Selected quad for the lemma: judgement_n
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A30662
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The case of Exeter-Colledge in the University of Oxford related and vindicated
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Bury, Arthur, 1624-1713.; Washington, Joseph, d. 1694.
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1691
(1691)
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Wing B6190; ESTC R25321
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65,452
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81
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Courts are of Ancient and General Jurisdiction which therefore is not supposed to be excluded unless by name But the Power of a Visitor is created and limited by the Statutes of the College and can therefore claim no such exemption from the general words whereby all Appeals are renounced Whereas he urges That an Appeal to the Visitor was most obvious to be thought on and would therefore have been mentioned if designed to be precluded I may with better reason turn it upon himself If it was so obvious to be thought on it would have been excepted if not designed to be restrained as well as other foreign Remedies The fifth Argument is Because these Interpretations of the Oath are most consonant to Law and least tending to establish Arbitrary Power and to exclude legal Remedies It has been said already That the Oath is to be taked in the plain literal and grammatical sense from which the Rector and Fellows are sworn not to depart and therefore it is in vain in this Case to urge specious pretences of what may seem in the Author's Opinion consonant to Law The urging of inconveniences is quarrelling with the Oath it self as if it needed mending We must now take it as it is and it must and ought to be observed according to the literal and grammatical sense unless that sense be directly contrary to Law which it is not It is not against the Law for a man to wave his right of Appealing no more than it is against Law for a man to give a release of Errors A man may cedere Jure suo Quilibet potest renunciare Juri pro se introducto If an Appeal would lie to the Visitor in case this Oath had not been enjoin'd then a renunciation quomodolibet appellationi in vim pacti is a renunciation of that remedy The Founder must be allow'd to grant his Benefaction on his own terms Cujus est dare ejus est disponere And now this is the true state of the present Case A Fellow is admitted upon this Condition amongst others That in case he shall be expell'd by the Rector and seven Seniors he shall never give them nor the College any trouble by seeking remedy elsewhere His accepting a Fellowship with this promise is therefore called a Pactum in the very Oath quomodolibet appellationi in vim pacti renuncio I cannot but observe how these words are conceal'd by an c. in the late Pamphlet they seem'd to carry such a force along with them as the Author was not willing a Reader should take notice of Tho if it should be admitted that a person expell'd as aforesaid is not precluded from seeking remedy by Law and that so private a Constitution as that of a particular College does not nor can exclude the Jurisdiction of the King's Courts yet it cannot in this Case but exclude an Appeal to the Visitor whose Authority is grounded upon and created by the Statutes themselves And can it be conceived that a Founder would invest the Visitor with a Power to receive Appeals and at the same time lay an Obligation by Oath upon all of his Foundation not to bring any What is said concerning Arbitrary Power is ridiculous Arbitrary Power is power exercised without or against Law but the Rector and Fellows have Power by their Statutes and those confirm'd by Letters-Patents and they are under an Oath to observe their Statutes and to act according to the direction and intent of them And why should it be thought that the Judgment of eight Divines and under an Oath should be more arbitrary than that of a single Commissary not sworn at all As for the exclusion of legal Remedies a man may to be sure preclude himself of them and if a renunciation quibuslibet Juris remediis does not preclude him as far as words can do it I know not what words can This Constitution perhaps does not restrain the Jurisdiction of the Courts of Law but it certainly makes him perjur'd that having taken this Oath shall apply himself to them for redress And where is the Justice in allowing a man legal remedies against wrong-doing when he has quitted them of his own accord When a man has submitted to a Rule of Court not to bring a Writ of Error or a Bill in Equity does he undergo any hardship by being bound to obey it tho there be Error in the Judgment or tho he might have had relief in Equity had he not tied himself up from seeking it Tho there is little reason from the Constitution to apprehend that wrong will be done And it is every whit as reasonable and perhaps much more so that one Fellow should acquiesce in the Sentence of the College than that the Rector and Seniors should upon his Complaint be called before another Judge to whom they must submit without Appeal It must be remembred too That tho the Founder has taken good care that none of the Fellows may receive wrong yet he was concern'd to do it in such a manner as that no Grievance Prejudice or Disturbance might accrue to the Society in case any such wrong should happen The Common Good and Interest of the Whole was the chief End of his Legislation and for a Private Interest to give place to a Publick Good is not only reasonable in it self but absolutely necessary for the support of all Communities Thus I have endeavoured to give an Answer to the Doctor 's five Reasons why an Appeal should lie The next thing our Author does is to acquaint us with the Arguments upon which his Lordship grounded his Opinion That an Appeal lay to himself and that as Ordinary He was the proper Judge of Appeals The first is Since a Fellow may appeal there must be a competent Judge of the Appeal and not only no other intermediate Judge can be assign'd but all other Judges are in Causes relating to the College expresly excluded If it be not contrary to the Statutes for a Fellow to appeal there must be a competent Judge of the Appeal But I have endeavoured to prove and hope I have made it clear That a Fellow may not appeal And a farther Argument may be drawn for it from the Founder's not having appointed a Judge to receive and determine an Appeal which without question he would have done if he had not intended there should be no Appeals for he is very particular in directing how and by whom the several Controversies and Differences that may arise within the Society shall be composed All other Judges are excluded by Statute What are they excluded from Why from receiving Appeals If all other Judges besides the Bishop of Exeter had been expresly by Statute excluded from receiving Appeals it would be very strong on his Lordship's side that he might receive them But the Statute that is quoted for this is the Statute de Visitatione which commits to the Bishop of Exeter and his Deputy aâ— praeterea nemini Power to come and
those Seniors was void in like manner I must take notice here by the by That this Suspension of a Fellow ab Officio is a thing not warranted by the Statutes at all Expulsion and College-Censures viz. turning out of Commons and with-holding their Profits for a time we know and admit of but a Suspension ab Officio is intended to disable them from performing their Duty as Fellows which they being sworn to how can the Visitor suspend them unless he could dispense with their Oaths or that he were expresly empower'd by some Statutes of the College so to suspend them And then indeed the Obligaiion of their Oaths would consequentially cease during such Suspension Again as they are sworn to officiate so they are liable to Expulsion if they do not give their Votes c. when required Vid. Stat. de Electione Rector ' c. and consequently they cannot submit to this Suspension without hazarding Expulsion A Bishop's suspending ab Officio within his Diocese cannot be argued from in this Case For there he suspends from that Office or Cure which Himself or his Predecessors conferred and it is his own Cure as well as the Incumbent's and he has Power and does accordingly appoint another to supply it whereas this Suspension is from an Office that he neither did nor could confer nor has he Power to appoint another And therefore his suspending the Fellows ab Officio and not having Power to substitute others in their rooms has actually put the College into a state of Distraction and Confusion nor is there in effect or indeed can be any such thing as good Government in it till these Irregularities are redressed But besides this there are several other things both in Dr. H.'s and the Rector's Case that shew the Injustice of his Lordship's Proceedings against them As for Dr. H. it is pretended That his Benefice is wholly incompatible with his Fellowship The Condition of his Parsonage is That he shall reside upon it four parts in five in the year and the Condition of his Fellowship is That he shall not be absent from his College above fifty days All Livings rated above 8 l. per Annum in any publick Records are inconsistent with a Fellowship and upon this 100l are setled by Act of Parliament c. This is what is urged In the first place this very Question Whether Dr. H. by accepting St. Anne's Living had lost his Fellowship was Statutably determined two years before The Rector in the year 1688. declared That he thought himself bound to pronounce the Doctor 's place void by Cession as inconsistent with his Benefice on the Statute de Promotione c. and that he would do it if it were not forthwith Statutably decided The Doctor hereupon desired That by consent of the Society it might be referred to the Visitor But the Rector thought it more agreeable to the Statutes and more easie to refer it to the Vice-Chancellor And the Doctor 's Councel being consulted declared likewise That the Vice-Chancellor was the sole proper Judge in that Case Whereupon the matter was brought before him who upon a full hearing of both sides declared his Judgment That the said Benefice and Fellowship were consistent according to the plain literal sense of the Statutes which as has been said the Rector and Fellows are sworn to observe and therefore that the Rector could not declare the Doctor 's Place void Upon which the Rector desisted and acquiesced being sworn to stand to the Vice-Chancellor's determination in that Case vid. Stat. de Jurament Rectoris This is the Scandal which the Bishop thought fit to take off from the College as the Author terms it And indeed there needs no more be said upon this matter but that having once been Statutably determined it ought not to havè been moved again But to take off the false Glosses whereby the Author has imposed upon himself and may upon others in this matter I will endeavour to set the Case in its true light By the Statute de Promotione c. it is provided That si aliquis Scholaris c. uxorem duxerit aut Matrimonium vel sponsalia contraxerit aut alicui obsequio officio aut exrcitio per quod à Studio in Vniversitate Oxon ' ultrâ unum mensem in Anno preter quinquaginta dies superius in Statuto de Exitu ab Vniversitate c. pre-exceptos impediatur se commiserit That then immediatè postquâm aliquod istorum Rectori c. cognitum fuerit omnes jus Titulum c. amittat Now the acceptance of an Ecclesiastical Benefice cannot be supposed to be comprehended within this clause 1. Because it is not in propriety of speech either an Obsequium Officium or Exercitium There are many other Imployments that fall naturally under those denominations and therefore the words of the Stat. abundantly satisfied without taking in Ecclesiastical Benefices 2. Because the accepting of an Ecclesiastical Benefice cannot hinder a Fellow of a College from abiding in the University and following his Study there forasmuch as Scholars in either University abiding there for their Study are expresly excepted out of the Stat. of 21 Hen. 8. against Non-residents 3. Because although absence from the College for longer than a Month and Fifty days make a Cession in case of acceptance of an Officium Obsequium c. yet in case of an Ecclesiastical Benefice a years absence is allowed by the same Statute And 4. Because when the Statute provides in what case the Acceptance of an Ecclesiastical Benefice shall be a Cession and in what not regard is had to the value only nor barely to the true intrinsick value neither but to an estimated value as taxed in publicis Regiisve menumentis Which the Author very unfaithfully translates in any Publick Records Whereas if the words were so to be understood it would make strange havock in both Vniversities for whereas there are now many Benefices always reputed consistent with Fellowships because under 8 l. per Annum in the King's Books though to the extended value of 100 l. per Annum and so rated and returned upon the Act of Twelve pence per Pound all these would according to the Author 's novel Interpretation be inconsistent with Fellowships and the Statutes of Exeter-College as well as many others would very imprudently have made that distinction betwixt Benefices consistent and inconsistent since at this rate hardly a Benefice in England would be found to be consistent I call it a novel Intepretation because it really is so the words publicis Regiisve having always both in this and other Colleges been taken to be synonymous and the one explanatory of the other both having been understood of the Records of the Taxation of Benefices in the First-fruits Office which are publica because all persons may have resort to them and Regia because they were made for ascertaining the First-fruits and Tenths which were then vested in the Crown when these