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<DATE>2014-04-06</DATE>
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<NAME>Alexis Jakobson</NAME>
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<DIV1 TYPE="title page">
<PB REF="1">
<PB REF="1">
<P>A DEFENCE OF THE PROCEEDINGS Of the Right Reverend The VISITOR AND FELLOWS of <HI>Exeter</HI> College IN OXFORD.</P>
<P>With an ANSWER to
<LIST>
<ITEM>1. <HI>The Ca&s;e of</HI> EXETER <HI>College related and vindicated.</HI></ITEM>
<ITEM>2. <HI>The Account Examin'd.</HI></ITEM>
</LIST></P>
<P><HI>LONDON:</HI> Printed for <HI>Tho. Bennet</HI> at the Half-Moon in St. <HI>Pauls</HI> Church <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 span"></P>
</DIV1>
<DIV1 TYPE="preface">
<PB REF="2">
<PB REF="2">
<HEAD>The PREFACE.</HEAD>
<P>THE Cau&s;e of the late <HI>Rector</HI> of <HI>Exeter</HI> hath been defended with as little <HI>Rea&s;on</HI> and as much <HI>Rudene&s;s</HI> as it was at fir&s;t carried on; and yet after all the&s;e <HI>Affronts</HI> and <HI>Indecencies,</HI> the <HI>Vi&s;itation</HI> of the <HI>Bi&s;hop</HI> of <HI>Exeter</HI> was not more legal in it &s;elf, than the <HI>Proceedings</HI> after it have been <HI>ju&s;t and hono|rable.</HI> When the late <HI>Rector,</HI> upon the <HI>plain</HI> proof of <HI>&s;candalous</HI> Crimes had ju&s;tly been expell'd, and his re|moval wou'd have contributed to the <HI>quiet</HI> of the <HI>Col|lege,</HI> and to the <HI>peace</HI> and <HI>honor</HI> of the whole <HI>Uni|ver&s;ity;</HI> the <HI>Vi&s;itor</HI> however declin'd the exerci&s;e of that power, which in tho&s;e private Societies his <HI>Prede|ce&s;&s;ors</HI> have always us'd, and depriv'd him of his <HI>Office,</HI> not of his <HI>Po&s;&s;e&s;&s;ion.</HI> Of all the <HI>Heads</HI> of <HI>Col|leges</HI> that ever were in that <HI>Univer&s;ity,</HI> Dr. <HI>Bury</HI> is undoubtedly the fir&s;t, who, after the <HI>Vi&s;itor</HI>'s <HI>Sentence,</HI> enjoy'd the <HI>favour</HI> of an <HI>Ejectment.</HI></P>
<P>Some time after, as &s;oon as the Bi&s;hop was inform'd that Dr. <HI>Bury</HI> expected <HI>Redre&s;s</HI> in the Courts of <HI>We&s;tmin&s;ter,</HI> He, upon his <HI>own</HI> motion, de&s;ir'd and obtain'd leave of waving his Privilege in the <HI>Hou&s;e</HI> of <HI>Lords.</HI> When afterwards the Cau&s;e depended before proper Judges in the Court of <HI>Kings-Bench,</HI> Mr. <HI>Painter,</HI> upon his Lord&s;hip's de&s;ire, endeavour'd to ha|&s;ten the Tryal, and the other pa<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ty, upon a <HI>ju&s;t di&s;|<GAP DESC="illegible" RESP="MURP" EXTENT="4 letters"> <GAP DESC="illegible" RESP="MURP" EXTENT="1 span"></HI>
<PB REF="3">prevent it. The&s;e fair and honorable Procedures, which ought to have been <HI>prais'd</HI> and <HI>commended</HI> by an <HI>in|genuous</HI> Adver&s;ary, are neverthele&s;s no <HI>fences</HI> again&s;t the <HI>malice</HI> of a <HI>weak</HI> and <HI>in&s;olent</HI> Libel. The &s;can|dals, coming from <HI>&s;uch</HI> hands, neither need nor de&s;erve an An&s;wer, e&s;pecially &s;ince they are level'd again&s;t a per|&s;on who is <HI>much</HI> above the reach of tho&s;e <HI>Calumnies.</HI></P>
<P>The <HI>Intere&s;t,</HI> which the <HI>Vi&s;itor</HI> pur&s;u'd, is already <HI>&s;ecur'd;</HI> the <HI>College</HI> which his <HI>Predece&s;&s;ors</HI> found|ed, is, by him, reform'd; and that Society which in re|&s;pect of the Tenets there publi&s;h'd, and the Enormities there committed, was the <HI>di&s;grace</HI> of the <HI>Univer|&s;ity,</HI> is now a creditable <HI>Member</HI> at lea&s;t, if not an <HI>Ornament</HI> to it.</P>
<P>The Duty which the Bi&s;hop ow'd to the <HI>Church</HI> and <HI>Univer&s;ity,</HI> is already &s;ucce&s;sfully di&s;charg'd; the <HI>care</HI> and <HI>pre&s;ervation</HI> of both is now happily entru&s;ted to other hands. The powers that he executed were lodg'd in him by his religious <HI>Predece&s;&s;or;</HI> He, by appointment, is &s;ole <HI>Patron</HI> and <HI>Con&s;ervator</HI> of that Society, and <HI>repre&s;ents</HI> the <HI>Founder</HI> in his <HI>College,</HI> as well as &s;ucceeds him in his <HI>Dioce&s;s.</HI></P>
<P>The <HI>Here&s;ie, Bribery,</HI> and other <HI>gro&s;s Immo|ralities,</HI> clearly prov'd upon the late <HI>Rector,</HI> occa&s;i|on'd the <HI>Sentence,</HI> and after it the <HI>Cen&s;ure,</HI> una|nimou&s;ly pa&s;t by the <HI>whole Univer&s;ity</HI> upon his <HI>bla|&s;phemous</HI> Book, &s;ufficiently confirms and ju&s;tifies the <GAP DESC="illegible" RESP="MURP" EXTENT="1 span"></P>
</DIV1>
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<DIV1 TYPE="text">
<PB N="1" REF="3">
<HEAD>A DEFENCE, &amp;c.</HEAD>
<P>MOST of tho&s;e that have read the <HI>Ca&s;e of</HI> Exeter <HI>Col|lege related and vindicated,</HI> are &s;ufficiently convinc'd that &s;o <HI>bad</HI> a <HI>Cau&s;e</HI> &s;tood in need of <HI>better Advo|cates.</HI> The Pamphlet (as the Preface intimates) was de|&s;ign'd to draw over the <HI>unthinking part of their Adver&s;aries,</HI> and what&s;oever influence it may po&s;&s;ibly have had up|on them, it hath not fail'd of a contrary effect on the <HI>thinking part of their Friends.</HI> The only Art (if any) of the Di&s;cour&s;e is, That it is intricate and confus'd, and per|plexes the Cau&s;e which it cannot <HI>refute.</HI> And therefore the plain and direct Method of an&s;wering it, is to reduce the Controver&s;ie to a Point; and afterwards, in &s;hort, to con|&s;ider the <HI>wide</HI> and <HI>immaterial Exceptions</HI> to it.</P>
<P>The &s;ingle Point then now in I&s;&s;ue is, Whether Mr. <HI>Painter</HI> be <HI>Rector</HI> of <HI>Exeter College:</HI> His Admi&s;&s;ion mu&s;t intitle him to that Office, and an Avoidance mu&s;t preceed and war|rant his Admi&s;&s;ion: If Dr. <HI>Bury</HI> then was rightly remov'd, there was room for a new Choice; And, &s;ince no other Objections are made, upon the lawfulne&s;s of his Expul&s;ion the Validity of Mr. <HI>Painters</HI> Title depends. The mo&s;t <HI>notorious Here&s;ie, gro&s;s Incontinence,</HI> and <HI>&s;candalous Bribery,</HI>
<PB N="2" REF="4">are admitted to be good Cau&s;es of Expul&s;ion; but it is pretended that the <HI>Bi&s;hop</HI> of <HI>Exeter</HI> had no <HI>Conu&s;ance</HI> of the Cau&s;e, and con&s;equently no Power of inflicting the <HI>Puni&s;hment.</HI></P>
<P>That the Bi&s;hop is <HI>Ordinary Vi&s;itor,</HI> and <HI>Patron</HI> of that College, is not to be deny'd, and that none el&s;e have any <HI>Vi&s;itatorial</HI> Power therein, is admitted: But a &s;cruple is rais'd, whether, and how far this Power is &s;ubject to Re|&s;trictions, when it is <HI>&s;u&s;pended,</HI> and how <HI>reviv'd:</HI> What are the imaginary Extent and Bounds; When the ab&s;ence and return of this <HI>intermitting</HI> Authority.</P>
<P>It is pretended then, that the Bi&s;hop of <HI>Exeter,</HI> tho <HI>Or|dinary Vi&s;itor</HI> of that College is barr'd from any Power of <HI>receiving</HI> Appeals, and is re&s;train'd from any other than a <HI>Quinquennial</HI> Vi&s;itation: And that therefore, upon the Execu|tion of the Appeal by Dr. <HI>Ma&s;ter</HI> within the <HI>Quinquennium,</HI> the Bi&s;hops Authority of making a Vi&s;itation is deter|min'd.</P>
<P>To prove this Opinion, two A&s;&s;ertions mu&s;t be laid down.</P>
<LIST>
<ITEM>1. <HI>That the</HI> Vi&s;itor <HI>of</HI> Exeter <HI>College hath no Power of</HI> re|ceiving Appeals.</ITEM>
<ITEM>2. <HI>That the</HI> Execution <HI>of a</HI> Commi&s;&s;ion <HI>of</HI> Appeal, <HI>amounts to a</HI> Vi&s;itation.</ITEM>
</LIST>
<P>For if the <HI>Vi&s;itor</HI> had <HI>both</HI> Powers lodg'd in him, it is not pretended that the Execution of <HI>one</HI> determines the <HI>other;</HI> and therefore <HI>their</HI> Cau&s;e depends on the Truth of <HI>both; ours</HI> on the Fal&s;ity of <HI>either</HI> of the&s;e Propo&s;itions.</P>
<P>The&s;e Po&s;itions are &s;o ab&s;urd in them&s;elves, and &s;o ill defended by the Promoters of them; that they are <HI>refuted</HI>
<PB N="3" REF="4">as &s;oon as <HI>explain'd;</HI> and the whole Controver&s;ie will va|ni&s;h at the &s;ame time that the Terms are &s;etled. It will not be immaterial therefore to di&s;cour&s;e of the true meaning and extent of the Words <HI>Vi&s;itor, Ordinary, Appeal</HI> and <HI>Vi&s;itation,</HI> and from thence to di&s;cover the gro&s;s Errors and Mi&s;takes of the late Pamphlet.</P>
<P>And herein I mu&s;t take leave to make u&s;e of not only the Authorities of <HI>Common Law,</HI> but in a great Mea&s;ure to call in the A&s;&s;i&s;tance of the <HI>Canon.</HI> For &s;ince the Statutes of Colleges have a nece&s;&s;ary dependence on the <HI>Eccle&s;ia&s;tical Laws,</HI> &s;ince their Elections, Controver&s;ies, and Proceedings are regulated by <HI>them,</HI> &s;ince la&s;tly Vi&s;itation it &s;elf, if it is not <HI>now</HI> always circum&s;crib'd to <HI>Spiritual Societies,</HI> was yet originally us'd in <HI>Churches</HI> only, and <HI>Religious Places</HI> and &s;till pur&s;ues the u&s;ual Forms of the <HI>Canon Law;</HI> it it ab&s;olutely nece&s;&s;ary, and is u&s;ual in the <HI>Year Books,</HI> in Ca&s;es of this Nature, to receive from the <HI>Canoni&s;ts</HI> the Ex|planation of tho&s;e <HI>Terms</HI> which are borrow'd from them. And therefore tho the late <HI>Author</HI> hath been pleas'd to <HI>defie</HI> the <HI>Civil</HI> and <HI>Canon Law,</HI> yet all judicious and learned Men are &s;atisfied, that as it is much ea&s;ier to contemn any <HI>Science</HI> than to attain it; &s;o in a Cau&s;e of <HI>Spiritual Conu|&s;ance,</HI> or which is nearly allied thereto, it is much better to <HI>have Canon Law,</HI> than to <HI>want Common:</HI> For if we look into the late Ca&s;e we &s;hall find, that this &s;worn Adver|&s;ary to <HI>Eccle&s;ia&s;tical Laws,</HI> took not his Malice again&s;t them out of any great propen&s;ity to <HI>Temporal;</HI> and that Igno|rance of <HI>one part</HI> of Learning is no certain pretence to <HI>another.</HI></P>
<PB N="4" REF="5">
<P>A <HI>Vi&s;itor</HI> then who is in Law, always the <HI>Patron</HI> of a Society, and a <HI>Con&s;ervator</HI> of the <HI>Local Statutes</HI> thereof is intru&s;ted by Law to reform all <HI>Abu&s;es</HI> and <HI>Di&s;orders</HI> therein, and to <HI>redre&s;s</HI> all <HI>Grievances</HI> of the Members thereof.</P>
<P>The Appointment of this Per&s;on, who is to be <HI>Vi&s;itor,</HI> is the Act &s;ometimes of the Law, and frequently of the <HI>Party:</HI> But when ever any Per&s;on by good Authority is made <HI>Vi&s;itor;</HI> the <HI>Law</HI> it &s;elf ca&s;ts upon him all the <HI>Powers</HI> incident to, and nece&s;&s;ary for the Di&s;charge of that Office. A <HI>Vi&s;itor</HI> is a Term of as certain, and as determin'd, tho per|haps not of &s;o well known a Signification, as an <HI>Execu|tor;</HI> and therefore tho the nomination of the Per&s;on him|&s;elf may be from the Party, the Authority is always <HI>a&s;cer|tain'd</HI> by <HI>Law,</HI> the one is <HI>ex In&s;titutione,</HI> the other <HI>ex Pro|vi&s;ione Legis.</HI> And tho the&s;e Powers may be divided, and plac'd in &s;everal Per&s;ons, as <HI>Vi&s;itors, Ordinary</HI> and <HI>Extraor|dinary;</HI> yet where-ever any Per&s;on is con&s;tituted <HI>&s;ole Vi&s;itor,</HI> and <HI>all others</HI> are expre&s;ly excluded; there the <HI>General Ap|pointment ve&s;ts</HI> him with all Authority requi&s;ite to the per|formance of his Duty. For if the Place be of nece&s;&s;ity vi&s;i|table, then the <HI>Rights</HI> of <HI>Vi&s;itation,</HI> where-ever they may be lodg'd, and to whom&s;oever transferr'd, cannot how|ever be dimini&s;h'd, much le&s;s taken away. And therefore any <HI>di&s;cretionary Rules</HI> given to a Per&s;on who is confe&s;s'd to have the &s;ole Authority of Vi&s;itation, ought to receive, e&s;pe|cially if they fairly can, &s;uch an Interpretation as is con&s;i&s;tent with the known Powers of a <HI>Vi&s;itor,</HI> and the Will of the <HI>Founder.</HI> For who&s;oever by plain Words con&s;titutes a <HI>Vi&s;itor,</HI> and afterwards is conceiv'd by doubtful Expre&s;&s;ions to
<PB N="5" REF="5">deprive him of the Power nece&s;&s;ary for that Office, mu&s;t either de&s;ign to <HI>transfer</HI> this <HI>re&s;erv'd Authority</HI> to &s;ome other, or for &s;ome time at lea&s;t to <HI>exempt</HI> the Place from any <HI>Vi&s;itation.</HI> Now if the <HI>Exemption</HI> of &s;uch a Place from Vi&s;itation, for <HI>any</HI> time, upon any Grievance or Enormity committed, be repugnant to <HI>Law,</HI> and the letting in of another <HI>Vi&s;itor,</HI> be evidently contrary to the declard Will of the <HI>Founder;</HI> then it follows, that the&s;e re&s;trictive Di|rections may and ought to be &s;o con&s;trued, as may nei|ther be repugnant to the <HI>Will</HI> of the <HI>Founder,</HI> nor deroga|tory to the <HI>known Law</HI> of <HI>the Land.</HI></P>
<P>This <HI>General Power</HI> of <HI>Vi&s;itors,</HI> is not only (as will after|wards appear) allow'd in all Books
<NOTE PLACE="foot">a Fra. de Pav. de Vi&s;. Marianus Soc. de Vi&s;. Zerola. v. Vi&s;. Mendo de Jure Acad. de Vi&s;. Acad. Chopin. de Mona&s;t. &amp; de eorum Vi&s;.</NOTE> of <HI>Canon Law;</HI> but is likewi&s;e frequently in the <HI>Year Books,</HI> and other Reports of <HI>Common Law pre&s;um'd</HI> and <HI>acknowledg'd.</HI></P>
<P><HI>Littl. Sect.</HI> 139. <Q>If they which hold their Tenements in <HI>Frankalmoign</HI> will not, or fail to do Divine Service; The Lord may not di&s;train, but may complain of this to their Ordinary or Vi&s;itor, praying him, that he will lay &s;ome <HI>Puni&s;hment</HI> and <HI>Correction;</HI></Q> for this, and al&s;o pro|vide, that &s;uch Negligence be no more done, and the <HI>Or|dinary</HI> or <HI>Vi&s;itor</HI> of <HI>Right</HI> ought to do this: And <HI>Coke p.</HI> 96. Expounds of <HI>Right, de Droit,</HI> in the Right of his <HI>Office:</HI> And therefore that the Powers that belong to the Office of a Vi&s;itor, are &s;uch as can correct at any time <HI>all Failures</HI> and <HI>redre&s;s them.</HI></P>
<PB N="6" REF="6">
<P><HI>Term. Mich.</HI> 9. <HI>H.</HI> 6. <HI>fol.</HI> 34 &amp; 33. The Vi&s;itor, or Sove|reign Paramount of the Order, hath power to vi&s;it an <HI>Abby,</HI> and tho&s;e Powers are declar'd to be General, <HI>Ordinary</HI> and <HI>Extraordinary.</HI></P>
<P>And therefore by the Statute 2 <HI>H.</HI> 5.1. Vi&s;itors are ap|pointed to enquire into the <HI>Governance</HI> and <HI>State</HI> of <HI>Ho&s;pitals, &amp;c.</HI> and of <HI>all other Matters</HI> (without re&s;triction of Of|fences or limitation of time) and <HI>to reform,</HI> and <HI>to cor|rect them:</HI> and in the Ca&s;e of <HI>Sutton</HI>'s <HI>Ho&s;p.</HI> 10. Rep. p. 5. To vi&s;it, is explain'd by, to <HI>order</HI> and <HI>reform all Di&s;orders and Abu&s;es</HI> in and touching the &s;aid Ho&s;pital.
<NOTE PLACE="foot">a
<P>See <HI>Siderf.</HI> p. 71. <HI>Widrington's</HI> Ca&s;e, <HI>and</HI> 8 <HI>A&s;&s;. Ed.</HI> 3.</P>
<P><HI>P.</HI> 1. <HI>c.</HI> 1. <HI>Ordinary.</HI> See <HI>Minard Pictav. Antece&s;&s;or ad Cap. Conq. de Officio Jud. Ord. Ordinary ad le Power de Vi&s;itation de</HI> Me<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">o Jure <HI>Dav. Rep. p.</HI> 3. See <HI>Mendo de jure Acad. Ad Ordinarium &s;pectat Univer&s;itas Cau&s;arum Calv. in v. Ord.</HI></P></NOTE> <HI>Vi&s;itator e&s;t fidei Commi&s;&s;arius,</HI> is the Tru&s;tee and Repre&s;entative of the Foun|der, and hath the &s;ame Power in the <HI>Government</HI> and <HI>Pre&s;er|vation</HI> of the College, as the Founder him&s;elf; and therefore it is evident, that in both <HI>Laws</HI> the <HI>Univer&s;al Juri&s;diction</HI> of all Cau&s;es relating to the <HI>State</HI> of the Society, and the <HI>Governance</HI> thereof is of <HI>Right,</HI> and of <HI>nece&s;&s;ity</HI> committed to the Vi&s;itor.</P>
<P>Now if this Rule holds in the Ca&s;e of a Vi&s;itor in General, it is infinitely more &s;trong for him, who is con|&s;tituted <HI>Ordinary,</HI> or <HI>Ordinary Vi&s;itor;</HI> For that Word, as well in Canon, as in Civil Law, (and &s;ince, as thence receiv'd) in <HI>Common,</HI> implies and carries with it <HI>origi|nal</HI> and <HI>univer&s;al</HI> Juri&s;diction. An Ordinary is di&s;tingui&s;h'd as from a <HI>Delegated;</HI> &s;o from a <HI>re&s;train'd</HI> Judge, he hath within his <HI>Sphere,</HI> and within his <HI>Forum</HI> (whether Se|cular, Eccle&s;ia&s;tical or mixt) the Conu&s;ance of all Cau&s;es
<PB N="7" REF="6">what&s;oever, and that of him&s;elf, without any <HI>deputation.</HI> And therefore tho the <HI>Nature</HI> of the Cau&s;es, and the <HI>pro|cedure</HI> upon them may be different; yet as to the <HI>ri&s;e</HI> and <HI>extent</HI> of the Power, the Juri&s;diction of all Ordinaries in their re&s;pective Courts, mu&s;t be the <HI>&s;ame,</HI> and equally <HI>Univer&s;al.</HI></P>
<P>Now then as the <HI>Canon</HI> for prevention of Proxies re|&s;trains the Bi&s;hop, tho <HI>Ordinary</HI> to <HI>triennial Vi&s;itations</HI> of his <HI>Dioce&s;s;</HI> &s;o the Local Statutes for prevention of <HI>Spor|tulage,</HI> limit Vi&s;itors to a <HI>Quinquennial</HI> Vi&s;itation of their Colleges: And yet the Canon, and the Statutes that re|&s;train the Solemn Vi&s;itation, bar them not in the mean time from the ordinary <HI>Acts of Juri&s;diction.</HI> A general and chargable Enquiry <HI>ex Officio mero</HI> into Matters undetected is limited; but a redre&s;s of <HI>emergent</HI> Grievances, and the Conu&s;ance of Matters delated, as nece&s;&s;arily incident to his Office of <HI>Ordinary,</HI> neither is, nor without an apparent Failure of Ju&s;tice can be <HI>taken away,</HI> or <HI>re&s;train'd.</HI> And therefore as in all Dioce&s;es, &s;o in all <HI>Colleges,</HI> where the Right of a <HI>triennial</HI> or <HI>quinquennial</HI> Vi&s;itation is lodg'd, there in the &s;ame Per&s;on, this <HI>Power</HI> of redre&s;&s;ing Grievances in the interval, hath always been <HI>pre&s;um'd</HI> and <HI>allow'd.</HI> And as the <HI>Practice</HI> in all <HI>Colleges</HI> hath always been the &s;ame, &s;o is the rea&s;on of it too: An <HI>Univer&s;al Provi&s;ion</HI> for all Grievances is de&s;ign'd; the Redre&s;s of them is plac'd in the Ordinaries and Vi&s;itors only; and therefore their Power doth
<NOTE PLACE="foot"><P><HI>Vi&s;itatio intromittitur &s;aepius nece&s;&s;itate exi&s;tente, Ugolin p.</HI> 103.</P>
<P><HI>Regula quae re&s;picit Commune, &amp; regularem vi&s;itationem, quae fit etiam fine cau&s;it, non prohibet iteratam, &s;i cau&s;a &s;ube&s;&s;e. Marian. Socin. de Vi&s;.</HI> See <HI>p.</HI> 241.</P>
<P>This <HI>Fra. de Pavinis</HI> calls <HI>quotidiana Vi&s;itatio, quae fit quotidie ex multis cau&s;is eme gentibus. Tr. Tract. Tom.</HI> 14.</P></NOTE>
<PB N="8" REF="7">and mu&s;t during the <HI>triennial Term</HI> extend it &s;elf to any oc|ca&s;ional Exorbitances. It is further ob&s;ervable, that an Or|dinary is &s;aid to have an <HI>internal Juri&s;diction,</HI> and &s;uch an one as is oppo&s;ite to a forreign Authority; and therefore when Bi&s;hops vi&s;it their own Ho&s;pitals <HI>de Jure,</HI> they act as <HI>Ordinaries,</HI> but when appointed by the King, they have only a <HI>borrow'd, forreign,</HI> and <HI>delegated</HI> Juri&s;diction. When Bi&s;hops visited their Dioce&s;es, they were <HI>dome&s;tick</HI> Judges; but when <HI>tanquam Sedis Apo&s;tolicae delegati,</HI> they visi|ted Mona&s;teries and places exempt; they had only an <HI>extra|ordinary</HI> and <HI>derivative</HI> Authority.</P>
<P>This is the Power of a Vi&s;itor, which may and ought to be exercis'd in tho&s;e Places that are of right vi&s;itable, and therefore it is next to be remark'd, that not only <HI>Churches,</HI> but all <HI>Free Chappels,</HI> all
<NOTE PLACE="foot">a <HI>Coke</HI> 10. <HI>Sut. Ho&s;p.</HI> 31. <HI>Brook Ab.</HI> 55. <HI>vid.</HI> 2. <HI>H.</HI> V. <HI>St.</HI> 1. 14 <HI>Eliz. c.</HI> 5. 13 <HI>Eliz. c.</HI> 17. <HI>Lyndw. l.</HI> 3. <HI>c.</HI> 10. 14 <HI>Eliz. c.</HI> 5. 2 <HI>In&s;t.</HI> p. 725. <HI>Roll's, Ab. f.</HI> 229. 8 <HI>E.</HI> III. 70.37. <HI>Davies Proxies</HI> 23. 9 <HI>H.</HI> VI. 3<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">. 9 <HI>Ed.</HI> IV. 24.</NOTE> <HI>Ho&s;pitals</HI> and <HI>religious Hou&s;es,</HI> as well of <HI>Seculars</HI> as <HI>Regulars,</HI> all <HI>Univer&s;ities</HI> and <HI>Col|leges,</HI> all
<NOTE PLACE="foot">b
<P>See <HI>Ho&s;tienfis de Rel. Dom.</HI></P>
<P><HI>Greg. l.</HI> 5. <HI>Tit.</HI> 31. <HI>c. nimis iniqua. Quarrant v. Exempt. Genuens. in prax, c.</HI> 59. <HI>Vid. Rebuff. de confra. Lup. de Xen. Summa Sylve&s;t. in v. Ho&s;p.</HI> &sect; 2. <HI>n.</HI> 3. <HI>Rolls. Ab. p.</HI> 22<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">, 230.</P>
<P><HI>Vgotin. p.</HI> 103. <HI>Vi&s;itari debent ab Epi&s;copis quae Generalibus Capitulis non &s;unt &s;ubjecta.</HI></P>
<P>Angel. in v. Ho&s;pit. <HI>Et hoc procedit etiam&s;i Te&s;tator qui aedificavit prohibui&s;&s;et; ne Epi&s;copus in tali negotio intromitteret Conc. Trid. Se&s;&s;.</HI> 7. <HI>c. quia Te&s;tator non pote&s;t facere, quin in leges &s;uo Te|&s;tamento locum habeant.</HI></P>
<P>11 <HI>H.</HI> IV. <HI>&amp;</HI> 41. <HI>Ed.</HI> III. 5, 6. See <HI>Marrad. de Jure Abbatum Prae&s;criptio tollens vi&s;itationem non valet, quia cedit in damnum publicum, &s;ed valet quae transfert.</HI></P></NOTE> <HI>Lay-Confraternities</HI> in&s;tituted for <HI>charitable De|&s;igns,</HI> and in <HI>&s;hort,</HI> all <HI>Loca pia,</HI> whether they be <HI>eccle&s;ia|&s;tical, lay,</HI> or <HI>mixt Societies,</HI> are in both Laws, Canon and Common, &s;ubject to Vi&s;itation. And therefore if no parti|cular Vi&s;itor be appointed by the Founder, and no other provi&s;ion is by Law made for the Vi&s;itation, then the Ca|non
<PB N="9" REF="7">and Statute &s;upply the Omi&s;&s;ion, and entru&s;t the <HI>Ordi|nary of the Place</HI> with this univer&s;al Juri&s;diction. There is no pre&s;cription again&s;t Proxies, no more than again&s;t Tiths; the one is as incident to a Vi&s;itation as the other to In&s;truction; and both tho&s;e are and have been e&s;teemed of indi&s;pen&s;ible nece&s;&s;ity. Vi&s;itation is as incident to tho&s;e Societies as a <HI>Court</HI> to a <HI>Mannor,</HI> and is equally of common <HI>right</HI> and of common <HI>nece&s;&s;ity:</HI> And therefore
<NOTE PLACE="foot">b <HI>Non valet prae&s;criptio ut ab aliquo vi&s;itari quis non po&s;&s;it, &s;ed bene valet contra Epi&s;copum quod alius Praelatus vi&s;itet.</HI> Cald. Lond. 453.</NOTE> it is, and was a received Rule in both Laws, that of &s;uch vi&s;itable Places and Per&s;ons none can in any place be wholly ex|empt, but mu&s;t either be immediately <HI>&s;ubject</HI> to one, or <HI>re&s;erv'd</HI> to another Power.</P>
<P>Now there are two <HI>Methods</HI> by which all Grievances and all Exorbitances may be brought into que&s;tion before the Vi&s;i|tor; one is the Complaint of the Party aggriev'd; the other the <HI>general Enquiry</HI> of the Vi&s;itor him&s;elf into all the Offences of his Subjects: The former is by the <HI>Pro&s;ecution</HI> of the Party, the latter upon the <HI>mere Office</HI> of the <HI>Judg;</HI> the one of the&s;e, tending to the Redre&s;s of particular and occa&s;ional Grievances, gives foundation to an <HI>Appeal;</HI> the other, aiming at the Reformation of all general growing Mi&s;demeanours and Exorbitances, affords Matter for a <HI>Vi&s;itation.</HI> Now tho it is certain that all Vi&s;itors are entru&s;ted with both the&s;e Powers, as equally nece&s;&s;ary for the pre&s;erving the College, yet is it no le&s;s evident, that both the&s;e are di&s;tinct in their <HI>Nature and End;</HI> and that nothing but gro&s;s Ignorance can confound them. Nothing but Complaint made to a &s;upe|rior
<NOTE PLACE="foot">a Dav. Rep. Ca&s;e Proxies.</NOTE>
<PB N="10" REF="8"><HI>Judg</HI> by a <HI>particular</HI> Per&s;on, in his own nece&s;&s;ary <HI>de|fence</HI> for his own <HI>private Intere&s;t,</HI> and which tends not &s;o much to the <HI>Puni&s;hment</HI> of <HI>Offenders,</HI> as to his <HI>own Re|lief,</HI> can produce and occa&s;ion a Commi&s;&s;ion of <HI>Appeal.</HI> But the Confe&s;&s;ion of his own Subjects, made upon Oath to a <HI>Judg,</HI> upon his <HI>enquiry</HI> for the <HI>Execution of Ju&s;tice</HI> and which propounds not any <HI>private</HI> Amends and Satisfa|ctions, but the <HI>publick Good,</HI> and the <HI>Safety</HI> of the <HI>Body Corporate</HI> is the ground of a <HI>Vi&s;itation.</HI></P>
<P>Now then, &s;ince I have in &s;hort laid down the nece&s;&s;ary Powers of a <HI>Vi&s;itor</HI> and an <HI>Ordinary;</HI> the u&s;ual <HI>Methods</HI> of their Procedure upon an <HI>Appeal,</HI> and in a <HI>Vi&s;itation;</HI> and la&s;tly have &s;hown the <HI>Nature</HI> of Places <HI>vi&s;itable;</HI> it re|mains as briefly to apply the&s;e certain and general Rules to the pre&s;ent Ca&s;e in que&s;tion.</P>
<P>The Founders of Colleges then as they de&s;ign the Perpe|tuity of their E&s;tate, &s;o they equally de&s;ire the Continuance of their own Laws and local Statutes.
<NOTE PLACE="foot">a 6 <HI>H</HI> VII. 14. <HI>Fitz. N. Br. fol.</HI> 93 94.</NOTE> Their Tru&s;tees for enforcing the&s;e Orders and Con&s;titutions are by Law their <HI>Heirs;</HI> and, by appointment, u&s;ually among Bi&s;hops, their <HI>Succe&s;&s;ors.</HI> The&s;e are, in re&s;pect of their Protection of the College, called <HI>Patrons;</HI> in reference to their Juri&s;diction, <HI>Vi&s;itors.</HI> For as it is a certain Rule, That a Founder hath in him the Power of <HI>Vi&s;itation,</HI> &s;o is it no le&s;s controverted, that a
<NOTE PLACE="foot">b 8 <HI>E.</HI> III. <HI>A&s;&s;.</HI> 29. <HI>&amp;</HI> 250.</NOTE> Patron, who is <HI>loco Fundatoris,</HI> &s;ucceeds to tho&s;e Rights, and by con&s;truction of Law, is <HI>Vi&s;itor.</HI> Oftentimes, as is ea&s;ie to be &s;een in the Charter of ancient Ho&s;pitals and religious Societies; there is nothing more &s;pecifi'd than <HI>Vi&s;i|tatorem
<PB N="11" REF="8">relinquimus;</HI> and in others, <HI>Patronum de&s;ignamus;</HI> and tho&s;e words only by plain and nece&s;&s;ary implication, convey'd the vi&s;itatorial Juri&s;diction in its full extent and latitude. The Power of receiving Appeals was &s;o great and &s;o nece&s;&s;ary a part of that Authority, that tho I find in very few Statutes of Mona&s;teries and religious Societies, that Liberty expre&s;ly given them, yet was it <HI>pre&s;um'd, own'd</HI> and <HI>practis'd</HI> in all. Whether the <HI>vi&s;itatorial</HI> Power was lodg'd in the <HI>Ordinary</HI> of the place, the <HI>Principal</HI> of the Order, the <HI>&s;uperior Abbot,</HI> the <HI>Capita Ordinum,</HI> the <HI>Ju|dex Academicus,</HI> the <HI>Con&s;ervator Univer&s;itatis,</HI> or la&s;tly in the <HI>local Vi&s;itor</HI> of the College, it is a certain undeniable Propo|&s;ition, that wherever the entire Power of <HI>Vi&s;itor</HI> is plac'd in one Per&s;on, there, as an <HI>incident</HI> to the Office, the Redre&s;s of Grievances upon Appeals was by Law ve&s;ted and &s;etled.</P>
<P>And therefore, tho the pretended Re&s;trictions are as &s;trong in almo&s;t all Colleges in the Univer&s;ity as in <HI>Exeter,</HI> there is not one, at lea&s;t of any &s;tanding, wherein Appeals have not con&s;tantly been made to the <HI>Vi&s;itor.</HI> And as Cu&s;tom and common Practice have own'd the <HI>Vi&s;itor</HI>'s Authority herein, &s;o likewi&s;e the Courts at <HI>We&s;tmin&s;ter</HI> have counte|nanc'd and approv'd it. And therefore in <HI>Apleford</HI>'s Ca&s;e, <HI>Mic.</HI> 22. <HI>Car. B. R.</HI> in <HI>Widrington</HI>'s Ca&s;e, <HI>Hill.</HI> 13. and 14. <HI>Car.</HI> II. <HI>B. R.</HI> in
<NOTE PLACE="foot">c See <HI>VVhitlock</HI>'s <HI>Read, Div.</HI> 3. <HI>Point</HI> 9. See <HI>Patrick</HI>'s Ca&s;e, <HI>Hill.</HI> 18, 19. <HI>Car.</HI> II. <HI>B.R.</HI></NOTE> Dr. <HI>Lewis</HI>'s Ca&s;e, Provo&s;t of <HI>Oriel.</HI> in <HI>Parkin&s;on</HI>'s Ca&s;e, 1^m^o W. <HI>&amp;</HI> M. <HI>B.R.</HI> in <HI>Proo&s;t</HI>'s Ca&s;e, <HI>Hill.</HI> 3^i^o W. <HI>&amp;</HI> M. <HI>B.R.</HI> it is re&s;olv'd, That the proper Remedy of all ex|pell'd or injur'd Heads Fellows or Members of Colleges, lies in an Appeal to the local <HI>Vi&s;itor</HI> only, and that they are conclud|ed
<PB N="12" REF="9">by this determination. <Q>If there be a Juri&s;diction in the <HI>Vi&s;itor,</HI> &s;aith my Lord C. J. <HI>Hales,</HI> and he hath de|termin'd the Matter, how will you get over that Sentence? and thereupon a <HI>Mandamus</HI> was deny'd.</Q> But if a Fellow had no Vi&s;itor to whom he might appeal, as in <HI>Herns</HI> Ca&s;e, the <HI>Mandamus</HI> was granted and adjudg'd good. Since there|fore in all other Societies and Mona&s;teries an Appeal to the <HI>Vi|&s;itor</HI> hath been granted, &s;ince in all Colleges it hath been us'd and allow'd, and &s;ince as in all foreign <HI>Courts,</HI> &s;o e&s;pecially in tho&s;e of <HI>Westmin&s;ter</HI> it hath been unque&s;tionably admitted, no|thing needs further to be added to the Confirmation of it, than that in <HI>Exet,</HI> Coll. the Statutes do more plainly ca&s;t that Power upon the <HI>Vi&s;itor,</HI> than in mo&s;t other Colleges of the Univer&s;ity.</P>
<P>The Statute <HI>De Vi&s;it.</HI> &s;ays, <HI>Adeo pronum &amp; ad malum pro|clive e&s;t humanum genus, &amp; uti quotidie videmus, varietas tem|porum optima quaeque aufert, &amp; mutat, ut non &s;it in no&s;tr&acirc; po|te&s;tate eas condere Leges &amp; Statuta quae non violet aliquan|do a&s;tutus, &amp; ver&s;ipellis, aut mal&egrave; interpretando aut aliquid fraudis ingerendo aut excogitando modum quo nodum quamvis Herculeum di&s;&s;olvat.</HI></P>
<P><HI>Di&s;tinctions,</HI> he was &s;en&s;ible, were to be found out; the Statute might ea&s;ily be eluded; <HI>Bribery</HI> might be con&s;trued <HI>Repairs; Promotionis cau&s;a</HI> might be interpreted a Benefice, and therefore again&s;t all the&s;e Evils he provides a <HI>Vi&s;itor,</HI> un|happily not forefeeing, that even this Remedy it &s;elf might <HI>mal&egrave; interpretando</HI> be di&s;tingui&s;h'd into <HI>nothing.</HI></P>
<P><HI>Nos eam ob cau&s;am, ea quae duximus no&s;tro tempore utilia &amp; commoda, inferentes qu&ograve;d ea con&s;ervanda rect&eacute;que interpretanda attinet, confidimus authoritati &amp; benignitati Epi&s;coporum</HI> Exoni|en&s;ium <HI>Succe&s;&s;orum no&s;trorum, quos dicti Coll. Patronos &amp; Vi&s;i|tatores
<PB N="13" REF="9">relinquimus, ut illi qui ex &s;ua liberalitate &amp; mera benignitate adducti ac fervid&acirc; charitate in fidem Chri&s;tianam inflammati, ad hoc Alvearium con&s;ervandum invigilent, ut Statuta &amp; Ordina|tiones dicti Collegii firmiter ob&s;erventur, virtutes &amp; di&s;ciplinae nu|triantur po&s;&s;e&s;&s;iones &amp; bona &s;piritualia &amp; temporalia pro&s;pero &s;tatu floreant, jura, libertates &amp; privilegia defendantur &amp; protegantur.</HI></P>
<P>Now I would willingly know, whether <HI>relinquimus Patronos, &amp; Vi&s;itatores,</HI> be <HI>operative</HI> Words or not; whe|ther <HI>confidimus autoritati &amp; benignitati Epi&s;coporum</HI> Exo|nien&s;ium <HI>ut ad hoc</HI> Alvearium <HI>con&s;ervandum</HI> invigilent <HI>ut Statuta &amp; Ordinationes dicti Collegii firmiter ob&s;erventur, &amp;c.</HI> are fit for an univer&s;al provi&s;ion; and do con&s;equently lodge in the Vi&s;itors thereof an <HI>Univer&s;al Juri&s;diction?</HI> whether it is po&s;&s;ible to defend <HI>Po&s;&s;e&s;&s;iones &amp; bona &s;piritualia &amp; temporalia</HI> by a Vi&s;itation once in <HI>Five</HI> Years, which may be dilapi|dated in le&s;s than <HI>one;</HI> whether it will be ea&s;ie <HI>protegere Ju|ra &amp; Libertates</HI> of the Members thereof, by re&s;toring them Five Years after Expul&s;ion? Could there be more expre&s;|&s;ive, plain and exten&s;ive Words found out for the Settlement of the Vi&s;itatorial Power? and can it afterwards be thought that the Founder de&s;ign'd to expo&s;e his College and the Members thereof to all <HI>growing Evils,</HI> to all <HI>occa&s;ional Grie|vances,</HI> and <HI>emergent Exorbitances</HI> and <HI>Combinations?</HI></P>
<P>It is plain then that the Founder repos'd the whole Tru&s;t and Care of the College in the B. of <HI>Exeter</HI> his Succe&s;&s;or; and to that end con&s;tituted him <HI>Ordinary Vi&s;itor,</HI> and <HI>Patron</HI> thereof, in &s;o general and expre&s;&s;ive Words, that in all the Ap|pointments of the <HI>Vi&s;itors,</HI> either of Ho&s;pitals or of Mona&s;teries, or of Colleges; I never &s;aw, and believe there is not, any one In&s;tance wherein larger Powers were granted to a Man, and
<PB N="14" REF="10">where the Grant was ever made with more Solemnity: And therefore, if this Power (which is an impo&s;&s;ible Suppo&s;al); but if it &s;hould fail in its bottom, I dare, upon enquiry, affirm, that <HI>no vi&s;itatorial Juri&s;diction</HI> of <HI>Churches, Ho&s;pitals</HI> and <HI>Chappels,</HI> can upon more expre&s;&s;ive Words be main|tain'd and &s;upported, and that all the provi&s;onary Con&s;ti|tutions of tho&s;e Societies were vain and idle Appointments. For if Founders do adjure, and in <HI>Vi&s;ceribus Je&s;u Chri&s;ti</HI> be|&s;eech their Succe&s;&s;ors; <HI>ut fervid&acirc; Charitate</HI> in <HI>fidem Chri&s;tia|nam inflammati,</HI> they &s;hould expell all Here&s;ie from their So|ciety; and if afterwards their <HI>Saviour</HI> in this very College &s;hould be expos'd as a <HI>Galilaean</HI> Vagabond, and a <HI>Crucifi'd</HI> Va|gabond, and if all the Fundamentals and Articles of Faith &s;hould be therein ridicul'd to the known di&s;turbance and abhorrence of the whole Univer&s;ity in a mo&s;t &s;olemn manner dclar'd; and if, la&s;tly, it is impo&s;&s;ible for the &s;ole Vi&s;itor of that College to give any redre&s;s herein, or to allow any le&s;s &s;cope to the Rector for Libelling his Saviour here then a <HI>Quinquennium;</HI> then it mu&s;t be allow'd, I &s;uppo&s;e, that the&s;e Rules and Orders were incon&s;i&s;tent and null, and the well meant Dreams of their <HI>Religious Founders;</HI> But if an Univer&s;a|lity of Juri&s;diction, as plainly it is, be lodg'd in the Bi&s;hop, and may upon &s;uch Emergencies be exerted, then is the Founder con&s;i&s;tent with him&s;elf, then his plain Words will have their due Force; And the College according to his ap|pointment may be govern'd and pre&s;erv'd.</P>
<P>I &s;hall in&s;i&s;t now on no more than one other Branch of the Statute. <HI>Quos</HI> quidem <HI>Rectorem Subrectorem, &amp; Ele|ctos, ac praeterea Mini&s;tros quo&s;cun&abque; &amp; Famulos, praedicto</HI> Do|mino
<PB N="15" REF="10">Epi&s;copo, <HI>&amp; &s;uo</HI> Commi&s;&s;ario, <HI>&s;ed nulli alli, volu|mus &amp; praecipimus effectualiter intendere &amp; parere.</HI></P>
<P>As before, the Bi&s;hop was appointed Vi&s;itor; &s;o here all others are barr'd from any Partner&s;hip in the Authority: The Powers that were given him are <HI>intire,</HI> and <HI>undivi|ded;</HI> and all the Controver&s;ies are taken away, that u&s;ual|ly ari&s;e from <HI>concurrent</HI> and <HI>interfering</HI> Juri&s;dictions.</P>
<P>Now &s;ince by expre&s;s Words &s;o large Authority is plain|ly lodg'd in the Bi&s;hop of <HI>Exeter;</HI> let us con&s;ider what is offer'd to dive&s;t him of this Power.</P>
<P N="1">1. A Fellow hath &s;worn not to commence a Suit again&s;t the College, and hath renounc'd the Right of Ap|pealing.</P>
<P><HI>Omni Actioni contra Rectorem, &amp;c. quomodolibet appellationi &amp; querelae in ea parte faciendis &amp; quarumcun&abque; literarum im|petrationi, precibus principum, praelatorum, &amp;c. quibus po&s;&s;em ad jus, titulum &amp; po&s;&s;e&s;&s;ionem vendicandam reconciliari, ac quibu&s;libet juris vel facti remediis, per quae me petere po&s;&s;em in integrum re&s;titui, quantumcun&abque; ali&agrave;s mihi probitatis &amp; vitae merita &s;uffra|gantur in vim pacti renuncio.</HI></P>
<P>Now if in this Oath it &s;hould be admitted that the <HI>general Words</HI> &s;hould include the <HI>Vi&s;itor,</HI> as they plainly do not; yet neverthele&s;s how can any Judge be <HI>&s;worn out</HI> of his Authority by a Fellow? If he had not Power of receiving Appeals before, The Oath under this Interpretation would be <HI>vain;</HI> and if he had, the Oath, in regard of the Vi&s;itor would be <HI>void</HI> and <HI>ineffectual.</HI> If all the Tenants of a Mannor &s;hould &s;wear not to at|tend the Court, the Oath would not only be <HI>illegal</HI> in re|&s;pect of the Tenants, but <HI>vain</HI> in reference to the Lord.
<PB N="16" REF="11">The Oath is not de&s;ign'd to take away <HI>Juri&s;diction</HI> from the Judge; but to take away &s;ome <HI>Liberty</HI> from the Fel|low; If Men &s;hould upon Oath &s;ubmit to Referees or Arbitrators, the Power of the Courts would not be dimi|ni&s;h'd, but the Right of the Subjects re&s;train'd; for it is a vain and &s;en&s;ele&s;s conceit, that if my Authority, of what Nature &s;oever, whether from King or Subject be legally ve&s;t|ed in me, any Man by <HI>his</HI> Oath <HI>can &s;wear away my Juri&s;di|ction.</HI></P>
<P N="2">2. This Opinion as ab&s;urd as it now &s;eems, is more &s;o, if as really, there is not, are there be no &s;uch Oath at all: A Fellow renounces indeed Appeals in General, and tho&s;e Words of Latitude are put into a certain and determinate Signification.</P>
<P>Now the <HI>Vi&s;itor</HI> cannot come under tho&s;e Words, how|ever large and exten&s;ive; the <HI>Vi&s;itor</HI> hath a dome&s;tick and internal <HI>Forum;</HI> and whereas a Complaint to him is an application to an <HI>ordinary</HI> Judge; An Appeal in propriet of Speech is a recour&s;e to a <HI>forreign</HI> or <HI>&s;uperior</HI> and <HI>extra|ordinary</HI> Juri&s;diction: In all Abbies, and in all Colleges, in all In&s;tances of Canon and Common Law, the&s;e general Words excluded any other Authority, except that of the <HI>Vi&s;itor;</HI> but did &s;ecure and &s;trengthen his Juri&s;diction. And therefore when the Statutes of <HI>Exeter</HI> College were made, the Founders well knew the Power of the <HI>Vi&s;itor</HI> as &s;et|led by Law; they knew the Practice of all Colleges, from whence the&s;e Statutes were tran&s;crib'd; and therefore if they had de&s;ign'd to put any <HI>new</HI> Limitations to the <HI>Vi|&s;itors</HI> Authority; it is impo&s;&s;ible to think but they would have found out <HI>new</HI> Words to expre&s;s their Intention.
<PB N="17" REF="11">The&s;e Statutes, however ancient the College is, are of a late date; the U&s;age of all other Colleges was then known and fixt, and therefore if any more than the cu&s;tomary Re|nunciation had been de&s;ign'd, the u&s;ual Oath would never have been borrow'd and impos'd. All Letters of great Men are renounc'd; all forreign and vexatious Suits are for|bidden, and would it not have been as ea&s;ie (&s;ince he de|&s;cended to particulars) to be&s;tow one word upon the <HI>Vi&s;i|tor,</HI> and at lea&s;t <HI>by Name</HI> to <HI>exclude him?</HI> The Ab&s;urdity of that Opinion, if it needs be further demon&s;trated, ap|pears mo&s;t visibly in this following In&s;tance: The <HI>Rector</HI> is by Oath barr'd as much from all the&s;e <HI>juris &amp; facti re|mediis per quae po&s;&s;it in integrum re&s;titui,</HI> and renounces them <HI>in vim pacti,</HI> as well as the Fellows; and yet in the Sta|tute he is expre&s;ly allow'd to appeal to the <HI>Vi&s;itor.</HI> Now would a <HI>Founder</HI> give a Man a Liberty by Statute, which he takes away by <HI>Oath?</HI> Would he &s;ettle a Right in the <HI>Rector</HI> in one Statute, and oblige him to &s;wear him&s;elf out of it in another? It is clear then, that the <HI>Vi&s;itor</HI> was not with|in the purview of that <HI>Oath,</HI> and that the <HI>Rector</HI> would have been guilty of no <HI>Perjury</HI> for appealing <HI>to him.</HI> But I leave it to his <HI>Polonian Ca&s;ui&s;ts</HI> to di&s;tingui&s;h him out of it upon his farther <HI>Appeal.</HI></P>
<P>If then the <HI>Vi&s;itor</HI> hath <HI>general</HI> Powers ve&s;ted in him by Law and by Statute; if he is the <HI>Con&s;ervator</HI> of the Col|lege; and as in their <HI>Acts</HI> he is formerly call'd <HI>Patronus,</HI> and <HI>Supremus Judex</HI> therein; if he can redre&s;s all Griev|ances, and hath con&s;equently the Power of Receiving Ap|peals; it is not po&s;&s;ible that a <HI>Fellow</HI>'s Oath, tho it &s;hould have particularly nam'd him, can deve&s;t him of that Au|thority;
<PB N="18" REF="12">and if &s;uch Oath doth <HI>not</HI> particularly name him, nor by Compari&s;on with other Statutes, was intended to exclude his Juri&s;diction, it is certain that the Authority remains <HI>entire;</HI> and, that in the &s;ame manner as Appeals lay to him before the Oath, they mu&s;t be admitted to lie after it.</P>
<P N="2">2. The &s;econd Exception to this Univer&s;al Authority is drawn from the Words of the Statute <HI>de Vi&s;.</HI></P>
<P><HI>E&acirc; de Caus&acirc; liceat Domino Epi&s;copo</HI> Exon, <HI>qui pro tempore fuerit, &amp; nulli alii, nec aliis, quoties per Rectorem dicti Coll. &amp; in ejus ab&s;entia Subrectorem, &amp; quatuor alios ad minus, ex &s;eptem maxim&egrave; Senioribus Scholaribus fuerit requi&s;itus; Nec non ab&s;que requi&s;itione ulla de quinquennio in quinquennium &s;emel ad dictum Coll. per &s;e, vel per &s;uum Commi&s;&s;arium, quem duxe|rit, deputandum liber&egrave; accedere.</HI> Cui <HI>quidem Reverend. Patri, ac Deputato &s;uo</HI> (praeterea nemini) <HI>tanquam Patrono &amp; Ordina|rio Vi&s;itatori, vigore prae&s;entis &s;tatuti plenam concedimus pote&s;ta|tem, ut &s;uper omnibus &amp; &s;ingulis particulis &amp; articulis, in di|ctis Statutis contentis, ac de quibu&s;cunque aliis Articulis &s;tatum, commodum, aut honorem dicti Coll. concernentibus aut quae in di|cto Coll. aut aliqua illius Per&s;ona fuerint reformanda, aut cor|rigenda, Rectorem, Scholares, &amp; Electos interroget, &amp; inquirat, cog&aacute;tque eorum unumquenque in Virtute Juramenti, &amp;</HI> per cen|&s;uras <HI>&s;i opus fuerit ad dicendum veritatem de praemi&s;&s;is omnibus &s;ingulis, &amp;c.</HI></P>
<P>It hath been before prov'd, that <HI>two</HI> Powers are nece&s;&s;a|rily lodg'd in a Vi&s;itour; one is the <HI>ordinary juri&s;diction,</HI> which exerts it &s;elf upon the injury and complaint of any of his Subjects; and redre&s;&s;es their grievances: The other is an extraordinary and <HI>general enquiry</HI> made by <HI>the Judge</HI>
<PB N="19" REF="12">him&s;elf <HI>ex officio</HI> without the in&s;tance of the Party. Now this Statute doth not only ve&s;t him by the former general words with the <HI>ordinary</HI> powers nece&s;&s;arily incident to a Vi&s;itor's Office: But goes on likewi&s;e to <HI>a&s;certain</HI> here his <HI>extraordinary</HI> Authority and to fix the <HI>bounds</HI> of it. This <HI>Vi&s;itation</HI> is general as well in re&s;pect of <HI>Crimes</HI> as <HI>Per&s;ons</HI> within the Judges territory and compa&s;s; and is &s;ometimes <HI>nece&s;&s;ary</HI> and therefore <HI>not omitted;</HI> but withal trouble&s;ome and <HI>chargeable,</HI> and therefore <HI>re&s;train'd.</HI> In this general en|quiry <HI>by Office</HI> which is by the Canoni&s;ts call'd <HI>Officium merum</HI> the powers of the Judge are much larger than upon an <HI>Ap|peal;</HI> the method of the procedure different, and the occa|&s;ion of it are of as great, yet u&s;ually not of &s;o urgent and pre&s;&s;ing nece&s;&s;ity. And therefore &s;ince his Powers are <HI>great;</HI> the &s;olemnity of the Proce&s;s extraordinary; and the <HI>Sportu|lage</HI> which is always incident to it, not &s;mall; it was pru|dence in the Founder to allow the u&s;e of <HI>ordinary</HI> Juri&s;diction <HI>always;</HI> and by that means to prevent the nece&s;&s;ity, as well as to re&s;train the exerci&s;e of his <HI>extraordinary Authority.</HI> And herein the care of the Founder was agreeable to that of the Church, for no <HI>Canons</HI> ever &s;et bounds to any other than gainful Vi&s;itations, nor ever thought fit to limit the Duty, but where it was recommended by Proxies.</P>
<P>As this Juri&s;diction then is &s;et up by Statute; &s;o another, in Ca&s;e of great emergencies is likewi&s;e plac'd in the Vi&s;itor; which is a <HI>Vi&s;itation upon requi&s;ition.</HI> This is a mixt Office; and differs from a Vi&s;itation becau&s;e it is granted upon <HI>denun|ciation</HI> and <HI>pre&s;entment,</HI> and upon the in&s;tance of the party; and yet at the &s;ame time agrees not with Appeal; becau&s;e it proceeds by Enquiry and tends not to the <HI>redre&s;s</HI> of a
<PB N="20" REF="13">private grievance, but the <HI>regulation</HI> of &s;ome publick enor|mity.</P>
<P>This Branch of the Statute therefore, however it may limit a <HI>Vi&s;itation,</HI> is &s;o far from re&s;training <HI>Appeals,</HI> that it enforces them; for where-ever the extraordinary <HI>Remedies</HI> are limited, there is more occa&s;ion for, and more Latitude to be given to, the <HI>Ordinary Juri&s;diction.</HI> This is the plain and natural intendment of the <HI>Statute;</HI> this is that <HI>Univer|&s;al Provi&s;ion</HI> which the <HI>Founder</HI> de&s;ign'd, which the <HI>College</HI> need, and which the <HI>Vi&s;itatorial Power</HI> was brought in to &s;up|ply. Upon this &s;hort view of the Office of <HI>Vi&s;itor</HI> in general, and upon this enquiry into the Statutes of <HI>Exeter College,</HI> in particular, it may be &s;afely affirm'd.</P>
<LIST>
<ITEM>1. <HI>That all &s;ole</HI> Vi&s;itors <HI>&s;eparately, and all</HI> Vi&s;itors <HI>ordi|nary, and extraordinary joyntly, have as an incident to their Office, the Power of receiving</HI> Appeals.</ITEM>
<ITEM>2. <HI>That this Power, as in all</HI> Churches, Mona&s;teries <HI>and</HI> Ho&s;pitals, <HI>&s;o in all</HI> Colleges <HI>hath by the re&s;pective</HI> Vi|&s;itors <HI>thereof, been us'd and exercis'd, and in all Courts been confirm'd and allow'd.</HI></ITEM>
<ITEM>3. <HI>That the Local Statutes of</HI> Exeter College <HI>do in the &s;ame, and no other manner, then as the Canons and as the Statutes of mo&s;t other Colleges, limit and re&s;train the &s;o|lemn, extraordinary, and chargeable</HI> Vi&s;itations; <HI>but at the &s;ame time do ve&s;t the</HI> Vi&s;itor <HI>of the College, with all ordinary Juri&s;diction in its full extent and latitude.</HI></ITEM>
<ITEM>4. <HI>That the Statutes of</HI> Exeter College <HI>are &s;o far from precluding Appeals to the</HI> Vi&s;itor, <HI>that they expre&s;ly war|rant them, and that the</HI> Oaths <HI>of the</HI> Rector <HI>and</HI> Fellows
<PB N="21" REF="13"><HI>neither can, nor by the plain and natural &s;en&s;e of the Words, are intended to re&s;train this Authority.</HI></ITEM>
</LIST>
<P>If then the <HI>Vi&s;itor</HI> hath power of receiving Appeals, Dr. <HI>Ma&s;ters</HI> Commi&s;&s;ion is good, Dr. <HI>Bury rightly</HI> as well as <HI>ju&s;tly</HI> ex|pell'd, and the whole <HI>Proce&s;s</HI> legal and unque&s;tionable.
<NOTE N="*" PLACE="foot"><HI>See the Account of the Proceedings,</HI> &amp;c. <HI>P.</HI> 26, 27.</NOTE> It is not nece&s;&s;ary therefore to add what yet hath been ap|parently prov'd, and will more fully be clear'd, that if the Bi&s;hop had <HI>no</HI> Power of receiving Appeals, and con|&s;equently the Commi&s;&s;ion was void, and the Acts of it <HI>null</HI> and <HI>inauthoritative,</HI> yet however the <HI>Vi&s;itation</HI> could not thereby be barr'd, nor the Bi&s;hops Right be taken away, nor the Expul&s;ion defeated.</P>
<P>The Point being thus &s;etled, it will be an ea&s;ier Matter to con&s;ider tho&s;e little Objections, which have been &s;tart|ed by the Author of the <HI>Ca&s;e,</HI> and have not yet been refu|ted by Mr. <HI>Colmer.</HI> Some things there are in the <HI>Account,</HI> which he &s;ays he does not <HI>under&s;tand,</HI> and perhaps it may be no ea&s;ie Matter for me to bring <HI>down</HI> my Expre&s;&s;ions to his <HI>Under&s;tanding;</HI> or his <HI>Under&s;tanding</HI> up to them: Other Pa&s;&s;ages there are that in his Opinion need no An&s;wer, and they therefore &s;tand in the &s;ame <HI>Condition</HI> they were, and want no Defence: But as to the Exceptions taken, they &s;hall have An&s;wers that are very &s;hort; and yet as I &s;up|po&s;e, full, and no otherwi&s;e tedious, then becau&s;e &s;uper|fluous and unnece&s;&s;ary.</P>
<P>After the Hi&s;tory of Mr. <HI>Colmers</HI> Incontinence, which has been prov'd to be Fal&s;e and Immaterial; the fir&s;t <HI>Pro|po&s;ition</HI> laid down is, That an Appeal to the Vi&s;itour is <HI>by
<PB N="22" REF="14">Oaths</HI> re&s;train'd; and then he gives you a Comment on the rea&s;ons of that Re&s;traint.</P>
<P>For when he hath put &s;trange Orders on the Founder, which he never made: then he gives the Grounds, which induc'd the Founder to the making of tho&s;e Orders.</P>
<P>The Ground then, that is rea&s;onably &s;uppo&s;ed to per&s;wade him to this <HI>Policy,</HI> was the Peace and Quiet of the Hou&s;e: And,</P>
<P>Were not all other <HI>Societies</HI> of <HI>Students</HI> as much de&s;ign'd for Peace and Quietne&s;s as <HI>Exeter</HI> College? Had not Mo|na&s;teries Free-Chappels, and Religious Societies as little occa&s;ion for Di&s;turbances and Quarrels as Colleges? And were not their Founders weak Men to bring them into Noi&s;e, Feuds and Di&s;&s;en&s;ions, when they appointed a Vi|&s;itour, and gave him due Power of redre&s;&s;ing their Grievan|ces, and of deciding their Controver&s;ies? Would there not be much more Peace in a Dioce&s;s, if the Clergy were not &s;ubject to Vi&s;itation? And if a Par&s;on, who&s;e Study and Profe&s;&s;ion entitle him to Quiet, might not be cited from his Home, and &s;ubjected to the Complaint of every vex|atious Per&s;on only for <HI>Here&s;ie, Bribery,</HI> and <HI>Incontinency?</HI> What Confu&s;ion and Di&s;turbances the Statute of <HI>Hen.</HI> 5. occa&s;ioned in <HI>England,</HI> when it &s;ubjected Ho&s;pitals to Vi|&s;itation, who&s;e Members before, were <HI>without any noi&s;e</HI> robb'd and de&s;poil'd, and who&s;e Revenues had been very <HI>quietly lo&s;t,</HI> and dilapidated? In &s;hort, the taking away of <HI>We&s;tmin&s;ter</HI>-Hall would be an effective Remedy again&s;t Champerty and Maintenance, and trouble&s;om Law-Suits and Contention would quickly cea&s;e, if we would remove the Courts, in which they are to be ended.</P>
<PB N="23" REF="14">
<P>But now for once I would de&s;ire him to make as many <HI>rea&s;onable Suppo&s;als,</HI> as he will for the late Rector, and &s;uch Fellows of <HI>Exeter</HI> College as imploy'd him; but as few as po&s;&s;ible for the Founders, who neither need nor de&s;ire his a&s;&s;i&s;tance. The Founders were Wi&s;e-Men, <HI>Stapul|don</HI> was a learned Bi&s;hop: Sir <HI>William Petre</HI> a prudent States|man, and therefore &s;uch <HI>rea&s;onable Suppo&s;als,</HI> tho of a Piece with the re&s;t of the Book, are ill &s;uited to the Character of the <HI>Per&s;ons introduc'd.</HI> All the Peace and Quiet which the College can aim at, or hope for, is promoted by the Of|fice of a <HI>Vi&s;itor,</HI> and their particular Happine&s;s con&s;i&s;ts in having their Controver&s;ies decided in a <HI>private</HI> and <HI>dome|&s;tick</HI> Court. And tho the Cen&s;ures of a <HI>Vi&s;itor</HI> may be trouble&s;om to tho&s;e Per&s;ons that de&s;erve them; and a re|view of the Cau&s;e try'd is not very acceptable to &s;ome Judges; yet certain it is, that nothing is more requi&s;ite than the Vi&s;itatorial <HI>Power,</HI> for the due government of the <HI>Society,</HI> for the prevention of Grievances, and Exorbitances; for the &s;peedy determination of Controver&s;ies; and for the &s;ettlement of Peace and Quietne&s;s in the College. E&s;peci|ally &s;ince, if there be no <HI>Vi&s;itor</HI> that can give redre&s;s to a Fellow unju&s;tly expell'd; It is plain that a <HI>Mandamus</HI> would lie for him, as well as <HI>for a Pari&s;h Clark;</HI> and that this admirable Method <HI>of producing Peace</HI> and <HI>Quiet,</HI> would draw the Cau&s;e from the <HI>Vi&s;itor</HI> into <HI>We&s;tmin&s;ter-Hall.</HI></P>
<P>The next thing that he leaves me to explain, is an Oath, being acce&s;&s;ory to a Statute: Where-ever an Oath is re|lative to the Law, and the Sen&s;e of one depends on the meaning of the other, and the Obligation of one, relies on the continuance of the other, here it is acce&s;&s;ory to it.
<PB N="24" REF="15">Now then, <HI>Si continget me per Rectorem aut in huju&s;modi intere&s;&s;e habentes corrigi, puniri, aut &agrave; dicti Coll. &s;u&s;tentatione ejici &amp; expelli, excludi, privari vel amoveri propter mea for&s;an demerita, ip&s;um Rectorem, &s;eu alias Per&s;onas, &s;eu eorum ali|quem, &amp;c. quantumcun&abque; alias mihi probitatis &amp; vitae me|rita &s;uffragentur.</HI></P>
<P>In this Ca&s;e therefore the <HI>demerita</HI> are (as is el&s;ewhere ex|plain'd) <HI>Cau&s;ae in Statutis contentae:</HI> The <HI>intere&s;&s;e habentes</HI> are &s;uch as are appointed by Statute; and &s;ince it is impo&s;&s;ible to know the extent of the Oath without recour&s;e to the Sta|tute: The Oath is acce&s;&s;ory to it, and guided by it.</P>
<P>And if the Statutes are alter'd by legal Authority: The matter of the Oath is likewi&s;e chang'd, not the obligation; and the Oath, as &s;trongly obliges to the performance of the new Law, as once of the old.</P>
<P N="2">2. He proves that <HI>legitim&egrave; convictus</HI> doth not mean a convi|ction according <HI>to the Law of England.</HI> For it is plain to him that the <HI>Rectour</HI> of the College cannot impannel a Jury; nor admini&s;ter an Oath. This is the <HI>Phantom</HI> that he rai&s;es; and, being his own, it is ea&s;ily refuted even by him&s;elf: For no Man el&s;e was &s;o ab&s;urd as to imagine, That when the Founder had in every thing el&s;e pur&s;ued the Terms and Rules of <HI>Canon</HI> Law, he would have borrowed the proof only of a charge from the <HI>Common:</HI> But if <HI>legitima convictio</HI> doth not amount to a conviction by a Jury; mu&s;t it mean nothing, or mu&s;t it &s;ignifie a conviction <HI>without,</HI> or <HI>again&s;t</HI> <GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">aw? for if it doth not, it will not ju&s;tifie Mr. <HI>Colmer</HI><GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">s Ex|pul&s;ion.</P>
<P><HI>Legitima convictio</HI> is &s;uch a conviction as the Statutes direct; and where the Statutes are &s;ilent, is &s;uch a conviction, as the
<PB N="25" REF="15">Law require, in conformity to which the&s;e Statutes are made. The method of the Conviction in divers Laws is very often different; but it is always grounded on a <HI>crime,</HI> and no crime can be ap|plied to a per&s;on but by proof. In common Law a Verdict is founded upon evidence; and is pre&s;umed to be made in pur&s;uance of it; In Canon law, where Trials are made by Wit|ne&s;&s;es, not by Jury, nothing but the confe&s;&s;ion of the Parties, the Te&s;timony of two witne&s;&s;es, or the <HI>Notoriety of the Fact</HI> can make a <HI>Conviction.</HI> And therefore as in one the Sentence of a Judge cannot convict any man, when <HI>&s;upported by no ver|dict;</HI> &s;o in the other it is equally void, when founded on <HI>no evidence.</HI> A man cannot renounce his Right to legal Proceedings; If he &s;hould agree to be fentenced uncited and unheard, and to be convicted without proofs; it is a void Agreement, and &s;o utterly null and illegal; that the <HI>vis pacti</HI> cannot &s;upport it: <HI>Sententia nulla pote&s;t partium con&s;en&s;u ut valeat, non tanquam &s;ententia &s;ed tanquam contractus: Cald. Cons.</HI> 138.</P>
<P>The Fellows of <HI>Exeter</HI> might be convicted of Incontinence, as the Statutes of other Colleges direct <HI>per idoneos te&s;tes, &amp; facti evidentiam;</HI> or as Clarks are to be convict of it, <HI>according to &s;uch lawful proofs</HI> as are <HI>requi&s;ite by the law of the Church:</HI> 1 H. 7. c. 4. The Rector, if he cannot admini&s;ter an Oath, might have u&s;ed the a&s;&s;i&s;tance of the <HI>Vice-Chancellors</HI> or of the Vi&s;itors Juridiction. <HI>Homicide</HI> is in the Eccle&s;ia&s;tical Court a cau&s;e of <HI>Deprivation;</HI> and yet it cannot originally be examined there: Their Sentence mu&s;t be built on a Conviction at Common law: and as the Spiritual Judges even to Eccle&s;ia&s;tical purpo&s;es cannot convict Men of &s;uch crime by Eccle&s;ia&s;tical Proofs; &s;o much le&s;s can they declare men convict without any. <HI>Hob.</HI> 122. <HI>Searls Ca&s;e. Cr.</HI> 2. <HI>Hob.</HI> 194. <HI>A competent Judge</HI> then is not more required, than <HI>Legal Te&s;timonie; Summarie de plano &amp; extr&agrave; &s;trepitum Judicialem</HI> may take away the formality of the Proce&s;s, but never the nece&s;&s;ity of Evidence; The noi&s;e of an Oath is not great; nor the length of it tedious; It is the direct and plain way of Procedure; and all Pre&s;umptions, &s;trained Infe|rences, and traditional Reports occa&s;ion the length and circuit of a Tryal.</P>
<P><HI>Legitim&egrave;</HI> is expounded in the Probationers Oath <HI>&s;ecundum exigentiam Statutorum,</HI> and &s;o <HI>Canonice</HI> is interpreted <HI>&s;ecun|dum
<PB N="26" REF="16">exigentium Canonum.</HI> Lindw. 5. Tit. de Purg. Canon.</P>
<P N="3">3. <HI>Si propter mea demerita contingat me deprivari</HI> is in &s;ome &s;tatutes of other Colleges explained <HI>propter mea demerita, aut cau&s;as in &s;tatutis contentas;</HI> in others propter <HI>malos mores, aut mea demerita.</HI> Now this Gentleman's interpretation of <HI>ob mea demerita</HI> is <HI>whether</HI> a <HI>man be guilty or no,</HI> which then &s;hould have been thus expre&s;&s;ed <HI>ob mea for&s;an non demerita.</HI> And if <HI>non</HI> added to this and mo&s;t of his affirmations, it would much ea&s;e the Book of many fal&s;hoods, and make it in many other in&s;tances, true &s;ence, as in this good Grammar: But the following words put the &s;ence of it out of doubt, <HI>quamvis alias mihi probitatis &amp; vitae merita &s;uffragentur:</HI> Which imply a Man criminal in <HI>this,</HI> and irrepoveable in <HI>all other</HI> concerns. The Oath was de&s;igned to oblige the Con&s;cience; if the Crime was true, Acquie&s;cence was enjoyned; if it was fal&s;e, no ju&s;t remedy was precluded. And whether the charge were true or fal&s;e, his Con&s;cience is judge; and his Oath enforces the Con&s;cience to a right judgment.</P>
<P>If then an innocent man had liberty of Appeal; whoever doth not appeal confe&s;&s;es, and owns his guilt. <HI>Non appellans dicitur ap|probare &s;ententiam latam Card. Tusc. con.</HI> 388.</P>
<P N="5">5. My 4th. rea&s;on was this. <Q>That it is the plain de&s;ign of this Oath to &s;ecure the College from any <HI>Action at Law,</HI> or any other di&s;turbance <HI>from abroad;</HI> and that in the recital of the different appeals, and remedies, which are there prohibi|ted, that of <HI>appeal to the Vi&s;itor,</HI> which was mo&s;t obvious to to be thought on, is not <HI>expre&s;ly</HI> mentioned nor forbidden: And therefore that tho&s;e general words may in an equitable &s;ence be intended to re&s;train the Party from all Appeals to an <HI>Extraneous,</HI> not to a <HI>Dome&s;tic</HI> Court; to one that is a <HI>Foreign</HI> Judge, not to a <HI>Vi&s;itor,</HI> who is a <HI>part</HI> and the <HI>fir&s;t member</HI> of <HI>the</HI> College.</Q></P>
<P>Nothing in the an&s;wer de&s;erves to be confidered; but the dome|&s;tick Juri&s;diction of a <HI>Vi&s;itor;</HI> if the <HI>Founder</HI> referred all <HI>jurgia irae &amp; rixae</HI> to the final arbitration of the <HI>Rector, Subrector</HI> and three <HI>Seniors;</HI> The Juri&s;diction of tho&s;e per&s;ons thereby gained in re&s;pect of the <HI>Vi&s;itor</HI> was <HI>cumulative,</HI> not <HI>privative.</HI> And therefore when
<NOTE PLACE="foot"><HI>See. Ca&s;e</HI> p. 26.</NOTE>
<PB N="27" REF="16">a man is forbidden, as in this ca&s;e, to pro&s;ecute another <HI>corant aliquo Judice extrin&s;eco Eccle&s;ia&s;tico vel Saeculari;</HI> the intent of the <HI>Founder</HI> plainly appears to bar any action in the <HI>&s;piritual</HI> and <HI>temporal</HI> Court; and to refer the contending Parties to the Arbitrators there mentioned or at farthe&s;t to no other than &s;ome <HI>intrin&s;ick Judge.</HI> And it is ob&s;ervable that the&s;e little Controver&s;ies were not to be <HI>Judicially</HI> ended by the&s;e Per&s;ons; but <HI>aliqu&acirc; ordina|tione bon&acirc; &amp; concordi&acirc; per per&s;onas praedictas (as Referees</HI> and <HI>Arbitra|tors,) terminentur &amp; finiantur:</HI> &s;o that here an amicable reference is advi&s;ed and <HI>enjoyned;</HI> but &s;till upon a farther di&s;agreement, if it could not take effect every Action <HI>coram aliquo Judice extrin|&s;eco</HI> was <HI>expre&s;&s;ly</HI> forbidden; but not a recour&s;e to a <HI>Vi&s;itor</HI> di&s;al|lowed.</P>
<P>The Argument concerning <HI>John a Stiles,</HI> and the 6th. <HI>Com|mandment</HI> needs no grave an&s;wer; and I have at pre&s;ent nei|ther will nor lei&s;ure to expo&s;e it.</P>
<P N="6">6. Arbitrary power is power again&s;t law: And the un&s;tatutable Expul&s;ion of a Fellow; and the denial of a lawfull Appeal are illegal and arbitrary Acts: what obligations the <HI>Founder</HI> might have enjoyned we di&s;pute not; but we have proved, that none are laid: The <HI>Vi&s;itors</HI> Authority is not created by the local Statutes, but ca&s;t upon him by law; The Power of a <HI>Vi&s;itour</HI> depends not on the <HI>Founder,</HI> but the Right of the Bi&s;hop of <HI>Exeter</HI> to that power is derived from <HI>him:</HI> The Kings Courts have a more <HI>large</HI> Juri&s;di&s;diction than the <HI>Vi&s;itor;</HI> but not more <HI>certain.</HI> And there|fore no mans Oath can bar the Power of the one, nor of the other; e&s;pecially &s;ince it appears, that it was not de&s;igned to preclude them.</P>
<P>Thus hath it once more been proved; That the Oath is ac|ce&s;&s;ary to the Statute, that no innocent Man is barr'd from <HI>Appeal;</HI> that legal Proofs are nece&s;&s;ary to a legal Conviction, that the <HI>Vi&s;itor</HI> is a <HI>Dome&s;tick</HI> Judge, and that <HI>appeals</HI> to him from an innocent per&s;on, illegally expelled, are not more warranted by Rea&s;on, than by Statute.</P>
<P>Next, the <HI>Ca&s;e</HI> examines the rea&s;ons that proved the <HI>Vi&s;itors</HI> Authority of <HI>receiving Appeals.</HI></P>
<P>P. 36. It is owned, That there are no other Judges of <HI>Appeal</HI> except the <HI>Vi&s;itor;</HI> but it is doubted whether there are any Judges of them at all. An <HI>Appeal</HI> is a natural Defence which cannot
<PB N="28" REF="17">be taken away by any Prince or Power; much le&s;s by any other than by the &s;upreme Magi&s;trate and not ju&s;tly by him. And there|fore it is not ea&s;y to conceive, e&s;pecially if we read his words, that a <HI>private Founder</HI> ever de&s;igned to preclude it. For &s;ince <HI>Appellatione remot&acirc;</HI> is never mentioned in the Statutes but once, and &s;ince then it expre&s;sly bars an <HI>Appeal from</HI> the <HI>Vi&s;itor</HI> not <HI>to</HI> him; no part of the Statutes can be urged again&s;t the <HI>Vi&s;itors</HI> authority, but the Oath of the Fellows. That Oath hath been already proved to bar no <HI>Appeal</HI> to the <HI>Vi&s;itor;</HI> and the rather is not capable of that &s;ence; becau&s;e all Statutes that take away <HI>Appeals</HI> are <HI>odio&s;a,</HI> and therefore in doubtful ca&s;es are limited and re&s;trained; and all renunciations of right mu&s;t and ought to be con&s;trued in <HI>favorem renunciantis.</HI></P>
<P>If then a <HI>Vi&s;itor</HI> had power of <HI>receiving Appeals,</HI> if in this College <HI>all</HI> other <HI>Judges</HI> but the Bi&s;hop of <HI>Exeter</HI> are expre&s;ly excluded; if the Oath doth not take away the Fellow's right, much le&s;s the Bi&s;hops Jurisdiction; then it follows, that the Bi&s;hop had a Right of receiving Appeals; incident to the Office of a Vi&s;itor, and yet di&s;tinct from his Right of <HI>a General Vi&s;itation.</HI></P>
<P N="2">2. <Q>To dream of univer&s;ality of Juri&s;diction from a &s;ound of a word <HI>Ordinarius</HI> is a conceit that needs no more refutation, than the mentioning of it.</Q> And to dream of the vi&s;itation in five years from the &s;ound of the word <HI>Quinquennium</HI> is equally as &s;en&s;ele&s;s, and ridiculous. The import and meaning of both words is fixt and known, and the one is not, as I think more <HI>&s;ounding</HI> than the other. The only difference is, that the latter by chance fell within his reach, and the former is undoubtedly above it. U&s;ually legal Controver&s;ies depend on the doubtful meaning of Terms; The ca&s;e is altered by the extent, or re|&s;triction of a word: and therefore it was <HI>once</HI> a frequent ob&s;er|vation in the Law books; That the true knowledge of terms is the mo&s;t nece&s;&s;ary and mo&s;t difficult part of that Study. What <HI>ordinarius</HI> &s;ignifies; I have before explained, and any judicious man, that reads tho&s;e great and expre&s;s authorities will, choo&s;e rather to <HI>dream</HI> with tho&s;e Authors than to <HI>think</HI> with this Gentleman.</P>
<P N="3">3. The little Objections that follow are already anticipated and
<NOTE PLACE="foot"><HI>Coke</HI> 4. <HI>In&s;t.</HI> p. 340, <HI>Patrick</HI>'s <HI>Ca&s;e Card. Tu&s;c.</HI> c. 345. <HI>Bald. Cons.</HI> 144. <HI>Al.</HI> 113. n. 7.</NOTE>
<PB N="29" REF="17">prevented; only one thing I mu&s;t ob&s;erve, that the <HI>operative</HI> and <HI>effective</HI> words of the Statute are here &s;tiled the Preamble of it: the Statute it &s;elf, as before printed and explained, &s;ufficiently &s;hows the weakne&s;s of the A&s;&s;ertion; and all the long Harangue founded on that bottom, is a gro&s;s continued mi&s;take, made acceptable however to &s;ome Palates, by much &s;currility, and no wit.</P>
<P>Men that have no Reputation them&s;elves, may fall upon their Betters without danger; and the return of the Compliment is as prejudicial to the Per&s;on affronted, as the abu&s;e it &s;elf, becau&s;e it implies an equality. Libels that have &s;hewn the Malice, have &s;ome|times recommended the Wit of the Adver&s;ary; but blunt downright Rudene&s;s is always the joynt product of ill nature and &s;tupidity: however it is not improper that the late <HI>Rectors</HI> Cau&s;e &s;hould be defended with the <HI>&s;ame</HI> decency, with which it was managed, and that the Advocate &s;hould at once &s;hew him&s;elf Ma&s;ter as well of the Sence as of the good Breeding of his Client.</P>
<P>The Appointment of the <HI>Founder</HI> created him <HI>Vi&s;itor,</HI> but the Law a&s;certain'd and fix'd the Rights of his Office. A <HI>College</HI> and an <HI>Ho&s;pital</HI> is as much <HI>vi&s;itable</HI> in Law as a <HI>Church.</HI> And the &s;ame right that of nece&s;&s;ity belongs to the <HI>Vi&s;itor</HI> of a <HI>Dioce&s;s,</HI> mu&s;t of Law belong to the Vi&s;itor of a <HI>College:</HI> The Precincts may be more narrow, but the Juri&s;diction is as large; the Subjects may be fewer, but the Powers are as many. The <HI>Ordinary</HI> Acts of Vi&s;itation therefore remain equally in both, &s;ince (as hath been already prov'd,) the Bounds that are &s;et, reach only to the <HI>extra|ordinary</HI> Acts of their Power, and their &s;olemn Vi&s;itations.</P>
<P>It being evident then that both the&s;e Powers, both of <HI>receiving Appeals,</HI> and of a <HI>General Vi&s;itation,</HI> tho they are both equally lodg'd in the <HI>Vi&s;itor,</HI> yet are both <HI>entire</HI> and <HI>di&s;tinct</HI> from each other in their nature; it will be ea&s;ie to prove that the <HI>exerci&s;e</HI> of one cannot bar the Bi&s;hop from the <HI>right</HI> to the other: This task is &s;till the le&s;s difficult, becau&s;e the rea&s;ons in the Account for it are &s;uch, as the <HI>Ca&s;e</HI> hath not yet pretended to an&s;wer.</P>
<P N="1">1. The Bi&s;hop of <HI>Exeter</HI> then hath no power but as <HI>Vi&s;itor,</HI> but o|ther Powers belong to the <HI>Vi&s;itor</HI> thanthat of a <HI>Vi&s;itation:</HI> A di&s;tinct Authority of a <HI>general enquiry</HI> is given to him, and if a <HI>Commi&s;&s;ion</HI> of <HI>Appeal</HI> amounts not to this Power, it cannot determine it. An <HI>Appeal</HI> is private in its end, and re&s;train'd in its extent: A <HI>Vi&s;itation</HI>
<PB N="30" REF="18">is of a publick nature, and general in its de&s;igns as well as powers: Both indeed may in their own nature be Criminal, but the one is pro&s;ecuted <HI>Civiliter,</HI> the other <HI>Criminaliter;</HI> the one tends to the <HI>redre&s;s</HI> of a <HI>Grievance,</HI> the other to the <HI>puni&s;hment</HI> of a <HI>Crime.</HI> 'Tis &s;aid indeed in the <HI>Ca&s;e,</HI> that <HI>omne majus continet in &s;e minus;</HI> and that if it makes out any thing, mu&s;t prove, that whoever hath <HI>right</HI> of <HI>Vi&s;itation,</HI> hath <HI>power</HI> of <HI>receiving Appeals.</HI> But &s;uch a Maxim as <HI>Omne minus continet in &s;e majus,</HI> can only convince us, that a <HI>Commi&s;&s;ion</HI> of <HI>Appeal</HI> contains a <HI>Vi&s;itation.</HI></P>
<P N="2">2. The Commi&s;&s;ion by which Dr. <HI>Ma&s;ter</HI> acted, was founded on that part of the Statute, by which the Bi&s;hop is appointed and con&s;tituted <HI>Vi&s;itor</HI> in <HI>General;</HI> not that which gives him power of a <HI>Quinquennial Vi&s;itation.</HI> He has no other claim to this Authority, then as <HI>Vi&s;itor;</HI> and and therefore in his Commi&s;&s;ion, he &s;ets forth his own Title, and withal the ground of his Power. If any <HI>re|dundant</HI> words were there, they could do no harm, and there|fore are <HI>weakly</HI> excepted again&s;t. But as it happens, tho&s;e only are u&s;ed, that are &s;ufficient to &s;upport the delegated Juri&s;diction.</P>
<P N="3">3. The <HI>Nature</HI> of a Commi&s;&s;ion appears not from the <HI>Stile</HI> or <HI>Title</HI> of the Judge, but from the <HI>extent</HI> or <HI>re&s;traint</HI> of the <HI>Powers</HI> that are granted. The <HI>being</HI> of a Court can be no other than &s;uch as is warranted by a Commi&s;&s;ion on which it depends: This was wholly re&s;trained to the Cau&s;e of <HI>Appeal,</HI> and the <HI>Com|mi&s;&s;ary</HI> exactly ob&s;erv'd the re&s;trictions. In a <HI>Vi&s;itation, all</HI> the Fellows mu&s;t nece&s;&s;arily have been cited, and appeared; but <HI>none</HI> were call'd to this <HI>Court,</HI> but tho&s;e that had been partakers of the Per&s;onal wrong, and were oblig'd to an&s;wer the charge of Mr. <HI>Colmar</HI> again&s;t them.</P>
<P N="4">4. The <HI>Definition</HI> of a <HI>Vi&s;itation</HI> then is <HI>weakly</HI> applied to the <HI>Commi&s;&s;ion</HI> of <HI>Appeal;</HI> the <HI>nature</HI> of <HI>Vi&s;tation</HI> hath been prov'd to be a voluntary enquiry into matters <HI>Criminal,</HI> and <HI>Correction</HI> thereupon, and to be <HI>general</HI> likewi&s;e, both as to <HI>Crimes</HI> and <HI>Per&s;ons.</HI> Now how was this a <HI>voluntary</HI> enquiry, that was made not by the Judge him&s;elf <HI>ex Officio,</HI> but at the <HI>in&s;tance</HI> of Mr. <HI>Colmar?</HI> How was it <HI>general,</HI> that took Conu&s;ance only of <HI>this</HI> Crime, and of <HI>no</HI> other Per&s;ons than of &s;uch as were concern'd in it?</P>
<P>Nor la&s;tly, can it be properly &s;aid to be an Enquiry into mat|ters <HI>Criminal,</HI> which only examined a Crime upon the in&s;tance
<PB N="31" REF="18">of a Party, in order to his <HI>private</HI> amends and &s;atisfaction. Since therefore the Commi&s;&s;ion was <HI>Special,</HI> and re&s;train'd <HI>ad negotium appellationis</HI> only, &s;ince the <HI>Acta Curiae,</HI> which are here annex'd, were in pur&s;uance of that Authority, and exceeded not tho&s;e re|&s;trictions: Since the right of <HI>receiving Appeals</HI> is wholly different from that of a <HI>Vi&s;itation,</HI> the Powers much <HI>le&s;s,</HI> the Extent and Proce&s;s more <HI>confin'd;</HI> it is impo&s;&s;ible that this Act can amount to a <HI>Vi&s;itation,</HI> or that the <HI>exerci&s;e</HI> of <HI>one</HI> Authority, can deter|mine the Bi&s;hops <HI>right</HI> to the <HI>other.</HI></P>
<P>The ground I believe of this <HI>Authors</HI> mi&s;take was this, that where|ver a Per&s;on hath any right of doing any Act, Act of the &s;ame na|ture &s;hall without the &s;pecial Declaration of the Party, by intend|ment of Law, in his favour, be pre&s;um'd to be Authoritative and Legal. This Rule, as it holds not in this Ca&s;e, becau&s;e <HI>both</HI> Powers were lodg'd in the <HI>Vi&s;itor,</HI> &s;o neither, upon the <HI>&s;uppo&s;ed</HI> failure of <HI>one</HI> of tho&s;e Juri&s;dictions, could it reach it: For tho&s;e Acts mu&s;t be of the <HI>&s;ame</HI> nature, and from the near <HI>affinity</HI> be|tween them and the <HI>equality</HI> of the extent, one is &s;aid to amount to the other. Be&s;ides that Rule takes in only tho&s;e Acts which are <HI>undetermin'd</HI> by the Party, and therefore liable to the con|&s;truction of Law: Whereever Words are <HI>plain</HI> and <HI>expre&s;s,</HI> there is no room for <HI>implication,</HI> and an intendment may be pre&s;umed <HI>without</HI> the Declaration of the Parties, but not <HI>again&s;t</HI> it. 1 Ju&s;t. 245. <HI>c.</HI> 1. In&s;tit. 49. b. Perk. fol. 55 and 56.40. Ed. 3.5. <HI>Inten|tio me a nomen imponit operi meo.</HI> Hob. <HI>Pitts v. James</HI> p. 123. Now in this Ca&s;e therefore, not only the <HI>Commi&s;&s;ion</HI> &s;hew'd the &s;pecial intent of the Party; but the <HI>Commi&s;&s;ary</HI> him&s;elf openly declar'd, That he did not then come upon a <HI>Vi&s;itation,</HI> and therefore <HI>re|fas'd</HI> the <HI>Sportulage</HI> in that ca&s;e appointed by the <HI>Founder.</HI> In|tendments therefore and Implications are at an end, and the <HI>Commi&s;&s;ion</HI> it &s;elf, if it &s;hould be void, would have been a <HI>null</HI> and <HI>inauthoritative</HI> act, and not a <HI>Vi&s;itation.</HI></P>
<P>The main point being thus &s;ettled, I &s;hall further examine what is <HI>material</HI> in the <HI>Ca&s;e,</HI> thinking it more worth while to <HI>refute</HI> the <HI>Arguments,</HI> than, as I ea&s;ily might, to <HI>expo&s;e</HI> the <HI>Au|thor.</HI> All that is afterwards Con&s;iderable, falls under the&s;e Heads.</P>
<P N="1">1. That by Cen&s;ures in the Statute, <HI>Eccle&s;ia&s;tical</HI> Cen&s;ures are not meant.</P>
<P N="2"><PB N="32" REF="19">2. That the Right Reverend the Vi&s;itor, for inflicting of <HI>Ec|cle&s;ia&s;tical</HI> Cen&s;ures, is guilty of a <HI>Praemunire.</HI></P>
<P N="3">3. That Dr. <HI>Hern</HI>'s Place was not void by Statute.</P>
<P N="4">4. That the <HI>Vi&s;itor</HI> had no Power by Statute of <HI>Su&s;pending</HI> the Fellows <HI>ab Officio.</HI></P>
<P N="5">5. That the <HI>Vi&s;itor</HI> ought not to have been Judge in his own Cau&s;e, nor to have pronounc'd for his own Juri&s;diction.</P>
<P N="6">6. That the Concurrence of the Fellows to the Rectors Expul|&s;ion was not Statutable. And</P>
<P>La&s;tly, That <HI>Contumacy</HI> is no <HI>Statutable</HI> cau&s;e of Expul&s;ion; and if it were, ought in the ca&s;e of the <HI>Fellows</HI> as well as the <HI>Rector</HI> to receive the &s;ame Puni&s;hment from the <HI>Vi&s;itor.</HI></P>
<P N="1">1. As to the Cen&s;ures.</P>
<P>The Statute &s;ays, <HI>Vi&s;itator cogat eorum unumquen&abque; in virtute juramenti &amp; per Cen&s;uras &s;i opus fuerit ad dicendam veritatem de praemi&s;&s;is.</HI> As for <HI>Cen&s;ura</HI> then this Author turn'd his Dictiona|ry, and found that &s;ometimes it &s;ignified a <HI>reprehen&s;ion.</HI> As tho any term u&s;ed in Law had not a primitive &s;en&s;e and meaning, and was not afterwards as all words of Art in their re&s;pective profe&s;&s;ion limited and re&s;trained only to the <HI>borrowed Signification.</HI> Any Manthat knows the con&s;tant cu&s;tom of enforcing Men to te&s;tify the truth <HI>per juramentum &amp; cen&s;uras</HI> the u&s;ual <HI>Compul&s;ories</HI> in all Ec|cle&s;ia&s;tical Courts, will &s;mile at any other interpretation. See <HI>Reg. br. orig, fol.</HI> 36.6. <HI>tit. Proh. Card. Tu&s;. Con.</HI> 189. <HI>Scard. fol.</HI> 450. That I may not trouble the Reader with In&s;tances, I will only ob&s;erve, that in Acts of Parliament frequently, and in rules of Canon Law always, and in Statutes of Colledges, which were made in pur&s;uance of the Canons, con&s;tantly, <HI>Cen&s;ures</HI> do and mu&s;t mean no more than the Three famous and well known Eccle|&s;ia&s;tical Cen&s;ures. And I refer this Rule more particularly to this Gentleman's Interpretation, <HI>Judex Accademiarum &s;olet ferre cen&s;ur as etiam in Laicos &s;tudio&s;os, &amp; in cau&s;is temporalibus, unde &s;tudiorum grati&acirc; non e&s;t prohibitum Judici Academiae, ut &s;ua etiam Juri&s;dictione Eccle&s;ia&s;tic&acirc; utatur; qu&ograve; efficacius &s;aecularem exerceat? Mendo de ju|re Acad.</HI> p. 252. What do Cen&s;ures mean there, a Rebuke, or a Reprehen&s;ion, or a Sentence in the Star chamber? or have they a relation to the old Roman Cen&s;ures? If this be de&s;ign'd for Wit, it is not very agreeable; but if it be Ignorance, as I &s;uppo&s;e, it is extreamly gro&s;s.</P>
<PB N="33" REF="19">
<P>Bonacina <HI>Tom.</HI> 1. <HI>Di&s;p,</HI> 2. <HI>de Excom.</HI> talks of <HI>Cen&s;ura quibus &s;uperi|ores</HI> (&s;peaking of Vi&s;itours) <HI>praecipiunt &s;ibi aliquid revelari. D'avila de Cen&s;. Eccl. C.</HI> 3. <HI>D.</HI> 1. <HI>Vi&s;itatores bene po&s;&s;unt relinquere Ordinatio|nes in &s;criptis cum poen&acirc; Excommunicationis;</HI> and &s;o <HI>Vi&s;itatores Reli|gionum</HI> (of all religious Hou&s;es) <HI>po&s;&s;unt relinquere Ordinationes in Scriptis cum poena Excommunicationis.</HI></P>
<P>How far therefore the <HI>Founder</HI> could ve&s;t the <HI>Vi&s;itor</HI> with this Authority, and how far the Law will warrant it, is matter of a|nother di&s;pute: But that <HI>Vi&s;itors</HI> have in like Ca&s;es u&s;ed <HI>Eccle&s;i|a&s;tical Cen&s;ures,</HI> even in Societies not merely <HI>Eccle&s;ia&s;tical</HI> and that the <HI>Founder</HI> de&s;ign'd by the&s;e Words to give that Power, and e&s;teem'd it nece&s;&s;ary for the <HI>Vi&s;itor,</HI> is and will be prov'd beyond Contradiction.</P>
<P N="2">2. As to the <HI>Praemunire.</HI> If this Authour had given the Rea&s;on upon which the learned Judges granted a <HI>Prohibition</HI> in his Ca&s;e, the force of their Argument and the Authority of the Per&s;ons would ju&s;tly have commanded an entire Submi&s;&s;ion and Acquie&s;|cence; at lea&s;t nothing further would have been mov'd than that upon the Prayer of a <HI>Con&s;ultation,</HI> their Lord&s;hips would be plea|&s;ed, according to their Wi&s;dom, finally to &s;ettle and determine the Cau&s;e. But now, &s;ince he hath been plea&s;ed to impo&s;e his own Opinions upon the World, and with equal In&s;olence and Ig|norance to pa&s;s Sentence upon the Bi&s;hop him&s;elf, and to <HI>pronounce</HI> him guilty of a <HI>Praemunire:</HI> it is not to be expected, that the de|ference &s;hould be paid to his weak <HI>Argument,</HI> which undoubted|ly would have been due to his <HI>Report.</HI> The Di&s;cour&s;e that he there gives is well proportion'd to the Capacity and the Breeding of his Client; and if the Cau&s;e be good in it &s;elf, it is there put in &s;o ill a Light, and ju&s;tify'd upon &s;o mi&s;taken Grounds, that a bad one could not have a wor&s;e Face, nor be more weakly de|fended. Since therefore the Exceptions are &s;o ill taken, and with|al &s;o perplext and confus'd, it will be nece&s;&s;ary briefly to &s;tate the Ca&s;e it&s;elf; not with De&s;ign at pre&s;ent to &s;ettle the Point, but to &s;hew &s;he Weakne&s;s of the Authour.</P>
<P>The <HI>Vi&s;itour</HI> pronounced the Sentence by the Advice of the mo&s;t eminent <HI>Civilians</HI> of this Nation; and the Arguments which po&s;&s;ibly induced him and them to that Opinion were, as I con|ceive, &s;uch as the&s;e.</P>
<P N="1"><PB N="34" REF="20">I. Probably it was thought that an Univer&s;ity, and every Col|lege therein was a mixt Body, partly <HI>lay,</HI> and partly <HI>Eccle&s;ia&s;tical,</HI> and in all other Nations entitled to the Privilege of both <HI>Forums.</HI> And if all other Univer&s;ities, <HI>Generalia Studia</HI> and Colleges were by certain and e&s;tabli&s;hed Rules of the Canon Law &s;ometimes en|titled
<NOTE PLACE="foot">a Ab in c. ex Literis.</NOTE>, <HI>Eccle&s;ia&s;tical,</HI> often mixt
<NOTE PLACE="foot">b <HI>Univer&s;itattem mixtum Sodaliti|um ac rerum mixtur&acirc; verius deceutiu&s;que dici Eccle&s;ia&s;ticum, qu&agrave;m profanum.</HI> Chopin. <HI>ex</HI> Gul|merio <HI>de Dom. Fr.</HI></NOTE> and &s;eldom or never Lay Societies, it &s;eem'd more rea&s;onable to take the Standard of tho&s;e in <HI>Eng|land</HI> from other, many of them Prote&s;tant Colleges of the &s;ame Nature abroad, than from Ho&s;pitals and Lay Confraternities here at home. E&s;pecially &s;ince in all Charters and ancient Records of both Univer&s;ities here in <HI>England</HI> their Members have u&s;u|ally been &s;tiled
<NOTE PLACE="foot">c 2. H. III. 5. Ed. III. 29. Ed. III. 14. H. VIII. <HI>See Prin. in</HI> 4. <HI>Ia&s;t. p.</HI> 36<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">.</NOTE> <HI>Clerici;</HI> and it hath been expre&s;ly by Charter granted; that concerning them the Kings <HI>Prohibition</HI> &s;hould not lye. The Univer&s;ities, as they now <HI>by Charter</HI> &s;end Burge&s;&s;es to Parlia|ment and are in that re&s;pect <HI>lay;</HI> &s;o have they anciently &s;ent Deputies to the Councils, particularly to that of <HI>Con&s;tance,</HI> and have been admit|red as Eccle&s;ia&s;tical Societies. And therefore tho' at Common Law, no Lay Per&s;on was capable of Tithes, but the King; Appropriations how|ever, were anciently made to Colleges, and that without Di&s;pen&s;ation.</P>
<P>And tho' in Colleges of <HI>Phy&s;itians</HI> or <HI>Lawyers,</HI> this Rule may admit of Exception; yet in Societies, as that of <HI>Exeter</HI> College, where mo&s;t are actually in Orders, and others de&s;ign'd for them; it is impo&s;&s;ible that the <HI>end</HI> of the in&s;titution and the <HI>quality</HI> of the Per&s;ons con|curring, mu&s;t not denominate the Society if not purely Eccle&s;ia&s;tical, at lea&s;t not merely Lay. There is no more certain Rule in
<NOTE PLACE="foot">d <HI>Panormitum</HI> c. <HI>ex</HI> lit. 16. <HI>Tus.</HI> t. 8. <HI>Con.</HI> 255. <HI>Mendo de jure. Acad. Alphon&s;o d' E&s;cobar.</HI> c. 21.</NOTE> Canon Law, than that a Corporation cannot be merely &s;ecular; where the Num|ber of Eccle&s;ia&s;tical Per&s;ons equal the others, or exceed them.
<NOTE PLACE="foot">e <HI>Covar.</HI> l. 2. <HI>Var.</HI> c. 20.8. <HI>Con. Alf. d' E&s;c.</HI> c. 21. <HI>Anton. Augu&s;tin. dict.</HI> l. 14. <HI>Epit. Jur. Can. l.</HI> 8. <HI>&amp;</HI> 9. <HI>Guim. de Pragm. Sanct. de Univer.</HI> 307.</NOTE> And this Rule is &s;till a greater Force, when the Society hath been erected and confirm'd by Eccle&s;ia&s;tical Authority.</P>
<NOTE N="&dagger;" PLACE="foot"><HI>See</HI> Va&s;q. <HI>de</HI> Prada <HI>de Jure Eccl.</HI> Coll. Salm. Over.</NOTE>
<PB N="35" REF="20">
<P><NOTE PLACE="foot">a <HI>Hill.</HI> 18, <HI>&amp;</HI> 19. <HI>Car.</HI> 2.</NOTE> In Dr. <HI>Patricks</HI> Ca&s;e, <HI>Moreton</HI> holds, That mo&s;t Colleges are Spiritual; <HI>Windham,</HI> That in &s;ome re&s;pect all Colleges to an elemmo&s;ynary end are Spiritual, in &s;ome Lay; and <HI>Keeling,</HI> That they were <HI>quodammodo</HI> Spiritual.</P>
<P><NOTE PLACE="foot">b <HI>Hob.</HI> p. 122. 9 <HI>Eliz. Dyer</HI> 28. <HI>Coke</HI> 11. <HI>Rep.</HI> p. 99. See <HI>Sed.</HI> 71. <HI>Widrington</HI>'s Ca&s;e.</NOTE> <HI>A.</HI> 9. &amp; 10. <HI>Eliz. Mich.</HI> It was adjudg'd by all the Judges, <HI>per op|inionem omnium Ju&s;titiariorum utriu&s;&abque; Banci &amp; Capitalis Baronis Sacca|rii;</HI> that Trinity College in <HI>Cambridge</HI> was <HI>in &s;ome re&s;pects</HI> Spiritual: and within the Statute of 1 and 2 <HI>Phil.</HI> and <HI>Ma.</HI> which make good devi&s;es to Spiritual Corporations.</P>
<P>And therefore Colleges, tho' not merely Eccle&s;ia&s;tical, yet out of a ju&s;t caution, are excepted out of the Statute of <HI>Chanteries.</HI></P>
<P><NOTE PLACE="foot">c See <HI>Azeved.</HI> l. 10. n. 26. tit. 1. l. 4. &amp; l. 1. n. 3. tit. 18. l. 9.</NOTE> <HI>Collegia in&s;tituta pro &s;u&s;tentatione &s;tudentium pauperum &amp; aliorum Egenorum &s;unt loca pia; &amp; gaudent Privilegiis Eccle&s;iae &amp; de Juri&s;|dictione Eccle&s;ia&s;tic&acirc; &amp; &s;i &s;int in&s;titutu &s;eu erecta Authoritate Eccle&s;ia|&s;tica non &s;olum &s;unt &s;ola pia &s;ed etiam Religo&s;a.</HI></P>
<P>It was laid down then probably upon the&s;e or the like Authorities, that an Univer&s;ity was not merely a <HI>Lay Corporation;</HI> and that Colleges being parts of the Body, and Coporations within a Corpo|ration, were of the &s;ame nature as the whole.</P>
<P N="2">2. If the Body then that was to be vi&s;ited, was mixt: It was pre&s;um|ed that a mixt Juri&s;diction, as &s;ufficient for the redre&s;s of all Enormi|ties therein was lodg'd in the <HI>&s;ole</HI> Vi&s;itours thereof; and this more e&s;pe|cially if the Per&s;on, from whom the Authority was deriv'd, could grant &s;uch Power; and the Offences, that were to be puni&s;hed by the Vi&s;itour, could not be enquir'd into without it; and the Statutes (as is already prov'd) by plain and expre&s;s words did convey and warrant it.</P>
<P>Now the Vi&s;itation which is an enquiry into &s;everal Breaches, not only of the Law of the Land; but of Eccle&s;ia&s;tical Laws, and as in this ca&s;e into <HI>Here&s;y,</HI> can hardly be perform'd without the concur|rent a&s;&s;i&s;tance of Eccle&s;ia&s;tical Juri&s;diction. And therefore when <HI>Ordinaries</HI> are empower'd to enquire into the Foundation, Erection, and Governance of <HI>Ho&s;pitals,</HI> which are matters at fir&s;t &s;ight appear|ing Lay and Secular;
<NOTE PLACE="foot">d <HI>St. H.</HI> 5.1.</NOTE> they are commanded to make Correction, and Reformation thereupon, after the Laws of <HI>Holy Church.</HI></P>
<PB N="36" REF="21">
<P><NOTE PLACE="foot">a See <HI>VV.</HI> 2. c. 43. <HI>Coke</HI> 2. <HI>in&s;tit.</HI> 465, See <HI>Mendo</HI> l. 1. q. 26.</NOTE> Not only the <HI>Judices Academiarum,</HI> but the <HI>Con&s;ervatores</HI> too a|broad that repre&s;ent the Vi&s;itours there; and the <HI>Con&s;ervatores</HI> of the <HI>Templars</HI> in <HI>England</HI> had always a mixt Juri&s;diction.</P>
<P>And therefore &s;ays <HI>Mendo, Vi&s;itatores</HI> [of <HI>Colleges] Epi&s;coporum po|te&s;tatem promulgandi cen&s;uras habent; qu&acirc; &s;i carerent, vis plurima eis de|ficeret ad exequendum ea, quae expedire judicantur. De Jure Acad. D.</HI> 7. And &s;o anciently in all Religious Hou&s;es which con&s;i&s;ted mo&s;t of Lay Members, and in the Vi&s;itation of them. <HI>Caenobitica Vi&s;itatorum cen&s;ura ad Abates pertinet. [Dec. de Reg. c.</HI> 8. <HI>Chop. Mona&s;ticoon,</HI> l. 1.</P>
<P>My Lord <HI>Coke</HI> thinks the <HI>Eccle&s;ia&s;tical Law</HI> proper to be us'd by a <HI>Vi&s;itor</HI> of all Societies founded in <HI>Liber&acirc; Eleemo&s;yna.</HI> Coke 1. In&s;tit. 96. And this Power &s;eem'd more nece&s;&s;arily lodg'd in the <HI>Vi&s;itonr;</HI> becau&s;e it is evident,
<NOTE PLACE="foot">b See <HI>Quarrant. v. exemptio.</HI> 6. <HI>H.</HI> 7.14. <HI>Zerol</HI> 2. <HI>part.</HI> 60. <HI>Balth. And. de Equitibus Hiero&s;olymita|nis. Gratian. disp. For.</HI> c. 870.</NOTE> that tho&s;e Fraternities whether <HI>Religious</HI> or <HI>Lay,</HI> that were once exempted from their <HI>Ordinaries,</HI> were immediately made &s;ubject to their <HI>Vi&s;itor;</HI> and the one Power was de&s;ign'd to to &s;upply the lo&s;s of the other.</P>
<P>It is plain that a College is within 2 <HI>H.</HI> 5.1. Now then, if without a private appointment, it &s;hould be vi&s;itable, as &s;ome think, by the Or|dinary of the place; or as the better opinion is, it &s;hould fall into the bulk of the Univer&s;ity, and be &s;ubject to the Chancellours Vi&s;itati|on; in both the&s;e Ca&s;es, it would be vi&s;ited e&s;pecially in <HI>Eccle&s;ia&s;ti|cal</HI> Cau&s;es, as the <HI>Statute</HI> appoints, according to <HI>Holy Laws</HI> of the <HI>Church;</HI> becau&s;e both Per&s;ons confe&s;&s;edly have Eccle&s;ia&s;tical Juri&s;|diction. And therefore it &s;eem'd not rea&s;onable to &s;uppo&s;e that a Vi&s;itour of a College <HI>ex in&s;titutione,</HI> ve&s;ted with Eccle&s;ia&s;tical Au|thority by the Statutes, &s;hould have le&s;s Juri&s;diction, that one who <HI>ex provi&s;ione legis,</HI> was call'd in to &s;upply the want of him.</P>
<P>As to the Grant it is plain, That the King can exempt any place from Juri&s;diction of the <HI>Ordinary,</HI> and &s;ubject it to another <HI>Eccle&s;ia&s;ti|cal</HI> or <HI>Epi&s;copal</HI> Juri&s;diction. <HI>Co.</HI> 5.1.4. <HI>Cok.</HI> 5.9.10.14. <HI>Dav. Com.</HI> 73. <HI>H.</HI> 1. <HI>Jac. B. R. Rot.</HI> 601. <HI>Rolls Ab.</HI> 341, 10. <HI>H.</HI> 7.18.</P>
<P>If then Eccle&s;ia&s;tical Juri&s;diction be nece&s;&s;ary for the Vi&s;itour of a mixt Corporation; e&s;pecially in Cau&s;es originally of Eccle&s;ia&s;tical
<PB N="37" REF="21">Conu&s;ance; it mu&s;t be pre&s;um'd that the Kings Grant to the Foun|der, for con&s;tituting a Vi&s;itour gave him Authority likewi&s;e of con|veying to him &s;uch Powers which were nece&s;&s;arily incident to his Office. The King now enjoys the &s;ame Eccle&s;ia&s;tical Powers in this Na|tion, as the Popeonce did; and in all other Countries it is own'd, That the <HI>mixt</HI> Juri&s;diction is ca&s;t upon <HI>Abbots</HI> and other <HI>Vi&s;itors,</HI> not by De&s;ignation or Grant of the Pope, bat by the nece&s;&s;ity of their Office. [<HI>Barb. de Jure Eccl.</HI> l. 1 c. 17. <HI>Suarez. de Rel.</HI> l. 1. <HI>Sanchez in &s;umm.</HI> l 5]</P>
<P>And la&s;tly &s;ince the Governours of the Univer&s;ity have always ex|erci&s;ed a mixt Juri&s;diction; and the Charter of <HI>Exeter</HI> College entitles them to the &s;ame Cu&s;toms, as the Univer&s;ity; it &s;eem'd rea&s;onable to &s;uppo&s;e that the Vi&s;itour of a College had claim in his &s;mall Sphere to the &s;ame Rights and Liberties, as the Chancellour in the Univer&s;ity. <HI>Cum Collegia &s;int partes &amp; membra Academiae frunntur ii&s;dem priuilegis quibus ea fungitur, praeter alia &s;pecialia, quae ip&s;is &s;unt conce&s;&s;a. [Mendo. p.</HI> 25.</P>
<P>And this pre&s;umption is the &s;tronger, becau&s;e in other Colleges, as well as <HI>Exeter,</HI> the Founders, relying on the&s;e Rea&s;ons, and on this Authority have expre&s;ly granted to their Vi&s;itour the u&s;e of Eccle&s;ia&s;ti|cal Cen&s;ures: e&s;pecially &s;ince I find that the Vi&s;itors in <HI>H.</HI> 8's time, in the Univer&s;ity, tho not impowered by expre&s;s words of Commi&s;&s;ion us'd to puni&s;h the Members thereof by <HI>Eccle&s;ia&s;tical</HI> Cen&s;ures, as well as <HI>Temporal.</HI></P>
<P N="3">3. If The Body was <HI>mixt,</HI> and a <HI>mixt</HI> Juri&s;diction was lodg'd in the <HI>Vi&s;itor;</HI> Then the Cau&s;e of the Sentence it &s;elf being originally of Eccle&s;ia&s;tical Connu&s;ance, &s;eem'd properly to direct the <HI>Vi&s;itor</HI> to the U&s;e and Exerci&s;e of that Power. Here&s;ie was chiefly chargd again&s;t him, and fully prov'd; the Contumacy receives its Nature from the Crime, and when the Principal whereupon it grew, was a Matter Spiritual; the Puni&s;hment of it is of the &s;ame <HI>Forum,</HI> and the Cen&s;ures that enforce that Penalty, mu&s;t and ought to be Ec|cle&s;ia&s;tical: For <HI>Cujus Juris e&s;t principale eju&s;dem Juris erit acce&s;|&s;orium. Bract.</HI> l. 5. c. 2. fol. 401. [See al&s;o <HI>Hankford</HI>'s <HI>Opinion,</HI> 2 <HI>H.</HI> 4.15.] And Eccle&s;ia&s;tical Proce&s;s is allow'd not only <HI>in Cau&s;is Spiritualibus,</HI> but <HI>in Spiritualitati annexis,</HI> Bract. <HI>l.</HI> 5.</P>
<P>And it is a Rule in the Regi&s;ter, 53. <HI>b. &V;bi cognitio cau&s;ae principa|lis ad forum Eccle&s;ia&s;ticum pertinet; &amp; ejus acce&s;&s;orium pertinere de|bet, [Dennis</HI> Ca&s;e. <HI>Cro. Car.</HI> 115.]</P>
<PB N="38" REF="22">
<P>And therefore as Excommunication may be for <HI>Defamation</HI> and <HI>Perjury,</HI> &s;o it may be us'd likewi&s;e for <HI>Co&s;ts and Expences</HI> adjudg'd which however <HI>lay</HI> in them&s;elves are the Acce&s;&s;ories and Dependen|ces of tho&s;e Cau&s;es.
<NOTE N="*" PLACE="foot"><HI>Fitz. Tit. Prot. M.</HI> 4. <HI>H.</HI> 3.</NOTE> For as <HI>Perjury,</HI> tho plainly in its Nature of Ecclefia&s;tical Conu&s;ance, if it aro&s;e upon a Temporal Contract or Cau&s;e, is not triable in the Spiritual Court; &s;o much more <HI>Depri|vation</HI> (which is neither of it &s;elf Temporal or Spiritual, but un|determin'd) becomes an Eccle&s;ia&s;tical or Secular Puri&s;hment in re&s;pect of the Cau&s;e for which, and of the <HI>Forum</HI> in which it is inflicted.</P>
<P>I have offer'd the&s;e Rea&s;ons with all &s;ubmi&s;&s;ion, not entring into the merits of the Cau&s;e; but laying down the probable Motives and In|ducements to that Sentence: If a Bi&s;hop hath in every place Power of Excommunication in <HI>foro animae,</HI> and if he hath mixt Juri&s;diction in the College according to to the Canon Law; and the Laws of the Land, he may then by Law inflict the Sentence; If he hath not &s;uch Pow|er, The Cu&s;tom of all other Univer&s;ities and Colleges, the Nature of the Cau&s;e and of his own Power, the Practice of Vi&s;itors here|tofore, and the plain Words of the Founder have <HI>mi&s;led</HI> him. But how&s;oever the Cau&s;e be determin'd by tho&s;e learned Judges that it now lies before: Certain it is, that as the Vi&s;itor in this Ca&s;e could not have a more <HI>rude,</HI> &s;o he could not have a <HI>weaker</HI> Adver&s;ary. For whether the Bi&s;hop had ecclefia&s;tical Juri&s;diction or not, he could neverthele&s;s, as Vi&s;itor, take away the Tempo|ral Right. To excommunicate for <HI>Rent</HI> is a forreign and idle &s;uppo|&s;al; for Here&s;ie is not <HI>materia laica;</HI> and therefore if the Authority was mi&s;taken, the Cau&s;e however was Eccle&s;ia&s;tical. Nor is there any agreement between a Mannor and a College, between a <HI>mixt</HI> and a <HI>lay</HI> Corporation: As much is the Di&s;parity between a Lord and a Vi&s;itor, where one hath connu&s;ance only of <HI>Temporal</HI> Cau|&s;es, the other hath power to enquire into <HI>Eccle&s;ia&s;tical</HI> Offences. There is an apparent difference between <HI>two</HI> Juri&s;dictions and a <HI>mixt</HI> Juri&s;diction; <HI>two</HI> Juri&s;dictions may occa&s;ionally and by acci|dent be lodg'd in the &s;ame Per&s;on; as in the Bi&s;hop of <HI>Durham;</HI> but a <HI>mixt</HI> Juri&s;diction, as ari&s;ing from the Nature of the Cau&s;e, is always, not by chance but <HI>nece&s;&s;ity</HI> ve&s;ted in one Man, as in the <HI>Chancellors</HI> of both Univer&s;ities. Now in one Cau&s;e the Original of
<PB N="39" REF="22">the Powers is wholly accidental, and therefore they ought not to in|terfere and be mixt; but in the other, that which was the rea&s;on of mixing the Juri&s;diction, is as &s;trong for maintaining them <HI>un|di&s;tingui&s;h'd, and &s;ub&s;ervient</HI> to each other. In one Ca&s;e it is a Rule <HI>Quando duo Jura concurrunt, aequum e&s;t ac &s;i e&s;&s;ent in diver&s;is;</HI> in the other, <HI>Qui utroque Jure pote&s;t facere cundem actum utroque Jure feci&s;&s;e videtur;</HI> and therefore the Chancellor of <HI>Oxford</HI> having a <HI>mixt</HI> Juri&s;diction, can by Charter, confirm'd by Act of Parlia|ment, excommunicate the Mayor for breaking the Priviledges of the Univer&s;ity. <HI>Coveney</HI>'s Ca&s;e makes nothing again&s;t this Opi|nion; for it is plain, that the Matter of the Deprivation, <HI>i. e.</HI> the <HI>cau&s;e</HI> of it was purely temporal; the Crime was not <HI>Here&s;ie,</HI> but <HI>not entring into Orders;</HI> the re&s;olution that was there taken is clear; for it cannot be pretended that an Appeal in that Ca&s;e lay from the Vi&s;itor upon <HI>Stat.</HI> 24. and 25. <HI>H.</HI> VIII. as upon a Spiritual Sen|tence, and as from a Court merely Eccle&s;ia&s;tical; and upon that Ground the Opinion was confirm'd in Dr. <HI>Lewis</HI>'s Ca&s;e. How far there is ground for a <HI>Prohibition</HI> therefore in this Ca&s;e, I will not di&s;pute; but, tho the Excommunication &s;hould be allow'd to be void; tho the <HI>alibi</HI> in the Statute hath been already drawn into its full extent, yet I am confident, there it but one Man in <HI>England,</HI> who&s;e Opinion we need not much value, that will dream of a <HI>Praemunire.</HI></P>
<DIV2 TYPE="part">
<HEAD>3. As to the Vacancy of Dr. <HI>Hern</HI>'s Place.</HEAD>
<P>That he may refute &s;ome what, it is u&s;ual with this Author to make Objections him&s;elf, which no body el&s;e ever mention'd; and then to &s;hew his Skill in an&s;wer in them. For fir&s;t he proves in Dr. <HI>Hern</HI>'s Ca&s;e, that <HI>Ob&s;equium Officium &amp; Exercitium</HI> cannot extend to an Eccle|&s;ia&s;tical Benefice; no, nor was it ever pretended that they did; but I hope <HI>Eccle&s;ia&s;ticum Beneficium,</HI> in the &s;ame Statute will reach to it. Benefices indeed oftentimes are not reputed incon&s;i&s;tent with Fel|low&s;hips, according to the intrin&s;ick, but an e&s;timated Value. The real Value is u&s;ually un&s;etled, and as depending upon Ca&s;ualties, is <HI>floating</HI> and <HI>uncertain;</HI> therefore the incompatibility of a Living ought to be taken from fixt and certain <HI>Rates,</HI> and tho&s;e appear|ing on publick Record. The Kings Books, 'tis always own'd, are
<PB N="40" REF="23">&s;uch <HI>Regia Monumenta;</HI> and are not the Acts of Parliament as much <HI>Publica Monumenta?</HI> And is not, in the Letter of the Law, as well as in the intendment of the Legi&s;lator, the latter as good Evidence of the Value as the former? Now then, &s;ince an Annuity of 100<HI>l.</HI> is, be&s;ides many other Advantages, &s;etled by Act of Parliament on S. <HI>Anns;</HI> is not this in the <HI>nature</HI> of the thing, as incon&s;i&s;tent as one of <HI>Eight?</HI> And hath it not a &s;tated Value different from the intrin&s;ick? And dothnot this appear in the mo&s;t publick Records of the King|dom? And is it not then ridiculous to &s;ay that the Living is not tax'd at 100<HI>l. per Ann.</HI> but the Pari&s;h is tax'd to make it 100 <HI>l. per Ann.</HI> Nor can any Man that knew the Statutes of other Col|leges in both Univer&s;ities pretend, that this Precedent, however determin'd, can be of &s;o univer&s;al influence. For &s;ince mo&s;t of the Colleges in both Univer&s;ities were founded before the making of the Records in the <HI>Fir&s;t-Fruits Office;</HI> All his Arguments for them that enforce a reference to tho&s;e Records only, not by equitable Con&s;truction, but expre&s;s Words, prove nothing but his Ignorance in the Chronology of tho&s;e famous Foundations.</P>
<P>Thus much I have &s;aid for Argument only, &s;ince the <HI>Author</HI> after a tedious Di&s;cour&s;e, hath as u&s;ually not touch'd the Point in que&s;tion; And tho indeed his Rea&s;ons which have been &s;hown to be very weak, would have tempted a Man to be of another Opinion; yet I freely confe&s;s, that as to all Livings which are at all rated in the <HI>Kings Books;</HI> and were, if not rated, then in being; The Statute &s;eems naturally to refer it &s;elf to tho&s;e Books only, and the <HI>Publick Records</HI> there mention'd may, (and as I think, and always thought) in &s;trictne&s;s of Law ought to be ge|nerally taken under that limited and re&s;train'd Interpretation. But, as to all <HI>new</HI> Livings not then in being, and con&s;equently not rated in their Books, &s;ince erected, and reduc'd to a &s;etled Va|lue by Act of Parliament. I take the Provi&s;ion for them to be <HI>Ca|&s;us Omi&s;&s;us</HI> in the Statutes, and which by equitable Con&s;truction, and by a competent Judge, <HI>reducendus e&s;t ad expre&s;&s;um.</HI> And there|fore I further conceive, that the <HI>Vice Chancellor</HI> having no Power of expounding the Statutes, did well declare, That the <HI>Fellow&s;hip</HI> and <HI>Benefice</HI> were not according to the Letter of the Statutes, in|con&s;i&s;tent; and, that Dr. <HI>Bouchiers</HI> Opinion was at that time, in that place, well grounded: For the Statutes are to be ob&s;erv'd,
<PB N="41" REF="23"><HI>&s;ecundum planum &amp; grammaticalem &s;en&s;um, Re&s;ervata duntaxat praed' Reverendo Patri &amp; Succe&s;&s;oribus &s;uis Epi&s;copis Exon ju&s;ta emergen|tium ex ii&s;dem Statutis dubior' interpretatione;</HI> and therefore the <HI>Vice-Chancellor</HI> who was only let in as an Arbitrator between the <HI>Rector</HI> and the <HI>Fellows,</HI> mu&s;t be guided by the Letter of the Sta|tute; but the <HI>Vi&s;itor</HI> having always a power of interpreting the Statutes in his Vi&s;itation, and upon reque&s;t, out of it, might law|fully pur&s;ue the the well, intent, and plain de&s;ign of the Law. And therefore &s;ince in his Judgment, and according to the plain intendment of the Legi&s;lator, now judicially declar'd, this was reduc'd to the other ordinary Ca&s;es expre&s;s'd in the Statute; The Living was, and is plainly incon&s;i&s;tent with a Fellow&s;hip. And at fir&s;t indeed the Cognizance of the Cau&s;e being not &s;o properly a di&s;agreement between <HI>Rector</HI> and <HI>Fellow,</HI> as a doubt ari&s;ing from the Statute, ought not to have been brought to the <HI>Vice-Chancellor,</HI> but before the <HI>Vi&s;itor;</HI> and therefore the Matter being never &s;etled before a proper Judge, was now fir&s;t judicially mov'd and determin'd; I am well inform'd by Letter from Dr. <HI>Boucher,</HI> and it appears in his Opinion it &s;elf, that he did at that time ad|vi&s;e an appeal to the <HI>Vi&s;itor;</HI> and therefore the Reflection of this <HI>Author</HI> upon him, upon this account, is as fal&s;e, as is it rude and di&s;|ingenous.</P>
<P>As to his Re&s;idence it is plain, that the rea&s;on of a <HI>Fellows</HI> ab|&s;ence from the College beyond 50 days mu&s;t be <HI>Mors &s;eu gravis infir|mitus parentum,</HI> or <HI>cau&s;a promotionis,</HI> and then a <HI>tempus certum</HI> mu&s;t be appointed; and leave mu&s;t be given <HI>habito re&s;pectu ad Cau&s;as Per&s;onas intervalla locorum, &amp; circum&s;tantias eju&s;modi.</HI> When a Fellow is then in hopes of preferment; this Statute allows ab&s;ence for attainment of it, and doth not limit the time, but propo&s;es &s;ome Rules for di&s;cretionary Limitation. But when he <HI>is advanc'd,</HI> and hath for &s;ome Years had quiet Po&s;&s;e&s;&s;ion of a Par&s;onage; Then it is this Gentlemans Opinion, that <HI>Cau&s;a promotionis</HI> &s;ignifies the enjoyment of a Benefice, and that an indeterminate leave, perhaps for Life, may be granted. The <HI>Author</HI> of the Account is &s;worn to de|fend the Privileges of the Univer&s;ity, and hath, and will perform his Oath. But in the mean time he knows that the <HI>Worthy Members</HI> of that <HI>learned Body</HI> de&s;ire not to elude the Statutes of their <HI>Founders,</HI> by &s;o &s;candalous and &s;en&s;ele&s;s <HI>Eva&s;ions;</HI> and that there are very few of them,
<PB N="42" REF="24">and tho&s;e but in one College that will in this Ca&s;e be more pleas'd with the <HI>fair Dealing</HI> of their new <HI>pretended Advocate;</HI> than they are hitherto &s;atisfied with his Learning and Sen&s;e.</P>
<P>If then the Statutes will not excu&s;e his Ab&s;ence from the College; it is pretended that the Law will di&s;charge him from Re&s;idence from his Par&s;onage. The Que&s;tion is, whether Dr. <HI>Herne</HI> having a Pari&s;h in <HI>London,</HI> and being oblig'd to re&s;ide upon it, four Parts of five in a Year, can beyond that allow'd time of Ab&s;ence be re&s;ident in <HI>Oxford.</HI> He an&s;wers, That Dr. <HI>Hern</HI> is excus'd from Re&s;idence, notwith|&s;tanding the Act of Parliament that enjoyns it, becau&s;e by a &s;ub|&s;equent act, 1 <HI>Jac.</HI> 2. The <HI>Rector</HI> is to have an Hou&s;e built at the Charge of the Pari&s;h; and therefore, till that be built, <HI>Non-re&s;i|&s;tance,</HI> as involuntary, is no Crime; and in this Point he &s;ays, The Law is very clear. The <HI>Author</HI> was impos'd upon by a Ca&s;e or two explanatory of 21 <HI>H.</HI> 8. It was doubted whether that Act oblig'd a Man to Re&s;idence only, in his Pari&s;h, or more particularly in the Par&s;onage Hou&s;e. If there was no Hou&s;e for the Par&s;on, then the Incumbent is excus'd from that part of the Law which is impo&s;&s;ible. For <HI>impotentia excu&s;at legem;</HI> But as there is no im|po&s;&s;ibility for Re&s;idence in General, tho the Hou&s;e be not built, &s;o neither do the Ca&s;es warrant or excu&s;e <HI>Non-Re&s;idence.</HI> [See <HI>Goodals</HI> Ca&s;e, <HI>Coke</HI> 6. <HI>p.</HI> 21. See <HI>Cr. Eliz. p.</HI> 590, 591.] And the <HI>Canon Law,</HI> which was the Ground of tho&s;e Reports is clear in the Point, that he ought to live in the Vicinage, and not at forty &s;even Miles di&s;tance from his Pari&s;h in <HI>Oxford.</HI></P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>4. That the <HI>Vi&s;itor</HI> hath no Power by Statute of Su&s;pending the Fellows <HI>ab Officio &amp; Beneficio.</HI></HEAD>
<P>Upon this Head the <HI>Author</HI> declaims much, and long, and Dreams that the Su&s;pen&s;ion <HI>ab Officio e&s;pecially,</HI> is &s;o far from be|ing warranted by Statute, that under the Pain of <HI>Perjury</HI> it cannot be &s;ubmitted to by a Fellow. It would be ea&s;ie to prove, that his Penalty being le&s;s then <HI>Expul&s;ion,</HI> may without expre&s;s Words
<NOTE PLACE="foot">r
<P><HI>Barbo&s;a de Offic. Par. p.</HI> 1. <HI>c.</HI> 8. <HI>n.</HI> 41. <HI>Debet Re&s;idere Parochus in domo Parochiai, ip&s;a deficiente, re&s;idere debet in domo aliqua quae &s;it intra Parochiae limites, &amp; ita Eccle&s;ia contigua ut commode pa&s;&s;et Eccle&s;ia de&s;ervire.</HI> See <HI>Cock. de Jure &amp; Ju&s;t. p.</HI> 67.</P>
<P><HI>Parochus non habans commodam habitationem in Parochia di&s;pen&s;atus e&s;t ut po&s;&s;it in loco</HI> vicino. <HI>re&s;idere Se&s;&s;. Trid.</HI> 23. <HI>p.</HI> 216.</P></NOTE> Statutes be legally inflicted by the <HI>Vi&s;itor. Putting out of Com|mons,</HI>
<PB N="43" REF="24">is a <HI>Su&s;pen&s;ion &agrave; Beneficio,</HI> and of that, if they were worth any thing, Dr. <HI>Bury</HI> hath afforded us Precedents: Other Rea&s;ons might be &s;ugge&s;ted, were it not a very convincing one, that the Statnte it &s;elf, which this <HI>Gentleman</HI> might have read, expre&s;ly enjoys this Puni&s;hment. <HI>Eliam&s;i ad</HI> privationem <HI>aut</HI> amotionem <HI>Rectoris, Subrectoris vel alterius cuju&s;cun&abque;</HI> ab Admini&s;tratione <HI>&s;ua vel</HI> Officio <HI>procedat.</HI></P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>5. Whether the <HI>Vi&s;itor</HI> ought to have been Judge in his own Cau&s;e, or pronounc'd for his own Juri&s;diction.</HEAD>
<P>It is &s;aid indeed, that is again&s;t Natural Equity to make a Man Judge in his own Cau&s;e, and that an Act of Parliament that &s;hould e&s;tabli&s;h &s;uch a Practice, would be void: And this General Maxim, gro&s;sly mi&s;taken, and mi&s;apply'd, hath impos'd upon this Gentle|man. A Man that is not Judge of his own Cau&s;e, may, and every where does pronounce for his own Juri&s;diction, and over-rule the Exceptions of the Criminal. When his Property is concern'd, a Judge mu&s;t withdraw, but not when the Authority of his Court is que&s;tion'd. <HI>Quilibet Judex pote&s;t</HI> pronunciare pro &s;eip&s;o, <HI>quia licet illud non det ei juri&s;dictionem; tamen con&s;tituit ip&s;um in qua&s;i po&s;&s;e&s;&s;ione Juri&s;dictionis: propter quod habet ju&s;tam cognitionem, &amp; pronunciationem.</HI> [Abb. in c. cum Ordinem in fine de re&s;umpt. Mart. de Juri&s;d. c. 4. p. 2. &amp;c. 18. n. 8.]</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>That the Concurrence of the Fellows to the <HI>Rectors</HI> Expul&s;ion was not Statutable.</HEAD>
<P>If the others had appear'd, they had not been &s;u&s;pended, and then they had been proper Judges; &s;ince they did not appear, and were ju&s;tly puni&s;h'd, they became <HI>Participes Crimnis,</HI> &amp; <HI>Per|&s;onae Inhabiles,</HI> and con&s;equently in Law and Rea&s;on, as to any Exerci&s;e of Juri&s;diction, were reputed <HI>ab&s;ent.</HI></P>
<P>He pur&s;ued therefore the Statute &s;trictly, and the Expul&s;ion of Dr. <HI>Bury</HI> was not more ju&s;t in it &s;elf, than legally carried on. When tho&s;e Fellows that had oppo&s;s'd the Juri&s;diction of the <HI>Vi&s;itor,</HI> were &s;tatutably &s;u&s;pended <HI>ab Officio;</HI> then it is very weak to talk of the Bi&s;hops taking in others, when the Statute had devolv'd the Au|thority on tho&s;e that were in place neare&s;t to them. And there|fore the con&s;ent of no others could be had, than of &s;uch as were not incapacitated to give a legal Concurrence.</P>
</DIV2>
<DIV2 TYPE="part">
<PB N="44" REF="25">
<HEAD>La&s;tly, the Contumacy is no &s;tatutable Cau&s;e of Expul&s;ion, and if it were ought in the Ca&s;e of the <HI>Fellows</HI> as well as the <HI>Rector,</HI> to receive the &s;ame Puni&s;hment from the <HI>Vi&s;itor.</HI></HEAD>
<P>If a Man had not been us'd to <HI>like</HI> arguing thro the Book, he would be &s;urpriz'd at the la&s;t Exception in the clo&s;e of it. <HI>Contumacy</HI> is not re|cited as one of the Crimes for which the <HI>Rector</HI> might be expelld, and therefore is no good Cau&s;e of Deprivation; &s;o that if a <HI>Rector</HI> when an <HI>Heretick</HI> and <HI>Incontinent</HI> made a <HI>weak</HI> Defence, he <HI>might</HI> be depriv'd, if he made <HI>none,</HI> he <HI>mu&s;t</HI> be &s;afe and &s;ecur'd.</P>
<P>Contumacy upon a Charge includes the Offence it &s;elf, and aggravates it, it amounts in Con&s;truction of Law to a <HI>Confe&s;&s;ion</HI> of the <HI>Crime,</HI> and to a <HI>Contempt</HI> of the <HI>Judge;</HI> and any Court that hath no Power of puni&s;hing it, hath in effect no Power at all. The Statute &s;ays, <HI>O&s;tendantur ei detecta, quibus &s;i non po&s;&s;it rationabiliter &amp; hone&s;te re&s;pondere, amoveatur:</HI> and I leave this <HI>Gentleman</HI> to prove that a refu&s;al of appearance before a <HI>proper</HI> Judge, is a &s;ufficient An&s;wer to a Charge</P>
<P>As to the &s;econd Exception, it is clear, that the &s;ame <HI>Contumacy</HI> is not only re&s;pected in Law but the ground of it. When the charge is different; the <HI>Con|tumacy</HI> may be the <HI>&s;ame,</HI> but neither the <HI>Crime</HI> is, nor the <HI>Puni&s;hment</HI> ought to be <HI>equal.</HI> That which bears neare&s;t re&s;emblance to <HI>Contumacy</HI> in Com|mon Law is <HI>Outlawry.</HI> Outlawry in <HI>Tre&s;pa&s;s,</HI> is no Forfeiture of Land, as Outlawry in <HI>Felony</HI> is; the <HI>not-appearing</HI> in both Ca&s;es is the <HI>cau&s;e</HI> of Outlawry, yet the Force of the Outlawry &s;hall be e&s;teem'd according to the heinou&s;nes of the Offence, which was the Ground and Foundation of the Proce&s;s. His Lord&s;hip therefore had not equal Rea&s;on to expel the <HI>Fellows</HI> as the <HI>Rector,</HI> but wonders much that in the <HI>Ca&s;e of Exeter College,</HI> the greate&s;t exce|ption again&s;t his Proceedings &s;hould be his tenderne&s;s to the <HI>Fellows</HI> thereof.</P>
<P>Thus the whole State of this Controver&s;y hath been enquir'd into and &s;et|led, and thereby not only the <HI>immaterial</HI> Objections, which have already been made, are <HI>an&s;wered,</HI> but all <HI>future Exceptions</HI> are prevented. The Powers of a <HI>Vi&s;itor,</HI> as has been prov'd, are general, and not more fixt by private appointment, than a&s;certain'd by Law: <HI>Appeals</HI> from this <HI>Dome&s;tick</HI> Judge are by Statute taken away, bet no recour&s;e to him, either in this or any other <HI>College,</HI> hath ever been deny'd. It is evident then, that the <HI>Commi&s;&s;ion</HI> of <HI>Appeal</HI> was rightly granted, and it is equally clear, that the <HI>Vi&s;itation</HI> has been <HI>Statuable</HI> and <HI>Legal,</HI> and if (as is now plain) the <HI>Juri&s;diction</HI> of the Judge was <HI>certain,</HI> and the <HI>Proce&s;s warrantable,</HI> none of the Adver&s;aries them&s;elves will di&s;pute the Ju&s;tice of the Sentence.</P>
</DIV2>
</DIV1>
<DIV1 TYPE="answer">
<PB N="45" REF="25">
<HEAD>AN ANSWER TO THE Account Examin'd.</HEAD>
<P>SInce the <HI>Account Examin'd</HI> is a Panegyrick on Dr. <HI>Bury,</HI> it is ea&s;ie to di&s;cover the Author, and to find out the only Man in <HI>England,</HI> that would write well on that Subject. The <HI>An&s;wer</HI> to it, as anticipated by M. <HI>Colmlr,</HI> will here be very &s;hort; e&s;pecially, &s;ince the whole Pamphlet is at be&s;t only a bold denial of his own Crimes; and is oftentimes a Confe&s;&s;ion of the Charge. The Author of the <HI>Account</HI> had publi&s;hed nothing again&s;t him, but what was warran|ted by Authentick Vouchers; and it is not his fault if the faithful and exact Hi&s;tory of a Mans Life, becomes the &s;evere&s;t Satyr again&s;t him. Malice is ridiculou&s;ly charg'd up|on the Author again&s;t a Per&s;on wholly unknown: He knows no more of him, than of <HI>Socinus,</HI> or <HI>Sandius;</HI> but that his Principles are fully as bad; and his Learning much le&s;s. The little immaterial Exceptions, that are taken to the <HI>Account,</HI> are all fal&s;e; but would for the mo&s;t part be whol|ly impertinent to the purpo&s;e, if true. The great Incon|&s;tancy of which the Author of the <HI>Account</HI> is guilty, is that the Enormous Crimes of the Rector, are &s;ometimes made the Cau&s;e of the Vi&s;itation; and &s;ometimes the Di&s;|covery
<PB N="46" REF="26">of them is gloried in, as the Effect of it. The notorious Scandal was the Cau&s;e of the Vi&s;itation; and the Di&s;covery of the Crimes by legal Proof, was the Re&s;ult of it. The &s;u&s;picion of <HI>Here&s;ie</HI> and <HI>Incontinency</HI> was vio|lent, and occa&s;ion'd the <HI>Vi&s;itours</HI> Enquiry: The Proof of the Charge was plain, and brought on the Decree of the <HI>Univer&s;ity;</HI> Crimes may upon violent Pre&s;umptions be known before a Tryal; and yet the Tryal it &s;elf, and the Witne&s;&s;es therein produc'd, mu&s;t concur to the legal Convi|ction of the Criminals.</P>
<P N="1">1. As to the <HI>Naked Go&s;pel,</HI> It hath already been cen&s;ur'd and burnt; and after the Decree of that <HI>Learned</HI> and <HI>Judici|ous</HI> Body upon &s;o <HI>Infamous</HI> and <HI>Heretical</HI> a Book, it would be much more Prudence for him <HI>once more</HI> to recant his Tenets, than to defend them. For let his Friends of the <HI>Polonian</HI> Faith be|yond Sea, know, That never any Decree was more unanimou&s;ly &s;ign'd, nor more willingly a&s;&s;ented to by the Right Re|verend, and Reverend the Heads, and the worthy Mem|bers of the whole Univer&s;ity.</P>
<P>The manner of Chri&s;ts Generation was not the Que|&s;tion, but his Divinity: And it is a very exten&s;ive Charity indeed, that takes in all Chri&s;tians, but at the &s;ame time excludes Je&s;us Chri&s;t. If tho&s;e bold A&s;&s;ertions (as he &s;ays) fell from him through Heat; I believe the &s;ame warmth con|tinued, when he took <HI>Ann Sparrow</HI> into his Hou&s;e; when he expell'd Mr. <HI>Colmar,</HI> and oppos'd the <HI>Vi&s;itour.</HI> When the Author calls <HI>Je&s;us Chri&s;t</HI> a Crucify'd Vagabond, he &s;ays, That <HI>he per&s;onated an Infidel;</HI> and the Vizard that then was put on, was not, I believe in the whole Book taken off.
<PB N="47" REF="26">If none under a Dean may read <HI>Socinians</HI> Books; it &s;eems however, that one under that Degree may <HI>write</HI> them; and the Copies of the <HI>Naked Go&s;pel,</HI> if fitted for Deans only, ought not to have amounted to 500. However, The Gentleman, I &s;ee, quotes Cantons which he never read; nor can it be well expected, That he &s;hould be acquainted with the Rules and Orders of a Church; who denies the Chief Articles of her Faith.</P>
<P>As to his <HI>Immortality:</HI> The Affidavits that were there made in the Vi&s;itation were my guides, and afterwards his own Confe&s;&s;ion hath confirm'd mo&s;t of tho&s;e Depo&s;itions. He boa&s;ts much of his Loyalty, which it is not my bu&s;ine&s;s to deny: The charge is <HI>Here&s;ie, Incontinence and Bribery,</HI> and the Plea is; that he is not guilty of <HI>Trea&s;on.</HI> I am glad indeed that he is free from any one Crime, but at the &s;ame time it is hard, that a Man &s;hall be excus'd for <HI>Crucifying</HI> his Saviour, be|cau&s;e he is <HI>Cae&s;ars Friend.</HI> It is not my bu&s;ine&s;s to look into his Life: The Hi&s;tory of the Vi&s;itation I have &s;trictly pur&s;ued, and even in that out of re&s;pect to his Cha|racter, omitted a very &s;candalous part of the Charge. It is the di&s;ingenuous task of other Men to publi&s;h <HI>fal&s;e</HI> and <HI>&s;urreptitious</HI> Affidavits: What I have at any time &s;et forth hath been &s;o clearly, and judicially prov'd; and wholly made out, that after all his Subterfuges, the Criminal him&s;elf dares <HI>not</HI> di&s;avow it. For doth he deny that being then Pro|vicechancour <HI>inaudit&agrave; perfidi&acirc;</HI> (which are the words of the Decree) he oblig'd <HI>Litchfield</HI> by colour of his Authority to print the <HI>Naked Go&s;pel?</HI> Is he the Author of that Heretical Treati&s;e or not? did he call his Saviour <HI>Crucify'd Vagabond,</HI> or will
<PB N="48" REF="27">he deny the charge? Doth he not own that he &s;at at St. <HI>Atha|na&s;ius</HI> Creed? That he &s;old the Places and Offices of the College; and was guilty of Bribery and Extortion? In &s;hort, there is no part of the Charge, that is totally di&s;avow'd but Adultery, and yet that crime too as it was clearly made out in Vi&s;itation; &s;o &s;ince by &s;upplemental Evidence is confirm'd. And therefore it is left to the World to judge, how far the Church, and Nation in general are oblig'd to the &s;ea&s;onable care of the Univer&s;ity for cen&s;uring and burning that Bla|&s;phemous and Heretical Book; and to the Right Reverend the Bi&s;hop of <HI>Exeter</HI> for expelling the Author of it.</P>
<PB REF="27">
<P>A COPY OF THE PROCEEDINGS OF Dr. <HI>MASTER</HI> UPON The Commi&s;&s;ion of Appeal.</P>
<LIST>
<PB REF="28">
<PB N="3" REF="28">
<ITEM><HI>Reverendo admodum in Christo Patri ac Dom. Dom.</HI> JONATHAN <HI>Permi&s;&s;ione Divin&acirc;</HI> Exon. <HI>E|pi&s;copo Collegii</HI> Exon. <HI>in &V;niver&s;itate</HI> Oxon. <HI>Patrono &amp; Vi&s;itatori Ordinario,</HI> Edvardus Ma&s;ter <HI>Legum Doct. Vicar. ve&s;ter in Spiri|tualibus Generalis &amp; Comi&s;&s;ar. ve&s;ter in hac Parte &s;pecial. con&s;titut. omnimodas Obedientiam &amp; Reverentiam Paternitati ve&s;trae Reverend. Tenore prae&s;entium innote&s;cimus, &s;ignificamus &amp; certificamus, quae Vigore &amp; Virtute Commi&s;&s;ionis ve&s;trae mihi in hac Parte fact. &amp; direct. &amp; de|bit. cum Reverenti&acirc; prae&s;entat. &amp; tradit. pro|ce&s;&s;um fuit, &amp; e&s;t prout &s;equitur. (viz.)</HI></ITEM>
<ITEM><HI>Die Sabbati (viz.)</HI> Vice&s;imo &s;ecundo die Men&s;is <HI>Martii,</HI> Anno Dom. (Stylo <HI>Angliae</HI>) 1689. inter horas nonam &amp; undecimam ante Merid. eju&s;dem diei in Capella Col|legii <HI>Exon.</HI> in Univer&s;itate <HI>Oxon.</HI> coram ve|nerabili &amp; egregio viro <HI>Edvardo Ma&s;ter</HI> Le|gum Doctore Reverendi admodum Patris Domini <HI>Jonathanis</HI> Permi&s;&s;ione Divin&acirc; <HI>Exon.</HI> Epi&s;copi, Patroni &amp; Vi&s;itatoris Collegii <HI>Exon.</HI> predict. Ordinarii Commi&s;&s;ario ve&s;tro judicialiter &s;eden. in prae&s;entia mei <HI>Johannis Greeneway</HI> Notarii Publici &s;ub&s;cript. in hac P<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">rte &s;pecialiter a&s;&s;umpti.</ITEM>
</LIST>
<PB N="4" REF="29">
<P><HI>Negotium appellationis promotum per</HI> Jacobum Colmer <HI>Artis Ma|gi&s;trum Collegii Exon predict. Socium contra Doct.</HI> Bury, <HI>eju&s;dem Coll. Rectorem</HI> George Verman <HI>Coll. predict, Subrector &amp; alios &amp;c. Quibus Die hora &amp; Loco coram praefato ven. &amp; egregio Viro</HI> Ed|vardo Ma&s;ter <HI>Legum Doct. judicialiter &s;eden. comparuit</HI> Thomas Wood <HI>Legum Bacc. ex parte Reverendi admodum in Chri&s;to Patris ac Do|mini Domini</HI> Jonathanis <HI>permi&s;&s;ione divina Exon Epi&s;copi Collegii Exon praedict. Patroni &amp; Vi&s;itatoris ordinarii exhibuit Literas Com|mi&s;&s;ionales eju&s;dem Reverendi Patris Patroni &amp; Vi&s;itatoris praedict. pre&s;ato</HI> Edvardo Ma&s;ter <HI>Legum Doctori direct. quas eidem Ven. &amp; egregio Viro</HI> Edvardo Ma&s;ter <HI>debita cum Reverentia tradidit &amp; pre|&s;entavit humiliter petens quatenus praefat.</HI> Edvardus Ma&s;ter <HI>onus Exe|cutionis earundem Literarum Commi&s;&s;ionalium in &s;e a&s;&s;umere &amp; ac|ceptare &amp; juxta vim formam tenorem &amp; effectum earundem procedere &amp; pro Juri&s;dictione &s;ua &s;eu potius ve&s;tra in hac parte decernere dig|naretur quibus per eum debita &s;imili reverenti&acirc; receptis &amp; publice tunc &amp; ibid perlectis dictus</HI> Edvardus Ma&s;ter <HI>onus Executionis Literarum Commi&s;&s;ionalium huju&s;modi ob honorem &amp; Reverentiam di|cti Reverendi Patris Patroni &amp; Vi&s;itatoris Committen. &amp;c. In &s;e a&s;&s;ump&s;it &amp; acceptavit &amp; procedend fore decrevit in huju&s;modi negotio appellationis juxta &amp; &s;ecundum omnem vim formam tenorem &amp; effectum earundem &amp; Juris in hac parte exigentiam meque</HI> Jo. Greeneway <HI>No. Pub. in actorem &s;cribam &s;ive Reg. pro expeditione huju&s;modi Negotii appellationis a&s;&s;ump&s;it tunc fact&acirc; trina preconi|zatione pro dict.</HI> Arthur Bury <HI>S. Th, Profe&s;&s;or. Coll. praedict. Recto|re</HI> Georgio Verman <HI>Subrectore</HI> Ezra Cleveland, Thoma Lethbridge Richardo Hutchins, Benjamino Archer, Samuel Adams &amp; Philippo Thorne <HI>&s;ociis Collegii Exon proedict. ad intere&s;&s;end. i&s;tis die hora &amp; Loco ultime citatis ad re&s;pondend. dicto</HI> Jacobo Colmer <HI>in huju&s;|modi Negotio appellationis comparuerunt Per&s;onaliter venerabilis Vir</HI> Ar|thur Bury <HI>S. T. P. Rector dicti Collegii necnon</HI> Georgius Verman <HI>Sub|rector ibid</HI> Ezra Cleeveland. Thomas Lethbridge, Richardus Hutch|ins &amp; Philippus Thorn <HI>&s;ed</HI> Benjamin Archer <HI>&amp;</HI> Samuel Adams <HI>non comparuerunt quorum paenas Dominus re&s;ervavit in prox. Tunc compa|ruit</HI> Jacobus Colmer <HI>pars appellans &amp; con&s;tituit Magi&s;trum</HI> Thomam Wood <HI>Legum Bacc in ejus legitimum procuratorem ad agend: &amp;c. quod &s;tatim in &s;e acceptavit &amp; fecit &s;e &amp;c. Tunc facta denuo trina praeconizatione pro dict.</HI> Benjamin Archer &amp; Samuel Adams <HI>eis|que
<PB N="5" REF="29">non comparen. &amp;c. dictus</HI> Wood <HI>in pre&s;entia Doctoris</HI> Bury Georgii Verman, Ezrae Cleeveland, Thomae Lethbridg, Richardi Hutchins &amp; Philippi Thorn <HI>comparen. &amp; in penam Contu|maciae dict</HI> Archer <HI>&amp;</HI> Adams <HI>ab&s;en. Loco Libelli exhibuit Protocol. appellationis quod Dom admi&s;it quatenus de Jure &amp;c. De|inde dictus</HI> Wood <HI>exhibuit Inhibitionem &amp; Monitionem pro tran&s;mi&s;|&s;ione totius proce&s;&s;us in hoc negotio habit &amp; fact. &amp; allegavit ea&s;dem fui&s;&s;e &amp; e&s;&s;e debite execut. juxta Certificat. authentic. &s;ub &s;igillo Officialitatis Berks factaque deinde trina preconizatione pro dict</HI> Archer <HI>&amp;c</HI> A|dams <HI>non comparen. Dominus in penam non comparen. &amp; in prae&s;entia comparen. monuit eos ad introducend. proce&s;&s;um in prima hujus cau&s;ae in&s;tantia fact. &amp;c. po&s;t merid &amp; ulteriorem executionem dictae com|mi&s;&s;ionis continuavit &amp; prorogavit ad publicam Cameram infradict Colle|gium Exon. notorie &s;ituat. inter horam &s;ecundam &amp; quartam pome|rid. hujus diei monitis partibus pre&s;en. ad tunc ibid intere&s;&s;end. &amp; in penam</HI> Archer <HI>&amp;</HI> Adams <HI>non comparend Cont. Cur. &amp;c.</HI></P>
<P><HI>Eodem die inter horam Secund. &amp; quartam pomerid coram praefa|to</HI> Edvardo Ma&s;ter <HI>Legum Doctore Commi&s;&s;ario antedict in publica Camera in Collegio proed. pro Tribunal. &s;eden. vocatis prius praefatis Doctore</HI> Bury, Georgio Verman, Ezra Cleeveland, Thom. Leth|bridg, Richardo Hutchins &amp; Philippo Thorn <HI>fact&acirc;que trina preconi|zatione pro dict</HI> Benj. Archer <HI>&amp;</HI> Samuel Adams <HI>eisque non comparen. comparuit</HI> Wood <HI>Procurator dict.</HI> Jacobi Colmer <HI>&amp; in prae&s;entia di|ctor. Doctoris</HI> Bury, Georgii Verman, Ezrae Cleeveland, Thomae Lethbridg, Richardi Hutchins &amp; Philippi Thorn. <HI>Comparen. &amp; in penam Contumaciae dict.</HI> Archer &amp; Adams <HI>ab&s;en. petiit procedend. fore juxta formam retroactorum in prae&s;entia dict. Doctoris</HI> Bury, Ge|orgii Verman, Thomae Lethbridg &amp; Philippi Thorn <HI>exhiben. &s;crip|tum quoddam continens prote&s;tationes &s;uas manibus &s;uis propriis &s;ub|&s;cript. &amp; atte&s;tat. quod petierunt admitti &amp; inactitari &s;ic Incipiens</HI> in Vi&s;itatione <HI>Collegii Exon &amp;c. Et &s;ic terminans privilegiis no&s;tris hac ex parte intemeratis quod &s;criptum Dominus ad eorum peticionem admi&s;it quatenus de Jure &s;it admittend. &amp; non aliter neque alio modo Interrogatis prius Magi&s;tris</HI> Ezra Cleeveland <HI>&amp;</HI> Rich. Hutchins <HI>du|obus ex Sociis dict. Colleg. Exon. Senior. an velint dict. &s;cript. &s;ive Prote&s;tationem atte&s;tari &s;ub manibus &s;uis dict.</HI> Cleeveland <HI>&amp;</HI> Hutch|ins <HI>expre&s;&s;e renuncian. &amp; eidem non con&s;entientibus. Tunc Dominus ad petitionem dict. Doctoris</HI> Bury <HI>re&s;ervavit pote&s;tatem &s;ub&s;cribendi dict. In&s;trument dictis</HI> Archer &amp; Adams <HI>ab&s;entibus &s;i eidem In&s;tru|ment.
<PB N="6" REF="30">&s;ub&s;cribere voluerint cum venerint. Po&s;tea Dominus non ob|&s;tante prote&s;tatione proed. Doct.</HI> Bury, Georgii Verman, Thomae Lethbridg &amp; Philippi Thorn <HI>decrevit procedend. fore in hoc Negotie &amp; monuit dict. Doctorem</HI> Bury <HI>alio&s;que comparen. ad introducend. proce&s;&s;um in hoc Negotio juxta Monitionem eis Judicialiter fact. eis ve|ro non introducentibus Dominus</HI> Wood <HI>accu&s;avit Contumacias dictor. Doctoris</HI> Bury, Georgii Verman, Ezrae Cleeveland, Thomae Leth|bridg, Richardo Hutchins &amp; Philippi Thorn <HI>in non tran&s;mittendo vel exhibendo proce&s;&s;um in prim&acirc; hujus preten&s;ae cau&s;ae in&s;tanti&acirc; habitae &amp; fact. &amp; petiit &s;ententiam ferri &amp;c. dictis vero Doctore</HI> Bury, Ge|orgio Verman, Thoma Lethbridg &amp; Philippo Thorn <HI>alleg. quod virtute Stat, Collegii praed. proce&s;&s;um in cau&s;a amotionis vel expul&s;ionis tene|antur procedere &s;ummarie &amp; de plano &amp; &s;ine &s;trepitu Judiciali eaque de cau&s;a nullum proce&s;&s;um in Scriptis habui&s;&s;e aut habere nec proinde po&s;&s;e exhibere nec ullum Stat. viola&s;&s;e. Tunc fact&acirc; denuo trina pre|coni&s;atione pro dict.</HI> Archer <HI>&amp;</HI> Adams <HI>ei&s;que non comparen. Dominus</HI> Wood <HI>in penam eorum contumac. &amp; in prae&s;entia comparen. obtulit Sententiam definitivam quam petiit admitti ferri legi &amp; promulgari &s;ed Dominus ad petitionem dictor. Doctoris</HI> Bury, Georgii Verman, Thomae Lethbridg &amp; Philippi Thorn <HI>continuavit &amp; prorogavit ul|teriorem expeditionem huju&s;modi Commi&s;&s;ionis &amp; finalem auditionem huju&s;modi Cau&s;ae in Diem Martis prox. inter horas Secund. &amp; Quart. pomerid, ejufdem diei hoc in loco Monitis partibus tunc prae&s;entibus &amp;c. Cont. Certificatorio &amp;c.</HI></P>
<P><HI>Po&s;tea Die Martis</HI> (viz) <HI>Vice&s;imo Quinto Die Men&s;is Martii An|no Dom.</HI> 1690. <HI>Inter horas tertiam &amp; quartam pomerid. in hac parte A&s;&s;ignatas in publica Camera Colleg. Exon. praed. coram proefato venerabili &amp; egregio Viro</HI> Edvardo Ma&s;ter <HI>Leg. Dict. Com. antedict. pro tribunal. &s;eden. in prae&s;entia mei</HI> Jo. Greeneway Not. Pub.</P>
<P><HI>Quibus, &amp;c. fact&acirc; trina praeconizatione pro dict' Doctor'</HI> Bury, Georgio Verman, Ezra Cleeveland, Thom' Lethbridge, Richardo Hutchins, Benjamino Archer, Samuel' Adams <HI>&amp;</HI> Philippo Thorne <HI>Comparuerunt &amp; Exhibuerunt Scriptum quoddam de novo continens prote&s;tationes &s;uas manibus &s;uis &s;ub&s;cript' &amp; atte&s;tatas (except'</HI> Cleeve|land <HI>&amp;</HI> Hutchins) <HI>quod petiterunt admitti &amp; inactitari &s;ic incipiens In vi&s;itatione Collegii Exon' Et &s;ic terminans prote&s;tantes irritum fore quicquid contra Acta no&s;tra Statutum fuerit. Quod Scriptum petierunt admitti &amp;c. Dominus admi&s;it quatenus de Jure &s;it admittend. &amp; non
<PB N="7" REF="30">aliter neque alio modo: Tunc Dominus pronunciavit pro Juri&s;dictione &s;uae &amp;c. Et</HI> Wood <HI>petiit proce&s;&s;um coram ei&s;dem fact. juxta Monicionem introducend. fore &amp;c. Qui re&s;ponderunt &s;e non habere alium proce&s;|&s;um quam qui Prote&s;tationi hac Die dat. annex. e&s;t Moniti deinde ad proband. dict. proce&s;&s;um ad petitionem</HI> Wood <HI>re&s;ponderunt &s;e non te|neri Dom. judican. probare &s;ufficere &s;ibiip&s;is liquid. &amp; verum.</HI></P>
<P><HI>Tunc dictus</HI> Wood <HI>obtulit &amp; porrexit Dom. judican. &s;ententiam definitivam pro Parte &s;ua, quam petiit admitti, ferri, legi &amp; promulga|ri in prae&s;entia dictorum Doctoris</HI> Bury, Georgii Verman, Ezrae Clevc|land, Thomae Lethbridge, Richardi Hutchins, Philippi Thorne, Ben|jamin Archer <HI>&amp;</HI> Samuel Adams <HI>nihil peten. Dom. ad Petitionem Dom.</HI> Wood <HI>admi&s;it, tulit, legit &amp; promulgavit Sententiam predict. &s;ic (ut permittitur) per dict.</HI> Wood <HI>oblat. &amp; porrect. decernendo, pronunci|ando, declarando, adjudicando, re&s;tituendo &amp; in Expen&s;is condemnando caeteraque faciendo prout in eadem Sententia plenius continetur, prae&s;enti|bus tum &amp; ibid.</HI> Adolpho Meetkerk <HI>Coll. novi in &V;niver&s;itate</HI> Ox|on. <HI>Artis Magi&s;tro &amp;</HI> Seymor Tredenham <HI>Collegii omnium animarum in dict. &V;niver&s;itate Juris Civilis Scholari Te&s;tibus ad premi&s;&s;a te&s;ti|ficand. &s;pecial. rogatis &amp; requi&s;it. in prae&s;entia mei</HI> Johannis Greene|way <HI>Not. Pub. &amp; Reg. a&s;&s;umpti,</HI> &amp;c. <HI>&s;uper cujus quidem &s;ententiae prolatione,</HI> &amp;c. <HI>Dom.</HI> Wood <HI>requi&s;ivit pub. in&s;trument. confici &amp; in actitari.</HI></P>
<P><HI>Tunc Dom.</HI> Wood <HI>obtulit Billam expen&s;arum quam petiit admitti &amp; taxari Dominus ad ejus petitionem taxavit eand. ad &s;ummam vigin|ti Marcarum (fact&acirc; prius fide perdict.</HI> Wood <HI>Client. &s;uum expo&s;ui&s;&s;e,</HI> &amp;c. <HI>&amp; expo&s;iturum e&s;&s;e &s;ummam taxat) &amp; Dom. a&s;&s;ignavit pro &s;olu|tione dictarum expen&s;arum in vel citra primum diem Men&s;is</HI> Maij <HI>prox. &amp; judicial. monuit Dominos Doct.</HI> Bury Georg. Verman Ezra Cleeve|land Thomam Lethbridge Richardum Hutchins Philippum Thorne Benjam. Archer &amp; Samuel. Adams <HI>dict. &s;um. taxat, praed. Mro.</HI> Jacobo Colmer <HI>&s;eu ejus procurat. in vel citra diem praed. Tunc Dom.</HI> Wood <HI>petiit &s;ententiam executioni demandari partem&abque; &s;uam actual. re&s;titu|ere &amp; nomen &s;uum in Libro promptuarii &s;ive Regi&s;tro dicti Collegii in|&s;cribere unde Dominus nomen Mr.</HI> Colmer <HI>in&s;crip&s;it tum in ea parte Li|bri praedict. qua primo deletum &s;ive omi&s;&s;um fuerit tum in ea parte ubi hoc die Nomina &s;ociorum &s;cribuntur &amp; in&s;eruntur.</HI></P>
<P><HI>Quae omnia &amp; &s;ingula &s;ic (ut permittitur) Coram Nobis Ge&s;ta habi|ta &amp; facta vera e&s;&s;e Paternitati ve&s;trae certificamus eadem&abque; un&agrave; cum Li|teris
<PB N="8" REF="31">ve&s;tris Commi&s;&s;ionalibus Appellatione Mandato ve&s;tro Citatorio Inhi|bitione cum Monitione pro proce&s;&s;u originali nna cum &s;ententia no&s;tra diffi|nitiva prae&s;entibus annex. Clau&s;im &amp; &s;ub Sigillo Vobis tran&s;mittimus.</HI></P>
<P><HI>In cujus Rei Te&s;timonium has Literas Te&s;timoniales &s;ive hoc prae&s;ens publicum In&s;trumentum exinde confectum &s;igillo publico &amp; authentico Officialitatis</HI> Berks <HI>&s;igillari &amp; communiri &amp; per</HI> Jo. Greeneway <HI>Not. Publ. Actor. no&s;trorum. in hac parte &s;cribam &s;ub&s;ignari &amp; &s;ub&s;cribi fecimus Dat. &s;ecundo die</HI> Aprilis <HI>Anno Dom.</HI> 1690.</P>
<CLOSER><SIGNED>Edv. Ma&s;ter <HI>LL. Dre. diocae&s;eos</HI> Exon <HI>Cancellarius.</HI></SIGNED>
<POSTSCRIPT>
<P><HI>Et ego praefatns</HI> Jo. Greeneway <HI>Regi&acirc; authoritate Not. Publ. Quia pre|mi&s;&s;is omnibus &amp; &s;ingulis dum &s;ic [ut prefertur) coram Com. praedict agebantur &amp; fiebant prae&s;ens per&s;onaliter interfui Ea&abque; omnia &amp; &s;ingula &s;ic fieri, vidi, &s;civi, audivi &amp; in formam praedict. inactitavi ac man<GAP DESC="illegible" RESP="KEYERS" EXTENT="2 letters"> mea propri&acirc; &s;crip&s;i &amp; redegi Ideo nomen &amp; cognomen meum &s;ub&s;crip&s;i ae &s;ignum meum tabellionale &s;olitum &amp; con&s;uetum prae&s;entihus appo&s;ui in fidem &amp; Te&s;timonium premi&s;&s;orum ad id &s;pecialiter rogatus &amp; requi&s;itus,</HI></P>
<CLOSER><SIGNED><HI>Ita Te&s;tor</HI> Jo. Greeneway <HI>Not. Publ.</HI></SIGNED></CLOSER>
</POSTSCRIPT></CLOSER>
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<BACK>
<DIV1 TYPE="errata">
<P><HI>The&s;e Proceedings being Printed off in ha&s;t, the Reader is de&s;ired to correct the Lit|teral Faults therein; and the&s;e Errata in the Defence,</HI></P>
<P>ERRATA.</P>
<P><HI>PAge</HI> 5. <HI>Line</HI> 24. <HI>after</HI> therefore <HI>dele</HI> that. <HI>p.</HI> 16. <HI>l,</HI> 11. <HI>dele</HI> are. <HI>p.</HI> 12. <HI>l.</HI> 12 <HI>r.</HI> Exe|ter. <HI>p.</HI> 13. <HI>l.</HI> 1. <HI>dele</HI> qui. <HI>l.</HI> 2. <HI>dele</HI> or. <HI>p.</HI> 14. <HI>l.</HI> 6. <HI>r.</HI> provi&s;ionary. <HI>l.</HI> 16. declared. <HI>p.</HI> 15 <HI>l.</HI> 1. <HI>r.</HI> alii. <HI>p.</HI> 16. <HI>l.</HI> 2. <HI>r.</HI> Fellows. <HI>l.</HI> 18. <HI>r</HI> propriety.</P>
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