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
thereunto but also be so far Lord over them that when he seeth cause he may abate or totally remit the Penalty Incurred by the breach of them and dispense with others for not observing of them at all yea generally Suspend the Execution of them c. §. 2. Why the Author Treats not largely on this subject But I foresee it will be alleged that what is urged thus in General and in Theory is to be applyed to the Constitution of the Government of England otherwise it reacheth not the point in Question concerning the Kings power of dispensing with College Statutes To which I Answer first That the Kings power in dispensing with Penal Laws in General having by Solemn Judgment in the Kings Bench been determined and several Treatises published to clear the point of Law and there being so lately a * Jus Coronae Treatise Writ by a Judicious person wherein the Kings power in that matter is Learnedly discussed I may be excused from treating more particularly of that § 3. Observations on the 25 H. 8. C. 21. I shall therefore only note a few observables from the Statute of the 25 of King H. 8. Chapter the 21. Entituled in Kebles Edition 1684. An Act concerning Peter-pence and Dispensations but Originally Entituled otherwise as may be seen in the * 1 2 Phil. M. c. 8. sect 10. Act of Repeal in Queen Maries time and the * 1 Eliz. c. 1. sect 8. Act of restoring it in Queen Elizabeths time to which I shall add the explication of another Act 8 Eliz. Cap. 1. and some few other remarks upon that Head. The Foundation of this Act is grounded upon an Hypothesis The Statute 25 H. 8. c. 21. is founded upon the usage of a dispensing power that a dispensing power is needful in Government and altho' it be the constant Opinion and Judgment of the Courts of Law and all Lawyers that the principal intendment of that Act was to Abolish the Popes power and Authority in England in granting Licences Dispensations Faculties c. Yet from this Act many particulars may be observed I must refer the Reader to the Act it self which will shew not only the allowed usage of a dispensing power by the Popes and Prelates in matters of Ecclesiastical Cognizance by sufferance as the Act Styles it of our Kings but that the Original Right of such dispensations was in the King and so continues It is then First to be noted from the Act The Pope excercised a dispensing power that the Pope claimed by Usurpation as it is there Styled and persuaded the Subjects that he had a power to dispense with all Human Laws yea and Customs of all Realms in all Causes which he called Spiritual But the same Act saith that such claim of the Pope was in Derogation of the Kings Imperial Crown and Authority Royal contrary to Right and Reason The power excercised by the sufferance of the King and in derogation of the Royal Authority Therefore in the close of this Section it is added that because it is now in these days present seen that the State Dignity Superiority Reputation and Authority of the said Imperial Crown of this Realm by the long sufferance of the said unreasonable and un-charitable usurpations and exactions practised in the times of the Kings most Noble Progenitors is much and sore decayed and diminished c. Therefore remedy is provided c. From hence I think with submission Nota. it must be owned that if the Pope usurped this power in derogation of the Authority Royal then that power must be owned to be originally in the King otherwise in the Construction of the Act it could be no Usurpation §. 4. The Ecclesiastical power originally in the King according to this Act. ☞ Besides it 's the general Opinion of the greatest Lawyers of England that according to the Constitution of our Laws all Ecclesiastical power and Authority in England is Originally in the King so derived from him or if otherwise it is adjudged Usurpation and encroachment It being an undeniable Maxim That no person hath power or Jurisdiction in England but the King or what is derived from him and this power of the King cannot be disposed away nor abolished but by express words in an Act of Parliament Yea so Sacred are the Prerogatives of the Crown that tho' in some Cases the Kings of England have by Act of Parliament departed with their Prerogatives So the Statutes of the 23 H. 6. about Sheriffs and 31 H. 6. about Justices of Assize are frequently dispensed with Coke 12 Rep. 14. Hoberts Reports Colt and Glovers Case p. 146. and yielded not to dispense with the contrary by a non-obstante yet such Acts have been judged void So my Lord Hobert upon this very Statute saith that he holds it clear that tho' this Statute says that all Dispensations c. shall be granted in manner and form following and not otherwise yet the King is not thereby restrained The Kings prerogative not restrained by Acts of Parliament on several Cases but his power remains full and perfect as before and he may still grant them as King for all Acts of Justice and Grace flow from him as 4 Eliz. Dyer 211. The Commission of Tryal of Pyracy upon the Statute of 28 H. 8. cap. 53. is good tho' the Chancellor do not nominate the Commissioners as that Statute appoints yet it is a new Law and Mich. 5. and 6 Eliz. Dyer 225. the Queen made Sheriffs without the Judges notwithstanding the Statute of 9 E. 2. and Mich. 13. and 14 Eliz. Dyer 303. The Office of Aulnage granted by the Queen without the Bill of the Treasurer is good with a non-obstante against the Statute 31 H. 6. cap. 5. For these Statutes and the like saith the Reverend Judge were made to put things in Ordinary Form and to ease that Sovereign of Labor but not to deprive him of Power He further adds that notwithstanding the excercise of the Popes Authority yet the Crown always kept a Possession of it's Natural power of Dispensations in Spiratualibus as 11 H. 4. so to retain Benefices with Bishoprics and 11 H. 7. to have double Benefices I might add to these to Reservation in the Statute 2 R. 1 Hen. 4. cap. 6. 2. c. 4. saving to the King his Regality to be found in the Parliament Roll in the Kings Confirmation of Liberties which Sir Ed. Coke 4. Instit 51. complain of for being un-printed as also of King Henry the 4th that he will by the Assent of the Lords Spiritual and Temporal aforesaid and at the request of the said Commons be Counselled by the Wise Men of his Council in things touching the Estate of him and of his Realm saving always his liberty that is his Prerogative for that is properly the King Liberty §. 5. Where to find Arguments for the dispensing power I shall not trouble the Reader with
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
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
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.
matter confirming what hath been Asserted in the preceding discourse § 15. pag. 257. 258. 259. CHAP. VI. COncerning the Kings of England's Dispensing with the Statutes of the Vniversities by their Mandates pag. 260. SECT I. Concerning the Kings dispensing power in General and in some particulars to the beginning of King Charles the 2ds Reign pag. 200. Concerning the Kings dispensing power in General § 1. pag. 260. Why the Author treats not largely on this subject § 2. pag. 262. Some observations upon the 25 H. 8. C. 21. § 3. pag. 262. That the Statute is Founded upon the usage of a dispensing power Ibid. That the Pope exercised a dispensing power by sufferance in Derogation of the Royal Authority pag. 263. The Ecclesiastical power originally in the King according to this Act. § 4. pag. 263. The Kings Prerogative not restrained by Acts of Parliament in several cases pag. 264. Where to find Arguments for the dispensing power § 5. pag. 265. Some Paragraphs of the Act 8 Eliz. C. 1. explained Ibid. The Queens power in matters Ecclesiastical Supreme and absolute pag. 266. Inferences from this Statute pag. 266. Observations upon the Statute 25 H. 8. C. 1. by Judge Hobart pag. 267. Greater powers seem to be Implyed in Section 17. and 18. of this Statute worthy consideration pag. 267. Some further observations upon the Statute 25 H. 8 C. 21. § 6. pag. 267. An account of the Queens Mandate about Electing a Master of St. Johns College in Cambridge § 7. pag. 269. The Bishop of Londons Testimony that the King hath dispensed with College Statutes § 8. pag. 270. A Mandate dispensing with Incapacities to receive Degrees § 9. pag. 270. A Mandate for a Schollar of St. Mary Wintons College without Examination pag. 271. A Mandate dispensing with the Incapacity by reason of the County Ibid. An acknowledgment from St. Johns College in Cambridge that the King may dispense with College Statutes § 10. 272. A Senior Sophister may take Bachellor of Arts Degree by dispensation pag. 272. SECT II. Concerning Dispensations with the Statutes of the Vniversities or particular Colleges from the Year 1670. 22d of King Charles the Second to this present time pag. 273. Mandate for Dr. Lloid taking his Degree two years before the Statutes allow § 1. pag. 273. The words of Dispensation to be noted § 2. pag. 244. Mandate for Thomas Chapman to have the Degree of Master of Arts without performing exercises pag. 274. Dispensations for Charles Otway otherwise Incapable either as to the County or his Years pag. 275. Mandate for Mr. Josuah Ratcliff contrary to the Statutes of the College pag. 275. Dispensation for Mr. Edward Finch not being of the County c. for Dr. Hawkins not to perform exercises § 3. pag. 276. Dispensing with the Statutes of St. Mary Magdalen College for Mr. Craddock Ibid. A Statute of the Lady Margaret the Foundress dispensed with § 4. pag. 277. Concerning conferring Honorary Degrees pag. 277. Dispensation with Statutes for entring into Orders § 5. pag. 278. Another of the same nature for Sir John Lydcote with it's revocation pag. 278. A Mandate endeavored to be eluded re-enforced § 6. 279. The Mandate for removing the Duke of Monmouth from being Chancellor and substituting the Duke of Albemarle § 7. pag. 280. The Kings power to Interpret Statutes and nominate Chancellor pag. 280. 281. The King grants power to the University to confer Degrees upon such as the Chancellor or Vice-Chancellor shall recommend § 8. pag. 281. The re-enforcing of it pag. 282. The Kings Mandate for making new Statutes for regulating Degrees at the Universities Petition § 9. pag. 282. A Command to the University to grant a dispensation § 10. pag. 283. The revoking of a Mandate pag. 284. The Kings Order that Mandates should not be granted without Testimonials of the Arch-Bishop of Canterbury and the Bishop of London § 11. pa. 284. The recalling of a Mandate after the former § 12. pag. 285. The Conclusion § 13. pag. 286. CHAP. VII THe Answer to the Arguments used by the Vice-President and Fellows of St. Mary Magdalen College in defence of their proceedings pag. 288. SECT I. Answer to what is urged in their Justification from the Obligation of their Oaths to observe their Statutes p. 288. The Objection concerning the Statutable qualification of the persons for whom the King granted Mandates § 1. pag. 288. The Answer of the definition of an Oath and the divisions of it and who may vacate them § 2. p. 289. Oaths subject to the power of a Superior pag. 290. The Sovereign hath power to alter and adnul Statutes pag. 290. A Statute being revoked the Swearer no longer obliged to observe it § 3. pag. 291. So by the Sovereigns prohibition the execution pag. 292. The Superior can remit the obligating of an Oath § 4. pag. 292. The Tacit condition of the Superiors allowance always to be understood pag. 293. This head further Insisted upon § 5. pag. 294. The reason of it § 6. pag. 295. The Objection that the Kings Tacit consent is Implyed and the Oath before the Election Answered § 7. pag. 295. The Objection Answered that the Fellows Swear to Admit no dispensation pag. 296. to 300. SECT II. wrong put SECT III. Some other Objections considered either relating to the Visitation in General or urged in defence of some particular Member of the Society pag. 300. A second Objection Answered that the Local Visitor should have first ordered the business before the Lords Commissioners had taken cognizance of it § 1. pag. 300. The Objection Answered that Dr. Hough was not cited nor appeared by Proxy § 2. pag. 301. The Objection that Dr. Hough was Ejected out of his Free-hold without Tryal at Common Law. § 3. pag. 302. Answer to the Objection that a Mandate doth not Imply a prohibition § 4. pag. 304. In some Grants a reservation of power to dispense with Statutes pag. 305. What power the Emperors Edicts and Mandates have in Civil Law. pag. 305. 306. That a Mandate Implys a prohibition § 5. pag. 307. The Judgment of Civilians in this matter pag. 308. An epxress and Tacit Inhibition § 6. pag. 309. Dr. Staffords Dilemma Answered pag. 309. A parallel Case of Dr. Haddon in King Edward the 6ths time § 7. pag. 310. The Reason why the Author Inserted this no sooner pag. 310. An Abridgment of Dr. Haddons Case pag. 311. A fuller account of it to be in the Appendix pag. 312. The Sixth Objection in behalf of Dr. Fairfax § 8. pag. 312. The Answer to it pag. 313. Dr. Fairfax punished for dis-obedience and denying the Lords Commissioners Authority Ibid. Observation from the Civil Law upon it pag. 314. The Reason why the Kings Mandates ought not to be disputed pag. 315. The seventh Objection out of the Oxford Relation § 9. pag. 316. The Answer § 10. pag. 317. The Kings Prerogative a part of the Law
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
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
Magistros item Baccalaureos Liberalium Artium Philosophiae nec non Poetas Laureatos Creare Promovere Ordinare Constituere facere Selden Tit. Ho. ca. 1. sect 2. fol. 398. granted by Patent to George Obrichtus and his Son Thomas both Professors of Law at Strasburgh the Father being Primar Professor there that they should be successively Counts of the Holy Lateran Palace and of the Caesarian hall and Imperial Consistory and that they have Authority to create promote ordain and constitute and make Doctors Licentiates and Bachelors in both the Laws Masters and Bachelors of the Liberal Arts and Philosophy and likewise Poets Laureats with all and singular Privileges Prerogatives Exemptions Honors Preeminences Favors Indulgences and Graces whatsoever the like Graduates in Vienna Paris c. enjoy c. Dated at Prague the 19th of November 36 Regni 1610. Maximilian the Second Emperor (c) Tho. Sagittarius ad Thes 13. by his Letters Patents Dated at Prague the 9th of May 1575. created Henry Julius the first Rector of the University of Helmestadt and his Successors to be chosen into the said Office and Dignity and into the Titles of Counts Palatines and made him the first Rector So Rodulphus the Second Grants (d) Idem ad Thes 22. to Nicholas Reusnerus Power of making Doctors as well in Divinity as in Law Physick and Philosophy and sometimes the Clause is added (e) Adhibit is in cujus libit Doctoris creatione Doctoribus eximiis de professione creandi ad minus tribus qui Doctorandum examini subiiciant that such Counts Palatines shall call to them at least three Eminent Doctors of the Faculty that the Doctor to be Created Professeth who shall examin him that is to be Created Doctor By all which it appears that the Sovereign Impowers persons to confer the University Degrees SECT II. From whom the Vniversity of Oxford hath had all its Privileges §. 1. The Kings of England sole Donors of the Privileges during the Saxons times HAving dispatched what I thought fit to clear the point that the Kings of England have the sole prerogative in their Dominions to make all sorts of Corporations I now proceed to produce such Testimonies as I have found that the University of Oxford pimarily owe all their privileges quâ an University to the King solely as the Donor or allower of them King Alfred Reigned according to our best Historians 800 Years fince and is owned by all to be the great Restorer of the University of Oxford In the the MSS life of St. Neotus commonly called St. Needes as Cited by (a) Antiq. Glaston Malmsbury (b) Tom. 3. p. 11. Leland and others Alfred is said to have Founded public Schools for Arts and Sciences and Lodgings for the Students and replenished them with the Young Nobility And John (c) Lib. de Regibus Ross of Warwick tells us that he Founded one for Grammar one for Arts and a third for Divinity ☞ It is likewise Recorded (d) Gul. Malmsb. de Antiq. Mo. Glaston MSS Ranulph Hygden lib. 2. of him that he delivered to the University Laws and wholesome Statutes for their Government and adorned them with privileges which he confirmed by his Royal Charter and obtained from Pope Martin the Second about the Year 883. that they should be confirmed according as (a) Lib. vita Neoti To. 4. Balaeus Cent. 2. No. 23. St. Neotus had before requested from the Pope He was so great a Benefactor that it is Recorded (b) Wood Antiq. Oxon. fol. 13. of him that he gave an Eighth part of his Revenues to maintain Scholars and the Lectures in the Schools To pass by many Saxon Kings whose favors to this University are recited by (c) Id. a fol. 2. ad 42. Mr. Wood in his Elaborate History of the University of Oxford It is recorded (d) Scholas publicas per urbes oppidaque Regni constitutas e Fisco Regio Stipendiis posuerit Hist Aurea par 2. lib. 22. c. 28. MSS. of Canutus Successor to King Edmund that he placed public Schools in the Cities and Borroughs of the Kingdom appointing Stipends for them out of his Treasury Altho' Harold the First took away from the (e) Leland To. 4. p. 199. Schools the Stipends and the Lands from the University about 1036. yet Edward the Confessor about 1042. restored again the Goods of the Religious and of the Professors of Ingenuous Arts by Edict (f) Gul. Lambard in Archainomia Edit 1568. fol. 126. b. in whose soever Possession they were So that here is both an Example of a Kings seizing all the Revenues and consequently the liberties and anothers restoring them to the University §. 2. King Henry the First Anno 1130. Built his Palace at Bellamont and kept his Easter there (g) Privilegia tam varia Vniversitati simul urbique Indulsisse creditur Heuricus quae deperdita quamvis olim funt in Successirum tamen ejus Chartis aliquando memorantur Wood Antiq. Oxon. fol. 49. My Author saith he is believed to have granted several privileges to the University and City of Oxford which tho' they be long since lost yet they are remembred in his Successors Charters Anno 1134. Mr. Robert Pulleyn (a) Leland To. 4. pa. 140. flourished in that University he was made Cardinal of St. Eusebius by Pope Caelestine the Second and by Lucius the Seventh was Chancellor and was saith my Author in so great esteem with the King and the Pope The Pope confirms the privileges granted by former Kings that he obtained Bulls and Grants both for Defending the Universities privileges and the Administring the University it self ☞ Anno 1229. 13 H. 3. There happening a great Sedition betwixt the University and Citizens of Paris so that the Schollars shut up their Schools and some withdrew themselves to Anjou others to Rhemes and Orleance (b) Vnde Vestrae duximus Vniversitati significandum quod si vobis placet ad Regnum nostrum Angliae vos transferre in ea causa Studii moram facere Civitates Burgos vel Villas quascunque velitis Elegere vobis ad hoc assignabimus omni modâ sicut decet libertate tranquilitate qua deo placeri vobis plene sufficere debeat vos gaudere faciamus Rol. Pat. 13. H. 3. m. b. King Henry the third by his Letters Patents Dated at Reading the 14th of July 1229. Invited them to come into England to Study and chuse what Cities Burroughs or Villages they pleas'd which the King would assign to them and cause them to enjoy all fitting Liberty and Tranquility which to the pleasure of God might be sufficient for them by which the Kings power of Founding new Universities is manifest Anno 1242. 26 H. 3. The King being to go to Gascoign having a care of the University of Oxford (c) Potestatem datis ad eosdem literis fecit Querimonias clericorum accipiendi quod ex usu
to them by some Kings of England made several Statutes which seemed grievous to the Canon and Civil Law Bachellors and Professors of which complaint being made to the King he declared them void By which it appears that the King hath the power of making the Statutes Cusus est condere ejus est destruere for whoever hath the power of destroying and abrogating hath the power of constituting and appointing Anno 1378. (b) Rot. Chart. 2. Ric. 2. No. 14. By a Famous Charter of Inspeximus King Richard the Second Corroborated the privileges granted by his Ancestors to the University (c) Claus R. 2. M. 23. and released them of a Subsidy of 4 d. a Year imposed by King Edward the Third upon every Clerk not Benificed remaining in the University which he (d) Pat. 5 R. 2. par 2. No. 28. confirmed by Patent the 5th of his Reign and Anno 1379. 30. Regni he charged his Justices Sheriffs c. to permit the Chancellor to enjoy and use all their Liberties granted by the Charter of the Kings Progenitors §. 5. Inferences from the before recited Charters ☞ By all which it appears most manifest that the University owned the Original Donation of their privileges to the Crown which extended even to the ordering the taking of Degrees which is the more clear for that I find that the Regent Master there being but one it seems at that time and the Bachellors and Scholars of the Domicans complained to the King that they were (a) Cl. 2. R. 2. nu 4. prohibited from those Degrees with which they ought to be Adorned Per Rescripta guae privato sigillo Regio per fraudem impetrato muniebantur prohibitos a Gradibus quibus ornari de buerunt by some Rescript or Mandate sent to the Chancellor and Scholars under the Kings Privy Seal obtained by deceit saith the Record which shews that if it had been otherwise obtained they had been bound by them for there is no mention as if any preceding Grants could have rendred them Illegal but being proved it seems got by deceit the King abrogated them upon their Petiton Anno 1401. King Henry the Fourth (b) Rot. Chart. 2 H. 4. par 1. No. 2. in the second of his Reign not only confirmed the Antient privileges of the University but added others to them and enlarged the Limits of the Chancellors Jurisdiction within which they might determin Causes notwithstanding the Rights of the Justices or other Magistrates ☞ Anno 1411. 12 H. 4. When the Chancellor (c) Fragment vet Regist Wood lib. 1. Antiq. Oxon fol. 205. a. and Proctors an Heads of the University had been summoned before the King to give an account of the Popes Bulls which they pretended as the ground of their contumacy and the Chancellor and Proctors were displaced the King Commanded others to be Elected to Succeed in their offices for the remaining part of the Year by which the Kings Jurisdiction over Magistrates of the University is very clear Another instance of the Kings absolute Jurisdiction over the University pro arbitrio is (a) Rossus lib. de Regibus p. 257. what I find Anno 1420. 9 H. 5. That the King a year before his Death had designed to amend the Statutes of the University which as they have their force only by the Kings pleasure may be Abrogated or Suspended by the same §. 6. I shall add to these one instance (b) Ms in the Custody of Sir Thomas Powis Atturny General composed by his Father of the Foundation of Queens College in Cambridge as I find it set out in a Plea 19 Car. 2. in Dr. Patricks Case viz. That King Henry the Sixth upon the 3d. of March 26 Regni gave Licence to Margaret his Queen to Found a perpetual College of Fellows in the University of Cambridge to remain there to Study and Pray ad Studendum Orandum and the King willed that the President and Fellows should be Chosen Instituted Regulated Governed and Deprived according to the Order and Statutes made by the Bishop of Coventry and Lichfield and the College to be Governed by a President and Four Fellows and that the President and those Four Fellows and their Successors according to the Orders and Statutes may Admit more Fellows c. An that the said Queen Margaret by vertue of the same Licence the 15th of April the 26th of King Henry the Sixth did accordingly Found the College c. as before specified and gave Licence to the Bishop of Coventry and Litchfield to make Ordinances and Statutes which he accordingly did among which one is that the College should consist of a President and Fourteen Fellows every one of which after they were Regents in Arts should enter into Holy Orders unless the President and the greater part of the Fellows did permit longer time Concerning this College I find further in the plea that King James the First upon the 9th of March the second of his Reign confirmed all the Charters and Donations made to the Chancellor Masters and Scholars of the University of Cambridge and particularly granted that the Chancellor of the said University and in his absence the Vice-Chancellor should be the Ordinary Visitor of all the Colleges within the said University in which no special Visitor was appointed and that no special Visitor was nominated for this College ☞ By these Patents it appears plainly how the Foundation it self and the endowments thereupon were by the Kings special Licence and tho' the King made not the Statutes for the Government of the same yet it was by His special Appointment that the Bishop of Coventry and Lichfield was ordered to make them I shall not need to recite any Grants of this King to the University of Oxford because they are much in the same Tenor as those of his Predecessors I shall therefore pass to what I find done by Pope Sixtus the Fourth wherein it will appear what Confirmation and Corroboration of the Charters of the Kings of England were made by the Pope §. 7. The confirmation of Pope Sixtus 4th ☞ Anno 1478. 18 E. 4. the Grants of the Popes being either Worm-eaten or lost by some evil accident especially the Famous Bull of Boniface the Eighth which had been Annulled in the times of King Richard the Second and H. 4. and was not since Confirmed The University Employ (a) Wood Antiq. Oxon lib. 1. 230. b. F. F. fol. 74. John Abbot of Abingdon going to Rome about the Affairs of his Monastery to get their privileges confirmed and restored to their former vigor which he effected and brought the Bull of Sixtus the Fourth to that purpose Dated at Rome at St. Peters on the Ides of September Anno 1479. and the 9th Year of his Pontificat which was the 19th of Edward the Fourth In which Bull the Grant of Pope Boniface the Eighth is confirmed and many particular privileges recited after which follows that as he
Legato susceptus nec in aliquo Legati officio functus ☞ In the Letters of Paschalis the Second of the 30th of March and the 1st of April Fourteen Years after the returning of the Legat Guido the Pope Expostulats with the King about several matters one of which is his admitting neither Messenger (b) Sedis Apostolicae Nuncii vel litterae praeter Jussum Regiae Majesto tis nullam in Potestate tuae susceptionem aut aditum promerentur nullus inde clamor nullum inde Judicium ad sedem Apostolicam destinantur Idem fol. 113. 116. nor Letter to be received but by his leave and the Year following Anselm Nephew to the late Arch-Bishop and after Abbot of St. Edmundsbury shewed by Letters that he had Committed to his Administration Vices Apostolicas in Anglia This made known here the Queen Clergy and Nobility gather'd in Council at London concluded that the Arch-Bishop should go to the King to Normandy and make known to him the Ancient Custom of the Realm and by his Advice to Rome that these new things might be Annihilated haec Nova annihilaret So the Arch-Bishop went to the King to Roan and met Anselm there designing his Journey for England but King Henry not suffering that any prejudice saith my Author should be brought upon the Ancient Customs of England deteined Anselm from going to England §. 4. The Subjects repine at the Legats Praecedence of the Arch-Bishop Canterbury ☞ Soon after we find Legats sent and particularly John Cremensis Anno 1125. 25 H. 1. Who being but a Priest Cardinal yet using the Habit of a Bishop and performing the Office on Easter Day in a more Eminent Chair as an Arch-Bishop gave offence But in a Council which he held and presided in at London the Kingdom took more offence saith my Author for then (a) Videres enim rem hactenus regno Anglorum inauditam Clericum scilicet Presbyterii tantum Gradu perfunctum Archiepiscopis Episcopis Abbatibus totiusque Regni Nobilibus qui confluxerant in sublimi solio praesidere illos autem deorsum sedentes ad nutum ejus vultu auribus animum suspensum habentes Gerv. Dorob Acta Pontif. Col. 1663.42 saith he we might see a thing hitherto unheard of in the Kingdom of England A Clerk only having the Degree of a Priest preside in a lofty Throne above the Arch-Bishops Bishops Abbots and all the Nobles of the Kingdom that Assembled there they sitting below with Countenances and Ears attending his pleasure ☞ In this I take not so much notice that he assumed such a place that being due according to the Dignity of the Person he Represented and is no more to be wondered at then that the Lord Cromwell as Vicar General had place before the Arch-Bishop of Canterbury but I cannot but observe that it was looked upon as such a Novelty and a thing not used before even as the Vicar Generals place was in the latter Ages And it is supposed by some to be the first President of any Clergy Mans having Precedence here of the Arch-Bishop of Canterbury who was Styled Alterius Orbis Papa as having Vices Apostolicas here But in Anno 1127. To take off this Envy the Arch-Bishop of Canterbury William Corbet was declared Legat and in May following held a Council at Windsor wherein (b) Cui praesidet sicut Apostolicae sedis Legatus Florent Wigorn An. 1126.1127 he presided as Legat of the Apostolic See and it must be owned that tho' these first three Kings after the Conquest Contested with Popes in these matters yet afterwards Kings yielded more to the Canons of the Church §. 5. Further power exercised by Legats ☞ Anno 1138. 3 Steph. Albert or Alberic Cardinal of Hostia was the Popes Legat and Consecrated Theobald Arch-Bishop of Canterbury and called the Clergy to a (a) Gerv. Dorob Col. 1346.58 Colloquium by Apostolic Authority by which it appears that the Canons of the Church now obtained and the King assented to the powers the Legat had so that what was Decreed had the Kings Allowance In (b) Eadmerus fol. 24.11 this Council he Commanded the Prior and Convent of Canterbury to choose such an Arch-Bishop whom the Authority of the Holy Canons in nothing might obstruct and to whom the Bishops of his Province likewise ought to submit Here is to be noted that the Kings Assent was required and to whom the King neither might nor ought justly to deny his Assent and that if any (c) Gerv. Dorob can 9. Col. 1348. injured any Ecclesiastical person and did not give satisfaction after three Admonitions he might be Excommunicated and that none besides the Pope unless the danger of Death were Imminent might enjoyn the manner of his final Penance which my Author * Sir Roger Twisden ut supra says was the first Canon that was made whereby any thing done in England was referred to Rome but of this I doubt Anno 1139.39 H. 1. Pope Innocent the Third Conferred the Legatine power upon Henry Bishop of Winchester King Stephens Brother his Faculties (d) Malmsbury fol. 103. a. 31. were Read at a Council he called at Winchester bearing Date March the 1st There being some differences betwixt the Arch-Bishop and Monks of Canterbury Disputes betwixt the Arch-Bishop of Canterbury and the Legat. they were referred from Rome to his Decisions so that he caused both Parties the second time to appear before him 1143. as Lagat and Commanded (e) Willi. Thorâ—s Col. 1853.32 Arch-Bishop Theobald to restore one Jeremy whom he had removed By these and other Carriages there grew great distasts betwixt these two great Prelates The Arch-BiNop prohibited (a) Jo. Hagulst Col. 275. H. 4. Winchester all Ecclesiastical Functions tho' he were the Popes Legat and both apply themselves to the Pope Whence a Learned (b) Sir Roger Twisden Vindis p. 27. Person saith our Historians do setch the use of Appeals to Rome tho' it may be Ancienter §. 6. The Arch-Bishop of Canterbury Created Legatus Natus ☞ These two great Prelates being before Lucius the Second Anno 1144. the Bishop of Winchester (c) Willi. Thorn Col. 1804.44 J. Hagulst Col. 273.61 Anno 1145. was dismissed his Legatine Commission and the Pope finding with how great difficulty the Ecclesiastic Affairs of the Kingdom could be managed by any Legate without the Arch-Bishop of Canterbury Created him and his Successors Legati Nati by which such things as the Arch-BiNops did before and which seemed to Interfere with the Popes plenitude of power the exercise of which the Arch-Bishop was not so easily to be divested of he might be said to make use of by a Legatine power After this our Histories are full of Appeals to Rome Greater subjection to the Pope and of the Authority Exercised by Legats and we find some things allowed by the Decrees of Popes to be Transacted by the Arch-Bishop of Canterbury quâ Archibishop and
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
account of these things from the Chancellor and Proctors intending to Deprive the (a) In Turri Scholar pix 2. N. 5.6 c. University of that Right And after some debate it was agreed that when he appointed a Visitation of the University if any Masters Scholars or any Members of the University were faulty in any thing which appertained to the Ecclesiastical Court they should be referred to the Chancellors Disquisition and Sentence but in greater faults or where any submitted not to the Chancellors Sentence their Names should be sent to the Bishop who promised not to promote them till they had satisfied the Chancellor However I find (b) Wood fol. 128. that the Regents and non-Regents in Convocation declared that the University was in full Possession of certain Rights and Customs there expressed And this I suppose they were (c) Wood fol. 125. b. encouraged to do because the Year foregoing viz. 1279. (d) Turri Scholar pix 2. M. 2. The Arch-Bishop of Canterbury defends the University against the Bishop of Lincoln John Peckam Arch-Bishop of Canterbury at a Synod held at Reading moved by reason of Complaints made to him by the Chancellor determined to defend the Privileges of the University and take the Goods of the University into his protection For which purpose he Ratified the Sentence of Suspension and Excommunication made by the Chancellor or his Deputy against the Scholars that were Delinquents or that Appealed to any Dioecesan Subject to the Archiepiscopal See. Hereupon * Wood. Ant. Fol. 127. a. The Arch-Bishop of Canterbury Visits Anno 1284. 11 E. 1. The Arch-Bishop Visited the University about the end of October and interposed his desires and Authority having Writ to the University not to be disobedient to their Dioecesan and to the Bishop of Lincoln to use moderation Oxoniensem Academiamjure Metropolitico Visitaturus adiit Parker Antiq. fol. 204. tho' I find the most of what he did was as his Predecessor Kilwardly had done to Condemn certain Erroneous Positions used to be maintained in the Schools by the the Minorite Fryers Preachers and opposed by the Augustins yet I find (a) Regist Peckham Richard Knapwell a Dominican Appealed to the Pope Anno 1285. Against the Arch-Bishops Sentence Anno 1287. (b) Si in jure contenderent vinci eos superari necesse esse presertim cum his quibus uterentur privilegiis a Jurisdictione Episcopali jure communi stabilita eximi nequaquam potuissent Antiq. Brit. p. 204. In the life of John Peckham Arch-Bishop of Canterbury Arch-Bishop Parker Writes that there was a contest betwixt the Bishop of Lincoln Oliver Sutton and the University of Oxon for some Years concerning the Jurisdiction of the Bishop over the Scholars in which when the Arch-Bishop understood the Cause of the Scholars to be feeble and not able to be Defended by the Laws he Writ to them that if they continued the Suit they should undoubtedly be overcome while they no ways could exempt the privileges they used from the Episcopal Jurisdiction Established by Common Law that is the universally received Canons By which we may Judge The University subject to several Visitations that the Arch-Bishop of Canterbury allowed the Ordinary Jurisdiction of the Bishop of Lincoln in whose power Oxford then was yet this hinders not but that they might be subject to other Superior Visitations as the Kings or the Popes Legates §. 7. Anno 1301.30 E. 1. Pope Boniface the Eighth the 11th of the Ides of June 1 o. Pontificatus * A. fol. 95. Twynus lib. 3. sect 19. Pope Boniface the 8th grants several privileges and exempts the University from Archiepiscopal and Episcopal Visitation grants to the Chancellor Masters Doctors and Scholars of the University of Oxford a Bull wherein is expressed that they had set forth in their Petition that several Kings of England of Famous Memory had granted them several privileges confirmed after by the present King and did humbly supplicate him that he would make to them the like Concession and by his Apostolical Dignity would vouchsafe to exempt them from all Jurisdiction and power of whatsoever Arch-Bishop Bishops and other Ordinary Judges which he grants and Confirms their Exemption made by Pope Innocent the Fourth Mr. Wood gives many Reasons why this Bull should rather be ascribed to Pope Boniface the Ninth Anno 1389. almost an Hundred Years after but I need not enter into that enquiry since all that I infer from this or any other account I give of this matter is that the Kings of England were the first bestowers of the Secular privileges at the least and the Popes of the Spiritual and Ecclesiastical and and what the Arch-Bishop of Canterbury as Metropolitan and the Bishop of Lincoln as Dioecesan did was by the Ordinary power of Visiting their Dioecess which the Canons gave them as I shall shew hereafter §. 9. The Dominicans make disturbances This leads me before I proceed further to give an account of a difference that happned betwixt the University and the Dominicans wherein it will appear wherein it will appear that matters relating to the Ordering the manner and Method of taking Degrees and Establishing and performing Exercises and Lectures were disposed by the King or the Pope The Case was this There having been a difference * Wood Antiq Oxon fol. 150. b. betwixt the Dominicans and the University of Paris about the Observance of Statutes of the University the Dominicans claiming an Exemption from it's Jurisdiction and denying that the Inceptors in Theology should ask Licence of the Chancellor or undergoe any Examination but from those of their own Family after an Appeal to Rome the cause was adjudged in favor of the Fryers which the University took so ill that they abstained from public Lectures The Dominicans in Oxford Anno 1211. Cavilled at the Statutes of that University Wood ut supra which for brevity sake I shall refer the Reader to peruse in my Author but generally they were about taking their Degrees in Philosophy and Divinity according to the prescripts of the Statutes and that they should be Admitted to no Degrees unless they Swore to the Observation of the Statutes and that they should perform some Exercise in the Schools and Preach in St. Maries whereas they would Execute them in their own Fraternity Upon which they fixed their Appeal the Chancellor having refused it upon the Gates of St. Maries Church Anno 1312. (a) Id. fol. 151â—â— Claus 2. Ed. 2. M. 12. The Dominicans apply themselves to the King who orders that they shall enjoy their privileges and that at the next Parliament the University by their Atturny shall Answer to their Allegations and bring their Charters and Privileges granted by the King or his Predecessors By which it appears how the King was their proper Judge and what is called Parliamentary Judgment was before the Lords as the Kings Supreme Court where differences among his Subjects
c. To effect which mature knowledge honesty of life and the Doctrin of Divinity was necessarily required of which qualifications in former time the Fryers of that Order used to be examined and approved as well among themselves as in both the Universities But now he understood that some of the said Fraternity little instructed or approved in the Divine Law but Apostates notably vitious c. have gone beyond Sea and there cunningly and fraudulently begged obtained to themselves the Degrees of Masters and other Exempting Graces That when they return they might be reputed and cherished among their Fraternity with the Honor of that faculty to the dammage and hurt of the Catholic Faith to the prejudice and scandal of the King and his Realm and mostly to the disgrace of the said Order Therefore the King not willing in any manner to Tollerate the premisses so prejudicial and damageable to the English Church the King and his people and in process of time redounding in all likelyhood to the subversion of the Order enjoyns (a) Vobis omnibus singulis subforisfacturd omnium quae nobis foris facere potiritis injungimus mandamus Ide Ibid. and Commands all and every the Provincial and Priors under the forfeiture of all things which they could forfeit streightly nevertheless as much as he could prohibiting them that they in no manner admit such to the Liberty Honors and favors which the Doctors in Divinity regularly made according to the Examination aforesaid ought to have nor that they Treat any such with the Honors Favors or Liberties c. but that they have no consideration to such Impetrations Provisions or Exemptions §. 2. What is to be observed from hence ☞ What is worthy noting from hence is that altho' this Order had many privileges and Exemptions from Visitations and subjection Yet we find the King under the penalty of the forfeiture of all they could enjoyns them to obey what he commands and tho' it is not to be doubted that some of these Men might receive Degrees in some Universities who had from the Pope privileges that whoever received Degrees there should enjoy all the Liberties Honors c. which those did of our own Universities yet the King dis allows all so that by this one Instance it appears that the Kings of England allowed or dis allowed at their pleasure Immunities Exemptions privileges c. which were granted by the Popes Emperors or Forreign Kings for from such those privileges to Graduates only could be granted From which it is manifest that the King challenged a power of being Supreme Judge of what Exemptions should be allowed in his Universities and by consequence was always to be reputed the Supreme Visitor Hereby also will appear the true Reason of the Application to the King in the contests I shall presently give an account of which happened betwixt the Arch-Bishop of Canterbury and the University about his Visitation which by the Popes Bulls they were Exempted from §. 3. ☞ Anno 1395. 19 Ric. 2. The Lollards that is the favorers of Wickliffs Doctrin greatly increased sowing as the Writers of that time and others Style it Tares (a) Zizanium inter Triticum proseminantes among the Wheat choaking the Catholic Doctrin Upon which many complaints are made to the King and especially by the Bishops by which being moved he Writ to the Chancellor (b) Cl. 19 R. 2. M. 24. Commanding him as the words are utterly to Root out those wickedest (c) Ut nequissimos fidel Eversores overturners of the Faith and at the same time Writ to the Chancellor and Doctors by his Mandare enjoyning them to examin the Book of Wickliff called the Triologâ—s The Kings Mandate to extirpate what then was reputed Heresic and to send the heads of the Errors therein contained under the Seal of the University into the Chancery and it is noted forther that the Univelsity submitted it self to the King promising to stand to his Arbitrament for which purpose they sent an Instrument by their Chancellor Thomas Hindyman Thomas Merk Thomas Crawley c. to the King. By which it appears manifestly Inferences from hence that the King by his absolute power Commanded matters to be ordered in the University and that it submitted to his determination notwithstanding other Metropolitical Visitations which as such must be looked upon as done by the power of the King Ecclesiastical Laws as the most Learned of the Long Robe do maintain In the Year 1396. The 20th of Richard the Second a great contest was beowixt the Doctors of Divinity Masters of Arts and the Civil and Canon Lawyers The whole process of which may be seen in my (a) Wood Antiq. Oxon lib. 1. fol. 197. New contests betwixt Graduates and Lawyers Author the summ of which was that several Statutes were made to their prejudice and that the Chancellor pretended Bulls of Exemption from the Archiepiscopal Visitation of the University The conclusion of all which was that as King Edward the Third had Anno 1376. 50 Regni appointed Five Bishops to enquire into the matter and order it so the (b) Pat. 20 R. 2. part 3. M. 26. King the next April by his Royal Authority confirms their doom By which it still appears how the last resort was made to the King which will yet more fully be cleared by what I shall now relate as to the Visitation of Arch-Bishop Arundel under King Richard the Second and King Henry the Fourth The reason why the Author enlargeth upon the Visitations by Arch-Bishop Arundel which because they have been so much insisted upon as pregnant proofs even in King Charles the Firsts time that the Arch-Bishop of Canterbury by Right is the Visitor of the Universities I think it necessary to take notice of that I may shew the grounds upon which those Kings allowed the Arch Bishops Visitation and how it no ways prejudices the Kings Visitatorial power § 4. the Arch-Bishop Arundel Visiting by the Kings leave commands the University to obey ☞ Anno 1397. 21 Ric. 2. The Arch-Bishop of Canterbury determining to Visit for the suppressing of Heresies as then they were called and composing affairs of the University and understanding that the Chancellor and Proctors supported by the Popes Bull of Exemption intended to obstruct it He signifies this to the King. Here I hope is a craving the Kings leave and and aid what doth the King in this case He presently Writes to the Chancellor and Scholars and forbids (c) Literis praecepit ut in juris Regii detrimentum Haereticorum vero Lollardorum patrocinium Archiepiscopali sese aut Episcopali Authoritati nequaquam â—ubtraherent them that to the dammage of his Kingly Right or Patronage of Heretics and Lollards they no ways withdraw themselves from Archiepiscopal or Episcopal Jurisdiction Id. pat 21 R. 2. part 3. M. 32. or produce any Bull of the Pope to that purpose But that they
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
appoint Visitors and the giving this power to the King is Cumlative not Privative as appears 2 H. 7.6 B. 5 Coke 5 B. and it leaves a concurrent Jurisdiction as is clear in F. N. B. 21 C. and 51 B. and 80. which is sufficient to Answer the Objection of the Fellows of St. Mary Magdalen College that the Bishop of Winton being their Local Visitor if he were satisfied to confirm the Election they could not be adjudged faulty by any other Visitors Here cap. 7. sect 3. of which point I shall have occasion to Treat hereafter ☞ But to proceed (a) Idem Patricks Case Hill. 18 19 Car. 2. Keebles Reports fol. 164. 2d part Thirdly By 10 H. 7.18 and the Bishop of Winchesters Case the King may exempt any Ecclesiastical Corporation from Ordinary Visitation and consequently hath the power in himself ☞ Fourthly If there be no (b) Idem fol. 166. Visitor properly appointed by the Founder the Chancellor and Vice-Chancellor have the Government of any College who are the proper Officers of that distinct Common-wealth of Learning and they are Established or fortified in that by the Kings Letters Patents Fifthly Altho' King James the First (c) Id. fol. 168. 3 Regni gave the Chancellor of Cambridge power of Visiting Queens College there yet the King remains Visitor as Heir to King H. 6. Husband to Queen Margaret that Founded it as the Judge there Asserts but if it had been a private Founder the King shall not lose the Right of Visitor as Sovereign since the Licence for the Foundation is from the King of what private Foundation soever so if there were no Visitor appointed by the Charter of a Founder the Chancellor is Visitor and Superior to him is the King. Sixthly In the same Case it is laid down (d) Idem fo 169. Statutum de as Argument that there is a Visitor Temporal as the Founder and Ecclesiastical to examin correct and amend things done contrary to the Rules of their Order which were declared by the Canons of the Church whereof the Bishops were the Natural Visitors and it is plain that (e) Asportatis Religiosorum 35 E. 1. Anno 1307. cap. 2. no Abbot Prior Master Warden or any other Religious person of whatsoever condition State or Religion he was being under the Kings power or Jurisdiction should depart into any other Country for Visitation or upon any other color by that means to carry the Goods of their Monasteries or Houses out of the Kingdom It is also in the Argument laid down as the Reason why the claim was made in the time of King Richard 2d and the Act 13 H. 4. for the Arch-Bishop of Canterburies Visitation of the University of Oxford that it was only about matters of Faith by Reason of Heresie and Lollardism But in matters of breach of Statutes c. the Founder or Visitor Communi Jure had the right and tho' the King granted the power which the Founder had yet he never intended to grant away his own Supreme Authority thereby or could grant the Right of his Successors ☞ These matters I have noted in this Case that the Ingenuous Reader may know that what I have discoursed of in this Section is agreeable to the sentiments of the Reverend Judges an expression of (a) Judge Windham Patricks Case fol. 166. ut supra one of whom I find in these words Both Jurisdictions Lay and Spiritual are derived from the King as the Sun and Moon take light of God. I lay no stress upon any Analogy of the comparison further than that it thereby appears how fundamental a matter it is in our Laws that all exercise of Authority Discipline Government and external Oeconomy in Church and State are derived from the King as having a Creative and annihilating power in several things that depend solely upon his good pleasure which if any thing do in his whole Dominions it is in the disposal of matters of the Universities as I now shall make more evident in the following Chapter CHAP. VI. Concerning the Kings of Englands dispensing with the Statutes of the Universities by their Mandates SECT I. Concerning the Kings dispensing Power in General and in several particulars to the beginning of King Charles the Seconds Reign §. 1. Concerning the Kings dispensing power in General HAving given a large account of the Kings power in Visiting the Universities and in Abrogating old and making new Statutes by his absolute and Supreme Authority To clear the point yet more I shall shew by particular Instances wherein our Kings have dispensed with the Statutes of the Universities or particular Colleges For there can be no greater Argument of the Right and Prerogative of any power than the un-interrupted excercise and usage of the same Before I descend to particulars it may be expected that I should discourse something of the Kings dispensing power in General but the point being determined by the Judges and the Arguments for it being so generally known I shall be the shorter upon this head ☞ This power of dispensing seems to be a most necessary Prerogative that no Sovereign whether Ecclesiastical or Civil can want whence we find in a (a) Omnibus autem à nobis dictis Imperatoris excipiatur fortuna Cui ipsas Deus Leges subjecit Legem animatam committens hominibus Novel 105. circa finem Constitution of Justinian de Consulibus a reservation of that power which he thus expresseth from all these things which have been said by us Let the Emperors State be excepted whereunto God hath subjected the very Laws themselves sending him as a living Law to Men as it is Translated from the Greek Agreeable to which is what Aeneas Sylvius (a) Convenit Imperatori Juris Rigorem Aequitatis fraeno Temperari cui soli Inter aequitatem jusque interpositam interpretationem licet incumbit Inspicere de Ortu Authoribus Imperii observes that it is the part of the Emperor or Sovereign to attemper the Rigor of Law with the Bridle of Equity to whom alone it is lawful and a duty to see to the Interpretation which lyeth Interspersed betwixt Law and Equity since no Law can sufficiently Answer the varieties and un-thought on plottings of Mans nature and in Tract of time Laws at first just and equitable become unprofitable and harsh and this moderating of Laws saith he is so annexed to the Prince that by no Decree of Man it can be taken from him This is also agreeable to the Opinion of the most Learned Primate (b) Ushers power of Princes pag. 76. of Ireland whose Judgment most of our Judicious Protestant Divines have ever held in high esteem His words are positive Laws as other works of Men are imperfect and not free from dis-commodities if the strict observation of them should be pursued in every particular Therefore he saith it is fit that the Supreme Governor should not himself only be exempted from subjection
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
it hath ever enjoyed We have thought fit hereby to require you to proceed to a New Election of a Chancellor within the time limited by the Statutes and whereas as well the Integrity and constant Loyalty of Our Right Trusty and Right Entirely Beloved Cousin and Counsellor Christopher Duke of Albemarle as the remembrance of the Great and Eminent Services performed for Us by the late Duke of Albemarle his Father hath justly Entitled him to be near Our Person and render him every way Qualified for the Discharge of so high a Trust and whose Nomination thereunto will therefore be most agreeable unto Us We further hereby recommend him to your Choice as a Mark of Our Indulgent care of your prosperity Dated April the 4th 1682. ☞ What is here expressed of the Kings reserving to himself the Interpretation of the Statutes The Kings power to Interpret Statutes of the University referring to the Election of a Chancellor in altering the number of Years of their Duration may be understood of the Prerogative the Kings of England have in all other Statutes of either University and of every College within them §. 8. The King grants power to the University to confer Degrees upon such as the Chancellor or Vice-Chancellor shall recommend In the following Mandate there being manifest Indicias of the Kings power in ordering the Qualifications of those on whom Degrees were to be Conferred I shall Insert the material parts of it as it is directed to the Vice-Chancellor of Cambridge to be Communicated to the Senate Dated June the 8th 1682. Trusty c. Having taken notice of the several Testimonies you have lately given of the particular Honor and Affection you have for the Person of Our Right Trusty c. Christopher Duke of Albemarle being satisfied of the desire that his late Admission to the Office of Our Chancellor may be attended with more respect than hath been usually shewn to other Persons on a like occasion We do Graciously accept your Intimation in that part and are willing to comply with it in what depends on Us so as you may not want the satisfaction of doing all the Honor to his Person which you may desire We have therefore thought fit hereby sufficiently to Authorize and Enable you to Confer such Degrees as the said Duke your Chancellor shall think fit on such persons as he shall recommend to you This was a dispensation at the request of the Univerisity it self and also to Confer the Degrees of Masters of Arts on such and so many Persons of Birth and Estate and none others as you Our Vice-Chancellor shall Nominate It seems A Re-inforcing of a Mandate delayed that some of those Persons Nominated for Degrees were delayed which occasioned a Second Mandate the 7th of August 1682. reciting the substance of the former and then proceeding thus We are well satisfied that the Persons by him viz. the Vice-Chancellor Nominated were duely Qualified for the said Degrees according to the Tenor of Our Letter but contrary to Our Will and Pleasure were refused by one or two of the Caput Senatus These are therefore to Authorize you Our Vice-Chancellor to Admit the persons formerly by you Nominated to the Degree of Master of Arts. L. JENKINS §. 9. The Kings Mandate for making new Statutes for Regulating of Degrees In the next Mandate the Kings power in making Statutes for the Regulating of Degrees is most conspicuous This is Directed to the Chancellor of the University of Cambridge to be Communicated to the Senate there the 19th of March 1683 / 4. Dated at New-Market Trusty The University prays the King to appoint Statutes to be observed c. Whereas it hath been humbly represented to us by you Our Chancellor with the Consent and Approbation of the Heads of Colleges and the Proctors of that Our University that the punishments already made by Statute for the due performance of Exercises required in Order to the Degree of Master of Arts in our said University have not proved so effectual as were to be desired We have thought fit as a further Testimony of Our principal care for the Advancement of good Learning to make Establish the following Orders to be observed by all whom it may concern as a Statute for the future that is to say That every Senior or midle Bachellor of Arts appointed to Respond or Declame in the Bachellors Schools by the Combination to be made for that purpose and Signed by the Vice-Chancellor and the Senior Proctor for the time being not performing his Duty in the course allotted him then shall be punished 20 s. and moreover be obliged under the same penalty to perform the same on the next usual day for such Exercise and so from time to time till he shall have actually performed it or else be excused upon just and necessary cause to be allowed and appointed by the Vice-Chancellor and Senior Proctor for the time being and the Master of the College to which such person doth belong Which Method of proceeding we will have also to take place and be duely observed as to the exercise of opposing in those Schools saving that the punishment for the neglect thereof shall be but 10 s. to be repeated as we have above directed §. 10. A Command to the University to grant a Dispensation In some Mandates I find the University is Commanded to Dispense as in the following We have thought fit hereby to recommend Richard Thompson Master of Arts to you in the most effectual manner for the Degree of Doctor of Laws Willing and Requiring you forthwith upon Receipt hereof all Dispensations requisite being first granted to Confer the same upon him by Accumulation he performing the Exercises requisite thereunto or Cautioning for the same any Statute Order or Constitution of that Our University to the contrary notwithstanding Dated the 4th of April 1684. An Example of a Revocation of a Mandate I think fit to Insert Trusty The Revoking of a Mandate c. Whereas We were Graciously pleased by Our Letters bearing date the 4th of this Instant April to require you to Admit Our c. Charles King of Wadham College in that Our University into the Fellowship then void if any such then were or otherwise into the first that should any way become void in that Our College We have thought fit to Revoke and do accordingly hereby Revoke Our said Letters and all Clauses therein contained Dated the 28th of April 1684. §. 11. The Kings Order that Mandates should not be granted without the Testimony of the Arch-Bishop of Canterbury and the Bishop of London Some complaints having been made that the too frequent obtaining of Mandates for Fellowships c. was prejudicial to the Graduates in the Universities whereby they were put by their Rights and the liberty of the Elections Infringed since by the recommendation of some Friends at Court the King was prevailed withal to grant some that upon due consideration
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
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
Woods Antiquities of Oxford to which I refer the Reader That the Kings of England had reserved to themselves power of Visiting and Reforming Abbies Priories Hospitals and Religious Colleges and Houses is not to be doubted I shall only give an account of a Mandate of King Edward the Third concerning an Amercement relaxed the Case was this The Prior of St. Swithins being absent from his Convent a longer time than the Statutes allowed The Kings Mandate for taking off an Amercement from the Prior of St. Swithins Rot. Claus 20 E. 3. part 3. M. 7. è D. Hales ut supra was Amerced by the Chapter of the Priory But the King sends his Mandate to the Chapter Commanding them to discharge the Amercement Imposed by them upon the Prior who had been in his Service and was under his Protection which was ordered accordingly From which we may learn that the King hath a Supreme power over such Societies and so likewise over Colleges to remit Penalties and consquently must have power to inflict them upon Offenders I shall give one Precedent more concerning the Kings power to enjoyn obedience of the Head and Fellows of a College to submit to a Local Visitor The Kings Mandate to enjoyn the Provost and Members of Queens College in Oxford to submit to the Visitation of the Arch-Bishop of York their Local Visitor where the Plea against him probably was an Exemption granted them by the Pope the Case was this The Provost and Scholars of Queens College in Oxford by their Statutes were to be under the Visitation of the Arch-Bishop of York or his Commissary See here chap. 4. §. 2. §. 12. pag. 175. and it seems they refused to submit to the Visitation of Alexander Nevil Arch Bishop of York whereupon the King Commands them to obey him as may be seen in the Mandate at large Rot. Claus 50 E. 3. par 2. M. 9. e Ms D. Hales ut supra I shall only note the last Clause viz. Quod si in vobis Rebellio vel defectus in hac parte reperitur vos qui Regii Mandati contemptores Rebelles eritis taliter puniri faciamus quod punitio vestra aliis omnibus cedet perennem in Terrorem consimilia post modum praesumentibus T. Rege apud Westmonast 18. Nov. The English of which is Nota that disobedience to the Kings Mandate is Styled Rebellion that for certain they shall know if in them be found Rebellion so it seems dis-obedience to the Kings Mandate is Styled which ought to be noted well by such as obstinately refuse obedience to it or defective in that particular See chap. 4. sect 3. ◠6. pag. 187. the King will cause them to be so punished that their punishment shall be to the lasting Terror of those who shall presume hereafter to do the like I shall now Insert a determination of the Bishop of Ely as Local Visitor about the Interpretation of some Statutes of St. Johns College in Cambridge as followeth §. 4. The Interpretation of a Statute of St. Johns College in Cambridge by the Bishop of Ely their Visitor Cum in Injunctionibus per Visitatores Regios vestro Collegio jam diu editis Paper-Office at Whitehall praescriptis positum sit ut in Electionibus quibuscunque ille Electus habeatur quem sex seniores etiam dissentiente repugnante Magistro eligendum duxerint Jam vero postea aliae Ordinationes Statuta vobis ab ipsa Reginea Majestate nuper Imposita sunt his verbis Ut in omnibus singulis Electionibus Locationibus Concessionibus quibuscunque Magistri seu Praepositi illius Collegii Assensus consensus necessario requirendus est quoniam posteriora tollunt Priora meo Judicio Interpretatione posterius hoc Statutum Regium valere magis debet ita tamen ut pro modo ratione omnium singulorum Officiariorum referendi omnino estis ad formam illam discriptam in Statuto de Electione praesidis ad Injunctionem in Margine ejusdem Statuti per Regios Visitatores editam Haec demum mea Interpretatio Sententia est Richard Ely. This was Richard Cox Consecrated Bishop of Ely 21 December Anno 1559. who continued Bishop Twenty one Years After whose Death the See was Vacant about Twenty Years as appears by Godwins Catalogue of Bishops Whereby we may Obiter note that it is no new thing for Bishoprics to be kept long in the Kings Hands un-disposed of From this Interpretation of the Local Visitor Observations upon this Interpretation of the Local Visitor it may first be observed that the Visitors appointed by the Queen did publish Injunctions about Elections by the powers given them from the Queen yet after the Queen did her self impose upon the College new Ordinances and Statutes Secondly that the Bishop judgeth that the later Statutes made void the former and so adheres to the observation of the last From hence Thirdly it is most rational to observe that the Kings of England having power to change Statutes either by themselves in their Closets or by their Commissioners as it is manifest the Queen in this Case did then it much more follows that the Kings of England may by dispensation supersede the execution of any Statute Fourthly it is clear that the Local Visitor by his Interpretation may decide a Controversie in a College whether the Society stand obliged to observe the old or new Statutes and if the Local Visitor hath such a power much more may a King of England exercise the like I now pass to some things more immediately relating to St. Mary Magdalen College §. 5. Extracts of some Statutes Having after long Sollicitation obtained by the help of Mr. Thomas Fairfax See pag. 17. here and pa. 18.23 24 33. a Transcript of some Branches of the Statutes made by Bishop Waynfleet out of the Register E. I shall here Insert them that the Judicious Reader may see that notwithstanding the Plea so much Insisted upon How the Fellows of St. Mary Magdalen College cannot justifie their adhering to the Literal and Grammatical sence of their Statutes nor that they cannot be dispensed with that the Fellows were obliged by Oath to observe their Statutes in the Literal Grammatical Sense and neither seek nor admit of any dispensation by any Authority whatever yet such Statutes have not been observed by themselves but either by too great strictness of them or some Immemorial dispensation or the pravity of the Ages by-past and current that can endure no restraints these Statutes have been dis-used and grown obsolete yet the Oaths are taken in General to all the Statutes so that the Scholars and Fellows can no ways be free from the guilt of perjury without a Tacit reserved Sence that such are to be understood they Swear to keep as are then of force and use And Admitting such a reserve it may be allowed in the obligation to any other Statute which they bind themselves to observe so long as the Sovereign
be found amongst you and not otherwise 'T is a great grief to all sober Men to see any who would be thought True Sons of the Church of England act like Men frighted out of their wits and Religion as you have certainly done Never any True Son of the Church of England was or will be disobedient to his Prince the Loyalty which she hath taught us is absolute and unconditional Tho' our Prince should not please or humor us we are neither to open our Mouths or lift up our hands against him Yours like all other Corporations is the Creature of the Crown and how then durst you make your Statutes spurn against their Maker Is this your way to recommend and adorn our Religion and not rather to make it odious by practising that in such a froward manner which our Church Professes to abhor Do we not pray for the King as the Head of it under Christ Do we not acknowledge him for the Fountain of Honor And does not Solomon Command his Sons to fear God and the King the one with a Religious the other with a Civil fear Is he not the Lord 's Annointed and not to be toucht but with Reverence either in his Crown or Person And why should we not render then to all their dues Fear to whom Fear and Honor to whom Honor Is not this an Eternal tye both of Justice and Gratitude For where the Word of a King is there is Power And who may say unto him what dost Thou Are we not next to God and his Good Angels most beholden to him for our safety whose Honor and Lawful Authority We are now come to Vindicate Is he not the Father of our Country and ought he not to be more dear to Us than our Natural Parents especially considering how Indulgent he has been to Us and what care he dayly takes to keep us from biting and devouring one another we know not why Is not he the Center of the Kingdom and do not the concurrence of all Lines meet in him and his fortunes and how can we then understand the limits of self love if a tender Sense of his Honor and happiness be not deeply rooted and imprinted in our Souls 'T was neither dutifully nor wisely done of you to drive the King to a necessity of bringing this Visitation upon you And as it must needs grieve every Loyal and Religious Man in the Kingdom to the heart to find Men of your Liberal Education and Parts so Untractable and Refractory to so Gracious a Prince so it will be very mischievous to you at the Great Day of Gods Visitation Who will then be the greatest loosers by your Contumacy For God will Revenge this among your other Crimes that you have behav'd your selves so ungratefully towards his Vicegerent as to oppress his Royal Heart with grief for your Stubbornness to whom by your chearful Obedience you ought to have administred much cause of rejoycing They who Sow the Seeds of Disobedience have never any great reason to boast of their Harvest for whatsoever they vainly promise themselves in the beginning they are in the end ashamed and afraid of the Income of their evil Practices and indeed every sort of disobedience hath so ill a report in the World that even they who are guilty of it themselves do yet speak ill of it in others Let therefore the disreputation and Obloquy which it will inevitably bring upon you make you out of Love with it or if that will not do let the Stings of your guilty Consciences and the fear of Divine Vengeance restrain you or if you are still Insensible of all these yet at least let the present fear of those Temporal Punishments which the Laws of the Kingdom have superadded to the Contemners of Gods and the Kings Authority oblige every Soul that hears me this day to be Subject to the Higher Powers If neither a most Merciful God nor a most Gracious King can please you your wages will he recompence upon your own Heads Were it not for this Serpent of discontent and jealousies which are now so busie in it this Kingdom would be like the Garden of Eden before the Curse a Mirrour of prosperity and happiness to all the World besides but this Serpentine humor of Stinging and Biting one another and of Tempting Men to Rebel against God and the King because others who differ from us in Judgment are as happy as our selves will as certainly turn us as it did our first Parents out of Paradise Our Nation is in greater danger of being destroyed by Prophanness then Popery by Sin then by Superstition by other Iniquities then by Idolatry and I pray God we may not see Sacrilege once more committed under the pretence of abhorring Idols as I my self have seen in this place If there be any among you who have sinn'd with so high a hand against our Gracious Sovereign as the obdurate Jews did against our Saviour saying we will not have this Man to Rule over us such your petulant humor such your shameful Injustice and Ingratitude will deserve the just Animadversions of this Court. What distempers this College is sick of which we are now come to visit by the Kings Commission your selves are best able to tell us We are informed of too many already and yet we suspect there may be more and therefore be but Ingenuous and make a Conscience of giving us sincere Answers and you shall find that we will abate nothing of the just measures of our Duty for fear or favor to satisfie the Importunities of any Man being well assured that God and the King will bear us out I am sorry that you should any of you run so far upon the score of the Kings Royal Patience and Pardon as some of you have already done And that you should be in such vast Arrears of Duty and Respect to him as you are But they go far who never turn The Influence you may have upon other parts of the Kingdom makes me Charitably hope that your future Fidelity and Allegiance will for ever Answer your Duty and the Kings just Expectation And therefore I hope it will not be in vain for me to exhort you in the Bowels of Christ to a more entire submission and obedience because if such Men as you bred in so Famous an University are not thoroughly convinced of the necessity of it the more Popular you become the more pernicious will you be in encouraging your deluded Admirers who have their Eyes upon you from all parts of the Kingdom to be as Disobedient and Contumacious as your selves by which the Honor and Authority of the King may be diminished and the peace both of Church and State come to be endanger'd Obey them who have the Rule over you either in Church or State and submit your selves before it be too late for your contumacious behaviour towards them will yeild you no profit at all but your Obedience much every way the former will
uniting yet they might abuse the Power to the detriment of the Common-weal therefore in the Digests we find the Law thus (d) Lege neque Societas i. f. quod cujuscum que Vniversitatis neque Societas neque Collegium neque hujusmodi Corpus passim omnibus habere conceditur nam legibus Senatus-consultis principalibus constitutionibus eares coercetur Agreeable to which I find in the Letter from King Edward to the Pope in behalf of the University that it enjoys (e) In Regia Benevolentia recumbit speciali Rot. Rom. 11. E. 2. M. 14. Intus it's Privileges by special Royal Benevolence By the Constitution of our Laws this Right as all Jurisdiction and Franchises are is Lodged in the Crown and thence only derived So (a) Rex habet omnia Jura in manu suâe quae ad Coronam ad Laitatem pertinent potestatem Regni Gubernaculum Habet etiam Justitiam Judicium quae sunt Jurisdictiones habet etiam ea quae ad pacem pertinent Ea quae dicuntur privilegia licet pertinent ad Coronam possunt ad privatas personas transferri sed de gratia ipsius Regis speciali Bracton upon the Question quis concedere potest libertates quibus qualiter referuntur thus resolves it The King saith he hath all the Rights in his own Hands which appertain to the Crown and his Lay-Power and the Government of the Kingdom He hath also Justice and Judgment which are Jurisdictions and those things which appeartain to Peace He further observes that those things which are called Privileges tho' they appertain to the Crown may be transferred to private persons but of the special Grace only of the King. ☞ All the Law Books Unanimously agree that none can make Corporations but the (b) 49 E. 3.4.49 Ass 8. King and such Power cannot be prescribed for it inherent in the Crown Therefore Sir Edward (c) Co. 10. Rep. f. 33. b. Coke calls them Creatures of the Crown The Nature of some (d) Atturny Generals Argument for the Quo Warranto Ms. p. 9. Corporations is to be Constituted by the King alone as the Dean and Chapters Majors and Commonality some have been by the Popes alone and some mixt by the King for the Temporal Possession by the Pope for their Spirituality However the King is still the Donor Fountain and Spring from whence these and all other Liberties flow §. 3. Things requisite to a Corporation My (c) Suttons Hosp fol. 29. Lord Coke saith there are Four things that are of the Essence of a Corporation First a Legal Authority which he saith is Four ways First By Common Law as by the King alone which therefore is said to be by Common Law as the most known and regular way Secondly By Authority of Parliament Thirdly by the Kings Charter Fourthly By prescription which in effect are all by the King for what is by Act of Parliament is certainly so and what is by prescription is presumed to have obtained a Grant from the Crown which in process of time hath been lost and so by the Tacit allowance and consent of Successive Kings acquires a Right His other Essential parts are in the Operative words of which there is no need to discourse here ☞ By the Statute of Merton (a) Id. p. 26. b. no Grant of Lands to Pious or Charitable uses are good without the Kings Licence For this purpose the Kings Grant is absolutly necessary for that it was solely in his Power to Grant and the Donor of the Lands without the King can do nothing to establish a perpetuity Without capacitating the Incorporating cannot be effected for the Inhabitants of a Village or City are single persons which are not in a Capacity to take any Lands in Succession the like is to be said of Liberties Privileges and Immunities but only to their Singular Heirs but such Inhabitants are in a Capacity to be Incorporated by the King and after such an Incorporation to have a Succession of Lands Tenements and Hereditaments §. 4. The end of Corporations ☞ The general intent and end of all Civil Incorporations allowed by the Policy of the Law (b) Atturny Generals Argument ut supra is in order to better Government subservient to the Oeconomy of the whole by such prescribed Rules as the Kings of England have been Graciously pleased to limit them by which as Emergences happened might be altered by the same Power that bestowed them ☞ Bishop Saunderson (a) Quum ex concessione principum idque ex gratia speciali corporentur istiâ—s modi Societates nec aliis gaudeant juribus privilegiis vel potestate extra ea quae vel ex diuturna temporis praescriptione vel ex chartis diplomatibusque Regiis constare potest fuisse sibi concessa De obligatione Conscientiae praelect 7. sect 28. according to his Judicious way of expressing matters saith the Sodalities Bodies Corporate or Colleges are as Members of the great Body the Kingdom or Common-wealth and are contained in it as the Inferior Orbs of the Heavens are in the Superior That these are Incorporated by the Grants of Princes of their special Grace and enjoy not any Rights Privileges or Powers besides those which by prescription of long time or from Royal Charters it appears they have had Granted to them Therefore whatever Power they have of making any Laws for their Government it is derivative and no way Primitive and is ultimately resolved into the Supreme Regal Power as it 's true Original Therefore such like Societies or their Magistrates cannot at their own Arbitrament constitue or exercise any Power in making Laws but according to the manner and measure of the faculty Indulged to them by the Prince ☞ Hence it is that whoever is the Founder of a College the King calls it upon all occasions Our College and the Members likewise in all Applications to the King say Your College for tho' the particular Founder give the Land yet as it is a College or Corporation the King is the Founder ☞ So it is (b) Patrick Case Trinit 18. Car. 2. Keble Rep. 2d St. fol. 65. vouched for Law that the King without the Ordinary may Erect Universities and this is not a Prerogative our Kings only enjoy but we find it frequently in the Grants of the Modern Roman Emperors and Kings §. 5. The Power of conferring Degrees in Universities conferred on Subjects Examples of the Emperors giving Power to Count Palatines to make Doctors in Divinity Law Physic and Philosophy which are the peculiar Degrees conferred by Universities quâ Vniversities by the Grants of Privilege from their respective Sovereigns may be found in Tho. (a) Thesi 22. c. Sagittarius cited by Mr. Selden ☞ So Rudolphus the second Emperor of Germany (b) Sacri Lateranensis Palatii Aulaeque nostrae Caesariae Imperialis Consistorii Comitu Doctores Licentiatos Baccalaureos in utreque Jure
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
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
Bishop Writes another Letter to the President Informing him of the Receipt of the Secretaries Letter and adds I continue in my former Opinion towards them to wit that I would be loth that they should be Expelled if by any means the Statutes may relieve them and therefore I require you Mr. President and the Fellows that you choose none now at the next Election into their Rooms Here Obedience is payed to the Secretaries Letter of advice but that their places may stand in the same Terms as they are till I may hear what by you and them may further be spoken and considered by the Statutes to the end the Statutes may be truly observed and in the mean season no Men be of that Calling wronged I have willed them to absent themselves from the next Election for good consideration and my hopes is that none of that Society will move any troubles in or about the Election for any matter now hanging in doubt and not decided for that will breed slander to the Calling and danger to themselves so he orders the President and others to attend him the First of August about the Controversie Dated at Losely the same day and Year with the former I have not found among these Papers what was the Issue of this great Controversie but from what doth appear make these following remarks §. 8. The first observable from these short Statutes Upon the whole matter we may observe First That these strict and Indispensable Statutes in former times as well as now and in all times to come have and will Create great troubles in this College unless there be in the Sovereign a Visitatorial as well as Dispensing Power to Terminate endless Quarrels when as in this Case both Parties shall insist upon Grammatical and Literal sense of the Statutes and tho' the Bishop of Winchestr hath a power of Interpretation yet he is so tyed up to the Literal and Grammatical sense that he must unavoidably be put some times to great streights to determin matters ☞ Secondly However Rigidly the Statutes seem to be worded yet none can Judge that the Kings Dispensing Power can be restrained since neither the Founder could so bind either his Sovereign or the Pope nor could any of those bind their Successors by any Charter or Grant from such inhaerent Prerogatives annexed to their very Offices as I shall make clear when I come to consider the Arguments used concerning the force of these Statutes ☞ Therefore Thirdly I rather Judge that the Founder as Entaylers of Estates upon their Posterity to preserve nodosam Aeternitatem often do had a great desire that his Statutes should be perpetually observed but he could not be supposed to have such an over weening Opinion of his own prudence but that some Cases might happen whereby the Kings of England might Judge it convenient to alter them so that I Reasonably think the utmost of his design and hopes might be that the Society it self should not have the power of altering them but to Exclude the Sovereign by their Prerogative or Acts of Parliament to Suspend alter or Abrogate them was as much beyond his power to enjoyn as it was vanity in him to presume would thereby be effected Fourthly In the Secretaries Letter we may observe that he threatens the Queens Authority if the Bishop of Winchester their Visitor would not do the Fellows Justice and in the Bishops Letter to the President he Suspends all those on both parties from giving their Voices in the next Election which must be a force upon the Statutes for Election if the Bishop could not Interpret their Statutes but in the Literal and Grammatical sense for it is very probable it might be known by a Literal and Grammatical sense whether they were Fellows or not and if they were Fellows the President was as much bound by Oath to Admit their Voices as they obliged to give them and if the persons excepted against were no Fellows then the Five were unlawfully Expelled and so ought to have had Voices so that whether way soever the matter were determined I cannot conceive the Statutes or Interpretation was Literally and Grammatically observed which is the great plea of the Magdalen Fellows §. 9. The Case of Mr. Wilson I shall now shew that in the Controversie about the matter of the Head of a single College the Queen appointed Commissioners in a summary way to determin it Anno 1577. 19 Regni The Case was this A Controversie arising betwixt William Wilson Bachellor of Divinity In the Paper Office Bundel Anno 1577. 19 Eliz. and Thomas Bishop of Lincoln for that the Bishop refused to Admit him as chosen Rector of Lincoln College in Oxford the said Wilson Appealed to Edmund Grindal Arch-Bishop of Canterbury whose Official Dr. Bartholomew Clerk Admonished and Commanded the Bishop to Admit him and that the Bishops Commissioners should not under the pain of contempt do any thing to the prejudice of the said Wilson and the Arch-Bishop committed the determining the matter to certain Commissioners And Thomas Underhil Proctor of the University protested against the Commissioners of the Arch Bishop as not competent Judges and that the Examination of the matter belonged to the Chancellor of the University Upon all which The Queen takes the Cause out of all their hands and Grants a Commission to the Bishop of London and Rochester Sir Christopher Wray Knight Chief Baron of the Exchequer Sir William Cordel Knight Master of the Rolls Thomas Wilson John Gibson and John Griffith Doctors of Law upon the Petition of Robert Earl of Leycester Chancellor the Doctors Masters and Scholars of the University of her certain knowledge and sole motion and of the plenitude of her power Commanding them Eight Seven Six Four Three or Two of them calling the Reverend Bishop of Lincoln and William Wilson in person and all others by Law to be called in General Summarily and in plain Form without noise and Form of Tryals only seeing to the truth of the thing and the Fact Summarie in plano sinc strepitu forma Judicii and attending solely the aequity by all Manners and Forms by which they can better and more efficaciously proceed in and upon the Truth of the Premisses according to the Privileges and Exemptions of the said University and in the Cause or Causes aforesaid with their Incidents Emerging Depending Annexed or Connexed whatsoever and to determin it with a due end removing all Appeals and Complaints Nullity and Petition whatsoever and notwithstanding any Statutes Canons and Customs on the contrary published or the Law Suit depending causing all that in the premisses they shall Ordain to be firmly observed by Lawful remedies of the Law. Dated the 23d of April the 19th of her Reign 1557. By this it is apparent that the Kings of England may Suspend the power of the Arch Bishop and of the Chancellor and Local Visitor and by Commission appoint others in a Summary way not according
obligationem Juramenti ne inducatur quamvis enim supremus princeps non possit immediate directe Irritare vinculum Juramenti utpote Spirituale ipsius facultatem superans potest tamen in directe remote quatenus potest destruere contractum antequam celebretur vel quatenus potest executionem contractus sub culpa prohibere Bonacina Disp 4. q. 1. punct 17. prop. 1. a. immediatly and directly Irritate the obligation of an Oath because it is Spiritual and so is above his faculty yet indirectly and remotely he can because he can destroy the Contract before it be Celebrated or may forbid the Execution of the Contract under a penalty §. 4. Thus the obligation (c) Dispensatione tollitur obligatio Juramenti haec absolutio fit Authoritate Superioris solius J. Lessius lib. 2. cap. 42. Dub. 12. n. 62. fol. 631. of an Oath is taken away by Dispensation according to the Opinion of a Learned School-man and consequently the Absolution is by the Authority of the Superior alone Hence it is easie to understand how a Superior can release an Oath for (d) Sicut enim is in cujus favorem commodum praestitum est potest illud Relaxare ita etiam illius Superior cui vel ille pleno jure subest sicut enim Superior potest co gere inferiorem ut obligationem Juramenti remittat quando justa causa postulat vel subest ita ipse per se potest eam remittere illo nolente vel non comparente vel alias quando expedit tunc consensus Superioris supplet defectum consensus Inferioris Idem n. 63. as he in whose favor and for whose profit the Oath is made can release the Oath so the Superior to whom he is subject pleno jure can For as the Superior saith Lessius can compel the Inferior to remit the obligation of his Oath when a just cause requires is expedient or understood So the Superior can release the Inferior tho' the Person Swearing be not willing or is not present to consent therefore in such case the consent of the Superior supplys the defect of the consent of the Inferior Thus far Lessius ☞ Which Bishop Sanderson (a) Nec obligatur Jurans ad faciendum quod Juravit imo obligatur ad non faciendum nisi accedit Superioris ubi rem rescierit Licentia de juram obl praelect 4. Sect. 5. p. 104. Confirms when he saith that in such a case without the Superiors License the Swearer is not obliged to perform what he Sweareth to yea he is obliged not to do it unless there intervene the Superiors License when he knows the thing and further adds (b) Omnine dicendum est Juramentum ejus qui sub alterius potestate est absque ipsius consensu nec licitum esse nec obligatorium Idem p. 105. that it is most true that the Oath of him that is under anothers power without his consent is neither lawful nor obligatory and it was upon this very ground that all the Loyal Divines of England Judged the Solemn League and Covenant was unlawful as wanting the Kings consent much more he having declared his dissent Besides in all Promissory Oaths there is a Tacit condition implyed as First If the promise be not remitted by him to whom it is promised or Secondly That no public Law be made to dissolve the Statute Thirdly If the Superior (c) Qui enim aliquid promittit alteri tacite subintelligit hanc conditionem nisi Superior cui Materia subest contradicet nisi ipse sua Autoritate condonat hinc dici solet in Juramento censeri exceptam Superioris Autoritatem Lessius lib. 2. c. 42. Dubit 12. n. 63. to whom the matter is subject contradict it not or by his Authority pardoneth not the breach of it Hence it is a Rule that in any Oath the Authority of the Superior is to be excepted Therefore where the Sovereign power resides as in the King of England there the dispensing power resides and the (d) Promissio hanc habet junctam conditionem nisi promissio remittatur a Superiore vel rescinditur a Judice Bonacina Disp 4. q. 1. punct 17. prop. 1. fol. 228. secret or silent condition viz. If the King dispense not with the observing of it is to be Implyed in every such Oath Wchhi leads me to the Fourth condition of a Promissory Oath viz. the Intention (a) Tacita Conditio sub est vel ex Juris Dispositione vel ex Jurantis Intentione Lessius Dub. 2. n. 12. fol. 617. of the Swearer which must constantly be understood that he will keep his Oath if he be not prohibited by the Law or the Sovereign §. 5. ☞ Bishop Sanderson Illustrates this in this manner De juram obl praelect 2. lect 10. pag. 48. If a Son Swear to do any thing Lawful in it self and the Father Command him to do another which hinders him from doing that which he had Sworn to do the Son is not bound by his Oath because he is bound by the Natural Divine Law to obey the Command of his Father and he Cites in the Margent that Rule both of the Canon and Civil Law which he approves of in Juramento semper jus Superioris Intelligitur exceptum Hence Lessius affirms that when a promise or proposition of a thing good in it self is made a Man is not obliged to perform it but with Tacit Conditions of which he hath many Instances which are forreign to our business but one is expresly to our purpose (b) Jurasti servare Statuta capituli tacita conditio est scilicet quae nunc sunt in vigore majoris momenti seu quae ex vi Juramenti sunt in usu non enim se Juramento vult astringere ad minima neque ad ea quae non servantur vel si serventur non ex Religione Juramenti neque etiam ad Statuta futura nisi aliud Intenderit Lessius lib. 2. c. 42. Dub. 4. n. 21. fol. 619. when one Swears to observe the Statutes of a Chapter It is to be understood of such as are in force which as before I have shewed those are not which are Abrogated by the Superior or are of greater moment and surely in our case the obligation of our Allegiance and owning the Kings Supremacy is much a greater tye upon our Consciences than those of private Statutes or are in use by virtue of our Oath §. 6. To Conclude this Head Bonacina (a) Juramentum sequitur naturam Actus super quem cadit accessorium enim sequitur naturam principalis ut habet Regula Juris 42 in sexto itaque si actus habet tacitam Actionem etiam Juramentum habere censetur confirmatur quia Juramentum non additur ut promissio propositum aut contractus aliter accipiatur quam per se accipi solet sed ut eo mode Intellecta quo solent Intelligi non possint revocari