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
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
remedy had been at Common Law only It were easie to quote the resolutions of several Judges Savil's Reports fol. 83.105 that no Appeals lye to any but the King in person from a Sentence of the Kings Commissioners in Ecclesiastical causes so Baron Savile affirms that no Appeal doth lye from a Sentence in the High Commission Court and that the high Commission Court is not within the meaning of the Statute of the 25 of H. 8. but the Opinion of my Lord Dyer or others do not exclude an Appeal to the King in person Dyer's Reports for 42. who is the Fountain of Justice and all the Statutes of King Henry the 8th and Queen Elizabeth as to the Erecting of Courts and granting Jurisdiction do only remit and restore the King to his Ancient Jurisdiction of Visiting and Reforming abuses recieving Appeals and other Judicial Acts as Supreme Head and Ordinary as Serjant Dacres observes §. 15. The Case of Charles Cottington Esq about Appeals I shall now Instance in a case of later date wherein there being an Appeal made to the House of Lords against a Decree of the Delegates the Lords dismissed it as not coming properly before them ☞ The case was this Ex Autographo In the Custody of the Clerk of the Parliament Charles Cottington Esq exhibited his Petition May the 10. 1678. to the Lords shewing that in the Year 1677. he Travailing into Foreign parts unfortunately fell into acquaintance with one Angela Margareta Gallina Daughter to a broken Gold-smith in Turin in the Dukedom of Savoy The Petition of Mr. Cottington and was contracted to her in the presence of a Romish Priest in Turin that afterwards he found her a vicious person Married to one Frichinone Patrimoniale upon which Information he left her and returned for England Then he sets forth that this Gallina came to England and claimed to be the Petitioners Wife that he had cited her before the Dean of the Arches in a cause de jactitatione Matrimonii and she alleged that before the contract with the Petitioner she was Divorced from Patrimoniale and the Divorce was pronounced by the Arch-Bishop of Turin and that tho' he made it appear that the Sentence was Collusory and in it self void and not to be regarded in England yet the Judge of the Arches had Sentenced the said Gallina to be the Petitioners Wife Then follows the premises so highly concerning your Petitioner both to the peril of his Conscience Honor Body and Estate and concerning this his Majesties Kingdom in the Establishing a Foreign Jurisdiction against the Laws of the Kingdom Your Petitioner humbly Appealeth in the premisses to this High and Honorable Court and humbly prayeth that the said Sentence of the said Dean of the Arches and Commissioners Delegates may be reversed This was referred to the Committee of privileges Referred to the Committee of privileges June the 6th it was ordered that Presidents and Records should be brought and Council to be heard June the 12th The Earl of Essex's Report from that Committee The Earl of Essex made report from the Committee that upon full hearing what was alleged by Council on both sides and upon perusal of several Presidents they are of Opinion that the said Appeal did not come properly before them the Earl of Shaftsbury only dissenting as by his Subscription appears The Order is entred in these words Die Lunae 17 o. Junii 1678. According to the Order of the 12th of this Instant June The House of Lords Order upon it the House took into consideration the Report from the Committee of privileges concerning the Appeal of Charles Cottington Esq from the Commissioners Delegates whether the said Appeals be properly brought before this House The Opinion of the Committee being that the said Appeal did not properly come before this House The Opinion of the Committee being that the said Appeal did not properly come before this House After debate and consideration of Presidents the Question being put Whither to agree with this Committee in the Report It was resolved in the Affirmative and it is thereupon Ordered that the Petition and Appeal of the said Charles Cottington be dismissed the House of Peers It is to be considered in this matter Considerations upon this Case that after the Sentence in favor of this Gallina by the Delegates Mr. Cottington Petitioned the King in person for a review or dis-annulling the Decree which the King refused to grant and upon that the Petitioner Addressed himself to the Lords whose Order I have recited and tho' it be not expressed in the same Order why the matter was not properly brought before their Lordships yet it is well known that the cause was by reason that Appeals in Ecclesiastical causes do not lye before their Lordships If I could have procured the Printed Case I might have enlarged upon this matter and if it be my good fortune to meet with it before the Publication hereof I shall take notice of what may be material in the Appendix §. 16. The Ninth Objection that matter of Fact proves not right It is Ninthly Objected that tho' it be allowed that the Kings of England have sometimes dispensed with College Statutes and done those things I have all along Instanced in yet that proves not the Right or Justice of the thing since à facto ad jus non valet consequentia To this I Answer The Answer there is a vast dis-proportion betwixt the Acts of Kings and of Subjects Constant and un-interrupted usage are the Foundations of the Customs of England which are Incorporated into the Common Law of the Land and so many Rights are determined for private persons But in the Orders of the Sovereign one declaration of his pleasure by Mandate in several Cases is sufficient Precedent tho' but rarely made use of upon the presumption in Law that such Acts of Kings are not without deliberate consultation However the constant practice of the Kings of England which I hope I have fully proved takes away all colour for this Argument And it is most certain if the Kings dispensing power with Statutes and putting in Heads of Colleges Fellows c. by Mandates If the Kings Prerogative in this Case had been against Law it would have been questioned at some time had been against the Law we should at some time or other heard of Actions brought before the Judges against the Kings Authority in that matter and found determinations upon them in favor of the aggrieved which I think is not to be found But the Kings of England have been in Possession of this Prerogative in all Ages The King in Possession of this Prerogative tho' most conspicuously since the Reformation and so this Prerogative must be adjudged to appertain to the King till by some Legal Tryal it shall be determined otherwise It may be upon this Topick rationally urged that tho' the Kings dispensing power in other matters be in
Moderation and Reason how great a scandal to our Religion how great a stain to the liberal and ingenuous Education which this Society would afford you and how very mischievous it will be to your selves at last I endeavored to convince you at the first Opening of our Commission Since which time some of you have been so unreasonably inconsiderate and obstinate as to run yet farther upon the score of His Royal Patience and Pardon for which you are now to receive the just and necessary Animadversions of this Court that the Honor and Authority of the King may be Vindicated and the Peace of Church and State not be endangered by your Impunity or our Connivance at this your petulant humor and contumacious behavior No Subjects can be wise or safe but they who are so sincerely honest as to take all fair occasions of doing their Prince acceptable services and executing his Will Reputation abroad and Reverence at home are the Pillars of safety and Soveraignty these you have endeavored as much as in you lies to shake nor can the King hope to be well served at home or observed abroad if your punishment be not as public as your Crimes No Society of Men in this or the other University ever had so many Male-contents and Mutineers in it as this College your continual clashings and discords sometimes with your President at others with your Visitor and so frequently among your selves ever since his late Majesties happy Restauration have been too public to be concealed I have more than once heard your late Visitor of Pious Memory bewaile the great unhappiness of this Noble Foundation in being over-stockt with a sort of Men whom a wantonness of Spirit had made restless and unquiet who would never be satisfied whose disease was fed by Concession and then most violent when they knew not what they would have You have been long experienced in the Methods of Quarreling with your Visitor President and your selves and by these steps you are at last arrived to the top and highest degree of insolence which is to Quarrel with your Prince which as it dis-honors your Religion so it Proclaims your Pride and Vanity for every dis-obedient Man is proud and would obey if he did not think himself wiser than his Governor You have dealt with His Sacred Majesty as if he Reigned only by Courtesie and you were resolved to have a King under you but none over you and till God give you more self denyal and humility you will never approve your selves to be good Christians or good Subjects whose Patience and Petitions are the only Arms they can ever honestly use against their Prince You could not be ignorant of the Kings being your Supreme Ordinary by the Antient Common Law of this Land of which the Statutes are not Introductory but declaratory you have Read what Bracton says de leg lib. 1. c. 8. ◠5. who was Lord Chief Justice of England for Twenty Years in Henry the Thirds time Nemo de factis suis praesumat disquirere multò minùs contra factum suum venire Now His Majesty the Fifth of April sent his Letters Mandatory to you to Elect and Admit one Mr. Farmer into your Presidents place then void by the Death of Dr. Clark your last President Whom the Tenth of April you represented to His Majesty as incapable of that Character in several respects and besought him as His Majesty should think fittest in His Princely Wisdom either to leave you to the discharge of your Duty and Consciences according to his late Gratious Declaration and your Founders Statutes or to recommend such a person who might be more serviceable to His Majesty and the College This Paper was delivered to my Lord President the Tenth of April and on the Fifteenth of April without expecting His Majesties Answer as your Hypocritical submission would have persuaded all Charitable Men to believe you did and would expect in Contempt of his former Mandate which had the force of an Inhibition you proceeded to Elect Dr. Hough for your pretended President Upon the first notice whereof the Sixteenth of April my Lord President sent a Letter by His Majesties Command to the Bishop of Winchester not to Admit him But they who have ill designs in their Heads are always in hast by which you surprized your Visitor which occasioned my Lord President the 21st of April to Write another to you to let you know how much the King was surprized at your Proceedings and that he expected an Account of it Then were you Cited before the Ecclesiastical Commissioners at Whitehall where upon mature deliberation and a Consultation had with the best Common Lawyers and Civilians Dr. Houghs Election was declared void the 22d of June and he amov'd from the same by their Lordships just Sentence Of this you were certified by an Instrument under the Seal of the Court of the same Date affixed to your College Gates which being dis-obeyed you were once more Cited by an Instrument of the first to appear before their Lordships the 29th of July to Answer your Contempts You pretended when you came before their Lordships that you were deeply affected with the late Sense of His Majesties heavy dis-pleasure and beg'd leave to prostrate your selves at His Royal Feet offering all Real Testimonies of Duty and Loyalty as Men that abhorr'd all stubborn and groundless resistance of His Royal Will and Pleasure So said and so done had been well but you were resolv'd it seems to give him nothing but good words and that your Practice should confute your Profession I wish you had known in time as well as you pretended to do how entirely your welfare depended upon the Countenance and Favour of your Prince it would then have been as great a grief to you to have dis-obeyed His Majesties Commands as it was a guilt and will be a punishment both in this Life and that to come if not repented of in time On the 14th of August His Majesty signified His Will and Pleasure to you by His Letters Mandatory and thereby Authorized and required you forthwith to Admit the Bishop of Oxon into the place of President any Statute or Statutes Custom or Constitution to the contrary notwithstanding wherewith he was Graciously pleased to dispense to which he expected your ready obedience but all in vain for to your shame be it spoken you had done an ill action and resolv'd to set your busie Wits on work to defend it And Conscience the old Rebellious Topick must be call'd in at a dead lift to plead for you But you are not the first who have mistaken an humor or a disease for Conscience your scruples were not such but that they might without sin have been Sacrificed to your Princes pleasure as a Peace-offering to the Father of your Country to your Mother Church and to the good of this and all other such Charitable Seminaries of good Learning and Religion and Men as wise as you perhaps may think
taken not mentioned by Statute There the Election is not of necessity nor the Transgression punishable by Statute But this Election is not at the appointed time by Statute Therefore this Election is not of necessity nor the Transgression punishable by Statute The Minor is proved Statuto de finali computo Ministrorum because that Election is appointed at no other time but only at the Audits end Thirdly Where the Essential and material parts of an Election are wanting there is no Lawful Election nor Lawful punishment for Transgression thereof But this Election wanted the Lawful Thirteen Electors as Essential parts because non Socii are no Electors Therefore this Election is neither Lawful nor the Transgression thereof Lawfully punishable The Minor is proved before in Mr. Gregories Brickendons c. Cases Fourthly Dr. Coveney being President Pronounced Expulsion against Nine Fellows Namely Perry Wilson Flower Kingsmill Purfoy Mancel Garbrand Smith and Hallowaye for refusing an Extraordinary Election but notwithstanding they were restored by Sir John Mason and the Bishop of Ely These were Visitors and of this case I may probably write something when I Answer the Objections and Dr. Wright affirming their Expulsion to be unjust and their refusal to stand rather with Statute then the Presidents proceedings therefore we trust our Cause being like the like effect by justice will ensue And the rather for that Mr. President at the place and time of his Sentence of Expulsion against us Statuto 26 Unom proveditur contra Socios c. §. Assistentibus c. neither required nor used the assent of any the Officers of the College which are requisite by these express words of our Statutes Assistentibus sibi Vice-Praesidente duobus Decanis Bursariis Neither yet about a Sennight after the end of this Unjust Action against us attempting to get the Consents of the said Officers could he obtain the Dean of Divinities Assent to our Expulsion which is most necessary in every punishment of a Divine such as we are Conclusio Statutorum sub finem §. volumus praeterea c. and especially at this time when as there are but two Deans only and both their Voices in an Expulsion necessarily required as is before said As they have proceeded in this matter according to their Oath for the Maintenance of Statute so will we as bound in Conscience before God by reason of the Oath we have taken stand in the same and make claim against them never minding to joyn in an Act with them Incident and proper to the person of a Fellow but upon necessity until the said persons whose places we make claim against be clean removed or an Order set down by the Bishop and In-registered for the Confirmation of their places to the clean cutting off of all Controversie hereof arising and therefore we protest hereby that this is not so much the proper Case of these our Six Fellows but generally ours taking our selves as much prejudiced as these being perswaded we may in no wise suffer it without willful Perjury to us and therefore purpose for ever until it be fully ended according to our Oath to resist their unjust detension viis modis quibus Sciverimus quoad posse In Witness whereof we Fellows have in the fear of God all partiality set a part Subscribed with our own hands hereunto This is Subscribed by the Six Fellows Expelled and some others of the same Society who joyned with them I shall now Insert the Second Paper which contains the Vindication of the proceedings of Dr. Humphrey and the Fellows Answer to it §. 5. The Second PAPER A Declaration made to the Right Honorable Mr. Francis Walsingham the first of July 1575. by Mr. Wade Gregory and Sir Cotton sent by Dr. Humfrey President of Magdalen College in Oxford upon the Case of Mr. Cole and Five other Preachers Expelled by the said Dr. Humfrey for not yielding to an Election of a Dean and Apostilled by the said Mr. Cole and the other at the Commandment of the Right Honorable Mr. Francis Walsingham the 4th of July 1575. at Easton Dr. Humfreys Defence IT happened that God by Death took away Mr. Judson one of our Deans whereupon it was 1. Decreed and thought 2. necessary by Statute Mr. Powel Mr. Cole Mr. Lumbard and the rest that another should be chosen in his Room Mr. Doctor Humfrey the next Day called together 3. such as had any thing to do in the Election what time Mr. Powel Cole Lumbard 4. denyed to proceed in the Election to 5. give any voices which was flat against our Statutes and 6. deserved incontinently the Sentence of Expulsion Yet Mr. Dr. Humfrey hath not to deal extreamly stayed and declared unto them the danger they incurred exhorted them to consider the pain of their 7. contumacy deferred the Election until another season at what time 8. because they would not be found they went a Mile out of the Town to Bowles The next Day they were again sent for where Mr. President yet again Counselled them to beware who persisting in their former mind and purpose 9. causing others to intermedle themselves in that which pertained not unto them by rushing very troublesomely into the Common Hall of purpose to interrupt the Election did 10. force Mr. President to pronounce the Statute against them which is that whosoever being called to the Election of any Officer having to do in the same shall 11. deny to give his voice must be removed from his Fellowship forthwith The Defence of Mr. Powel Mr. Cole and Mr. Lumbard THey were perswaded that they ought to give no Voices 12. until certain of the Fellows were removed out of the College whom they did not Account of their Company The Answer of their Defence ALL places that the Challenged were allowed by 13. Statute consent of Mr. President and Confirmation of the Bishop of Winton or else were commenced as doubts and referred to the Arbitrament and determination of the Bishop whose 14. Interpretation they would neither stand unto as given or 15. stay for as by occasion of his 16. business deferred but against all Law and Reason would have certain removed before the 17. Sentence were given of them from their Judge the Bishop of Winton All the 18. doubts and Reasons that they could allege for their restoring were answered and 18. refuted by the Bishop himself who in the end gave a 19. definitive Sentence against them and allowed the places by them called in question at that time as good and sufficient Tho. Cole Henricus West Walter Enderbie Willi. Powel Nicho. Lombard Raphe Smythe The Fellows Answer 1. FIrst it was not Decreed Note in this the Numeral Figures in the Fellows Answer refer to the like in Dr. Humfreys Defence but only consulted on 2. Secondly it was thought of some expedient as * * It seems that for Discipline sake their Statutes might be dispensed with in their Opinion necessary for Discipline