and several others were Expelled as had been done in New-College And the Society of Magdalen College were so averse from the Roman Catholic Religion that not only they got neither Altar or Holy Vestments but none of the Fellows came to Mass and the very Clerks and Choristers would not perform their Offices so that the Visitors were forced to have all Holy Offices performed by their own Priests Ibid. fol. 13. b. they punished the Juniors that refused Punishments inflicted by the Visitors either with striking them out of Commons or Scourging them and one Aldworth Bachellor of Art for Contumelious Usage of Priests and coming in unseasonably to the Mass of the Exequies of King Henry the Sixth was Commanded that every Day he should be at Mass and kneeling at the South Pillar in the middle of the Church should perform his Prayers to the Example of others The same Commissioners found the President of Corpus Christi College Robert Morwent and the Senior Fellow Henry Walsh very observant Id. fol. 276. a. who brought to light the Holy Vestments Cushions Silver Vessels Candlestics and other Ornaments which they had hid in King Edward the Sixth's time and excepting John Juel after Bishop I find none left that College but from the other two besides the Fellows Ejected in Edward the Sixth's time about Eighteen or Twenty this Year and the next were removed §. 2. Cardinal Pools Visitation Anno 1556. Id. fol. 278. b. 3 4 Ph. Mar. Cardinal Pool appointed and entire Visitation of the University of Oxford and the Visitors were James Brooks Bishop of Gloucester Nicholas Ormanet of Padua in good esteem with Julius the Third Pix M. M. n. 22. and Dator to him or Marcellus the Second Henry Cole Doctor of Laws Provost of Eaton Robert Morwent Doctor in Divinity President of Corpus Christi College and Walter Wright Arch Deacon of Oxford These proceeded upon Thirty Two Questions Two Questions proposed by the Visitors First whether their Statutes were observed two of which were the most Material First Whether the Foundations Statutes and Laudable Customs of the University and of every College and Hall were observed by all and singular that were concerned and if it were answered Negatively they were required specially to express which were not observed and for what cause The Second was Second whether after the Reformation any things were used contrary to the Canons c. whether in the time of the Schism any thing was appointed or brought into use which was against the Ancient Canons or Ancient Foundations Statutes Privileges and Customs and to this if they Answered Affirmatively they were to express particularly what they were and for what cause §. 3. The Cardinal appoints Statutes The Visitors following the Example of those that Visited in King Edward the Sixths Reign purged out of all public Libraries all Books which maintained the Protestant Doctrin and those in private Libraries they burnt and either Punished or Expelled the Possessors In E. p. 38. They certified the Cardinal especially of the Defects of the University Statutes and he being Chancellor instead of Mason that laid down the Office sent a Book of Statutes to Mr. Raynolds the Vice-Chancellor and Commanded him that they might be in force till there being joyned with him some in every Faculty they might determin which were to be Antiquated and which to be retained which being so Revised had the Sanction of the Chancellor and Convocation which being strict against the Reformed drove many from the University Our Author Notes that the Lectures were less frequent in this Queens time as well as in King Edward the Sixths and fewer received Degrees which may be Imputed to the Changes made in Religion in their short Reigns but he saith the great care of the Magistrates of the Universities in this Queens Reign was to recover the profits of the Societies and to Repair their Buildings and the Schools In this Third and Fourth Year of King Philip and Queen Mary Cui Papa commisit Visitationem Reformationem Studiorum Generalium Cardinal Pool Visited the University of Cambridge as he was Legate to whom the Pope Committed the Visitation and Reformation of the Universities called General Studies This Visitation the Cardinal performed by Delegates and I find one Robert Brassy Master of Kings College urged that his House was wholly referved to the Discretion of the Bishop of Lincoln not only by the Kings Letters Patents Fox Acts and Monuments Vol. 3. p. 763.766 but also by the Grant of Confirmation of the Bishop of Rome himself under a Penalty if he should suffer any Stranger to Intermedle But the Commissioners Answered that they were fully Authorized for the Order of the matter by the Cardinal out of whose Jurisdiction no place nor person was Exempted So that tho' he persisted the next Day in his Allegation yet he and the Students submitted and were all Sworn and Examined to the Interrogatories propounded to them yet some of them Swore conditionally so as their Faith given to the College were not Impeached thereby Something like the Salvo of some Members of St. Mary Magdalen College that they would yield obedience saving the Right of Dr. Hough which was prudently denyed to be Admitted by the Lords Visitors I now pass to the Reign of Queen Elizabeth SECT III. The Visitations in Queen Elizabeths Reign §. 1. Queen Elizabeths Inhibition ANno 1559. Fol. 281. b. Queen Elizabeth intending to Visit the University of Oxford Writ to the Magistrates of the same not to Elect any heads of Houses Fellows Scholars c. forbidding them to proceed to the Election of any President Fellow or Scholar or of any Officer of the University and forbid all Alienations or Changes of Possessions and all other things to be done by the University except what was necessary for the Cultivating their Lands till the Visitation and this she did because some were so forward to begin a Restoring things to the condition they were in in King Edward the Sixth's time before her Order By which the Queens Authority and Circumspection are clearly discovered §. 2. Queen Elizabeth appoints Visitors After some few Months she appointed her Visitors Wood lib. 1. fol. 282. viz. Richard Cox Bishop of Ely John Williams Baron of Thame but he Died in October John Mason Kt. sometimes Fellow of All-Souls and several Years after Chancellor Thomas Benger Kt. William Kingsmyll Esq John Warner Custos of All-Souls College Walter Wright Doctor of Laws Arch-Deacon of Oxford John Watson Master of Arts Chancellor of St. Pauls London Robert Benger Esq c. to whom she Commands they should Act with all Humanity and abstain from all Roughness These Visitors coming to Oxford cast out of the Chappels of the Colleges and Parish Churches all things that related to Superstitious Worship as it was Styled that is the use of the Roman Worship recalled those that were banished or put out
at St. Mary Magdalen College MR. Thomas Atterbury Messenger was sent with this Order to the College and he returns Answer June the 24th that he came thither that day and enquired for Dr. Pudsey who he understood was Senior Fellow upon the place and told him that he was directed by the Lords Commissioners to apply himself to him as Senior Fellow and desired him to Assemble the rest of the Fellows that he might deliver to them the Orders from the said Lords Dr. Pudsey reply'd That he did not Act as Senior Fellow for that he was made Burser but would endeavor to get him an Answer at Five a Clock as soon as Prayers were done at which time he told him that he had no power to Assemble the Fellows neither could he any ways do it so long as there was a President on the place the Fellows had no Authority to Act There being two or three Fellows with this Doctor one of them asked Mr. Atterbury to see the Orders to which he Answered If he with Dr. Pudsey and the rest would receive them he would deliver them to them but would not Read them So he shewed them the Indorsment that they were directed to them and offered to deliver them to them But they refused saying they had no Authority to call an Assembly neither could they do it therefore it was not fit they should receive them and being desired to tell him if that was their final Answer they said yes so he told Dr. Pudsey he must give a speedy Answer to the Register Mr. Bridgman to whom he sends this account and adds that the Doctor treated him with very good words and Invited him to Dine with them while he stayed in Town Thus far Mr. Atterbury's Letter I now proceed to what was done next §. 7. The Orders of the Lords concerning Mr. Farmer upon the Reading his defence At a Court held c. the 1st day of July 1687. Mr. Anthony Farmer gave in his Answer to the Complaint exhibited against him by the Fellows of Magdalen College which was Read and the Court Ordered to hear the matter at their next meeting when all parties concerned are required to Attend and that Compulsories should be granted to both sides for Witnesses e Registro The Form whereof was as followeth By His Majesties Ecclesiastical Commissioners for Ecclesiastical Causes c. YOu and either of you are hereby required forthwith to Cite and Summon James Fayrer Master of Arts of Magdalen College c. to appear personally before us in the Council Chamber Friday the 29th day of July Instant at Four of the Clock in the Afternoon then and there by vertue of this Citation as Witnesses to give their Testimonies in the matter depending before us betwixt the Fellows of St. Mary Magdalens College in Oxford and one Mr. Anthony Farmer under pain of the Law and Contempt thereof And of the due execution hereof you are to certifie us the day and year aforesaid together with these presents Given under our Seal the 1st day of July 1687. To Thomas Atterbury and Robert Eddows Or either of them July the 1st Their Lordships having been informed Out of the Register that their foresaid Order of June the 22d had not been obeyed Ordered the following Citation By His Majesties Commissioners c. WHereas We thought fit by our Order of the 22d of June last Citation of the Fellows for disobeying the former Order to enjoyn and require the Fellows of St. Mary Magdalen College in the University of Oxford to cause our Orders for the vacating the Election made by them of Mr. John Hough to be President of the said College and for Suspending Dr. Charles Aldworth from being Vice-President and Dr. Henry Fairfax from his Fellowship in the same to be affixed on the Gates of the said College and whereas we are given to understand that our said Order hath not been obeyed by the said Fellows You and either of you are hereby required to Cite and Summon the said Fellows of St. Mary Magdalen College requiring them to appear before Us in the Council Chamber at Whitehall upon Friday the 29th Instant at Four in the Afternoon to Answer the said Contempt and of the due execution hereof you are to certifie Us then and there Given under our Seal the first day of July 1687. Superscribed To Thomas Atterbury and Robert Eddows Or either of them §. 8. During this interim before the Fellows appeared before the Lords Commissioners the King according to former Presidents sends this following Inhibitory Mandate to the Fellows of St. Mary Magdalen College JAMES R. TRusty and Well-beloved Inhibitions sent to the Fellows neither to Elect nor Admit any Fellow or Demy till the Kings further pleasure was known which is according to former Presidents as in due place will be shown We Greet you well whereas We are informed that a Sentence or Decree lately made by Our Commissioners for Ecclesiastical Affairs touching an Election in that Our College hath not been obeyed Our will and pleasure is that no Election or Admission be made of any person or persons whatsoever to any Fellowship Demyship or other place or Office in our said College until We shall signifie Our further pleasure any Statute Custom or Constitution to the contrary notwithstanding And so expecting your ready obedience herein We bid you farewell Given at our Court at Windsor the 18th day of July 1687. In the third Year of our Reign By His Majesties Command Sunderland P. Superscribed To Our Trusty and Well-beloved the Fellows of St. Mary Magdalens College in Our Vniversity of Oxford §. 9. Order to Mr. Atterbury c. to affix the Decree concerning Mr. Hough Dr. Aldworth and Dr. Fairfax upon the College Gates The next Court was held the 29th day of July At which time I do not find that the Fellows of St. Mary Magdalen College did exhibit their Answer why they obeyed not the Order of the Lords Commissioners of the 22d of June nor that their Lordships required it but I find in the Register this following Order to affix the Sentence on the College Gates By His Majesties Commissioners c. WHereas We have thought fit to declare pronounce and decree Out of the Register that the Election made of Mr. John Hough Batchellor in Divinity to be President of St. Mary Magdalen College in the University of Oxford is void and to amove the said Mr. John Hough from the place of President of the said College And whereas We have also thought fit to Suspend Dr. Charles Aldworth from being Vice-President of the same and Dr. Henry Fairfax from his Fellowship in the said College you and either of you are hereby required to cause our Orders Vacating the said Election and Suspending the said Dr. Aldworth and Dr. Fairfax Copies of which under our Seal are hereunto Annexed to be affixed on the Gates of the said College to the end that due notice may be taken
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