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
§. 6. An account of the whole matter as in the Parliament Roll. I shall now give an account of the matter as it appears in the Parliament (d) Rot. Parl. 13 H. 4. N. 15. Roll. First there is the Arch-Bishops Petition to the King that with the Assent of the Lords Spiritual and Temporal and the Commons Assembled in the said Parliament the Schedule Annexed might be confirmed Which Schedule contains the Declaration of King Richard the Second as it is to be found in Mr. Pryn wherein it appears that the ground of the Contest and differences was about a Bull of Exemption pretending to exclude the Arch-Bishop of Canterbury and his Successors and all other Ordinaries and Founders of the said University and Colleges from Visiting and all other Ordinary Jurisdiction which Bull by a venire facias was brought into the Chancery at Westminster and the Chancellor and Proctors shewed a sufficient Warrant under the Universities Seal to produce the Bull in Chancery and to answer there and to do and receive what should be ordered and determined by the late King Richard the Second and his Council as appears by the Records of the Chancery and after the Chancellor and Proctors for themselves and the University submitted themselves in the foresaid matters (a) Ordinationi definis ioni dicti nuper Regis to the Ordinance and Determination of the said King. ☞ The King after mature and fuller deliberation with his Council clearly considering that the Bull was procured in prejudice of his Crown and to the revoking or enervating of the Laws and Customs of his Realm and in favor and emboldning of Heretics and Lollards Murtherers and other Malefactors Ordained and by his Breve or (b) In fide Logeancia dilectione quibus sibi tencbantur Ac sub poena amissionis privilegiorum Universitatis praedictae sub forfeitura omnium aliorum quae sibi foris facere potuerunt ne dictam Bullam in aliqua sui parte exequi seu excercere seu Beneficium quoddam Exemptionis per Bullam illam aliqualiter reportare seu recipere presumerent Mandate Commanded and forbid the Chancellor Masters Doctors and Scholars of the said University on their Faith Allegiance and the love that they ought him and under the penalty of losing the privileges of the said University the forfeiture of all other things which they could forfeit that they presumed not to execute or exercise the said Bull in any part of it or any ways to presume to enjoy or receive any benefit of Exemption by the said Bull But to renounce all the Exemptions and Privileges contained in it before Richard Kendall the Kings Clerk and Notary and should transmit an Instrument for that purpose under the Seal of the said University by the said Clerk under the Penalties aforesaid After which follows the Kings Sentence as before In this part it may be observed how the King discovers his Authority and Prerogative over the University in injoyning them to renounce the Popes Bull and not to Execute c. The King may deprive the University of all privileges for disobedience it under the penalty there mentioned which demonstrates that for contempt and dis-obedience the King may not only Suspend and Deprive any Member of the University but take away all their Privileges c. which would be well considered by those who obstinately refuse to obey the Mandate of a King of England §. 7. The account of the latter Visitation Then follows the account of the later Visitation of the Arch-Bishop in the 12th 12. H. 4. of Henry the Fourth as before related where Richard Courtney the Chancellor and Benedict Brent and John Birch the Proctors opposed him and he and the University submited themselves to the Arbitrament Judgment Ordination and Decree of the King and the King Summoned them to appear before him at Lambeth upon the 17th of September where hearing all things and having consideration of the Submission made to King Richard and the Ordination Judgment and Determination of the same the King Confirmed and Ratified the same And further ordered if they obeyed not the Arch-Bishop c. all their Franchises Liberties and all the Privileges of the same University should be seized into the hands of the King and his Heirs till they performed it and the Chancellor and Vice-Chancellor and Proctors of the University for the time being and their Successors and the University shall pay to the King and his Heirs 1000 l. Then follows that this Schedule being seen and examined and understood with mature and diligent deliberation Note here the Kings peculiar power in passing an Act of Parliament The King in full Parliament affirmed and declared that all and every thing contained in the same Schedule were done Arbitrated Ordered Considered Decreed and Adjudged by him And the Lords Spiritual and Temporal and the Commons in the said Parliament who had full deliberation likewise of the same approved ratified and confirmed it Upon the whole matter of this great contest about the Arch-Bishops Visitation I think the King and the Parliament were at that time the more Inclined to confirm the Arch-Bishops power because that kept the Visitatorial power within the Kings Dominions and Excluded Exemptions which the State of England was rarely inclined to favor as being mostly as prejudicial to the Crown as the Bishops And Wickliffs Doctrin spreading the King was more willing the Arch-Bishop should Visit the University because it was his proper Office to see to the preservation of the Establish'd Religion and if the University had been left to the Visitation of the Chancellor the opinion of Mr. Wickliff might have the more encreased since the temper of the Members might have been changed from the Doctrin professed since so many in the University were then said to have embraced it §. 8. The reasons why the Author hath given so large an account of this I have insisted the longer upon this particular for two Reasons first to shew that the Government ordering and reforming of Universities were then Judged to be of Ecclesiastical Cognizance especially in those matters which appertain to the Doctrins taught in them which even in their Philosophical Disputes in some measure effected Religion even the taking of Degrees except in the faculty of Physic was in Ordine ad Spiritualia as appears in those Constitutions which prohibit any from having Benefices but such as had taken Degrees in Universities a further Illustration of the former of these Inferences I shall clear when I speak of Bishop Rippingdons Visitation Secondly The misapplication of Mr. Pryn. To shew the mis-application of Mr. Pryn who finding by the Transactions of King Richard the Second and King Henry the Fourth and those of King Charles the First concerning Arch-Bishop Lauds Visitation that those Kings determined the matter in favor of the Arch-Bishops thereby would Infer that the Visitation of the University of Oxford appertained to the Black
reduced to this unfortunate necessity of either disobeying his Will or violating their Consciences by a notorious perjury §. 13. Some Clauses of particular Statutes to which the foregoing Case Relates IN the Statute concerning the Election of a President his Character is thus described That he must be a Man of good Reputation and good Life of approved understanding good manners and temper and discreet provident and circumspect both in Spiritual and Temporal Affairs In the same Statute the Oath which every Fellow is obliged to take before he can give his voice in the Nomination of a President is this That he will name one or two of the Fellows of St. Mary Magdalen College or of those who have formerly been Fellows there and have left the place upon a Legal and creditable account Or that he will name one or two of the Fellows of St. Mary Winchester College commonly called New-College in Oxford or of those who have formerly been Fellows there and have left the place upon a creditable account After this the Thirteen Senior Fellows Swear that of the two that are nominated they will with all speed Elect one to exercise the Office of President whom in their Consciences they think most proper and sufficient most discreet most useful and best qualified for it without any regard to love hatred savor or fear c. As in the forementioned Statute is more largly exprest Part of that Oath which all Persons take when they are admitted actual Fellows runs thus ITem I do Swear that I will not procure any Dispensation contrary to my foresaid Oaths or to any part thereof nor contrary to the Statutes and Ordinances to which they relate or any of them nor will I endeavor that such Dispensation should be procured by any other or others publickly or privately directly or indirectly And if it shall happen that any Dispensation of this sort shall be procured or freely granted or obtained of what Authority soever it be Whether in General or particular or under what Form of words soever it shall be granted I will neither make use of it nor in any sort consent thereunto So help me God. Endorsed on the back of this April the 24th 1687. The Case within Stated was then Publicly Read by the Vice-President of St. Mary Magdalen College in Oxford at a Meeting of the Fellows and Generally approved of in the Presence of me James Almont Public Notary §. 14. The Address of the Fellows of St. Mary Magdalens College to his Majesty sent to my Lord President to be delivered to the King. May it please your Most Excellent Majesty VVE your Majesties most humble and most dutiful Subjects the Fellows of St. Mary Magdalen College in Oxford being deeply afflicted with the late sence of your Majesties heavy displeasure grounded as we in all reason humbly presume upon the most unkind mis-representation of our actions in relation to the Election of a President into your Majesties said College do humbly beg leave to prostrate our selves at your Royal feet offering all real Testimonies of Duty and Loyalty And as we have never failed to evince both our principles and practices to be truly Loyal in obedience to the Commands of your Royal Brother and your Sacred Self in matters of the like Nature So whatsoever way your Majesty shall be pleased to try our readiness to obey your Royal pleasure in any instances that does not interfere with and violate our Consciences which your Majesty is Studious to preserve we shall most gladly and effectually comply therewith A stubborn and groundless resistance of your Royal Will and Pleasure in the present and all other Cases being that which our Souls eternally abhorr as becomes Your Majesties most Dutiful and Obedient Subjects Alex. Pudsey D. D. Tho. Stafford L. L. D. Jo. Rogers B. D. Main Hammond B. D. Rob. Almont B. D. Ja. Bayley M. A. Rich. Strickland B. D. Hen. Dobson M. A. Ja. Fayrer A. M. Jo. Harwar A. M. Geo. Hunt A. M. W. Cradock M. A. Jo. Gilman M. A. Ch. Penyston M. A. Hen. Holden M. A. John Smith D. D. Tho. Bateman M. A. John Davys M. A. Edw. Yerbury M. A. Rob. Thornton M. A. Rob. Hyde M. A. Robert Holt M. A. Stephen Weelks M. A. Franc. Bagshaw M. A. SECT II. The Proceedings before the Lords Commissioners for Ecclesiastical Affairs §. 1. HAving thus far related what was Transacted betwixt His Majesty and the forementioned Lords and the Vice-President and Fellows of St. Mary Magdalen College His Majesty thinking it expedient that they should be called to an account for their disobedience ordered the Lords Commissioners for Ecclesiastical Causes to proceed against them Poceedings of St. Mary Magdalen College in Oxford Extracted out of the Register-Book from the 28th of May May 28. 1687. to the 5th of August By His Majesties Commissioners for Ecclesiastical Causes and for the Visitation of the Vniversities and of all and every Cathedral and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Incorporations or Foundations and Societies COmplaint having been made unto Us that the Vice-President and Fellows of St. Mary Magdalen College in the University of Oxford have refused to comply with His Majesties Letters Mandatory for Electing and Admitting Mr. Anthony Farmer President of the said College in the room of Dr. Clark Deceased and that notwithstanding His Majesties said Letters they have Elected Mr. John Hough President of the said College You and either of you are hereby required to Cite and Summon the said Vice-President and Fellows requiring them or such of the said Fellows as they shall Depute in their behalf to appear before Us in the Council Chamber at Whitehall upon Munday the Sixth of the next Month of June at Four in the Afternoon to Answer to such matters as shall be objected against them concerning the premisses And of the due execution hereof you are to certifie to Us then and there Given under our Seal the 28th of May. 1687. To Thomas Atterbury and Robert Eldows Or either of them §. 2. The Answer of the Vice-President and Deputed Fellows c. Ex Registro Upon June the 6th the Vice-President and Deputies of the Fellows appear and do desire time which is allowed till this day Sennight June the 13th they attend with their Answer which being Read the Lords took time till the 22d Instant for the further consideration of the matter The Answer of the Vice-President and other Fellows of St. Mary Magdalen College in Oxon whose Names are hereunto subscribed being Deputed by the rest of the Fellows of the said College to the Question proposed by the Right Honorable and Right Reverend the Lords Commissioners for Ecclesiastical Causes c. Why they did not obey His Majesties Letters requiring them to Elect and Admit Mr. Anthony Farmer President of the said College THe said Vice-President and other deputed Fellows answer and say That the said College of St. Mary Magdalen in Oxon is a
Body Corporate governed by Local Statutes granted and confirmed to them by His Majesties Royal Predecessor King Henry the 6th for him his Heirs and Successors under the Great Seal of England which are also since confirmed by several other Letters Patents of others His Majesties Royal Predecessors under the Great Seal of England That by the Statutes of the said College to the observation of which each Fellow is Sworn it is ordered that the person to be Elected President thereof shall be a Man of good Life and Reputation of approved Understanding and of good Manners and Temper and Discreet Provident and Circumspect both in Spiritual and Temporal Affairs And at the time of the Election of a President the said Fellows are bound by the said Statutes to take an Oath that they shall nominate none to that Office but such as are or have been Fellows of the said College or of New-College in Oxford and if they are not actually Fellows at the time of Election that they be such as have left their Fellowships in those respective Colleges upon creditable accounts And when two qualified persons shall be nominated at the time of Election by the greater number of all the Fellows to the said Office of President The thirteen Seniors also swear that they will Elect one of them whom in their Consciences they think most proper and sufficient most discreet most useful and best qualified for that place without any regard to love hatred favor or fear and every Fellow when he is first admitted to his Fellowship in the said College Swears that he will inviolably keep and observe all the Statutes and Ordinances of the College and all and every thing therein contained so far as does or may concern him according to the plain litteral and grammatical sense and meaning thereof and as much as in him lies will cause the same to be kept and observed by others And that he will not procure any Dispensation contrary to his aforesaid Oaths or any part thereof nor contrary to the Statutes and Ordinances to which they relate or any one of them nor will he endeavor that such Dispensation shall be procured by any other or others publickly or privately directly or indirectly and if it shall happen that any Dispensation of this sort shall be procured granted or obtained of what Authority soever it be whether in general or particular or under what Form of words whatsoever it shall be granted that he will neither make use of it nor in any sort consent thereunto all which several Oaths follow in express words at the End of this their Answer That upon notice of the Death of Dr. Clark late President of the said College the Vice-President called a Meeting of the said Fellows in order to appoint a day for Election of a new President and the 13th day of April last was the time prefixt with power to prorogue the same as they should see cause until the 15th day of the same Month beyond which time they could not Statutably defer their Election and in pursuance thereof a Citation or Praemonition was fixed upon the Chappel-door of the said College signifying the same and by which the absent Fellows are summoned to repair home to the said Election as the Statute in that case requires And the said Vice-President and other deputed Fellows further say that upon the 11th day of the said Month of April they received His Majesties Letters requiring them to Elect and Admit the said Mr. Anthony Farmer to be President of the said College But forasmuch as the said Vice-President and the other Fellows apprehended the Right of Election to be in themselves and did believe His Majesty never intended to dispossess them of their Rights And forasmuch as the said Mr. Farmer had never been Fellow either of Magdalen College or of New-College in Oxford and had not those qualifications which in and by the Statutes of the said College are required in the Character of a President as they in their Consciences did and do verily believe and in regard they could not comply with His Majesties Letters without the violation of their Oaths and hazard of that Legal Interest and property whereof they are by the said Statutes possest and which by their Oaths they are bound to maintain They represented the same by their Humble Petition to His Majesty and having deferred their Election of a President to the last day limited by their Statutes they then proceeded to Election And having first Received the Blessed Eucharist and taken the said Oaths as the Statutes require to choose a person so qualified as is before exprest they did Elect the Reverend Mr. John Hough Batchellor in Divinity and one of the Fellows of the said College a person every way qualified to be their President who has been since Confirmed by the Lord Bishop of Winchester their Visitor as the Statutes of the said College direct And that they might not lie under His Majesties displeasure by their proceedings on the 19th day of the said Month of April they made humble Representation thereof to His Majesty by his Grace the Duke of Ormond Chancellor of the University of Oxford setting forth their indispensable obligation to observe their Founders Statutes All which matters the said Vice-President and other deputed Fellows do humbly offer to your Lordships consideration and pray to be dismissed with your Lordships favor Charles Aldworth Vice-President John Smith D. D. Mainwaring Hammond B. D. Henry Dobson Dean of Artes. Ja. Fayrer A. M. §. 3. To this were subjoyned the following Statutes for regulating the Election of a President De numero Scholarium Electione Praesidentis IN primis siquidem ut Sacra Scriptura seu pagina scientiarum omnium aliarum Mater Domina sua liberius dilatet tentoria cum ea utraque militet Philosophia The College to consist of one President and 40 poor and indigent Scholars Clerks praefatum nostrum Collegium Oxoniae in de numero unius Praesidentis Quadraginta pauperum indigentuim Scholarium Clericorum in dictis scientiis studere debentium subsistere Statuimus etiam Ordinamus sic ipsum volumus Deo propitio perpetuò permanere Praeter quem numerum sint alii Triginta pauperes Scholares And 30 poor Schollars called Demys vulgariter vocati Demyes Grammaticalia Logicalia vel Sophisticalia diligenter addiscentes ut cultus Dei a quo bona cuncta procedunt amplius augeatur melius sustentetur Volumus quod praeter dictos numeros Scholarium sint etiam quatuor Presbyteri Capellani And 4 Presbyters Chaplains 8 Clerks and 16 Choristers octo Clerici Sexdecim Choristae Cappellae dicti Collegii in Divinis servitiis deservientes Proviso quod de dicto numero quadragenario ex speciali providentia Praesidentis Two or 3 of the 40 to be Students of the Canon and Civil Laws and as many in Physic Vice-Praesidentis Decanorum trium aliorum Seniorum duo
commendando ipse vero Episcopus dictus Winton seu ipsius Vicarius aut Custos Spiritualitatis ejusdem cui dictam praesentationem fieri continget personam sic Electam absque morae dispendio sine processu judiciario absque impugnatione Electionis five Nominationis praedictae dicti Collegii praeficiat extrajudicialiter in Praesidentem Si autem Dominus Episcopus Winton aliusve ex praedictis personis ad quem dicti Praesidentis praesentationem spectare volumus ut praefertur per quinque dies a tempore Praesentationis praedictae sibi factae continue numerandos noluerit personam in forma praedicta Electam praeficere in Praesidentem ex tunc Electus hujusmodi eo ipso praesentis nostri Statuti vigore in Praesidentem dicti nostri Collegii sit praefectus pro vero legitimo perpetuo Praesidente inibi habeatur Praesidentem vero hujusmodi quemcunque Statim post praefectionem suam si hujusmodi praefectio tunc fiat primo coram illo qui ipsum praefecerit in Praesidentem subsequenter in praesentia omnium sociorum ipsius Collegii praesentium antequam quoquo modo administrat tactis inspectis per ipsum Sacrosanctis Evangeliis subscriptum praestare volumus juramentum Juramentum admittendorum in veros Socios EGo N. Juro ad haec Sancta Dei Evangelia per me Corporaliter tacta The Oath of a President or Fellow quod omnia Statuta Ordinationes hujus Collegii edita edenda per Reverendum in Christo Patrem Gulielmum Waynfleet Fundatorem praedictum ac omnia singula in eisdem Contenta quatenus personam meam concernunt vel concernere poterint secundum planum literalem Gramaticalem sensum intellectum inviolabiliter tenebo etiam observabo quantum in me fuerit teneri faciam ab aliis etiam observari c. Item quod non impetrabo Dispensationem aliquam contra juramenta mea praedicta vel aliquam particulam eorundem nec contra Ordinationes Statuta de quibus praemittitur aut ipsorum aliqua nec dispensationem hujusmodi per alium vel alios publice vel occulte impetrari vel fieri procurabo directe vel indirecte si forsan aliquam dispensationem hujusmodi impetrari aut gratis concedi aut acquiri contigerit cujuscunque fuerit Authoritatis seu si generaliter seu specialiter aut alias sub quacunque verborum forma concessa sit ipsa non utar nec eidem consentiam quovismodo sicut Deus me adjuvet haec Sancta Dei Evangelia Carolus Aldworth Vice-Praeses Johannes Smith S. T. P. Mainwaringus Hammond S. T. B. Henricus Dobson Artium Decanus Jacobus Fayrer Art. Mag. §. 4. Out of the Register At a Court held c. June the 13th 1687. The Vice-President and Deputies of St Mary Magdalen College in Oxford attend with their Answer which was Read and they being withdrawn the Lords Commissioners thought fit to put of the further consideration of that matter till the 22d Instant at Ten in the Morning at which time they were required to appear At a Court held c. the 22d day of June 1687. The Vice-President and the Fellows of St. Mary Magdalen College attend and are asked whether they had any thing else to offer by way of Answer Upon which they gave in a Paper containing an account of several misdemeanors committed by Mr. Anthony Farmer which being Read the Lords Ordered Mr. Farmer should have a Coppy of the said Paper and appointed to hear him upon it at the next meeting requiring some of the Fellows of the said College to attend at the same time and as to the business of the said College their Lordships made this following Order By His Majesties Commissioners c. VVHereas it appears unto Us The Lords Commissioners pronounce the Election of Mr. Hough void that Mr. John Hough Batchellor in Divinity has been unduly Elected President of St. Mary Magdalen College in the University of Oxford We have thought fit upon mature consideration thereof That the said Election be declared void and that the said Mr. John Hough be amoved from the said Presidentship And accordingly We do hereby declare pronounce and decree That the said Election is void and do amove the said Mr. John Hough from the place of President of the said College Given under our Seal the 22d of June 1687. §. 5. The Sentence of Suspension against Dr. Charles Aldworth and Dr. Henry Fairfax At the same Court these two following Orders were made By His Majesties Commissioners c. VVHereas Charles Aldworth Doctor of Laws Vice-President of St. Mary Magdalen College in the University of Oxford and the Deputies of the Fellows of the same have been convened before Us for their Contempt in not obeying His Majesties Letters Mandatory for Electing and Admitting Mr. Anthony Farmer President of that College And the said Dr. Aldworth and Deputies having been heard thereupon We have thought fit to declare pronounce and decree That the said Dr. Charles Aldworth shall for the said Contempt be suspended from being Vice-President of the said College and also that Henry Fairfax Doctor of Divinity one of the Fellows of the said College shall for the said Contempt be suspended from his Fellowship and accordingly We do hereby Suspend the said Dr. Charles Aldworth from being Vice-President of the said College and the said Dr. Henry Fairfax from his Fellowship in the said College Given under our Seal the 22d day of June 1687. By His Majesties Commissioners c. WHereas We have thought fit to declare The Order of the Lords Commissioners for the publication of the former decrees pronounce and decree that the Election made by you 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 thought fit to Suspend Dr. Charles Aldworth from being Vice-President of the same and D. Henry Fairfax from his Fellowship in the said College We do hereby enjoyn and require you to cause our Orders vacating the said Election and suspending the said Dr. Aldworth and Dr. Fairfax Copies of which Order under our Seal are hereunto annexed to be affixed on the Gates of the said College The Fellows Answer was not Read till the 5th of August to the end that due notice may be taken of the same And you are to Certifie Us under your Hands and Seals of the due Execution of what is hereby required Given under our Seal the 22d day of June 1687. Superscribed To the Fellows of St. Mary Magdalen College in the Vniversity of Oxford The Fellows studying all the ways they could to evade and refuse Obedience to the Kings Mandates or the Lords Commissioners Orders did it colourably in this particular as will appear in this following Letter §. 6. Mr. Atterbury's Letter concerning his reception
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
of the same and of the due Execution hereof you are to certifie unto Us at the next Court. Given under Our Seal the 29th day of July 1687. To Thomas Atterbury and Robert Eddows Or either of them §. 10. The Answer of the Fellows why they obeyed not the order of the 22d of June At the Court held c. the 29th of July 1687. Mr. Anthony Farmer was heard upon the complaint exhibited against him by Magdalen College I find nothing more relating to him entred in the Register therefore since the Information against him and his defence are to be reckoned among the Attentatar as the Civilians Style them and are no ways material to the discussing or clearing the Authority of His Majesty or the Lords Commissioners I shall wholly omit any account of them and proceed to what was done in the Court. The Answer of the Fellows of St. Mary Magdalen College in Oxon whose Names are hereunto subscribed being Deputed by the rest of the Fellows of the said College made to the Citation of the Right Honorable the Lords Commissioners of Ecclesiastical Affairs c. THe said Fellows on the behalf of themselves and the rest by whom they are Deputed do Answer that they humbly conceive that the Order mentioned in the said Citation was not Legally served upon them for that Dr. Alexander Pudsey only was desired by the Messenger to call a Meeting of the Fellows to publish the said Order which he declared he could not do for that he was Burser of the said College and had no Authority to do the same nor was the said Order particularly directed to him but to the Fellows in General as the Messenger there declared And when one of the Fellows desired of the Messenger to have it Read the said Messenger refused it saying his directions were to Communicate it to the Fellows at a Meeting whereas the said Fellows cannot meet together till they are Statutably called Saving which Declaration of the said Messenger the Respondents were wholly Ignorant of the Contents of the said Order until the forementioned Citation of the First of July was served upon them And that in the ordinary course of Law all Decrees and Orders of Courts are served and executed by the Ministers and Officers of the said Courts but not by any person or persons upon or against themselves as they conceive the present Case is Alexander Pudsey Tho. Bayley Tho. Ludford Aug. 5th the Deputies of the Fellows attend Out of the Register and give in their Answer in Writing as before recited which being Read were dismissed SECT III. The Transactions from the Mandate for the Bishop of Oxford to the Lords Commissioners Visiting St. Mary Magdalen College §. 1. The Kings Man late to the Fellows c. to Admit the Bishop of Oxford President THe King being willing to place such a President over the College as by the Character he bore in the Church being Bishop of the Diocess might be an Honor to the Society was Graciously pleased to grant the following Mandate JAMES R. TRusty and Beloved 14th Aug. 1687. We Greet you well Whereas the place of President of that Our College of St. Mary Magdalen is now void Our Will and Pleasure is and We do hereby Authorize and Require you forthwith upon receipt hereof to Admit the Right Reverend Father in God Samuel Lord Bishop of Oxon in the said place of President to hold and enjoy the same with all the Rights Priviledges Profits Emoluments and Advantages thereunto belonging any Statute or Statutes Custom or Constitution to the contrary in any wise notwithstanding wherewith we are Graciously pleased and do accordingly hereby Dispense herein We bid you farewell Given at our Court at Windsor the 14th day of August 1687. In the Third Year of Our Reign By His Majesties Command Sunderland P. Superscribed To Our Trusty and Well-beloved the Senior Fellow of St. Mary Magdalen College in Our Vniversity of Oxford or in his Absence to the Senior Fellow resideing there and to the rest of the Fellows of the said College Note that this Mandate was sent after the hearing of Mr. Farmers cause before the Lords Commissioners whose Accusation is Printed in a late Book without his Reply on purpose to vindicate the proceedings of the Electors of Dr. Hough but since there was no Juridical Sentence upon it and the stress of the Case lies not upon his qualifications I shall pass it by and next insert my Lord Presidents Letter pursuant to the Mandate §. 2. My Lord Presidents Letter to the Senior Fellow of the College c. Bath August the 21st 1687. SIR THe King having been pleased by his Letter Mandatory to require the Fellows of St. Mary Magdalen College to Admit my Lord Bishop of Oxford President of that College His Majesty Commands me to let you know that Immediately upon receipt hereof he would have you Assemble the Fellows and Communicate to them His Majesties said Letters and I am further Commanded to tell you that His Majesty expects ready obedience to be paid to his pleasure herein I desire you will send me an Account of your Proceedings as soon as you can that I may acquaint His Majesty with it I am SIR Your Affectionate friend and Servant Sunderland P. To the Senior Fellow of St. Mary Magdalen College To this Dr. Pudsey returned the following Answer §. 3. The Answer of Dr. Pudsey the Senior F 〈◊〉 llow to the foresaid Letter May it please your Lordship UPon Saturday the 27th of August last at Night I received His Majesties Letter Mandatory together with your Lordships In behalf of the Right Reverend Father in God Samuel Lord Bishop of Oxon which I the next Morning Communicated to the Fellows and Read them in the Chappel with all deference to His Majesty and your Lordship the Answer that was given to me was that they humbly conceived the place of the President to be full And because your Lordship requires an Account of the Proceedings of the Society in this matter I send their own words Unanimously agreed upon and in Compliance to your Lordship with all Celerity of dispatch My request is that your Lordship would accept of this Letter with Candor and favorably Interpret it as to the point of Obedience and that I may have the Honor of being accounted Mag. Coll. Oxon. Aug. 28th 1687. Your Lordships most faithful and most humble Servant Alexander Pudsey Subscribed To the Right Honorable the Earl of Sunderland Principal Secretary of State. By this Letter is appears that the Fellows persisted in their obstinacy in not paying obedience to the Kings Second Mandate for admitting the Bishop of Oxford their President §. 4. The Coppy of the Bishop of Oxfords Letter to the Senior Fellow of St. Mary Magdalen College in Oxon or in his absencé to the Senior Fellow residing there Upon the Receipt of the Kings Mandate the Bishop Writ the following Letter to the Senior Fellow of St. Mary Magdalen
prove like the Sin of Witch-craft but the latter will be better accepted than Sacrifice because in that you only offer up a beast to God but in this you Sacrifice your Passions you slay them and offer them up to Gods service Remember Error seldom goes in Company with Obedience and that none are so likely to find the way to Eternal happiness in the end as they who follow the Conduct of their Superiors from the beginning not with Eye service as Men pleasers but in singleness of Heart Fearing God and the King and whatsoever you do do it heartily as unto the Lord and not unto us Men And the Lord give you understanding in all things The Speech being ended the Lords adjourned till the Afternoon to the Common Room of the College FRIDAY Afternoon AT which time the Court being sat Dr. Hough in behalf of himself and the Fellows demanded a Copy of their Lordships Commission which was denyed him and the Court ordered to proceed and then admonished the Fellows to produce the Registery of the College Affairs and also to give an account of what Leases had been Lett for two Years last past together with the Benefactions given to the College and likewise ordered them to bring in the Buttry Book to Morrow Morning to which time they adjourned §. 3. SATVRDAY Morning October 22d 1687. DR Hough was called in and it appearing to their Lordships that his Election to the Presidents place was made null and void by a Sentence given by the Lords Commissioners for Ecclesiastical Causes and that he the said Dr. Hough had legal notice of the same but notwithstanding the said Sentence he had and did still refuse to submit thereunto The Court ordered him forthwith peaceably to depart the College and deliver up the Keys of the Lodgings and struck his Name out of the Buttry-Book and having so done declared to the Fellows that he was Actually Expelled and admonished them not to own him as their President Then the Court askt the Fellows whether they would amdit the Bishop of Oxon their President according to the Kings Mandate but all of them refused except Mr. Charnock but said they would not oppose it Then adjourned till the Afternoon SATVRDAY Afternoon DR Hough came into the Court and made his protestation against the proceedings and appealed from the same as Illegal Unjust and Null as he asserts Whereupon there was a Tumultuous Hum or Acclamation made by the by-standers which gave the Court some disturbance in so much that they thought fit to bind over Dr. Hough in 1000 l. and two Sureties in 500 l. each to appear at the Kings Bench and again admonished Dr. Hough to quit the College which he accordingly did that Night Then adjourned to Tuesday Morning Thus far out of the Register But because the Paper sent with the Letter to the Earl of Sunderland is more full in several particulars I shall Insert it after the following Letter together with such Additions as the Bishop of Chesters own Journals afford me §. 4. The Lords Commissioners sent the Following Letter to my Lord President Dated 22d October 1687. MY LORD BY His Majesties Messenger See the Answer to this after the Programma §. 6. we have sent your Lordship a particular account of our proceedings here to which we humbly refer in which your Lordship will perceive the Temper of that Society My Lord we hope your Lordship will easily believe that we are not unwilling to do any thing which may vindicate the Kings Honor and Authority but we humbly desire to be well advised by your Lordship in the Methods of it for we are now a little at a stop by reason of the Bishop of Oxon's not appearing in Person having no Power as we humbly conceive either by the Kings Mandate or by our Commission to Admit him by Proxy His Majesties Letter Mandatory for the same being directed to the College who all but two or three do as yet refuse it We therefore humbly Pray your Lordship to dispatch His Majesties Mandate directed to Us to Admit the Bishop or his Proxy or that you would please to give us some other Directions such as your Lordship in your Great Wisdom shall Judge more expedient We do crave leave also to Intimate to your Lordship that it is our humble Opinion that We cannot proceed any further then Expulsion against Dr. Hough which your Lordship will find already done according to the Power we have by the Commission and we humbly Pray your Lordships Pardon and further Commands which shall be readily obeyed by His Majesties most Dutiful Subjects and Your Lordships most humble Servants Tho. Cestriensis R. Wright Tho. Jenner My Lord since the Writing of this Letter We have reason to believe we shall have an entire submission from the College on Tuesday next for Dr. Hough since his Expulsion hath left the College and taken Lodgings in the Town §. 4. The account sent by the Lords Commissioners of their proceedings till Saturday night Octob. 22. Oxford the 22d Octob. 1687. HIs Majesties Commissioners for Visiting the College of St. Mary Magdalen in Oxford Note that what is conteined betwixt these is what is in the Bishop of Chesters and Dr. Thâ—mas Smiâ—hs Diary and not in the Account sent by the Lords Commissioners Friday Afternoon being Yesterday viz. Thursday the 20th of October come at the time appointed viz. Friday Octob. 21. for the President Fellows and Schollars thereof to appear their Lordships took upon them the Execution thereof My Lord Bishop of Chester made a Speech to them upon the occasion of the Visitation and after an adjournment of the same to the Afternoon there then appeared Dr. Hough and several of the Fellows and most of the Schollars and Officers of the College Dr. Hough objected to the shortness of the time from the notice of the Visitation and prayed a Copy of the Commission and time to consider of it which was over ruled by the Court saying that if he and they could take any advantage from the Commission he hoped the King and their Lordships did not intend to bar them of it And in his own Name and the greatest part of the Fellows said that he submitted to the Visitation so far as was consistent with the Laws of the Land and the Statutes of the College and no further and that he could suffer no alteration of the Statutes neither by the King nor any other Person for which he had taken an Oath from which he could not swerve and thereupon Quoted the Statutes confirmed by King Henry the Sixth and their Oath that they should submit to no Alteration made by any Authority The Oxford Relation saith that my Lord Chief Justice answered you cannot Imagin that we Act contrary to the Laws of the Land and as to the Statutes the King has dispensed with them Do you think we come here to Act against Law Then the Sentence given the 22d Day of June 1687.
Against Dr. Hough's Election and for the removing him from the Office of President of the College was Read and he was asked whether he knew of it being given against him He replyed he had notice of it but said he was no party to it and so was advised it did not any wise concern him The Sentence likewise against Dr. Aldworth and Dr. Fairfax for suspending them was Read and the Petition of Dr. Aldworth Dr. Fairfax and others delivered to my Lord President on the Tenth of April last being about Five Days before their Election of Dr. Hough was also Read to them to which was replyed that they had no * It was Answer sufficient to have obliged them not to have proceeded to Election till they had particularly made out their Information against Mr. Farmer Answer from my Lord President but that the King expected to be obeyed and they receiving no other Mandate than that for Admitting Mr. Farmer they proceeded to Elect Mr. Hough Then after their Lordships orders to them to bring in some Books viz. The Register and other Papers relating to the Revenues and Government of their College which the Doctor promised they should have next Morning they adjourned to Eight of the Clock this Morning SATVRDAY Octob. 22d VVHo being met and such Books brought in Dr. Hough being called in The words of the Account are their Lordships proceeded and proposed these two Questions to Dr. Hough whether he was willing c. the Bishop of Chester told him Doctor here is a Sentence under Seal before us of the Kings Commissioners for Visiting the Universities by which the Election to the Presidentship of Magdalen College is declared Null and Void which you heard Yesterday Read and of which you Confess your self to have Legal notice before by being fixed upon the Doors This Sentence and the Authority by which it was passed you have contemned and in contempt thereof have kept Possession of the Lodgings and the Office of President to this day to the great contempt and dishonor of the King and his Authority Are you yet willing upon better and second thoughts to submit to the Sentence passed by their Lordships against you or not To which he Answered that the Decree of the Commissioners is a perfect Nullity from beginning to End as to what relates to him he having never been Cited nor ever appeared before them either in his Person or Proxy Besides his Cause it self was never before them Their Lordships never enquiring or asking one question concerning the Legality or Statutableness of the Election These Arguments will particularly be answered for which reason he is informed that That Decree was of no validity against him according to the Methods of the Civil Laws but if it had he was possessed of a Freehold according to the Laws of England and Statutes of the Society having been Elected as Unanimously and with as much Formality as any of his Predecessors Presidents of the said College and afterwards Admitted by the Bishop of Winchester their Visitor as the Statutes of the College required and therefore he could not submit to that Sentence because he thought he could not be deprived of his Freehold but by Course of Law in Westminster-Hall or by being some way Incapacitated according to the Founders Statutes which are Confirmed by King James the First Second Question put to Dr. Hough was whether he would deliver up the Keys and Lodgings as by a Clause in the Statutes of Admission he is tyed to do to the use of the President who hath the Kings Letters Mandatory to be Admitted into that Office. To which he Answered that there is not neither can there be any President whilst he Lives and obeys the Laws of the Land and the Statutes of the place and therefore doth not think it reasonable to give up his Right nor the Keys and his Lodgings now demanded of him He takes the Bishop of Winchester to be his Ordinary Visitor and yet he would deny him the Keys he takes the King to be his Extraordinary Visitor as he believes but it had been controverted whether the King had Power to Visit as in Coveny's Case 4 o. Eliz. and looked upon their Lordships Commanding it to be a requiring him to deliver up his Office. He said he had appeared before their Lordships as Judges and that he now Addressed himself to them as Men of Honor and Gentlemen and did beseech them to represent him as Dutiful to His Majesty to the last degree as he always will be where his Conscience permits to the last Moment of his Life and when he is Dispossest here he hopes they will intercede that he may no longer lie under His Majesties displeasure or be frowned upon by his Prince which would be the greatest affliction that could befall him in this World. Then their Lordships admonish'd him three times to depart peaceably from the Presidents Lodgings and to Act no more as President or pretended President of the College in Contempt of the King and his Authority which he refusing to do Mr. Lee Proctor to the Lords accused his Contumacy and prayed the Judgment of the Court The words of the Account are then the Lords proceeded to give Judgment against him viz. That he forth with c. which was thus pronounced The Lords Commissioners for Ecclesiastical Causes and for Visiting the Universities have Decreed the Presidents place of this College to be Null and Void Therefore we by the Authority to us committed do Order and Command you Dr. Hough forthwith to quit all pretensions to the said Office upon which they Ordered his Name to be struck out of the Buttry-Book which was accordingly done and admonished the Fellows and other Members of the Society no longer to own him as their President Then the Kings Mandate for Admitting the Bishop of Oxford was Read See for this sect 2. § 3. and they were then Ordered to withdraw and being soon after called in again the Question was put to the Fellows singly one by one whether they would Admit the Bishop of Oxford their President according to the Kings Mandate Dr. Pudsey said he would submit to the King and would be by but could not Act being Burser Dr. Thomas Smith replyed From Dr. Smiths Diary See his other Answer §. 10. My Lords Commissioners if it be the Kings pleasure to make the Bishop of Oxford President of this College and your Lordships Acting by that Authority have declared and made him such I do because I must submit I make no opposition Mr. Charnock said he was ready to obey the Kings Mandate all the rest of the Fellows refused to receive him as President as being against their Statutes and Oaths and that which would make them guilty of Perjury All whose Verbal Answers were taken in Writing by the Lords Commissioners and their Lordships after some time said if you think we have not taken the Answer right put them in Writing
your selves against the Afternoon to which time they adjourned the Court. The Court being Sate in the Afternoon Afternoon Dr. Hough appeared with a great Rabble of followers and after a short time said whereas your Lordships this Morning have been pleased pursuant to the former Decree of the Lords Commissioners to deprive me of my place of President of this College and to strike my Name out of the Buttry-Book I do hereby protest against the said proceedings and against all that you have done or hereafter shall do in prejudice of me and my Right as Illegal Unjust and Null and I do hereby Appeal to our Sovereign Lord the King in his Courts of Justice Dr. Tho. Smiths Diary Upon which there was a Tumultuous Hum in the Room which the Lords Commissioners resented very much and said they would never suffer the Kings Authority to be so affronted my Lord Chief Justice said he would defend the Kings Authority while he had Blood in his Body and told Dr. Hough that he was the occasion of this mis-behaviour by his popular Protestation which he might have made in the Morning that he had broke the Kings Peace and that now they had brought in the Civil Power over them and that if need were they would use the Military that he must Answer that affront of the Kings Authority at the Kings Bench Court. Upon which he was bound in a Thousand pound Bond and his Sureties in Five Hundred pound a piece Then the Bishop of Chester gave-the Doctor this Answer to his Appeal Doctor we look upon the Appeal as to the matter and manner of it to be unreasonable and not to be admitted by us First because it is in a Visitation where no Appeal is allowable Secondly because our Visitation is by Commission under the Broad Seal of England which is the Supreme Authority therefore we over-rule this Protestation and Appeal and Admonish you once for all to avoid the College and obey the Sentence The Doctor and Fellows declared their grief for the disorder of the Crowd and disclaimed their having any hand in it After which Dr. Pudseys Letter to the Lord President being Read See this Letter c. 1. sect 3. §. 3. their Lordships askt the Fellows concerning the Kings Verbal Command to them at Oxford to which they said it was to Elect the Bishop of Oxford which they could not Then being askt why they did not Admit him which was all the Kings Letter required and to which the Verbal Command referred Eight of the Fellows said they were not there and Thirteen owned they were and gave consent to the Letter §. 5. Vpon Complaint made by the Lords Commissioners of the Hubub before mentioned the Vice-Chancellor published this following Programma QUum nihil minus deceat Viros Ingenuos nedum Academicos ad optima enutritos quam morum Inelegantia Rusticitas Quam absonum videri debeat Adventantes strepitu sibilis excipere pro Coetu Philofophorum turbam Morionum Peregrinis ostentare Quocirca dolemus hac in parte peccatum esse in Viros Illustres admodum Reverendos quod omnium Gravissimum est Regia insuper Authoritate munitos speramusque hoc Indecentiae vel potius contumeliae aut saltem maximam partem ab Infrunitis hominibus de plebis Faecula natis omnino provenisse monemusque omnes quotquot sunt Scholares ut ab omnibus Illiberalibus Dicteriis sannis Pedum supplosione male feriatorum Turbinum Cachinno Screatu clamore murmure 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 penitus abstineant Si quis vero in posterum in aliquibus istius modi deliquerit sciat se non mediocres Temeritatis Insolentiae suae paenas luiturum Octob. the 24th 1687. Gilb. Iron-side Vice-Cancelarius §. 6. My Lord Presidents Letter to the Lords Visitors in Answer to theirs of the 22d of October To the Lords Commissioners Letter and the account sent of their proceedings I find this Answer given by my Lord President Whitehall Octob. 23. 1687. MY LORDS I Have received your Lordships of the 22d with the account of your proceedings which His Majesty is well satisfied with I herewith send you such an Order for Admitting the Bishop of Oxford as you desired and am directed by His Majesty to acquaint you that if the Fellows of the College can be brought to submit to the Admission of the Bishop as their President His Majesty is Graciously pleas'd no Punishment should upon that account be Inflicted by you upon such as do submit but if any of them be refractory you are to proceed against them according to the Commission and His Majesty would have you also to Inspect the Constitutions Orders and Statutes of the College and to Enquire into the behaviours of the Members thereof and what abuses may have been Committed either by mis-applying their Revenues or other mis-doings a particular account of which together with the Names of the Offenders you are to transmit up to His Majesty that he may give such further Order as shall be requisite in the matter I am MY LORDS Your Lordships Most humble Servant Sunderland P. The Lords Commissioners Answer to this I shall Insert in it's place and now proceed to what was transacted at the Court held October the 25th In the Morning §. 7. Dr. Stafford Read the following Paper in Answer to what was objected on Friday October 25th Morning that a Mandate Implyed an Inhibition which I think fit to Insert out of the Printed Relation To the Right Reverend and Honorable the Commissioners for Visiting of St. Mary Magdalen College in Oxon. May it please your Lordships ON Friday last in the Afternoon you seemed to Insist very much upon this particular viz. That His Majesty in Commanding the Fellows of the said College to Elect Mr. Farmer President did thereby Inhibit them to Elect any other Person whatsoever which has not yet been made to appear to be Law To these Arguments Answer will be given in due place out of Civil Canon or Common-Law neither is it agreeable to reason that a Command to Elect a Person uncapable should oblige not to Elect a Person Capable that being a kind of Contradiction in Terminis yet this being granted it cannot at least affect the said Fellows or Invalidate the Election of Dr. Hough notwithstanding His Majesties Mandate in behalf of Mr. Farmer wholly uncapable of the place The Fellows cannot be said to be Guilty of any disobedience or disloyalty in proceeding to the Election of another Person who was qualified according to the Statutes being forced to make an Election for they are obliged by the Statutes of the College when called together to Elect a President or any other Officer under pain of Expulsion perpetual from that College to meet and make an Election which Punishment they Incur Ipso facto who either refuse to meet when so called or being met do not Nominate and Elect a Person into the Office void
as appears by the Statutes of the College Titulo de numero Scholarium Electione Praesidentis Now according to the Founders direction in the said Statute on the 9th of April last the Fellows were called together by the Vice-President to Elect a President in the place of Dr. Clark Deceas'd The obligation of this Oath will be examined The Oath required to be taken before the Election was Administred to them by the Vice-President whereby they are obliged to Nominate and Elect a Person that either is or has been Fellow of Magdalen College or New-College which Oath when the Fellows had taken it was not in their Power to Elect Mr. Farmer and yet then they were obliged to make an Election under pain of perpetual Amotion from the College as appears by the aforesaid Statutes and it cannot be imagined that His most Sacred Majesty did expect that the Fellows should be either Perjur'd or forfeit their Right to their Fellowships rather then dis-obey his Command His Majesty having most Graciously * * This first is a strange plea that will be answered declared that Conscience ought not to be forced and that none of his Subjects should be molested in the enjoyment of their Rights and Privileges Now that our proceeding to Election cannot lay any Imputation of disobedience or disloyalty upon us will thus be made appear Either we had Power to Elect or not The Dilemma will be solved when I answer the objections If we had not to what end or purpose did His Majesty Command us to Elect one If we had our Power was restrained to persons so and so qualified or we were at liberty to choose whom we pleased But we could not do the latter as appears by our Statutes therefore we could not Elect Mr. Farmer being not Invested with any Power to Elect a person not qualified and if we had so done our Election had been Void and Null in it self and the Person Elected lyable to be turned out by our Visitor As for the Decree of His Majesties Commissioners in pursuance whereof your Lordships have admonished Dr. Hough to recede from the place of President and quietly to resign the Keys of his Office and struck his Name out of the Book we humbly conceive it to be Null and Void in it self to all intents and purposes Dr. Hough being thereby deprived of a Free-hold for Life the which he was duely and legally possessed of without ever being called to defend his Right The reason of this will be answered in the last Chapter or any mis-demeanor objected against him wherefore we humbly beg of your Lordships that Dr. Hough may be permitted to defend his Right and Title to the Presidentship at Common Law before any other person is possest of his place This Oxford Relation which all along I so style to distinguish it from other Relations or Papers saith the Oxford Relation their Lordships having perused would not allow to be Read publicly but they asked the Fellows whether they would Sign it Challenging them to do it at their Perils then the Fellows withdrew into the Hall where being not satisfied it was necessary to Sign a Plea which their Lordships refused to admit returned the Paper into the Court only subscribed by Dr. Fairfax and Dr. Stafford the latter after some debate desiring to withdraw but Dr. Fairfax stood to it §. 8. The Bishop of Oxfords Proxy After the Plea of Dr. Stafford Tuesday Morning the 25th of October 1687. Was thus let fall Mr. Wickins Procuratar and Chaplain to the Bishop of Oxon was called who delivered the Proxy the Tenor whereof followeth OMnibus ad quos hoc praesens Scriptum praevenerit salutem Ego Samuel permissione Divina Oxon. Episcopus Praeses Collegii Magdalensis infra Universitatem Oxon. situati vigore litterarum Mandatoriarum Domini Regis Constitutus Dilectum mihi in Christo Gulielmum Wickins in Artibus Magistrum Clericum Sacellanum meum ut vice Nomine meo ad Officium Praesidentis Collegii praedicti una cum membris Juribus pertinentiis eidem spectantibus Universis admittatur nec non ad juramenta solita requisita in Animam meam praestanda caeteraque omnia facienda Exequenda in ea parte requisita Procuratorem Deputatum meum ipse valitudine impeditus quo minus praedictae admissioni personaliter interesse valeam firmiter constituo per presentes Datas Sigillatas Vicesimo 1 o. die mensis Octobris Anno Tertio Regni Jacobi Secundi Angliae Scotiae Franciae Hibèrniae Regis Fidei Defensoris Annoque Domini 1687. In Praesentia W. Bigges Ric. Brooke Georgii Cholwill The Bishop of Oxfords Seal is in the Margent Subsigned Sa. Oxon. Then was Read the following Mandate §. 9. The Kings Mandate to the Visitors for admitting the Bishop of Oxford President c. 23d Octob. 1687. JAMES R. RIght Reverend Father in God Right Trusty and Well-beloved and Trusty and Well-beloved We Greet you well Whereas We did by Our Letters bearing Date the 14th Day of August last Authorize and Require the Fellows of St. Mary Magdalen College in Our University of Oxon to Admit the Right Reverend Father in God Samuel Lord Bishop of Oxon into the place of President of the said College with all the Rights Privileges Emoluments and Advantages thereunto belonging any Statute or Statutes Custom or Constitution to the contrary in any wise notwithstanding wherewith We did dispense in his behalf And whereas the Fellows of the said College not obeying our said Letters Mandatory We thought it requisite to Impower you to Visit the said College and all the Members thereof Our Will and Pleasure is and We do hereby Authorize and Require you that in case the said Fellows do still persist in refusing to Admit the said Bishop of Oxon as their President you do forthwith Admit him if present or in case of his absence by his Proxy into the place of President of the said College any Statute or Statutes Customs or Constitutions to the contrary in any wise notwithstanding with which we do by these presents dispense And for so doing This shall be a sufficient Warrant and Authority to you and all other Persons whom it may concern and so We bid you heartily farewel Given at our Court at Whitehall the 23d of October 1687. In the 3d. Year of our Reign By His Majesties Command Sunderland P. This was Superscribed To the Right Reverend Father in God Thomas Lord Bishop of Chester Our Right Trusty and Well-beloved Sir Robert Wright Kt. Ch. J. of the Pleas before Vs to be holden Assigned Our Trusty and Well-beloved Sir. Tho. Jenner Kt. one of the Barons of our Court of Exchequer Our Commissioners for the Visitation of St. Mary Magdalen College in Our Vniversity of Oxon. §. 10. THe foregoing Proxy together with the Kings Mandate being Read for the Bishop of Oxon Tuesday Morning Octo. 25. The Fellows being present were askt
if they would Admit and Instal the Bishop of Oxford made President by the King and declared such by their Lordships Dr. Pudsey being first asked the Question refused to Act but seemed to yield to be present Dr. Thomas Smith being askt the same Question by the Bishop of Chester Read the following Answer My Lords Commissioners I Answer with all Humble and Dutiful submission to the Kings Majesties Authority and your Lordships Visitatorial Power That it is not in my Power to do this Your Lordships who have deprived Dr. Hough and have declared the Bishop of Oxford President may Instal him This Method being altogether new and extraordinary I cannot be satisfied how I can or ought to be the Executioner of your Lordships Sentence Besides I beg leave to propose a short Case to your Lordships whether or no I can Instal or give Possession without being Impowered and Authorized by a Rule out of the High Court of Chancery or Kings Bench for my Security if there were nothing of Conscience in the Case To this the Lord Chief Justice replyed to this purpose that as they were His Majesties Commissioners for this Visitation they had the Kings Power of Chancery and Common Law. Then the Lords adjourned to the Chappel * The words of the Register are and forthwith admitted the Bishop of Oxon Presi ent by his said Procurator from thence they adjourned to the Presidents Lodgings and finding the Door lockt demanded the Keys but they being not to be sound they ordered the Door to be broken open which was accordingly done and the Lords went in and viewed the said Lodgings having so done adjourned to the Common Room and Entred the Bishops Name as President in the Buttry-Book where the Bishop of Chester put Mr. Wiggins into the Presidents Seat where he took the Oaths which the Statutes enjoyn to the President at his Admission and the Oath of Allegiance and Supremacy the latter of which the Bishop of Chester Ordered him to take upon his Knees which he did accordingly then their Lordships Conducted him to the Door of the Presidents Lodgings where knocking Thrice and the Doors not being opened they returned to the Common Room and Commanded Mr. Atterbury to fetch a Smith to knock open the Door which was done accordingly their Lordships being present all the while and none of the Fellows but Mr. Charnock assisting or being as much as present at either of the performances §. 11. Then their Lordships being returned to the Common Room Oxford Relation pa. 30. they Entred the Bishops Name into the Buttry-Book Dr. Fairfax saith the Oxford Relation desired leave at leisure to speak and being permitted he told their Lordships that they had been doing that which he by no means could consent to The Bishop of Chester told him he was big to be delivered of his own Destruction and asked him if he would submit to the Bishop of Oxon Installed President by Vertue of the Kings Mandate to which the Doctor Answered he would not nor could not because they had a Statutable and Legal President already Register And the Lords having ask'd the Fellows if they would now submit to the Bishop of Oxon as their President they desired time and their Lordships gave them till the Afternoon to consider of it and the Court ordered them to give in an Account of what Gifts or Provisions were made by the Statutes for poor Travellors c. to Morrow Morning Then the Lords demanded of them if they had Elected or Admitted any Members since the Kings Inhibition to which they reply'd that they had Admitted none but Mr. Holden who was Fellow Elect before and his Year of Probationship Expired and if he had not then been Admitted he must have stood Expelled by their Statutes Then adjourned till two in the Afternoon §. 12. TVESDAY Afternoon THe Fellows being called in Register the Question was again put to them whether they would submit to the Bishop of Oxon as their President to which they gave in an Answer in Writing as followeth VVHereas His Majesty has been pleased by His Royal Authority The submission of the Fellows to cause the Right Reverend Father in God Samuel Lord Bishop of Oxon to be Installed President of this College we whose Names are hereunto Subscribed do submit as far as is Lawful and agreeable to the Statutes of the said College This Clause was Equivocal Alex. Pudsey Tho. Bayley Tho. Stafford Charles Hawley Rob. Almont Mainwaring Hammond John Rogers Hen. Dobson Ja. Bayley Jo. Davys Fran. Bagshaw Joseph Harwar Geo. Hunt. Tho. Bateman Willi. Craddock Jo. Gilman Geo. Fulham Hen. Holden Steph. Weelks Charles Penyston Dr. John Smith gave in a Paper Writ and Signed by himself in the same words Dr. Thomas Smith gave in his Paper of submission as followeth in § 14. The Demys subscribed a Paper in the same Form whose Names are Tho. Holt Senior Samuel Cripps Sam. Jenifar Rich. Adams Rob. Standard Rich. Vessey Charles Goreing John Brabourn Geo. Stonehouse Lawrence Hyde Geo. Woodward Charles Alleyn Willi. Fulham Rich. Watkins Dan. Stacy Willi. Sherwin Jo. Renton Maximilian Bush Ben. Gardiner Tho. Welles Willi. Bayley Tho. Higgains Jo. Cross Tho. Hanson Hen. Levet Harington Bagshaw Benjamin Mander The Chaplains subscribed the like whose Names were Tho. Mander Hen. Holyoake Tho. Brown. Fran. Haslewood The Choristers subscribed the like whose Names were Sam. Broadhurst Charles Wotton Tho. Price John Bowyer Tho. Turner John Shutleworth Edward Slack Willi. Inns. Miles Stanton Richard Wood. Rob. Wordsworth Joseph Stubbs The Clerks subscribed the like submission whose Names are Stephen Nicols Charles Morgan John Smith Willi. Ledford Willi. Harris Tho. Ryley Jo. Russel Tho. Williams The under Porter of the College would give in no Paper of submission The Oxford Relation saith that to the submission Oxford Relation the Clause was added and no ways prejudicial to the Right of Dr. Hough Page 31. In the Original Paper I found it scored out and as the Relation saith it was yielded to by the subscribers because the Lord Chief Justice and Barron Jenner as Judges declared that it was insignificant since nothing they should do could Invalidate Dr. Hough's Title but lest them still at liberty to be Witnesses for him or any other way serviceable to him in the Recovery of his Right upon which assurance the Society * If this be as related it shews the great condescention of the Lords Commissioners to have won them to obedience was prevailed with to leave it out §. 13. The Lords askt Dr. Fairfax if he owned their Jurisdiction Out of the Register Octo. 25th 1687. to which he reply'd (a) His words were under Correction I do not that he did not then he was askt if he would submit to the Bishop of Oxon as President to which he refused to do (b) His words were I will not nor cannot because he is not my Legal President And the Sentence was
pronounced against him That whereas he had denyed the Authority of the Court and in Contempt of the Sentence of Suspension given against him by the Lords Commissioners at Whitehall taken his Commons and Battled in the College as a Fellow of the College notwithstanding his said Suspension the Court proceeded to deprive him of his Fellowship and Ordered his Name to be struck out of the Buttry-Book The Sentence pronounced against him I find in the Register tho' not in this place in the words following By His Majesties Commissioners c. WHereas in our Visitation of the said College it appeareth unto us that Henry Fairfax Doctor in Divinity one of the Fellows of the said College has been guilty of Dis-obedience to His Majesties Commands and obstinately contemned his Royal Authority and doth still persist in the same we have thought fit upon mature consideration thereof to Declare Pronounce and Decree that the said Dr Henry Fairfax be Expelled and Deprived of his said Fellowship and accordingly we do hereby deprive him and Expel him from the same Given under our Seal the 25th day of October 1687. Then the Lords issued the following Order By His Majesties Commissioners c. WHereas we have thought fit to Deprive and Expell Dr. Henry Fairfax from his Fellowship in the said College you and either of you are hereby required to cause our said Sentence and Decree a Copy whereof is hereto annexed to be affixed on the Gate of the said College to the end that due notice may be taken of the same and of the due Execution hereof you are to certifie us Given under our Seal the 25th of October 1687. To Thomas Atterbury and Robert Eddows Or either of them He then gave in his Protestation against their Proceedings which the Court over-ruled and ordered him to depart and quit his Lodgings in the College in Fourteen Days Then the Doctor prevailed with much a do saith the Oxford Relation to Read the following Protestation and left it in Court which was as followeth I Henry Fairfax Fellow of St. Mary Magdalen College Dr. Fairfax's Protestation do under my former Answer heretofore made and to the Intent it may appear that I have not consented nor agreed to any thing done against me to my prejudice I protest that this Sentence given here against me is Lex nulla and so far forth as it shall appear to be aliqua I do say it is iniqua injusta and that therefore I do from it as iniqua injusta appeal to our Sovereign Lord the King in his Courts of Justice as the Laws Statutes and Ordinances of this Realm will permit in that behalf Henry Fairfax §. 14. The under Porter deprived Then the Lords askt Robert Gardiner the Under Porter if he would submit to the Bishop of Oxon as President of the College which he refusing to do the Lords deprived him of his Office and adjourned the Court till the next Morning Mr. John Gilman's Paper I find thus That the Statutes of the College This Paper is mis-placed and should have been October 22d Afternoon to which I am positively Sworn are the only Rule of my Actions and Obedience in this and all other Cases of the like Nature and I conceive the Bishop of Oxon has not those Statutable Qualifications which are required therefore I cannot Assist at the Admission of the Bishop of Oxon. The submission of Dr. Thomas Smith was as followeth Dr. Tho. Smiths submission which he gave in when the Fellows gave in theirs I have put here by it self because I would not mix it with the other given in in Writing also MY LORDS I Own from my Heart and acknowledge the Kings Supremacy I do now and will always pay all Dutiful Just and Humble Obedience to His Majesties Authority as becomes a Priest of the Catholic and Apostolic Church of England Establish'd by Law. I make no exception to the Legality of your Lordships Commission nor to the exercise of it in this present Visitation I am ready and willing to obey in licitis honestis the President whom the King has pleased to Constitute President when ever he shall come and preside in the College Thomas Smith D. D. The Paper given in by Mr. Craddock was as followeth ABout Six Years since This Paper was given in October 22d Afternoon when I was made Fellow by the Kings Permission I took an Oath that I would not be dispensed with from my Local Statutes by which Statutes and Oaths it does not belong to me to Admit any Man President besides I conceive Dr. Hough cannot be Legally dispossessed of the Presidentship of Magdalen College till he has Appealed to Westminster or an Higher Court and till then I shall not cease my obedience to him Willi. Craddock I shall now insert the Lords Commissioners Answer to my Lord Presidents last Letter and then proceed in the Narrative §. 15. The Answer to the Lord Presidents Letter of the 23d of October Oxon the 25th October 1687. MY LORD IN Obedience to your Lordship of the 23d Instant and the Kings Letters Mandatory we have this day Installed the Lord Bishop of Oxon's Proxy by placeing him in the Presidents Seat in the Chappel and some while after Dr. Hough having left the College and the Keys being deny'd us we caused the Doors of the Lodgings to be broken up and gave his Proxy Possession thereof My Lord we proceeded to examin the Fellows concerning their submission to the Lord Bishop of Oxon now their President their Answers were Unanimous in scriptis that they would all submit but Dr. Fairfax whom for that and denying the Jurisdiction of the Court and Contempt of his former Sentence of Suspension we have Deprived and Ejected and one Robert Gardiner a Porter all the rest of the College we left this Night in good temper and the Bishops Servants in quiet Possession We have likewise looked into the Constitutions Orders and Statutes of the College and cannot find any of the Society to have offended therein or in mis-applying their Revenues They having given us as we conceive a clear Answer to the Accusation against them for Imbezling such a part of it as was pretended to be set a side for Pilgrims and poor Travellors which we will bring up and transmit to your Lordship * * Here may be noted how tender the Lords Commissioners were and willing to have won them to obedience And this we must say my Lord that generally they have behaved themselves with great regard and deference to His Majesties Command saving in that particular whereof we gave your Lordship an account in our last and even for that they have expressed a very hearty sorrow and submission and we do humbly conceive that the Bishop of Oxon when he comes in Person to the College which he promises suddenly to do so soon as his health will give him leave will be best able to find out those faults of
would have been Aggravations of the former Contempts which upon better thoughts you desired and we gave you leave to withdraw What other Men who are led by Populacy which is the Fools Paradise but the Wise Mans scorn say of us while we are doing our Duty to God and the King we value no no more than what they dream of us For we set a greater estimate upon our own Duty than other Mens thoughts and will discharge our Consciences faithfully whatsoever becomes of our Credit We can allow those who are dis-affected to the Crown and to the Church of England to talk of us at their own Rate we shall vindicate the Kings Authority and redeem it from Contempt by all Just and Lawful means But yet Gentlemen the great concern we have for you and our earnest design to rescue you out of danger if you are not sturdily resolved to cast away your selves obliges us to offer you once for all that if you will freely and presently make such submission to His Sacred Majesty as the Heinousness of your Offences do's in our Judgment require we will pass by your faults and recommend you heartily to Gods and the Kings Mercy and accordingly we require the Deputy Register to Read the Form of such a submission to you as the Court upon mature deliberation hath judged necessary for them to expect and require in Point of Justice as an expiation for all the former dis-obedience and contempts of which they have found you guilty which they that are willing and well resolved may immediately Sign and the rest of you are Commanded to withdraw excepting Dr. Thomas Smith and Mr. Charnock with whose good behaviour towards His Sacred Majesty in the concern before mentioned we declare our selves to be well satisfied and doubt not but that His Majesty will be so too when we shall have further occasion to represent it to him §. 3. After the Bishops Speech all were ordered to withdraw Register except the Fellows and the Form of a Submission was ordered to be Read to them in the words following To the Kings Most Excellent Majesty The Humble Petition and Submission of the Fellows of St. Mary Magdalen College in the Vniversity of Oxford whose Names are Subscribed May it please your Majesty WE your Majesties most humble Petitioners having a deep sense of being justly fallen under your Majesties displeasure for our disobedience and contempt to your Majesty and to the Authority of your Majesties Commissioners and Visitors We do in all humility prostrate our selves at your Majesties Feet humbly begging your Pardon for our said Offences and promising that we will for the future behave our selves more Dutifully and for a Testimony thereof we do acknowledge the Authority of your Majesties said Visitors and the Justice of their Proceedings and we do declare our entire Submission to the Lord Bishop of Oxon as our President He then told them that their Subscribing the same was the only means that could recommend them to His Majesties favour But all the Fellows to whom the said submission was proposed * Dr. Thomas Smith had not the Question proposed to him having been absent from the College during the heat of the contest and wholly unconcerned in it by which it appears how false the Oxford Relation p. 37. 38. is being severally ask't the Question peremptorily refused to subscribe Mr. Thompson desired to be excused from subscribing for that he had given his Vote for Mr. Farmer and had not concurred with the Society in any thing they had done since in this business and declared that he never had been disobedient nor ever would be whereupon their Lordships excused him §. 4. Dr. Aldworth desired The Oxford Relation is thus p. 37. 38. in the Name of himself and the Fellows time to consider of the submission and give their Answer in Writing to whom the Bishop of Chester said they must every one Sign or Refuse as they were called And Baron Jenner said there was no Answer to be given but Yea or No They all moved again for time but it was denyed then Dr. Aldworth said My Lords this is my first appearance before your Lordships since your sitting here therefore I pray to be heard My Lords I am as ready to comply with the Kings Pleasure as any Man living neither do I know that we have ever in this place been disobedient to the King when ever 't was in our Power to obey his Commands Our Founder in the first Clause of the Oath we take at the Election hath provided that no one shall be President of this College but who was bred in this or in the College wherein he himself was bred now for us who have Elected Dr. Hough a Person Qualified according to our Statutes who hath been Installed Sworn Confirmed and Approved of in all the ways and manners prescribed in the Statutes For us my Lord to accept and admit of a Stranger and a Forreigner in his place is to the best of my understanding a giving up the Rights of the College to other uses than the Founder designed it Here Dr. Aldworth was Interrupted by the Bishop of Chester saying the Statutes were over-ruled by the Kings Authority or words to that effect To which the Dr. Answered your Lordships sit here as Visitors which Implies there are certain Laws and Statutes which we are bound to observe and by which we are to be Governed and if it shall appear to your Lordships that we have Acted conformable to those Statutes I hope we shall neither incur the Kings displeasure nor your Lordships The whole Tenor of our Statutes run that we should Inviolably maintain our Right and observe the Rules of our Founder He has laid his Curse upon us if we vary from them here he repeated the words Ordinamus sub poena Anathematis Indignationis Omnipotentis Dei ne quis c. Item sub Interminatione Divini Judicis Interdicimus To which the Bishop of Chester reply'd are you not to obey the King as well as your Founders Statutes To this the Vice-President Answered I ever did obey the King and ever will do our Statutes which we are Sworn to are Confirmed by several Kings and Queens before and since the Reformation and as we keep them are agreeable to the Kings Laws both Ecclesiastical and Civil Whilst we live up to them saith the Printed Relation and whilst we keep up to 'em we obey the King. The Bishop of Chester reply'd the Statutes were never Confirmed by his present Majesty to which Dr. John Smith said neither have they been Repealed by His Majesty The Mandate being an Inhibition repeals them for the present time by Dispensation and what is not Repealed is Confirmed After this their Lordships pressing either to Sign or Refuse Dr. Aldworth said My Lords I 'll deal plainly in regard to my Oath and the Statutes to the Right of all our Successors and of Dr. Hough whom I believe
to be as fairly Elected * This was a bold Assertion and I hope to prove it as false and as Legally Possessed as ever any since the Foundation of the College I cannot submit to the Bishop of Oxon as President so he was ordered to withdraw After this the same Question was put to all the Fellows singly who all refused to Sign the submission except Dr. Thomas Smith and Mr. Charnock who were not pressed having as their Lordships said behaved themselves Dutifully towards the King Mr. Thompson desired to be excused from subscribing for that he had given his Vote for Mr. Farmer and had not concurred with the Society in any thing they had done since in this business and declared he never had been disobedient nor ever would be Then their Lordships produced a Petition sent to the Earl of Sunderland upon the report of the Kings Mandate for Mr. Farmer which he had Signed therefore pressed further his subscribing the submission This he owned but said it was before the Kings Mandate was produced but after it was shewn at the Election he Voted for Mr. Farmer in obedience to the Kings Command and promised to obey the Bishop of Oxford whereupon their Lordships excused him §. 5. Then the Lords called for the Buttry-Book and caused all the Names of those Fellows who refused to subscribe to be struck out and the Fellows so struck out being called in the Sentence of Expulsion was Read to them in this Form. By His Majesties Commissioners for Ecclesiastical Causes and for Visiting of the Universities and all Cathedrals and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Corporations or Foundations and Societies and particularly impowered to Visit Magdalen College in the Vniversity of Oxford WHereas in our Visitation of the said College it appeared to us that Dr. Charles Aldworth Dr. Alexander Pudsey Dr. John Smith Dr. Thomas Bayley Dr. Thomas Stafford Mr. Robert Almond Mr. Mainwaring Hammond Mr. John Rogers Mr. Richard Strickland Mr. Henry Dobson Mr. James Bayley Mr. John Davies Mr. Francis Bagshaw Mr. James Fayrer Mr. Joseph Harwar Mr. Thomas Bateman Mr. George Hunt Mr. William Cradock Mr. John Gilman Mr. George Fulham Mr. Charles Penyston Mr. Robert Hyde Mr. Edward Yerbury Mr. Henry Holden Mr. Stephen Weelks Fellows of the said College have been severally guilty of disobedience to His Majesties Command and obstinately contemned His Majesties Royal Authority and do still persist in the same We have thought fit upon mature consideration hereof to declare pronounce and decree that the said Dr. Charles Aldworth c. and every of them be Deprived and Expelled from their respective Fellowships and we do by this our Sentence and Decree Deprive and Expel them from their said several respective Fellowships Given under our Seal the 16th of November 1687. About Twelve a Clock as soon as their Lordships rose the Decree for the Expulsion of these Twenty Five Fellows was fixed on the College Gates in the Form aforesaid §. 6. The Expelled Fellows give in their Protestation against the Lords Commissioners Decree The Fellows under-named then gave in Papers subscribed by themselves to the Lords Commissioners in this Form. May it please your Lordships I Do profess all Duty to His Majesty and respect to your Lordships but beg leave to declare that I think my self injured in your Lordships Proceedings and therefore Protest against them and will use all Just and Legal ways of being relieved Novemb. the 16. 1687. Others desired that the like Protestation might be entred for them Charles Aldworth James Bayley Joseph Harwar John Gilman Tho. Bateman Edw. Yerbury Stephen Weelkes Then their Lordships Ordered them to withdraw Register and proceeded to Admit others into their places and in order thereunto called for those who were recommended by His Majesties Mandates viz. (a) Dated 11. November Mr. Charles Goring Mr. Thomas Higgons (b) Dated 12. Nov. 1687. Nov. 13. 1687. Mr. Fairfax Mr. Robert Hill Mr. John Warburton Mr. Francis Haslewood and Mr. Lawrence Wood. But none of them appeared except Mr. Thomas Higgons whereupon their Lordships sent for three of the Demys viz. Mr. Samuel Jenefar Mr. Mander and Mr. Hanson and the two last desiring to continue Demys their Lordships Admitted Mr. Higgons and Mr. Jenefar Fellows they taking the usual Oath of a Fellow Then Mr. Bradley Whalley Mr. Walter Walsh and Mr. Midleton were called but Mr. Midleton not appearing Mr. Whalley and Mr. Walsh were Admitted Demys and took the Oath of a Demy and their Names were entred in the Buttry-Book Then their Lordships took into their consideration the Case of the absent Fellows the non-appearance of Mr. Maynard Mr. Hicks and Mr. Goodwin seeming excusable by the Certificates produced and Oaths made in their behalfs and also it appearing that they and Mr. Francis Smith who is Travelling abroad had not been any ways concerned in the whole Affair their Lordships thought fit to excuse them And left the Expulsion of the rest viz. Mr. Hawks Mr. Holt and Mr. Thornton to the President who they conceived had full Power to Expell them if hereafter at their return to the College they should refuse to make their submission in the same manner as proposed to the rest of the Fellows and so the Lords Commissioners concluded What followed after their Lordships return to London §. 7. What was done by the Lords Commissioners at Whitehall Out of the Register At a Court held in the Council Chamber at Whitehall the 28th of November 1687. Present the Lord Chancellor Lord President Lord Chamberlain the Bishops of Duresm Rochester and Chester the Lord Chief Justice Wright the Lord Chief Justice Herbers and Mr. Baron Jenner The further Account of the Proceedings of the Visitation of St. Mary Magdalen College in Oxford was Read upon which it was moved The Lords Commissioners resolution to Incapacitate the Expelled Fellows c. that the Expelled Fellows should be further proceeded against by a Sentence of Incapacity The Lords upon debate were of Opinion that the said Fellows ought to be incapacitated from receiving any Ecclesiastical Preferments for the future and direct that Mr. Sollicitor General Sir Robert Baldock Sir Thomas Pinfold and Dr. Hedges shall Attend the next Morning at Nine of the Clock upon this matter At a Court c. the 29th of November 1687. Mr. Sollicitor General Sir Robert Baldock Sir Thomas Pinfold and Dr. Hedges attend and have the following Paper delivered to them The Lords think it requisite that the Fellows lately Expelled out of St. Mary Magdalen College should be Incapacitated from receiving any Ecclesiastical Preferment for the time to come and desire you to consider of the Method and best manner of proceeding herein Their Lordships appointed them to give them their Opinion upon the matter upon Munday next at Ten in the Morning but the Meeting was put of till Thursday the 8th of December At a Court the 8th of December 1687. Present the
and right Information probably the King would have rejected That the King might have a fit Testimony of the Person before he granted any such Mandate it pleased his Majesty to make this following Order Having taken into Our serious consideration how much it will conduce to the Glory of God Our own Honor and the welfare both of Our Church and the Universities that the most worthy and deserving Men be favored and preferred according to their Merit and being satisfied that the Lord Arch-Bishop of Canterbury and the Bishop of London are the most Competent Judges in such Cases We have thought fit and do hereby declare Our pleasure to be that neither of Our Principal Secretaries of State do at any time move Us on the behalf of any person whatsoever for any Preferment in the Church or any Favor or Dispensation in either of Our Universities without having first Communicated both the person and the thing by him desired unto the Lord Arch-Bishop of Canterbury and Bishop of London or one of them now and for the time being and without having their or one of their Opinions and Attestations in the Case and if at any time We be moved in like manner by any other person whatsoever Our pleasure is and We do hereby declare that neither of Our said Principal Secretaries shall present any Warrant unto Us for Our Royal Signature in such a Case until the said Arch-Bishop of Canterbury and Bishop of London or one of them have been acquainted therewith and have given therein his Opinion and Attestation as aforesaid By this we find that the King resolved to have perpetuated this yet it was Revoked as also a later Mandate as appears by the following Mandate And that this Our Declaratión may stand as a lasting and inviolable Rule for the future Our further Will and Pleasure is that the same be Entered not only in both the sides of Our said Principal Secretary of State but also in the Signet Office there to remain upon Record Given c. the 27th of February 1680 / 1. §. 12. The Re-calling of a Mandate after the former I Insert this out of the Series because I may joyn the Revocation of another Order as followeth Whereas We did by Our Warrant under Our Signet Manual bearing Date at Windsor the 12th of August 1681. Signifie and Declare Our pleasure to be that neither of Our Principal Secretaries of State should at any time move Us on the behalf of any Favor or Dispensation in either of Our Universities without having first Communicated both the person and the thing by him desired unto the Lord Arch-Bishop of Canterbury for the time being John Earl of Radnor George Earl of Hallifax Lawrence Viscount Hyde the Lord Bishop of London for the time being and Edward Seymour Esq and without having the Opinion and Attestation of them or any Four of them in the Case and that if at any time we should be Moved in like manner by any other person whatsoever Our pleasure was and We did thereby Declare that neither of Our Principal Secretaries of State should present any Warrant unto Us for Our Royal Signature in such a Case until the said Lord Arch-Bishop of Canterbury c. had been acquainted therewith and had given their Opinion and Attestation as aforesaid and whereas We have thought fit for special Causes Us thereto moving to Revoke and determin Our said Warrant We do accordingly hereby Revoke and determin the same and all the Authority thereby Granted and Our pleasure also is that Our Order be Entred not only in both the Offices of Our said Secretaries but also in the Signet-Office Dated the 20th of September 1684. By this mandate it appears that it is in the Kings power to Revoke his own Constitutions at his pleasure §. 13. I might add to these the King 's dispensing with Statutes of Cathedral Churches about Leases annexing the Revenues of Prebends to a Deanry ordering the Arch-Bishop of Canterbury to Grant Dispensations for a Bishop to hold Rectories in Commendum of which I could produce many Instances but I keep my self to the business of the Universities In which I hope by a sufficient enumeration of particulars I have made it clear beyond all possibility of Dispute that the Kings of England have dispensed in all the Cases before recited with Statutes of Colleges yet it is as manifest that all the Members of the Universities and of particular Colleges upon their taking of Degrees or being Elected into Fellowships c. take an Oath to observe the Statutes of the University or particular College and yet by the power of the Kings Dispensation are no ways Involved in the Sin of Perjury I shall now proceed to give such Answers as I Judge requisite to those arguments I find couched in any of the defences made by the Fellows of St. Mary Magdalen College and begin with that of the obligation of their Oaths CHAP. VII The Answer to the Arguments used by the Vice-President and Fellows of St. Mary Magdalen College in defence of their proceedings SECT I. Answer to what is urged in their Justification from the Obligation of their Oaths to observe their Statutes §. 1. THe most plausible plea the Vice-President and Fellows used in Vindication of their Electing Dr. Hough and dis-obeying the Kings Mandate was that they were under the obligation of their Oath to observe the Statutes of their Founder in the Literal and Grammatical sense of them And the persons Nominated by the First and Second Mandate of the King were not Qualified according to those Statutes so that in obeying the Kings Mandates they should either be Perjured or forfeit their Rights in their Fellowships if they Elected or Admitted any person not Statutably Qualified and that they were under the like obligation neither to procure accept or make use of any dispensation from that Oath or any part of it by whomsoever procured or by what Authority soever granted To which in Aggravation and Improvement was urged See p. 6. here p. 75. where the King's Declaration is urged which I shall consider in its place the disagreeableness of being pressed to forswear themselves at a time when his Majesty had been Graciously pleased to Grant Liberty of Conscience Finding this Argument looked upon by the favourers of the Ejected Fellows as unanswerable I think my self obliged to clear the point not only by producing the Opinions of Casuists but likewise by the Authority of Bishop Sanderson who deserves the greater respect and credit for that he Adorned the Divinity chair in that University long before he did the Episcopal §. 2. Definition of an Oath In this matter we may consider what an Oath is which is generally defined to be the Invocation of God to be (a) Mart. Bonacina Tom. 2. Disp 4. q. 1. puncto 2 fol. 214. witness of the plighting of our Faith that we will do or suffer to be done such or such a matter by Bonacina