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, [Page 2]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 [Page 3]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 [Page 5]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 ¹ 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. ² 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 [Page 7]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 ³ [Page 8]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 ⁴ Hospitals and religious Houses, as well of Seculars as Regulars, all Universities and Col­leges, all ⁵ 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 [Page 9]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 ⁶ 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 ⁷ [Page 10] 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. ⁸ 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 ⁹ 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 [Page 11]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 ¹⁰ Dr. Lewis's Case, Provost of Oriel. in Parkinson's Case, 1^mo W. & M. B.R. in Proost's Case, Hill. 3^io 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 [Page 12]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 [Page 13]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 [Page 14]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 quoscun{que} & Famulos, praedicto Do­mino [Page 15]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 & quarumcun{que} 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, quantumcun{que} 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. [Page 16]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. [Page 17]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; [Page 18]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 [Page 19]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 [Page 20]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 [Page 21] 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. ^* 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 [Page 22]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. [Page 24]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. quantumcun{que} 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 [Page 25]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 [Page 26]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 ¹² [Page 27]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 [Page 28]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 ¹³ [Page 29]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 [Page 30]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. 'Tis 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 [Page 31]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.

[Page 32]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 unumquen{que} 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.

[Page 34]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 ¹⁴, Ecclesiastical, often mixt ¹⁵ 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 ¹⁶ 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 ¹⁷ Canon Law, than that a Corporation cannot be merely secular; where the Num­ber of Ecclesiastical Persons equal the others, or exceed them. ¹⁸ And this Rule is still a greater Force, when the Society hath been erected and confirm'd by Ecclesiastical Authority.

²⁰ 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.

²¹ A. 9. & 10. Eliz. Mich. It was adjudg'd by all the Judges, per op­inionem omnium Justitiariorum utrius{que} 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.

²² 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; ²³ they are commanded to make Correction, and Reformation thereupon, after the Laws of Holy Church.

²⁴ 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, ²⁵ 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 [Page 37]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. Ʋbi 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. ^* 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 [Page 39]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.