for comparison of the sequel wel hoped for at your hands Except that be loked to in time the Quenys Majestie shal not have half suffycient Mynisters for hir yeres which I pray God may be many to uphold Christes Fayth in her Realms Youth here is of some Inclination if they had but three or four good Hedys Resident to lean unto to comfort them against som fower talkers in their stoutness but time must be expected and Godys furderance craved Sir I pray you pardon my boldnes and not to be offendyd though I wright thus homly and in English Letters while paraventure I might busye my head to wright Latinius somewhat to avoyd offending of your exact and exquysite gift in your Latin Tonge I might chance to wright obscurius not significancius and so the longer to deteyn your perusing these smal Causes to hynder your others much more weighty which I beseche Almighty God to prosper From Corpus Christi Collage in Camboige the 30th Day of March. Your onfeyned and bownd Bedesman M. P. § 4 I have Transcribed this according to the spelling of this noted Prelate Antiquitates Britannicae c. who hath shewn his Learning in Antiquities and his Zeal for the protestant Religion in his Books Yet I doubt not but this Age will think his way of expressing himself in English not very Polite I shall not Comment upon his Letter which tho' in somethings obscure yet is plain enough to be understood as to what was his General intent and design This Visitation of Cambridge in the first Year of Queen Elizabeth was by Commission under the Great Seal to Sir William Cecyl then Chancellor of the University of Cambridge and to others as Mr. Pryn in his Oxford Plea refuted pag. 34. hath given a short account of ☞ In the Queens Letters before the said Visitation to Sir William Cecyl are these expressions Because the chief Order and Government of Our University of Cambridge appertaineth to you being the Chancellor of the same c. We thought meet to will you in Our Name to give signification that We mean very shortly with your Advice to Visit the same by some discreet and Meet persons So that here we find whatever power the Chancellor hath it is in subordination to the Sovereign and tho' they may take the advice of their Subjects in places of Government under them yet the power of Visiting still proceeds and is derived from them as all along I hope I have proved §. 5. An account of the Visitation of Merton College in Oxford Anno 1562. Wood Antiq. Oxon. lib. 1. fol. 284. b. 4 o. Eliz. There happened a Sedition in Merton College In January Dr. James Gervace the Custos or Warden having voluntarily quit his place the Fellows gave in the Names of five to the Arch-Bishop their Visitor whereof two or three had never been of their Society whereas Anciently according to their Statutes they had used to name only three bred in the College whereof one was to be put into the place of him that was Dead or Resigned The Arch-Bishop resented this and rejected all those named by the Fellows and before the end of March Nominated John Man sometime Fellow of New College to be the Warden who came to Oxford the 30th of March accompanyed with Dr. Babington the Vice-Chancellor Dr. White Warden of New College but the Fellows refused to Admit him so that on the 2d of April he came accompanyed with the Vice-Chancellor and Henry Norris of Witham and Anthony Foster of Cumnor and with much difficulty the Gate was opened Mr. Willi. Hawle the Senior Fellow and others opposing upon this the Arch-Bishop upon the 26th of May following Cited them all to appear in their Church to be Visited by himself or his Vicar General and by the said Vicar General of the Arch-Bishop Man was Confirmed and Hawle was Ejected out of his Fellowship By this it appears what power the Local Visitor had to Nominate and settle the Head of the College at his pleasure even contrary to the Ancient Statutes of the Society The observation upon it how much more may we conceive that the King hath power by his Mandate to Nominate and appoint the Head of any College as Sovereign and Supreme Visitor The Commission for Visitation continued still and in it great changes were made till all were reduced to a Conformity to the Queens Laws and pleasures several Statutes were revoked others amended or explained all which great changes were by vertue of the Queens Commission §. 6. Secretary Cecyls Letter about Non-conformists in Cambridge threatning a Visitation Before I proceed to any other Visitations I shall give a short account of the great States-man Sir William Cecyls proceeding Wood Antiq. Oxon. lib. 1.286 upon a disorder in St. Johns College in Cambridge wherein we may note by what Steps he being Chancellor thought fit to proceed by the subordinate Governors with a sufficient Menace that if that would not be effectual he would obtain the Queens Authority for a Visitation ☞ December the 13th 1565. Bundel Ecclesiastica 1560. ad 1569. In the Paper Office. Secretary Cecyl Writes to Dr. Stoke Vice-Chancellor of Cambridge concerning some of the Younger Fellows that in St. Johns College Chappelleft off the use of the Surplice That the Vice-Chancellor Confer with the President and if they can do it by their Ordinary Authority then to proceed if not then he Writes a Letter to the Bishop of Ely Visitor in Ordinary to rectifie it then follows If there shall no good come of those two means then I am determined to resort to the Authority of our Sovereign Lady the Queens Majesty In whose power by Prerogative the Government of all manner of Subjects doth belong to reduce them by sharpness to the Obedience of her Laws and Commandment This was the Judgment of the Great States-man who may be presumed to have well understood the Law and the Prerogative in that Case In his Letter to the Bishop of Ely he Writes that he had privately imparted the matter to her Majesty for his discharge by whom he hath been straightly charged to see Reformation and with speed and severity which he hath promised her Majesty to do altho' he will first seek it by ordinary means If otherwise it should fall out he would for his discharge refer the whole to the Queens Supreme Authority Here note the Authority of the Prince whereupon must needs follow Cause of Repentance to the Authors of that Garboyle By which it is manifest that whatever Ordinary power was lodged in the Bishop of Ely as Dioecesan Visitor or the Chancellor and other Magistrates of the University yet the Queen Jure Regio supersedes all and takes Cognizance of the whole matter by her Commissioners as occasion might require §. 7. Disturbance about Election of a President in Corpus Christi College ☞ In the Year 1568. Wood Antiq. Oxon. lib. 1. fol. 290. a. The
LICENS'D By COMMAND this 23d of July 1688. JA. VERNON THE KING'S Visitatorial Power ASSERTED BEING An Impartial Relation of the late Visitation of St. Mary Magdalen College in Oxford As likewise an Historical Account of several Visitations of the Universities and particular Colleges Together with some necessary Remarks upon the Kings Authority in Ecclesiastical Causes according to the Laws and usages of this Realm By NATHANIEL JOHNSTON Doctor in Physic Fellow of His Majesties College of Physicians in London Pereunte Obsequio etiam Imperium Intercidit Tacitus 1 Histor LONDON Printed by Henry Hills Printer to the King 's Most Excellent Majesty for His Houshold and Chappel And are sold at his Printing-house on the Ditch-side in Black-Fryers 1688. TO THE Judicious Reader AS soon as His Majesty had been pleased to lay His Commands upon me to Collect materials for this Subject I could not but reflect that it was to Treat of a matter that I knew not any had Writ upon before and of such a largeness that it takes in not only the Case of Magdalen College but regards all other Corporations and Societies of that Constitution and spreads it self into some branches of the Prerogative Royal Wherefore the nature of the Thing requires a Treatise of me not altogether unsuitable to the Dignity of the persons concerned viz. The King and the Universities which would induce persons of all Ranks to peruse it who desire satisfaction in a matter of such importance both to the Prince and Subject This suggested to me a necessity of enquiring into Records of preceding ages and to render the Work at least a Collection of various instances in several Cases of Visitations Therefore finding no compleat History of any Visitation of our Universities except that of the long Parliament I judged it necessary to give an Impartial account of the proceedings from the Kings Mandate for Mr. Farmer to the close of the Visitations by the Lords Commissioners whereby this and after ages might have an Authentic Precedent if any occasion should happen of this kind and that people concerned might know their Boundaries and in this part I followed the Registers Original Papers Authentic Copies of Letters and Orders or the Diaries accounts of such as were present and actors in the disquisition and in this particular I have used as much diligence as I could not to be imposed upon and had finished most of this before the Oxford Relation was Printed and wherein I differ from that I have done it upon the best Intelligence I could obtain After the finishing of this I judged it not improper before I entred upon Answering the Objections I found urged by the Vice-President and Fellows of St. Mary Magdalen College to clear the Kings Prerogative over the Universities in making and Abrogating their Statutes or dispensing with them and placing or dis placing of their Members which obliged me to consider the matter not only in General but also to descend to many particulars and shew who by the Kings Authority or sufferance have exercised the like Authority In which I have endeavored to follow the most approved Authors and surest Records I have the rather enlarged upon this head that I might afford variety of Cases whereby the distinct claims of Right of Visitation might be Illustrated and this Tract might be a Repertory whereby upon emergences the Original Records might be enquired after If some may judge me too tedious I desire them to consider that it was not enough to clear the point of St. Mary Magdalen College but likewise to discover in what other Cases the Kings of England had exerted their Prerogatives The Contemplation of this led me to touch tho' with a trembling hand the Regalia of our Kings and look into the Laws and usages of former times and in what sort the Soveraignty and Supremacy of our Kings in matters of Ecclesiastical cognizance are declared by the Laws in being In which part I treat of the Kings Authority abstractedly from Doctrinal Religion This I the rather have done that the Subjects of all conditions may observe how great the Authority and Prerogative of the King is in dispensing with University and College Statutes since by the plain and direct Laws that Assert the Kings Right in opposition to all Foreign powers his Supremacy is so Established in Ecclesiastical matters and causes that it is applicable to other purposes than at the first view may appear obvious which I leave to the discussion of those better versed in the Laws than I shall ever presume to be Nevertheless I hope in the treating of this subject it will be owned that I have Introduced no Novelty but Copy'd what is found in History or the public Records and brought to light a Prerogative inseparable from the Royal State of our Kings which some for want of consulting the same have not so well discerned It is to caution the Heads and Fellows of our most eminent Universities not to contend with their Sovereign that I have so copiously produced Instances of the practice of former times and have so largely treated of them before and since the Reformation It was for this end solely and not in the least to erect Trophies for any Victory over the unfortunate that I have pointed out these Sea-marks that others may avoid dashing themselves against the Rock upon which the British Monarchy is so firmly placed that no Tempests of open Rebellion or the highest swelling Seas much less any single Billow can be able to shake It is far from my Intention in this to enter into any dispute about the limits of Ecclesiastical or Secular power It is sufficient that I shew it in some particulars of known practice without examining the grounds any more than as declared by the positive Laws or practice of the respective Sovereigns I know some may look upon this as a matter treated of ex superabundanti yet I thought my self obliged so far to enter into a dissertation upon it as I might thereby make it appear that by the extensiveness of the Sovereignty Universities much more private Colleges both which the Law accounts among the Creatures of the Crown must own a subjection of themselves and their private Statutes to the King as Supreme Neither hath it been any desire to render the Kings Prerogative greater than the Laws and usages of our Kings do manifest that I have shewn how it hath been insisted upon even against some exemptions of the Apostolic See or to Establish any Paradox but only to Assert the just Rights of the Crown at least according to my Reading and do with all deference submit what I have composed to the Judgment of the Learned in our Laws But to leave this I desire the Candid Reader will peruse the Contents of the Book in the following Pages before he enter upon the whole whereby he may see the connexion and sequences of the matter and he must not expect that those Contents are exactly according to the
pag. 158. 159. The Kings power of Visiting § 16. pag. 159. The Kings power in Ecclesiastical matters and his being Supreme Visitor pag. 160. SECT II. Who Exercised Jurisdiction by way of Visitation or otherwise over the Universities from the 11th of King John to the Year 1390. 14 Ric. 2. pag. 161. The Pope and Legat Suspend Offenders § 1. pag. 161. Cardinal Otho Visits by Legatin Authority § 2. pag. 163. The Bishop of Lincoln Ordinary Visitor of the University of Oxford § 3. pag. 164. 165. The Bishop of Lincoln sometimes opposed § 4. p. 166. The Arch-Bishop of Canterburys Visitation of Oxford § 5. pag. 167. Disputes betwixt the Bishop of Lincoln and the University and the Arch-Bishop with both about Visitation § 6. pag. 168. 169. The University subject to several Visitations pa. 169. The disturbance the Dominicans made in the University of Oxon for setling which the King and Pope shewed their Authority § 9. pag. 171. 172. Appeals to the Pope § 10. pag. 174. 175. Differences betwixt the Arch-Bishop of Canterbury and Bishop of Lincoln about Visitation and the King Interposeth his Authority § 11. pag. 172. Disturbances in Queens College and the proceedings of the Local Visitor and the Kings Orders thereupon § 12. pag. 175. Arch-Bishop Courtneys Visitation § 13. pag. 176. SECT III. Who Visited the Vniversity of Oxford after the 13th of King Richard the Seconds time to the beginning of King Henry the 8ths Reign pag. 178. The King redresseth certain grievances complained of by both Universities § 1. pag. 179. What is to be observed from thence § 2. pag. 180. The Kings Mandate to extirpate Lollards out of the University § 3. pag. 181. Arch-Bishop Arundel Visiting by the Kings leave Commands the Univesity to obey § 4. pag. 182. The Kings power not lessened by such Visitations pag. 184. Arch-Bishop Arundels Visitation resisted § 5. pa. 185. The King hears the Cause of the Universities claiming exemption and determins it pag. 186. An account of this whole matter in Parliament § 6. pag. 186. The King may deprive the University of privileges for dis-obedience pag. 187. An account of a latter Visitation 12 H. 4. § 7. pag. 188. The Reason why the Author hath given so large an account of this Controversie § 8. pag. 189. Mr. Pryns mis-application of the Records about this pag. 189. The King gives Sentence for the Arch-Bishop of York against the Arch-Bishop of Canterbury and gives leave to the Bishop of Lincoln to Visit § 9. pa. 191. The Visitation of the Metropolitan and Diocesan by the Canons § 10. pag. 191. 192. CHAP. V. COncerning the Visitations of the Vniversity of Oxford since the Renouncing the Popes Supremacy in England pag. 193. SECT I. Concerning the Visitations in the Reigns of King Henry the 8th and King Edward the 6th pag. 193. The Charters and Bulls of the University of Oxford Surrendred to the King and Cardinal Wolsey for him and the Kings Visiting the University § 1. pag. 194. The usual Method of proceeding in Visitations of the Universities pag. 194. 195. The Commission of King Edw. 6th to Visit the University of Oxford § 2. pag. 196. The Kings Supremacy and Authority to Visit pa. 196. The places and persons to be Visited § 3. pag. 197. The punishments are Deprivation Sequestration of profits and Ecclesiastical Censures c. § 4. pag. 198. Several other powers granted to the Visitors § 5. pag. 199. Other powers § 6. pag. 200. Further powers given § 7. pag. 200. 201. Command to Sheriffs to Assist Non-obstante c. § 8. pag. 201. What may be observed from this Commission § 9. pag. 201. to 205. What the Commissioners did in this Visitation A Suspension of the Execution of Statutes § 10. pag. 205. 206. A new Book of Statutes made § 11. pag. 206. The severe proceedings of the Commissioners § 12. pag. 207. SECT II. The Visitation in Queen Maries Reign pag. 208. Queen Maries Visitation by Bishop Gardyner § 1. pag. 208. Cardinal Pools Visitation § 2. pag. 209. The Questions proposed pag. 210. The Cardinal appoints new Statutes § 3. pag. 210. The Cardinal Visiting as the Popes Legat. pag. 211. SECT III. The Visitations in Queen Elizabeths Reign pag. 212. Queen Elizabeths Inhibition § 1. pag. 212. Queen Elizabeth appoints Visitors § 2. pag. 212. The Heads of Colleges and others Expelled § 3. pag. 213. Letters about the Visitation of Cambridge by Dr. Parker after Arch-Bishop of Canterbury § 4. pag. 215. Some observations concerning that Visitation pag. 218. An account of the Visitation of Merton College § 5. pag. 218. Observations upon it pag. 219. Secretary Cecils Letter about Visitation § 6. pag. 220. Disturbances about the Election of a President in Corpus Christi College and the Queens Mandate for Electing § 7. pag. 221. The Queen appoints Visitors Ibid. What the Earl of Leicester did as Chancellor § 8. Ibid. SECT IV. A further account of the Visitations of the Vniversities or single Colleges together with the Alteration Abrogating or new Imposing of Statutes of the Vniversities by the Sovereign pag. 223. An account of what is to be Treated of in this Section The Reason why Princes should have a greater power over Universities § 1. pag. 223. 224. Queen Elizabeths Letters Patents for confirming the Statutes of the University of Cambridge altered by her § 2. pag. 225. A Controversie betwixt Dr. Humfreys President and some Fellows of Magdalen College § 3. pag. 227. An account given of it in the first paper § 4. pag. 228. The second paper § 5. pag. 231. to 236. The third paper § 6. pag. 236. to 240. Abstract of Secretary Walsinghams Letter about this matter and the Bishop of Winchesters Answer § 7. pag. 241. Observations from these strict Statutes § 8. p. 242. 243. The Case of Mr. Wilson chosen Rector of Lincoln College § 9. pag. 244. Dr. Fulks Letter about the Queens appointing Visitors of Cambridge § 10. pag. 246. Necessity by Visitation to alter Statutes tho' the University have power to do the same Ibid. Statutes about Apparel § 11. pag. 248. Concerning the need of confirmation of the Spiritual Jurisdiction to the Chancellor c. pag. 248. The Kings appointing constitutions of the University without Visitors § 12. pag. 249. Concerning some Visitations in King Charles the firsts time pag. 250. Concerning Arch-Bishop Lauds Visitation of the Universities jure Metropolitico pag. 250. 251. King Charles the firsts determination concerning the Arch-Bishops Visitation of the Universities § 13. pag. 252. Considerations thereupon pag. 253. The Form of a Commission from King Charles the 2d for Visiting a free Chappel § 14. pag. 254. Inferences from this Record pag. 255. The Conclusion of this Section pag. 255. The Opinion of an eminent Lawyer as to the Kings power over Corporations Colleges c. pa. 255. 256. The Opinion of several Judges in this
if they would Admit and Instal the Bishop of Oxford made President by the King and declared such by their Lordships Dr. Pudsey being first asked the Question refused to Act but seemed to yield to be present Dr. Thomas Smith being askt the same Question by the Bishop of Chester Read the following Answer My Lords Commissioners I Answer with all Humble and Dutiful submission to the Kings Majesties Authority and your Lordships Visitatorial Power That it is not in my Power to do this Your Lordships who have deprived Dr. Hough and have declared the Bishop of Oxford President may Instal him This Method being altogether new and extraordinary I cannot be satisfied how I can or ought to be the Executioner of your Lordships Sentence Besides I beg leave to propose a short Case to your Lordships whether or no I can Instal or give Possession without being Impowered and Authorized by a Rule out of the High Court of Chancery or Kings Bench for my Security if there were nothing of Conscience in the Case To this the Lord Chief Justice replyed to this purpose that as they were His Majesties Commissioners for this Visitation they had the Kings Power of Chancery and Common Law. Then the Lords adjourned to the Chappel * The words of the Register are and forthwith admitted the Bishop of Oxon Presi ent by his said Procurator from thence they adjourned to the Presidents Lodgings and finding the Door lockt demanded the Keys but they being not to be sound they ordered the Door to be broken open which was accordingly done and the Lords went in and viewed the said Lodgings having so done adjourned to the Common Room and Entred the Bishops Name as President in the Buttry-Book where the Bishop of Chester put Mr. Wiggins into the Presidents Seat where he took the Oaths which the Statutes enjoyn to the President at his Admission and the Oath of Allegiance and Supremacy the latter of which the Bishop of Chester Ordered him to take upon his Knees which he did accordingly then their Lordships Conducted him to the Door of the Presidents Lodgings where knocking Thrice and the Doors not being opened they returned to the Common Room and Commanded Mr. Atterbury to fetch a Smith to knock open the Door which was done accordingly their Lordships being present all the while and none of the Fellows but Mr. Charnock assisting or being as much as present at either of the performances §. 11. Then their Lordships being returned to the Common Room Oxford Relation pa. 30. they Entred the Bishops Name into the Buttry-Book Dr. Fairfax saith the Oxford Relation desired leave at leisure to speak and being permitted he told their Lordships that they had been doing that which he by no means could consent to The Bishop of Chester told him he was big to be delivered of his own Destruction and asked him if he would submit to the Bishop of Oxon Installed President by Vertue of the Kings Mandate to which the Doctor Answered he would not nor could not because they had a Statutable and Legal President already Register And the Lords having ask'd the Fellows if they would now submit to the Bishop of Oxon as their President they desired time and their Lordships gave them till the Afternoon to consider of it and the Court ordered them to give in an Account of what Gifts or Provisions were made by the Statutes for poor Travellors c. to Morrow Morning Then the Lords demanded of them if they had Elected or Admitted any Members since the Kings Inhibition to which they reply'd that they had Admitted none but Mr. Holden who was Fellow Elect before and his Year of Probationship Expired and if he had not then been Admitted he must have stood Expelled by their Statutes Then adjourned till two in the Afternoon §. 12. TVESDAY Afternoon THe Fellows being called in Register the Question was again put to them whether they would submit to the Bishop of Oxon as their President to which they gave in an Answer in Writing as followeth VVHereas His Majesty has been pleased by His Royal Authority The submission of the Fellows to cause the Right Reverend Father in God Samuel Lord Bishop of Oxon to be Installed President of this College we whose Names are hereunto Subscribed do submit as far as is Lawful and agreeable to the Statutes of the said College This Clause was Equivocal Alex. Pudsey Tho. Bayley Tho. Stafford Charles Hawley Rob. Almont Mainwaring Hammond John Rogers Hen. Dobson Ja. Bayley Jo. Davys Fran. Bagshaw Joseph Harwar Geo. Hunt. Tho. Bateman Willi. Craddock Jo. Gilman Geo. Fulham Hen. Holden Steph. Weelks Charles Penyston Dr. John Smith gave in a Paper Writ and Signed by himself in the same words Dr. Thomas Smith gave in his Paper of submission as followeth in § 14. The Demys subscribed a Paper in the same Form whose Names are Tho. Holt Senior Samuel Cripps Sam. Jenifar Rich. Adams Rob. Standard Rich. Vessey Charles Goreing John Brabourn Geo. Stonehouse Lawrence Hyde Geo. Woodward Charles Alleyn Willi. Fulham Rich. Watkins Dan. Stacy Willi. Sherwin Jo. Renton Maximilian Bush Ben. Gardiner Tho. Welles Willi. Bayley Tho. Higgains Jo. Cross Tho. Hanson Hen. Levet Harington Bagshaw Benjamin Mander The Chaplains subscribed the like whose Names were Tho. Mander Hen. Holyoake Tho. Brown. Fran. Haslewood The Choristers subscribed the like whose Names were Sam. Broadhurst Charles Wotton Tho. Price John Bowyer Tho. Turner John Shutleworth Edward Slack Willi. Inns. Miles Stanton Richard Wood. Rob. Wordsworth Joseph Stubbs The Clerks subscribed the like submission whose Names are Stephen Nicols Charles Morgan John Smith Willi. Ledford Willi. Harris Tho. Ryley Jo. Russel Tho. Williams The under Porter of the College would give in no Paper of submission The Oxford Relation saith that to the submission Oxford Relation the Clause was added and no ways prejudicial to the Right of Dr. Hough Page 31. In the Original Paper I found it scored out and as the Relation saith it was yielded to by the subscribers because the Lord Chief Justice and Barron Jenner as Judges declared that it was insignificant since nothing they should do could Invalidate Dr. Hough's Title but lest them still at liberty to be Witnesses for him or any other way serviceable to him in the Recovery of his Right upon which assurance the Society * If this be as related it shews the great condescention of the Lords Commissioners to have won them to obedience was prevailed with to leave it out §. 13. The Lords askt Dr. Fairfax if he owned their Jurisdiction Out of the Register Octo. 25th 1687. to which he reply'd (a) His words were under Correction I do not that he did not then he was askt if he would submit to the Bishop of Oxon as President to which he refused to do (b) His words were I will not nor cannot because he is not my Legal President And the Sentence was
of Chester reply'd that they did not expect of them to Confess a Capital Crime only to make some acknowledgment To which Mr. Fulhum said This is according to the original the Oxford Relation varying in words tho' not in Sense My Lords we were ordered to Address our selves as having acted in Contempt of His Majesties Authority which he looked upon as so great a Crime that upon no account he would be guilty of My Lords continued he I did obey His Majesty as far as I could to the utmost of my Power and your Lordships having been pleased to accept the submission on Tuesday I humbly conceive your Lordships are engaged that nothing further be required of me of what I have done being Conscious of no Contempt to His Majesties Authority To which the Bishop of Chester Answered you are a very forward speaker and abound in your own Sense Mr. Fulham reply'd he hoped their Lordships would give them leave to speak when their Fortunes were so considerably at Stake as their own Relatoin saith Then Dr. Bayley desired their Lordships to give him leave to explain what he meant by the word submit By this it appears how necessary it was to have a more clear and full submission subscribed in his Answer on Tuesday viz. The word Submit was to be understood with reference to the King and that he did not intend it as a submission to the Bishop as Lawful President §. 23. Upon this a fresh Question was put to the Fellows whether they would obey the Bishop of Oxon as their President in licitis honestis to which all except one or two Answered they would not Upon this Question put to Mr. Fulham he Answered that he could not confess any Crime or Offence done against the King that Dr. Hough having been Duly Elected and Admitted President he thereby obtained a Right which he was not satisfied that he had any ways forfeited therefore he could obey no other Person as President The Bishop of Chester asked him if he would obey the Bishop of Oxon as in Possession to which according to the Relation of those who Writ down what he spoke in Court he thus Answered The Oxford Relation palliates this Answer that he could not submit otherwise then as it was agreeable to the Law of the Land and Statutes of the College without prejudice to the Right of the Election of the Fellows and that he humbly conceived the Bishop was violently and unjustly put into Possession and that it should have been by the Posse Comitatus Then my Lord Chief Justice said Not as the Oxford Relation hath it that their Oxford Law was no better then their Oxford Divinity that their Oxford Divinity was better than their Oxford Law If they had a mind to a Posse Comitatus they might have it soon enough to which Mr. Fulham said he intended nothing but respect to their Lordships and had endeavored to speak and behave himself with due Reverence and desired their Lordships would put a favourable construction of what he said as the Oxford Relation saith The Sentence of Suspension against Mr. George Fulham Then all were Commanded to withdraw and the Buttry-Book called for after which Mr. Fulham was called in with the rest and the Bishop of Chester said to him Mr. George Fulham whereas you have openly and in Opprobrious Language Contemned the Authority of the Court we Suspend you from the profits of the Fellowship during the Kings pleasure and you are accordingly Suspended of which all the Fellows and other Members of this College are Commanded to take notice and to the rest his Lordship further said whereas there are several Fellows absent who are in Contempt of His Majesty that they may not suffer for want of greater notice then they have yet had we do direct and order you who are Fellows now present to give them notice by the usual Methods and to take notice your selves that we have adjourned this Court till Wednesday the 16th of November ensuing to be held at this place at Nine in the Morning SECT II. The Second Visitation by Adjournments of St. Mary Magdalens College by the Lords Commissioners §. 1. The Kings Mandate for Mr. Willi. Joyner and Mr. Job Allibon THe Lords Commissioners having in this Interval of time Communicated their Proceedings to His Majesty and by his appointment to the rest of the Lords Commissioners at Whitehall The three Lords Commissioners Visitors took their Journy to Oxford where upon the 15th of November they arrived WEDENSDAY the 16th of November 1687. At Nine of the Clock in the Morning Proclamation being made the Statute-Book and Buttry-Book were Ordered to be brought in Then Mr. William Joyner and Mr. Job Allibon were called and the Mandate for their Election was Ordered to be Read which followeth JAMES R. RIght Reverend Father in God Right Trusty and Well-beloved and Trusty and Well-beloved We Greet you well Being Informed that there are two Fellowships now Vacant in St. Mary Magdalen College by the Expulsion of Dr. Fairfax and the Death of Thomas Ludford and having received a good Character of the Learning and Sobriety of Our Trusty and Well-beloved William Joyner and Job Allibon We have thought fit hereby to Authorize and require you forthwith to Admit the said William Joyner and Job Allibon into the Fellowships lately enjoyed by the said Dr. Fairfax and Tho. Ludford with all the Rights Privileges and Profits Perquisits Emoluments and Advantages whatsoever thereunto belonging without Administrating any Oaths to them but that of a Fellow Any Law Statute Custom or Constitution to the contrary notwithstanding with all which We are pleased to Dispense in this behalf and for so doing this shall be your Warrant And so We bid you heartily farewell Given at Our Court at Whitehall the 11th Day of November 1687. In the Third Year of Our Reign By His Majesties Command Sunderland P. This being done Register the said Mr. Joyner and Mr. Allibon were Admitted Fellows of the said College taking only the Oath required by their Statute-Book to be taken at the Admission of a Fellow and their Names were Entred into the Buttry-Book Then the Fellows were called in except those hereafter to be mentioned and Dr. Younger who was excused being in waiting upon her Royal Highness the Princess of Denmark several Certificates were produced to excuse Mr. Charles Hawles Mr. Edward Maynard Mr. John Hicks Mr. Thomas Goodwin Mr. Francis Smith Mr. Robert Holt and Mr. Robert Thornton §. 2. The Lord Bishop of Chesters Speech The Fellows being thus Convened the Lord Bishop of Chester made this following Speech GENTLEMEN YOur Vndutiful and I might say your Ingrateful behavior towards His Majesty for Six Months last past your obstinate froward and unreasonable stiffness to so good and Gracious a Prince was that which brought this present Visitation upon you which how great a sin it was against God whose Vicegerent you have contemned beyond all
the Regal only and that the Regal privileges should be sent to the King but the Episcopal and Papal should be kept but my Author thinks the last were also sent After this when any office in the University was void the King appointed the Successors so that it is found that even one of the Bedles was so placed This Instance doth sufficiently manifest the Kings absolute power over the Universities in taking into his hands at his pleasure all or any part of their privileges and restoring them when he thinks fit as he did these Anno 1541. 33 H. 8. The King (a) F. F. fol. 107.6 appointed Rules about the Election of the Proctors and ordered several other things relating to the better Governing of the University Anno 1543.35 H. 8. The King restores their privileges conditionally The King restored the Liberties to the University which he had retained from the Year 1522. yet so as the Vice-Chancellor Tresham entred into a Recognizance of 500 l. that the University should exercise none of the privileges granted Anno 1523. by the means of Cardinal Wolsey Thus I have given an Abridgment of what the Laborious Mr. Wood hath related concerning the Kings or Popes Grants of privileges to the University or what I have met with other where relating to this business and shall now proceed in my designed Method referring the Reader for later Charters to the Arcives of the University and the Act of Parliament for Incorporating both Oxford and Cambridge CHAP. IV. Concerning the Visitations of the Universities and particularly of that of Oxford SECT I. Concerning the Kings Supremacy and Power in Ecclesiastical Causes and Visitations §. 1. First what Authority the Kings of England used before the Reformation IT cannot be expected that I should discuss the Controversie here how far the Popes power was exercised in England in matters Ecclesiastical or in things to be done in Ordine ad Spiritualia The Curious may have recourse to the Learned Marca de Regno Sacerdotio the Concordata the Regalia of France and Sir Roger Twisdens Historical Vindication if he would be satisfied in the bundaries of the Ecclesiastical and Secular power ☞ It will be sufficient for my purpose to shew first that long before the Reformation several Kings of England permitted no Canons or Constitutions of the Church or Breves and Bulls of the Apostolic See to be executed here without their Allowance and that in several particulars wherein the Pope in other places by the Canons or the Plenitudo potestatis exercised a special Jurisdiction either some of our Ancientest Kings did the same or if they apprehended any diminution of their Crown or Dignity to attend their exercise by any power not derived from their selves they prohibited them ☞ And Secondly Secondly What power they have exercised since the Reformation That since the Supremacy hath been Established by Acts of Parliament in the Crown The Kings of England may according to the Laws in force not only exercise all the powers they could as Sovereign Princes but likewise whatever the Pope de Jure if not de facto could or did do in the outward Regiment of Ecclesiastical matters and consequently whatever was done in Visitations by the Authority of the Popes Metrpolitans or Dioecesan Bishops may now be done by the Kings of England as Supreme Ordinary §. 2. Before I enter upon this Subject I desire it may be noted These Instances are produced to Induce the Subjects obedience to the King whose Authority ought to be well considered that I bring not the Instances to induce a belief that the Popes according to the Canons of the Church did not oppose some of the practices of the Kings I mention But to shew how Incongruously the Fellows of St. Mary Magdalen College acted who knowing these things and that later Laws had devolved upon the King even the power of the Pope exercised here inforo externo should dispute the Kings Authority in a matter so manifestly appertaining to his Royal Dignity ☞ For Brevities sake I pass the Saxon times King William the 1st for the sure Establishing his Conquest is noted by Eadmerus (a) Histor novorum lib. 1. fol. 6. to which he adds de hujusmodi personis Episcopes Abbates alies principes per totam tenam Justituit de quibus Indignum Judicaretur si per omnia suis legibus non obedirent Idem to have Introduced the Norman usages of his Ancestors tho' he calls them new here Among which he reckons that none in his Dominions should own the Pope but by his Command nor receive his Letters unless shewed first to him and if the Arch-Bishop of Canterbury called and praesided in a General Council of the Bishops he allowed nothing to be appointed or forbid unless they were accommodated to his Will and were first ordained by him nor suffered any of his Barons or Officers to undergo any Ecclesiastical Censure but by his precepts So that I think it not so strange What King William Rufus did Upon the Shism none more fit then the King to resolve whom to adhere to that during the Schism his Son William Rufus claimed as other Princes did a Right to declare to which Pope he would adhere some consenting to Pope Vrban others to Clement Therefore the King demanded of Anselm from which of those Popes he would receive his Pall and the Arch-Bishop Answered him he would receive it from Pope Vrban But the King (a) Rex dixit illum prō Apostelico nondum accepisse nec suae vel paternae Consuetudinis eatenus extitisse ut praeter suam licentiam aut Electionem Aliquis in Regno Angliae Papam nominaret quicunque sibi hujus dignitatis Potestatem vellît praeripere Unum foret ac si coronam suam sibi conaretur Auferre Eadm fol. 25.47 told him that he had not yet received him for Pope nor had it been his or his Fathers Custom hitherto that any should be received as Pope in England without his Licence and Election and whoever would take from him this Power of his Dignity should be esteemed by him as one that endeavored to take from him his Crown And when Anselm Answered that he would not in any thing depart from obedience and subjection to Pope Vrban The King in great wrath protested (b) Nequaquam fidem quam sibi debebat simul Apostolicae sedis obedientiam contra suam voluntatem posse servari fol. 26. N. 1. None to go to Rome but with the Kings leave that the Arch-Bishop could not keep alike or together the Faith which he ought to the King and the obedience to the Apostolic See contrary to the Kings Will. When in the same Kings Reign the Arch-Bishop was sollicitous to have leave to go to Rome and Visit the Successor of St. Peter for the being better instructed in the Government of the Church He received Answer (c) Sed si Iverit pro certo noverit
others quâ Legate as appears in the Decretals where (d) De Officio Legati cap. 1. Alexander the Third resolves that the Arch-Bishop could not hear Jure Metropolitico matters Episcopal that came not to him per Appellationem that is by a Legal way but Jure Legationis he might such as were brought unto him only per quaerimoniam §. 7. The Style of Legates a Latare when first used ☞ The Name of Legatus a Latere is first found in our Historians to be given to Johannes (e) Hoveden Anno 1189.177 a. 10. Anagninus Cardinalis Anno 1189 and altho' the power of these Legates was great yet it is manifest that what they did was only so far as they had the Kings permission so that in some respects it may be said whatever they did in Visitations and other matters was by the Kings Authority and sufferance for which purpose we have that Memorable Letter (a) Vita Hen. Chichelsey ab Ant. Duck Edit 1617. p. 79. from Henry Chichelsey to King Henry the Fifth which I shall give in the words it was Writ in Be Inspection of Laws and Chronicles The Legatines power by our Kings permission was exercised in most Cases was there no Legate a Latere sent into no Lond and especially into your Reagm of Yngland witoute great and notable cause And that when thei came after thei had done her Legacie abiden but litul wyle not over a yer c. And yet evir that was tretyd with or he cam into the Lond whon he should have exercise of his power and how mych shold be put in Execution an a venture after he had bee reseyved he whold have used it too largely to great oppression of your peple A further proof that Legates here could do nothing contrary to the Laws and Customs of the Land appears in this particular I shall now recite ☞ Henry Beaufort the Rich Bishop of Winchester The first Cardinal that was a Privy Councellor who was Cardinal of St. Eusebius Son of John a Gaunt and so of the Kings Blood and was employed by Martin the Fifth as General against the Bohemians and to that end Erected his Cross Anno 1429. 8 H. 6. was sent Legate into England and was made one of the Kings Privy Council and is noted to be the first that of that Order was so Admitted Yet we find that he was to (b) Râ—t parlâ—â— 8 H. 6. N. 17. His protestation to absent himself when matters of difference betwixt the King and Pope were debnted make a protestation that as often as any matter cause or business did concern the King his Kingdom or Dominions on the one part and the Apostolic See on the other which was to be Communed and Treated of in the Kings Council the Cardinal should absent himself and no ways be present at the Communication of the same It further appears how Legates Executed by the Kings Allowance or Connivance the powers given them by the Pope because if they did otherwise no person being the Kings Subject was so great but he was forced to gain his pardon for the Offence if he Committed any Hence we find that even this (a) Rot. Parl. 10 H. 6. N. 16. He Petitions for pardon if he had done any thing against the Laws being the Kings Subject great Cardinal caused a Petition to be Exhibited in Parliament That he the said Cardinal nor none other should be pursued vexed impleaded or grieved by the King his Heirs or Successors nor by any other person for cause of any provision or offence or Misprision done by the said Cardinal against any Statute of provisions or per cause of any Exemption Receipt acceptation admission or execution of any Bulls Papal to him in any manner By all this I hope the Ingenuous Reader will sind The Inference hence that what the Popes Legats did in Visitation or otherwise was by the Kings superadded Authority that what Visitations were made of the University of Oxford by the Popes Legats whereof I shall give several Instances in the sollowing Section doth no ways Infer that thereby the Kings power of Visiting was exauctorated but that whatever they did was in subordination to the Kings pleasure or as allowed by his Laws §. 8. Concerning the Arch-Bishop or Bishops Visitations The other Visitors of the University were either the Arch-Bishops of Canterbury as Metropolitans or the Bishops of Lincoln as Dioecesans or the Local Visitors I shall now endeavor to prove that whatever they did in Visitation as well as other External Regiment was by order allowance or connivance of the Kings of England so that though I shall here after produce their Visitations yet it will appear that the Kings Supreme Authority was thereby no ways prejudiced I need not here enter into the claims our Ancient Kings made to the Investitures of Bishops having touched it before nor how for their Baronies Homage is required of them It is most manifest that our Kings have Interposed their Authority even in allowing or dis-allowing of their persons This is clear by the Speech of Wolstan (a) Ailred de Miraculis Edw. Col. 406.37 Here we may note that the Alteration was by agreement at the Confessors Tomb Bishops allowed by the King. that he had compelled him to take the Pastoral Staff. So King Edward the Third wrote to Pope Clement the Sixth that his Progenitors long since upon Vacancies by their Kingly Right conferred the Cathedral Churches freely on fit persons and afterwards at the Instance of the See of Rome under certain Forms and Conditions granted that Elections should be in the said Churches by their Chapters §. 9. I need not insist upon the Kings of England seizing the Temporalities of Bishops into their hands and so Suspending them a Beneficio for those who will take the pains to look into Mr. Pryns Historical Collections will find many Instances thereof ☞ The Statutes of Provisions the complaints against the Popes Provisions in Mat. (b) Anno 1240. fol. 532.43 fol. 549.18.22 Anno 1246. fol. 669.9 Paris and the Parliaments of King Edward the Third and Richard the Second clear this point And when Anno 1349. the Pope wrote to the King that he would not hinder or permit these to be hindered to receive the Benefices who were by the Court of Rome by Bulls promoted The King Answered that he well would accept those Clerks so provided which were of good condition and were worthy of Promotion but others he would not If then the very admitting the persons to the Dignity and Office were in the Kings power as by the Conge d'eslire is well known it cannot be doubted but that the Exercise of their Government I speak not here of their Sacerdotal Function was according to the Kings Laws §. 10. How far the Canons were allowed in England We may therefore now consider how far the Ecclesiastical Canons were allowed by our Kings and how called his Laws ☞
poenis usque ad dignitatum § 4 The punishments to be inflicted viz. deprivation of Offices sequestration of profits Societatum ac Officiorum suorum privationem Stipendiorum proventuum Emolumentorum suorum quorumcunque sequestrationem vel quamcunque aliam congruam Competentem Coercionem puniendos coercendos atque ad probatiores vivendi mores modis omnibus quibuscunque id melius efficacius poteritis reducendos By Ecclesiastical censures imprisonment recognizances conditionis fuerint si quos inveneritis tam per censuras Ecclesiasticas quam etiam Incarcerationem ac Recognitionum acceptationem quaecunque alia Juris Regni nostri remedia composcendos Pecunias impendendas quot-annis in exequias Convivia To change Monies to be expended for Exequies and the Feasts to public or private Lectures or to other uses in Lectiones publicas vel privatas ad alios usus magis convenientes aut in alias formas convertendas Pecunias autem in aliquo Collegio Impendendas ex Fundatione ejusdem Collegii in Choristas Cantores alias Impensas ratione quotidiani Servitii ut vocant Ecclesiastici To change Monies given to Choristers and Singing Boys or other Ecclesiastic services to other uses aut in pueros Grammaticales ad alimentum sociorum vel Scholasticorum ad Philosophiam vel alias artes discendas in eodem vel alio Collegio Constituendos convertendas Magistros Praepositos Praesidentes Socios vel Scholares quoscunque illis Officiis indignos non proficientes Statutis Collegii To Expel and amove Masters Provosts Presidents Fellows or Scholars and put in others into their places vel Commodis Reipublicae bonarum literarum id exigentibus expellendos amovendos alium alios in amotorum locos praeficiendos substituendos Cessiones praeterea quorumcunque Praeposituras Magisteria Praesidentias Gardianas Societates To take Resignations of any places of Office and to substitute others seu Officia in Locis praedictis habentium coram vobis factis seu exhibitis Authoritate nostra admittendis eaque vacare pro vacuis decernere in loca sic per cessionem aut alio quovismodo vacantia personas habiles idoneas substituendas § 5 To unite Colleges Collegia duo vel plura sive nostrae sive cujuscumque alterius Fundationis fuerint si vobis ex utilitate Academiae videbitur in unum conjungenda Or Chantries Can tarias nominaque Cantariarum in quocunque Collegio fundata fuerint earum fundationes mutandas alias Appellationes illis imponendas To change the profit of Chantries to Exhibitions Et fructus redditus ac proventus dictarum Cantariarum ad Scholariam Exhibitionem assignandos dictae Universitatis nostrae Collegiorum Aularum Incorporationes Fundationes Statuta Ordinationes To examin all Foundations Statutes c. Privilegia Compositiones Computus alia munimenta quaecunque exigenda recipienda To change forms of Divine Offices disputations public Lectures Collation of Degrees c. eaque diligenter examinanda discutienda formas Divinorum Officiorum Disputationum publicarum Lectionum Collationes quoque graduum Honorum qui Eruditionis ergà proponuntur Studiosis immutandas To introduce and assign new injunctions and Statutes in Commodiorem rationem instituendam nec non Injunctiones Statuta quae vobis pro Commodiore Ordine videbuntur idonea Personis in eisdem degentibus nomine nostro tradenda vice Authoritate nostris inducenda assignanda poenasque convenientes To inflict punishments on the violators of them in eorum violatores infligendas irrogandas Statutaque Ordinationes To annihilate contrary Statutes Ordinances Customs and Compositions Consuetudines Compositiones si quas comperitis eisdem Contrarias sive repugnantes tollendas penitus annihilandas Juramentum insuper obedientiae fidelitatis nobis Haeredibus nostris debitis § 6 To abolish the Popes Authority deque renuenda penitusque abneganda Episcopi Romani praetensa usurpata fictâ Authoritate quaecunque alia Juramenta ex Statutis hujus Regni nostri praestari requisita To enjoyn Oaths appointed by the Statutes of the Kingdom ab omnibus infra Loca praedicta constitutis exigenda recipienda Congregationes Convocationes Praepositorum To call Convocations for the execution of the premises or any Reformation Gardianorum Studentium Ministrorum hujusmodi pro Executione praemissorum aut Reformatione quacunque facienda Conciendas Convocandas Causas etiam Instantiarum Examinandas fine debito terminandas ac omnia singula alia quae circa hujusmodi Visitationis To examin and determin causes of instances Inquisitionis seu Reformationis totius Academiae Negotia To do all other things requisite in such like Inquisitions and Reformations tho' not expressed or special words were requisite sive hic expressa fuerint sive non expressa quae necessaria fuerint seu quomodolibet opportune facienda exequenda vobis singulis vestrum de quorum doctrina Morum Concilii gravitate ac in rebus gerendis fide Industria plurimum confidimus Vices nostras Commitimus ac plenam For performing all which the King grants them his full power and Authority tenore praesentium Concedimus Potestatem etiamsi ejusmodi sunt quae specialia verba requiruntur cum cujuslibet congrue legitime coercionis potestate Et quoniam Studium Juris Civilis non solum jam aliquot Annos deferbuisse in Academia nostra Oxoniensi § 7 To promote the study of the Civil Law. verum etiam propemodum extinctum esse nobis Indicatum est praecipuam vobis omnibus curam sollicitudinem imponimus ut quibus poteritis viis modis illud excitetis ☞ The King gives them his fullest and high Authority by his Absolute and Royal power to change the number of Students in Civil Law in New-College to All-Souls College and the Students of Arts in All-Souls to New-College amplificetis cui studio ut possitis amplius mederi fructu laboris ac diligentiae Juventutem ad illud accendere plenissimam ac Summam Authoritatem per Absolutam Regiam nostram Potestatem vobis Concessimus Universum numerum in Lege Civili Studentium in Collegiis Beatae Mariae Vocato The New College of Oxford in Collegium Animarum universum numerum in Artibus Studentium in Collegio Animarum in Collegia praedictum Beatae Mariae commutandum tranferendum Constituendum prout vobis commodissimum fore videbitur sic ut in Collegio Animarum tantum illi sint qui Legis Civilis Studio vacabunt in Collegio Beatae Mariae praedicto So that in All-Souls College none be but Students of Civil Law and New-College Students in Arts. illi tantum sint qui Artium Verbi Dei Studio posthac semper incumbent
as to any whom the Vice-Chancellor Commands to Prison the Message be sent by the Beadle and he that refuseth shall be judged a breaker of the Peace and not to have any Appeal Thirdly A Command that the Delegates who at this present are in hand with the Statutes make hast and lay all other Statutes aside till they have drawn up two perfect and sufficient Statutes for Causes of Appeal the one in matters of Instances and those things which belong to the Chancellors Court the other for all kind of Appeals in other Causes whatsoever Anno 1632. E Collectionibus Dni Josephi Williamson olim Secretarii Regis primarii 8 Car. 1. The King Granted a Commission to the Earl of Holland then Chancellor of Cambridge the Arch-Bishop of York and Sir John Crook to Visit Pembrook Hall in Cambridge Anno 1634. 10 King Charles the First the King Impowered under the Great Seal the Arch-Bishop of Canterbury the Bishop of Rochester Sir Nathaniel Brent and others to Visit all Colleges Churches Hospitals c. and to make Laws and Statutes and this is expressed to be ex Suprema nostra Authoritate Regia by the Kings Supreme Authority I have not found any perfect Copies of these Visitations Wood Antiq. Oxon lib. 1. ad Annum 1633. but find in Mr. Wood that the Regulating of the University Statutes of Oxford which had been begun to be digested 1629. by Delegates appointed for that purpose were brought to a good forwardness Anno 1633. Arch-Bishop Laud then Chancellor being very Intent upon it When the same Arch-Bishop Visited the Universities by his Metropolitical Right he was opposed in it and the matter came to be heard before the King and Council of which I shall presently give an account and whoever desires a more full Relation may see the whole proceedings in the Annals of Mr. Francklane I shall only Insert here an extract of what I found in the Paper Office Relating to Merton College in Oxford which endeavored to decline the arch-Arch-Bishops Authority in that Visitation the principal Reasons produced for it being these First Paper Office. Academica Miscellania Reasons why the King is Visitor of Merton College That King Henry the Third at the Foundation of the College Styles himself Patronus and consequently was Visitor in these Words Assignavit Maneria praedicta in suis manibus nomine nostro velut nomine Patroni Secondly The Ancientest Copy of Statutes is that which is Confirmed by the Bishop of Lincoln with a Reservation of such Privileges as belonged to the Dioecesan and is Confirmed by the Arch-Bishop as Provincial without any Reservation at all which in reason he would not have done if he had been Visitor Thirdly The Bishop of Lincoln sent Monition to the College Intimating a purpose to Visit From whom the Fellows Appealed to Rome Fourthly The Statutes of Walter Merton have the word Patronus often which cannot in reason be applyed to the Arch Bishop to whom he had no Relation but rather to the King whose Chaplain and Chancellor he was By this it appears what the Opinion of the Society was then that the King was Supreme Visitor and that the Bishop of Lincoln reserved his Dioecesan Right yet when he designed an extraordinary Visitation the Fellows Appealed to the Apostolic See as Supreme and I have cleared that what power that See had is now in the King according to the Laws §. 13. I now proceed to give an Account of King Charles the Firsts Order of Council the 12 Regni which hath been so much urged as if the King had Decreed in Council that none but the Arch-Bishop of Canterbury should Visit the Universities being Scituate in his Province but by the whole scope of the Record it appears that the Controversie was betwixt the Arch Bishop of Canterbury and the Universities of Oxford and Cambridge concerning the Right and Title of the Metropolitical Visitation of the same and that the Universities did pretend they were Exempt from the same and the matter in Dispute was referred to the King and his Royal Judgment and Sentence Litâ—que Controversia praedictis ad nos Judicium Sententiam nostram dâ—latis who calling the Arch-Bishop of Canterbury Chancellor of the University of Oxford and the Earl of Holland Chancellor of Cambridge and others to come before him and his Council at Hampton-Court and having heard the Arguments of both the Parties Primo ante omnia per probationes Legitimas per concessionem utriusque partis nobis constabat nos jure Coronae nostrae Regni Augliae habuisse habere potestatem Visitandi Universitates praedictas quoties quandecunque nobis Successoribus nostris Visum fuerit c. First and before all things by Legal proof and the Confession of both Parties It appeared that the King in Right of his Crown of England hath had and hath the power of Visiting the said Universities as often and whensoever it should seem fit to the King and his Successors And that the Arch-Bishop of Canterbury by the Right of his Metropolitical Church hath had and hath power of Visiting all his Province of Canterbury in which the said Universities are Scituate Then follows that on the part of the Universities it was proposed that by certain Charters of the King and his Prdecessors and Papal Bulls they were Exempt and freed from all Visitation and Jurisdiction of the said Arch-Bishop and that Immunity by use of time they now enjoyed by prescription and on the Arch-Bishops part it was shewn that King Richard the Second and King Henry the Fourth had Judged the cause in favor of the Arch-Bishop as before related therefore the King Judgeth and determineth the Right of Visitation to belong to the Arch-Bishop and his Successors and his said Metropolitical Church Quibus unnibus per nos consideratis habitaque deliberatione cum praefatis Conciliariis nostris Judicavimus determinavimus c. and that not only once in his Life as in other Parts of his Province of Canterbury but that it might be Lawful to the Arch Bishop and his Successors after the first Metropolitical Visitation ended to Visit the said University by himself or his Commissaries The Arch-Bishops Visitation not allowed but by the Kings consent as often as it should appear necessary to the said Arch-Bishops on a reasonable and Lawful Cause first by the King and his Successors to be approved Dated the 30th of January 12 Car. 1. By this Record under the Broad Seal it is apparent first that there was a Controversie only betwixt the Arch-Bishop and the Universities whether the Arch-Bishop as their Metropolitan might Visit or they were Exempted from it Secondly That it was yeilded on all sides that the Kings Visitation was in no manner hereby disputed but it is positively asserted that the King and his Successors might Visit as often as they thought fit Thirdly That this Controversie was wholly determined and
alledged that he should have been proceeded against by Libel and have had a Copy of his Charge and used such expressions as gave just offence to the Court so that tho' the Sentence of Suspension was pronounced See p. 35. here for his Contempt in not obeying His Majesties Letters Mandatory for Electing and Admitting Mr. Anthony Farmer President of that College yet if it had not been because of his disagreeable deportment to the Court it is probable he had at that time no more Incurred the Censure of the Court than the rest of the Fellows who concurred in the said Election As to the affixing the Sentence on the College Gates See chap. 1. sect 2. p. 43. that was not a material circumstance nor whether Mr. Anthony Farmer was then or after laid by or whether he was unfitting by reason of his Immorality or otherwise It is necessary for every Court to Assert it's Jurisdiction and much more ought the Lords Commissioners to do it being they have such Ample powers from the King so that whatever Contempt was offered to their Lordships was to the King himself and that Dr. Fairfax persisted to the last in denying the Authority of the Lords Commissioners and disobeying the Kings Mandate for Admitting the Bishop of Oxford President or submitting to him as such appears by his last Answer to the Question proposed October the 25th whether he owned their Lordships Jurisdiction To which he replyed See here p. 84. 85. Under Correction he did not And being asked whether he would submit to the Bishop of Oxon as President His Answer was he would not nor could not because he was not his Legal President Whoever considers this obstinacy persisted in to the last cannot think the Lords Commissioners could do less than they did Had this been done in another Kings Reign perhaps it might have been Interpreted a Questioning the very Supremacy it self which how fatal it was to John Fisher Bishop of Rochester and Sir Thomas Moor is worthy to be considered both as a demonstration of our Kings Clemency and that the Doctor hath not so much reason to complain of the hard usage However the Doctor thought himself obliged to the observation of the Statutes and to submit to the President only he and the rest of the Fellows had chosen yet he ought to have considered what Baldus in his Comment upon the Code 3. Tit. 14 n. 7. saith * Qui sunt in aliquo Collegio ratione professionis vel negotiationis Jurisdictionem ejus qui praeest Collegio recusare non possunt non minus tamen sunt sub praeside vel alio Superiore That those that are in any College by reason of their Profession or Negotiation there ought not to refuse the Jurisdiction of him that presides in it yet they are no less subject to the President or another Superior which Superior or rather Supreme I take the King to be Besides if the Doctor and the rest of the Fellows would have considered that in relation to College Statutes however it may be disputed in other matters the King hath the same power as the Emperors had and that is to be found in the Digests thus * Quodcunque igitur Imperator per Epistolam subscriptionem Statuit vel cognoscens decrevit vel de plano Interlocutus est vel Edicto praecepit Legem esse Statuit Dig. lib. 1. Tit. 4. n. 1. Therefore whatever the Emperor appoints by Epistle and Subscription or knowing doth Decree or plainly doth express or Commands by Edict is to be esteemed a Law. Which is Literally true in all the Kings power of dispensing with or Suspending College Statutes for since it is clear by many Instances before insisted upon that the Kings of England have power to alter abrogate and annihilate Statutes of Colleges much more must they have the power to Dispense with or Suspend them ☞ Therefore when any person refuseth to submit to the Kings Authority in this particular he is deservedly punishable by Suspension or Deprivation Neither ought Fellows of Colleges assume to themselves a power of Judging of the Reasons why the King Grants Mandates in favor of any particular person or to deny their obedience to the person so recommended by Mandatory Letters because they have heard or can prove some Immortalities against him for if that liberty of opposing the Kings Mandate upon any such grounds were once allowed the Kings power must be solely precarious and every Mandate of the Kings would be lyable to disputes and debates and the Kings Sovereignty and Authority would dwindle to an Impotent wish that he might obtain his desire instead of being positively obeyed which would be such a condition of the Monarchy as would render it contemptible and whoever endeavors to lower the Dignity of the Crown in such a manner deserves just Chastisement for it which was but the bare Suspension of the Doctor from his Fellowship at first but by his perfisting in his undutifulness to the highest Degree of denying the Kings Authority he was justly punished by Expulsion and after with Incapacitating §. 9. The seventh Objection It is Seventhly Objected by some of Magdalen College that no Commission can be granted under the Great Seal to Visitors to place and dis-place Members of Colleges whose places are Free-holds ad Libitum or discretion These are the words of the Oxford Relation pag. 21. But they must proceed according to Legal discretion that is by the Laws and Statutes of the Land and Local Statutes of the College And places concerned consigned rather for the Headship and Fellowships of Colleges are Temporal Possessions and cannot be Impeached by Summary Proceedings For this they Allege the Case of Dr. Thomas Coveney President of the same College who was deprived in Queen Elizabeths time by the Bishop of Winton the Local Visitor thereof Established by Royal Authority and he Appealed to the Queen But by the Advice of all the Judges it was held that the Queen by her Authority as Supreme Visitor could not medle in it but he must bring his Action in Westminster Hall because Deprivation was a cause merely Temporal The King they own has a great Authority Spiritual as well as Tmeporal but no Commissioners can be Authorized by the Crown to proceed in any Commission under the Great Seal or otherwise but according to Law in Spiritual Causes by the Canon Law in Temporal by other Laws and Statutes of the Land. And wherein the Proceedings in some Commissions are directed to be Summarie de plano sine strepitu forma Figura Judicii those words are to be applyed to shorten the Forms of Process and not for matter of Judgment For Magna Charta provides for our Spiritual as well as Temporal Liberties §. 10. Answer to it by parts To Answer this Objection distinctly we must consider the several parts of it for it is an huddle of several matters jumbled something confusedly to set off the matter
matter confirming what hath been Asserted in the preceding discourse § 15. pag. 257. 258. 259. CHAP. VI. COncerning the Kings of England's Dispensing with the Statutes of the Vniversities by their Mandates pag. 260. SECT I. Concerning the Kings dispensing power in General and in some particulars to the beginning of King Charles the 2ds Reign pag. 200. Concerning the Kings dispensing power in General § 1. pag. 260. Why the Author treats not largely on this subject § 2. pag. 262. Some observations upon the 25 H. 8. C. 21. § 3. pag. 262. That the Statute is Founded upon the usage of a dispensing power Ibid. That the Pope exercised a dispensing power by sufferance in Derogation of the Royal Authority pag. 263. The Ecclesiastical power originally in the King according to this Act. § 4. pag. 263. The Kings Prerogative not restrained by Acts of Parliament in several cases pag. 264. Where to find Arguments for the dispensing power § 5. pag. 265. Some Paragraphs of the Act 8 Eliz. C. 1. explained Ibid. The Queens power in matters Ecclesiastical Supreme and absolute pag. 266. Inferences from this Statute pag. 266. Observations upon the Statute 25 H. 8. C. 1. by Judge Hobart pag. 267. Greater powers seem to be Implyed in Section 17. and 18. of this Statute worthy consideration pag. 267. Some further observations upon the Statute 25 H. 8 C. 21. § 6. pag. 267. An account of the Queens Mandate about Electing a Master of St. Johns College in Cambridge § 7. pag. 269. The Bishop of Londons Testimony that the King hath dispensed with College Statutes § 8. pag. 270. A Mandate dispensing with Incapacities to receive Degrees § 9. pag. 270. A Mandate for a Schollar of St. Mary Wintons College without Examination pag. 271. A Mandate dispensing with the Incapacity by reason of the County Ibid. An acknowledgment from St. Johns College in Cambridge that the King may dispense with College Statutes § 10. 272. A Senior Sophister may take Bachellor of Arts Degree by dispensation pag. 272. SECT II. Concerning Dispensations with the Statutes of the Vniversities or particular Colleges from the Year 1670. 22d of King Charles the Second to this present time pag. 273. Mandate for Dr. Lloid taking his Degree two years before the Statutes allow § 1. pag. 273. The words of Dispensation to be noted § 2. pag. 244. Mandate for Thomas Chapman to have the Degree of Master of Arts without performing exercises pag. 274. Dispensations for Charles Otway otherwise Incapable either as to the County or his Years pag. 275. Mandate for Mr. Josuah Ratcliff contrary to the Statutes of the College pag. 275. Dispensation for Mr. Edward Finch not being of the County c. for Dr. Hawkins not to perform exercises § 3. pag. 276. Dispensing with the Statutes of St. Mary Magdalen College for Mr. Craddock Ibid. A Statute of the Lady Margaret the Foundress dispensed with § 4. pag. 277. Concerning conferring Honorary Degrees pag. 277. Dispensation with Statutes for entring into Orders § 5. pag. 278. Another of the same nature for Sir John Lydcote with it's revocation pag. 278. A Mandate endeavored to be eluded re-enforced § 6. 279. The Mandate for removing the Duke of Monmouth from being Chancellor and substituting the Duke of Albemarle § 7. pag. 280. The Kings power to Interpret Statutes and nominate Chancellor pag. 280. 281. The King grants power to the University to confer Degrees upon such as the Chancellor or Vice-Chancellor shall recommend § 8. pag. 281. The re-enforcing of it pag. 282. The Kings Mandate for making new Statutes for regulating Degrees at the Universities Petition § 9. pag. 282. A Command to the University to grant a dispensation § 10. pag. 283. The revoking of a Mandate pag. 284. The Kings Order that Mandates should not be granted without Testimonials of the Arch-Bishop of Canterbury and the Bishop of London § 11. pa. 284. The recalling of a Mandate after the former § 12. pag. 285. The Conclusion § 13. pag. 286. CHAP. VII THe Answer to the Arguments used by the Vice-President and Fellows of St. Mary Magdalen College in defence of their proceedings pag. 288. SECT I. Answer to what is urged in their Justification from the Obligation of their Oaths to observe their Statutes p. 288. The Objection concerning the Statutable qualification of the persons for whom the King granted Mandates § 1. pag. 288. The Answer of the definition of an Oath and the divisions of it and who may vacate them § 2. p. 289. Oaths subject to the power of a Superior pag. 290. The Sovereign hath power to alter and adnul Statutes pag. 290. A Statute being revoked the Swearer no longer obliged to observe it § 3. pag. 291. So by the Sovereigns prohibition the execution pag. 292. The Superior can remit the obligating of an Oath § 4. pag. 292. The Tacit condition of the Superiors allowance always to be understood pag. 293. This head further Insisted upon § 5. pag. 294. The reason of it § 6. pag. 295. The Objection that the Kings Tacit consent is Implyed and the Oath before the Election Answered § 7. pag. 295. The Objection Answered that the Fellows Swear to Admit no dispensation pag. 296. to 300. SECT II. wrong put SECT III. Some other Objections considered either relating to the Visitation in General or urged in defence of some particular Member of the Society pag. 300. A second Objection Answered that the Local Visitor should have first ordered the business before the Lords Commissioners had taken cognizance of it § 1. pag. 300. The Objection Answered that Dr. Hough was not cited nor appeared by Proxy § 2. pag. 301. The Objection that Dr. Hough was Ejected out of his Free-hold without Tryal at Common Law. § 3. pag. 302. Answer to the Objection that a Mandate doth not Imply a prohibition § 4. pag. 304. In some Grants a reservation of power to dispense with Statutes pag. 305. What power the Emperors Edicts and Mandates have in Civil Law. pag. 305. 306. That a Mandate Implys a prohibition § 5. pag. 307. The Judgment of Civilians in this matter pag. 308. An epxress and Tacit Inhibition § 6. pag. 309. Dr. Staffords Dilemma Answered pag. 309. A parallel Case of Dr. Haddon in King Edward the 6ths time § 7. pag. 310. The Reason why the Author Inserted this no sooner pag. 310. An Abridgment of Dr. Haddons Case pag. 311. A fuller account of it to be in the Appendix pag. 312. The Sixth Objection in behalf of Dr. Fairfax § 8. pag. 312. The Answer to it pag. 313. Dr. Fairfax punished for dis-obedience and denying the Lords Commissioners Authority Ibid. Observation from the Civil Law upon it pag. 314. The Reason why the Kings Mandates ought not to be disputed pag. 315. The seventh Objection out of the Oxford Relation § 9. pag. 316. The Answer § 10. pag. 317. The Kings Prerogative a part of the Law
they could or did say by way of Objection and given such Answers to them as the matter required and shall take notice of the late Treatise called A Relation of the Proceedings c. Containing only matters of Fact published on purpose to make the generality of the people favor the Ejected Whereas I hope to make it appear that the King might have proceeded in a summary way and if he had pleased inflicted severer punishments upon them than the Commissioners have done and tho' at some times there seems to be a dutiful behavior in the Fellows and expressions that were agreeable to the condition of humble Subjects and a plea of tenderness of Conscience in not daring to break their Oaths yet in effect whenever they were put upon a pinch whether they would yield to the King's Authority and acknowledge themselves to have acted contrary to their Duties they never would own they had been in the wrong which was the true cause why those that refused to subscribe the submission that was at last proposed to them were so Expelled and however some might at first Interpose for them as the Bishop of Winchester did in the following Letter yet in the progress of this Discourse I shall make it clear that in former times greater punishments than that of Expulsion even to Imprisonments have been Inflicted upon such as have shewed less obstinacy and contempt of the Authority of their Sovereign I now proceed to the Bishop of Winchesters Letter to my Lord President upon the first noise of the Mandate §. 3. The Bishop of Winchesters Letter to my Lord President My Honored Lord. THe Obligation I have upon me as Visitor of St. Mary Magdalen College Oxon occasions this Address For I am informed that great endeavors are used with his Majesty to Recommend one Mr. Farmer who is not at present nor ever was Fellow of that College to be President of it which is directly contrary to the Statutes of the Founder as I am confident some who promote Mr. Farmer 's Interest cannot be Ignorant of And were there not many persons now actually Fellows and several who have formally been in particular the Bishop of Man and Dr. Jessop very Eminent for their Learning and Loyalty and every way qualified according to the Statutes I should not press your Lordship to lay the concern of the College which hath upon all occasions expressed it's Zeal and forwardness in defence of the Crown and as I particularly know in the great affair of the Succession before his Majesty who I hope will leave them to the Rules of their Statutes which have (a) (a) The contrary to this will be made out in Ancient and late times by several instances of this College and others hitherto excepting in the times of Rebellion been constantly observed and which will be the highest satisfaction to that truly Loyal University and promote his Majesties service which has always been the endeavor of Farnham Castle April 8th 1687. To the Right Honorable the Earl of Sunderland President of the Council and One of his Majesties Principal Secretaries of State. These Your Lordships most humble Servant P. Winchester I now shall proceed to give an account what the Vice-President and Fellows did and begin with their Petition to the King upon their notice of the Kings Mandate §. 4. To the King 's Most Excellent Majesty The Petition of the Vice-President and Fellows of St. Mary Magdalen's College in Oxford Most Humbly Sheweth VVE have been Credibly Informed that Mr. Anthony Farmer who was never of our Foundation has obtained your Majesties Recommendation to be President of this your Majesties College in the Room of Dr. Henry Clark lately Deceased We do therefore with all Submission as becomes your most Dutiful and Loyal Subjects most humbly represent to your Sacred Majesty that the said Mr. Anthony Farmer is a person in several respects uncapable of that Character according to our Founders Statutes and do most earnestly beseech your Majesty as your Majesty shall judge fittest in your most Princely Wisdom either to leave us to the discharge of our Duty and Consciences according to your Majesties late Most Gracious * Not Toleration as the Oxford relation hath it Declaration and our Founders Statutes or to Recommend such a person who may be more serviceable to your Majesty and this your Majesties College And Your Majesties Petitioners shall ever Pray c. Charles Aldworth V. P. Henry Fairfax S. T. D. Alex. Pudsey S. T. D. Tho. Smith D. D. John Smith D. D. Tho. Bayley D. D. Tho. Stafford L. L. D. Main Hammond S. T. D. Rich. Strickland M. A. Henry Dobson M. A. James Bayley M. A. John Davys M. A. Jas Thompson M. A. Francis Bagshaw M. A. James Fayrer M. A. Joseph Harwar M. A. Tho. Ludford M. A. Tho. Goodwin M. A. Rob. Hyde M. A. Edw. Yerbury M. A. Rob. Holt M. A. Stephen Weelkes M. A. §. 5. THe foresaid Petition is Endorsed as Dated the 10th of April 1687. And delivered to my Lord President by Dr. Thomas Smith and Captain Bagshaw I find among the other papers delivered me from the Register one from Dr. Thomas Smith read and published at a Meeting of the Fellows at his Return from presenting the foresaid Petition In these words Gentlemen IT is my opinion for I will not pretend to call it by any other Name much lefs by that of advice leaving every one here present to the liberty of his own judgment that his Majesty not having thought fit upon our late Application to him to Revoke his Royal Mandate nor as we pray in the close of the Petition to leave us to our own choice according to the direction of our Founders Statutes nor to recommend such a person as may be more serviceable to his Majesty and to the College We most humbly Petition the King again and represent the several respects referred to in our Petition which render Mr. Farmer incapable of being Elected and admitted President of the College This Method and procedure being most prudent and dutiful and fit to be entered upon immediatly The King having interposed his Royal pleasure and Authority which if it had not been done I readily acknowledge that we not only might but ought to proceed to the Election of a President in that very Instant according to the express Letter of the Statute in every particular But for this let every one concerned be his own Casuist These are my private Thoughts and upon mature deliberation I conceive that I should be very defective in my Duty to the King and my Respect to you whatever Mis-interpretation some possibly may frame of it If I had not made you acquainted with them at this meeting St. Mary Magdalen College April the 14th 1687. Tho. Smith D. D. §. 6. I Insert this for the honor of this Gentleman who is known by his Learned Writings which give account of his Travels to the Port and through part of Greece
be found amongst you and not otherwise 'T is a great grief to all sober Men to see any who would be thought True Sons of the Church of England act like Men frighted out of their wits and Religion as you have certainly done Never any True Son of the Church of England was or will be disobedient to his Prince the Loyalty which she hath taught us is absolute and unconditional Tho' our Prince should not please or humor us we are neither to open our Mouths or lift up our hands against him Yours like all other Corporations is the Creature of the Crown and how then durst you make your Statutes spurn against their Maker Is this your way to recommend and adorn our Religion and not rather to make it odious by practising that in such a froward manner which our Church Professes to abhor Do we not pray for the King as the Head of it under Christ Do we not acknowledge him for the Fountain of Honor And does not Solomon Command his Sons to fear God and the King the one with a Religious the other with a Civil fear Is he not the Lord 's Annointed and not to be toucht but with Reverence either in his Crown or Person And why should we not render then to all their dues Fear to whom Fear and Honor to whom Honor Is not this an Eternal tye both of Justice and Gratitude For where the Word of a King is there is Power And who may say unto him what dost Thou Are we not next to God and his Good Angels most beholden to him for our safety whose Honor and Lawful Authority We are now come to Vindicate Is he not the Father of our Country and ought he not to be more dear to Us than our Natural Parents especially considering how Indulgent he has been to Us and what care he dayly takes to keep us from biting and devouring one another we know not why Is not he the Center of the Kingdom and do not the concurrence of all Lines meet in him and his fortunes and how can we then understand the limits of self love if a tender Sense of his Honor and happiness be not deeply rooted and imprinted in our Souls 'T was neither dutifully nor wisely done of you to drive the King to a necessity of bringing this Visitation upon you And as it must needs grieve every Loyal and Religious Man in the Kingdom to the heart to find Men of your Liberal Education and Parts so Untractable and Refractory to so Gracious a Prince so it will be very mischievous to you at the Great Day of Gods Visitation Who will then be the greatest loosers by your Contumacy For God will Revenge this among your other Crimes that you have behav'd your selves so ungratefully towards his Vicegerent as to oppress his Royal Heart with grief for your Stubbornness to whom by your chearful Obedience you ought to have administred much cause of rejoycing They who Sow the Seeds of Disobedience have never any great reason to boast of their Harvest for whatsoever they vainly promise themselves in the beginning they are in the end ashamed and afraid of the Income of their evil Practices and indeed every sort of disobedience hath so ill a report in the World that even they who are guilty of it themselves do yet speak ill of it in others Let therefore the disreputation and Obloquy which it will inevitably bring upon you make you out of Love with it or if that will not do let the Stings of your guilty Consciences and the fear of Divine Vengeance restrain you or if you are still Insensible of all these yet at least let the present fear of those Temporal Punishments which the Laws of the Kingdom have superadded to the Contemners of Gods and the Kings Authority oblige every Soul that hears me this day to be Subject to the Higher Powers If neither a most Merciful God nor a most Gracious King can please you your wages will he recompence upon your own Heads Were it not for this Serpent of discontent and jealousies which are now so busie in it this Kingdom would be like the Garden of Eden before the Curse a Mirrour of prosperity and happiness to all the World besides but this Serpentine humor of Stinging and Biting one another and of Tempting Men to Rebel against God and the King because others who differ from us in Judgment are as happy as our selves will as certainly turn us as it did our first Parents out of Paradise Our Nation is in greater danger of being destroyed by Prophanness then Popery by Sin then by Superstition by other Iniquities then by Idolatry and I pray God we may not see Sacrilege once more committed under the pretence of abhorring Idols as I my self have seen in this place If there be any among you who have sinn'd with so high a hand against our Gracious Sovereign as the obdurate Jews did against our Saviour saying we will not have this Man to Rule over us such your petulant humor such your shameful Injustice and Ingratitude will deserve the just Animadversions of this Court. What distempers this College is sick of which we are now come to visit by the Kings Commission your selves are best able to tell us We are informed of too many already and yet we suspect there may be more and therefore be but Ingenuous and make a Conscience of giving us sincere Answers and you shall find that we will abate nothing of the just measures of our Duty for fear or favor to satisfie the Importunities of any Man being well assured that God and the King will bear us out I am sorry that you should any of you run so far upon the score of the Kings Royal Patience and Pardon as some of you have already done And that you should be in such vast Arrears of Duty and Respect to him as you are But they go far who never turn The Influence you may have upon other parts of the Kingdom makes me Charitably hope that your future Fidelity and Allegiance will for ever Answer your Duty and the Kings just Expectation And therefore I hope it will not be in vain for me to exhort you in the Bowels of Christ to a more entire submission and obedience because if such Men as you bred in so Famous an University are not thoroughly convinced of the necessity of it the more Popular you become the more pernicious will you be in encouraging your deluded Admirers who have their Eyes upon you from all parts of the Kingdom to be as Disobedient and Contumacious as your selves by which the Honor and Authority of the King may be diminished and the peace both of Church and State come to be endanger'd Obey them who have the Rule over you either in Church or State and submit your selves before it be too late for your contumacious behaviour towards them will yeild you no profit at all but your Obedience much every way the former will
prove like the Sin of Witch-craft but the latter will be better accepted than Sacrifice because in that you only offer up a beast to God but in this you Sacrifice your Passions you slay them and offer them up to Gods service Remember Error seldom goes in Company with Obedience and that none are so likely to find the way to Eternal happiness in the end as they who follow the Conduct of their Superiors from the beginning not with Eye service as Men pleasers but in singleness of Heart Fearing God and the King and whatsoever you do do it heartily as unto the Lord and not unto us Men And the Lord give you understanding in all things The Speech being ended the Lords adjourned till the Afternoon to the Common Room of the College FRIDAY Afternoon AT which time the Court being sat Dr. Hough in behalf of himself and the Fellows demanded a Copy of their Lordships Commission which was denyed him and the Court ordered to proceed and then admonished the Fellows to produce the Registery of the College Affairs and also to give an account of what Leases had been Lett for two Years last past together with the Benefactions given to the College and likewise ordered them to bring in the Buttry Book to Morrow Morning to which time they adjourned §. 3. SATVRDAY Morning October 22d 1687. DR Hough was called in and it appearing to their Lordships that his Election to the Presidents place was made null and void by a Sentence given by the Lords Commissioners for Ecclesiastical Causes and that he the said Dr. Hough had legal notice of the same but notwithstanding the said Sentence he had and did still refuse to submit thereunto The Court ordered him forthwith peaceably to depart the College and deliver up the Keys of the Lodgings and struck his Name out of the Buttry-Book and having so done declared to the Fellows that he was Actually Expelled and admonished them not to own him as their President Then the Court askt the Fellows whether they would amdit the Bishop of Oxon their President according to the Kings Mandate but all of them refused except Mr. Charnock but said they would not oppose it Then adjourned till the Afternoon SATVRDAY Afternoon DR Hough came into the Court and made his protestation against the proceedings and appealed from the same as Illegal Unjust and Null as he asserts Whereupon there was a Tumultuous Hum or Acclamation made by the by-standers which gave the Court some disturbance in so much that they thought fit to bind over Dr. Hough in 1000 l. and two Sureties in 500 l. each to appear at the Kings Bench and again admonished Dr. Hough to quit the College which he accordingly did that Night Then adjourned to Tuesday Morning Thus far out of the Register But because the Paper sent with the Letter to the Earl of Sunderland is more full in several particulars I shall Insert it after the following Letter together with such Additions as the Bishop of Chesters own Journals afford me §. 4. The Lords Commissioners sent the Following Letter to my Lord President Dated 22d October 1687. MY LORD BY His Majesties Messenger See the Answer to this after the Programma §. 6. we have sent your Lordship a particular account of our proceedings here to which we humbly refer in which your Lordship will perceive the Temper of that Society My Lord we hope your Lordship will easily believe that we are not unwilling to do any thing which may vindicate the Kings Honor and Authority but we humbly desire to be well advised by your Lordship in the Methods of it for we are now a little at a stop by reason of the Bishop of Oxon's not appearing in Person having no Power as we humbly conceive either by the Kings Mandate or by our Commission to Admit him by Proxy His Majesties Letter Mandatory for the same being directed to the College who all but two or three do as yet refuse it We therefore humbly Pray your Lordship to dispatch His Majesties Mandate directed to Us to Admit the Bishop or his Proxy or that you would please to give us some other Directions such as your Lordship in your Great Wisdom shall Judge more expedient We do crave leave also to Intimate to your Lordship that it is our humble Opinion that We cannot proceed any further then Expulsion against Dr. Hough which your Lordship will find already done according to the Power we have by the Commission and we humbly Pray your Lordships Pardon and further Commands which shall be readily obeyed by His Majesties most Dutiful Subjects and Your Lordships most humble Servants Tho. Cestriensis R. Wright Tho. Jenner My Lord since the Writing of this Letter We have reason to believe we shall have an entire submission from the College on Tuesday next for Dr. Hough since his Expulsion hath left the College and taken Lodgings in the Town §. 4. The account sent by the Lords Commissioners of their proceedings till Saturday night Octob. 22. Oxford the 22d Octob. 1687. HIs Majesties Commissioners for Visiting the College of St. Mary Magdalen in Oxford Note that what is conteined betwixt these is what is in the Bishop of Chesters and Dr. Thâ—mas Smiâ—hs Diary and not in the Account sent by the Lords Commissioners Friday Afternoon being Yesterday viz. Thursday the 20th of October come at the time appointed viz. Friday Octob. 21. for the President Fellows and Schollars thereof to appear their Lordships took upon them the Execution thereof My Lord Bishop of Chester made a Speech to them upon the occasion of the Visitation and after an adjournment of the same to the Afternoon there then appeared Dr. Hough and several of the Fellows and most of the Schollars and Officers of the College Dr. Hough objected to the shortness of the time from the notice of the Visitation and prayed a Copy of the Commission and time to consider of it which was over ruled by the Court saying that if he and they could take any advantage from the Commission he hoped the King and their Lordships did not intend to bar them of it And in his own Name and the greatest part of the Fellows said that he submitted to the Visitation so far as was consistent with the Laws of the Land and the Statutes of the College and no further and that he could suffer no alteration of the Statutes neither by the King nor any other Person for which he had taken an Oath from which he could not swerve and thereupon Quoted the Statutes confirmed by King Henry the Sixth and their Oath that they should submit to no Alteration made by any Authority The Oxford Relation saith that my Lord Chief Justice answered you cannot Imagin that we Act contrary to the Laws of the Land and as to the Statutes the King has dispensed with them Do you think we come here to Act against Law Then the Sentence given the 22d Day of June 1687.
Against Dr. Hough's Election and for the removing him from the Office of President of the College was Read and he was asked whether he knew of it being given against him He replyed he had notice of it but said he was no party to it and so was advised it did not any wise concern him The Sentence likewise against Dr. Aldworth and Dr. Fairfax for suspending them was Read and the Petition of Dr. Aldworth Dr. Fairfax and others delivered to my Lord President on the Tenth of April last being about Five Days before their Election of Dr. Hough was also Read to them to which was replyed that they had no * It was Answer sufficient to have obliged them not to have proceeded to Election till they had particularly made out their Information against Mr. Farmer Answer from my Lord President but that the King expected to be obeyed and they receiving no other Mandate than that for Admitting Mr. Farmer they proceeded to Elect Mr. Hough Then after their Lordships orders to them to bring in some Books viz. The Register and other Papers relating to the Revenues and Government of their College which the Doctor promised they should have next Morning they adjourned to Eight of the Clock this Morning SATVRDAY Octob. 22d VVHo being met and such Books brought in Dr. Hough being called in The words of the Account are their Lordships proceeded and proposed these two Questions to Dr. Hough whether he was willing c. the Bishop of Chester told him Doctor here is a Sentence under Seal before us of the Kings Commissioners for Visiting the Universities by which the Election to the Presidentship of Magdalen College is declared Null and Void which you heard Yesterday Read and of which you Confess your self to have Legal notice before by being fixed upon the Doors This Sentence and the Authority by which it was passed you have contemned and in contempt thereof have kept Possession of the Lodgings and the Office of President to this day to the great contempt and dishonor of the King and his Authority Are you yet willing upon better and second thoughts to submit to the Sentence passed by their Lordships against you or not To which he Answered that the Decree of the Commissioners is a perfect Nullity from beginning to End as to what relates to him he having never been Cited nor ever appeared before them either in his Person or Proxy Besides his Cause it self was never before them Their Lordships never enquiring or asking one question concerning the Legality or Statutableness of the Election These Arguments will particularly be answered for which reason he is informed that That Decree was of no validity against him according to the Methods of the Civil Laws but if it had he was possessed of a Freehold according to the Laws of England and Statutes of the Society having been Elected as Unanimously and with as much Formality as any of his Predecessors Presidents of the said College and afterwards Admitted by the Bishop of Winchester their Visitor as the Statutes of the College required and therefore he could not submit to that Sentence because he thought he could not be deprived of his Freehold but by Course of Law in Westminster-Hall or by being some way Incapacitated according to the Founders Statutes which are Confirmed by King James the First Second Question put to Dr. Hough was whether he would deliver up the Keys and Lodgings as by a Clause in the Statutes of Admission he is tyed to do to the use of the President who hath the Kings Letters Mandatory to be Admitted into that Office. To which he Answered that there is not neither can there be any President whilst he Lives and obeys the Laws of the Land and the Statutes of the place and therefore doth not think it reasonable to give up his Right nor the Keys and his Lodgings now demanded of him He takes the Bishop of Winchester to be his Ordinary Visitor and yet he would deny him the Keys he takes the King to be his Extraordinary Visitor as he believes but it had been controverted whether the King had Power to Visit as in Coveny's Case 4 o. Eliz. and looked upon their Lordships Commanding it to be a requiring him to deliver up his Office. He said he had appeared before their Lordships as Judges and that he now Addressed himself to them as Men of Honor and Gentlemen and did beseech them to represent him as Dutiful to His Majesty to the last degree as he always will be where his Conscience permits to the last Moment of his Life and when he is Dispossest here he hopes they will intercede that he may no longer lie under His Majesties displeasure or be frowned upon by his Prince which would be the greatest affliction that could befall him in this World. Then their Lordships admonish'd him three times to depart peaceably from the Presidents Lodgings and to Act no more as President or pretended President of the College in Contempt of the King and his Authority which he refusing to do Mr. Lee Proctor to the Lords accused his Contumacy and prayed the Judgment of the Court The words of the Account are then the Lords proceeded to give Judgment against him viz. That he forth with c. which was thus pronounced The Lords Commissioners for Ecclesiastical Causes and for Visiting the Universities have Decreed the Presidents place of this College to be Null and Void Therefore we by the Authority to us committed do Order and Command you Dr. Hough forthwith to quit all pretensions to the said Office upon which they Ordered his Name to be struck out of the Buttry-Book which was accordingly done and admonished the Fellows and other Members of the Society no longer to own him as their President Then the Kings Mandate for Admitting the Bishop of Oxford was Read See for this sect 2. § 3. and they were then Ordered to withdraw and being soon after called in again the Question was put to the Fellows singly one by one whether they would Admit the Bishop of Oxford their President according to the Kings Mandate Dr. Pudsey said he would submit to the King and would be by but could not Act being Burser Dr. Thomas Smith replyed From Dr. Smiths Diary See his other Answer §. 10. My Lords Commissioners if it be the Kings pleasure to make the Bishop of Oxford President of this College and your Lordships Acting by that Authority have declared and made him such I do because I must submit I make no opposition Mr. Charnock said he was ready to obey the Kings Mandate all the rest of the Fellows refused to receive him as President as being against their Statutes and Oaths and that which would make them guilty of Perjury All whose Verbal Answers were taken in Writing by the Lords Commissioners and their Lordships after some time said if you think we have not taken the Answer right put them in Writing
your selves against the Afternoon to which time they adjourned the Court. The Court being Sate in the Afternoon Afternoon Dr. Hough appeared with a great Rabble of followers and after a short time said whereas your Lordships this Morning have been pleased pursuant to the former Decree of the Lords Commissioners to deprive me of my place of President of this College and to strike my Name out of the Buttry-Book I do hereby protest against the said proceedings and against all that you have done or hereafter shall do in prejudice of me and my Right as Illegal Unjust and Null and I do hereby Appeal to our Sovereign Lord the King in his Courts of Justice Dr. Tho. Smiths Diary Upon which there was a Tumultuous Hum in the Room which the Lords Commissioners resented very much and said they would never suffer the Kings Authority to be so affronted my Lord Chief Justice said he would defend the Kings Authority while he had Blood in his Body and told Dr. Hough that he was the occasion of this mis-behaviour by his popular Protestation which he might have made in the Morning that he had broke the Kings Peace and that now they had brought in the Civil Power over them and that if need were they would use the Military that he must Answer that affront of the Kings Authority at the Kings Bench Court. Upon which he was bound in a Thousand pound Bond and his Sureties in Five Hundred pound a piece Then the Bishop of Chester gave-the Doctor this Answer to his Appeal Doctor we look upon the Appeal as to the matter and manner of it to be unreasonable and not to be admitted by us First because it is in a Visitation where no Appeal is allowable Secondly because our Visitation is by Commission under the Broad Seal of England which is the Supreme Authority therefore we over-rule this Protestation and Appeal and Admonish you once for all to avoid the College and obey the Sentence The Doctor and Fellows declared their grief for the disorder of the Crowd and disclaimed their having any hand in it After which Dr. Pudseys Letter to the Lord President being Read See this Letter c. 1. sect 3. §. 3. their Lordships askt the Fellows concerning the Kings Verbal Command to them at Oxford to which they said it was to Elect the Bishop of Oxford which they could not Then being askt why they did not Admit him which was all the Kings Letter required and to which the Verbal Command referred Eight of the Fellows said they were not there and Thirteen owned they were and gave consent to the Letter §. 5. Vpon Complaint made by the Lords Commissioners of the Hubub before mentioned the Vice-Chancellor published this following Programma QUum nihil minus deceat Viros Ingenuos nedum Academicos ad optima enutritos quam morum Inelegantia Rusticitas Quam absonum videri debeat Adventantes strepitu sibilis excipere pro Coetu Philofophorum turbam Morionum Peregrinis ostentare Quocirca dolemus hac in parte peccatum esse in Viros Illustres admodum Reverendos quod omnium Gravissimum est Regia insuper Authoritate munitos speramusque hoc Indecentiae vel potius contumeliae aut saltem maximam partem ab Infrunitis hominibus de plebis Faecula natis omnino provenisse monemusque omnes quotquot sunt Scholares ut ab omnibus Illiberalibus Dicteriis sannis Pedum supplosione male feriatorum Turbinum Cachinno Screatu clamore murmure 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 penitus abstineant Si quis vero in posterum in aliquibus istius modi deliquerit sciat se non mediocres Temeritatis Insolentiae suae paenas luiturum Octob. the 24th 1687. Gilb. Iron-side Vice-Cancelarius §. 6. My Lord Presidents Letter to the Lords Visitors in Answer to theirs of the 22d of October To the Lords Commissioners Letter and the account sent of their proceedings I find this Answer given by my Lord President Whitehall Octob. 23. 1687. MY LORDS I Have received your Lordships of the 22d with the account of your proceedings which His Majesty is well satisfied with I herewith send you such an Order for Admitting the Bishop of Oxford as you desired and am directed by His Majesty to acquaint you that if the Fellows of the College can be brought to submit to the Admission of the Bishop as their President His Majesty is Graciously pleas'd no Punishment should upon that account be Inflicted by you upon such as do submit but if any of them be refractory you are to proceed against them according to the Commission and His Majesty would have you also to Inspect the Constitutions Orders and Statutes of the College and to Enquire into the behaviours of the Members thereof and what abuses may have been Committed either by mis-applying their Revenues or other mis-doings a particular account of which together with the Names of the Offenders you are to transmit up to His Majesty that he may give such further Order as shall be requisite in the matter I am MY LORDS Your Lordships Most humble Servant Sunderland P. The Lords Commissioners Answer to this I shall Insert in it's place and now proceed to what was transacted at the Court held October the 25th In the Morning §. 7. Dr. Stafford Read the following Paper in Answer to what was objected on Friday October 25th Morning that a Mandate Implyed an Inhibition which I think fit to Insert out of the Printed Relation To the Right Reverend and Honorable the Commissioners for Visiting of St. Mary Magdalen College in Oxon. May it please your Lordships ON Friday last in the Afternoon you seemed to Insist very much upon this particular viz. That His Majesty in Commanding the Fellows of the said College to Elect Mr. Farmer President did thereby Inhibit them to Elect any other Person whatsoever which has not yet been made to appear to be Law To these Arguments Answer will be given in due place out of Civil Canon or Common-Law neither is it agreeable to reason that a Command to Elect a Person uncapable should oblige not to Elect a Person Capable that being a kind of Contradiction in Terminis yet this being granted it cannot at least affect the said Fellows or Invalidate the Election of Dr. Hough notwithstanding His Majesties Mandate in behalf of Mr. Farmer wholly uncapable of the place The Fellows cannot be said to be Guilty of any disobedience or disloyalty in proceeding to the Election of another Person who was qualified according to the Statutes being forced to make an Election for they are obliged by the Statutes of the College when called together to Elect a President or any other Officer under pain of Expulsion perpetual from that College to meet and make an Election which Punishment they Incur Ipso facto who either refuse to meet when so called or being met do not Nominate and Elect a Person into the Office void
would have been Aggravations of the former Contempts which upon better thoughts you desired and we gave you leave to withdraw What other Men who are led by Populacy which is the Fools Paradise but the Wise Mans scorn say of us while we are doing our Duty to God and the King we value no no more than what they dream of us For we set a greater estimate upon our own Duty than other Mens thoughts and will discharge our Consciences faithfully whatsoever becomes of our Credit We can allow those who are dis-affected to the Crown and to the Church of England to talk of us at their own Rate we shall vindicate the Kings Authority and redeem it from Contempt by all Just and Lawful means But yet Gentlemen the great concern we have for you and our earnest design to rescue you out of danger if you are not sturdily resolved to cast away your selves obliges us to offer you once for all that if you will freely and presently make such submission to His Sacred Majesty as the Heinousness of your Offences do's in our Judgment require we will pass by your faults and recommend you heartily to Gods and the Kings Mercy and accordingly we require the Deputy Register to Read the Form of such a submission to you as the Court upon mature deliberation hath judged necessary for them to expect and require in Point of Justice as an expiation for all the former dis-obedience and contempts of which they have found you guilty which they that are willing and well resolved may immediately Sign and the rest of you are Commanded to withdraw excepting Dr. Thomas Smith and Mr. Charnock with whose good behaviour towards His Sacred Majesty in the concern before mentioned we declare our selves to be well satisfied and doubt not but that His Majesty will be so too when we shall have further occasion to represent it to him §. 3. After the Bishops Speech all were ordered to withdraw Register except the Fellows and the Form of a Submission was ordered to be Read to them in the words following To the Kings Most Excellent Majesty The Humble Petition and Submission of the Fellows of St. Mary Magdalen College in the Vniversity of Oxford whose Names are Subscribed May it please your Majesty WE your Majesties most humble Petitioners having a deep sense of being justly fallen under your Majesties displeasure for our disobedience and contempt to your Majesty and to the Authority of your Majesties Commissioners and Visitors We do in all humility prostrate our selves at your Majesties Feet humbly begging your Pardon for our said Offences and promising that we will for the future behave our selves more Dutifully and for a Testimony thereof we do acknowledge the Authority of your Majesties said Visitors and the Justice of their Proceedings and we do declare our entire Submission to the Lord Bishop of Oxon as our President He then told them that their Subscribing the same was the only means that could recommend them to His Majesties favour But all the Fellows to whom the said submission was proposed * Dr. Thomas Smith had not the Question proposed to him having been absent from the College during the heat of the contest and wholly unconcerned in it by which it appears how false the Oxford Relation p. 37. 38. is being severally ask't the Question peremptorily refused to subscribe Mr. Thompson desired to be excused from subscribing for that he had given his Vote for Mr. Farmer and had not concurred with the Society in any thing they had done since in this business and declared that he never had been disobedient nor ever would be whereupon their Lordships excused him §. 4. Dr. Aldworth desired The Oxford Relation is thus p. 37. 38. in the Name of himself and the Fellows time to consider of the submission and give their Answer in Writing to whom the Bishop of Chester said they must every one Sign or Refuse as they were called And Baron Jenner said there was no Answer to be given but Yea or No They all moved again for time but it was denyed then Dr. Aldworth said My Lords this is my first appearance before your Lordships since your sitting here therefore I pray to be heard My Lords I am as ready to comply with the Kings Pleasure as any Man living neither do I know that we have ever in this place been disobedient to the King when ever 't was in our Power to obey his Commands Our Founder in the first Clause of the Oath we take at the Election hath provided that no one shall be President of this College but who was bred in this or in the College wherein he himself was bred now for us who have Elected Dr. Hough a Person Qualified according to our Statutes who hath been Installed Sworn Confirmed and Approved of in all the ways and manners prescribed in the Statutes For us my Lord to accept and admit of a Stranger and a Forreigner in his place is to the best of my understanding a giving up the Rights of the College to other uses than the Founder designed it Here Dr. Aldworth was Interrupted by the Bishop of Chester saying the Statutes were over-ruled by the Kings Authority or words to that effect To which the Dr. Answered your Lordships sit here as Visitors which Implies there are certain Laws and Statutes which we are bound to observe and by which we are to be Governed and if it shall appear to your Lordships that we have Acted conformable to those Statutes I hope we shall neither incur the Kings displeasure nor your Lordships The whole Tenor of our Statutes run that we should Inviolably maintain our Right and observe the Rules of our Founder He has laid his Curse upon us if we vary from them here he repeated the words Ordinamus sub poena Anathematis Indignationis Omnipotentis Dei ne quis c. Item sub Interminatione Divini Judicis Interdicimus To which the Bishop of Chester reply'd are you not to obey the King as well as your Founders Statutes To this the Vice-President Answered I ever did obey the King and ever will do our Statutes which we are Sworn to are Confirmed by several Kings and Queens before and since the Reformation and as we keep them are agreeable to the Kings Laws both Ecclesiastical and Civil Whilst we live up to them saith the Printed Relation and whilst we keep up to 'em we obey the King. The Bishop of Chester reply'd the Statutes were never Confirmed by his present Majesty to which Dr. John Smith said neither have they been Repealed by His Majesty The Mandate being an Inhibition repeals them for the present time by Dispensation and what is not Repealed is Confirmed After this their Lordships pressing either to Sign or Refuse Dr. Aldworth said My Lords I 'll deal plainly in regard to my Oath and the Statutes to the Right of all our Successors and of Dr. Hough whom I believe
is informed the present Chancellor Masters Doctors and all the Scholars of the said University desire to all those privileges for the firmer (a) Permissis omnibus pre illorum subsistentia firmiori nostri adiici muniminis firmitatem Ibidem subsistence of them that he would add the firmness of his defence The Pope who with special love respects the Chancellor c. For their fervor of pure Devotion and of their Faith which they bear to him and the Roman Church by Apostolic Authority of his proper motion not at their Instance but of his own meer Liberality by the Tenor of these presents confirms and approves all the privileges granted by the present King Edward as well as by other * Singula tam in Regum quam Praedecessoris praedicterum literis contenta Autheritate Apostolic◠tenore praesentium confirmamus Approbamus c. Ibidem Kings of England to the University and the Students in it holding the Tenors of the granted privileges to the presents for express and Decreeing them to obtain the strength of a perpetual firmness he Establisheth them by the Patronage of the present Writing supplying all and singular defects of Law as well as Fact if by chance any have Intervened in them Concerning the power the Pope gave to the Chancellor to Absolve from the guilt of perjury in breaking the Statutes and the punishments appointed by them and in some cases dispensing with them I shall treat when I come to consider the Kings dispensing with the Statutes There is another Bull of the same Pope dated the 6th of the Kalends of August the same Year wherein he confirms the Bull of Pope Innocent the 4th Anno 1254. 38 H. 3. I shall pass by the Confirmations of King Richard the Third and Henry the Seventh who were both very favorable to the University §. 8. The Charters of King H. 8. and his power over the University Anno 1510. 2 H. 8. It being Customary for the Kings when they begun their Reigns to Grant privileges to the University King H. 8. confirmed (a) In pixide longa 3. their privileges and encreased them and among the rest he Ratified the most Ample Charter of King Edward the Fourth and all others granting them a truly royal Charter exceeding all those of his Predecessors as the Record saith ☞ This Year the University was sollicitous to retrieve the Bulls of Popes which had been by evil Arts stolen by some that wished evil to the University upon which account the (b) F.F. Ep. 30. Chancellor was desired to get them Transcribed out of the Chancery of the Apostolic See But my Author complains that some Men upon the Banishing the Popes Authority here not warmed with a temperate zeal Wood. antiq Oxon. lib. 1. fol. 241. a. as they ought but being all a Fire Committed to the Flames not only all the Bulls they could find but what ever they could meet with that made any mention of the Roman Religion by which many matters of great moment relating to History are lost In the Year 1518. the 10th of King H. 8th Cardinal Wolsey being then not only a Favorite of the King but of the Pope and attending the King and Queen to Oxford (c) Regist Colli Marton fol. 241. a. in the Convocation House having told the University of his Study and most propense affection to it and that he intended to Institute certain Lectures there he earnestly intreated they would give him power to correct certain Statutes which concerned learning of which some being repugnant among themselves for the amending of which the University had formerly appointed Richard Fitz-James Bishop of London and John Young Bishop of Calypole The University received the Benevolence of the Cardinal with all due respect and Writ to the (a) F.F. Ep. 5861. c. Chancellor about it who Answered on the 2d of May that he did not approve that such Authority should be given to any besides the Chancellor and the Congregation of Regents and Non-Regents But he after changed his mind and the 1st of June in the full (b) Ibid. fol. 31. Convocation it was Decreed that the Statutes should be delivered to the Cardinal to be Corrected and changed at his pleasure and it was likewise ordained that the Liberties Rights and Privileges of the University saving to every College their peculiar Rights should be delivered to him with full power to reduce the public Discipline into what Form he pleased §. 10. The Kings retaining the privileges in his hands and restoring some particular ones at pleasure ☞ In the Year 1520. The 12th of H. 8. the Townsmen thinking by this surrender that the University was without their old privileges took the occasion to abuse some Scholars therefore the University thought fit that the matter of renewing and encreasing their rights and Privileges should be hastened and the Cardinal being moved in it appointed the two foresaid (c) H. fol. 56. a. Bishops to Expedit it and the King granted whatever was desired in this particular betwixt the Towns-men and the University Anno 1521. The 13th of H. 8. I find the University (d) Wood Antiq. Oxon. lib. 1. fol. 247. b. apply to the Cardinal for the hasting of the Grant of the Kings Charter and the Recognition of the Statutes and in the Year following I find that the Cardinal having still the University Statutes in his Hands prorogued the Terms of the Proctors and ordered other things in the University Anno 1523. the 14th of King H. 8. The Cardinal obtained (a) Pixide Long. N. 2. a Charter of most Ample Privileges so that however the University had committed their Statutes and Privileges to the Cardinal for Correction and Amendment which they had reason to do because his Dignity and power was no less great than his intended Benefaction in Founding and Endowing Christ-Church and settling several Lectures yet all this is to be supposed to be in subordination to the King for he alone Grants the Charter which (b) H. fol. 200. was sent Anno 1528. the 20th of H. 8. by Dr. Hygden Dean of the Cardinal College It is also further to be observed that this Charter was upon some Command of the King (c) Wood Antiq. lib. 1. fol. 253. a. re-delivered to the Cardinal and after his precipitate ruin it was not restored to the University till the Year 1566. which was Forty two Years after §. 11. The King seizeth all their privileges ☞ To clear the main point yet more Anno 1532. 24 H. 8. The King Commanded that both the University and City should deliver into his Hands all their Rights and in January it was Decreed in (d) F. F. fol. 122. Vol. de Chartis Accadem Oxon. Bib. Cotton sub faustina c. 7. F. F. 122. Convocation that there should be two Instruments of submission drawn up for the University one containing the surrender of all the Regal and Episcopal privileges and the other
Legato susceptus nec in aliquo Legati officio functus ☞ In the Letters of Paschalis the Second of the 30th of March and the 1st of April Fourteen Years after the returning of the Legat Guido the Pope Expostulats with the King about several matters one of which is his admitting neither Messenger (b) Sedis Apostolicae Nuncii vel litterae praeter Jussum Regiae Majesto tis nullam in Potestate tuae susceptionem aut aditum promerentur nullus inde clamor nullum inde Judicium ad sedem Apostolicam destinantur Idem fol. 113. 116. nor Letter to be received but by his leave and the Year following Anselm Nephew to the late Arch-Bishop and after Abbot of St. Edmundsbury shewed by Letters that he had Committed to his Administration Vices Apostolicas in Anglia This made known here the Queen Clergy and Nobility gather'd in Council at London concluded that the Arch-Bishop should go to the King to Normandy and make known to him the Ancient Custom of the Realm and by his Advice to Rome that these new things might be Annihilated haec Nova annihilaret So the Arch-Bishop went to the King to Roan and met Anselm there designing his Journey for England but King Henry not suffering that any prejudice saith my Author should be brought upon the Ancient Customs of England deteined Anselm from going to England §. 4. The Subjects repine at the Legats Praecedence of the Arch-Bishop Canterbury ☞ Soon after we find Legats sent and particularly John Cremensis Anno 1125. 25 H. 1. Who being but a Priest Cardinal yet using the Habit of a Bishop and performing the Office on Easter Day in a more Eminent Chair as an Arch-Bishop gave offence But in a Council which he held and presided in at London the Kingdom took more offence saith my Author for then (a) Videres enim rem hactenus regno Anglorum inauditam Clericum scilicet Presbyterii tantum Gradu perfunctum Archiepiscopis Episcopis Abbatibus totiusque Regni Nobilibus qui confluxerant in sublimi solio praesidere illos autem deorsum sedentes ad nutum ejus vultu auribus animum suspensum habentes Gerv. Dorob Acta Pontif. Col. 1663.42 saith he we might see a thing hitherto unheard of in the Kingdom of England A Clerk only having the Degree of a Priest preside in a lofty Throne above the Arch-Bishops Bishops Abbots and all the Nobles of the Kingdom that Assembled there they sitting below with Countenances and Ears attending his pleasure ☞ In this I take not so much notice that he assumed such a place that being due according to the Dignity of the Person he Represented and is no more to be wondered at then that the Lord Cromwell as Vicar General had place before the Arch-Bishop of Canterbury but I cannot but observe that it was looked upon as such a Novelty and a thing not used before even as the Vicar Generals place was in the latter Ages And it is supposed by some to be the first President of any Clergy Mans having Precedence here of the Arch-Bishop of Canterbury who was Styled Alterius Orbis Papa as having Vices Apostolicas here But in Anno 1127. To take off this Envy the Arch-Bishop of Canterbury William Corbet was declared Legat and in May following held a Council at Windsor wherein (b) Cui praesidet sicut Apostolicae sedis Legatus Florent Wigorn An. 1126.1127 he presided as Legat of the Apostolic See and it must be owned that tho' these first three Kings after the Conquest Contested with Popes in these matters yet afterwards Kings yielded more to the Canons of the Church §. 5. Further power exercised by Legats ☞ Anno 1138. 3 Steph. Albert or Alberic Cardinal of Hostia was the Popes Legat and Consecrated Theobald Arch-Bishop of Canterbury and called the Clergy to a (a) Gerv. Dorob Col. 1346.58 Colloquium by Apostolic Authority by which it appears that the Canons of the Church now obtained and the King assented to the powers the Legat had so that what was Decreed had the Kings Allowance In (b) Eadmerus fol. 24.11 this Council he Commanded the Prior and Convent of Canterbury to choose such an Arch-Bishop whom the Authority of the Holy Canons in nothing might obstruct and to whom the Bishops of his Province likewise ought to submit Here is to be noted that the Kings Assent was required and to whom the King neither might nor ought justly to deny his Assent and that if any (c) Gerv. Dorob can 9. Col. 1348. injured any Ecclesiastical person and did not give satisfaction after three Admonitions he might be Excommunicated and that none besides the Pope unless the danger of Death were Imminent might enjoyn the manner of his final Penance which my Author * Sir Roger Twisden ut supra says was the first Canon that was made whereby any thing done in England was referred to Rome but of this I doubt Anno 1139.39 H. 1. Pope Innocent the Third Conferred the Legatine power upon Henry Bishop of Winchester King Stephens Brother his Faculties (d) Malmsbury fol. 103. a. 31. were Read at a Council he called at Winchester bearing Date March the 1st There being some differences betwixt the Arch-Bishop and Monks of Canterbury Disputes betwixt the Arch-Bishop of Canterbury and the Legat. they were referred from Rome to his Decisions so that he caused both Parties the second time to appear before him 1143. as Lagat and Commanded (e) Willi. Thorâ—s Col. 1853.32 Arch-Bishop Theobald to restore one Jeremy whom he had removed By these and other Carriages there grew great distasts betwixt these two great Prelates The Arch-BiNop prohibited (a) Jo. Hagulst Col. 275. H. 4. Winchester all Ecclesiastical Functions tho' he were the Popes Legat and both apply themselves to the Pope Whence a Learned (b) Sir Roger Twisden Vindis p. 27. Person saith our Historians do setch the use of Appeals to Rome tho' it may be Ancienter §. 6. The Arch-Bishop of Canterbury Created Legatus Natus ☞ These two great Prelates being before Lucius the Second Anno 1144. the Bishop of Winchester (c) Willi. Thorn Col. 1804.44 J. Hagulst Col. 273.61 Anno 1145. was dismissed his Legatine Commission and the Pope finding with how great difficulty the Ecclesiastic Affairs of the Kingdom could be managed by any Legate without the Arch-Bishop of Canterbury Created him and his Successors Legati Nati by which such things as the Arch-BiNops did before and which seemed to Interfere with the Popes plenitude of power the exercise of which the Arch-Bishop was not so easily to be divested of he might be said to make use of by a Legatine power After this our Histories are full of Appeals to Rome Greater subjection to the Pope and of the Authority Exercised by Legats and we find some things allowed by the Decrees of Popes to be Transacted by the Arch-Bishop of Canterbury quâ Archibishop and
Ralph de Diceto (c) An. 1175. Col. 597.21 observes that our Kings did in such sort follow the Ecclesiastical Canons as they had a care to Conserve their own Rights hence it is that in the Saxon Laws we find the Kings extending their Commands to the enjoyning of those things in Ecclesiastical matters which by Canons of Councils were agreed to as Sir Roger (a) Cap. 5. N. 6. Twisden hath summed up in Ten particulars ☞ In one of which King Alfred (b) L. L. Aluredi C. 8. pa. 25. Jourval c. 9. Coll. 823. The Decrees of such Councils must be well obeyed when Kings were present reserves to himself the liberty of dispensing event with the Marriage of Nuns In another it appears that the Kings caused the Clergy of their Kingdom to meet in Council and sometimes presided themselves in them tho' the Popes Legat were present as may be seen in Sir Henry Spelmans Councils Page 292.293.189 pasim Ibid. vita Lanfranci C. 6. Col. 1. pa. 7. Florent Wigorn. 1070. p. 434. ☞ It is likewise certain that before (c) Twisden Vindica c. 5. N. 7. p. 99. William the Conquerors time the English Bishops had no Ordinary Courts distinguished from the Lay but both Secular and Ecclesiastical Magistrates sat and Judged together but he finding these proceedings (d) Non bene neque secundum Sanctorum Canonum praeceta not good nor according to the precept of the Holy Canons did by his Charter make a distinction of the Courts that such as were Convented by the Bishop should not Answer according (e) Non secundum hundred sed secundum Canones Episcopales Leges c. to the Hundred but according to the Canons and Episcopal Laws So that in this appears the Foundation of the Tryals in Ecclesiastical Courts according to the Ecclesiastical Laws which yet by our Lawyers are called the Kings Laws §. 11. The Kings Secular Courts determined what matters were to be tryed in Ecclesiastical Courts And it further appears that in Controversies betwixt parties where it hath been disputable whether the Tryal of them appertained to the Kings Ecclesiastical or Secular Courts The Kings Secular Courts have ever been Judges to which Court the cause did belong therefore Bracton (f) Lib. 5. de exceptionib cap. 15. sect 3. fol. 412. a. saith Judex Ecclesiasticus cum prohibitionem a Rege susceperit supersedere debet in omni casu saltem donec constiterit in Curia Regis ad quam pertineat Jurisdictio quia si Judex Ecclesiasticus aestimare possit an sua essec Jurisdictio in omni casu indifferenter procederet non obstunte Regiâ prohibitione Which is agreeable to what we find King William the First did in a Council at Illibon in Normandy Anno 1080. when by the advice of both the States Ecclesiastic and Secular he did settle many particulars to belong to the Cognizance of the Spiritual Judges and concludes that if any thing were further claimed by them they should not enter upon it (a) Donec in Curia Regis monstrent quod Episcopi inde habere debeant till they had shewed in the Court of the King that the Bishops thereupon ought to have it belong to them Whoever desires to be satisfied in the Jurisdiction of the Kings of England in Ecclesiastical matters may sind an Abridgment of them in Sir Roger Twisden (b) Vindicat. c. 5. N. 17. enforced with sufficient Testimonies out of our most Authentic Historians in Eighteen particulars §. 12. The application of these Historical Collections ☞ Upon the whole matter we may conclude that what was done by Archiepiscopal or Episcopal Visitation of the University was by the Kings Authority so that tho' we find not that by Immediate Commission the Kings of England Visited before King Henry the Eighth's time yet we have sufficient grounds to Judge that whatever was done was by the Kings power and Authority Therefore Sir Edward (c) Cawdryes Case 5 Reports p. 8. b. How the Temporal and Ecclesiastical Courts were subordinate to the King according to the Opinion of our Modern Lawyers Cooke lays it down for a Rule that as in Temporal Causes the King by the Mouth of the Judges in his Courts of Justice doth Judge and determin the same by the Temporal Laws of England so in Causes Ecclesiastical and Spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm and that so many of the Ecclesiastical Laws as were proved approved and allowed here by and with General Consent are aptly and rightly called the Kings Ecclesiastical Laws of England and whosoever denyeth this denyeth the King to have full and plenary power to deliver Justice in all Cases to all his Subjects without which he were not a compleat Monarch or head of the whole and entire Body of the Realm according to the words of the Statute (d) Stat. 24 H. 8. c. 12. The King the Fountain of Justice that the Kingly Head of this Body Politic is Instituted and furnished with plenary whole and intire Power Preheminence Authority Prerogative and Jurisidiction to render and yield Justice and final determination to all manner of Folke Resiants or Subjects within the Realm in all causes matters debates and contentions happening to occur insurge or begin within the limits thereof c. §. 13. In what particulars our Kings claimed not Ecclesiastical Administration It must be likewise considered that whatever power our Kings Exercised in Ecclesiastical Affairs they never claimed any in those things the School men call Ordinis as the Administration of Sacraments Celebrating Divine Offices c. but in that which is called Jurisdictionis and that being either Internal where the Divine by persuasion wholsom Instructions Ghostly Counsel and the like convinceth the Conscience This is Sir Roger Twisdens observation whereby it is obedient or External where the Church in Foro exteriori compels the Christians obedience As to the first and second none of our Kings either before or since the Reformation took upon them at all to medle either by assuming to themselves a power of Preaching Teaching Binding or loosing in foro Animae Administring the Holy Sacraments Conferring Orders c. But they took upon them the Ordering of such things as were of outward Policy of the Church as what Men were fit to Exercise them and what subjection the Subjects should yield to Decrees and Constitutions made abroad and what Doctrins were publicly to be Taught which might conduce to the quiet Peace and Tranquility of the Subject and their living in Piety and Vertue §. 14. How the Popes obtained greater powers after the Canon Laws were owned here It is further to be noted that the Popes power was enlarged after the Canon Law was received more than it had been before but if we believe Walsingham (a) Walsingham ad Ann. 1297. it was not Read in our Universities publicly till the 25th of Edward the First
by one Simon a Monk of Walden ☞ It is likewise to be noted that altho' as I have shewn before the first Race of our Kings did frequently oppose some Rights the Popes claimed by Canons yet within the compass of an Hundred Years after the Conquest The Popes Jurisdiction in four particulars by the Canons or little more the Court of Rome obtained four great points of Jurisdiction First of sending Legats into England Secondly drawing Appeals to Rome Thirdly the Donation of Bishoprics and other Dignities in the Church Fourthly the Exemption of the Clergy from Secular Power Notwithstanding all which several Kings reassumed their Rights and Jurisdiction as occasions offered until the Reign of King Henry the Eighth as the Statutes of Mortmain Provisoes c. do manifest §. 15. The Kings Supremacy asserted by King Henry the 8th But in King Henry the Eighth's time a Total Rout was given to them all In the Twenty fourth of his Reign all Appeals to Rome were taken away and Established in the King and all Sentences made or to be made with England declared to be Authentical notwithstanding any Act from Rome The grounds of which Act are set forth in the (b) Stat. 24. H. 8. c. 12. Parag. 1. Preamble That this Realm of England is an Empire Governed by one Supreme Head and King The Lawyers Judge this Statute not to be Introductory of any new power but declatory of the Ancient Rights of the Crown having Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politic Compact of all sorts and Degrees of People divided in Terms by Names of Spirituality and Temporality been bounden and own to bear next to God a Natural and humble obedience Then follows the plenitude of the Kings power as before I have related after which follows That the Body Spiritual hath power when any cause of the Law Divine happens to come in question or of Spiritual Learning This Statute was made to exclude the Popes power which King Henry the 8th rejected that it was declared Interpreted and shewed by that part of the Body Politic called the Spirituality without the Intermedling of any exterior person or persons by which the See of Rome is intended to be utterly Excluded and all Canons of Council likewise not allowed of by the King and his Laws to declare and detemin all such doubts and to Administer all such Offices and Duties as to their Rooms Spiritual doth appertain and the Laws Temporal for Tryal of property of Lands and Goods and for the Conservation of the people of this Realm in Unity and Peace without Rapine and Spoil was and yet is Administred Adjudged and Executed by sundry Judges and Ministers of the other part of the Body Politic called the Temporality and both the Authorities and Jurisdictions do conjoyn together in the due Administration of Justice the one to help the other By which it is easie to infer that this Statute exterminates and abolisheth all Forreign power so that whatever before this was Transacted here by the Popes or their Legats is now to be declared and determined by the King or such as by Law are appointed to hear and determin such matters under him §. 16. The Kings power of Visiting c. In the Twenty-sixth of the same King it is enacted That the King his Heirs and Successors shall have full Power and Authority from time to time to (a) Stat. 26 H. 8 c. 1. The Kings power of Visiting Visit Repress Redress Reform Order Correct Restrain and Amend all such Errors Heresies Abuses Offences Contempts and Enormities what soever they be which by any manner of Spiritual Authority or Jurisidiction ought or may lawfully be Reformed Repressed Ordered Redressed Corrected Restrained or Amended most to the pleasure of Almighty God the increase of Virtue in Christs Religion and for the Conservation of the Peace Unity and Tranquility of this Realm any Uses Customs Forreign Laws Forreign Authority Prescription or any thing or things to the contrary hereof notwithstanding It is known that the Title of Supreme Head of the Church given by that Act to the King his Heirs and Successors was Repealed by Queen Mary The Title of Supreme Head changed and was never restored but in the First of Queen Elizabeth all the powers given by the Act of 26 H. 8. are restored to the Crown under the Name of Supreme Governor For in the first of Queen Elizabeth such Ancient Jurisdictions over the Estate Ecclesiastical are restored to the Crown The restoring of Ancient Jurisdiction as by Queen Mary had been Repealed and all Foreign powers repugnant to the same are abolished I shall only insert what relates to the present matter Stat. 1. Eliz. Parag. 17. Parag. 17. It is thus Enacted That such Jurisdiction Privileges Superiorities and Prehemenences Spiritual and Ecclesiastical as by any Spiritual and Ecclesiastical power or Authority hath heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and persons and for Reformation Order and Correction of the same and all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be Vnited and Annexed to the Imperial Crown of this Realm Parag. 18. The Kings power in Ecclesiastical matters And in the 18th Paragraph The Queen her Heirs and Successors shall have full Power and Authority by Letters Patents under the Great Seal to Assign Name and Authorize c. such person or persons c. as the Queen her Heirs and Successors shall think meet to exercise use occupy and execute under them all manner of Jurisdictions Privileges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within their Dominions to Visit Reform Redress Order Correct and Amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or may lawfully be Reformed Ordered Redressed Corrected Restrained or Amended c. Which seems to me 25 H. 8. c. 21. Parag. 20. The King Supreme Visitor notwithstanding Mr. Pryns exceptions clear by another Act of Parliament the words of which are Provided that the said Arch-Bishop of Canterbury or any other person or persons shall have no power or Authority by reason of this Act to Visit or Vex any Monasteries Abbys Priories Colleges Hospitals Houses or other places Religious which be or were Exempt before the making of this Act c. But that Redress Visitation and Confirmation shall be had by the Kings Highness his Heirs and Successors by Commission under the Great Seal to be directed to such persons as shall be appointed requisite for the same In fine whoever considers the Accumulated power of our Kings most own à fortiori that whatever Visitatorial Power was excercised before King H. 8ths time was by the Kings allowance and all since
prerogative in punishing Offenders in such manner as it was done by his Commissioners §. 3. The Bishop of Lincoln the Ordinary Visitor before Oxford was made a Bishops I now proceed to shew See by King Hen. 8. that the Bishop of Lincoln was the Ordinary Visitor In the Visitation by the Bishop of Tusculum it appears that the Legate Impowered the Bishop of Lincoln or his Arch-Deacon or the Chancellor or others the Bishops Deputies to see to the performance of what he had Decreed By which some show of Jurisdiction was left to him who was the Dioecesan and by the Canons of the Church had the Visitation in Ordinary of all under his Jurisdiction which by succeeding Councils I shall shew * Cap. 4. Sect. 4. §. 10. hereafter was his Right and declared such even without Appeals from him or any Exemption and that they executed it appears by many examples in the Bishop of Lincolns Register yet by the Instances following we find it was often disputed especially if they attempted to do any Exorbitant Act. Robert Grosthead Bishop of Lincoln (a) Wood Antiq. lib. 1. fol. 106. a singular Patron of the University being Dead Henry Lexinton Succeeded who not being content with the usual power exercised by his Predecessors designed to enlarge his Jurisdiction so that the University was forced to defend it self by shewing the Bull of Pope Innocent the Fourth granted to them a little before his Death Dated at Avignion (b) Wood Antiq. A. fol. 48. b. and in Harus de Privilegiis fol. 4. a. the 5th Kalend of October the 12th of his Pontificate wherein he Confirms and Defends their Liberties and Immunities granted top them by Bishops Kings Noble-men and others A 2d was (c) A. D. 24. a. granted by the said Pope directed to the Bishops of London and Salisbury for the Conservation of the persons Liberties and Immunities of the University A 3d. Dated 11th November the same (d) Farus de privil 4. A. D. 23. b. Year Confirming their Immunities Liberties and Customs And a 4th Dated (e) F. F. 75. the same day and place in Confirmation of their Statutes and this was Confirmed after by the Bull of Sixtus the Fourth §. 4. The Bishop of Lincolns complaint to the Pope against the disobedience of the University But it seems that the Bishop of Lincoln Complained to Alexander the Fourth Successor to Innocent that the Clerks in the Castle of Oxford refused to obey the Authority his Predecessors had Enjoyed upon which the Pope by his Bull Dated * Lib. Taxation per Dominum Norwych c. Bulla 14. The Pope confirmes the Bishops claim at Naples the 5th of the Kalends of February 1 o. Pontificatus Decreed that the Bishop might Exercise his Authority notwithstanding any Letters to the contrary heretofore obtained from the Apostolic See or to be obtained unless full mention of the present Bull was Inserted And it (a) Chron. Osnil sub An. 1258. The Bishop Visits appears Anno 1258. 42 H. 3. That this Bishop Lexinton made an Inquisition into the Rights of the University and by his Delegates examined in the Chappel of the Infirmaries the Instruments and Charters of their Possessions and Rights appertaining to the Church of Osney concerning the Church of St. Greg. Situated in the Castle of Oxford This Bishop Lexinton persisted in this Claim of Jurisdiction Bishop of Lincoln changeth the Lectures and Statutes and complaint of it is made to the King. so that on the 17th of the Ides of March about Nine Masters of Arts came to St. Albans where they made their complaint before the King in the Chappel of St. Oswin against the Bishop of Lincoln (b) Venerunt ad St. Alban quidum Magistri Oxoniae Circiter 9 Artistae qui querula voce coram Rege Reposuerunt querimoniam de Episcopo Lincolniensi qui contra Statuta Universitatis Antiqua Approbata nitebatur Libertates Scholarium enervare Statutus est dies responsionis ad instans Magnum Parliamentum Mat. Paris ad An. 1257. that he endeavored to enervate the Liberties of the Scholars against the Ancient and approved Statutes of the University and a Day for Answering was appointed at the Great parliament that the Reasons of both Parties being heard they might be appeased It appears not how the matter was determined yet it is manifest that they had resort to the Kings Authority in the matter and his referring it to the Parliament is no more then as in Arduous Causes the Kings refering a matter to his Supreme Court of Judicature the House of Lords which give the Kings Judgment and not as Mr. Pryn mistakingly or willfully applys all such things to the Sovereign power of the two Houses Tho' the King Anno 1257.41 H. 3. composed the business yet the Bishop kept his Official there that * Annales Me. Bustonenses Ms when any Statutes were made by the Chancellor and University he might see that the Bishops Authority was not Infringed as we find that David Arch-Deacon of Derby Canon of Lincoln did that Year the 4th of the Nones of June enter his Protest that they should do nothing in prejudice of the Bishop or his Successor ☞ Here we cannot but observe that the Statutes are changed by a Visitor and how the Members of the University finding themselves aggrieved by their Ordinary Visitor have recourse to the King as their Supreme Judge and Visitor Yet the Bishop of Lincoln as Diocesan Insists on his Privilege to see that no Statutes were made without his Approbation all which power our Kings now have §. 5. The Arch-Bishop of Canterbury Visits The first Visitation I find of the University by the Arch-Bishop of Canterbury was (a) Wood Antiq. Oxon. lib. 1. fol. 205. In hac Visitatione Academias ipsas Metropolitica Authoritate ingressus est M. Parker Antiq. Eccleae Brit. Fol. 198. Anno 1278. 6 E. ◠At which time Stephen Bishop of Paris Visited that University But this seems designed principally to Refute and Condemn some Errors crept into the Schools which in Theology philosophy and Logic he disputed against and with the consent of the Masters Regents and non Regents he Exploded and Condemned with this Censure viz. That if he were a Master of Art that Defended them he he should be Degraded and if a Bachelor of Art should be uncapable of any other Degree The Arch-Bishop appoints Statutes to Degrade and Incapacitate Students from taking Degrees and should be Expelled From hence we may find some Footsteps of a Visitors Incapacitating some besides Degrading and Expelling §. 6. Anno 1281. 9 E. 1. The Chancellor of the University having assumed some Ecclesiastical * Harus de privil Oxon. fol. 13. b. Oliver Sutton Bishop of Lincoln Questions the Chancellors Authority Rights and used to take Cognizance of the faults of Clerks that belonged to the Court Christian Oliver Sutton being made Bishop of Lincoln exacted an
deputed by him with power to determin the matters But these were received so sharply at Oxford that they could not exercise their Visitatorial Authority till the King sent his Breve or Writ (c) Chartophyl Civit. Oxon. to the Chancellor and Major to assist the Visitors in executing their Office by which at present things were quieted But it broke out again till by a second Visitation or Peculiar Mandate sent to the College Mr. Henry Whylefield the Provost Mr. William French Robert Lydeford and John Trevis Fellows were Expelled These by private consultation among themselves took away the Charters Books the Jewels Mony and other Goods of the College till the Chancellor and Proctors upon the Kings (a) Iussu Regio 13. R. 2. M. 40. Mandate caused them to be restored by Whitefield the Expelled to Thomas Carvel the new Provost But still all was not quiet those Expelled especially making disturbances therefore on the Seventh of February the King issued out his (b) Pat. 3 R. 2. par 2. M. 12. Letters Patents to Mr. Berton the Chancellor John Sherburn Thomas Swindon and Robert Bixy under the Great Seal to examin and determin the matters By this it appears What is to be Inferred from this that either by the Local Visitor or the Kings absolute Authority the Provost and several Fellows were Expelled That the King Commissionated some under the Broad Seal to hear and determin the matters which no doubt was by some one way and demonstrates the Kings absolute power in Expelling and by Commission determining matters in the University without other Visitations and we may note when ever the Visitations were performed by the Ordinary Visitors viz. The Arch-Bishop or Bishops it was about some things relating to their Function settled by the Canons and allowed by the Laws of the Land but still the last resort was made to the King besides his first giving leave as in many particulars is very clear §. 13. Arch-Bishop Courtneys Visitation Anno 1389. William Courtney Arch-Bishop of Canterbury Visited his Province and the Scholars were troubled (c) Walsingham Hist Angliaead Annu 1389. fol. 341. for that they had never seen nor heard such a Mandate of Visitation that both Exempted and not Exempted should be Visited Therefore the Black Monks urged their (d) These were the Black Monks of Gloucester College Exemptions and applyed themselves to the Abbots of Westminster and St. Albans who advissed them not to yield to the Arch-Bishops Visitation Wood Antiq. Oxon lib. 1. fol. 196 a. and Letters were sent from the Abbot of st Albans to the Arch-Bishop to desire him to desist to which the Arch Bishop replyed that saving the Right of his Church he would willingly do what he could for his special friend the Abbot but faid he could not any ways desist saving that Right from Visiting the Prior and Black Monks Studying in Oxford even tho' the (a) Etiamsi Rex Angliae pro praedictis Instaret King should intreat for them because they were a College and had a Prior and Chapter and lived in Common The Monk sent from St. Albans said they were not a College Non fuit ibi Collegium cum ibi morantes sigillum Commune non habent nec locus sit donatus Terr poralibus Spiritualibus c. for that they had not a Common Seal or were Endowed with Spiritualities or Temporalities and wanted many other things which were required to Constitute a College The Arch-Bishop Answered therefore he would Visit to enquire how it was with them Then the Monk reply'd if he came to Visit them he had no Jurisdiction to enquire of such things c By this appears what are of the Essence of a College and that in this Age Monks of several Orders had their Schools here â—nd yet were reckoned as Members of the Convent they were sent from rather than of any Incorporate Society of the University but only to Visit such as were not Exempt for those that were Exempt were Visitable in their proper Monasteries by the Arch-Bishop and so not to be Visited a second time To this Allegation the Arch-Bishop Answered that they were not Visited by him in their proper Monasteries for the Abbots excused them for that they were in the Schools therefore he would Visit them there And then a Monk and Lawyer who came with the Arch-Bishop willing to enlarge the Arch-Bishops Jurisdiction said that the Arch-Bishop might Visit even the Exempts (d) Exempti ibi ita sunt privilegiati quod ubicunque fuerint non sunt sub Jurisdistione alicujus Episcopi nisi Romani Pontificis vel Legati a Latere missi as long as they were in the Schools for that they were under the Jurisdiction of the Chancellor to this the Monk of St. Albans replyed that the Exempt are so privileged that wherever they were they might not be under the Jurisdiction of any Bishop unless of the Bishop of Rome or his Legate a Latere sent hither To which the Arch-Bishop said if it were so he neither could nor would molest them in any thing A while after Simon de Southerey presented himself to the Arch-Bishop in the Church of St. Fridiswyde whith all the Monks Exempt and not Exempt and the Arch-Bishop asked them if they submitted to his Visitation and it was answered that they came to obtain (a) Ad Captandam ejus Benevolentiam advenerunt his favor and the Arch Bishop told them that he excused them and never intended to burthen them so there was an end of this matter By all which it appears that the Dispute was about the privilege of Exemption But that the power of Metropolitical Visitation was allowed and that power was by the then Laws and is now derivative from the King. SECT III. Who Visited the Vniversity of Oxford after the 13th of King Richard the Seconds time to the beginning of King Henry the 8ths Reign §. 1. The King redresseth certain grievences complained of by both Universities HOw far the King Interested himself in Ordering the Affairs of the University appears in what King Richard the Second did Anno 1390. 14 Regni of which I shall give a short account The Fryers Preachers or Dominicans were complained of by both the Universities that several of them Students there declined the Examination of the University in order to the taking their Degrees and going beyond Sea obtained the Titles of Masters not without Infamy to the Brothers or Fryers and the great loss of the University Thereupon the King writes to the Prior Provincial and all the Priors in England ☞ That since the order (a) Ordo praedictus Institutus sit firmatus ad resistendum destruendum Haereses Errores contra legem divinam fidem Catholicam indies emergentes c. Claus 14. Ric. 2. M. 32. was Instituted to resist and destroy Heresies and Errors against the Divine Law and the Catholic Faith dayly springing up
c. To effect which mature knowledge honesty of life and the Doctrin of Divinity was necessarily required of which qualifications in former time the Fryers of that Order used to be examined and approved as well among themselves as in both the Universities But now he understood that some of the said Fraternity little instructed or approved in the Divine Law but Apostates notably vitious c. have gone beyond Sea and there cunningly and fraudulently begged obtained to themselves the Degrees of Masters and other Exempting Graces That when they return they might be reputed and cherished among their Fraternity with the Honor of that faculty to the dammage and hurt of the Catholic Faith to the prejudice and scandal of the King and his Realm and mostly to the disgrace of the said Order Therefore the King not willing in any manner to Tollerate the premisses so prejudicial and damageable to the English Church the King and his people and in process of time redounding in all likelyhood to the subversion of the Order enjoyns (a) Vobis omnibus singulis subforisfacturd omnium quae nobis foris facere potiritis injungimus mandamus Ide Ibid. and Commands all and every the Provincial and Priors under the forfeiture of all things which they could forfeit streightly nevertheless as much as he could prohibiting them that they in no manner admit such to the Liberty Honors and favors which the Doctors in Divinity regularly made according to the Examination aforesaid ought to have nor that they Treat any such with the Honors Favors or Liberties c. but that they have no consideration to such Impetrations Provisions or Exemptions §. 2. What is to be observed from hence ☞ What is worthy noting from hence is that altho' this Order had many privileges and Exemptions from Visitations and subjection Yet we find the King under the penalty of the forfeiture of all they could enjoyns them to obey what he commands and tho' it is not to be doubted that some of these Men might receive Degrees in some Universities who had from the Pope privileges that whoever received Degrees there should enjoy all the Liberties Honors c. which those did of our own Universities yet the King dis allows all so that by this one Instance it appears that the Kings of England allowed or dis allowed at their pleasure Immunities Exemptions privileges c. which were granted by the Popes Emperors or Forreign Kings for from such those privileges to Graduates only could be granted From which it is manifest that the King challenged a power of being Supreme Judge of what Exemptions should be allowed in his Universities and by consequence was always to be reputed the Supreme Visitor Hereby also will appear the true Reason of the Application to the King in the contests I shall presently give an account of which happened betwixt the Arch-Bishop of Canterbury and the University about his Visitation which by the Popes Bulls they were Exempted from §. 3. ☞ Anno 1395. 19 Ric. 2. The Lollards that is the favorers of Wickliffs Doctrin greatly increased sowing as the Writers of that time and others Style it Tares (a) Zizanium inter Triticum proseminantes among the Wheat choaking the Catholic Doctrin Upon which many complaints are made to the King and especially by the Bishops by which being moved he Writ to the Chancellor (b) Cl. 19 R. 2. M. 24. Commanding him as the words are utterly to Root out those wickedest (c) Ut nequissimos fidel Eversores overturners of the Faith and at the same time Writ to the Chancellor and Doctors by his Mandare enjoyning them to examin the Book of Wickliff called the Triologâ—s The Kings Mandate to extirpate what then was reputed Heresic and to send the heads of the Errors therein contained under the Seal of the University into the Chancery and it is noted forther that the Univelsity submitted it self to the King promising to stand to his Arbitrament for which purpose they sent an Instrument by their Chancellor Thomas Hindyman Thomas Merk Thomas Crawley c. to the King. By which it appears manifestly Inferences from hence that the King by his absolute power Commanded matters to be ordered in the University and that it submitted to his determination notwithstanding other Metropolitical Visitations which as such must be looked upon as done by the power of the King Ecclesiastical Laws as the most Learned of the Long Robe do maintain In the Year 1396. The 20th of Richard the Second a great contest was beowixt the Doctors of Divinity Masters of Arts and the Civil and Canon Lawyers The whole process of which may be seen in my (a) Wood Antiq. Oxon lib. 1. fol. 197. New contests betwixt Graduates and Lawyers Author the summ of which was that several Statutes were made to their prejudice and that the Chancellor pretended Bulls of Exemption from the Archiepiscopal Visitation of the University The conclusion of all which was that as King Edward the Third had Anno 1376. 50 Regni appointed Five Bishops to enquire into the matter and order it so the (b) Pat. 20 R. 2. part 3. M. 26. King the next April by his Royal Authority confirms their doom By which it still appears how the last resort was made to the King which will yet more fully be cleared by what I shall now relate as to the Visitation of Arch-Bishop Arundel under King Richard the Second and King Henry the Fourth The reason why the Author enlargeth upon the Visitations by Arch-Bishop Arundel which because they have been so much insisted upon as pregnant proofs even in King Charles the Firsts time that the Arch-Bishop of Canterbury by Right is the Visitor of the Universities I think it necessary to take notice of that I may shew the grounds upon which those Kings allowed the Arch Bishops Visitation and how it no ways prejudices the Kings Visitatorial power § 4. the Arch-Bishop Arundel Visiting by the Kings leave commands the University to obey ☞ Anno 1397. 21 Ric. 2. The Arch-Bishop of Canterbury determining to Visit for the suppressing of Heresies as then they were called and composing affairs of the University and understanding that the Chancellor and Proctors supported by the Popes Bull of Exemption intended to obstruct it He signifies this to the King. Here I hope is a craving the Kings leave and and aid what doth the King in this case He presently Writes to the Chancellor and Scholars and forbids (c) Literis praecepit ut in juris Regii detrimentum Haereticorum vero Lollardorum patrocinium Archiepiscopali sese aut Episcopali Authoritati nequaquam â—ubtraherent them that to the dammage of his Kingly Right or Patronage of Heretics and Lollards they no ways withdraw themselves from Archiepiscopal or Episcopal Jurisdiction Id. pat 21 R. 2. part 3. M. 32. or produce any Bull of the Pope to that purpose But that they
renounce the said Bull before the Kings Messenger and testifie such their Renunciation by public Instruments I know not wherein the King could discover his power more plainly than in Abrogating the very Bulls of Popes surely he that can do this may Suspend a Statute I know it will be here replyed that the King upon the Controversies betwixt the Arch-Bishop and the University about the Right of Visitation declared for the Arch-Bishop To which at present I shall only reply that the King here was not as a party but as a Judge in a Controversie depending declaring his own pleasure which surely manifests his Supreme Jurisdiction and that appears from the very words of the Parliament (a) Cum quaedam dessentiones lites debatae nuper motae fuerunt inter c. super usu excercitio Jurisdictionis Visitationis dictae Universitatis c. nos volentes hujusmodi dissentiones c. prout Regiae convenit Majestati attentis damnis periculis quae inde versimiliter evenire possent sedare pacificare ac pacem quietem tranquillitatem inter partes praedictas pro viribus confovere c. Pat. 20 R. 2. part 3. M. 9. that whereas some dissentions strifes and debates of late were moved and risen betwixt the Arch-Bishop c. on the one part and the Chancellor of the University of Oxford and several others of the said University on the other part about the use and exercise of Jurisdiction and Visitation the Arch-Bishop claiming it c. as appertaining to his Church of Canterbury c. The King willing to quiet and pacifie the said Dissentions Suites and Debates and to preserve peace quiet and tranquility amongst the parties as it agrees with his Kingly Majesty attending the damage and danger which in probability might happen thereupon considering that Jure Communi the Visitation belonged to the Arch-Bishop c. therefore determins it for him Surely Jus Commune must here be taken as that by Canon Law Common Right or by our Common Law of England this appertained to the Arch-Bishop of Canterbury and then it can be understood no otherways then that virtute officii he might Visit correct and reform all within his Diocess and that Exemptions were breaches of that Common Right and whatever he did quatenus Arch-Bishop or as Legâ—us natus he did by Authority from the King or the Pope and from either of which soever he had them or by the Canons yet none of these can deprive a more Soveraign power from visiting by it's self or it's delegates and the last clause (a) Salvis nobis Haeredibus nostris onmibus aliis quibus in Universitate praeaicta nos progenitores nostri-uti consue vimus temporibus retroactis Id. Pat. of the Patent is therefore to be observed heedfully which is saving to our selves and our Heirs all other Rights or Prerogatives which we and our Progenitors in by past times have been wont to use in the said Universities This further appears if we credit Mr. Woods note upon it that this did not touch the Popes Exemption for if not that it much less effected the Kings Prerogative in general for tho' one King by his Charter may yield it yet he cannot in prejudice to his Successor make it binding to him to which we may add what he further saith that whatever was done it is certain that that Visitation did not then succeed Before I leave this head I must desire the Reader to consider that the Arguments of those who opposed the Exemption were that this Immunity granted by the Pope was not only to the prejudice and grievance of the Metropolitan and Ordinary but likewise to the whole University and was rather a servitude then liberty to them for without that if they had been oppressed by their Chancellor or Vice-Chancellor they might have been redressed by Appeals to the Arch-Bishop but now being reduced under the power of one they were subject to perpetual servitude §. 5. The Arch-Bishops Visitation resisted ☞ Anno 1411. Thomas Arundel the Arch-Bishop intending to Visit the University sent his Letters of Citation (a) Harus in memorabilibus fol. 106. b. to the Chancellor Doctors Masters and Scholars to be ready against his coming and was received by the Chancellor and Proctors and a great conflux of the University and the Chancellor Richard (b) Dum nititur visitare Universitatem Oxoniarum Repulsam passus est Walsing Ypodegma neust ad Ann. 1411. The Kings Authority Courtney told him that if he came as a Guest he was most Welcome but if he came as a Visitor the University was long since by the Popes Bull freed from Archiepiscopal and Episcopal Visitation at which the Arch-Bishop was much displeased and after a Day or two stay he went away and sent the King an account by Letter so the King Commanded (c) Fragmenta veteris Registri Universitatis Oxon Bib. Cotton sub faustina c. 7. the Heads of the University to appear the Day after our Ladies Day to give an account of the Popes Bull which they pretended What followed upon it appears by the Chancellor and Proctors laying down their Offices at Lambeth The Chancellors and Proctors quit their places The King appoints the Senior Theologue to Officiate in the Chancellors stead whether voluntarily or compelled appears not And the King writes to the University that the Cancellarius Natus or Senior of the Theologues should exercise the Office till there should be an Election of another in his place and Commanded that the Papal Exemption should be brought to him Upon this there was such a sadness surprized the Students that the Lectures ceased and they were dispersed The Students leave the University and desist from Lectures and an end seemed to be put to the University according to a Statute made to that purpose that they should use that Remedy if any invaded their Liberties and Privileges Which being imparted to the King he Writ first (d) C. fol. 31. a. displeasedly at the Fact of the Heads and in a second Letter (a) C. fol. 55. b. exhorts them in softer Language to revoke their Lectures and after a while lest the University should receive damage The King gives leave to choose Chancellors c. about October the King Commanded that such should be chosen as might Execute the Offices of those removed for the remainder of the (b) Frag. vet Regist supra Year and the University chose the last Chancellor and Proctors which being certified to the King he took it very ill The King displeased with the Election After which Law Suites being Commenced betwixt the Arch-Bishop and University The King hears the cause and determins for the Arch-Bishop it was agreed that all parties should stand to the Kings Judgment and about the middle of December the King heard it and he appointed that the Sentence (c) Ibid. which King Richard the Second had given should stand
Dedimus quoque vobis Authoritatem Collegium Medicinae in aliquo idoneo loco dictae Universitatis Constituendi ac Deputandi aliquod unum Collegium illi Studio quodcunque vobis videbitur To Depute a College for Physicians eos Socios in illo Collegio sic Medicinae deputandos qui ad Medicinam Studium suum velint convertere si ad hoc per vos idonei Judicabuntur Socios Collegii nostri Medicinae faciendos Eos vero qui nolount sequi illam Artem vel ad eandem minus idonei judicabuntur in alia Collegia transferendos vel pensiones Magistro sive Sociis illius Collegii assignandas § 8 Command to all Sheriffs Majors Bailiffs and other Officers and Subjects to assist the Commissioners c. in the Execution of the premises Mandantes omnibus singulis Vice-comitibus Majoribus ac Ballivis ac quibuscunque aliis Officiariis Ministris subditis nostris quatenus vobis cuilibet vestrum in circa Praemissorum Executionem effectualiter assistent auxilientur suffragentur Aliquo Actu Statuto Ordinatione Provisione Proclamatione Non obstante of any Act Statute Ordinance Provision Proclamation or Restriction whatever to the contrary sive Restrictione inde in Contrarium factis Editis Ordinatis Proclamatis sive Provisis aut aliqua alia re Causâ vel Materia quacunque in aliquo non obstante In cujus rei Testimonum c. Teste Rege apud Westmonasterium Octavo Die Maii Anno Regni Edvardi Sexti Tertio Per ipsum Regem c. § 9 In this Commission these particulars may be observed The Authority of the Commission First that in the Preamble the King lays as a Foundation that he is the Supreme Head under Christ in Earth of the Church of England and Ireland so that by vertue of that Supremacy and by his Absolute and Supreme Authority which in other places of the Commission are expressed he appoints this Visitation and the persons within Named his Delegates and Commissioners which of it self if there were not most numerous other Presidents and the necessity of Executing Justice which the King cannot personally do in all places is sufficient to Confute that Ignorant Assertion of a Philonomus that the King cannot Commissionate others to Execute his Authority Secondly What plà ces are to be Visited As to the Subject Matter of the Visitation it is for the Colleges of Windsor and Winchester and the Dioecess of Oxford and the University and all the Colleges of the same and by parity of Reason such Commissions may be Extended to any Lay or Religious Persons Members of Societies and Corporations within the Kingdoms of England and Ireland that are of the same kinds of Foundation Thirdly The persons to be Visited As to the persons the University is to be Visited in the Head and Members so taht the Vice-Chancellor and all the Heads of Houses as also Fellows Scholars Students and all that bear any Office and all persons residing in the Colleges c. are within the purlieu of this Visitation Fourthly The matters to be enquired after The matters to be ensquired of an Regulated are the State of the Colleges which word is very Comprehensive as in several particulars are after branched out Also the Study Life Manners Conversation and Qualification of the persons And this Enquiry is to be made by all the Methods or Ways that the Commissioners can best effect it by Fifthly The nature of the Crimes to be punished The presons punishable are reckoned up the Ciriminals and Delinquents words of a large Extent as Comprehending Offenders against the Laws of God and the King to these are added the Idle and Slothful Students and generally all who do any thing blame-worthy Sixthly The punishments Deprivation and Sequestration The punishments the Commissioners may inflict are the Deprivation of their places as Masterships Presidentships c. their Fellowships and other Offices and the Sequestration of their Stipends Profits and Emoluments whatsoever the good ends for which such punishments are inflicted are expressed to compell them to more upright manners of living Seventhly Contumaces Rebelles We may also note the special punishment of such as are contumacious and obstinate or Rebellious as it is expressed These of whatever state or condition they be are to be compelled to obedience by Ecclesiastical Censures as also by Imprisonment Punishment by Ecclesiastical censures imprisonments c. Recognizances and all other remedies the Laws of the Kingdom appoint Eighthly Changing of Charities to other uses than at first designed Then follows a power to Convert the Monies Yearly Expended for Exequies and Feasts that is such as had been given for Obits Diriges c. to the maintainance of public or private Lectures or other more convenient Forms of Uses Ninthly The Monies also to be dispended by the Founders appointment upon the Choristers Singing Men and other matters relating to the Dayly Ecclesiastical Service shall be Converted to the Teaching the Grammar Youth the Commons of the Fellows or Scholars to the Learning of Philosophy or other Arts c. Tenthly Power of Expelling and substituting others in their places To Expel and Amove all Masters Provosts Presidents Fellows or Scholars whatsoever that are not worthy of their Offices or not proficients If the Commissioners could do it by colour of the breach of the Statutes of the College or Judged it to be for the benefit of the Common-weal or of Learning and power to prefer and substitute another and others in the place of the person removed and to admit the resignations of whatever Provostship Mastership Presidentship Guardianship Fellowships or Office in the said places and to Vacate or declare void the same and to substitute others in their places Eleventhly To unite Golleges and translate Students of one faculty from one College to another Then they have power to unite two or more Colleges into one whether of the Kings or any others Foundation if it appear to them to be for the profit of the University and this by the Kings Absolute Authority As likewise to Translate Students of one faculty from one College to another Twelfthly Altering form of Disputations Statutes c. Also the power of altering Forms of Disputations conferring Degrees and of Divine Offices to Introduce and Assign Injunctions and Statutes and wholly to Annihilate Statutes Ordinances Customs and Compositions contrary to them and this as to the Commissioners shall seem fit for the Regulating Reformation and good order c. of the University ☞ Thirteenthly Note this Yea to exercise all and singular other things concerning Visitation Inquisition and Reformation which may be necessary or in any wise fit to be done altho' not expressed yea tho' the power might require special words Lastly It is to be considered The Kings dispensing power asserted by this Commission that all these powers are given them notwithstanding
in Queen Maries time for Religion and Abolished most of the Statutes made by Cardinal Pool and restored those of King Edward the Sixth To omit other things in the Visitation Earl of Arundel Chancellor quits his Office. besides that the Earl of Arundel did quit the Chancellorship these following Heads of Colleges or principal Members were removed and some of them Imprisoned §. 3. The Heads of Colleges and others Expelled of Christ-Church As Dr. Richard Marshal Dean of Christ-Church for denying to own the Authority of the Visitors was not only Expelled but sent Prisoner to London Also Dr. William Tresham Canon of the same for denying the Oath of Supremacy was Expelled as also Dr. Richard Smith Canon there Of Merton College Dr. Thomas Raynolds Warden of Merton College was by the Queen then at Hampton Court deprived of his Wardenship 4 o. September and three Days after the Sentence was declared by three of the Commissioners and after a short time he Died in Prison Thomas Coveney President of Magdalen College was Expelled Of St. Mary Magdalen College for that he was not entred into Orders and Dr. William Cheadsey President of Corpus Christi College was Expelled from that and his Canonship of Christ Church and Robert Banks who had been Ejected in Queen Maries Reign because he was Married was substituted in his place Also Dr. William Wright Of Baliol College Master or President of Baliol College was Expelled and Dr. Babington substituted in his place Mr. John Smith Provost of Oriel College was Ejected Of Oriel College tho' he had liberty to live in the House after but in the next Year he lost the Lady Margarets Lectureship Of Queens College and Mr. Hugh Hodgson Provost of Queens College two Years after either relinquished the place Of Trinity College or was Expelled Mr. Thomas Slythurst President of Trinity College was Expelled and Mr. Yeldard placed in his room Mr. Alexander Belsyre Master of St. Johns College and Canon of Christ-Church was also Expelled Fol. 283. a. St. Johns College and Mr. William Ely lately put in his place a little while after was Expelled so a few Years after Mr. William Marshal Principal of St. Albans Hall was forced to surrender and so Mr. William Alan Principal of St. Mary Hall as also George Ethridge Regius Greek Professor and James Dugdale Master of University College two Years after was Expelled by the Visitors and Thomas Key put in his place Besides these Heads of Colleges in New College Fol. 283. b. two Doctors and three Bachellors of Civil Law one Doctor of Physic one Bachellor of Divinity and fourteen Fellows were Expelled some removing to Religious Houses beyond the Sea and Mr. John Munden returning being discovered to Secretary Walsingham was Executed at Tyburn In St. Johns College seven Fellows were Expelled besides several others Imprisoned at Wisbich and many others not named Those that have a mind to see the Names of Great numbers of the rest Expelled from other Colleges Reg. G. G. fol. .26 Reg. I. fol. 198. 199. Reg. Coll. Magd. fol. 29. and suffering Death for returning into England may consult the Register I shall now give a short account of what Dr. Parker advised from Cambridge concerning the Visitation there §. 4. Paper Office Ecclesiastica 1550. to 1559. I find Two Letters from Dr. Mathew Parker afterwards Arch-Bishop to Sir William Cecyl then Secretary and Chancellor of the University of Cambridge Dated 1 o. March and Endorsed on the back Dr. Parker 1 o. Martii 1559. Among other Expressions he hath these words The Colleges needed a Visitation that Queen Mary immediately upon her quyet gave out Authority to the Chancellor Bishop Gardiner he forthwith sent his Chaplain Watson with Instruction to every College and as then I could gather to report to him in what State every College stood and further peradventure upon cause to have the Masters and others assured de coram sistendo Interim bene gerendo till further Order By this and some other Letters I find to and from Sir William Cecyl who was the great Minister of State in Queen Elizabeths time I observe that what was done in Oxford by the Visitors was likewise pursued in Cambridge and that the Masters Governors and Fellows had a very hard time in the Reigns of King Edward the Sixth Queen Mary and Queen Elizabeth Conformableness to the Religion of the Prince being the Touch-stone and the prime Capacitating Qualification that secured Honors and Places in the Universities The other Letter is Dated March the 30th and Ticketed 30 Martii 1559. Dr. Parker to Mr. Secretary Which I shall Transcribe at length that the Reader may take notice of his way of Writing and the Dialect of that Age. Pleaseth yt your Honorables goodnes upon th' occasion of sending up to your Honor for the matter which Mr. Vice-Chancellor Wryteth of I thought it good to signifie to you that the matter which ye have Delegated to us is in hand with as good Expedition as we can make by reason of th' absence of some who were meet to be Commoned with Though some dout is made whether your Authority of Chancellorship extendeth to College Statutes for any beyond Lymitation conteyned in them so may they dout of your Delegatum Though Bishop Gardyner wold not so be restreyned in his doyings whether upon warrant of the Quenys Letters of Commission the Copy * * This I cannot find tho' I have searched diligently whereof I sent to you or by Authorytie of his Office I leave that to your Prudence to Expond Our Statutes and Charters Prescribe here to Officers that they must in Plees proceed summariè de plano since strepitu Judiciali that Scholars may be soner restored to their Bokes Yet here be Wytts which being thereto admitted w'd entangle matters extremis Juris apicibus that Controversies might be Infynyte and perpetual never to have an end but according to our old Ancyent Customys we shall procede to hearyng with cutting of all such superfluous and perplex Solemnyties of their Cavillations and so refer the matter to your understanding to be resolutely determyned as the last Clause of your Letter pretendeth to wil us And yff I shall perceyve any like Incydent to be signified to your Honorable wisdom I shall be bold in secretys to Wright it Less things borne bi parcyalyties might prevayle under your Authorytie not rightly instructed and to avoid som Stomake that ellys might be taken Without dout Sir th' Universitie is wonderfully decayed and if your Visitation entendyd be too stoutly Executed in some like sorts as hath been practised that wil I fear so much rustle the State thereof that it will be hardly recovered in Years and yet Authorytie must bridel willfull and stubborn Natures and hie time it is here I trust the prudence of the Visitors for good wil toward you wil diligently note how ye receyved the Universities after others
to Form of proceedings in Courts Ecclesiastical to determin differences in the Universities among the Society §. 10. In the Year 1582. In the Paper Office Bundel Eccl. Academica ab Anno 1580. to Anno 1589. 25 Eliz. I find a Letter Writ from Dr. William Fulk Vice-Chancellor of Cambridge to the Lord Treasurer Cecyl Endorsed Dr. Fulks Opinion that not only Gonvil and Cajus College but the other Colleges of Cambridge should by further Authority from the Queen be Visited and Reformed it is Dated the 10th of October Anno 1582. I shall Insert some of the expressions that the dis-quisitive Reader may know what was the Judgment of the Queens power then and the necessity of the Crowns having an absolute power over the Universities for Reforming matters agreeable to the good likeing of the Prince His words are According to your Lordships Letter I have consulted the Heads of several Colleges we are of Opinion that your Honor should do a Charitable Deed to procure a Commission from her Majesty to Reform the whole State and Statutes of that House viz. Gonvil and Cajus College of which some are meer Papistical newly made by Dr. Cajus appointing Mass and Dirige to be said for him some be Ambiguous and Imperfect as the Visitors also have Certified your Honor c. Furthermore for-as-much as the Reformation of one College is not sufficient where the whole Body of the University is out of Frame it is not mine Opinion only but also of others of Wisdom and great Experience of whom I may name Dr. Harvey for one The necessity by Visitation to alter Statutes altho' the University hath Authority to make Statutes that it were most expedient the same were Reformed in the whole and in divers Colleges specially by a General Commission or Visitation in which your Honor might have an Absolute and Principal Authority to supply the Imperfections of all Statutes both of the University and of sundry Colleges wherein the same is needful For so great is the multitude of Licenciousness and disordered persons which cannot be Bridled by our present Statutes that altho' the University hath Authority to make Statutes for the maintenance of good Order and quietness yet nothing can be Decreed by the greater part which will not consent to any thing which may restrain their disordered Licenciousness as was notably tryed within these two Years when your Honor gave in charge to the Heads of Colleges to see the Reformation for excess in Apparel who devised as well as they could but nothing to this day can be Decreed albeit the excess doth not diminish but dayly encrease c. The Clause about Apparel puts me in mind of the Regulation made in Oxford as to that particular some Years before which I shall here Insert that the Curious may note how unreasonable it would be to bind the Members of the Universities to the observing of all Statutes promiscuously if there were not a dispensing power both in the Sovereign and Senates of the University §. 11. Anno 1564. 6 Eliz. Wood Antiq. Oxon lib. 1. fol. 286. K. K. fol. 5. a. b. a. I find Statutes made like the Roman Sumptuary Laws whereby the Presidents Graduated Fellows and Scholars of the Societies and every one that had any Office or enjoyed Yearly Stipend or Ecclesiastic Benefice in any College or Hall should wear no Shirt larger than to be plaited at the Collar and Wrists the plates not exceeding half a Thumb breadth and should have no Embroidery of Gold or Silver That their Bands should not be turned back above a Thumb breadth broad none should wear Stockings but of plain Cloth close to the Leg neither Adorned with Buttons or Lace especially not with Silk none to wear Blew White or Yellow Doublets To which he adds out of the same Statutes that the University considered of the restoring mending and explaining the Statutes I hope all that Swore to the observing these Statutes would not have thought themselves Perjured if either the King or the Chancellor had dispensed with them or if any of them be unrepealed think not themselves in Conscience bound to observe them but that they may wear Silk Stockings and larger Bands if not Cravats and I doubt not but there are several obsolete Statutes that many who Swear Implicitly to observe the Statutes in general never heard of It seems either the former Disputes about Gonvil and Cajus College were continued or some new ones were arisen as will appear by the Extract of the following Letter If there be no mistake in the Copyer of the Date that it should have been 1582. Anno 1592. Paper Office Ecclesiastica Academ Anno 1590. to 1599. 34 Eliz. Dr. Perne Vice-Chancellor of Cambridge Writes thus to my Lord Treasurer Burlegh about the grief of the University for his Lordships Offence at the dealing touching Gonvil and Cajus College and hath these expressions I send your Lordship a Copy of the Privileges of the University c. The weakest part therein in mine Opinion is the want of the Confirmation of the Spiritual Jurisdiction to the Chancellor of the University for that we do now exercise was first granted by the Bishop of Rome and Confirmed by prescription In this I observe only that the Vice-Chancellor hath recourse to the Queens Power to have the Ecclesiastical Jurisdiction Granted to the University owning they had the like from the Pope §. 12. I could add many things more relating to the University or private Colleges wherein the Kings power of Visiting by Commission is cleared but I shall hasten to a Conclusion of this Head and in the next place shew in one Instance how King Charles the First without the formality of a Visitation ordered such matters as he thought fit in the University of Oxford by a Letter directed to the Vice-Chancellor of the said University Dated at Woodstock the 26th of August 1631. as followeth TRusty and Well beloved We Greet you Well Paper Office Bundel Ecclesiastica Universitatis having at full Length and with good Delibration heard the Cause concerning the late Disorders and Disobediences to Government in that University of Oxford The ends for which the Universities are subject to the King. and being moved by the greatness of the Offence to punish some persons according to their several Demerits and to Order somethings for the more settled and constant Government in that Our University hereafter Our Will and Pleasure is The Kings pleasure ratified in a Convocation as in a Parliament of France That you forthwith upon Receipt hereof call a Convocation for performing and Registring those our Sentences and Decrees as followeth First That Three be Banished out of the University The Proctors to Resign their Offices in Convocation and Two others be chosen in their Rooms Secondly For the things which we think fit to settle presently in that Government they are that as to Sermons the Vice-Chancellor to have Copies upon Oath That
appoint Visitors and the giving this power to the King is Cumlative not Privative as appears 2 H. 7.6 B. 5 Coke 5 B. and it leaves a concurrent Jurisdiction as is clear in F. N. B. 21 C. and 51 B. and 80. which is sufficient to Answer the Objection of the Fellows of St. Mary Magdalen College that the Bishop of Winton being their Local Visitor if he were satisfied to confirm the Election they could not be adjudged faulty by any other Visitors Here cap. 7. sect 3. of which point I shall have occasion to Treat hereafter ☞ But to proceed (a) Idem Patricks Case Hill. 18 19 Car. 2. Keebles Reports fol. 164. 2d part Thirdly By 10 H. 7.18 and the Bishop of Winchesters Case the King may exempt any Ecclesiastical Corporation from Ordinary Visitation and consequently hath the power in himself ☞ Fourthly If there be no (b) Idem fol. 166. Visitor properly appointed by the Founder the Chancellor and Vice-Chancellor have the Government of any College who are the proper Officers of that distinct Common-wealth of Learning and they are Established or fortified in that by the Kings Letters Patents Fifthly Altho' King James the First (c) Id. fol. 168. 3 Regni gave the Chancellor of Cambridge power of Visiting Queens College there yet the King remains Visitor as Heir to King H. 6. Husband to Queen Margaret that Founded it as the Judge there Asserts but if it had been a private Founder the King shall not lose the Right of Visitor as Sovereign since the Licence for the Foundation is from the King of what private Foundation soever so if there were no Visitor appointed by the Charter of a Founder the Chancellor is Visitor and Superior to him is the King. Sixthly In the same Case it is laid down (d) Idem fo 169. Statutum de as Argument that there is a Visitor Temporal as the Founder and Ecclesiastical to examin correct and amend things done contrary to the Rules of their Order which were declared by the Canons of the Church whereof the Bishops were the Natural Visitors and it is plain that (e) Asportatis Religiosorum 35 E. 1. Anno 1307. cap. 2. no Abbot Prior Master Warden or any other Religious person of whatsoever condition State or Religion he was being under the Kings power or Jurisdiction should depart into any other Country for Visitation or upon any other color by that means to carry the Goods of their Monasteries or Houses out of the Kingdom It is also in the Argument laid down as the Reason why the claim was made in the time of King Richard 2d and the Act 13 H. 4. for the Arch-Bishop of Canterburies Visitation of the University of Oxford that it was only about matters of Faith by Reason of Heresie and Lollardism But in matters of breach of Statutes c. the Founder or Visitor Communi Jure had the right and tho' the King granted the power which the Founder had yet he never intended to grant away his own Supreme Authority thereby or could grant the Right of his Successors ☞ These matters I have noted in this Case that the Ingenuous Reader may know that what I have discoursed of in this Section is agreeable to the sentiments of the Reverend Judges an expression of (a) Judge Windham Patricks Case fol. 166. ut supra one of whom I find in these words Both Jurisdictions Lay and Spiritual are derived from the King as the Sun and Moon take light of God. I lay no stress upon any Analogy of the comparison further than that it thereby appears how fundamental a matter it is in our Laws that all exercise of Authority Discipline Government and external Oeconomy in Church and State are derived from the King as having a Creative and annihilating power in several things that depend solely upon his good pleasure which if any thing do in his whole Dominions it is in the disposal of matters of the Universities as I now shall make more evident in the following Chapter CHAP. VI. Concerning the Kings of Englands dispensing with the Statutes of the Universities by their Mandates SECT I. Concerning the Kings dispensing Power in General and in several particulars to the beginning of King Charles the Seconds Reign §. 1. Concerning the Kings dispensing power in General HAving given a large account of the Kings power in Visiting the Universities and in Abrogating old and making new Statutes by his absolute and Supreme Authority To clear the point yet more I shall shew by particular Instances wherein our Kings have dispensed with the Statutes of the Universities or particular Colleges For there can be no greater Argument of the Right and Prerogative of any power than the un-interrupted excercise and usage of the same Before I descend to particulars it may be expected that I should discourse something of the Kings dispensing power in General but the point being determined by the Judges and the Arguments for it being so generally known I shall be the shorter upon this head ☞ This power of dispensing seems to be a most necessary Prerogative that no Sovereign whether Ecclesiastical or Civil can want whence we find in a (a) Omnibus autem à nobis dictis Imperatoris excipiatur fortuna Cui ipsas Deus Leges subjecit Legem animatam committens hominibus Novel 105. circa finem Constitution of Justinian de Consulibus a reservation of that power which he thus expresseth from all these things which have been said by us Let the Emperors State be excepted whereunto God hath subjected the very Laws themselves sending him as a living Law to Men as it is Translated from the Greek Agreeable to which is what Aeneas Sylvius (a) Convenit Imperatori Juris Rigorem Aequitatis fraeno Temperari cui soli Inter aequitatem jusque interpositam interpretationem licet incumbit Inspicere de Ortu Authoribus Imperii observes that it is the part of the Emperor or Sovereign to attemper the Rigor of Law with the Bridle of Equity to whom alone it is lawful and a duty to see to the Interpretation which lyeth Interspersed betwixt Law and Equity since no Law can sufficiently Answer the varieties and un-thought on plottings of Mans nature and in Tract of time Laws at first just and equitable become unprofitable and harsh and this moderating of Laws saith he is so annexed to the Prince that by no Decree of Man it can be taken from him This is also agreeable to the Opinion of the most Learned Primate (b) Ushers power of Princes pag. 76. of Ireland whose Judgment most of our Judicious Protestant Divines have ever held in high esteem His words are positive Laws as other works of Men are imperfect and not free from dis-commodities if the strict observation of them should be pursued in every particular Therefore he saith it is fit that the Supreme Governor should not himself only be exempted from subjection
thereunto but also be so far Lord over them that when he seeth cause he may abate or totally remit the Penalty Incurred by the breach of them and dispense with others for not observing of them at all yea generally Suspend the Execution of them c. §. 2. Why the Author Treats not largely on this subject But I foresee it will be alleged that what is urged thus in General and in Theory is to be applyed to the Constitution of the Government of England otherwise it reacheth not the point in Question concerning the Kings power of dispensing with College Statutes To which I Answer first That the Kings power in dispensing with Penal Laws in General having by Solemn Judgment in the Kings Bench been determined and several Treatises published to clear the point of Law and there being so lately a * Jus Coronae Treatise Writ by a Judicious person wherein the Kings power in that matter is Learnedly discussed I may be excused from treating more particularly of that § 3. Observations on the 25 H. 8. C. 21. I shall therefore only note a few observables from the Statute of the 25 of King H. 8. Chapter the 21. Entituled in Kebles Edition 1684. An Act concerning Peter-pence and Dispensations but Originally Entituled otherwise as may be seen in the * 1 2 Phil. M. c. 8. sect 10. Act of Repeal in Queen Maries time and the * 1 Eliz. c. 1. sect 8. Act of restoring it in Queen Elizabeths time to which I shall add the explication of another Act 8 Eliz. Cap. 1. and some few other remarks upon that Head. The Foundation of this Act is grounded upon an Hypothesis The Statute 25 H. 8. c. 21. is founded upon the usage of a dispensing power that a dispensing power is needful in Government and altho' it be the constant Opinion and Judgment of the Courts of Law and all Lawyers that the principal intendment of that Act was to Abolish the Popes power and Authority in England in granting Licences Dispensations Faculties c. Yet from this Act many particulars may be observed I must refer the Reader to the Act it self which will shew not only the allowed usage of a dispensing power by the Popes and Prelates in matters of Ecclesiastical Cognizance by sufferance as the Act Styles it of our Kings but that the Original Right of such dispensations was in the King and so continues It is then First to be noted from the Act The Pope excercised a dispensing power that the Pope claimed by Usurpation as it is there Styled and persuaded the Subjects that he had a power to dispense with all Human Laws yea and Customs of all Realms in all Causes which he called Spiritual But the same Act saith that such claim of the Pope was in Derogation of the Kings Imperial Crown and Authority Royal contrary to Right and Reason The power excercised by the sufferance of the King and in derogation of the Royal Authority Therefore in the close of this Section it is added that because it is now in these days present seen that the State Dignity Superiority Reputation and Authority of the said Imperial Crown of this Realm by the long sufferance of the said unreasonable and un-charitable usurpations and exactions practised in the times of the Kings most Noble Progenitors is much and sore decayed and diminished c. Therefore remedy is provided c. From hence I think with submission Nota. it must be owned that if the Pope usurped this power in derogation of the Authority Royal then that power must be owned to be originally in the King otherwise in the Construction of the Act it could be no Usurpation §. 4. The Ecclesiastical power originally in the King according to this Act. ☞ Besides it 's the general Opinion of the greatest Lawyers of England that according to the Constitution of our Laws all Ecclesiastical power and Authority in England is Originally in the King so derived from him or if otherwise it is adjudged Usurpation and encroachment It being an undeniable Maxim That no person hath power or Jurisdiction in England but the King or what is derived from him and this power of the King cannot be disposed away nor abolished but by express words in an Act of Parliament Yea so Sacred are the Prerogatives of the Crown that tho' in some Cases the Kings of England have by Act of Parliament departed with their Prerogatives So the Statutes of the 23 H. 6. about Sheriffs and 31 H. 6. about Justices of Assize are frequently dispensed with Coke 12 Rep. 14. Hoberts Reports Colt and Glovers Case p. 146. and yielded not to dispense with the contrary by a non-obstante yet such Acts have been judged void So my Lord Hobert upon this very Statute saith that he holds it clear that tho' this Statute says that all Dispensations c. shall be granted in manner and form following and not otherwise yet the King is not thereby restrained The Kings prerogative not restrained by Acts of Parliament on several Cases but his power remains full and perfect as before and he may still grant them as King for all Acts of Justice and Grace flow from him as 4 Eliz. Dyer 211. The Commission of Tryal of Pyracy upon the Statute of 28 H. 8. cap. 53. is good tho' the Chancellor do not nominate the Commissioners as that Statute appoints yet it is a new Law and Mich. 5. and 6 Eliz. Dyer 225. the Queen made Sheriffs without the Judges notwithstanding the Statute of 9 E. 2. and Mich. 13. and 14 Eliz. Dyer 303. The Office of Aulnage granted by the Queen without the Bill of the Treasurer is good with a non-obstante against the Statute 31 H. 6. cap. 5. For these Statutes and the like saith the Reverend Judge were made to put things in Ordinary Form and to ease that Sovereign of Labor but not to deprive him of Power He further adds that notwithstanding the excercise of the Popes Authority yet the Crown always kept a Possession of it's Natural power of Dispensations in Spiratualibus as 11 H. 4. so to retain Benefices with Bishoprics and 11 H. 7. to have double Benefices I might add to these to Reservation in the Statute 2 R. 1 Hen. 4. cap. 6. 2. c. 4. saving to the King his Regality to be found in the Parliament Roll in the Kings Confirmation of Liberties which Sir Ed. Coke 4. Instit 51. complain of for being un-printed as also of King Henry the 4th that he will by the Assent of the Lords Spiritual and Temporal aforesaid and at the request of the said Commons be Counselled by the Wise Men of his Council in things touching the Estate of him and of his Realm saving always his liberty that is his Prerogative for that is properly the King Liberty §. 5. Where to find Arguments for the dispensing power I shall not trouble the Reader with
the many Authorities might be brought to prove this more particularly pa. 129. to 137. here the curious may find several Collected by the Author of the Church of England's Behavior under a Roman Catholic King to which may be added the Act declaring the making and Consecrating of the Arch-Bishops and Bishops of this Realm to be good lawful and perfect The ground of which Statute was some Mens questioning whether the same were duly and orderly done according to Law or not The Act lays this for a Foundation Some Paragraphs in the Act 8 Eliz. c. 1. explained 26 H. 8.1 That King Henry the 8th was justly and rightly re-cognized and acknowledged to have the Supreme Power Jurisdiction Order Rule and Authority over all the Estate Ecclesiastical of the Realm and after Recites how the Kings and Queens of this Realm had full power and Authority by Letters Patents c. from time to time to Assign Name and Authorize such person or persons as they shall think meet and convenient to excercise use occupy and execute c. all manner of Jurisdictions Privileges Preheminences and Authorities in any wise touching or concerning Spiritual or Ecclesiastical power or Jurisdiction within this Realm c. Then follows That the Queen being lawfully Invested in the Imperial Crown of this Realm c. and having in her Majesties Order and disposition all the said Jurisdictions Powers and Authorities over the State Ecclesiastical and Temporal The Queens power in matters Ecclesiastical Supreme and absolute c. hath by her Supreme Authority at divers times sithence the beginning of her Reign caus'd divers and sundry grave and well Learned Men to be duly Elected Made and Consecrated Arch-Bishops and Bishops c. and after Fellows which is to be noted that in her Letters Patents for the same she hath not only used such words and Sentences as were accustomed to be used by King Henry the 8th and King Edw. the 6th in their Letters Patents made for such Causes but also hath used and put into her Letters Patents divers other general words and Sentences whereby her Highness by her Supreme Power and Authority hath dispensed with all Causes or doubts of any Imperfection or dis-ability that can or may in any wise be objected against the same c. so that to all those that will well consider of the effect and true intent of the said Laws and Statutes and the Supreme and absolute Authority of the Queens Highness and which she by her Majesties said Letters Patents hath used and put in Ure c. it is and may be very evident and apparent that no cause of simple ambiguity or doubt can or may justly be objected From hence it is easie to infer Considerable Inferences resulting from this Statute that there is in the Crown such a Supreme and absolute power in Ecclesiastical matters as the King may dispense with Acts of Parliament even in such a concern as Consecration Confirmation or Investing of any person c. Elected to the Office or Dignity of any Arch-Bishop or Bishop within this Realm for if there had been no variation by the Queens Letters Patents from the Form and Methods in the Acts of King * 25 H. 8. c. 20.5 6 E. 6. c. 16. sect 3. u. 4. Hen. the 8th or Edw. the 6th or that of Queen Elizabeth 1 o. Cap. 2. there had been no need of Inserting general words or dispensations in the Queens Letters Patents This Note Answers all that can be alleged concerning Mr. Farmers Incapacity Hence may be noted if the Queen could by her Supreme power and Authority thus dispense with dis-ability in Bishops much more may the King with dis-abilities occasioned by College Statutes which at pleasure he can alter and abolish But to return to the 25th of H. 8. Observations upon this Statute by Judge Hoberts Reports fol. 156. The power granted to the Arch-Bishop by the Act is in Ordinary matters such as usually the Pope or Prelates of the Realm dispensed with and in un-wonted Cases also which it seems by the Letter of the Act to be of vast extent so that my Lord Hobert saith that tho' it seems to give power over all Dispensations granted from Rome wonted and un-wonted and all dispensations generally Yet it must have construction such as were allowable and allowed by the Laws and Practice of this Realm for else it should make our Yoke heavier than before Yet I cannot conceive but the power may be extended further than the ordinary power the Popes or Prelates practised See the Statute sect 17.18 where greater power seems to be implyed worthy consideration otherwise there needed not to have been such provision made that in un-wonted Cases the King or Council should allow them and if the Arch-Bishop refused the King might appoint two Prelates or other persons to grant them and it is probable that this Act may be construed to other purposes than a Faculty-Office only §. 6. Some further observations upon the Statute 25 H. 8. c. 21. But I shall conclude this matter with the following Observations upon this Statute which I take to be clear and undeniable First That the Pope did here by his Bulls and Breves grant Dispensations in various Cases Erected Constituted and Visited Colleges and Abrogated their Statutes as I have cleared in the foregoing Chapter Secondly That by this Act the Popes General or Universal power and Authority in England in all Cases was Totally abolished and taken away from him as to the excercise of it Thirdly That some part only of that general power and Authority which was excercised by the Pope was by that Act Vested Lodged and Delegated in and to the Arch-Bishop as the dispensing power for Marriages Bastardy c. and other matters there expressed which was properly to be called the Popes ordinary power and was so lodged and delegated in the Arch-Bishop to save the King from trouble in such ordinary and common Cases but not to take away the Kings ordinary power Supremacy Fourthly That the Popes extraordinary power which he exercised in England is as well abolished here by this and other Acts as his ordinary power But so much of the Popes Authority and power either ordinary or extraordinary as was at any time excercised by him here in England and which is not by the said Statute Vested and Delegated in the Arch-Bishop is by a necessary Construction revived and revested in the King and re-united to the Crown by all those Acts which declare the Kings * See. Stat. 24 H. 8. cap. 12.25 H. 8. c. 20. 21.26 H. 8. c. 1. c. 3. c. 13.31 H. 8. cap. 9.37 H. 8. c. 17.1 Eliz. c. 1. c. 4.8 Eliz. c. 1. Supremacy yea tho' the Statutes had been silent therein for that the Crown by this and other Acts is entirely remitted and restored to all it 's Ancient Jurisdictions and Prerogatives exercised by the Popes from whence our Law
and right Information probably the King would have rejected That the King might have a fit Testimony of the Person before he granted any such Mandate it pleased his Majesty to make this following Order Having taken into Our serious consideration how much it will conduce to the Glory of God Our own Honor and the welfare both of Our Church and the Universities that the most worthy and deserving Men be favored and preferred according to their Merit and being satisfied that the Lord Arch-Bishop of Canterbury and the Bishop of London are the most Competent Judges in such Cases We have thought fit and do hereby declare Our pleasure to be that neither of Our Principal Secretaries of State do at any time move Us on the behalf of any person whatsoever for any Preferment in the Church or any Favor or Dispensation in either of Our Universities without having first Communicated both the person and the thing by him desired unto the Lord Arch-Bishop of Canterbury and Bishop of London or one of them now and for the time being and without having their or one of their Opinions and Attestations in the Case and if at any time We be moved in like manner by any other person whatsoever Our pleasure is and We do hereby declare that neither of Our said Principal Secretaries shall present any Warrant unto Us for Our Royal Signature in such a Case until the said Arch-Bishop of Canterbury and Bishop of London or one of them have been acquainted therewith and have given therein his Opinion and Attestation as aforesaid By this we find that the King resolved to have perpetuated this yet it was Revoked as also a later Mandate as appears by the following Mandate And that this Our Declaratión may stand as a lasting and inviolable Rule for the future Our further Will and Pleasure is that the same be Entered not only in both the sides of Our said Principal Secretary of State but also in the Signet Office there to remain upon Record Given c. the 27th of February 1680 / 1. §. 12. The Re-calling of a Mandate after the former I Insert this out of the Series because I may joyn the Revocation of another Order as followeth Whereas We did by Our Warrant under Our Signet Manual bearing Date at Windsor the 12th of August 1681. Signifie and Declare Our pleasure to be that neither of Our Principal Secretaries of State should at any time move Us on the behalf of any Favor or Dispensation in either of Our Universities without having first Communicated both the person and the thing by him desired unto the Lord Arch-Bishop of Canterbury for the time being John Earl of Radnor George Earl of Hallifax Lawrence Viscount Hyde the Lord Bishop of London for the time being and Edward Seymour Esq and without having the Opinion and Attestation of them or any Four of them in the Case and that if at any time we should be Moved in like manner by any other person whatsoever Our pleasure was and We did thereby Declare that neither of Our Principal Secretaries of State should present any Warrant unto Us for Our Royal Signature in such a Case until the said Lord Arch-Bishop of Canterbury c. had been acquainted therewith and had given their Opinion and Attestation as aforesaid and whereas We have thought fit for special Causes Us thereto moving to Revoke and determin Our said Warrant We do accordingly hereby Revoke and determin the same and all the Authority thereby Granted and Our pleasure also is that Our Order be Entred not only in both the Offices of Our said Secretaries but also in the Signet-Office Dated the 20th of September 1684. By this mandate it appears that it is in the Kings power to Revoke his own Constitutions at his pleasure §. 13. I might add to these the King 's dispensing with Statutes of Cathedral Churches about Leases annexing the Revenues of Prebends to a Deanry ordering the Arch-Bishop of Canterbury to Grant Dispensations for a Bishop to hold Rectories in Commendum of which I could produce many Instances but I keep my self to the business of the Universities In which I hope by a sufficient enumeration of particulars I have made it clear beyond all possibility of Dispute that the Kings of England have dispensed in all the Cases before recited with Statutes of Colleges yet it is as manifest that all the Members of the Universities and of particular Colleges upon their taking of Degrees or being Elected into Fellowships c. take an Oath to observe the Statutes of the University or particular College and yet by the power of the Kings Dispensation are no ways Involved in the Sin of Perjury I shall now proceed to give such Answers as I Judge requisite to those arguments I find couched in any of the defences made by the Fellows of St. Mary Magdalen College and begin with that of the obligation of their Oaths CHAP. VII The Answer to the Arguments used by the Vice-President and Fellows of St. Mary Magdalen College in defence of their proceedings SECT I. Answer to what is urged in their Justification from the Obligation of their Oaths to observe their Statutes §. 1. THe most plausible plea the Vice-President and Fellows used in Vindication of their Electing Dr. Hough and dis-obeying the Kings Mandate was that they were under the obligation of their Oath to observe the Statutes of their Founder in the Literal and Grammatical sense of them And the persons Nominated by the First and Second Mandate of the King were not Qualified according to those Statutes so that in obeying the Kings Mandates they should either be Perjured or forfeit their Rights in their Fellowships if they Elected or Admitted any person not Statutably Qualified and that they were under the like obligation neither to procure accept or make use of any dispensation from that Oath or any part of it by whomsoever procured or by what Authority soever granted To which in Aggravation and Improvement was urged See p. 6. here p. 75. where the King's Declaration is urged which I shall consider in its place the disagreeableness of being pressed to forswear themselves at a time when his Majesty had been Graciously pleased to Grant Liberty of Conscience Finding this Argument looked upon by the favourers of the Ejected Fellows as unanswerable I think my self obliged to clear the point not only by producing the Opinions of Casuists but likewise by the Authority of Bishop Sanderson who deserves the greater respect and credit for that he Adorned the Divinity chair in that University long before he did the Episcopal §. 2. Definition of an Oath In this matter we may consider what an Oath is which is generally defined to be the Invocation of God to be (a) Mart. Bonacina Tom. 2. Disp 4. q. 1. puncto 2 fol. 214. witness of the plighting of our Faith that we will do or suffer to be done such or such a matter by Bonacina
obligationem Juramenti ne inducatur quamvis enim supremus princeps non possit immediate directe Irritare vinculum Juramenti utpote Spirituale ipsius facultatem superans potest tamen in directe remote quatenus potest destruere contractum antequam celebretur vel quatenus potest executionem contractus sub culpa prohibere Bonacina Disp 4. q. 1. punct 17. prop. 1. a. immediatly and directly Irritate the obligation of an Oath because it is Spiritual and so is above his faculty yet indirectly and remotely he can because he can destroy the Contract before it be Celebrated or may forbid the Execution of the Contract under a penalty §. 4. Thus the obligation (c) Dispensatione tollitur obligatio Juramenti haec absolutio fit Authoritate Superioris solius J. Lessius lib. 2. cap. 42. Dub. 12. n. 62. fol. 631. of an Oath is taken away by Dispensation according to the Opinion of a Learned School-man and consequently the Absolution is by the Authority of the Superior alone Hence it is easie to understand how a Superior can release an Oath for (d) Sicut enim is in cujus favorem commodum praestitum est potest illud Relaxare ita etiam illius Superior cui vel ille pleno jure subest sicut enim Superior potest co gere inferiorem ut obligationem Juramenti remittat quando justa causa postulat vel subest ita ipse per se potest eam remittere illo nolente vel non comparente vel alias quando expedit tunc consensus Superioris supplet defectum consensus Inferioris Idem n. 63. as he in whose favor and for whose profit the Oath is made can release the Oath so the Superior to whom he is subject pleno jure can For as the Superior saith Lessius can compel the Inferior to remit the obligation of his Oath when a just cause requires is expedient or understood So the Superior can release the Inferior tho' the Person Swearing be not willing or is not present to consent therefore in such case the consent of the Superior supplys the defect of the consent of the Inferior Thus far Lessius ☞ Which Bishop Sanderson (a) Nec obligatur Jurans ad faciendum quod Juravit imo obligatur ad non faciendum nisi accedit Superioris ubi rem rescierit Licentia de juram obl praelect 4. Sect. 5. p. 104. Confirms when he saith that in such a case without the Superiors License the Swearer is not obliged to perform what he Sweareth to yea he is obliged not to do it unless there intervene the Superiors License when he knows the thing and further adds (b) Omnine dicendum est Juramentum ejus qui sub alterius potestate est absque ipsius consensu nec licitum esse nec obligatorium Idem p. 105. that it is most true that the Oath of him that is under anothers power without his consent is neither lawful nor obligatory and it was upon this very ground that all the Loyal Divines of England Judged the Solemn League and Covenant was unlawful as wanting the Kings consent much more he having declared his dissent Besides in all Promissory Oaths there is a Tacit condition implyed as First If the promise be not remitted by him to whom it is promised or Secondly That no public Law be made to dissolve the Statute Thirdly If the Superior (c) Qui enim aliquid promittit alteri tacite subintelligit hanc conditionem nisi Superior cui Materia subest contradicet nisi ipse sua Autoritate condonat hinc dici solet in Juramento censeri exceptam Superioris Autoritatem Lessius lib. 2. c. 42. Dubit 12. n. 63. to whom the matter is subject contradict it not or by his Authority pardoneth not the breach of it Hence it is a Rule that in any Oath the Authority of the Superior is to be excepted Therefore where the Sovereign power resides as in the King of England there the dispensing power resides and the (d) Promissio hanc habet junctam conditionem nisi promissio remittatur a Superiore vel rescinditur a Judice Bonacina Disp 4. q. 1. punct 17. prop. 1. fol. 228. secret or silent condition viz. If the King dispense not with the observing of it is to be Implyed in every such Oath Wchhi leads me to the Fourth condition of a Promissory Oath viz. the Intention (a) Tacita Conditio sub est vel ex Juris Dispositione vel ex Jurantis Intentione Lessius Dub. 2. n. 12. fol. 617. of the Swearer which must constantly be understood that he will keep his Oath if he be not prohibited by the Law or the Sovereign §. 5. ☞ Bishop Sanderson Illustrates this in this manner De juram obl praelect 2. lect 10. pag. 48. If a Son Swear to do any thing Lawful in it self and the Father Command him to do another which hinders him from doing that which he had Sworn to do the Son is not bound by his Oath because he is bound by the Natural Divine Law to obey the Command of his Father and he Cites in the Margent that Rule both of the Canon and Civil Law which he approves of in Juramento semper jus Superioris Intelligitur exceptum Hence Lessius affirms that when a promise or proposition of a thing good in it self is made a Man is not obliged to perform it but with Tacit Conditions of which he hath many Instances which are forreign to our business but one is expresly to our purpose (b) Jurasti servare Statuta capituli tacita conditio est scilicet quae nunc sunt in vigore majoris momenti seu quae ex vi Juramenti sunt in usu non enim se Juramento vult astringere ad minima neque ad ea quae non servantur vel si serventur non ex Religione Juramenti neque etiam ad Statuta futura nisi aliud Intenderit Lessius lib. 2. c. 42. Dub. 4. n. 21. fol. 619. when one Swears to observe the Statutes of a Chapter It is to be understood of such as are in force which as before I have shewed those are not which are Abrogated by the Superior or are of greater moment and surely in our case the obligation of our Allegiance and owning the Kings Supremacy is much a greater tye upon our Consciences than those of private Statutes or are in use by virtue of our Oath §. 6. To Conclude this Head Bonacina (a) Juramentum sequitur naturam Actus super quem cadit accessorium enim sequitur naturam principalis ut habet Regula Juris 42 in sexto itaque si actus habet tacitam Actionem etiam Juramentum habere censetur confirmatur quia Juramentum non additur ut promissio propositum aut contractus aliter accipiatur quam per se accipi solet sed ut eo mode Intellecta quo solent Intelligi non possint revocari
Imperium and in such matters the Graces and Favors of Preceeding Kings are alterable and suspendible at the pleasure of the Succeeding Sovereign who cannot be Impaired in any Act of his Sovereignty by his Predecessor so that to think that a King of England can by any of his Subjects Constitutions be bound from Visiting or giving his own Interpretation of the Statutes is a great weakness of which I shall Treat more fully in it's proper place and only Infer at present that the obligation of any Subjects Oath neither to take nor Admit of any Dispensation is in it self of no force to obstruct the Sovereign from dispensing and when he doth dispense no Oath is obligatory to any that hath Sworn to observe such Statutes as are not in being while he dispenseth with them ☞ Thus much I thought fit to offer as to what relates to the Secular power As to the Popes Dispensing it was very Incongruous and weak for any Founder to expect that the Members of the Society could oppose the Popes dispensation with any Statute which his Holiness for the time being should think fit to alter or Abrogate for as (a) Validum esse vosum aut Juramentum non petendi dispensationem aut relaxationem voti quamdiu animae volentis utilius est non petere dispensationem Superior tamen potest non obstante tali voto disoensare dispensatio valida est nam vetum subditi non aufert Superiori potestatem dispensandi Jurantes vel volentes c. sub paena ut si fecerint non possunt ab alio absolvi vel dispensari quam à summo Pontifice possunt adhuc absolvi ab Episcopo nam hujusmodi votum vel Juramentum non aufert Episcopis Jurisdictionem Ita communiter D. D. Disp 4. q. 2. punct 1. n. 28. 29. Bonacina determins that tho' the Vow or Oath of any not to seek for a dispensation or relaxation of them be valid as long as the Swearers Conscience is convinced it is profitable to his Soul to keep it and not to seek a dispensation as Rodrique and other School-men there Cited allow and so in like manner not to use a dispensation yet the Superior notwithstanding such a Vow or Oath may dispense and the dispensation is valid and Assigns the Reason for that the Vow of the Subject doth not take away from the Superior the power of dispensing as Azorius Cap. 19. Quaest 13. Sanchez lib. 4. Cap. 8. n. 35. yea he further observes that if one Vow the like is to be understood of an Oath not to do such or such a thing under the Penalty that if they do it they cannot be absolved or dispensed with by any but the Pope yet for all this they may be Absolved by the Bishop for he saith by this the Authority of the Bishop is not taken away Yea I find in Lessius (a) Unde etiam possunt dispensare in voto non petendi dispensationem hoc enim non est reservatum Lessius lib. 2. cap. 40. Dub. 18. n. 134. fol. 568. that the Confessors of the Mendicant Order can dispense with the Vow or Oath to take no dispensation and that by a Privilege Granted them by the Pope if they be partakers of the Faculties Granted to the Benedictines by Pope Martin the Fifth because this is not reserved SECT III. Some other Objections considered either relating to the Visitation in General or urged in Defence of some particular Members of the Society §. 1. A Second Objection I have met with is that the Bishop of Winchester being the Local Visitor appointed by the Statutes of Bishop Waynflet it seemed more agreeable to a formal proceeding that he should have exercised his power of Visitation before the King had ordered Dr. Hough c. to have been proceeded against by the Lords Commissioners for Ecclesiastical Causes To which I answer First in the Resolution of a very Eminent Lawyer that the Local Visitor is appointed and trusted by the Founder and thereby hath a private Trust But the King as King hath a public Trust by operation and construction of Law and by his Sovereign Authority and Jurisdiction is Supreme Visitor and may exercise that Royal Trust as those of the long Robe use to express his Prerogative sometimes when and as often as he pleaseth without any Commanding or expecting the Visitation of the Local Visitor and having the general care of and Inspection into the Manners and Duties of his Subjects may not only Visit Enquire into and Reform the Members of the College as to their Actions but also Visit the Local Visitor himself as to his doing and performances in or about his Trust Secondly It is certain the Arch-Bishop of Canterbury and the Bishop of Lincoln as I have by many Presidents cleared before have Visited notwithstanding the Local Visitors being appointed Therefore much more may the King who is Supreme Visitor Thirdly By the speedy Application of Dr. Hough to the Bishop of Winchester before I presume his Lordship could have notice of the Kings Inhibition he had Admitted him so that he was so far become a party concerned that it was no ways convenient for him to have proceeded in it Fourthly The Local Visitor is appointed only for the ease of the Crown in ordinary Cases But it cannot be supposed that if a Local Visitor should neglect to do his Office or should be partial there should not be a power in the Sovereign to order the Visitor seeing it would be a great deficiency in the Oeconomy of Government that a power should not be lodged some where to compel a Local Visitor to do his duty if he failed in it which can ultimately remain in none but the King. §. 2. The third Objection In the third place in the particular concerns of Dr. Hough it is urged See here p. 67. that the Sentence against him could not be good in Law since he was not Cited before the Lords Commissioners at Whitehall nor appeared in person or by Proxy before them nor had his cause brought before them when Sentence of Expulsion was given against him which those that are his favorers Censure as very hard usage that one should be condemned unheard In Answer to which it must be considered that the King by his Mandate having set aside and suspended the College Statutes for Electing a person Qualified within those Statutes and impowering the College by his Royal Command without breach of their Founders Rule and their Oath upon it to Elect a person not capable of being Elected by their College Statutes as hath been abundantly cleared in the last Section Dr. Hough was not to be considered as duely Elected and so revera was no President therefore could not be taken cognizance of as such But as Fellow he was Cited and did make appearance and was heard as the rest of the Fellows were and under other Circumstances he was not Legally to be taken notice of His cause likewise
Judges and parties So in this Case of St. Mary Magdalen College the King took away from the Fellows the liberty of choosing such a person as their Statutes obliged them to choose by the dispensing with the Statutes therefore in that he seems plainly to Inhibit their Electing of any according to the Letter of the Statutes as before I have cleared in the Answer to the Objection Chap. 7. Sect. 1. § 7. pag. 295. here to which I refer the Reader Therefore the Dilemma of Dr. Stafford seems to have no such contradiction in Terminis See here p. 73. 74. that his Majesty in Commanding the Fellows of the said College to Elect Mr. Farmer President should thereby prohibit them to Elect any other person whatsoever Because that power of Election is as much but no more than the Conge de eslier for a Bishop where the Title of Election is only pro forma but the Chapter can Elect none but who is Nominated by the King and for his being unqualified that is no sort of Objection since the dispensation as effectually casseth and nulls the Statutes enjoyning those qualifications for the time as if they had never been extant By such Mandates the King lays his Hand upon the Statutes Manus Appositionis Papae natura ea est ut omnium Inferiorum potestas per eam Ligata censeatur Idem cap. 12. limit 52. n. 15. which in Civil Law is Styled Manus Appositio Now I find two of those viz. the Popes laying on of Hands which is described to be of that nature that the power of all Inferiors is thought to be bound by it and the laying on of the Hand of the King hath the power of a Nullitive Decree and Derogation and works more than a Reservation the words of my Author are Idem cap. 4. declar 4. n. 6. Principis Manus Appositio habet vim decreti annullativi derogationis operatur plus quam reservatio Hence we may conclude by the Civil law that after the Inhibition tho' Tacit the Fellows ought not to have proceeded to Election no more than other Courts could go on in their process after an Inhibition Idem cap. 20. n. 14. according to that Rule processus post Inhibitionem factus Regulariter est ipso Jure nullus §. 7. That I may more clearly Answer this Objection See here p. 4. and shew that however the Bishop of Winchester in his Letter to my Lord President alleged that the Rules of the College Statutes had been hither to constantly observed excepting in the times of Rebellion A parallel case in King Edw. the 6ths time I shall give an account of one of the Presidents of this College who was no ways Statutably Qualified and yet was Elected by King Edward the Sixths Mandate I have deferred the Narrative of this The reason why the Author inserted this no sooner which I might have brought in sooner in hopes to have got a more particular account of it out of the Registers but tho' I have sollicited the procuring of it several ways yet by the taking away of one of the Keys where it was kept access could not be had to it So I Writ to Mr. Wood who Compiled the Learned and Laborious History of the Antiquities of that University in hopes that out of some of his Notes I might have been supplyed But I received the following Letter from him which giving me so little hopes of further Information I must content my self with what he hath published That part of his Letter relating to this matter is as followeth SIR VVHen I perused Magdalen College Registers A. B. C. c. in order to the drawing up the Histories of that House I did not in the least dream what would come to pass relating to the Office and Election of a President otherwise I should have Collected all and consequently have been more full in the matter What I have said of Dr. Haddon was from several Commendatory and Mandatory Letters and Answers to them in the Register E. all which being by me perused and finding them very tedious to recount I only made mention of them in General and have not so much as a Docquet of them by me c. June 2d 1688. A. WOOD. The History in short Wood Antiq. Oxon lib. 2. fol. 191. a. Gualterus Haddon Juris Civilis Doctor post multas inter Regem Societatem hinc Mandatorias illinc excusatorias literas quippe admissioni ejus omnes se strenue opposuere tandem ultimo Sept. Anno 1552. Electus est as to be found in the foresaid Author is thus Walter Haddon Doctor of Laws was bred in the University of Cambridge and took his Degrees there and so was neither of the Foundation of New College nor of St. Mary Magdalen College whereof he ought to have been a Member according to the Founders Statutes Yet King Edward the Sixth Anno 1552. 5 Regni by his Mandate Commanded him to be Elected President The Society opposed this Strenuously no doubt upon the like grounds that he was not Statutably Qualified this occasioned a re-inforcing the Mandates and the Excusatory Letters of the College However at last they yielded to the Kings Mandate and on the last of September the same Year he was Elected President This exactly parallels the present Case of St. Mary Magdalen College Yet we find the Kings Mandate then was at last obeyed and Dr. Haddon was Elected Whereas the late Ejected Fellows might have kept their Fellowship if they had but yielded to Admit the Bishop of Oxford or submitted to him and owned the Kings Authority which surely could not happen for want of knowledge of this precedent whereof if I can obtain a fuller account before the publication hereof I will insert it in an Appendix There is an Instance also of a President removed from his Office by the Bishop of Winchester as Visitor Idem ibid fol. 191. a. and what was alleged against the President Dr. Thomas Coveney was that he was not in Holy Orders and had treated some of the Fellows roughly this was betwixt the Years 1560. and 1561. the 3d. or 4th of Queen Elizabeth §. 8. The sixth Objection It is is Sixthly Objected in behalf of Dr. Fairfax See this in Dr. Fairfax's Case in the Oxford Relation f. 27. col 1. that his Suspension could not be according to the Rules of Law since it was for his not obeying the Kings Mandate in Electing Mr. Anthony Farmer and his Suspension was not affixed on the College Gates till five days after Mr. Farmer was proved before the Lord Commissioners to be uncapable by reason of his Immorality So that as the Sentence was severe so the Execution of it was more rigid after Mr. Farmer was exposed as they allege In Answer to this Answer it is well known that at the first hearing of Dr. Fairfax before the Lords Commissioners at Whitehall he denyed the Authority of the Court
more plausibly In the first place it is urged that no Commission can be granted under the Broad Seal to Visitors to place and dis-place Members of Colleges but so as they must proceed according to Legal discretion viz. by the Laws and Statutes of the Land and Local Statutes of the Colleges By this Allegation they would Insinuate that the Lords Visitors did not proceed according to such Laws and Statutes nor could proceed summarily as in the latter part of the Objection they Insinuate To this I reply The Kings Prerogative a part of the Law of the land See chap. 4. §. 1. 2. here that the Kings Prerogative in such Cases is to be taken and accepted as a Fundamental of the Laws of the Land and I hope I have sufficiently cleared the continued use of the Kings of Englands exercising this power in granting Commissions to Visit the Universities and particular Colleges c. Amongst the Patents 26 E. 3. There is a Commission directed to several Commissioners to Visit St. Mary Magdalen College in Rippon which by the Foundation of that College was under the Visitation of the Arch-Bishop of York and to enquire of the several mis-carriages of the respective Members and whether they consumed or wasted any of the Lands or Goods of that College and to return the same to the King who would take care therein So in the Parliament Rolls (a) Rot. Parl. 40 E. 3. n. 12. the Universities of Oxford and Cambridge complained in Parliament of the Fryers Mendicants of both the said Universities how Injurious they were to the Ancient Immunities of the Universities and how faulty and offensive they were to them and it was declared and resolved in Parliament that the King had sole power to redress those Controversies at his Will and Pleasure In the Plea (a) Placit 15 E. 2. n. 10. Rolls 15 Ed. 2. It is declared that the King hath an absolute power to punish contempts and the offences against him as Supreme Ordinary without proceeding in the Common and usual Course of Judicial proceedings ☞ Conformable to this King Henry the 8th granted his Commission for the Visitation of Monasteries and dis-placing several Monks and other Regulars for their mis-carriages as the Inquisitive Reader may find in Dr. Burnets History of the Reformation and that by his Sovereign and Supreme Authority without Act of Parliament So King Edward (b) Rot. Pat. 3 E. 6. 1 part the 6th Commissioned Cranmer Ridley and others to proceed de plano in a summary way against Bonner by the Examination of Witnesses against him and so to Imprison Suspend or Deprive him as they saw cause in pursuance of which Commission they Deprived him of his Bishopric So Queen Mary (c) Rot. Pat. 1 Mariae part 7. granted Commission to the then Bishop of Winchester and others to Impower them to proceed in a summary way to the Deprivation of the then Arch-Bishop of York and other Bishops So Queen Elizabeth (d) Pat. 24 June 1 Regni granted Commission to the Earls of Derby and Northumberland and others to Visit all the Clergy in the North to place and displace them as they saw cause §. 11. Inferences from the foregoing Records By all which Authorities See chap. 4.5 6 and 7. here the Opinion of Parliaments the Antiquities of Presidents and frequent Instances in later days which I have abundantly produced in the foregoing Chapters I hope I have convincingly cleared that the King in all Ages by his Prerogative hath Regulated and Reformed Universities and Colleges punished their offences placed and dis-placed their Members without anything of the Ceremony of Westminster Hall and have been advised by their Judges and Learned Council that it was their Prerogative to proceed by their Commissioners Delegated by them in a summary way to the Suspension and Deprivation of the Bishops and Clergy nor can it be denyed but the Bishops of England have great Free-holds Temporalities and Honorable Baronages to lose by such Deprivations and such were more considerable in the Eye and esteem of the Law than the Exhibitions Headships or Fellowships of any College ☞ Hence it may be noted The Kings of England exercising the power of supension and deprivation by Commissioners upon Bishops Abbots Priors c. may well do it on Members of Colleges that since our Kings have exercised such a power over Monasteries Colleges purely Religious Arch-Bishops and Bishops they may much more exercise the like over Universities and Colleges since whatever power they or their Founders had or have it was never given them by any Statute or any part of the Common Law it being the Kings sole Prerogative to Constitute Coporations or Bodies Politic sole or Aggregate Ecclesiastical or Civil under several and distinct qualifications conditions and trusts and the Universities and Colleges derive their Existence from the Royal bounty of the Prince who made them Corporations Constituted them by the direction of their respective Founders Bodies with Heads and Members to be Governed by such Rules and Statutes as the Founder by the Kings Licence should appoint But it was never certainly Intended that the King by such Grant or Licence should Delegate such Authority to Founders Visitors or the Members of Colleges See chap. 4. sect 1. here whereby to injure his Prerogative or determin the Supremacy which the Law of the Land had Annexed to his Imperial Crown as at large I have cleared before That the King is Supreme Head and Visitor in all Ecclesiastical and Civil causes See cap. 4. here hath been fully proved and that from the King all Judges Ecclesiastical and Temporal derive their Authority And sure a Delegation of power from the King can be no Bar or Estople to the King to exert his Prerogative that he thereby can be concluded from Delegating power to others to correct and reform misdemeanors and offences in Communities created by him or his Ancestors or to supervise the Actions and Management of his Judges Ecclesiastical Local Visitors or persons Commissioned by him As to Dr. Thomas Coveneys Case I shall consider it when I come to Treat of Appeals §. 12. Whether Colleges be of Temporal or Spiritual nature ☞ Concerning the Temporal Estates of the Fellows and the profits of the Fellowships being Free-holds that alters not the Case of the Kings power of Visiting for altho' it is disputed by Learned Authors whether Colleges be of a Lay or Spiritual nature yet it is most clear that they have undergone Visitations the reason of which is because they are the Nurseries of Learning and Piety Qualifications of great Moment to the well-being of Government and consequently require the Princes special care since upon the purity or impurity of these Fountains much good or bad must be derived to the Sovereign and Subject And altho' in the Universities some Studies relate not at all to Divinity as Civil Law Physic c. yet the Body of the Students
the Law Books only made out in some particular Cases yet those sufficiently prove that the Original Prerogative of Dispensation being in the King The Original Prerogative of dispensing in the King. it may branch it self to all such matters as the King pleaseth to apply it to which by no particular Act he or his Predecessors as far as they can oblige him have debarred themselves from the exercise of and the continual Series of this dispensing sometime in one other times in a fresh matter is sufficient evidence that our Kings have not given up this Prerogative wholly Thus I have gone through the most material Objections I have met with in the Vindication of the dis-obedience of the Fellows As to the punishments inflicted upon them for it I suppose none will question but they are according to Rules of Law upon supposal the Crimes were clearly proved I should now have closed this Discourse but that I am obliged for the Reasons given in the Preface to add some things that came not soon enough to my Hands A Transition to what is to be Treated of in the Appendix or went too soon out of them which I shall digest into Order of time and put them in this following Appendix AN APPENDIX §. 1. A Mandate for Re-placing a Graduate Expelled HAving been necessitated for the Reasons foregoing to make these Additions I must desire the Courteous Reader to refer them to their proper places noted in the Margent I shall begin with this following Mandate for Replacing a Graduate Expelled out of the University of Oxford in these words Clause 40 E. 3. part 2. M. 8. rot 10. è Ms. D. Hales in Bibliotheca Societatis Lincolniensis lib. B. fol. 180. Rex dilectis in Christo Cancellario Magistris Regentibus Oxonii salutem Supplicaverunt nobis venerabilis in Christo Pater R. Dei Gratia London Episcopus Tho. Russel Prior Provincialis Ordinis Fratrum Praedicatorum in Anglia ut cum Johannes de Wulsington Baccalaureus in Theologia confrater praedicti Prioris ad suggestionem procurationem quorundam inimicorum suorum extra Universitatem praedictam maliciose sine causa rationabili Bannitus extitit in ipsius Johannis grave dampnum susceptionem Altioris gradus in eadem facultate quod volumus ipsum Johannem ad Statum suum pristinum restitui jubere Nos supplicationi praedictae favorabiliter Annuentes vobis Mandamus quod ipsum Johannem ad praedictam Universitatem Statum gradum quibus steterit prius in eadem sine difficultate aliqua Admittatis reconciliatis ipsum sic Admissum reconciliatum omnino quae ad facultatem dictam quous que ad Statum Altiorem juxta Statuta Universitatis illius promotus fuerit facere exercere permittatis ne ob ullum defectum ipsum à potestate nostra deduci reconciliari â—aciamus Teste Rege apud Westm 18 die Nov. In English thus The King to the Well-beloved in Christ the Chancellor and Regent Masters in Oxford Greeting See chap. 4. sect 3. §. 1. pag. 176. and pag. 270. The venerable Father in Christ Ralph by Gods Grace Bishop of London and Tho. Russel Prior Provincial of the Order of the Fryers Preachers in England that whereas John de Wulsington Bachellor in Divinity confrere with the said Prior by the suggestion and provocation of certain his Enemies maliciously and without reasonable cause was Expelled the same University to the great damage of the said John and the hindring of his recieving an higher Degree in the said faculty and that we would Command the said John to be restored to his former State. We favorably allowing the foresaid Petition Command you without any difficulty to Admit and reconcile or restore the said John to the same University and to the State and Degree in which he stood before in the same and that you permit him so Admitted and Reconciled or restored in all things to do and exercise what appertains to the said faculty until he be promoted to an higher State according to the Statutes of the University lest for any defect you make us bring back and restore the said John by our power or Authority Witness the King at Westminster the 18th day of November This being the oldest Mandate I have met with I thought it needful to insert it at length that all might know what Authority the King exercised in that Age. §. 2. Inferences from this Record By this Record it is manifest that the King by Mandate could restore a Graduate who had been Expelled the University and by parity of reason he must have the same Right to place any in the University according to his Royal pleasure and whereas by this Expulsion there was a Suspension of his Degree the King Capacitates him to receive it when the time required by the Statutes of the University was expired altho' he was thus dis-enabled So that in this one precept four particulars of the Kings Prerogative over the University are Asserted expresly The prerogative of the King over the University cleared in four particulars by this Mandate which in the foregoing parts of this Treatise I have by other Instances cleared viz. First that the King is Supreme Visitor to alter at his pleasure the Sentences Decrees or determinations of the University Secondly that tho' the University by their Statutes might stop a Graduate from taking an higher Degree yet the King at his pleasure might restore him to his Pristin State and make him capable of receiving his Degrees at the time limited by the Statutes Thirdly that the King did this without any formal proceedings at Law but by his own Sovereign Authority and pleasure only declared in a Mandate Fourthly that if the Chancellor did refuse to obey the Mandate the King threatens to have his pleasure fulfilled by his Royal power §. 3. The King Founder of Colleges That the King by his Royal Authority Constituted made and Erected Colleges pat 14 E. 3. part 3. M. 9. appears by the following Clause of King Edward the Thirds Charter to Queens College in Oxford in these words Memoratam Aulam cum Praeposito caeteris Sociis per Electionem in futurum habitantibus morantibus in eadem quos ad verum Collegium erigimus existere ex nunc proponimus ut Collegium Licitum approbatum agnoscimus Authoritate nostra plena qua possimus ratificamus confirmamus c. This is Dated 18 January Anno 1340. Granted to Robert Eglesfield of Cumberland Bachellor of Divinity Chaplain to Philippa Queen Consort to King Edward the Third and Rector of Burgh under Stanemore being descended of an Ancient Family in that County and in this Charter the King Grants him liberty to Found it and Endow it with Lands and to appoint the Orders of the Government of it as at large may be seen in the Tower of London and a considerable part of it in Lib. 2. fol. 113. Mr.
they did not proceed to Election of another President in contempt of the Kings Mandate as the Modern Fellows have done but after such a Dutiful representation of their Case as is seen in their Petition they finding the King Insisting upon being obeyed they yielded entirely not only to Admit but Elect him and in the Instrument of presenting him to the Bishop of Winchester they own the Kings dispensing power and signifie likewise that they yielded in this to the Kings Supreme Authority §. 11. The Queen Commands Dr. Bond to be Admitted President and declares Null the Election of Mr. Smith I shall add but one Instance more of a President of St. Mary Magdalen College placed by the Queen contrary to the desire of the Electors who were more favorable to Mr. Richard Smith For I find that the Queen placed Dr. Bond her Chaplain by her Authority rejecting and declaring Null and Invalid the Election of Mr. Smith The words of the Register are as followeth Quinto die mensis Aprilis-Anno Domini 1589 Eximius vir Dr. Nicolaus Bond Regist G. fol. 280. Sacrae Theologiae Professor in Magna Aula Collegii B. Mariae Magdalenae in Universitate Oxon protulit litteras patentes Regiae Majestatis de ejus admissione in Officium Praesidentis dicti Collegii This is a very pertinent Precedent of a Mandate like that of our King for the Bishop of Oxford obeyed by the Society which some of the late Fellows could not be Ignorant of quae in praesentia omnium Sociorum dicti Collegii in Universitate existentium publicè legebantur quarum quidem litterarum tenor sequitur in his verbis Elizabetha c. Praetensam nominationem Electionem de Ricardo Smith ad omnem juris effectum nullam invalidam declaramus Nicholaum Bonde Capellanum nostrum in ejusdem Collegii Presidentem durante vita suâ naturali nominamus constituimus ac ad omnes effectus praeficimus curamque regimen administrationem dicti Collegii eidem tanquam legitimo Praesidenti in omnibus committimus in tam amplis modo forma quam quivis alius munus Officium Praesidentis in dicto Collegio unquam habuit exercuit possedit aut gavisus est vel habere exercere posidere aut gaudere potuit aut debuit Mandantes insuper Vice-Praesidenti Sociis Scholaribus caeterisque dicti Collegii Ministris ac personis omnibus singulis quorum aliqua ratione interesse potuit quatenus Dictum Nicolaum Bonde in Praesidentem Collegii praedicti benigne admittant recipiant Here the Queen dispenseth with the Statutes Sworn to by the Society and all other thing cause or matter to the contrary whatsoever ac ei ut Praesidenti suo in omnibus ac Per omnia pareant ac obtemperent aliquibus Statutis Ordinationibus dicti Collegii etiam juratis aut quacunque nominatione vel Electione dicti Nicolai Bonde aut Ricardi Smith per aliquos dicti Collegii Socios in discordia forsitan nuper factis vel aliqua alia re causâ vel materia in aliquo quovismodo nonobstantibus In cujus rei Testimonium has litteras nostras fieri fecimus patentes Teste mispsâ apud Westm 4 o. Die Aprili Anno Regni nostri 31. Eodem anno Here the Fellows were all present at Dr. Bonds taking his Oath and he was recieved and Admitted President according to the Queens Mandate mense Die post dictarum litterarum lectionem tactis ac inspectis per dictum Nicolaum Bonde Sacro Sancti Evangelii Juramentum Subscriptum praestitit in praesentia omnium Sociorum in Universitate praedicta tune existentium in dicta magna aula Collegii praedicti quo quidem juramento praestito receptus admissus est ut Praeses dicti Collegii Sequitur juramentum Praesidis in Statutis By this Mandate of the Queens Inferences from this Mandate it appears that without any Election according to the Statute of the College she Nominates and Constitutes and to all effects Prefers Dr. Bond tot he Presidentship during his Natural Life Commits to him the Care Government and Administration of the said College in all things as Lawful President in as ample manner and form as any other ever had exercised possessed or enjoyed the Office of President in the same College Commanding the Vice-President Fellows and Scholars and the rest of the Servants of the said College and all and every person who by any means could have interest therein that they kindly Admit and Receive him as President of the College and in all things obey him as their President notwithstanding any Statutes and Ordinances of the said College tho' Sworn to or any Nomination or Election of the said Nicholas Bond or Richard Smith by any of the Fellows of the said College happly done in their late differences or any other cause or matters in any thing whatsoever §. 12. An Historical Account of King Charles the first dispensing with a Statute of Emanuel College in Cambridge I shall now give an account of a Petition I have found in the Paper-Office which will clear the matter of the Kings dispensing power with College Statutes most fully For the better undestanding this Petition it must be observed that Sir Walter Mildmay Founded Emanuel College in Cambridge for Students in Divinity that it might be a Nursery for Divines and gave several Benefices with Cure of Souls to be bestowed upon the Fellows as they fell void that they might be Preachers in the Country That therefore they might not be superannuated in the College he made one of the Statutes de Mora Sociorum that the Fellows should leave the College some short space of time after they were Doctors of Divinity and they were to take the preceding Degrees according to the strictness of the Statutes of the University for the taking Degrees when of due standing By another Statute de Residentia Sociorum they were tyed to strict Residence so that they could not go abroad to have conversation and obtain the advantages that a relaxation of that strict Residence might have afforded them whereby they might have made provision for themselves in obtaining Benefices in case there should none fall in the Interim Now it so hapned that the Founder had not annexed a sufficient number of Spiritual Benefices so that some of them when Doctors of Divinity must have left the College un-provided for These considerations induced some of the Fellows to Petition for a dispensation with this Statute and upon the suggestions in that Petition King Charles the First granted it But it seems this dispensation was not so well liked by others and even some of the first Petitioners joyned with them and exhibited this following Petition §. 13. The Petition of the Master and Fellows of Emanuel College in Cambridge to the Honorable Chancellor of the Vniversity humbly Sheweth Paper-Office Ecclesiastica Academica ab An. 1620. ad 38. THat whereas a Petition by four of the Follows was exhibited to
pronounced against him That whereas he had denyed the Authority of the Court and in Contempt of the Sentence of Suspension given against him by the Lords Commissioners at Whitehall taken his Commons and Battled in the College as a Fellow of the College notwithstanding his said Suspension the Court proceeded to deprive him of his Fellowship and Ordered his Name to be struck out of the Buttry-Book The Sentence pronounced against him I find in the Register tho' not in this place in the words following By His Majesties Commissioners c. WHereas in our Visitation of the said College it appeareth unto us that Henry Fairfax Doctor in Divinity one of the Fellows of the said College has been guilty of Dis-obedience to His Majesties Commands and obstinately contemned his Royal Authority and doth still persist in the same we have thought fit upon mature consideration thereof to Declare Pronounce and Decree that the said Dr Henry Fairfax be Expelled and Deprived of his said Fellowship and accordingly we do hereby deprive him and Expel him from the same Given under our Seal the 25th day of October 1687. Then the Lords issued the following Order By His Majesties Commissioners c. WHereas we have thought fit to Deprive and Expell Dr. Henry Fairfax from his Fellowship in the said College you and either of you are hereby required to cause our said Sentence and Decree a Copy whereof is hereto annexed to be affixed on the Gate of the said College to the end that due notice may be taken of the same and of the due Execution hereof you are to certifie us Given under our Seal the 25th of October 1687. To Thomas Atterbury and Robert Eddows Or either of them He then gave in his Protestation against their Proceedings which the Court over-ruled and ordered him to depart and quit his Lodgings in the College in Fourteen Days Then the Doctor prevailed with much a do saith the Oxford Relation to Read the following Protestation and left it in Court which was as followeth I Henry Fairfax Fellow of St. Mary Magdalen College Dr. Fairfax's Protestation do under my former Answer heretofore made and to the Intent it may appear that I have not consented nor agreed to any thing done against me to my prejudice I protest that this Sentence given here against me is Lex nulla and so far forth as it shall appear to be aliqua I do say it is iniqua injusta and that therefore I do from it as iniqua injusta appeal to our Sovereign Lord the King in his Courts of Justice as the Laws Statutes and Ordinances of this Realm will permit in that behalf Henry Fairfax §. 14. The under Porter deprived Then the Lords askt Robert Gardiner the Under Porter if he would submit to the Bishop of Oxon as President of the College which he refusing to do the Lords deprived him of his Office and adjourned the Court till the next Morning Mr. John Gilman's Paper I find thus That the Statutes of the College This Paper is mis-placed and should have been October 22d Afternoon to which I am positively Sworn are the only Rule of my Actions and Obedience in this and all other Cases of the like Nature and I conceive the Bishop of Oxon has not those Statutable Qualifications which are required therefore I cannot Assist at the Admission of the Bishop of Oxon. The submission of Dr. Thomas Smith was as followeth Dr. Tho. Smiths submission which he gave in when the Fellows gave in theirs I have put here by it self because I would not mix it with the other given in in Writing also MY LORDS I Own from my Heart and acknowledge the Kings Supremacy I do now and will always pay all Dutiful Just and Humble Obedience to His Majesties Authority as becomes a Priest of the Catholic and Apostolic Church of England Establish'd by Law. I make no exception to the Legality of your Lordships Commission nor to the exercise of it in this present Visitation I am ready and willing to obey in licitis honestis the President whom the King has pleased to Constitute President when ever he shall come and preside in the College Thomas Smith D. D. The Paper given in by Mr. Craddock was as followeth ABout Six Years since This Paper was given in October 22d Afternoon when I was made Fellow by the Kings Permission I took an Oath that I would not be dispensed with from my Local Statutes by which Statutes and Oaths it does not belong to me to Admit any Man President besides I conceive Dr. Hough cannot be Legally dispossessed of the Presidentship of Magdalen College till he has Appealed to Westminster or an Higher Court and till then I shall not cease my obedience to him Willi. Craddock I shall now insert the Lords Commissioners Answer to my Lord Presidents last Letter and then proceed in the Narrative §. 15. The Answer to the Lord Presidents Letter of the 23d of October Oxon the 25th October 1687. MY LORD IN Obedience to your Lordship of the 23d Instant and the Kings Letters Mandatory we have this day Installed the Lord Bishop of Oxon's Proxy by placeing him in the Presidents Seat in the Chappel and some while after Dr. Hough having left the College and the Keys being deny'd us we caused the Doors of the Lodgings to be broken up and gave his Proxy Possession thereof My Lord we proceeded to examin the Fellows concerning their submission to the Lord Bishop of Oxon now their President their Answers were Unanimous in scriptis that they would all submit but Dr. Fairfax whom for that and denying the Jurisdiction of the Court and Contempt of his former Sentence of Suspension we have Deprived and Ejected and one Robert Gardiner a Porter all the rest of the College we left this Night in good temper and the Bishops Servants in quiet Possession We have likewise looked into the Constitutions Orders and Statutes of the College and cannot find any of the Society to have offended therein or in mis-applying their Revenues They having given us as we conceive a clear Answer to the Accusation against them for Imbezling such a part of it as was pretended to be set a side for Pilgrims and poor Travellors which we will bring up and transmit to your Lordship * * Here may be noted how tender the Lords Commissioners were and willing to have won them to obedience And this we must say my Lord that generally they have behaved themselves with great regard and deference to His Majesties Command saving in that particular whereof we gave your Lordship an account in our last and even for that they have expressed a very hearty sorrow and submission and we do humbly conceive that the Bishop of Oxon when he comes in Person to the College which he promises suddenly to do so soon as his health will give him leave will be best able to find out those faults of