College SIR YOu will receive herewith His Majesties Mandate to Admit me President of the College of St. Mary Magdalen in Oxon together with a Letter of my Lord Sunderland pursuant to His Majesties Command I am indisposed as I have been for some time and not in a condition as yet to Travel and therefore my request to you is that upon Receipt of the King's Pleasure you would do me the favor to Admit me by Proxy that is either the next Senior Fellow under your self resident or either of my Chaplains Mr. William Wickins or Mr. Thomas Collins whom I depute in my stead which is as valid in Law as if I were present my self and is the most usual customary Practice And by so doing you will oblige SIR Your very Loving Friend and Brother Samuel Oxon. Dr. Pudsey being the Senior Fellow returned this following Answer MY LORD I Have perused your Lordships Letter Dr. Pudseys Answer and in obedience to His Majesty have Read His Letter Mandatory and my Lord Sunderlands Letter pursuant to the same business in the Chappel before the Society this Morning I askt the Fellows how they would proceed in this matter of concernment and what Answer I was to return to my Lord of Sunderland's by the Messenger They replyed unanimously that the place of the Presidentship was full and that they could not Admit any other into the place This my Lord is the matter of Fact and so I remain Your Lordships most humble Servant Alex. Pudsey Magd. Coll. Aug. the 28th 1687. I shall now pass to what I find succeed §. 5. My Lord Presidents Letter to the Bishop of Oxford Bath September the 9th 1687. MY LORD THe King Commands me to send your Lordship the three Inclosed Copies that you may be the better informed in the Case of Magdalen College the consideration whereof he has Committed to you the Dean of Christ-Church and Mr. Walker The first is a Copy of a Letter to me after the Delivery of the King's Mandate which His Majesty having perused sent for all the Fellows on Sunday last to attend him at Christ-Church College and Commanded them to Admit your Lordship President of that College without any further delay or pretence Instead of Compliance they Signed a Paper and sent it to me containing a Direct refusal but upon second thoughts became more sensible of their Duty and subscribed another Paper in terms very submissive Copies of both which you will herewith receive Their meaning in the last Paper I am told is this That if His Majesty shall think fit by his own Authority to Constitute you their President they will very readily acknowledg and obey you desiring only to be excused from Electing you which they allege without breach of their Oaths they cannot do His Majesty thought it necessary that your Lordship and the two Gentlemen above named should be made acquainted with these Circumstances for the direction in the advice you shall offer to His Majesty upon this occasion I am further Commanded to tell you that His Majesty intends to be at Windsor on Saturday Sennight and would have you attend him there on the Munday or Tuesday following if your health will give you leave September the 4th 1687. I am MY LORD Your Lordships most humble Servant Sunderland P. This was agreed on and done by the Fellows after His Majesty had spoken to them These following Papers are the Copies mentioned in the foresaid Letter §. 6. The Copy of one of the Papers mentioned in the preceding Letter At a Meeting of the Fellows of St. Mary Magdalen College in the University of Oxon in the Chappel of the said College the 4th day of September in the Year of our Lord God 1687. Between the hours of Four and Five in the Afternoon of the same day in obedience to His Majesties Command JOhn Smith Doctor of Divinity saith that he is as ready to obey His Majesty in all things that lie in his power as any other of His Majesties Subjects whatsoever but he apprehends it to be contrary to the Founders Statutes and his Oath to Elect the Right Reverend Father in God Samuel Lord Bishop of Oxford President of St. Mary Magdalen College in Oxon and therefore it does not lie in his Power All these following agree with Dr. Smiths Answer above Written Dr. Stafford Mr. Hammond Mr. Rogers Mr. Strickland Mr. Bayley Mr. Davys Mr. Bagshaw Mr. Fayrer Mr. Hunt. Mr. Craddock Mr. Penniston Mr. Hyde Mr. Yerbury Mr. Holt. Mr. Thornton Mr. Holden Mr. Wilks Mr. Henry Dobson Master of Arts saith that he is ready to obey his Majesty to the utmost of his power in the Election of the Bishop of Oxon. Mr. Robert Charnock Master of Arts and Fellow of the said College saith that he is ready to obey His Majesties Order in the Electing the Bishop of Oxon President of Magdalen College Alex. Pudsey Doctor in Divinity and Fellow of Magdalen College in Oxford saith that the doth agree with the rest of the Society In the Presence of John Greneway Pub. Notary I have omitted what passed betwixt His Majesty and the Fellows of St. Mary Magdalen College while the King was at Oxford since there was nothing done by the Fellows which tended to a submission to the Kings Authority but rather to a Justifying of their undutifulness in their Personal Address to him which as it was so contrary to expectation at a time when the King Honored their University with his Presence and was the only disobligation he had met withall in his whole Royal Progress It cannot be wondred that he resented it as he did that a number of Fellows of a single College should persist so in their disobedience in not Admitting the Bishop of their Diocess to be their President an Honor they never had since their Foundation if we may be allowed to call it an Honor to have a person of that Character their Supreme Governor Since therefore they were not required to Elect him but only Admit him by vertue of the Kings Mandate the King having by that superseded the former for Mr. Farmer no Man can think it strange that the King resolved to Chastise them for their contempt in a method Justifiable by Canon Civil and Statute Law both to vindicate his own Royal Authority as likewise to deter others from following such pernicious Examples CHAP. II. The Proceedings of the Lords Commissioners in the Local Visitation of St. Mary Magdalen College in Oxford SECT I. The Transactions from the Citation sent October the 17th 1687. To the Nineteenth of the same Month. §. 1. Citation of St. Mary Magdalen College October 17th 1687. HIs Majesty being so greatly provoked by the disobedience to the second Mandate and now finding it necessary to Assert his own Power resolved upon sending down certain Local Visitors according to which I find it thus Registred Memorandum Out of the Register There being a new Commission with the Addition of Thomas Bishop of
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
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
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
of the same and of the due Execution hereof you are to certifie unto Us at the next Court. Given under Our Seal the 29th day of July 1687. To Thomas Atterbury and Robert Eddows Or either of them §. 10. The Answer of the Fellows why they obeyed not the order of the 22d of June At the Court held c. the 29th of July 1687. Mr. Anthony Farmer was heard upon the complaint exhibited against him by Magdalen College I find nothing more relating to him entred in the Register therefore since the Information against him and his defence are to be reckoned among the Attentatar as the Civilians Style them and are no ways material to the discussing or clearing the Authority of His Majesty or the Lords Commissioners I shall wholly omit any account of them and proceed to what was done in the Court. The Answer of the Fellows of St. Mary Magdalen College in Oxon whose Names are hereunto subscribed being Deputed by the rest of the Fellows of the said College made to the Citation of the Right Honorable the Lords Commissioners of Ecclesiastical Affairs c. THe said Fellows on the behalf of themselves and the rest by whom they are Deputed do Answer that they humbly conceive that the Order mentioned in the said Citation was not Legally served upon them for that Dr. Alexander Pudsey only was desired by the Messenger to call a Meeting of the Fellows to publish the said Order which he declared he could not do for that he was Burser of the said College and had no Authority to do the same nor was the said Order particularly directed to him but to the Fellows in General as the Messenger there declared And when one of the Fellows desired of the Messenger to have it Read the said Messenger refused it saying his directions were to Communicate it to the Fellows at a Meeting whereas the said Fellows cannot meet together till they are Statutably called Saving which Declaration of the said Messenger the Respondents were wholly Ignorant of the Contents of the said Order until the forementioned Citation of the First of July was served upon them And that in the ordinary course of Law all Decrees and Orders of Courts are served and executed by the Ministers and Officers of the said Courts but not by any person or persons upon or against themselves as they conceive the present Case is Alexander Pudsey Tho. Bayley Tho. Ludford Aug. 5th the Deputies of the Fellows attend Out of the Register and give in their Answer in Writing as before recited which being Read were dismissed SECT III. The Transactions from the Mandate for the Bishop of Oxford to the Lords Commissioners Visiting St. Mary Magdalen College §. 1. The Kings Man late to the Fellows c. to Admit the Bishop of Oxford President THe King being willing to place such a President over the College as by the Character he bore in the Church being Bishop of the Diocess might be an Honor to the Society was Graciously pleased to grant the following Mandate JAMES R. TRusty and Beloved 14th Aug. 1687. We Greet you well Whereas the place of President of that Our College of St. Mary Magdalen is now void Our Will and Pleasure is and We do hereby Authorize and Require you forthwith upon receipt hereof to Admit the Right Reverend Father in God Samuel Lord Bishop of Oxon in the said place of President to hold and enjoy the same with all the Rights Priviledges Profits Emoluments and Advantages thereunto belonging any Statute or Statutes Custom or Constitution to the contrary in any wise notwithstanding wherewith we are Graciously pleased and do accordingly hereby Dispense herein We bid you farewell Given at our Court at Windsor the 14th day of August 1687. In the Third Year of Our Reign By His Majesties Command Sunderland P. Superscribed To Our Trusty and Well-beloved the Senior Fellow of St. Mary Magdalen College in Our Vniversity of Oxford or in his Absence to the Senior Fellow resideing there and to the rest of the Fellows of the said College Note that this Mandate was sent after the hearing of Mr. Farmers cause before the Lords Commissioners whose Accusation is Printed in a late Book without his Reply on purpose to vindicate the proceedings of the Electors of Dr. Hough but since there was no Juridical Sentence upon it and the stress of the Case lies not upon his qualifications I shall pass it by and next insert my Lord Presidents Letter pursuant to the Mandate §. 2. My Lord Presidents Letter to the Senior Fellow of the College c. Bath August the 21st 1687. SIR THe King having been pleased by his Letter Mandatory to require the Fellows of St. Mary Magdalen College to Admit my Lord Bishop of Oxford President of that College His Majesty Commands me to let you know that Immediately upon receipt hereof he would have you Assemble the Fellows and Communicate to them His Majesties said Letters and I am further Commanded to tell you that His Majesty expects ready obedience to be paid to his pleasure herein I desire you will send me an Account of your Proceedings as soon as you can that I may acquaint His Majesty with it I am SIR Your Affectionate friend and Servant Sunderland P. To the Senior Fellow of St. Mary Magdalen College To this Dr. Pudsey returned the following Answer §. 3. The Answer of Dr. Pudsey the Senior F 〈◊〉 llow to the foresaid Letter May it please your Lordship UPon Saturday the 27th of August last at Night I received His Majesties Letter Mandatory together with your Lordships In behalf of the Right Reverend Father in God Samuel Lord Bishop of Oxon which I the next Morning Communicated to the Fellows and Read them in the Chappel with all deference to His Majesty and your Lordship the Answer that was given to me was that they humbly conceived the place of the President to be full And because your Lordship requires an Account of the Proceedings of the Society in this matter I send their own words Unanimously agreed upon and in Compliance to your Lordship with all Celerity of dispatch My request is that your Lordship would accept of this Letter with Candor and favorably Interpret it as to the point of Obedience and that I may have the Honor of being accounted Mag. Coll. Oxon. Aug. 28th 1687. Your Lordships most faithful and most humble Servant Alexander Pudsey Subscribed To the Right Honorable the Earl of Sunderland Principal Secretary of State. By this Letter is appears that the Fellows persisted in their obstinacy in not paying obedience to the Kings Second Mandate for admitting the Bishop of Oxford their President §. 4. The Coppy of the Bishop of Oxfords Letter to the Senior Fellow of St. Mary Magdalen College in Oxon or in his absencé to the Senior Fellow residing there Upon the Receipt of the Kings Mandate the Bishop Writ the following Letter to the Senior Fellow of St. Mary Magdalen
thereunto but also be so far Lord over them that when he seeth cause he may abate or totally remit the Penalty Incurred by the breach of them and dispense with others for not observing of them at all yea generally Suspend the Execution of them c. §. 2. Why the Author Treats not largely on this subject But I foresee it will be alleged that what is urged thus in General and in Theory is to be applyed to the Constitution of the Government of England otherwise it reacheth not the point in Question concerning the Kings power of dispensing with College Statutes To which I Answer first That the Kings power in dispensing with Penal Laws in General having by Solemn Judgment in the Kings Bench been determined and several Treatises published to clear the point of Law and there being so lately a * Jus Coronae Treatise Writ by a Judicious person wherein the Kings power in that matter is Learnedly discussed I may be excused from treating more particularly of that § 3. Observations on the 25 H. 8. C. 21. I shall therefore only note a few observables from the Statute of the 25 of King H. 8. Chapter the 21. Entituled in Kebles Edition 1684. An Act concerning Peter-pence and Dispensations but Originally Entituled otherwise as may be seen in the * 1 2 Phil. M. c. 8. sect 10. Act of Repeal in Queen Maries time and the * 1 Eliz. c. 1. sect 8. Act of restoring it in Queen Elizabeths time to which I shall add the explication of another Act 8 Eliz. Cap. 1. and some few other remarks upon that Head. The Foundation of this Act is grounded upon an Hypothesis The Statute 25 H. 8. c. 21. is founded upon the usage of a dispensing power that a dispensing power is needful in Government and altho' it be the constant Opinion and Judgment of the Courts of Law and all Lawyers that the principal intendment of that Act was to Abolish the Popes power and Authority in England in granting Licences Dispensations Faculties c. Yet from this Act many particulars may be observed I must refer the Reader to the Act it self which will shew not only the allowed usage of a dispensing power by the Popes and Prelates in matters of Ecclesiastical Cognizance by sufferance as the Act Styles it of our Kings but that the Original Right of such dispensations was in the King and so continues It is then First to be noted from the Act The Pope excercised a dispensing power that the Pope claimed by Usurpation as it is there Styled and persuaded the Subjects that he had a power to dispense with all Human Laws yea and Customs of all Realms in all Causes which he called Spiritual But the same Act saith that such claim of the Pope was in Derogation of the Kings Imperial Crown and Authority Royal contrary to Right and Reason The power excercised by the sufferance of the King and in derogation of the Royal Authority Therefore in the close of this Section it is added that because it is now in these days present seen that the State Dignity Superiority Reputation and Authority of the said Imperial Crown of this Realm by the long sufferance of the said unreasonable and un-charitable usurpations and exactions practised in the times of the Kings most Noble Progenitors is much and sore decayed and diminished c. Therefore remedy is provided c. From hence I think with submission Nota. it must be owned that if the Pope usurped this power in derogation of the Authority Royal then that power must be owned to be originally in the King otherwise in the Construction of the Act it could be no Usurpation §. 4. The Ecclesiastical power originally in the King according to this Act. ☞ Besides it 's the general Opinion of the greatest Lawyers of England that according to the Constitution of our Laws all Ecclesiastical power and Authority in England is Originally in the King so derived from him or if otherwise it is adjudged Usurpation and encroachment It being an undeniable Maxim That no person hath power or Jurisdiction in England but the King or what is derived from him and this power of the King cannot be disposed away nor abolished but by express words in an Act of Parliament Yea so Sacred are the Prerogatives of the Crown that tho' in some Cases the Kings of England have by Act of Parliament departed with their Prerogatives So the Statutes of the 23 H. 6. about Sheriffs and 31 H. 6. about Justices of Assize are frequently dispensed with Coke 12 Rep. 14. Hoberts Reports Colt and Glovers Case p. 146. and yielded not to dispense with the contrary by a non-obstante yet such Acts have been judged void So my Lord Hobert upon this very Statute saith that he holds it clear that tho' this Statute says that all Dispensations c. shall be granted in manner and form following and not otherwise yet the King is not thereby restrained The Kings prerogative not restrained by Acts of Parliament on several Cases but his power remains full and perfect as before and he may still grant them as King for all Acts of Justice and Grace flow from him as 4 Eliz. Dyer 211. The Commission of Tryal of Pyracy upon the Statute of 28 H. 8. cap. 53. is good tho' the Chancellor do not nominate the Commissioners as that Statute appoints yet it is a new Law and Mich. 5. and 6 Eliz. Dyer 225. the Queen made Sheriffs without the Judges notwithstanding the Statute of 9 E. 2. and Mich. 13. and 14 Eliz. Dyer 303. The Office of Aulnage granted by the Queen without the Bill of the Treasurer is good with a non-obstante against the Statute 31 H. 6. cap. 5. For these Statutes and the like saith the Reverend Judge were made to put things in Ordinary Form and to ease that Sovereign of Labor but not to deprive him of Power He further adds that notwithstanding the excercise of the Popes Authority yet the Crown always kept a Possession of it's Natural power of Dispensations in Spiratualibus as 11 H. 4. so to retain Benefices with Bishoprics and 11 H. 7. to have double Benefices I might add to these to Reservation in the Statute 2 R. 1 Hen. 4. cap. 6. 2. c. 4. saving to the King his Regality to be found in the Parliament Roll in the Kings Confirmation of Liberties which Sir Ed. Coke 4. Instit 51. complain of for being un-printed as also of King Henry the 4th that he will by the Assent of the Lords Spiritual and Temporal aforesaid and at the request of the said Commons be Counselled by the Wise Men of his Council in things touching the Estate of him and of his Realm saving always his liberty that is his Prerogative for that is properly the King Liberty §. 5. Where to find Arguments for the dispensing power I shall not trouble the Reader with
and right Information probably the King would have rejected That the King might have a fit Testimony of the Person before he granted any such Mandate it pleased his Majesty to make this following Order Having taken into Our serious consideration how much it will conduce to the Glory of God Our own Honor and the welfare both of Our Church and the Universities that the most worthy and deserving Men be favored and preferred according to their Merit and being satisfied that the Lord Arch-Bishop of Canterbury and the Bishop of London are the most Competent Judges in such Cases We have thought fit and do hereby declare Our pleasure to be that neither of Our Principal Secretaries of State do at any time move Us on the behalf of any person whatsoever for any Preferment in the Church or any Favor or Dispensation in either of Our Universities without having first Communicated both the person and the thing by him desired unto the Lord Arch-Bishop of Canterbury and Bishop of London or one of them now and for the time being and without having their or one of their Opinions and Attestations in the Case and if at any time We be moved in like manner by any other person whatsoever Our pleasure is and We do hereby declare that neither of Our said Principal Secretaries shall present any Warrant unto Us for Our Royal Signature in such a Case until the said Arch-Bishop of Canterbury and Bishop of London or one of them have been acquainted therewith and have given therein his Opinion and Attestation as aforesaid By this we find that the King resolved to have perpetuated this yet it was Revoked as also a later Mandate as appears by the following Mandate And that this Our Declaratión may stand as a lasting and inviolable Rule for the future Our further Will and Pleasure is that the same be Entered not only in both the sides of Our said Principal Secretary of State but also in the Signet Office there to remain upon Record Given c. the 27th of February 1680 / 1. §. 12. The Re-calling of a Mandate after the former I Insert this out of the Series because I may joyn the Revocation of another Order as followeth Whereas We did by Our Warrant under Our Signet Manual bearing Date at Windsor the 12th of August 1681. Signifie and Declare Our pleasure to be that neither of Our Principal Secretaries of State should at any time move Us on the behalf of any Favor or Dispensation in either of Our Universities without having first Communicated both the person and the thing by him desired unto the Lord Arch-Bishop of Canterbury for the time being John Earl of Radnor George Earl of Hallifax Lawrence Viscount Hyde the Lord Bishop of London for the time being and Edward Seymour Esq and without having the Opinion and Attestation of them or any Four of them in the Case and that if at any time we should be Moved in like manner by any other person whatsoever Our pleasure was and We did thereby Declare that neither of Our Principal Secretaries of State should present any Warrant unto Us for Our Royal Signature in such a Case until the said Lord Arch-Bishop of Canterbury c. had been acquainted therewith and had given their Opinion and Attestation as aforesaid and whereas We have thought fit for special Causes Us thereto moving to Revoke and determin Our said Warrant We do accordingly hereby Revoke and determin the same and all the Authority thereby Granted and Our pleasure also is that Our Order be Entred not only in both the Offices of Our said Secretaries but also in the Signet-Office Dated the 20th of September 1684. By this mandate it appears that it is in the Kings power to Revoke his own Constitutions at his pleasure §. 13. I might add to these the King 's dispensing with Statutes of Cathedral Churches about Leases annexing the Revenues of Prebends to a Deanry ordering the Arch-Bishop of Canterbury to Grant Dispensations for a Bishop to hold Rectories in Commendum of which I could produce many Instances but I keep my self to the business of the Universities In which I hope by a sufficient enumeration of particulars I have made it clear beyond all possibility of Dispute that the Kings of England have dispensed in all the Cases before recited with Statutes of Colleges yet it is as manifest that all the Members of the Universities and of particular Colleges upon their taking of Degrees or being Elected into Fellowships c. take an Oath to observe the Statutes of the University or particular College and yet by the power of the Kings Dispensation are no ways Involved in the Sin of Perjury I shall now proceed to give such Answers as I Judge requisite to those arguments I find couched in any of the defences made by the Fellows of St. Mary Magdalen College and begin with that of the obligation of their Oaths CHAP. VII The Answer to the Arguments used by the Vice-President and Fellows of St. Mary Magdalen College in defence of their proceedings SECT I. Answer to what is urged in their Justification from the Obligation of their Oaths to observe their Statutes §. 1. THe most plausible plea the Vice-President and Fellows used in Vindication of their Electing Dr. Hough and dis-obeying the Kings Mandate was that they were under the obligation of their Oath to observe the Statutes of their Founder in the Literal and Grammatical sense of them And the persons Nominated by the First and Second Mandate of the King were not Qualified according to those Statutes so that in obeying the Kings Mandates they should either be Perjured or forfeit their Rights in their Fellowships if they Elected or Admitted any person not Statutably Qualified and that they were under the like obligation neither to procure accept or make use of any dispensation from that Oath or any part of it by whomsoever procured or by what Authority soever granted To which in Aggravation and Improvement was urged See p. 6. here p. 75. where the King's Declaration is urged which I shall consider in its place the disagreeableness of being pressed to forswear themselves at a time when his Majesty had been Graciously pleased to Grant Liberty of Conscience Finding this Argument looked upon by the favourers of the Ejected Fellows as unanswerable I think my self obliged to clear the point not only by producing the Opinions of Casuists but likewise by the Authority of Bishop Sanderson who deserves the greater respect and credit for that he Adorned the Divinity chair in that University long before he did the Episcopal §. 2. Definition of an Oath In this matter we may consider what an Oath is which is generally defined to be the Invocation of God to be (a) Mart. Bonacina Tom. 2. Disp 4. q. 1. puncto 2 fol. 214. witness of the plighting of our Faith that we will do or suffer to be done such or such a matter by Bonacina