Jonathan Edwards Vice-Chancellor of the said Vniversity do take special care for keeping of the Peace in the said University and particularly in that Colledge Rich. Colinge At the Court at Whitehal the 15th of August 1690. Present The Queens most Excellent Majesty in Council UPon Reading the Petition of Arthur Bury Rector Professor in Divinity George Verman Sub-Rector John Hern Thomas Lethbridge Benjamin Archer Samuel Adams Philip Thorn John Crab Thomas Vivian John Bonany Thomas Kingston and Henry Huthnance Fellows of Exeter-Colledge in Oxford and John Vivian Fellow Elect of the same concerning some proceedings and sentences of the Right Reverend Father in God Jonathan Lord Bishop of Exeter relating to the said Colledge It is this day ordered by Her Majesty in Council that the Lord Bishop of Exeter do return his Answer in writing to this Board to the said Petition annext with all convedient speed Whereupon this Board will appoint a day for the hearing thereof Rich. Colinge A Copy of the Writ directed by the Court of Kings Bench to the Bishop of Exeter upon occasion of the Rector's Excommunication GUlielmus Maria Dei Gratia Angliae Scotiae Franciae Hiberniae Rex Regina Fidei defensores c. Reverendo in Christo Patri ac Domino Domino Jonathano Exon ' Episcopo salutem cum ostens ' est nobis in Curia nostra coram nobis apud Westm ' ex parte Arthuri Bury Sacrae Theologiae Professoris quod cum Colleg ' Exon ' in Universitate Oxon ' est antiquum Collegium ad sustentation unius Rector ' vigint ' trium Scholarium in bonâ litteratur ' liberis artibus proficiend ' studiosor ' ibidem confluend ' in eisdem instruend ' erudiend ' totum in temporalibus nichil in spiritualibus fundat ' de laica fundatione exist ' Cumque vos praefat ' Episcopus qui Visitator esse quinquennem habere Visitation ' ejusdem Collegii clamat ' in Visitation ' vestra seu alitèr nullam habetis Spiritualem Jurisdictionem de in vel super Rector ' sive aliquem vel aliquos Scholar ' ejusdem Collegii seu de in vel concernent aliqua materia clausa sive re tangent ' seu spectant ad idem Collegium neque eosdem Rector ' Scholar ' seu eorum aliquos sive aliquem per Ecclesiasticas Censur ' in aliquo compellere debeatis seu unquam hactenus consuevistis ac licet praedict ' Collegium Exon ' in Universitat ' Oxon ' Rector ' Scholar ' ejusdem sunt semper fuissent extra Diocess vestram omnem Episcopal ' Ecclesiastic Jurisdictionem vestram Tamen vos Episcopus Exon ' permissor ' non ignar ' machinant intendent eund ' Arthurum Bury qui ad officium Rectoris Collegii praed ' rite legitime elect ' in eod ' collocat ' praefect ' fuisset contra debitam legis hujus regni Angliae formam per Ecclesiasticas Censur ' praegravare opprimere fatigare necnon nos exheredare cognitionemque materiae mere laicae quae ad temporal ' cognition ' spectat pertinet ad aliud examen in Cur ' Christianitatis trahere ipsum Arthurum in Curia Christianitatis coram vobis pretextu Visitation ' vestr ' ejusdem Collegii traxistis in placit ' in ipsum Arthurum pretextu contumaciae in non parendo mandat ' vestris in dict' Visitatione vestr ' sententiam excommunication ' fulminaveritis ei diversa gravam ' oppression ' per citation ' ali ' censur ' Ecclesiasticas ex causa praedict ' diversi modo intuleritis in dies inferre intulitis In lesion ' Coron ' dignitat ' nostrar ' ac prefat ' Arthuri damnum non modicum gravamen prejudicium manifest ' ac contra formam legis terrae hujus regni nostrae Angliae Nos Jura dictae coronae nostrae ac legem consuetud ' superdict ' prout per vinculum Juram ' astringimur manutenere volent ' nostrosque ligeos suspencion contra easdem violari nolent ' vobis mandamus ac firmit ' injungendo prohibemus ne placit ' coram vobis versus praedict ' Arthurum super permiss teneatis nec quicquam in ea parte per Censuras Ecclesiasticas attentari presumatis seu per alios attentari faciatis quae in ipsius Arthuri ac in nostri damn ' prejudicium seu legum consuetudinum regni nostri Angliae derogation ' sive contempt ' cedere valeat quovismodo omnia quae per vos in ea parte minus rite attent ' fuerint sine dilatione revocari faciatis sub violator ' legum nostarum penam periculo incurrendi Ipsumque Arthurum si quam sentent ' in eum ea occasione fuluminaveritis penit absolvatis ab eadem Teste J. Holt mil. apud Westm ' xxviii die Novembris Anno regni nostri secundo Edward Jevon of London Gent. maketh Oath That he this Deponent did on the ninth day of this Instant December 1690. serve the now Bishop of Exeter with their Majesties Writ of Prohibition by leaving with him the said Writ under the Seal of Their Majesties Court of Kings-Bench A Copy of which Writ is above written The same Writ was served at the Suit of Sir K. mutatis mutandis Edw. Jevon Jur ' 22. die Decemb. 1690. Coram POSTSCRIPT SInce these Papers were finished Mr. Painter the new pretended Rector and his party have set on foot another practice as little warranted by the Statutes of the Colledge as the rest of the proceedings above mentioned They have assum'd a power to themselves of Electing New Officers out of their own party in the room of the old ones whom the Visitor had as Arbitrarily suspended and with the assistance of the Youth of the Colledge have placed these New Officers by force and violence both in the Hall and the Chappel and that whilest the matter of Right is depending judicially before a proper Court and at their own Suit and they dare to confront the Court of Kings-Bench which has already declared the pretended Sentence of Excommunication against the Rector to be null and void by opposing forcibly his entrance into the Chappel under the pretence of his being an Excommunicated person The particulars of these disorders are not here intended to be made publick but their unstatutable proceeding in chusing New Officers as aforesaid must be taken notice of and the Authors of these confusions put in mind of the Statutes which they seem to have forgotten It is provided by the Statute De Electione Subrectoris Decani c that their Election shall be Tricesimo die Junii annuatim modò formâ subsequentibus videlicet quod convocatis per Rectorem quinque maximè senioribus scholaribus perpetuis tunc in Universitate praesentibus inquirat dictus Rector palam ac publiè suffragia singulorum quibus suum duplex suffragium addat
all Jurisdictions whatsoever that a Founder may reserve to himself or confer upon another This invading of Temporal Rights under a pretence of Ecclesiastical Authority and particularly invading and encroaching upon the Temporal Rights of Founders occasioned that remarkable Statute of Provisions made in the 25th year of the Reign of K. Edward III. in which the King Lords and Commons entitle themselves to their Temporal Rights such as the Custody of Voidances Presentments Collations c. as Lords and Advowees and declare against disturbances of free Elections c. as being against the good disposition and will of the first Founders The same will appear by perusing the other Statutes against Provisors All the Rights of a Founder belonging to him as such are recoverable by the Common-Law of the Realm and if controverted are determinable by That and That only The Right of Visitation is one of them when reserv'd to the Founder or by him settled upon or invested in any other person whoever is entitled to it derives his Title from him and it is a Temporal Right For a Visitor because himself falls out to be an Ecclesiastical Person to apply Ecclesiastical Censures upon such an occasion is as proper as if a Bishop should Excommunicate his Tenant for not paying his Rent or his Servant for not performing the Duty of his place Ann. 3 4 Eliz. Coveney President of Magdalen-College in Oxford appeal'd to the Queen in Chancery from a Sentence of Deprivation given by the Bishop of Winchester Founder and Visitor of that College The discussing of which Appeal was committed to Justice Brown and Justice Weston who after divers Conferences with the Civilians resolved That the Appeal did not lie for that this Cause was out of the Statutes of 24 25 Hen. 8. Nor did he observe the Order of the Statutes i. e. he ought not to have appeal'd to the Queen from the Sentence of the Bishop but if the Cause had belonged to Ecclesiastical Conuzance the Appeal ought to have been from the Bishop to the Archbishop and from Him to the Queen And this matter of Deprivation was meerly Temporal and as by a Lay-Patron Ex hoc sequitur says the Book That if the President be Expell'd he may have an Assize or other Action at Common-Law per que c. Dyer fol. 209. a. This is an Authority in point That the Visitation of a College by a Founder or his Successor is a matter of meer Temporal Right Nor do the words in the Statutes that are laid hold on warrant any such Inference as is made from them That of Ordinarius Visitator does not deserve an Answer Nor must the words per Censuras needs be understood so as to give the Visitor the Jurisdiction of an Ordinary It is not said per Censuras Ecclesiasticas nor if it had been express'd so would it have prov'd the Point since an Archdeacon may inflict Ecclesiastical Censures The word Censura signifies no more than a Penalty and sometimes less a Rebuke a Reprehension The late Act of Convocation at Oxford is called Censura tho it proceeded from no Ecclesiastical Authority When a man is said to have been censur'd in the Star-Chamber no body understands the meaning to be That that Court Excommunicated him It may with as much reason be pretended That where ever the word Judex is used Judex Ecclesiasticus must be understood as that the word Censura must of necessity import Ecclesiastical Censures But if the Statute had been full in it and that Ecclesiastical Censures had been express'd yet the Bishop's Title to his Episcopal Jurisdiction there would have been never a whit the better For how can the private Statutes of a College bring any Crime whatsoever within the lash of Excommunication for which a person is not by the Law of the Realm liable to that Censure A Foundâ—r of a College may direct That if I will enjoy the fruit of his Benefaction I shall conform to the Orders and submit to the Discipline of the Society But he can no more subject me to Excommunication for breaking his Statutes than to loss of Life or Limb or of my private Estate I hold not them of him nor enjoy them by any Right or Title derived from him So that if this College were scituate within the Diocese of Exeter yet the Members thereof would not as such be subject to him as Bishop nor would Offences against their Statutes bring them under his Episcopal Power because his Jurisdiction over them as Visitor is a Temporal Jurisdiction and his general Jurisdiction over the whole Diocese as Ordinary is of quite another nature And quando duo Jura concurrunt in unà personâ aequum est ac si essent in diversis Besides all this no Instance can be found by traditionary Report or the Monuments of the College that ever any former Bishop of Exeter exercised a Spiritual Jurisdiction over Exeter-College or any Member of it or did ever in any Instruments of theirs to the College assume that Name or in any wise claim the Authority implied in it and yet the College is of near 400 years standing But whereas the Author tells us p. 37. That this as all other Colleges in Oxford being exempt from Episcopal and Metropolitical Jurisdiction is immediately subject to the Ecclesiastical Jurisdiction of the Visitor if he be a Person competent and fit to exercise such Authority he must mean if he mean any thing That whatever Authority a Bishop has the Persons that are subject to such Authority are subject to his Ecclesiastical Jurisdiction and then if a Bishop be Lord of a Mannor within his Diocese or at least in a place exempt he being a Person competent and fit to exercise such Authority may Excommunicate his Tenants for not appearing at his Court and performing the Services incident to their Tenures A Bishop that is Chancellor for Example or Justice of Peace may Excommunicate Suitors and Offenders and enforce his Orders by Ecclesiastical Censures This is every whit as rational as that a Bishop being a Visitor of a College c. should take his Episcopal Authority along with him when he goes to Visit the Visitation of a College being an act of Temporal Jurisdiction as much as any of the rest But the Colleges in Oxford are exempt from Episcopal and Metropolitical Jurisdiction and therefore they must be subject to the Ecclesiastical Jurisdicton of their Visitor if a Person competent c. What will become then of those Colleges whose Visitors are of the Laity must they be subject to no Ecclesiastical Jurisdiction at all Yes both are subject to the Ecclesiastical Jurisdiction belonging to the University which belng now legally exempted from the Jurisdiction of any Bishop or Archbishop the Chancellor of the University who was formerly always an Ecclesiastick had the Jurisdiction transferred to him And since of later-times Lay-men of higher Rank have been elected into that Office the Statutes have provided That the Vice-Chancellor
debuit Reverentiâ comparuit eidem Reverendo in Christo Patri Protestationem supra scriptam Rectoris Scholarium Coll. Exon. praedict in Pergamenâ exaratam communi Sigillo dicti Collegii sigillatam contra praetensam Visitationem Reverendi Patris praedict nuper eis intimatam praesentavit sed Domino Episcopo Exon. dictam Protestationem admittere recusante praefatus Reverendus Vir Dr. Bury dictam Protestationem mihi Ben. Cooper Notario Publico palam legendam tradidit quam Dominus Episcopus Exon. è manibus meis inter legendum eripuit quo minus dictam Protestationem perlegere potuerim Acta fuerunt haec omnia prout suprascribuntur In presentia Mei Ben. Cooper Notarii Publici In Dei nomine Amen Coram vobis Reverendo in Christo Patre ac Dom. Dom. Ionathan permissione Divinâ Exon Episcopo ac Patrono Visitatore Collegii Exon infra Vniversitatem Oxon. Nos Rector Scholares Collegii Exon praedict cum omni quá debet Reverentia dicimus allegamus his Scriptis ad omnem juris effectum qui exinde sequi potest aut poterit atque omnibus vià modo juris formâ melioribus quibus melius efficacius de jure possumus dobemus animo protestandi proponimus Quod cum per Literas vestras Citatoriales gerent Dat. Vicesimo primo Die Mensis Julii Anno Dom. Millesimo Sexcentesimo Nonagesimo Nobis intimari feceritis quod Vos Collegium hoc Die Jovis viz. Vicesimo Quarto Die instantis Mensis Julii inter horas Septimam Duodecimam ante meridiem ejusdem Dici Visitare decreverìtis in hunc tenorem viz. Ionathan permissione Divina Dioec ' Exon ' Episcopus Collegii Exon in Universitate Oxon ' Patronus Visitator Ordinarius Cum Nos Collegium Exon ' praedict ' die hor ' loco subscript ' juxta Statuta dict ' Collegii Deo favent ' altissimo tam in Capite quam in Membris Visitare intenderimus Statuerimus Vobis igitur Petro Cox Andreae Skinner Litteratis Mandatar ' nostris a nobis in hac parte constitut ' committimus ac firmiter injungendo mandamus quatenus Citetis seu citari faciatis peremptorie Venerabilem Virum Arthurum Bury Sacrae Theologiae Professorem Collegii Exon praedict ' Rectorem Georgium Verman Sacrae Theologiae Bacc ' Ejusdem Collegii Sub-Rectorem Johannem Hearn Sacrae Theologiae Professorem Thomam Lethbridge Ricardum Hutchins Benjaminum Archer Sacrae Theologiae Bacc ' Samuelem Adams Robertum Ratcliffe Ezram Cleeveland Gulielmum Read Johannem Harris Philippum Thorne Jacobum Colmer Johannem Bagnell Henricum Maundrell Johannem Crab Thomam Vivian in Artibus respectivè Magistros Johannem Bonamy Thomam Kingston in Artibus Bacc ' Franciscum Webber Henricum Levett Henricum Northcote Henricum Huthnance dicti Collegii Exon ' respectivè Scholares Johannem Snell ejusdem Collegii Electum Gulielmum Newe Promum Richardum Hedges Coquum Henricum Edwards Obsonatorem Richardum Parker Bibl. Lectorem dict' Collegii Ministros Ac preterea famulos quoscunque ejusdem Collegii personaliter si ita apprehendi seu citari poterint alioquin per publicum Citationis Edictum presentibus viz. super valvis seu foribus exterioribus Collegii Exon ' predict ' affixis ibidem aliquandiu dimissis relictis aliisque mediis viis ac modis quibuscunque legitimis ac de jure permissis ita quod Citatio hujusmodi ad aures notitiam eorum saltem de verisimili pervenire poterit Quos Nos etiam tenore praesentium sic citamus quod compareant eorum quilibet compareat coram nobis in Aula communi dicti Collegii die Jovis viz. Vicesimo quarto die Julii prox ' sequen ' inter horas septimam Duodecimam ante Meridiem ejusdem Diei Visitationem nostram Ordinariam quam tunc ibidem quoad eos celebrare Exercere proponimus intendimus juxta juris in ea parte exigentiam subitur ' ad Interrogatoria recipiend iisdem respondend ad Detegend ' objici vidend ' ad probationes si opus fuerit de super fieri etiam vidend ad defensiones si quas habuerint quatenus Statuta admittunt faciend ad poenas juxta cujusque demerita si opus fuerit infligi vidend ' singulis Denique Sessionibus ad interessend dicta Visitatione nostrâ pendent Ulteriusque factur ' receptur ' quod justum fuerit in hac parte Intimamus in super omnibus singulis superiùs Citatis Quod sive ipsi seu eorum aliquis comparuerint sive non in praemissis procedere intendimus quatenus rerum ratio patiatur absentiis seu potius Contumaciis ipsorum sic ut praemittitur Citatorum Intimatorum in aliquo non obstan Et quid in praemissis feceritis nos dictis die boris loco debite Certificetis Dat' sub Sigillo nostro Episcopali Vicesimo primo die Mensis Julii An. Dom. Millesimo Sexcentesimo Nonagesimo Cumque vi cujusdam Commissionis Venerabili Viro Edvardo Master LL. Doctori Commissario vestro in hac parte Constituto concessae praedictus Edvardus Master die Martii Vicesimo secundo proximè elapsi ad Collegium Exon ' praedict ' accesserit idemque visitaverit Cumque per Statuta hujus Collegii Exon ' praedict ' ad quae observanda juramento astringimur Liceat Domino Episcopo Exoniensi qui pro tempore fuerit nulli alii nec aliis quoties per Rectorem dicti Collegii in ejus absentia Sub-Rectorem quatuor alios ad minus ex septem maximè Senioribus Scholaribus fuerit requisitus nec non absque requisitione ullâ de quinquennio in quinquennium semel ad dictum Collegium per se vel per suum Commissarium quem duxerit deputandum libere accedere c. nec aliter neque alio modo cumque Spatium Quinquennii minimè effluxerit juxta Statuta praedicta citra Visitationem ut praefertur in hoc Collegio Exoniensi per dictum Venerabilem Virum Edvardum Master Commissarium vestrum in hac parte constitutum obitam Quamobrem primo ante omnia protestamur de non consentiendo in vestram Visitationem Reverende Pater ac Domine nobis sic ut praefertur intimatam hac solâ ratione ducti ne quid fiat quantum in nobis est in praejudicium Libertatum Jurium Privilegiorum Statutorum dicti Collegii ad quae omnia servanda Juramenti vinculo omnes singuli tenemur In cujus rei testimonium Sigillum nostrum commune praesentibus apposuimus Datum Vicesimo tertio die Mensis Julii Anno Dom. Millesimo Sexcentesimo Nonagesimo Concordat cum Originali facta debitâ Collatione per Me Ben. Cooper Notarium Publicum The Answer of the Rector and Fellows of Exeter Colledge in Oxon to the Petition of the Right Reverend Father in God Jonathan Lord Bishop of Exeter Exhibited to the King and Queens most Excellent Majesties THese Respondants do admit
that the Bishop of Exeter for the time being is by the Statutes of the said Colledge appointed Patron and Ordinary visitor thereof but these Respondents are advised and do insist that the Visitors power of Visitation or Exercising any Act of jurisdiction within the Colledge is not general nor as often as he pleases but by the said Statutes is restrained and limitted to be but once in five years and not oftener unless requested by the Rector or Sub Rector and four of the seven Senior Fellows And these Respondents further say that a certain Fellow of that Colledge being proceeded against before the said Rector and the seven Senior Fellows for incontinence and for that crime upon conviction Expelled the Colledge in October last pursuant to the power given to the Rector and said Fellows for that purpose by the Statutes of the said Colledge Dr. Edward Masters Chancellor to the Bishop of Exeter by vertue of a Commission or Power of the said Lord Bishop did in March last come to the said Colledge and Excercised Acts of Visitation and jurisdiction relating to the said Colledge and the said Follows Expulsion confining himself to the time and Circumstances prescribed by the Statutes for Visitation and the said Fellows name being by the aforesaid Commissary inserted into the Colledge Buttery-Book and he claiming the priviledges of a Fellow notwithstanding such his Expulsion A fresh Complaint of the same crime of Incontinence with another Woman was made against him and he Convicted thereof and as a pretended Fellow again Expelled by the Rector and Major part of the Senior Fellows pursuant to the Statutes of the said Colledge whereupon application by the said Fellows being again made to his Lordship his Lordship was pleased by a Citation to signify his pleasure that he intended to visit the Colledge and thereupon these Respondents being informed that his Lordship was come to Oxford for that purpose humbly waited on him to pay him the Respects of the Colledge but withal signified to his Lordship that that intended Visitation not being requested by the Rector or Sub Rector and four of the Senior Fellows in regard of the above mentioned Visitation in the Month of March precedeing was against the Statutes of the Colledge and that therefore they could not submit to it but had drawn up a Protestation under the Common Seal of the Colledge which Protestation was afterwards tendered to his Lordship and rejected by him and these Respondents do beleive that their Chappel-Doors were kept Locked as they usually were at that time of the day but these Respondents do deny that they intended any contempt or disobedience towards his Lordship for whom they have a Dutiful regard as their Visitor yet what was done by them was meerly and only by way of asserting their Legal Rights and as they conceived and were advised in Observance of their Statutes to which they were all Sworn The said Rector and Fellows do therefore humbly pray that under their Majesties gracious Protection they may quietly enjoy the Rights and Priviledges which have been granted to them by the gracious Charters of their Majesties Royal Predecessors At the Court of Whitehall the 25th of June 1690. By the Right Honourable the Lords of their Majesties most Honourable Privy-Council IN pursuance of an Order of the 19th instant the Rector and Fellows of Exeter-Colledge in Oxon having this day presented to the Board their Answer to the Petition of the Right Reverend Father in God Jonathan Lord Bishop of Exeter and the same being read it was thereupon ordered by their Lordships that a Copy of the said Answer be given to the Lord Bishop of Exeter and that the whole matter be heard at this Board on Wednesday the 2d of July next when the parties concerned are to give their attendance Jo. Nicholas At the Court at Whitehal the 5th of July 1690. By the Lords of their Majesties most Honourable Privy-Council THe matter in difference between the Lord Bishop of Exeter and the Rector and Fellows of Exeter-Colledge upon the Petition of the said Lord Bishop and Answer of the said Rector and Fellows concerning a Visitation of the said Colledge having according to Order of the 26th of June last been this day heard at the Board and Counsel learned having been heard on both sides It is Ordered in Council that the same be Dismist as it is hereby Dismist this Board accordingly William Blathwayt To the Queens most Excellent Majesty The humble Petition of Arthur Bury Rector Professor in Divinity George Verman Sub-Rector B.D. John Hern Professor in Divinity Thomas Lethbridge Benjamin Archer Samuel Adams Bs. D. Philip Thorn John Crab Thomas Vivian Master of Arts John Bonony Tho. Kingston Batchelours of Arts and Henry Huthnance Fellows of Exeter-Colledge in Oxford and John Vivian Fellow Elect of the same Humbly sheweth THat Jonathan Lord Bishop of Exeter having given notice that he intended to Visit the said Colledge on the 24th of July last three of the Fellows deputed by the Rector and Major part of the Fellows did on that day in the Morning wait on the said Bishop to acquaint him that as they humbly conceived by the Statutes of their Colledge his Lordship could not Visit them at that time being also the rather induced to believe themselves not mistaken in the sence of the Statutes for that after a full hearing before your Majesties Privy Council upon that subject the said Bishops Petition had been lately dismist But his Lordship was pleased to send them word that tho he expected to meet with Opposition yet he was resolved to come and a little after the return of the Fellows the Colledge gates were broken open by force and violence by those that took upon them to oppose the Colledge to assist the Bishops pretence and a great multitude of rude People rushing in tore down and much abused the said Rector and Fellows By which means the said Bishop found an entrance into the Colledge and went into the Hall and did there hold a pretended Court or Assembly under colour of a Visitation Whereupon the said Rector and major part of thè Fellows came and humbly tendred to his Lordship a Protestation under the Colledge Seal against his Proceedings which they were not suffered to read out The pretended Court being adjourned to the afternoon eleven of the Fellows being your Petitioners amongst whom are five of the seven Senior Follows of the Colledge and all the Officers of the Colledge had Sentence of Suspension ab Officio Beneficio pronounced against them by or in the presence of the Bishop and your Petitioner Hernes Fellowship was Unstatutably declared void and your Petitioner Thomas Kingston was pronounced Excommunicated for having read Prayers in the Chappel after the pretended Suspension of him as Fellow and the name of your Petitioner John Vivian was ordered to be left out of the Colledge Book as no Fellow And although by the said Satutes the Rector of the said olledge if accused of any