A defence of the proceedings of the Right Reverend the visitor and fellows of Exeter College in Oxford with an answer to : 1. The case of Exeter College related and vindicated, 2. The account examin'd.

A DEFENCE , &c.

MOST of those that have read the Case of Exeter College related and vindicated , are sufficiently convinc'd that so bad a Cause stood in need of better Advocates . The Pamphlet ( as the Preface intimates ) was design'd to draw over the unthinking part of their Adversaries , and whatsoever influence it may possibly have had upon them , it hath not fail'd of a contrary effect on the thinking part of their Friends . The only Art ( if any ) of the Discourse is , That it is intricate and confus'd , and perplexes the Cause which it cannot refute . And therefore the plain and direct Method of answering it , is to reduce the Controversie to a Point ; and afterwards , in short , to consider the wide and immaterial Exceptions to it .

The single Point then now in Issue is , Whether Mr. Painter be Rector of Exeter College : His Admission must intitle him to that Office , and an Avoidance must preceed and warrant his Admission : If Dr. Bury then was rightly remov'd , there was room for a new Choice ; And , since no other Objections are made , upon the lawfulness of his Expulsion the Validity of Mr. Painters Title depends . The most notorious Heresie , gross Incontinence , and scandalous Bribery , are admitted to be good Causes of Expulsion ; but it is pretended that the Bishop of Exeter had no Conusance of the Cause , and consequently no Power of inflicting the Punishment .

That the Bishop is Ordinary Visitor , and Patron of that College , is not to be deny'd , and that none else have any Visitatorial Power therein , is admitted : But a scruple is rais'd , whether , and how far this Power is subject to Restrictions , when it is suspended , and how reviv'd : What are the imaginary Extent and Bounds ; When the absence and return of this intermitting Authority .

It is pretended then , that the Bishop of Exeter , tho Ordinary Visitor of that College is barr'd from any Power of receiving Appeals , and is restrain'd from any other than a Quinquennial Visitation : And that therefore , upon the Execution of the Appeal by Dr. Master within the Quinquennium , the Bishops Authority of making a Visitation is determin'd .

To prove this Opinion , two Assertions must be laid down .

1. That the Visitor of Exeter College hath no Power of receiving Appeals . 2. That the Execution of a Commission of Appeal , amounts to a Visitation .

For if the Visitor had both Powers lodg'd in him , it is not pretended that the Execution of one determines the other ; and therefore their Cause depends on the Truth of both ; ours on the Falsity of either of these Propositions .

These Positions are so absurd in themselves , and so ill defended by the Promoters of them ; that they are refuted as soon as explain'd ; and the whole Controversie will vanish at the same time that the Terms are setled . It will not be immaterial therefore to discourse of the true meaning and extent of the Words Visitor , Ordinary , Appeal and Visitation , and from thence to discover the gross Errors and Mistakes of the late Pamphlet .

And herein I must take leave to make use of not only the Authorities of Common Law , but in a great Measure to call in the Assistance of the Canon . For since the Statutes of Colleges have a necessary dependence on the Ecclesiastical Laws , since their Elections , Controversies , and Proceedings are regulated by them , since lastly Visitation it self , if it is not now always circumscrib'd to Spiritual Societies , was yet originally us'd in Churches only , and Religious Places and still pursues the usual Forms of the Canon Law ; it it absolutely necessary , and is usual in the Year Books , in Cases of this Nature , to receive from the Canonists the Explanation of those Terms which are borrow'd from them . And therefore tho the late Author hath been pleas'd to defie the Civil and Canon Law , yet all judicious and learned Men are satisfied , that as it is much easier to contemn any Science than to attain it ; so in a Cause of Spiritual Conusance , or which is nearly allied thereto , it is much better to have Canon Law , than to want Common : For if we look into the late Case we shall find , that this sworn Adversary to Ecclesiastical Laws , took not his Malice against them out of any great propensity to Temporal ; and that Ignorance of one part of Learning is no certain pretence to another .

A Visitor then who is in Law , always the Patron of a Society , and a Conservator of the Local Statutes thereof is intrusted by Law to reform all Abuses and Disorders therein , and to redress all Grievances of the Members thereof .

The Appointment of this Person , who is to be Visitor , is the Act sometimes of the Law , and frequently of the Party : But when ever any Person by good Authority is made Visitor ; the Law it self casts upon him all the Powers incident to , and necessary for the Discharge of that Office . A Visitor is a Term of as certain , and as determin'd , tho perhaps not of so well known a Signification , as an Executor ; and therefore tho the nomination of the Person himself may be from the Party , the Authority is always ascertain'd by Law , the one is ex Institutione , the other ex Provisione Legis . And tho these Powers may be divided , and plac'd in several Persons , as Visitors , Ordinary and Extraordinary ; yet where-ever any Person is constituted sole Visitor , and all others are expresly excluded ; there the General Appointment vests him with all Authority requisite to the performance of his Duty . For if the Place be of necessity visitable , then the Rights of Visitation , where-ever they may be lodg'd , and to whomsoever transferr'd , cannot however be diminish'd , much less taken away . And therefore any discretionary Rules given to a Person who is confess'd to have the sole Authority of Visitation , ought to receive , especially if they fairly can , such an Interpretation as is consistent with the known Powers of a Visitor , and the Will of the Founder . For whosoever by plain Words constitutes a Visitor , and afterwards is conceiv'd by doubtful Expressions to deprive him of the Power necessary for that Office , must either design to transfer this reserv'd Authority to some other , or for some time at least to exempt the Place from any Visitation . Now if the Exemption of such a Place from Visitation , for any time , upon any Grievance or Enormity committed , be repugnant to Law , and the letting in of another Visitor , be evidently contrary to the declard Will of the Founder ; then it follows , that these restrictive Directions may and ought to be so construed , as may neither be repugnant to the Will of the Founder , nor derogatory to the known Law of the Land .

This General Power of Visitors , is not only ( as will afterwards appear ) allow'd in all Books a Fra . de Pav . de Vis . Marianus Soc . de Vis . Zerola . v. Vis . Mendo de Jure Acad . de Vis . Acad . Chopin . de Monast . & de eorum Vis . of Canon Law ; but is likewise frequently in the Year Books , and other Reports of Common Law presum'd and acknowledg'd .

Littl . Sect . 139. If they which hold their Tenements in Frankalmoign will not , or fail to do Divine Service ; The Lord may not distrain , but may complain of this to their Ordinary or Visitor , praying him , that he will lay some Punishment and Correction ; for this , and also provide , that such Negligence be no more done , and the Ordinary or Visitor of Right ought to do this : And Coke p. 96. Expounds of Right , de Droit , in the Right of his Office : And therefore that the Powers that belong to the Office of a Visitor , are such as can correct at any time all Failures and redress them .

Term . Mich . 9. H. 6. fol. 34 & 33. The Visitor , or Sovereign Paramount of the Order , hath power to visit an Abby , and those Powers are declar'd to be General , Ordinary and Extraordinary .

And therefore by the Statute 2 H. 5.1 . Visitors are appointed to enquire into the Governance and State of Hospitals , &c. and of all other Matters ( without restriction of Offences or limitation of time ) and to reform , and to correct them : and in the Case of Sutton's Hosp . 10. Rep. p. 5. To visit , is explain'd by , to order and reform all Disorders and Abuses in and touching the said Hospital . a

See Siderf . p. 71. Widrington's Case , and 8 Ass. Ed. 3.

P. 1. c . 1. Ordinary . See Minard Pictav . Antecessor ad Cap. Conq . de Officio Jud . Ord. Ordinary ad le Power de Visitation de Me●o Jure Dav . Rep. p. 3. See Mendo de jure Acad . Ad Ordinarium spectat Universitas Causarum Calv . in v. Ord.

Visitator est fidei Commissarius , is the Trustee and Representative of the Founder , and hath the same Power in the Government and Preservation of the College , as the Founder himself ; and therefore it is evident , that in both Laws the Universal Jurisdiction of all Causes relating to the State of the Society , and the Governance thereof is of Right , and of necessity committed to the Visitor .

Now if this Rule holds in the Case of a Visitor in General , it is infinitely more strong for him , who is constituted Ordinary , or Ordinary Visitor ; For that Word , as well in Canon , as in Civil Law , ( and since , as thence receiv'd ) in Common , implies and carries with it original and universal Jurisdiction . An Ordinary is distinguish'd as from a Delegated ; so from a restrain'd Judge , he hath within his Sphere , and within his Forum ( whether Secular , Ecclesiastical or mixt ) the Conusance of all Causes whatsoever , and that of himself , without any deputation . And therefore tho the Nature of the Causes , and the procedure upon them may be different ; yet as to the rise and extent of the Power , the Jurisdiction of all Ordinaries in their respective Courts , must be the same , and equally Universal .

Now then as the Canon for prevention of Proxies restrains the Bishop , tho Ordinary to triennial Visitations of his Diocess ; so the Local Statutes for prevention of Sportulage , limit Visitors to a Quinquennial Visitation of their Colleges : And yet the Canon , and the Statutes that restrain the Solemn Visitation , bar them not in the mean time from the ordinary Acts of Jurisdiction . A general and chargable Enquiry ex Officio mero into Matters undetected is limited ; but a redress of emergent Grievances , and the Conusance of Matters delated , as necessarily incident to his Office of Ordinary , neither is , nor without an apparent Failure of Justice can be taken away , or restrain'd . And therefore as in all Dioceses , so in all Colleges , where the Right of a triennial or quinquennial Visitation is lodg'd , there in the same Person , this Power of redressing Grievances in the interval , hath always been presum'd and allow'd . And as the Practice in all Colleges hath always been the same , so is the reason of it too : An Universal Provision for all Grievances is design'd ; the Redress of them is plac'd in the Ordinaries and Visitors only ; and therefore their Power doth

Visitatio intromittitur saepius necessitate existente , Ugolin p. 103.

Regula quae respicit Commune , & regularem visitationem , quae fit etiam fine causit , non prohibet iteratam , si causa subesse . Marian . Socin . de Vis . See p. 241.

This Fra . de Pavinis calls quotidiana Visitatio , quae fit quotidie ex multis causis eme gentibus . Tr. Tract . Tom . 14.

and must during the triennial Term extend it self to any occasional Exorbitances . It is further observable , that an Ordinary is said to have an internal Jurisdiction , and such an one as is opposite to a forreign Authority ; and therefore when Bishops visit their own Hospitals de Jure , they act as Ordinaries , but when appointed by the King , they have only a borrow'd , forreign , and delegated Jurisdiction . When Bishops visited their Dioceses , they were domestick Judges ; but when tanquam Sedis Apostolicae delegati , they visited Monasteries and places exempt ; they had only an extraordinary and derivative Authority .

This is the Power of a Visitor , which may and ought to be exercis'd in those Places that are of right visitable , and therefore it is next to be remark'd , that not only Churches , but all Free Chappels , all a Coke 10. Sut . Hosp . 31. Brook Ab. 55. vid . 2. H. V. St. 1. 14 Eliz . c . 5. 13 Eliz . c . 17. Lyndw . l. 3. c . 10. 14 Eliz . c . 5. 2 Inst. p. 725. Roll's , Ab. f . 229. 8 E. III . 70.37 . Davies Proxies 23. 9 H. VI . 3● . 9 Ed. IV . 24. Hospitals and religious Houses , as well of Seculars as Regulars , all Universities and Colleges , all b

See Hostienfis de Rel . Dom .

Greg . l. 5. Tit . 31. c . nimis iniqua . Quarrant v. Exempt . Genuens . in prax , c . 59. Vid . Rebuff . de confra . Lup . de Xen . Summa Sylvest . in v. Hosp . § 2. n . 3. Rolls . Ab. p. 22● , 230.

Vgotin . p. 103. Visitari debent ab Episcopis quae Generalibus Capitulis non sunt subjecta .

Angel . in v. Hospit . Et hoc procedit etiamsi Testator qui aedificavit prohibuisset ; ne Episcopus in tali negotio intromitteret Conc . Trid . Sess. 7. c . quia Testator non potest facere , quin in leges suo Testamento locum habeant .

11 H. IV . & 41. Ed. III . 5 , 6. See Marrad . de Jure Abbatum Praescriptio tollens visitationem non valet , quia cedit in damnum publicum , sed valet quae transfert .

Lay-Confraternities instituted for charitable Designs , and in short , all Loca pia , whether they be ecclesiastical , lay , or mixt Societies , are in both Laws , Canon and Common , subject to Visitation . And therefore if no particular Visitor be appointed by the Founder , and no other provision is by Law made for the Visitation , then the Canon and Statute supply the Omission , and entrust the Ordinary of the Place with this universal Jurisdiction . There is no prescription against Proxies , no more than against Tiths ; the one is as incident to a Visitation as the other to Instruction ; and both those are and have been esteemed of indispensible necessity . Visitation is as incident to those Societies as a Court to a Mannor , and is equally of common right and of common necessity : And therefore b Non valet praescriptio ut ab aliquo visitari quis non possit , sed bene valet contra Episcopum quod alius Praelatus visitet . Cald . Lond . 453. it is , and was a received Rule in both Laws , that of such visitable Places and Persons none can in any place be wholly exempt , but must either be immediately subject to one , or reserv'd to another Power .

Now there are two Methods by which all Grievances and all Exorbitances may be brought into question before the Visitor ; one is the Complaint of the Party aggriev'd ; the other the general Enquiry of the Visitor himself into all the Offences of his Subjects : The former is by the Prosecution of the Party , the latter upon the mere Office of the Judg ; the one of these , tending to the Redress of particular and occasional Grievances , gives foundation to an Appeal ; the other , aiming at the Reformation of all general growing Misdemeanours and Exorbitances , affords Matter for a Visitation . Now tho it is certain that all Visitors are entrusted with both these Powers , as equally necessary for the preserving the College , yet is it no less evident , that both these are distinct in their Nature and End ; and that nothing but gross Ignorance can confound them . Nothing but Complaint made to a superior a Dav . Rep. Case Proxies . Judg by a particular Person , in his own necessary defence for his own private Interest , and which tends not so much to the Punishment of Offenders , as to his own Relief , can produce and occasion a Commission of Appeal . But the Confession of his own Subjects , made upon Oath to a Judg , upon his enquiry for the Execution of Justice and which propounds not any private Amends and Satisfactions , but the publick Good , and the Safety of the Body Corporate is the ground of a Visitation .

Now then , since I have in short laid down the necessary Powers of a Visitor and an Ordinary ; the usual Methods of their Procedure upon an Appeal , and in a Visitation ; and lastly have shown the Nature of Places visitable ; it remains as briefly to apply these certain and general Rules to the present Case in question .

The Founders of Colleges then as they design the Perpetuity of their Estate , so they equally desire the Continuance of their own Laws and local Statutes . a 6 H VII . 14. Fitz . N. Br. fol. 93 94. Their Trustees for enforcing these Orders and Constitutions are by Law their Heirs ; and , by appointment , usually among Bishops , their Successors . These are , in respect of their Protection of the College , called Patrons ; in reference to their Jurisdiction , Visitors . For as it is a certain Rule , That a Founder hath in him the Power of Visitation , so is it no less controverted , that a b 8 E. III . Ass. 29. & 250. Patron , who is loco Fundatoris , succeeds to those Rights , and by construction of Law , is Visitor . Oftentimes , as is easie to be seen in the Charter of ancient Hospitals and religious Societies ; there is nothing more specifi'd than Visitatorem relinquimus ; and in others , Patronum designamus ; and those words only by plain and necessary implication , convey'd the visitatorial Jurisdiction in its full extent and latitude . The Power of receiving Appeals was so great and so necessary a part of that Authority , that tho I find in very few Statutes of Monasteries and religious Societies , that Liberty expresly given them , yet was it presum'd , own'd and practis'd in all . Whether the visitatorial Power was lodg'd in the Ordinary of the place , the Principal of the Order , the superior Abbot , the Capita Ordinum , the Judex Academicus , the Conservator Universitatis , or lastly in the local Visitor of the College , it is a certain undeniable Proposition , that wherever the entire Power of Visitor is plac'd in one Person , there , as an incident to the Office , the Redress of Grievances upon Appeals was by Law vested and setled .

And therefore , tho the pretended Restrictions are as strong in almost all Colleges in the University as in Exeter , there is not one , at least of any standing , wherein Appeals have not constantly been made to the Visitor . And as Custom and common Practice have own'd the Visitor's Authority herein , so likewise the Courts at Westminster have countenanc'd and approv'd it . And therefore in Apleford's Case , Mic . 22. Car . B. R. in Widrington's Case , Hill . 13. and 14. Car . II . B. R. in c See Whitlock's Read , Div . 3. Point 9. See Patrick's Case , Hill . 18 , 19. Car . II . B.R. Dr. Lewis's Case , Provost of Oriel . in Parkinson's Case , 1mo W. & M. B.R. in Proost's Case , Hill . 3io W. & M. B.R. it is resolv'd , That the proper Remedy of all expell'd or injur'd Heads Fellows or Members of Colleges , lies in an Appeal to the local Visitor only , and that they are concluded by this determination . If there be a Jurisdiction in the Visitor , saith my Lord C. J. Hales , and he hath determin'd the Matter , how will you get over that Sentence ? and thereupon a Mandamus was deny'd . But if a Fellow had no Visitor to whom he might appeal , as in Herns Case , the Mandamus was granted and adjudg'd good . Since therefore in all other Societies and Monasteries an Appeal to the Visitor hath been granted , since in all Colleges it hath been us'd and allow'd , and since as in all foreign Courts , so especially in those of Westminster it hath been unquestionably admitted , nothing needs further to be added to the Confirmation of it , than that in Exet , Coll . the Statutes do more plainly cast that Power upon the Visitor , than in most other Colleges of the University .

The Statute De Visit . says , Adeo pronum & ad malum proclive est humanum genus , & uti quotidie videmus , varietas temporum optima quaeque aufert , & mutat , ut non sit in nostrâ potestate eas condere Leges & Statuta quae non violet aliquando astutus , & versipellis , aut malè interpretando aut aliquid fraudis ingerendo aut excogitando modum quo nodum quamvis Herculeum dissolvat .

Distinctions , he was sensible , were to be found out ; the Statute might easily be eluded ; Bribery might be construed Repairs ; Promotionis causa might be interpreted a Benefice , and therefore against all these Evils he provides a Visitor , unhappily not forefeeing , that even this Remedy it self might malè interpretando be distinguish'd into nothing .

Nos eam ob causam , ea quae duximus nostro tempore utilia & commoda , inferentes quòd ea conservanda rectéque interpretanda attinet , confidimus authoritati & benignitati Episcoporum Exoniensium Successorum nostrorum , quos dicti Coll . Patronos & Visitatores relinquimus , ut illi qui ex sua liberalitate & mera benignitate adducti ac fervidâ charitate in fidem Christianam inflammati , ad hoc Alvearium conservandum invigilent , ut Statuta & Ordinationes dicti Collegii firmiter observentur , virtutes & disciplinae nutriantur possessiones & bona spiritualia & temporalia prospero statu floreant , jura , libertates & privilegia defendantur & protegantur .

Now I would willingly know , whether relinquimus Patronos , & Visitatores , be operative Words or not ; whether confidimus autoritati & benignitati Episcoporum Exoniensium ut ad hoc Alvearium conservandum invigilent ut Statuta & Ordinationes dicti Collegii firmiter observentur , &c. are fit for an universal provision ; and do consequently lodge in the Visitors thereof an Universal Jurisdiction ? whether it is possible to defend Possessiones & bona spiritualia & temporalia by a Visitation once in Five Years , which may be dilapidated in less than one ; whether it will be easie protegere Jura & Libertates of the Members thereof , by restoring them Five Years after Expulsion ? Could there be more expressive , plain and extensive Words found out for the Settlement of the Visitatorial Power ? and can it afterwards be thought that the Founder design'd to expose his College and the Members thereof to all growing Evils , to all occasional Grievances , and emergent Exorbitances and Combinations ?

It is plain then that the Founder repos'd the whole Trust and Care of the College in the B. of Exeter his Successor ; and to that end constituted him Ordinary Visitor , and Patron thereof , in so general and expressive Words , that in all the Appointments of the Visitors , either of Hospitals or of Monasteries , or of Colleges ; I never saw , and believe there is not , any one Instance wherein larger Powers were granted to a Man , and where the Grant was ever made with more Solemnity : And therefore , if this Power ( which is an impossible Supposal ) ; but if it should fail in its bottom , I dare , upon enquiry , affirm , that no visitatorial Jurisdiction of Churches , Hospitals and Chappels , can upon more expressive Words be maintain'd and supported , and that all the provisonary Constitutions of those Societies were vain and idle Appointments . For if Founders do adjure , and in Visceribus Jesu Christi beseech their Successors ; ut fervidâ Charitate in fidem Christianam inflammati , they should expell all Heresie from their Society ; and if afterwards their Saviour in this very College should be expos'd as a Galilaean Vagabond , and a Crucifi'd Vagabond , and if all the Fundamentals and Articles of Faith should be therein ridicul'd to the known disturbance and abhorrence of the whole University in a most solemn manner dclar'd ; and if , lastly , it is impossible for the sole Visitor of that College to give any redress herein , or to allow any less scope to the Rector for Libelling his Saviour here then a Quinquennium ; then it must be allow'd , I suppose , that these Rules and Orders were inconsistent and null , and the well meant Dreams of their Religious Founders ; But if an Universality of Jurisdiction , as plainly it is , be lodg'd in the Bishop , and may upon such Emergencies be exerted , then is the Founder consistent with himself , then his plain Words will have their due Force ; And the College according to his appointment may be govern'd and preserv'd .

I shall insist now on no more than one other Branch of the Statute . Quos quidem Rectorem Subrectorem , & Electos , ac praeterea Ministros quoscunque & Famulos , praedicto Domino Episcopo , & suo Commissario , sed nulli alli , volumus & praecipimus effectualiter intendere & parere .

As before , the Bishop was appointed Visitor ; so here all others are barr'd from any Partnership in the Authority : The Powers that were given him are intire , and undivided ; and all the Controversies are taken away , that usually arise from concurrent and interfering Jurisdictions .

Now since by express Words so large Authority is plainly lodg'd in the Bishop of Exeter ; let us consider what is offer'd to divest him of this Power .

1. A Fellow hath sworn not to commence a Suit against the College , and hath renounc'd the Right of Appealing .

Omni Actioni contra Rectorem , &c. quomodolibet appellationi & querelae in ea parte faciendis & quarumcunque literarum impetrationi , precibus principum , praelatorum , &c. quibus possem ad jus , titulum & possessionem vendicandam reconciliari , ac quibuslibet juris vel facti remediis , per quae me petere possem in integrum restitui , quantumcunque aliàs mihi probitatis & vitae merita suffragantur in vim pacti renuncio .

Now if in this Oath it should be admitted that the general Words should include the Visitor , as they plainly do not ; yet nevertheless how can any Judge be sworn out of his Authority by a Fellow ? If he had not Power of receiving Appeals before , The Oath under this Interpretation would be vain ; and if he had , the Oath , in regard of the Visitor would be void and ineffectual . If all the Tenants of a Mannor should swear not to attend the Court , the Oath would not only be illegal in respect of the Tenants , but vain in reference to the Lord . The Oath is not design'd to take away Jurisdiction from the Judge ; but to take away some Liberty from the Fellow ; If Men should upon Oath submit to Referees or Arbitrators , the Power of the Courts would not be diminish'd , but the Right of the Subjects restrain'd ; for it is a vain and senseless conceit , that if my Authority , of what Nature soever , whether from King or Subject be legally vested in me , any Man by his Oath can swear away my Jurisdiction .

2. This Opinion as absurd as it now seems , is more so , if as really , there is not , are there be no such Oath at all : A Fellow renounces indeed Appeals in General , and those Words of Latitude are put into a certain and determinate Signification .

Now the Visitor cannot come under those Words , however large and extensive ; the Visitor hath a domestick and internal Forum ; and whereas a Complaint to him is an application to an ordinary Judge ; An Appeal in propriet of Speech is a recourse to a forreign or superior and extraordinary Jurisdiction : In all Abbies , and in all Colleges , in all Instances of Canon and Common Law , these general Words excluded any other Authority , except that of the Visitor ; but did secure and strengthen his Jurisdiction . And therefore when the Statutes of Exeter College were made , the Founders well knew the Power of the Visitor as setled by Law ; they knew the Practice of all Colleges , from whence these Statutes were transcrib'd ; and therefore if they had design'd to put any new Limitations to the Visitors Authority ; it is impossible to think but they would have found out new Words to express their Intention . These Statutes , however ancient the College is , are of a late date ; the Usage of all other Colleges was then known and fixt , and therefore if any more than the customary Renunciation had been design'd , the usual Oath would never have been borrow'd and impos'd . All Letters of great Men are renounc'd ; all forreign and vexatious Suits are forbidden , and would it not have been as easie ( since he descended to particulars ) to bestow one word upon the Visitor , and at least by Name to exclude him ? The Absurdity of that Opinion , if it needs be further demonstrated , appears most visibly in this following Instance : The Rector is by Oath barr'd as much from all these juris & facti remediis per quae possit in integrum restitui , and renounces them in vim pacti , as well as the Fellows ; and yet in the Statute he is expresly allow'd to appeal to the Visitor . Now would a Founder give a Man a Liberty by Statute , which he takes away by Oath ? Would he settle a Right in the Rector in one Statute , and oblige him to swear himself out of it in another ? It is clear then , that the Visitor was not within the purview of that Oath , and that the Rector would have been guilty of no Perjury for appealing to him . But I leave it to his Polonian Casuists to distinguish him out of it upon his farther Appeal .

If then the Visitor hath general Powers vested in him by Law and by Statute ; if he is the Conservator of the College ; and as in their Acts he is formerly call'd Patronus , and Supremus Judex therein ; if he can redress all Grievances , and hath consequently the Power of Receiving Appeals ; it is not possible that a Fellow's Oath , tho it should have particularly nam'd him , can devest him of that Authority ; and if such Oath doth not particularly name him , nor by Comparison with other Statutes , was intended to exclude his Jurisdiction , it is certain that the Authority remains entire ; and , that in the same manner as Appeals lay to him before the Oath , they must be admitted to lie after it .

2. The second Exception to this Universal Authority is drawn from the Words of the Statute de Vis .

Eâ de Causâ liceat Domino Episcopo Exon , qui pro tempore fuerit , & nulli alii , nec aliis , quoties per Rectorem dicti Coll . & in ejus absentia Subrectorem , & quatuor alios ad minus , ex septem maximè Senioribus Scholaribus fuerit requisitus ; Nec non absque requisitione ulla de quinquennio in quinquennium semel ad dictum Coll . per se , vel per suum Commissarium , quem duxerit , deputandum liberè accedere . Cui quidem Reverend . Patri , ac Deputato suo ( praeterea nemini ) tanquam Patrono & Ordinario Visitatori , vigore praesentis statuti plenam concedimus potestatem , ut super omnibus & singulis particulis & articulis , in dictis Statutis contentis , ac de quibuscunque aliis Articulis statum , commodum , aut honorem dicti Coll . concernentibus aut quae in dicto Coll . aut aliqua illius Persona fuerint reformanda , aut corrigenda , Rectorem , Scholares , & Electos interroget , & inquirat , cogátque eorum unumquenque in Virtute Juramenti , & per censuras si opus fuerit ad dicendum veritatem de praemissis omnibus singulis , &c.

It hath been before prov'd , that two Powers are necessarily lodg'd in a Visitour ; one is the ordinary jurisdiction , which exerts it self upon the injury and complaint of any of his Subjects ; and redresses their grievances : The other is an extraordinary and general enquiry made by the Judge himself ex officio without the instance of the Party . Now this Statute doth not only vest him by the former general words with the ordinary powers necessarily incident to a Visitor's Office : But goes on likewise to ascertain here his extraordinary Authority and to fix the bounds of it . This Visitation is general as well in respect of Crimes as Persons within the Judges territory and compass ; and is sometimes necessary and therefore not omitted ; but withal troublesome and chargeable , and therefore restrain'd . In this general enquiry by Office which is by the Canonists call'd Officium merum the powers of the Judge are much larger than upon an Appeal ; the method of the procedure different , and the occasion of it are of as great , yet usually not of so urgent and pressing necessity . And therefore since his Powers are great ; the solemnity of the Process extraordinary ; and the Sportulage which is always incident to it , not small ; it was prudence in the Founder to allow the use of ordinary Jurisdiction always ; and by that means to prevent the necessity , as well as to restrain the exercise of his extraordinary Authority . And herein the care of the Founder was agreeable to that of the Church , for no Canons ever set bounds to any other than gainful Visitations , nor ever thought fit to limit the Duty , but where it was recommended by Proxies .

As this Jurisdiction then is set up by Statute ; so another , in Case of great emergencies is likewise plac'd in the Visitor ; which is a Visitation upon requisition . This is a mixt Office ; and differs from a Visitation because it is granted upon denunciation and presentment , and upon the instance of the party ; and yet at the same time agrees not with Appeal ; because it proceeds by Enquiry and tends not to the redress of a private grievance , but the regulation of some publick enormity .

This Branch of the Statute therefore , however it may limit a Visitation , is so far from restraining Appeals , that it enforces them ; for where-ever the extraordinary Remedies are limited , there is more occasion for , and more Latitude to be given to , the Ordinary Jurisdiction . This is the plain and natural intendment of the Statute ; this is that Universal Provision which the Founder design'd , which the College need , and which the Visitatorial Power was brought in to supply . Upon this short view of the Office of Visitor in general , and upon this enquiry into the Statutes of Exeter College , in particular , it may be safely affirm'd .

1. That all sole Visitors separately , and all Visitors ordinary , and extraordinary joyntly , have as an incident to their Office , the Power of receiving Appeals . 2. That this Power , as in all Churches , Monasteries and Hospitals , so in all Colleges hath by the respective Visitors thereof , been us'd and exercis'd , and in all Courts been confirm'd and allow'd . 3. That the Local Statutes of Exeter College do in the same , and no other manner , then as the Canons and as the Statutes of most other Colleges , limit and restrain the solemn , extraordinary , and chargeable Visitations ; but at the same time do vest the Visitor of the College , with all ordinary Jurisdiction in its full extent and latitude . 4. That the Statutes of Exeter College are so far from precluding Appeals to the Visitor , that they expresly warrant them , and that the Oaths of the Rector and Fellows neither can , nor by the plain and natural sense of the Words , are intended to restrain this Authority .

If then the Visitor hath power of receiving Appeals , Dr. Masters Commission is good , Dr. Bury rightly as well as justly expell'd , and the whole Process legal and unquestionable . See the Account of the Proceedings , &c. P. 26 , 27. It is not necessary therefore to add what yet hath been apparently prov'd , and will more fully be clear'd , that if the Bishop had no Power of receiving Appeals , and consequently the Commission was void , and the Acts of it null and inauthoritative , yet however the Visitation could not thereby be barr'd , nor the Bishops Right be taken away , nor the Expulsion defeated .

The Point being thus setled , it will be an easier Matter to consider those little Objections , which have been started by the Author of the Case , and have not yet been refuted by Mr. Colmer . Some things there are in the Account , which he says he does not understand , and perhaps it may be no easie Matter for me to bring down my Expressions to his Understanding ; or his Understanding up to them : Other Passages there are that in his Opinion need no Answer , and they therefore stand in the same Condition they were , and want no Defence : But as to the Exceptions taken , they shall have Answers that are very short ; and yet as I suppose , full , and no otherwise tedious , then because superfluous and unnecessary .

After the History of Mr. Colmers Incontinence , which has been prov'd to be False and Immaterial ; the first Proposition laid down is , That an Appeal to the Visitour is by Oaths restrain'd ; and then he gives you a Comment on the reasons of that Restraint .

For when he hath put strange Orders on the Founder , which he never made : then he gives the Grounds , which induc'd the Founder to the making of those Orders .

The Ground then , that is reasonably supposed to perswade him to this Policy , was the Peace and Quiet of the House : And ,

Were not all other Societies of Students as much design'd for Peace and Quietness as Exeter College ? Had not Monasteries Free-Chappels , and Religious Societies as little occasion for Disturbances and Quarrels as Colleges ? And were not their Founders weak Men to bring them into Noise , Feuds and Dissensions , when they appointed a Visitour , and gave him due Power of redressing their Grievances , and of deciding their Controversies ? Would there not be much more Peace in a Diocess , if the Clergy were not subject to Visitation ? And if a Parson , whose Study and Profession entitle him to Quiet , might not be cited from his Home , and subjected to the Complaint of every vexatious Person only for Heresie , Bribery , and Incontinency ? What Confusion and Disturbances the Statute of Hen . 5. occasioned in England , when it subjected Hospitals to Visitation , whose Members before , were without any noise robb'd and despoil'd , and whose Revenues had been very quietly lost , and dilapidated ? In short , the taking away of Westminster-Hall would be an effective Remedy against Champerty and Maintenance , and troublesom Law-Suits and Contention would quickly cease , if we would remove the Courts , in which they are to be ended .

But now for once I would desire him to make as many reasonable Supposals , as he will for the late Rector , and such Fellows of Exeter College as imploy'd him ; but as few as possible for the Founders , who neither need nor desire his assistance . The Founders were Wise-Men , Stapuldon was a learned Bishop : Sir William Petre a prudent Statesman , and therefore such reasonable Supposals , tho of a Piece with the rest of the Book , are ill suited to the Character of the Persons introduc'd . All the Peace and Quiet which the College can aim at , or hope for , is promoted by the Office of a Visitor , and their particular Happiness consists in having their Controversies decided in a private and domestick Court . And tho the Censures of a Visitor may be troublesom to those Persons that deserve them ; and a review of the Cause try'd is not very acceptable to some Judges ; yet certain it is , that nothing is more requisite than the Visitatorial Power , for the due government of the Society , for the prevention of Grievances , and Exorbitances ; for the speedy determination of Controversies ; and for the settlement of Peace and Quietness in the College . Especially since , if there be no Visitor that can give redress to a Fellow unjustly expell'd ; It is plain that a Mandamus would lie for him , as well as for a Parish Clark ; and that this admirable Method of producing Peace and Quiet , would draw the Cause from the Visitor into Westminster-Hall .

The next thing that he leaves me to explain , is an Oath , being accessory to a Statute : Where-ever an Oath is relative to the Law , and the Sense of one depends on the meaning of the other , and the Obligation of one , relies on the continuance of the other , here it is accessory to it . Now then , Si continget me per Rectorem aut in hujusmodi interesse habentes corrigi , puniri , aut à dicti Coll . sustentatione ejici & expelli , excludi , privari vel amoveri propter mea forsan demerita , ipsum Rectorem , seu alias Personas , seu eorum aliquem , &c. quantumcunque alias mihi probitatis & vitae merita suffragentur .

In this Case therefore the demerita are ( as is elsewhere explain'd ) Causae in Statutis contentae : The interesse habentes are such as are appointed by Statute ; and since it is impossible to know the extent of the Oath without recourse to the Statute : The Oath is accessory to it , and guided by it .

And if the Statutes are alter'd by legal Authority : The matter of the Oath is likewise chang'd , not the obligation ; and the Oath , as strongly obliges to the performance of the new Law , as once of the old .

2. He proves that legitimè convictus doth not mean a conviction according to the Law of England . For it is plain to him that the Rectour of the College cannot impannel a Jury ; nor administer an Oath . This is the Phantom that he raises ; and , being his own , it is easily refuted even by himself : For no Man else was so absurd as to imagine , That when the Founder had in every thing else pursued the Terms and Rules of Canon Law , he would have borrowed the proof only of a charge from the Common : But if legitima convictio doth not amount to a conviction by a Jury ; must it mean nothing , or must it signifie a conviction without , or against ●aw ? for if it doth not , it will not justifie Mr. Colmer ●s Expulsion .

Legitima convictio is such a conviction as the Statutes direct ; and where the Statutes are silent , is such a conviction , as the Law require , in conformity to which these Statutes are made . The method of the Conviction in divers Laws is very often different ; but it is always grounded on a crime , and no crime can be applied to a person but by proof . In common Law a Verdict is founded upon evidence ; and is presumed to be made in pursuance of it ; In Canon law , where Trials are made by Witnesses , not by Jury , nothing but the confession of the Parties , the Testimony of two witnesses , or the Notoriety of the Fact can make a Conviction . And therefore as in one the Sentence of a Judge cannot convict any man , when supported by no verdict ; so in the other it is equally void , when founded on no evidence . A man cannot renounce his Right to legal Proceedings ; If he should agree to be fentenced uncited and unheard , and to be convicted without proofs ; it is a void Agreement , and so utterly null and illegal ; that the vis pacti cannot support it : Sententia nulla potest partium consensu ut valeat , non tanquam sententia sed tanquam contractus : Cald . Cons . 138.

The Fellows of Exeter might be convicted of Incontinence , as the Statutes of other Colleges direct per idoneos testes , & facti evidentiam ; or as Clarks are to be convict of it , according to such lawful proofs as are requisite by the law of the Church : 1 H. 7. c . 4. The Rector , if he cannot administer an Oath , might have used the assistance of the Vice-Chancellors or of the Visitors Juridiction . Homicide is in the Ecclesiastical Court a cause of Deprivation ; and yet it cannot originally be examined there : Their Sentence must be built on a Conviction at Common law : and as the Spiritual Judges even to Ecclesiastical purposes cannot convict Men of such crime by Ecclesiastical Proofs ; so much less can they declare men convict without any . Hob . 122. Searls Case . Cr. 2. Hob . 194. A competent Judge then is not more required , than Legal Testimonie ; Summarie de plano & extrà strepitum Judicialem may take away the formality of the Process , but never the necessity of Evidence ; The noise of an Oath is not great ; nor the length of it tedious ; It is the direct and plain way of Procedure ; and all Presumptions , strained Inferences , and traditional Reports occasion the length and circuit of a Tryal .

Legitimè is expounded in the Probationers Oath secundum exigentiam Statutorum , and so Canonice is interpreted secundum exigentium Canonum . Lindw . 5. Tit . de Purg . Canon .

3. Si propter mea demerita contingat me deprivari is in some statutes of other Colleges explained propter mea demerita , aut causas in statutis contentas ; in others propter malos mores , aut mea demerita . Now this Gentleman's interpretation of ob mea demerita is whether a man be guilty or no , which then should have been thus expressed ob mea forsan non demerita . And if non added to this and most of his affirmations , it would much ease the Book of many falshoods , and make it in many other instances , true sence , as in this good Grammar : But the following words put the sence of it out of doubt , quamvis alias mihi probitatis & vitae merita suffragentur : Which imply a Man criminal in this , and irrepoveable in all other concerns . The Oath was designed to oblige the Conscience ; if the Crime was true , Acquiescence was enjoyned ; if it was false , no just remedy was precluded . And whether the charge were true or false , his Conscience is judge ; and his Oath enforces the Conscience to a right judgment .

If then an innocent man had liberty of Appeal ; whoever doth not appeal confesses , and owns his guilt . Non appellans dicitur approbare sententiam latam Card . Tusc . con . 388.

5. My 4th . reason was this . That it is the plain design of this Oath to secure the College from any Action at Law , or any other disturbance from abroad ; and that in the recital of the different appeals , and remedies , which are there prohibited , that of appeal to the Visitor , which was most obvious to to be thought on , is not expresly mentioned nor forbidden : And therefore that those general words may in an equitable sence be intended to restrain the Party from all Appeals to an Extraneous , not to a Domestic Court ; to one that is a Foreign Judge , not to a Visitor , who is a part and the first member of the College .

Nothing in the answer deserves to be confidered ; but the domestick Jurisdiction of a Visitor ; if the Founder referred all jurgia irae & rixae to the final arbitration of the Rector , Subrector and three Seniors ; The Jurisdiction of those persons thereby gained in respect of the Visitor was cumulative , not privative . And therefore when See . Case p. 26. a man is forbidden , as in this case , to prosecute another corant aliquo Judice extrinseco Ecclesiastico vel Saeculari ; the intent of the Founder plainly appears to bar any action in the spiritual and temporal Court ; and to refer the contending Parties to the Arbitrators there mentioned or at farthest to no other than some intrinsick Judge . And it is observable that these little Controversies were not to be Judicially ended by these Persons ; but aliquâ ordinatione bonâ & concordiâ per personas praedictas ( as Referees and Arbitrators , ) terminentur & finiantur : so that here an amicable reference is advised and enjoyned ; but still upon a farther disagreement , if it could not take effect every Action coram aliquo Judice extrinseco was expressly forbidden ; but not a recourse to a Visitor disallowed .

The Argument concerning John a Stiles , and the 6th . Commandment needs no grave answer ; and I have at present neither will nor leisure to expose it .

6. Arbitrary power is power against law : And the unstatutable Expulsion of a Fellow ; and the denial of a lawfull Appeal are illegal and arbitrary Acts : what obligations the Founder might have enjoyned we dispute not ; but we have proved , that none are laid : The Visitors Authority is not created by the local Statutes , but cast upon him by law ; The Power of a Visitour depends not on the Founder , but the Right of the Bishop of Exeter to that power is derived from him : The Kings Courts have a more large Jurisdisdiction than the Visitor ; but not more certain . And therefore no mans Oath can bar the Power of the one , nor of the other ; especially since it appears , that it was not designed to preclude them .

Thus hath it once more been proved ; That the Oath is accessary to the Statute , that no innocent Man is barr'd from Appeal ; that legal Proofs are necessary to a legal Conviction , that the Visitor is a Domestick Judge , and that appeals to him from an innocent person , illegally expelled , are not more warranted by Reason , than by Statute .

Next , the Case examines the reasons that proved the Visitors Authority of receiving Appeals .

P. 36. It is owned , That there are no other Judges of Appeal except the Visitor ; but it is doubted whether there are any Judges of them at all . An Appeal is a natural Defence which cannot be taken away by any Prince or Power ; much less by any other than by the supreme Magistrate and not justly by him . And therefore it is not easy to conceive , especially if we read his words , that a private Founder ever designed to preclude it . For since Appellatione remotâ is never mentioned in the Statutes but once , and since then it expressly bars an Appeal from the Visitor not to him ; no part of the Statutes can be urged against the Visitors authority , but the Oath of the Fellows . That Oath hath been already proved to bar no Appeal to the Visitor ; and the rather is not capable of that sence ; because all Statutes that take away Appeals are odiosa , and therefore in doubtful cases are limited and restrained ; and all renunciations of right must and ought to be construed in favorem renunciantis .

If then a Visitor had power of receiving Appeals , if in this College all other Judges but the Bishop of Exeter are expresly excluded ; if the Oath doth not take away the Fellow 's right , much less the Bishops Jurisdiction ; then it follows , that the Bishop had a Right of receiving Appeals ; incident to the Office of a Visitor , and yet distinct from his Right of a General Visitation .

2. To dream of universality of Jurisdiction from a sound of a word Ordinarius is a conceit that needs no more refutation , than the mentioning of it . And to dream of the visitation in five years from the sound of the word Quinquennium is equally as senseless , and ridiculous . The import and meaning of both words is fixt and known , and the one is not , as I think more sounding than the other . The only difference is , that the latter by chance fell within his reach , and the former is undoubtedly above it . Usually legal Controversies depend on the doubtful meaning of Terms ; The case is altered by the extent , or restriction of a word : and therefore it was once a frequent observation in the Law books ; That the true knowledge of terms is the most necessary and most difficult part of that Study . What ordinarius signifies ; I have before explained , and any judicious man , that reads those great and express authorities will , choose rather to dream with those Authors than to think with this Gentleman .

3. The little Objections that follow are already anticipated and Coke 4. Inst. p. 340 , Patrick's Case Card . Tusc . c . 345. Bald . Cons . 144. Al. 113. n . 7. prevented ; only one thing I must observe , that the operative and effective words of the Statute are here stiled the Preamble of it : the Statute it self , as before printed and explained , sufficiently shows the weakness of the Assertion ; and all the long Harangue founded on that bottom , is a gross continued mistake , made acceptable however to some Palates , by much scurrility , and no wit .

Men that have no Reputation themselves , may fall upon their Betters without danger ; and the return of the Compliment is as prejudicial to the Person affronted , as the abuse it self , because it implies an equality . Libels that have shewn the Malice , have sometimes recommended the Wit of the Adversary ; but blunt downright Rudeness is always the joynt product of ill nature and stupidity : however it is not improper that the late Rectors Cause should be defended with the same decency , with which it was managed , and that the Advocate should at once shew himself Master as well of the Sence as of the good Breeding of his Client .

The Appointment of the Founder created him Visitor , but the Law ascertain'd and fix'd the Rights of his Office . A College and an Hospital is as much visitable in Law as a Church . And the same right that of necessity belongs to the Visitor of a Diocess , must of Law belong to the Visitor of a College : The Precincts may be more narrow , but the Jurisdiction is as large ; the Subjects may be fewer , but the Powers are as many . The Ordinary Acts of Visitation therefore remain equally in both , since ( as hath been already prov'd , ) the Bounds that are set , reach only to the extraordinary Acts of their Power , and their solemn Visitations .

It being evident then that both these Powers , both of receiving Appeals , and of a General Visitation , tho they are both equally lodg'd in the Visitor , yet are both entire and distinct from each other in their nature ; it will be easie to prove that the exercise of one cannot bar the Bishop from the right to the other : This task is still the less difficult , because the reasons in the Account for it are such , as the Case hath not yet pretended to answer .

1. The Bishop of Exeter then hath no power but as Visitor , but other Powers belong to the Visitor thanthat of a Visitation : A distinct Authority of a general enquiry is given to him , and if a Commission of Appeal amounts not to this Power , it cannot determine it . An Appeal is private in its end , and restrain'd in its extent : A Visitation is of a publick nature , and general in its designs as well as powers : Both indeed may in their own nature be Criminal , but the one is prosecuted Civiliter , the other Criminaliter ; the one tends to the redress of a Grievance , the other to the punishment of a Crime . 't is said indeed in the Case , that omne majus continet in se minus ; and that if it makes out any thing , must prove , that whoever hath right of Visitation , hath power of receiving Appeals . But such a Maxim as Omne minus continet in se majus , can only convince us , that a Commission of Appeal contains a Visitation .

2. The Commission by which Dr. Master acted , was founded on that part of the Statute , by which the Bishop is appointed and constituted Visitor in General ; not that which gives him power of a Quinquennial Visitation . He has no other claim to this Authority , then as Visitor ; and and therefore in his Commission , he sets forth his own Title , and withal the ground of his Power . If any redundant words were there , they could do no harm , and therefore are weakly excepted against . But as it happens , those only are used , that are sufficient to support the delegated Jurisdiction .

3. The Nature of a Commission appears not from the Stile or Title of the Judge , but from the extent or restraint of the Powers that are granted . The being of a Court can be no other than such as is warranted by a Commission on which it depends : This was wholly restrained to the Cause of Appeal , and the Commissary exactly observ'd the restrictions . In a Visitation , all the Fellows must necessarily have been cited , and appeared ; but none were call'd to this Court , but those that had been partakers of the Personal wrong , and were oblig'd to answer the charge of Mr. Colmar against them .

4. The Definition of a Visitation then is weakly applied to the Commission of Appeal ; the nature of Vistation hath been prov'd to be a voluntary enquiry into matters Criminal , and Correction thereupon , and to be general likewise , both as to Crimes and Persons . Now how was this a voluntary enquiry , that was made not by the Judge himself ex Officio , but at the instance of Mr. Colmar ? How was it general , that took Conusance only of this Crime , and of no other Persons than of such as were concern'd in it ?

Nor lastly , can it be properly said to be an Enquiry into matters Criminal , which only examined a Crime upon the instance of a Party , in order to his private amends and satisfaction . Since therefore the Commission was Special , and restrain'd ad negotium appellationis only , since the Acta Curiae , which are here annex'd , were in pursuance of that Authority , and exceeded not those restrictions : Since the right of receiving Appeals is wholly different from that of a Visitation , the Powers much less , the Extent and Process more confin'd ; it is impossible that this Act can amount to a Visitation , or that the exercise of one Authority , can determine the Bishops right to the other .

The ground I believe of this Authors mistake was this , that wherever a Person hath any right of doing any Act , Act of the same nature shall without the special Declaration of the Party , by intendment of Law , in his favour , be presum'd to be Authoritative and Legal . This Rule , as it holds not in this Case , because both Powers were lodg'd in the Visitor , so neither , upon the supposed failure of one of those Jurisdictions , could it reach it : For those Acts must be of the same nature , and from the near affinity between them and the equality of the extent , one is said to amount to the other . Besides that Rule takes in only those Acts which are undetermin'd by the Party , and therefore liable to the construction of Law : Whereever Words are plain and express , there is no room for implication , and an intendment may be presumed without the Declaration of the Parties , but not against it . 1 Just . 245. c . 1. Instit . 49. b . Perk . fol. 55 and 56.40 . Ed. 3.5 . Intentio me a nomen imponit operi meo . Hob . Pitts v. James p. 123. Now in this Case therefore , not only the Commission shew'd the special intent of the Party ; but the Commissary himself openly declar'd , That he did not then come upon a Visitation , and therefore refas'd the Sportulage in that case appointed by the Founder . Intendments therefore and Implications are at an end , and the Commission it self , if it should be void , would have been a null and inauthoritative act , and not a Visitation .

The main point being thus settled , I shall further examine what is material in the Case , thinking it more worth while to refute the Arguments , than , as I easily might , to expose the Author . All that is afterwards Considerable , falls under these Heads .

1. That by Censures in the Statute , Ecclesiastical Censures are not meant .

2. That the Right Reverend the Visitor , for inflicting of Ecclesiastical Censures , is guilty of a Praemunire .

3. That Dr. Hern's Place was not void by Statute .

4. That the Visitor had no Power by Statute of Suspending the Fellows ab Officio .

5. That the Visitor ought not to have been Judge in his own Cause , nor to have pronounc'd for his own Jurisdiction .

6. That the Concurrence of the Fellows to the Rectors Expulsion was not Statutable . And

Lastly , That Contumacy is no Statutable cause of Expulsion ; and if it were , ought in the case of the Fellows as well as the Rector to receive the same Punishment from the Visitor .

1. As to the Censures .

The Statute says , Visitator cogat eorum unumquenque in virtute juramenti & per Censuras si opus fuerit ad dicendam veritatem de praemissis . As for Censura then this Author turn'd his Dictionary , and found that sometimes it signified a reprehension . As tho any term used in Law had not a primitive sense and meaning , and was not afterwards as all words of Art in their respective profession limited and restrained only to the borrowed Signification . Any Manthat knows the constant custom of enforcing Men to testify the truth per juramentum & censuras the usual Compulsories in all Ecclesiastical Courts , will smile at any other interpretation . See Reg . br . orig , fol. 36.6 . Tit . Proh . Card . Tus . Con . 189. Scard . fol. 450. That I may not trouble the Reader with Instances , I will only observe , that in Acts of Parliament frequently , and in rules of Canon Law always , and in Statutes of Colledges , which were made in pursuance of the Canons , constantly , Censures do and must mean no more than the Three famous and well known Ecclesiastical Censures . And I refer this Rule more particularly to this Gentleman's Interpretation , Judex Accademiarum solet ferre censur as etiam in Laicos studiosos , & in causis temporalibus , unde studiorum gratiâ non est prohibitum Judici Academiae , ut sua etiam Jurisdictione Ecclesiasticâ utatur ; quò efficacius saecularem exerceat ? Mendo de jure Acad . p. 252. What do Censures mean there , a Rebuke , or a Reprehension , or a Sentence in the Star chamber ? or have they a relation to the old Roman Censures ? If this be design'd for Wit , it is not very agreeable ; but if it be Ignorance , as I suppose , it is extreamly gross .

Bonacina Tom . 1. Disp , 2. de Excom . talks of Censura quibus superiores ( speaking of Visitours ) praecipiunt sibi aliquid revelari . D'avila de Cens . Eccl. C. 3. D. 1. Visitatores bene possunt relinquere Ordinationes in scriptis cum poenâ Excommunicationis ; and so Visitatores Religionum ( of all religious Houses ) possunt relinquere Ordinationes in Scriptis cum poena Excommunicationis .

How far therefore the Founder could vest the Visitor with this Authority , and how far the Law will warrant it , is matter of another dispute : But that Visitors have in like Cases used Ecclesiastical Censures , even in Societies not merely Ecclesiastical and that the Founder design'd by these Words to give that Power , and esteem'd it necessary for the Visitor , is and will be prov'd beyond Contradiction .

2. As to the Praemunire . If this Authour had given the Reason upon which the learned Judges granted a Prohibition in his Case , the force of their Argument and the Authority of the Persons would justly have commanded an entire Submission and Acquiescence ; at least nothing further would have been mov'd than that upon the Prayer of a Consultation , their Lordships would be pleased , according to their Wisdom , finally to settle and determine the Cause . But now , since he hath been pleased to impose his own Opinions upon the World , and with equal Insolence and Ignorance to pass Sentence upon the Bishop himself , and to pronounce him guilty of a Praemunire : it is not to be expected , that the deference should be paid to his weak Argument , which undoubtedly would have been due to his Report . The Discourse that he there gives is well proportion'd to the Capacity and the Breeding of his Client ; and if the Cause be good in it self , it is there put in so ill a Light , and justify'd upon so mistaken Grounds , that a bad one could not have a worse Face , nor be more weakly defended . Since therefore the Exceptions are so ill taken , and withal so perplext and confus'd , it will be necessary briefly to state the Case itself ; not with Design at present to settle the Point , but to shew she Weakness of the Authour .

The Visitour pronounced the Sentence by the Advice of the most eminent Civilians of this Nation ; and the Arguments which possibly induced him and them to that Opinion were , as I conceive , such as these .

I. Probably it was thought that an University , and every College therein was a mixt Body , partly lay , and partly Ecclesiastical , and in all other Nations entitled to the Privilege of both Forums . And if all other Universities , Generalia Studia and Colleges were by certain and established Rules of the Canon Law sometimes entitled a Ab in c . ex Literis . , Ecclesiastical , often mixt b Universitattem mixtum Sodalitium ac rerum mixturâ verius deceutiusque dici Ecclesiasticum , quàm profanum . Chopin . ex Gulmerio de Dom . Fr. and seldom or never Lay Societies , it seem'd more reasonable to take the Standard of those in England from other , many of them Protestant Colleges of the same Nature abroad , than from Hospitals and Lay Confraternities here at home . Especially since in all Charters and ancient Records of both Universities here in England their Members have usually been stiled c 2. H. III . 5. Ed. III . 29. Ed. III . 14. H. VIII . See Prin . in 4. Iast . p. 36● . Clerici ; and it hath been expresly by Charter granted ; that concerning them the Kings Prohibition should not lye . The Universities , as they now by Charter send Burgesses to Parliament and are in that respect lay ; so have they anciently sent Deputies to the Councils , particularly to that of Constance , and have been admitred as Ecclesiastical Societies . And therefore tho' at Common Law , no Lay Person was capable of Tithes , but the King ; Appropriations however , were anciently made to Colleges , and that without Dispensation .

And tho' in Colleges of Physitians or Lawyers , this Rule may admit of Exception ; yet in Societies , as that of Exeter College , where most are actually in Orders , and others design'd for them ; it is impossible that the end of the institution and the quality of the Persons concurring , must not denominate the Society if not purely Ecclesiastical , at least not merely Lay . There is no more certain Rule in d Panormitum c . ex lit . 16. Tus . t . 8. Con . 255. Mendo de jure . Acad . Alphonso d' Escobar . c . 21. Canon Law , than that a Corporation cannot be merely secular ; where the Number of Ecclesiastical Persons equal the others , or exceed them . e Covar . l. 2. Var . c . 20.8 . Con . Alf. d' Esc. c . 21. Anton . Augustin . dict . l. 14. Epit . Jur . Can . l. 8. & 9. Guim . de Pragm . Sanct . de Univer . 307. And this Rule is still a greater Force , when the Society hath been erected and confirm'd by Ecclesiastical Authority .

See Vasq . de Prada de Jure Eccl. Coll . Salm . Over .

a Hill . 18 , & 19. Car . 2. In Dr. Patricks Case , Moreton holds , That most Colleges are Spiritual ; Windham , That in some respect all Colleges to an elemmosynary end are Spiritual , in some Lay ; and Keeling , That they were quodammodo Spiritual .

b Hob . p. 122. 9 Eliz . Dyer 28. Coke 11. Rep. p. 99. See Sed . 71. Widrington's Case . A. 9. & 10. Eliz . Mich . It was adjudg'd by all the Judges , per opinionem omnium Justitiariorum utriusque Banci & Capitalis Baronis Saccarii ; that Trinity College in Cambridge was in some respects Spiritual : and within the Statute of 1 and 2 Phil . and Ma. which make good devises to Spiritual Corporations .

And therefore Colleges , tho' not merely Ecclesiastical , yet out of a just caution , are excepted out of the Statute of Chanteries .

c See Azeved . l. 10. n . 26. Tit . 1. l. 4. & l. 1. n . 3. Tit . 18. l. 9. Collegia instituta pro sustentatione studentium pauperum & aliorum Egenorum sunt loca pia ; & gaudent Privilegiis Ecclesiae & de Jurisdictione Ecclesiasticâ & si sint institutu seu erecta Authoritate Ecclesiastica non solum sunt sola pia sed etiam Religosa .

It was laid down then probably upon these or the like Authorities , that an University was not merely a Lay Corporation ; and that Colleges being parts of the Body , and Coporations within a Corporation , were of the same nature as the whole .

2. If the Body then that was to be visited , was mixt : It was presumed that a mixt Jurisdiction , as sufficient for the redress of all Enormities therein was lodg'd in the sole Visitours thereof ; and this more especially if the Person , from whom the Authority was deriv'd , could grant such Power ; and the Offences , that were to be punished by the Visitour , could not be enquir'd into without it ; and the Statutes ( as is already prov'd ) by plain and express words did convey and warrant it .

Now the Visitation which is an enquiry into several Breaches , not only of the Law of the Land ; but of Ecclesiastical Laws , and as in this case into Heresy , can hardly be perform'd without the concurrent assistance of Ecclesiastical Jurisdiction . And therefore when Ordinaries are empower'd to enquire into the Foundation , Erection , and Governance of Hospitals , which are matters at first sight appearing Lay and Secular ; d St. H. 5.1 . they are commanded to make Correction , and Reformation thereupon , after the Laws of Holy Church .

a See W . 2. c . 43. Coke 2. instit . 465 , See Mendo l. 1. q . 26. Not only the Judices Academiarum , but the Conservatores too abroad that represent the Visitours there ; and the Conservatores of the Templars in England had always a mixt Jurisdiction .

And therefore says Mendo , Visitatores [ of Colleges ] Episcoporum potestatem promulgandi censuras habent ; quâ si carerent , vis plurima eis deficeret ad exequendum ea , quae expedire judicantur . De Jure Acad . D. 7. And so anciently in all Religious Houses which consisted most of Lay Members , and in the Visitation of them . Caenobitica Visitatorum censura ad Abates pertinet . [ Dec. de Reg . c . 8. Chop . Monasticoon , l. 1.

My Lord Coke thinks the Ecclesiastical Law proper to be us'd by a Visitor of all Societies founded in Liberâ Eleemosyna . Coke 1. Instit . 96. And this Power seem'd more necessarily lodg'd in the Visitonr ; because it is evident , b See Quarrant . v. exemptio . 6. H. 7.14 . Zerol 2. part . 60. Balth . And. de Equitibus Hierosolymitanis . Gratian . disp . For . c . 870. that those Fraternities whether Religious or Lay , that were once exempted from their Ordinaries , were immediately made subject to their Visitor ; and the one Power was design'd to to supply the loss of the other .

It is plain that a College is within 2 H. 5.1 . Now then , if without a private appointment , it should be visitable , as some think , by the Ordinary of the place ; or as the better opinion is , it should fall into the bulk of the University , and be subject to the Chancellours Visitation ; in both these Cases , it would be visited especially in Ecclesiastical Causes , as the Statute appoints , according to Holy Laws of the Church ; because both Persons confessedly have Ecclesiastical Jurisdiction . And therefore it seem'd not reasonable to suppose that a Visitour of a College ex institutione , vested with Ecclesiastical Authority by the Statutes , should have less Jurisdiction , that one who ex provisione legis , was call'd in to supply the want of him .

As to the Grant it is plain , That the King can exempt any place from Jurisdiction of the Ordinary , and subject it to another Ecclesiastical or Episcopal Jurisdiction . Co. 5.1.4 . Cok . 5.9.10.14 . Dav . Com . 73. H. 1. Jac . B. R. Rot . 601. Rolls Ab. 341 , 10. H. 7.18 .

If then Ecclesiastical Jurisdiction be necessary for the Visitour of a mixt Corporation ; especially in Causes originally of Ecclesiastical Conusance ; it must be presum'd that the Kings Grant to the Founder , for constituting a Visitour gave him Authority likewise of conveying to him such Powers which were necessarily incident to his Office . The King now enjoys the same Ecclesiastical Powers in this Nation , as the Popeonce did ; and in all other Countries it is own'd , That the mixt Jurisdiction is cast upon Abbots and other Visitors , not by Designation or Grant of the Pope , bat by the necessity of their Office . [ Barb . de Jure Eccl. l. 1 c . 17. Suarez . de Rel . l. 1. Sanchez in summ . l 5 ]

And lastly since the Governours of the University have always exercised a mixt Jurisdiction ; and the Charter of Exeter College entitles them to the same Customs , as the University ; it seem'd reasonable to suppose that the Visitour of a College had claim in his small Sphere to the same Rights and Liberties , as the Chancellour in the University . Cum Collegia sint partes & membra Academiae frunntur iisdem priuilegis quibus ea fungitur , praeter alia specialia , quae ipsis sunt concessa . [ Mendo . p. 25.

And this presumption is the stronger , because in other Colleges , as well as Exeter , the Founders , relying on these Reasons , and on this Authority have expresly granted to their Visitour the use of Ecclesiastical Censures : especially since I find that the Visitors in H. 8's time , in the University , tho not impowered by express words of Commission us'd to punish the Members thereof by Ecclesiastical Censures , as well as Temporal .

3. If The Body was mixt , and a mixt Jurisdiction was lodg'd in the Visitor ; Then the Cause of the Sentence it self being originally of Ecclesiastical Connusance , seem'd properly to direct the Visitor to the Use and Exercise of that Power . Heresie was chiefly chargd against him , and fully prov'd ; the Contumacy receives its Nature from the Crime , and when the Principal whereupon it grew , was a Matter Spiritual ; the Punishment of it is of the same Forum , and the Censures that enforce that Penalty , must and ought to be Ecclesiastical : For Cujus Juris est principale ejusdem Juris erit accessorium . Bract . l. 5. c . 2. fol. 401. [ See also Hankford's Opinion , 2 H. 4.15 . ] And Ecclesiastical Process is allow'd not only in Causis Spiritualibus , but in Spiritualitati annexis , Bract . l. 5.

And it is a Rule in the Register , 53. b . Ubi cognitio causae principalis ad forum Ecclesiasticum pertinet ; & ejus accessorium pertinere debet , [ Dennis Case . Cro . Car . 115. ]

And therefore as Excommunication may be for Defamation and Perjury , so it may be us'd likewise for Costs and Expences adjudg'd which however lay in themselves are the Accessories and Dependences of those Causes . Fitz . Tit . Prot . M. 4. H. 3. For as Perjury , tho plainly in its Nature of Ecclefiastical Conusance , if it arose upon a Temporal Contract or Cause , is not triable in the Spiritual Court ; so much more Deprivation ( which is neither of it self Temporal or Spiritual , but undetermin'd ) becomes an Ecclesiastical or Secular Purishment in respect of the Cause for which , and of the Forum in which it is inflicted .

I have offer'd these Reasons with all submission , not entring into the merits of the Cause ; but laying down the probable Motives and Inducements to that Sentence : If a Bishop hath in every place Power of Excommunication in foro animae , and if he hath mixt Jurisdiction in the College according to to the Canon Law ; and the Laws of the Land , he may then by Law inflict the Sentence ; If he hath not such Power , The Custom of all other Universities and Colleges , the Nature of the Cause and of his own Power , the Practice of Visitors heretofore , and the plain Words of the Founder have misled him . But howsoever the Cause be determin'd by those learned Judges that it now lies before : Certain it is , that as the Visitor in this Case could not have a more rude , so he could not have a weaker Adversary . For whether the Bishop had ecclefiastical Jurisdiction or not , he could nevertheless , as Visitor , take away the Temporal Right . To excommunicate for Rent is a forreign and idle supposal ; for Heresie is not materia laica ; and therefore if the Authority was mistaken , the Cause however was Ecclesiastical . Nor is there any agreement between a Mannor and a College , between a mixt and a lay Corporation : As much is the Disparity between a Lord and a Visitor , where one hath connusance only of Temporal Causes , the other hath power to enquire into Ecclesiastical Offences . There is an apparent difference between two Jurisdictions and a mixt Jurisdiction ; two Jurisdictions may occasionally and by accident be lodg'd in the same Person ; as in the Bishop of Durham ; but a mixt Jurisdiction , as arising from the Nature of the Cause , is always , not by chance but necessity vested in one Man , as in the Chancellors of both Universities . Now in one Cause the Original of the Powers is wholly accidental , and therefore they ought not to interfere and be mixt ; but in the other , that which was the reason of mixing the Jurisdiction , is as strong for maintaining them undistinguish'd , and subservient to each other . In one Case it is a Rule Quando duo Jura concurrunt , aequum est ac si essent in diversis ; in the other , Qui utroque Jure potest facere cundem actum utroque Jure fecisse videtur ; and therefore the Chancellor of Oxford having a mixt Jurisdiction , can by Charter , confirm'd by Act of Parliament , excommunicate the Mayor for breaking the Priviledges of the University . Coveney's Case makes nothing against this Opinion ; for it is plain , that the Matter of the Deprivation , i.e. the cause of it was purely temporal ; the Crime was not Heresie , but not entring into Orders ; the resolution that was there taken is clear ; for it cannot be pretended that an Appeal in that Case lay from the Visitor upon Stat. 24. and 25. H. VIII . as upon a Spiritual Sentence , and as from a Court merely Ecclesiastical ; and upon that Ground the Opinion was confirm'd in Dr. Lewis's Case . How far there is ground for a Prohibition therefore in this Case , I will not dispute ; but , tho the Excommunication should be allow'd to be void ; tho the alibi in the Statute hath been already drawn into its full extent , yet I am confident , there it but one Man in England , whose Opinion we need not much value , that will dream of a Praemunire .

3. As to the Vacancy of Dr. Hern's Place .

That he may refute some what , it is usual with this Author to make Objections himself , which no body else ever mention'd ; and then to shew his Skill in answer in them . For first he proves in Dr. Hern's Case , that Obsequium Officium & Exercitium cannot extend to an Ecclesiastical Benefice ; no , nor was it ever pretended that they did ; but I hope Ecclesiasticum Beneficium , in the same Statute will reach to it . Benefices indeed oftentimes are not reputed inconsistent with Fellowships , according to the intrinsick , but an estimated Value . The real Value is usually unsetled , and as depending upon Casualties , is floating and uncertain ; therefore the incompatibility of a Living ought to be taken from fixt and certain Rates , and those appearing on publick Record . The Kings Books , 't is always own'd , are such Regia Monumenta ; and are not the Acts of Parliament as much Publica Monumenta ? And is not , in the Letter of the Law , as well as in the intendment of the Legislator , the latter as good Evidence of the Value as the former ? Now then , since an Annuity of 100l . is , besides many other Advantages , setled by Act of Parliament on S. Anns ; is not this in the nature of the thing , as inconsistent as one of Eight ? And hath it not a stated Value different from the intrinsick ? And dothnot this appear in the most publick Records of the Kingdom ? And is it not then ridiculous to say that the Living is not tax'd at 100l . per Ann. but the Parish is tax'd to make it 100 l. per Ann. Nor can any Man that knew the Statutes of other Colleges in both Universities pretend , that this Precedent , however determin'd , can be of so universal influence . For since most of the Colleges in both Universities were founded before the making of the Records in the First-Fruits Office ; All his Arguments for them that enforce a reference to those Records only , not by equitable Construction , but express Words , prove nothing but his Ignorance in the Chronology of those famous Foundations .

Thus much I have said for Argument only , since the Author after a tedious Discourse , hath as usually not touch'd the Point in question ; And tho indeed his Reasons which have been shown to be very weak , would have tempted a Man to be of another Opinion ; yet I freely confess , that as to all Livings which are at all rated in the Kings Books ; and were , if not rated , then in being ; The Statute seems naturally to refer it self to those Books only , and the Publick Records there mention'd may , ( and as I think , and always thought ) in strictness of Law ought to be generally taken under that limited and restrain'd Interpretation . But , as to all new Livings not then in being , and consequently not rated in their Books , since erected , and reduc'd to a setled Value by Act of Parliament . I take the Provision for them to be Casus Omissus in the Statutes , and which by equitable Construction , and by a competent Judge , reducendus est ad expressum . And therefore I further conceive , that the Vice Chancellor having no Power of expounding the Statutes , did well declare , That the Fellowship and Benefice were not according to the Letter of the Statutes , inconsistent ; and , that Dr. Bouchiers Opinion was at that time , in that place , well grounded : For the Statutes are to be observ'd , secundum planum & grammaticalem sensum , Reservata duntaxat praed ' Reverendo Patri & Successoribus suis Episcopis Exon justa emergentium ex iisdem Statutis dubior ' interpretatione ; and therefore the Vice-Chancellor who was only let in as an Arbitrator between the Rector and the Fellows , must be guided by the Letter of the Statute ; but the Visitor having always a power of interpreting the Statutes in his Visitation , and upon request , out of it , might lawfully pursue the the well , intent , and plain design of the Law . And therefore since in his Judgment , and according to the plain intendment of the Legislator , now judicially declar'd , this was reduc'd to the other ordinary Cases express'd in the Statute ; The Living was , and is plainly inconsistent with a Fellowship . And at first indeed the Cognizance of the Cause being not so properly a disagreement between Rector and Fellow , as a doubt arising from the Statute , ought not to have been brought to the Vice-Chancellor , but before the Visitor ; and therefore the Matter being never setled before a proper Judge , was now first judicially mov'd and determin'd ; I am well inform'd by Letter from Dr. Boucher , and it appears in his Opinion it self , that he did at that time advise an appeal to the Visitor ; and therefore the Reflection of this Author upon him , upon this account , is as false , as is it rude and disingenous .

As to his Residence it is plain , that the reason of a Fellows absence from the College beyond 50 days must be Mors seu gravis infirmitus parentum , or causa promotionis , and then a tempus certum must be appointed ; and leave must be given habito respectu ad Causas Personas intervalla locorum , & circumstantias ejusmodi . When a Fellow is then in hopes of preferment ; this Statute allows absence for attainment of it , and doth not limit the time , but proposes some Rules for discretionary Limitation . But when he is advanc'd , and hath for some Years had quiet Possession of a Parsonage ; Then it is this Gentlemans Opinion , that Causa promotionis signifies the enjoyment of a Benefice , and that an indeterminate leave , perhaps for Life , may be granted . The Author of the Account is sworn to defend the Privileges of the University , and hath , and will perform his Oath . But in the mean time he knows that the Worthy Members of that learned Body desire not to elude the Statutes of their Founders , by so scandalous and senseless Evasions ; and that there are very few of them , and those but in one College that will in this Case be more pleas'd with the fair Dealing of their new pretended Advocate ; than they are hitherto satisfied with his Learning and Sense .

If then the Statutes will not excuse his Absence from the College ; it is pretended that the Law will discharge him from Residence from his Parsonage . The Question is , whether Dr. Herne having a Parish in London , and being oblig'd to reside upon it , four Parts of five in a Year , can beyond that allow'd time of Absence be resident in Oxford . He answers , That Dr. Hern is excus'd from Residence , notwithstanding the Act of Parliament that enjoyns it , because by a subsequent act , 1 Jac . 2. The Rector is to have an House built at the Charge of the Parish ; and therefore , till that be built , Non-resistance , as involuntary , is no Crime ; and in this Point he says , The Law is very clear . The Author was impos'd upon by a Case or two explanatory of 21 H. 8. It was doubted whether that Act oblig'd a Man to Residence only , in his Parish , or more particularly in the Parsonage House . If there was no House for the Parson , then the Incumbent is excus'd from that part of the Law which is impossible . For impotentia excusat legem ; But as there is no impossibility for Residence in General , tho the House be not built , so neither do the Cases warrant or excuse Non-Residence . [ See Goodals Case , Coke 6. p. 21. See Cr. Eliz . p. 590 , 591. ] And the Canon Law , which was the Ground of those Reports is clear in the Point , that he ought to live in the Vicinage , and not at forty seven Miles distance from his Parish in Oxford .

4. That the Visitor hath no Power by Statute of Suspending the Fellows ab Officio & Beneficio .

Upon this Head the Author declaims much , and long , and Dreams that the Suspension ab Officio especially , is so far from being warranted by Statute , that under the Pain of Perjury it cannot be submitted to by a Fellow . It would be easie to prove , that his Penalty being less then Expulsion , may without express Words r

Barbosa de Offic . Par. p. 1. c . 8. n . 41. Debet Residere Parochus in domo Parochiai , ipsa deficiente , residere debet in domo aliqua quae sit intra Parochiae limites , & ita Ecclesia contigua ut commode passet Ecclesia deservire . See Cock . de Jure & Just . p. 67.

Parochus non habans commodam habitationem in Parochia dispensatus est ut possit in loco vicino . residere Sess. Trid . 23. p. 216.

Statutes be legally inflicted by the Visitor . Putting out of Commons , is a Suspension à Beneficio , and of that , if they were worth any thing , Dr. Bury hath afforded us Precedents : Other Reasons might be suggested , were it not a very convincing one , that the Statnte it self , which this Gentleman might have read , expresly enjoys this Punishment . Eliamsi ad privationem aut amotionem Rectoris , Subrectoris vel alterius cujuscunque ab Administratione sua vel Officio procedat .

5. Whether the Visitor ought to have been Judge in his own Cause , or pronounc'd for his own Jurisdiction .

It is said indeed , that is against Natural Equity to make a Man Judge in his own Cause , and that an Act of Parliament that should establish such a Practice , would be void : And this General Maxim , grossly mistaken , and misapply'd , hath impos'd upon this Gentleman . A Man that is not Judge of his own Cause , may , and every where does pronounce for his own Jurisdiction , and over-rule the Exceptions of the Criminal . When his Property is concern'd , a Judge must withdraw , but not when the Authority of his Court is question'd . Quilibet Judex potest pronunciare pro seipso , quia licet illud non det ei jurisdictionem ; tamen constituit ipsum in quasi possessione Jurisdictionis : propter quod habet justam cognitionem , & pronunciationem . [ Abb. in c . cum Ordinem in fine de resumpt . Mart . de Jurisd . c . 4. p. 2. &c. 18. n . 8. ]

That the Concurrence of the Fellows to the Rectors Expulsion was not Statutable .

If the others had appear'd , they had not been suspended , and then they had been proper Judges ; since they did not appear , and were justly punish'd , they became Participes Crimnis , & Personae Inhabiles , and consequently in Law and Reason , as to any Exercise of Jurisdiction , were reputed absent .

He pursued therefore the Statute strictly , and the Expulsion of Dr. Bury was not more just in it self , than legally carried on . When those Fellows that had opposs'd the Jurisdiction of the Visitor , were statutably suspended ab Officio ; then it is very weak to talk of the Bishops taking in others , when the Statute had devolv'd the Authority on those that were in place nearest to them . And therefore the consent of no others could be had , than of such as were not incapacitated to give a legal Concurrence .

Lastly , the Contumacy is no statutable Cause of Expulsion , and if it were ought in the Case of the Fellows as well as the Rector , to receive the same Punishment from the Visitor .

If a Man had not been us'd to like arguing thro the Book , he would be surpriz'd at the last Exception in the close of it . Contumacy is not recited as one of the Crimes for which the Rector might be expelld , and therefore is no good Cause of Deprivation ; so that if a Rector when an Heretick and Incontinent made a weak Defence , he might be depriv'd , if he made none , he must be safe and secur'd .

Contumacy upon a Charge includes the Offence it self , and aggravates it , it amounts in Construction of Law to a Confession of the Crime , and to a Contempt of the Judge ; and any Court that hath no Power of punishing it , hath in effect no Power at all . The Statute says , Ostendantur ei detecta , quibus si non possit rationabiliter & honeste respondere , amoveatur : and I leave this Gentleman to prove that a refusal of appearance before a proper Judge , is a sufficient Answer to a Charge

As to the second Exception , it is clear , that the same Contumacy is not only respected in Law but the ground of it . When the charge is different ; the Contumacy may be the same , but neither the Crime is , nor the Punishment ought to be equal . That which bears nearest resemblance to Contumacy in Common Law is Outlawry . Outlawry in Trespass , is no Forfeiture of Land , as Outlawry in Felony is ; the not-appearing in both Cases is the cause of Outlawry , yet the Force of the Outlawry shall be esteem'd according to the heinousnes of the Offence , which was the Ground and Foundation of the Process . His Lordship therefore had not equal Reason to expel the Fellows as the Rector , but wonders much that in the Case of Exeter College , the greatest exception against his Proceedings should be his tenderness to the Fellows thereof .

Thus the whole State of this Controversy hath been enquir'd into and setled , and thereby not only the immaterial Objections , which have already been made , are answered , but all future Exceptions are prevented . The Powers of a Visitor , as has been prov'd , are general , and not more fixt by private appointment , than ascertain'd by Law : Appeals from this Domestick Judge are by Statute taken away , bet no recourse to him , either in this or any other College , hath ever been deny'd . It is evident then , that the Commission of Appeal was rightly granted , and it is equally clear , that the Visitation has been Statuable and Legal , and if ( as is now plain ) the Jurisdiction of the Judge was certain , and the Process warrantable , none of the Adversaries themselves will dispute the Justice of the Sentence .