Chester Sir Robert Wright Lord Chief Justice of the Kings Bench and Sir Thomas Jenner one of the Barons of the Court of Exchequer with particular Power to them or any two of them to visit St. Mary Magdalen College in the University of Oxford the Commissioners thought fit to meet at the Council Chamber this day being the 17th of Ooctober 1687. The Commission was Read and the same Officers confirmed as before The Lords Commissioners for Visiting Magdalen College agreed upon the following Citation in Order to their Visitation By Thomas Lord Bishop of Chester Sir Robert Wright Knight Chief Justice of the Court of King's Bench and Sir Thomas Jenner Knight one of the Barons of His Majesties Court of Exchequer His Majesties Commissioners amongst others for Ecclesiastical Causes and for the Visitation of the Vniversities and all Cathedral and Collegiate Churches Colleges Grammar-Schools Hospitals and other the like Incorporations or Foundations and Societies and particularly Authorized and Impowered by His Majesties Letters Patents to Visit St. Mary Magdalen College in the Vniversity of Oxford c. YOu and either of you are hereby required forthwith to Cite and Summon Mr. John Hough the pretended President and also the Fellows and all other the Schollars and Members of the said College of St. Mary Magdalen in the said University of Oxford to appear before Us in the Chappel of the said College on Friday next being the 21st day of this Instant October at Nine of the Clock in the Morning to undergo our Visitation and further to Answer to such matters as shall then and there be objected against them Intimating thereby and we do hereby Intimate unto them and every one of them that We Intend at the same time and place to proceed in our said Visitation the absence or contempt of him the said pretended President or the said Fellows Schollars or other Members of the said College or any of them to the contrary notwithstanding And of the due Execution hereof you are to certifie us at the time and place aforesaid Given under the Seal which we in this behalf use the 17th day of October 1687. Subscribed To Thomas Atterbury and Robert Eddows Or either of them On Wednesday October the 19th the Citation was fixed on the College and Chappel Doors and on Thursday the Commissioners entred attended by the three Troops of Horse that Quartred in the Town §. 2. The Proceedings of the Lords Commissioners at Oxford on Friday morning Octo. 21. 1687. I shall from the Register Original Papers the Bishop of Chesters notes or the Printed Relation give a Faithful account of the First and Second Visitation FRIDAY Morning THe Lords Commissioners appointed by His Majesty under the Great Seal Out of the Register Note the reason why the Commissioners left the Chappel was by reason of the crowd and for that provision was not made for their sitting there for Visiting St. Mary Magdalen College in Oxford met on Friday Morning the 21st of October 1687. In the Chappel of the same College and Adjourned to the Hall where their Commission being Read their Lordships took upon them the Execution thereof and Ordered the Fellows Names to be called over And Dr. John Hough with several of the Fellows and Schollars appearing the Lord Bishop of Chester spoke to them upon the occasion of the Visitation as followeth Gentlemen IF he who provokes the King to Anger sins against his own Soul what a Complicated mischief is yours who have done and repeated it in such an Ingrateful and Indecent manner as you have done and upon such a trifling occasion You were the first and I hope will be the last who did ever thus undeservedly provoke him There is a great Respect and Reverence due to the Persons of Kings and besides the Contempt of his Authority in this Commission you were so unreasonably Valiant as to have none of those fears and jealousies about you which ought to possess all Subjects in their Princes Presence with a due veneration of his Soveraignty over them 'T is neither good nor safe for any sort of Men to be wiser than their Governors nor to dispute the Lawful Commands of their Superiors in such a licentious manner that if they sometimes obey for wrath they oftner disobey as they pretend for Conscience sake The King is God's Minister he receives his Authority from him and Governs for him here below and God resents all Indignities and injuries done to him as done to himself Now God hath set a Just and Gracious King over us who has obliged us in such a Princely manner as to puzle our Understandings as well as our Gratitude for he hath bound himself by his Sacred promise to support our Altars at which he does not Worship and in the first place to maintain our Bishops and Arch-Bishops and all the Members of the Church of England in their Rights Privileges and Endowments No doubt but he will do his own Religion all the Right and Service he can without unjust and cruel Methods which he utterly abhors and without wronging ours which is by Law Established and by his own Sacred and free promises which have been more than once renewed and repeated to us without our seeking or solliciting for them which we under some Princes might have been put to crave upon our bended Knees This is a most Royal and Voluntary Present the King hath made to his Subjects and calls for a suitable veneration from them notwithstanding the pretended Oxford Reasons which were Publish'd by whose means and endeavors you best know to obstruct it As if the King had not Thorns enough growing in his Kingdom without his Universities planting more Now a Prince so exceedingly tender of his Honor as he is so highly Just to all and so kind beyond example to his Loyal Subjects and Servants of what persuasion soever is one under whom you might have had all the ease satisfaction and security imaginable if you had not been notoriously wanting to your selves and under a vain pretence of acting for the preservation of our Religion you had not wilfully against all Reason and Religion expos'd it as much as in you lay to the greatest scandal and apparent dangers Imaginable Your disingenuous disobliging and petulant humor your obstinate and unreasonable stifness hath brought this present Visitation upon you and might justly have provoked His Majesty to have done those things in his displeasure which might have been more prejudicial to this and other Societies then you can easily imagin But tho' you have been very irregular in your provocations yet the King is resolved to be exactly Regular in his proceedings And accordingly as he is Supreme Ordinary of this Kingdom which is his Inherent Right of which he never can be divested and the unquestionable Visitor of all Colleges he hath delegated his Commissioners with full Power to proceed according to the just measures of the Ecclesiastical Laws and his Royal Prerogative against such offenders as shall
Lord Chancellor Lord President Earl of Huntingdon the Bishops of Duresm Rochester and Chester the Lord Chief Justice Wright and Baron Jenner Mr. Sollicitor General Sir Robert Baldock Sir Thomas Pinfold and Dr. Hedges gave their Answer upon the Paper given them the 28th of the last Month concerning the Fellows lately Expelled out of St. Mary Magdalen College the Lords enter upon debate of the matter and put off the further consideration thereof till Saturday the 10th Instant at Four in the Afternoon At a Court the 10th of December 1687. The last mentioned Lords being present The Lords re-assume the Debate concerning the Fellows lately Expelled out of St. Mary Magdalen College and agree upon the following Order §. 8. At a Council held in the Council Chamber at Whitehall the 10th of December 1687. Present Lord Chancellor Lord President Earl of Huntingdon Lord Bishop of Duresme Lord Bishop of Rochester Lord Bishop of Chester Lord Chief Just Wright Baron Jenner 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 WHereas we thought fit by our Order of the 22d The Sentence of Incapacitating Day of June last to declare and decree that the pretended Election of Mr. John Hough now Dr. John Hough to the Presidentship of St. Mary Magdalen College in the University of Oxon was void and therefore did amove the said Mr. Hough from the place of President of the said College And whereas the Fellows of the same were likewise Convened before us for their disobedience to and Contempt of His Majesties Authority by making the said pretended Election and it now appearing unto us that the said Dr. John Hough Dr. Charles Aldworth Dr. Henry Fairfax 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 Davys 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 Penniston Mr. Robert Hyde Mr. Edward Yerbury Mr. Henry Holden and Mr. Stephen Weelks lately Fellows of the said College do persist in their disobedience and contempt we have thought fit upon mature consideration of the matter to Declare Decree and Pronounce and we do accordingly Declare Decree and Pronounce that the said Dr. John Hough Dr. Charles Aldworth c. as before recited and every of them shall be and from henceforth they are hereby declared and adjudged Incapable of Receiving or being Admitted to any Ecclesiastical Dignity Benefice or Promotion and that such and every of them who are not as yet in Holy Orders shall be and are hereby declared and adjudged uncapable of Receiving and being Admitted into the same And all Arch-Bishops Bishops and other Ecclesiastical Officers and Ministers within the Realm of England are hereby required to take notice of this our Sentence Order and Decree and to yield Obedience thereunto Given under our Seal the 10th Day of December 1687. The Lords agreed to send a Duplicate of the foregoing Order under their Seals to every Arch-Bishop and Bishop which accordingly was done Thus I have drawn to a Conclusion the whole Proceedings concerning this College as to the Declaring Void the Election of Dr. Hough and the Suspending of Dr. Aldworth and Dr. Fairfax by the Lords Commissioners at Whitehall and the Expelling the forenamed Fellows by the Lords Visitors at Oxford together with this Finall Decree of Incapacitating them by the Lords Commissioners at Whitehall in Conjunction with the Lords Visitors at Oxford I shall now proceed to give an Historical Account of the Nature of the Societies or Incorporations called Colleges and Universities Secondly Some Visitations of the Universities of Oxford or particular Colleges by Legatine Metropolitical Episcopal or Local Visitors or by the Immediate Authority of the Kings of England from Age to Age. Thirdly Several Instances of the Kings of Englands Dispensations with the Statutes of Universities or particular Colleges Fourthly I shall Answer the Objections CHAP. III. Of the Nature and Constitution of the Societies of the Liberal Arts such as Colleges and Universities are SECT I. Concerning Incorporations in General and the Privileges granted to the Vniversities of Oxford and Cambridge by our Kings or the Popes §. 1. All sorts of Societies and Corporations are Founded by the King. BEfore I Treat of the Royal Foundation or the particular Charters or Bulls granted to the University of Oxford I think it convenient as a Preliminary to give the Ingenuous Reader a short abridgment of what our Common Lawyers have delivered how the Incorporations of this Kingdom are all Constituted by the Kings of England Priviledged from the Crown and are at the sole Will and Pleasure of the Sovereign who may at his pleasure for mis-user non-user or abuser dissolve them according to Common-Law First of the Subject matter of such Incorporations A Corporation is the same according to (a) Lib. 2. fol. 5. 6. Coke 10 Rep. 29. The Ancient and Modern use of the word University Bracton which the Civilians Style Collegium or University Si Rex concesserit says he alicui Vniversitati sicut Civibus Burgensibus so that in his time an Incorporation by the Name of Citizens and Burgesses was called an University in the same Sense that Communitas was Styled signifying any Society that was under some special Denomination so Bodinns saith by the word Collegium no particular Society is determined but under that Name Corporations of several natures are contained and whether Lay or Ecclesiastical is specified by the ends for which they are Constituted but now the word is generally restrained to the Academies of the Liberal Arts. ☞ All Natural persons (a) Coke 10. Rep. fol. 14. Of the Constituting parts of a Corporation as such are capable of holding or taking this Right of a Politic Capacity and as all the natural persons are an Essential part constituting the Body Politic (b) 21 E. 4. fol. 22. so all the operations and exercise of the Rights are only performed by the Natural persons Therefore when the Question is of non-user or abuser of Franchises by a Corporation it must of necessity be intended for some Act (c) Atturny Generals Argument for Quo Warranto against London fol. 2. or negligence of the Natural persons or those Officers imployed by them For whatever Franchises any persons enjoy they do it as Usu-fructuaries §. 2. How all Colleges and Corporations are made such by the Sovereign It is to be considered that such Societies ought to be Constituted by none but the Sovereign otherwise the Government would be in danger if Liberty were granted for persons to enter into Combinations For however specious they might at first make the end of their
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.
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
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
of Chester reply'd that they did not expect of them to Confess a Capital Crime only to make some acknowledgment To which Mr. Fulhum said This is according to the original the Oxford Relation varying in words tho' not in Sense My Lords we were ordered to Address our selves as having acted in Contempt of His Majesties Authority which he looked upon as so great a Crime that upon no account he would be guilty of My Lords continued he I did obey His Majesty as far as I could to the utmost of my Power and your Lordships having been pleased to accept the submission on Tuesday I humbly conceive your Lordships are engaged that nothing further be required of me of what I have done being Conscious of no Contempt to His Majesties Authority To which the Bishop of Chester Answered you are a very forward speaker and abound in your own Sense Mr. Fulham reply'd he hoped their Lordships would give them leave to speak when their Fortunes were so considerably at Stake as their own Relatoin saith Then Dr. Bayley desired their Lordships to give him leave to explain what he meant by the word submit By this it appears how necessary it was to have a more clear and full submission subscribed in his Answer on Tuesday viz. The word Submit was to be understood with reference to the King and that he did not intend it as a submission to the Bishop as Lawful President §. 23. Upon this a fresh Question was put to the Fellows whether they would obey the Bishop of Oxon as their President in licitis honestis to which all except one or two Answered they would not Upon this Question put to Mr. Fulham he Answered that he could not confess any Crime or Offence done against the King that Dr. Hough having been Duly Elected and Admitted President he thereby obtained a Right which he was not satisfied that he had any ways forfeited therefore he could obey no other Person as President The Bishop of Chester asked him if he would obey the Bishop of Oxon as in Possession to which according to the Relation of those who Writ down what he spoke in Court he thus Answered The Oxford Relation palliates this Answer that he could not submit otherwise then as it was agreeable to the Law of the Land and Statutes of the College without prejudice to the Right of the Election of the Fellows and that he humbly conceived the Bishop was violently and unjustly put into Possession and that it should have been by the Posse Comitatus Then my Lord Chief Justice said Not as the Oxford Relation hath it that their Oxford Law was no better then their Oxford Divinity that their Oxford Divinity was better than their Oxford Law If they had a mind to a Posse Comitatus they might have it soon enough to which Mr. Fulham said he intended nothing but respect to their Lordships and had endeavored to speak and behave himself with due Reverence and desired their Lordships would put a favourable construction of what he said as the Oxford Relation saith The Sentence of Suspension against Mr. George Fulham Then all were Commanded to withdraw and the Buttry-Book called for after which Mr. Fulham was called in with the rest and the Bishop of Chester said to him Mr. George Fulham whereas you have openly and in Opprobrious Language Contemned the Authority of the Court we Suspend you from the profits of the Fellowship during the Kings pleasure and you are accordingly Suspended of which all the Fellows and other Members of this College are Commanded to take notice and to the rest his Lordship further said whereas there are several Fellows absent who are in Contempt of His Majesty that they may not suffer for want of greater notice then they have yet had we do direct and order you who are Fellows now present to give them notice by the usual Methods and to take notice your selves that we have adjourned this Court till Wednesday the 16th of November ensuing to be held at this place at Nine in the Morning SECT II. The Second Visitation by Adjournments of St. Mary Magdalens College by the Lords Commissioners §. 1. The Kings Mandate for Mr. Willi. Joyner and Mr. Job Allibon THe Lords Commissioners having in this Interval of time Communicated their Proceedings to His Majesty and by his appointment to the rest of the Lords Commissioners at Whitehall The three Lords Commissioners Visitors took their Journy to Oxford where upon the 15th of November they arrived WEDENSDAY the 16th of November 1687. At Nine of the Clock in the Morning Proclamation being made the Statute-Book and Buttry-Book were Ordered to be brought in Then Mr. William Joyner and Mr. Job Allibon were called and the Mandate for their Election was Ordered to be Read which followeth JAMES R. RIght Reverend Father in God Right Trusty and Well-beloved and Trusty and Well-beloved We Greet you well Being Informed that there are two Fellowships now Vacant in St. Mary Magdalen College by the Expulsion of Dr. Fairfax and the Death of Thomas Ludford and having received a good Character of the Learning and Sobriety of Our Trusty and Well-beloved William Joyner and Job Allibon We have thought fit hereby to Authorize and require you forthwith to Admit the said William Joyner and Job Allibon into the Fellowships lately enjoyed by the said Dr. Fairfax and Tho. Ludford with all the Rights Privileges and Profits Perquisits Emoluments and Advantages whatsoever thereunto belonging without Administrating any Oaths to them but that of a Fellow Any Law Statute Custom or Constitution to the contrary notwithstanding with all which We are pleased to Dispense in this behalf and for so doing this shall be your Warrant And so We bid you heartily farewell Given at Our Court at Whitehall the 11th Day of November 1687. In the Third Year of Our Reign By His Majesties Command Sunderland P. This being done Register the said Mr. Joyner and Mr. Allibon were Admitted Fellows of the said College taking only the Oath required by their Statute-Book to be taken at the Admission of a Fellow and their Names were Entred into the Buttry-Book Then the Fellows were called in except those hereafter to be mentioned and Dr. Younger who was excused being in waiting upon her Royal Highness the Princess of Denmark several Certificates were produced to excuse Mr. Charles Hawles Mr. Edward Maynard Mr. John Hicks Mr. Thomas Goodwin Mr. Francis Smith Mr. Robert Holt and Mr. Robert Thornton §. 2. The Lord Bishop of Chesters Speech The Fellows being thus Convened the Lord Bishop of Chester made this following Speech GENTLEMEN YOur Vndutiful and I might say your Ingrateful behavior towards His Majesty for Six Months last past your obstinate froward and unreasonable stiffness to so good and Gracious a Prince was that which brought this present Visitation upon you which how great a sin it was against God whose Vicegerent you have contemned beyond all
Moderation and Reason how great a scandal to our Religion how great a stain to the liberal and ingenuous Education which this Society would afford you and how very mischievous it will be to your selves at last I endeavored to convince you at the first Opening of our Commission Since which time some of you have been so unreasonably inconsiderate and obstinate as to run yet farther upon the score of His Royal Patience and Pardon for which you are now to receive the just and necessary Animadversions of this Court that the Honor and Authority of the King may be Vindicated and the Peace of Church and State not be endangered by your Impunity or our Connivance at this your petulant humor and contumacious behavior No Subjects can be wise or safe but they who are so sincerely honest as to take all fair occasions of doing their Prince acceptable services and executing his Will Reputation abroad and Reverence at home are the Pillars of safety and Soveraignty these you have endeavored as much as in you lies to shake nor can the King hope to be well served at home or observed abroad if your punishment be not as public as your Crimes No Society of Men in this or the other University ever had so many Male-contents and Mutineers in it as this College your continual clashings and discords sometimes with your President at others with your Visitor and so frequently among your selves ever since his late Majesties happy Restauration have been too public to be concealed I have more than once heard your late Visitor of Pious Memory bewaile the great unhappiness of this Noble Foundation in being over-stockt with a sort of Men whom a wantonness of Spirit had made restless and unquiet who would never be satisfied whose disease was fed by Concession and then most violent when they knew not what they would have You have been long experienced in the Methods of Quarreling with your Visitor President and your selves and by these steps you are at last arrived to the top and highest degree of insolence which is to Quarrel with your Prince which as it dis-honors your Religion so it Proclaims your Pride and Vanity for every dis-obedient Man is proud and would obey if he did not think himself wiser than his Governor You have dealt with His Sacred Majesty as if he Reigned only by Courtesie and you were resolved to have a King under you but none over you and till God give you more self denyal and humility you will never approve your selves to be good Christians or good Subjects whose Patience and Petitions are the only Arms they can ever honestly use against their Prince You could not be ignorant of the Kings being your Supreme Ordinary by the Antient Common Law of this Land of which the Statutes are not Introductory but declaratory you have Read what Bracton says de leg lib. 1. c. 8. ◠5. who was Lord Chief Justice of England for Twenty Years in Henry the Thirds time Nemo de factis suis praesumat disquirere multò minùs contra factum suum venire Now His Majesty the Fifth of April sent his Letters Mandatory to you to Elect and Admit one Mr. Farmer into your Presidents place then void by the Death of Dr. Clark your last President Whom the Tenth of April you represented to His Majesty as incapable of that Character in several respects and besought him as His Majesty should think fittest in His Princely Wisdom either to leave you to the discharge of your Duty and Consciences according to his late Gratious Declaration and your Founders Statutes or to recommend such a person who might be more serviceable to His Majesty and the College This Paper was delivered to my Lord President the Tenth of April and on the Fifteenth of April without expecting His Majesties Answer as your Hypocritical submission would have persuaded all Charitable Men to believe you did and would expect in Contempt of his former Mandate which had the force of an Inhibition you proceeded to Elect Dr. Hough for your pretended President Upon the first notice whereof the Sixteenth of April my Lord President sent a Letter by His Majesties Command to the Bishop of Winchester not to Admit him But they who have ill designs in their Heads are always in hast by which you surprized your Visitor which occasioned my Lord President the 21st of April to Write another to you to let you know how much the King was surprized at your Proceedings and that he expected an Account of it Then were you Cited before the Ecclesiastical Commissioners at Whitehall where upon mature deliberation and a Consultation had with the best Common Lawyers and Civilians Dr. Houghs Election was declared void the 22d of June and he amov'd from the same by their Lordships just Sentence Of this you were certified by an Instrument under the Seal of the Court of the same Date affixed to your College Gates which being dis-obeyed you were once more Cited by an Instrument of the first to appear before their Lordships the 29th of July to Answer your Contempts You pretended when you came before their Lordships that you were deeply affected with the late Sense of His Majesties heavy dis-pleasure and beg'd leave to prostrate your selves at His Royal Feet offering all Real Testimonies of Duty and Loyalty as Men that abhorr'd all stubborn and groundless resistance of His Royal Will and Pleasure So said and so done had been well but you were resolv'd it seems to give him nothing but good words and that your Practice should confute your Profession I wish you had known in time as well as you pretended to do how entirely your welfare depended upon the Countenance and Favour of your Prince it would then have been as great a grief to you to have dis-obeyed His Majesties Commands as it was a guilt and will be a punishment both in this Life and that to come if not repented of in time On the 14th of August His Majesty signified His Will and Pleasure to you by His Letters Mandatory and thereby Authorized and required you forthwith to Admit the Bishop of Oxon into the place of President any Statute or Statutes Custom or Constitution to the contrary notwithstanding wherewith he was Graciously pleased to dispense to which he expected your ready obedience but all in vain for to your shame be it spoken you had done an ill action and resolv'd to set your busie Wits on work to defend it And Conscience the old Rebellious Topick must be call'd in at a dead lift to plead for you But you are not the first who have mistaken an humor or a disease for Conscience your scruples were not such but that they might without sin have been Sacrificed to your Princes pleasure as a Peace-offering to the Father of your Country to your Mother Church and to the good of this and all other such Charitable Seminaries of good Learning and Religion and Men as wise as you perhaps may think
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
remedy had been at Common Law only It were easie to quote the resolutions of several Judges Savil's Reports fol. 83.105 that no Appeals lye to any but the King in person from a Sentence of the Kings Commissioners in Ecclesiastical causes so Baron Savile affirms that no Appeal doth lye from a Sentence in the High Commission Court and that the high Commission Court is not within the meaning of the Statute of the 25 of H. 8. but the Opinion of my Lord Dyer or others do not exclude an Appeal to the King in person Dyer's Reports for 42. who is the Fountain of Justice and all the Statutes of King Henry the 8th and Queen Elizabeth as to the Erecting of Courts and granting Jurisdiction do only remit and restore the King to his Ancient Jurisdiction of Visiting and Reforming abuses recieving Appeals and other Judicial Acts as Supreme Head and Ordinary as Serjant Dacres observes §. 15. The Case of Charles Cottington Esq about Appeals I shall now Instance in a case of later date wherein there being an Appeal made to the House of Lords against a Decree of the Delegates the Lords dismissed it as not coming properly before them ☞ The case was this Ex Autographo In the Custody of the Clerk of the Parliament Charles Cottington Esq exhibited his Petition May the 10. 1678. to the Lords shewing that in the Year 1677. he Travailing into Foreign parts unfortunately fell into acquaintance with one Angela Margareta Gallina Daughter to a broken Gold-smith in Turin in the Dukedom of Savoy The Petition of Mr. Cottington and was contracted to her in the presence of a Romish Priest in Turin that afterwards he found her a vicious person Married to one Frichinone Patrimoniale upon which Information he left her and returned for England Then he sets forth that this Gallina came to England and claimed to be the Petitioners Wife that he had cited her before the Dean of the Arches in a cause de jactitatione Matrimonii and she alleged that before the contract with the Petitioner she was Divorced from Patrimoniale and the Divorce was pronounced by the Arch-Bishop of Turin and that tho' he made it appear that the Sentence was Collusory and in it self void and not to be regarded in England yet the Judge of the Arches had Sentenced the said Gallina to be the Petitioners Wife Then follows the premises so highly concerning your Petitioner both to the peril of his Conscience Honor Body and Estate and concerning this his Majesties Kingdom in the Establishing a Foreign Jurisdiction against the Laws of the Kingdom Your Petitioner humbly Appealeth in the premisses to this High and Honorable Court and humbly prayeth that the said Sentence of the said Dean of the Arches and Commissioners Delegates may be reversed This was referred to the Committee of privileges Referred to the Committee of privileges June the 6th it was ordered that Presidents and Records should be brought and Council to be heard June the 12th The Earl of Essex's Report from that Committee The Earl of Essex made report from the Committee that upon full hearing what was alleged by Council on both sides and upon perusal of several Presidents they are of Opinion that the said Appeal did not come properly before them the Earl of Shaftsbury only dissenting as by his Subscription appears The Order is entred in these words Die Lunae 17 o. Junii 1678. According to the Order of the 12th of this Instant June The House of Lords Order upon it the House took into consideration the Report from the Committee of privileges concerning the Appeal of Charles Cottington Esq from the Commissioners Delegates whether the said Appeals be properly brought before this House The Opinion of the Committee being that the said Appeal did not properly come before this House The Opinion of the Committee being that the said Appeal did not properly come before this House After debate and consideration of Presidents the Question being put Whither to agree with this Committee in the Report It was resolved in the Affirmative and it is thereupon Ordered that the Petition and Appeal of the said Charles Cottington be dismissed the House of Peers It is to be considered in this matter Considerations upon this Case that after the Sentence in favor of this Gallina by the Delegates Mr. Cottington Petitioned the King in person for a review or dis-annulling the Decree which the King refused to grant and upon that the Petitioner Addressed himself to the Lords whose Order I have recited and tho' it be not expressed in the same Order why the matter was not properly brought before their Lordships yet it is well known that the cause was by reason that Appeals in Ecclesiastical causes do not lye before their Lordships If I could have procured the Printed Case I might have enlarged upon this matter and if it be my good fortune to meet with it before the Publication hereof I shall take notice of what may be material in the Appendix §. 16. The Ninth Objection that matter of Fact proves not right It is Ninthly Objected that tho' it be allowed that the Kings of England have sometimes dispensed with College Statutes and done those things I have all along Instanced in yet that proves not the Right or Justice of the thing since à facto ad jus non valet consequentia To this I Answer The Answer there is a vast dis-proportion betwixt the Acts of Kings and of Subjects Constant and un-interrupted usage are the Foundations of the Customs of England which are Incorporated into the Common Law of the Land and so many Rights are determined for private persons But in the Orders of the Sovereign one declaration of his pleasure by Mandate in several Cases is sufficient Precedent tho' but rarely made use of upon the presumption in Law that such Acts of Kings are not without deliberate consultation However the constant practice of the Kings of England which I hope I have fully proved takes away all colour for this Argument And it is most certain if the Kings dispensing power with Statutes and putting in Heads of Colleges Fellows c. by Mandates If the Kings Prerogative in this Case had been against Law it would have been questioned at some time had been against the Law we should at some time or other heard of Actions brought before the Judges against the Kings Authority in that matter and found determinations upon them in favor of the aggrieved which I think is not to be found But the Kings of England have been in Possession of this Prerogative in all Ages The King in Possession of this Prerogative tho' most conspicuously since the Reformation and so this Prerogative must be adjudged to appertain to the King till by some Legal Tryal it shall be determined otherwise It may be upon this Topick rationally urged that tho' the Kings dispensing power in other matters be in
be found amongst you and not otherwise 'T is a great grief to all sober Men to see any who would be thought True Sons of the Church of England act like Men frighted out of their wits and Religion as you have certainly done Never any True Son of the Church of England was or will be disobedient to his Prince the Loyalty which she hath taught us is absolute and unconditional Tho' our Prince should not please or humor us we are neither to open our Mouths or lift up our hands against him Yours like all other Corporations is the Creature of the Crown and how then durst you make your Statutes spurn against their Maker Is this your way to recommend and adorn our Religion and not rather to make it odious by practising that in such a froward manner which our Church Professes to abhor Do we not pray for the King as the Head of it under Christ Do we not acknowledge him for the Fountain of Honor And does not Solomon Command his Sons to fear God and the King the one with a Religious the other with a Civil fear Is he not the Lord 's Annointed and not to be toucht but with Reverence either in his Crown or Person And why should we not render then to all their dues Fear to whom Fear and Honor to whom Honor Is not this an Eternal tye both of Justice and Gratitude For where the Word of a King is there is Power And who may say unto him what dost Thou Are we not next to God and his Good Angels most beholden to him for our safety whose Honor and Lawful Authority We are now come to Vindicate Is he not the Father of our Country and ought he not to be more dear to Us than our Natural Parents especially considering how Indulgent he has been to Us and what care he dayly takes to keep us from biting and devouring one another we know not why Is not he the Center of the Kingdom and do not the concurrence of all Lines meet in him and his fortunes and how can we then understand the limits of self love if a tender Sense of his Honor and happiness be not deeply rooted and imprinted in our Souls 'T was neither dutifully nor wisely done of you to drive the King to a necessity of bringing this Visitation upon you And as it must needs grieve every Loyal and Religious Man in the Kingdom to the heart to find Men of your Liberal Education and Parts so Untractable and Refractory to so Gracious a Prince so it will be very mischievous to you at the Great Day of Gods Visitation Who will then be the greatest loosers by your Contumacy For God will Revenge this among your other Crimes that you have behav'd your selves so ungratefully towards his Vicegerent as to oppress his Royal Heart with grief for your Stubbornness to whom by your chearful Obedience you ought to have administred much cause of rejoycing They who Sow the Seeds of Disobedience have never any great reason to boast of their Harvest for whatsoever they vainly promise themselves in the beginning they are in the end ashamed and afraid of the Income of their evil Practices and indeed every sort of disobedience hath so ill a report in the World that even they who are guilty of it themselves do yet speak ill of it in others Let therefore the disreputation and Obloquy which it will inevitably bring upon you make you out of Love with it or if that will not do let the Stings of your guilty Consciences and the fear of Divine Vengeance restrain you or if you are still Insensible of all these yet at least let the present fear of those Temporal Punishments which the Laws of the Kingdom have superadded to the Contemners of Gods and the Kings Authority oblige every Soul that hears me this day to be Subject to the Higher Powers If neither a most Merciful God nor a most Gracious King can please you your wages will he recompence upon your own Heads Were it not for this Serpent of discontent and jealousies which are now so busie in it this Kingdom would be like the Garden of Eden before the Curse a Mirrour of prosperity and happiness to all the World besides but this Serpentine humor of Stinging and Biting one another and of Tempting Men to Rebel against God and the King because others who differ from us in Judgment are as happy as our selves will as certainly turn us as it did our first Parents out of Paradise Our Nation is in greater danger of being destroyed by Prophanness then Popery by Sin then by Superstition by other Iniquities then by Idolatry and I pray God we may not see Sacrilege once more committed under the pretence of abhorring Idols as I my self have seen in this place If there be any among you who have sinn'd with so high a hand against our Gracious Sovereign as the obdurate Jews did against our Saviour saying we will not have this Man to Rule over us such your petulant humor such your shameful Injustice and Ingratitude will deserve the just Animadversions of this Court. What distempers this College is sick of which we are now come to visit by the Kings Commission your selves are best able to tell us We are informed of too many already and yet we suspect there may be more and therefore be but Ingenuous and make a Conscience of giving us sincere Answers and you shall find that we will abate nothing of the just measures of our Duty for fear or favor to satisfie the Importunities of any Man being well assured that God and the King will bear us out I am sorry that you should any of you run so far upon the score of the Kings Royal Patience and Pardon as some of you have already done And that you should be in such vast Arrears of Duty and Respect to him as you are But they go far who never turn The Influence you may have upon other parts of the Kingdom makes me Charitably hope that your future Fidelity and Allegiance will for ever Answer your Duty and the Kings just Expectation And therefore I hope it will not be in vain for me to exhort you in the Bowels of Christ to a more entire submission and obedience because if such Men as you bred in so Famous an University are not thoroughly convinced of the necessity of it the more Popular you become the more pernicious will you be in encouraging your deluded Admirers who have their Eyes upon you from all parts of the Kingdom to be as Disobedient and Contumacious as your selves by which the Honor and Authority of the King may be diminished and the peace both of Church and State come to be endanger'd Obey them who have the Rule over you either in Church or State and submit your selves before it be too late for your contumacious behaviour towards them will yeild you no profit at all but your Obedience much every way the former will
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
generally are bred up to Divinity and the hours of Devotion Lectures in Divinity Disputations c. are mostly about Spiritual matters in Ordine ad Spiritualia and Grammar Schools being for Education Vertue and Learning are called Spiritual much more Colleges which are Founded ad Studendum Orandum and if there were none of these considerations yet it is well known that Colleges are to an Eleemosinary end and it is clear in the sense of the Law where persons are lay there may be a Spiritual end 11 H. 4.47 of which matter the curious may find more in * Keebles Reports 2d part page 166. c. Dr. Patricks Case As to the Statute of Magna Charta The Kings Prerogative is not against Magna Charta altho' it grants and confirms many Liberties and Immunities to the people yet it does not deprive the King of his Prerogative who hath the power to Create Courts at Law and give them Jurisdiction as also to Establish Courts by Commission for Regulating deceits oppressions frauds and other matters as seems best to his Royal Will which is no encroachment on our Liberties Temporal or Spiritual as is objected §. 13. The eighth objection concerning liberty of Appeals This leads me to the Eighth Objection made by the favorers of the Ejected Fellows viz. That it is contrary to the Laws of the Land that any person should be deprived of his Fellowship by the Lords Visitors without having liberty to Appeal to the King in his Courts of Justice See pa. 70. here as Dr. Hough words it in his Protestation against the Illegality and Inustice of the Lords Visitors Sentence against him See here pa. 116. and Dr. Fairfax in his Protestation in the same words with the Addition as the Laws Statutes and Ordinances of this Realm will permit in that behalf whose Case differed from Dr. Houghs in that particular that Dr. Fairfax had long enjoyed his Fellowship and was Ejected for his dis-obedience to the Kings Mandate whereas it was disputable whether Dr. Hough was lawfully Elected President But in one particular they alleged that their Cases were alike in that they might have remedy against all such dis-possession of Headship's or Fellowship's in the Kings Courts where relief in all Cases of Property and Free-hold ought to be had ☞ In Crroboration of this Dr. Coveneys Case urged they bring the Instance of Dr. Coveney as in the last Objection is urged that he being deprived by the Local Visitor and Appealing to the Queen by the advice of all the Judges it was held that the Queen by her Authority as Supreme Visitor could not medle in it but he must bring his Action at Westminster Hall because deprivation was a cause merely Temporal §. 14. The Answer In Answer to this First It is apparent in matter of Fact by what I have before from Records made clear that Heads of Colleges Chap. 5. sect 1. §. 10. sect 2. per totum sect 3. §. 3. Fellows c. have been Expelled and deprived by Commissioners for Visitation as appears in the places quoted in the Margent Secondly Coke Instit 4. fol. 339.340 341. Stephen Gardiners Case It is owned that it is not only an usual practice of the Crown to grant Commissions ad revidendum the former proceedings before the proper Judges but likewise the Kings have often granted Commissions with a Clause of Appellatione remota which is a definitive conclusive Sentence from which no Appeals lies ☞ For clearing the point more fully we may consider that the Statute 25 H. 8. C. 19. grants an Appeal from any of the Arch-Bishops Courts to the King in Chancery Appeals according to the Statute 25 H. 8. c. 19. where the King may by Commission Delegate others to determin that Appeal according to the direction of that Act but where Sentence is given by Commissioners Delegated by the Prince and not in any Bishops Court as by Visitation pursuant to the Statute 1 Eliz. c. 2. there Appeals from such a Sentence is not within the Statute of 25 H. 8. c. 19. Yet the King may grant a new Commission to revise the former Sentence Likewise there may be an Appeal to the King in person from all Courts Erected by his Prerogative Appeals to the King in person as from the High Court of Chancery Coke 4. Instit fol. 340. and it is upon Record by Commission 14 Jac. 1. as the words are 14 Jac. 1. par 6. n. 25. that it appertaineth to our princely care and office only to be Judge over all our Judges the meaning whereof can be no other than that from the Judges Sentence and Decrees there may be an Appeal to the King in person 2 Andersons Reports fol. 163. So by the Commission granted by the King to the Commissioners to Visit St. Mary Magdalen College in Oxford the Commissioners were a Court then only for that purpose created by the King Goodmans Case 4. Instit 340. and from any Sentence or Decree pronounced by them the Fellows might Appeal to the King in person but could not Appeal to any Court in Westminster Hall so that the Appeal to the King in Chancery is in such cases as are particularly limited in the Statute of matters in sits in the Courts of Bishops Rolls Abridgment part 2. fol. 233. as Judge Rolls observes who likewise affirms that if a suit be by a Commission General of the King no Appeal can be to the King in Chancery by the words of the Statute for in such Appeals to the King it must be General as he is Supreme Head of all Ecclesiastical Jurisdiction within the Realm and this must be by a Bill Signed by the King after which the King may grant a Commission to Delegates to hear it So that the case of Dr. Coveney is not rightly stated in the Allegation of those of Magdalen College The case of Dr. Coveney not rightly stated that because Dr. Coveney being deprived by the Bishop of Winchester Local Visitor and Appealing to the Queen it was adjudged that the Appeal did not lye because deprivation was merely Temporal and Tryable at Common Law Dyer's Reports fol. 209. for my Lord Dyer only shews that according to the Statutes of 24 and 25 H. 8. the Appeal was to be from a Sentence in the Arch-Bishops Court to the King in Chancery but Dr. Coveneys deprivation was not by any Sentence in the Arch-Bishops Court and consequently not within the Statutes to bring his Appeal to the Queen in Chancery Now the Artifice used by the favorers of the Fellows is The Artifice used by those of St. Mary Magdalen College in citing this case that they make Dr. Coveney to Appeal to the Queen without mentioning in Chancery and so it was not brought before the Queen as Supreme Visitor and so was not within the Statute either way since the deprivation was by the Local Visitor only and in that case his