead defended the Clerks Insisting that the Legats People gave the occasion However even in this case when the Pope was so much concerned for the affront done to his Ministers yet we clearly find that the King by his Commissioners Suspends the University from Celebrating Divine Service and performing their Lectures Which are sufficient badges of his
were to receive their final determination * Idem fol. 152. a. But it seems here it was not ended for both Parties chose their Advocates who appeared at Avignion or Rome but the Pope to save Expences refers them back to have the matter determined in England The next Year Anno 1313. I find Arch-Bishop (a) Reg. Reynold fol. 32. Gualter Reynolds Writes to the University in their favor and the Year following Anno 1314. They put the matter to Arbitration (b) Compositione ad Regem ut ab eo firmaretur transmissâ Pat. 7. E. 2. part 2. M. 10. and send the Composition to be Confirmed by the King. Still it is the Royal Authority that is requisite to make any Act binding The Dominicans were an Order then in great esteem for I find that they were mostly the Kings Confessors and so Anno 1316. They obtained the Kings Letter in their favors to the Pope and Anno 1318. They obtained from the Pope a Privilege of Exemption from the Jurisdiction of the University By all these it appears The observation upon the forecited Records that the ordering of all matters appertaining to the very taking Degrees c. were settled by the Kings Assent and Confirmation of Popes I now proceed §. 10. (c) Wood fol. 160. b. Anno 1325. 19 E. 2. Gulhardus Cardinal of St. Lucy in Celice then Arch-Deacon of Oxford claimed the (d) Harpsfield Histor Eccl. Sec. 14. c. 28. Cognizance of Ecclesiastical Jurisdiction and (e) Reg. Reynold fol. 145. Henry Gower the Chancellor the Proctors c. resisted And the Pope directed his Bull to the Arch-Bishop of Canterbury to be Published by the Abbots of Osney and Rewley to Cite the Chancellor and Proctors to appear in 60 Days at Rome The Bishop of Lincolns Archdeacon of Oxford claimes Ecclesiastical Jurisdiction and the Pope cites the Chancellor and complaint being made to the King * Rot. Rom. 19. Ed. 3. The King writes to the Pope that the matter may be heard in England he Writes to the Pope to Nominate persons here to determine and compose the Controversie which was accordingly done By which it appears how Appeals were made to the Pope in such cases yet the King of England were not willing to have their Subjects grieved with chargable Appeals and Journies to Rome §. 11. Anno. 1350.24 E. 3. John (a) Wood c. fol. 172. b. The King removes a Chancellor the Bishop of Lincoln denies to Confirm the Kings Chancellor The University Appeals to the Arch-Bishop Wyllyot being unduely chosen Chancellor the Year before and removed by the King Mr. William Palmorna was chosen Chancellor and John Synwell Bishop of Lincoln delaying to Confirm him the University apply themselves to the Arch-Bishop of Canterbury Simon Islip who Commanded the Bishop to Confirm him within Seven Days after the Receipt of his Mandate or Five Days after to shew cause why he did not who not Confirming or appearing upon a second complaint the Arch-Bishop (b) Vide Mat. Parker Antiq. Brit. fol. 268. sent Commissioners to whom he gave power to Confirm the Chancellor and he deputed others (c) Regist Islip fol. 20.28 35. Contests betwixt the Arch-Bishop of Canterbury and Bishop of Lincoln about confirming the Chancellor of Oxford Judicially to determin concerning the Election and Confirmation and of the injury done by the Bishop of Lincoln Who thereupon Appealed to the Pope and for Contempt being Excommunicated by the Arch-Bishop he Appealed again and thus the Suits depended before the Pope till saith Arch-Bishop Parker (d) Vide Parker Antiq. Brit. fol. 283. the Bishop renounced his privileges and yielded to the Arch-Bishop and thus the matter stood till Willi. Wittsley Arch-Bishop of Canterbury Anno 1375.49 E. 3. obtained from Pope Vrban the Fifth that the University should be exempt from the Bishop of Lincolns Jurisdiction and that the Scholars should have free liberty to Elect their Chancellor who thereby might enter upon his Magistracy without any farther Ceremony of Admission I have Inserted this to note that when the Visitatorial power was claimed the Confirmation of the Chancellor was then required but the Election was always in the Regents and non-Regents as it is now In this particular only it varies that since Sir John Masons time Anno 1553. Excepting Cardinal Pool and the two late Arch-Bishops Laud and Shelden the Chancellors have been Noble men and commonly the respective Kings have recommended the person by a kind of Conge d'eslire of which I shall give one instance hereafter Anno 1376. 50 E. 3. Dissentions still continuing betwixt the Chancellor c. And the Civil and Common Lawyer the King (a) Pat. 50 E. 3. part 1. M. 13. Commissionated William Courtney Bishop of London Thomas Arundel Bishop of Ely Adam Howton Bishop of St. Davids Ralph Ergham Bishop of Salisbury and William Read Bishop of Cicester or four or three of them and gave them power to take cognizance and determin all matters in difference By Command (b) Id. M. 14. The matter commanded before the Parliament and determined by the Kings Commissioners likewise the Deputies or Proctors from the Doctors and Masters of Arts and the Canon and Civil Lawyers offered the State of the case to the Parliament and from thence to the Bishops who meeting in St. Pauls London (c) Wood Antiq. lib. 1. fol. 185. b. Abrogated the Statutes which occasioned the disagreements and Decreed other two Statutes in favor of the Civilians yet thus the Controversie by the obstinacy of the Parties ceased not and tho' other Commissioners were appointed yet King Edward dying his Grandson King Richard the Second suceeding those Acted nothing and fresh broyles and tumults arising the Chancellor Proctors and three Monks (a) Claus 1. R. 2. M. 4. 28. The King Suspends their privileges were cited to give an account of them and in the interim the University was Mulcted by the Suspension of their privileges but by submitting themselves to the Kings Clemency they were pardoned and a Tribute (b) Pixide P. P. N. 17. lately sot upon them was taken off In these proceedings we find the King Abrogating Statutes and appointing new ones by his Commissioners What is to be noted from hence and the privileges of the University Suspended which are sufficient presidents of the Kings power §. 12. Disturbances in Queens College and the proceedings of the Local Visitor and the King thereupon Anno 1379. 3 Ric. 2. The King having granted several Immunities to the University and settled matters betwixt the University and Dominicans he took into consideration a matter which had been three Years in Debate The case was this there having been disturbances in Queens College whether upon the Election of a Provost or upon occasion of new opinions it is not certain which there had been Suites and Appeals to Alexander Nevil Arch-Bishop of York their Local Visitor and he sent persons
as to any whom the Vice-Chancellor Commands to Prison the Message be sent by the Beadle and he that refuseth shall be judged a breaker of the Peace and not to have any Appeal Thirdly A Command that the Delegates who at this present are in hand with the Statutes make hast and lay all other Statutes aside till they have drawn up two perfect and sufficient Statutes for Causes of Appeal the one in matters of Instances and those things which belong to the Chancellors Court the other for all kind of Appeals in other Causes whatsoever Anno 1632. E Collectionibus Dni Josephi Williamson olim Secretarii Regis primarii 8 Car. 1. The King Granted a Commission to the Earl of Holland then Chancellor of Cambridge the Arch-Bishop of York and Sir John Crook to Visit Pembrook Hall in Cambridge Anno 1634. 10 King Charles the First the King Impowered under the Great Seal the Arch-Bishop of Canterbury the Bishop of Rochester Sir Nathaniel Brent and others to Visit all Colleges Churches Hospitals c. and to make Laws and Statutes and this is expressed to be ex Suprema nostra Authoritate Regia by the Kings Supreme Authority I have not found any perfect Copies of these Visitations Wood Antiq. Oxon lib. 1. ad Annum 1633. but find in Mr. Wood that the Regulating of the University Statutes of Oxford which had been begun to be digested 1629. by Delegates appointed for that purpose were brought to a good forwardness Anno 1633. Arch-Bishop Laud then Chancellor being very Intent upon it When the same Arch-Bishop Visited the Universities by his Metropolitical Right he was opposed in it and the matter came to be heard before the King and Council of which I shall presently give an account and whoever desires a more full Relation may see the whole proceedings in the Annals of Mr. Francklane I shall only Insert here an extract of what I found in the Paper Office Relating to Merton College in Oxford which endeavored to decline the Arch-Bishops Authority in that Visitation the principal Reasons produced for it being these First Paper Office. Academica Miscellania Reasons why the King is Visitor of Merton College That King Henry the Third at the Foundation of the College Styles himself Patronus and consequently was Visitor in these Words Assignavit Maneria praedicta in suis manibus nomine nostro velut nomine Patroni Secondly The Ancientest Copy of Statutes is that which is Confirmed by the Bishop of Lincoln with a Reservation of such Privileges as belonged to the Dioecesan and is Confirmed by the Arch-Bishop as Provincial without any Reservation at all which in reason he would not have done if he had been Visitor Thirdly The Bishop of Lincoln sent Monition to the College Intimating a purpose to Visit From whom the Fellows Appealed to Rome Fourthly The Statutes of Walter Merton have the word Patronus often which cannot in reason be applyed to the Arch Bishop to whom he had no Relation but rather to the King whose Chaplain and Chancellor he was By this it appears what the Opinion of the Society was then that the King was Supreme Visitor and that the Bishop of Lincoln reserved his Dioecesan Right yet when he designed an extraordinary Visitation the Fellows Appealed to the Apostolic See as Supreme and I have cleared that what power that See had is now in the King according to the Laws §. 13. I now proceed to give an Account of King Charles the Firsts Order of Council the 12 Regni which hath been so much urged as if the King had Decreed in Council that none but the Arch-Bishop of Canterbury should Visit the Universities being Scituate in his Province but by the whole scope of the Record it appears that the Controversie was betwixt the Arch Bishop of Canterbury and the Universities of Oxford and Cambridge concerning the Right and Title of the Metropolitical Visitation of the same and that the Universities did pretend they were Exempt from the same and the matter in Dispute was referred to the King and his Royal Judgment and Sentence Litâ—que Controversia praedictis ad nos Judicium Sententiam nostram dâ—latis who calling the Arch-Bishop of Canterbury Chancellor of the University of Oxford and the Earl of Holland Chancellor of Cambridge and others to come before him and his Council at Hampton-Court and having heard the Arguments of both the Parties Primo ante omnia per probationes Legitimas per concessionem utriusque partis nobis constabat nos jure Coronae nostrae Regni Augliae habuisse habere potestatem Visitandi Universitates praedictas quoties quandecunque nobis Successoribus nostris Visum fuerit c. First and before all things by Legal proof and the Confession of both Parties It appeared that the King in Right of his Crown of England hath had and hath the power of Visiting the said Universities as often and whensoever it should seem fit to the King and his Successors And that the Arch-Bishop of Canterbury by the Right of his Metropolitical Church hath had and hath power of Visiting all his Province of Canterbury in which the said Universities are Scituate Then follows that on the part of the Universities it was proposed that by certain Charters of the King and his Prdecessors and Papal Bulls they were Exempt and freed from all Visitation and Jurisdiction of the said Arch-Bishop and that Immunity by use of time they now enjoyed by prescription and on the Arch-Bishops part it was shewn that King Richard the Second and King Henry the Fourth had Judged the cause in favor of the Arch-Bishop as before related therefore the King Judgeth and determineth the Right of Visitation to belong to the Arch-Bishop and his Successors and his said Metropolitical Church Quibus unnibus per nos consideratis habitaque deliberatione cum praefatis Conciliariis nostris Judicavimus determinavimus c. and that not only once in his Life as in other Parts of his Province of Canterbury but that it might be Lawful to the Arch Bishop and his Successors after the first Metropolitical Visitation ended to Visit the said University by himself or his Commissaries The Arch-Bishops Visitation not allowed but by the Kings consent as often as it should appear necessary to the said Arch-Bishops on a reasonable and Lawful Cause first by the King and his Successors to be approved Dated the 30th of January 12 Car. 1. By this Record under the Broad Seal it is apparent first that there was a Controversie only betwixt the Arch-Bishop and the Universities whether the Arch-Bishop as their Metropolitan might Visit or they were Exempted from it Secondly That it was yeilded on all sides that the Kings Visitation was in no manner hereby disputed but it is positively asserted that the King and his Successors might Visit as often as they thought fit Thirdly That this Controversie was wholly determined and
the many Authorities might be brought to prove this more particularly pa. 129. to 137. here the curious may find several Collected by the Author of the Church of England's Behavior under a Roman Catholic King to which may be added the Act declaring the making and Consecrating of the Arch-Bishops and Bishops of this Realm to be good lawful and perfect The ground of which Statute was some Mens questioning whether the same were duly and orderly done according to Law or not The Act lays this for a Foundation Some Paragraphs in the Act 8 Eliz. c. 1. explained 26 H. 8.1 That King Henry the 8th was justly and rightly re-cognized and acknowledged to have the Supreme Power Jurisdiction Order Rule and Authority over all the Estate Ecclesiastical of the Realm and after Recites how the Kings and Queens of this Realm had full power and Authority by Letters Patents c. from time to time to Assign Name and Authorize such person or persons as they shall think meet and convenient to excercise use occupy and execute c. all manner of Jurisdictions Privileges Preheminences and Authorities in any wise touching or concerning Spiritual or Ecclesiastical power or Jurisdiction within this Realm c. Then follows That the Queen being lawfully Invested in the Imperial Crown of this Realm c. and having in her Majesties Order and disposition all the said Jurisdictions Powers and Authorities over the State Ecclesiastical and Temporal The Queens power in matters Ecclesiastical Supreme and absolute c. hath by her Supreme Authority at divers times sithence the beginning of her Reign caus'd divers and sundry grave and well Learned Men to be duly Elected Made and Consecrated Arch-Bishops and Bishops c. and after Fellows which is to be noted that in her Letters Patents for the same she hath not only used such words and Sentences as were accustomed to be used by King Henry the 8th and King Edw. the 6th in their Letters Patents made for such Causes but also hath used and put into her Letters Patents divers other general words and Sentences whereby her Highness by her Supreme Power and Authority hath dispensed with all Causes or doubts of any Imperfection or dis-ability that can or may in any wise be objected against the same c. so that to all those that will well consider of the effect and true intent of the said Laws and Statutes and the Supreme and absolute Authority of the Queens Highness and which she by her Majesties said Letters Patents hath used and put in Ure c. it is and may be very evident and apparent that no cause of simple ambiguity or doubt can or may justly be objected From hence it is easie to infer Considerable Inferences resulting from this Statute that there is in the Crown such a Supreme and absolute power in Ecclesiastical matters as the King may dispense with Acts of Parliament even in such a concern as Consecration Confirmation or Investing of any person c. Elected to the Office or Dignity of any Arch-Bishop or Bishop within this Realm for if there had been no variation by the Queens Letters Patents from the Form and Methods in the Acts of King * 25 H. 8. c. 20.5 6 E. 6. c. 16. sect 3. u. 4. Hen. the 8th or Edw. the 6th or that of Queen Elizabeth 1 o. Cap. 2. there had been no need of Inserting general words or dispensations in the Queens Letters Patents This Note Answers all that can be alleged concerning Mr. Farmers Incapacity Hence may be noted if the Queen could by her Supreme power and Authority thus dispense with dis-ability in Bishops much more may the King with dis-abilities occasioned by College Statutes which at pleasure he can alter and abolish But to return to the 25th of H. 8. Observations upon this Statute by Judge Hoberts Reports fol. 156. The power granted to the Arch-Bishop by the Act is in Ordinary matters such as usually the Pope or Prelates of the Realm dispensed with and in un-wonted Cases also which it seems by the Letter of the Act to be of vast extent so that my Lord Hobert saith that tho' it seems to give power over all Dispensations granted from Rome wonted and un-wonted and all dispensations generally Yet it must have construction such as were allowable and allowed by the Laws and Practice of this Realm for else it should make our Yoke heavier than before Yet I cannot conceive but the power may be extended further than the ordinary power the Popes or Prelates practised See the Statute sect 17.18 where greater power seems to be implyed worthy consideration otherwise there needed not to have been such provision made that in un-wonted Cases the King or Council should allow them and if the Arch-Bishop refused the King might appoint two Prelates or other persons to grant them and it is probable that this Act may be construed to other purposes than a Faculty-Office only §. 6. Some further observations upon the Statute 25 H. 8. c. 21. But I shall conclude this matter with the following Observations upon this Statute which I take to be clear and undeniable First That the Pope did here by his Bulls and Breves grant Dispensations in various Cases Erected Constituted and Visited Colleges and Abrogated their Statutes as I have cleared in the foregoing Chapter Secondly That by this Act the Popes General or Universal power and Authority in England in all Cases was Totally abolished and taken away from him as to the excercise of it Thirdly That some part only of that general power and Authority which was excercised by the Pope was by that Act Vested Lodged and Delegated in and to the Arch-Bishop as the dispensing power for Marriages Bastardy c. and other matters there expressed which was properly to be called the Popes ordinary power and was so lodged and delegated in the Arch-Bishop to save the King from trouble in such ordinary and common Cases but not to take away the Kings ordinary power Supremacy Fourthly That the Popes extraordinary power which he exercised in England is as well abolished here by this and other Acts as his ordinary power But so much of the Popes Authority and power either ordinary or extraordinary as was at any time excercised by him here in England and which is not by the said Statute Vested and Delegated in the Arch-Bishop is by a necessary Construction revived and revested in the King and re-united to the Crown by all those Acts which declare the Kings * See. Stat. 24 H. 8. cap. 12.25 H. 8. c. 20. 21.26 H. 8. c. 1. c. 3. c. 13.31 H. 8. cap. 9.37 H. 8. c. 17.1 Eliz. c. 1. c. 4.8 Eliz. c. 1. Supremacy yea tho' the Statutes had been silent therein for that the Crown by this and other Acts is entirely remitted and restored to all it 's Ancient Jurisdictions and Prerogatives exercised by the Popes from whence our Law
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
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
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