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 examined.    
LONDON: Printed for Tho. Bennet at the Half-Moon in St. Pauls Church 〈…〉   

The PREFACE.  
THE Cause of the late Rector of Exeter hath been defended with as little Reason and as much Rudeness as it was at first carried on; and yet after all these Affronts and Indecencies, the Visitation of the Bishop of Exeter was not more legal in itself, than the Proceedings after it have been just and honourable. When the late Rector, upon the plain proof of scandalous Crimes had justly been expelled, and his removal would have contributed to the quiet of the College, and to the peace and honor of the whole University; the Visitor however declined the exercise of that power, which in those private Societies his Predecessors have always used, and deprived him of his Office, not of his Possession. Of all the Heads of Colleges that ever were in that University, Dr. Bury is undoubtedly the first, who, after the Visitor's Sentence, enjoyed the favour of an Ejectment.  
Some time after, as soon as the Bishop was informed that Dr. Bury expected Redress in the Courts of Westminster, He, upon his own motion, desired and obtained leave of waving his Privilege in the House of Lords. When afterwards the Cause depended before proper Judges in the Court of Kings-Bench, Mr. Painter, upon his Lordship's desire, endeavoured to hasten the trial, and the other pa●ty, upon a just dis●●●● 〈…〉 prevent it. These fair and honourable Procedures, which ought to have been praised and commended by an ingenuous Adversary, are nevertheless no fences against the malice of a weak and insolent Libel. The scandals, coming from such hands, neither need nor deserve an Answer, especially since they are levelled against a person who is much above the reach of those Calumnies.  
The Interest, which the Visitor pursued, is already secured; the College which his Predecessors founded, is, by him, reformed; and that Society which in respect of the Tenets there published, and the Enormities there committed, was the disgrace of the University, is now a creditable Member at least, if not an Ornament to it.  
The Duty which the Bishop owed to the Church and University, is already successfully discharged; the care and preservation of both is now happily entrusted to other hands. The powers that he executed were lodged in him by his religious Predecessor; He, by appointment, is sole Patron and Conservator of that Society, and represents the Founder in his College, as well as succeeds him in his diocese.  
The heresy, Bribery, and other gross Immoralities, clearly proved upon the late Rector, occasioned the Sentence, and after it the Censure, unanimously past by the whole University upon his blasphemous Book, sufficiently confirms and justifies the 〈…〉   

A DEFENCE, &c.  
MOST of those that have red the Case of Exeter College related and vindicated, are sufficiently convinced that so bad a Cause stood in need of better Advocates. The Pamphlet( as the Preface intimates) was designed to draw over the unthinking part of their Adversaries, and whatsoever influence it may possibly have had upon them, it hath not failed 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 confused, and perplexes the Cause which it cannot refute. And therefore the plain and direct Method of answering it, is to reduce the controversy 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 entitle him to that Office, and an Avoidance must preceded and warrant his Admission: If Dr. Bury then was rightly removed, 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 heresy, 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 denied, and that none else have any Visitatorial Power therein, is admitted: But a scruple is raised, whether, and how far this Power is subject to Restrictions, when it is suspended, and how revived: 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 barred from any Power of receiving Appeals, and is restrained 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 determined.  
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 lodged 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 explained; and the whole controversy will vanish at the same time that the Terms are settled. 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 itself, if it is not now always circumscribed to Spiritual Societies, was yet originally used 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 borrowed from them. And therefore tho the late Author hath been pleased to defy 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 entrusted 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 itself 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 determined, 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 ascertained by Law, the one is ex Institutione, the other ex Provisione Legis. And tho these Powers may be divided, and placed in several Persons, as Visitors, Ordinary and Extraordinary; yet wherever any Person is constituted sole Visitor, and all others are expressly 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, wherever they may be lodged, and to whomsoever transferred, cannot however be diminished, much less taken away. And therefore any discretionary Rules given to a Person who is confessed 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 conceived by doubtful Expressions to deprive him of the Power necessary for that Office, must either design to transfer this reserved 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 declared 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) allowed 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 presumed and acknowledged.  
little. 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 cook 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 abbey, and those Powers are declared to be General, Ordinary and Extraordinary.  
And therefore by the Statute 2 H. 5.1. Visitors are appointed to inquire 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 explained 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 received) in Common, implies and carries with it original and universal Jurisdiction. An Ordinary is distinguished as from a Delegated; so from a restrained Judge, he hath within his Sphere, and within his Forum( whether Secular, Ecclesiastical or mixed) 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 diocese; 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 chargeable Enquiry ex Officio mero into Matters undetected is limited; but a redress of emergent Grievances, and the Conusance of Matters delated, as necessary incident to his Office of Ordinary, neither is, nor without an apparent Failure of Justice can be taken away, or restrained. And therefore as in all Dioceses, so in all Colleges, where the Right of a triennial or quinquennial Visitation is lodged, there in the same Person, this Power of redressing Grievances in the interval, hath always been presumed and allowed. And as the practise in all Colleges hath always been the same, so is the reason of it too: An Universal Provision for all Grievances is designed; the Redress of them is placed in the Ordinaries and Visitors only; and therefore their Power doth 

Visitatio intromittitur saepius necessitate existent, 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 itself 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 foreign 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 borrowed, foreign, and delegated Jurisdiction. When Bishops visited their Dioceses, they were domestic 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 exercised in those Places that are of right visitable, and therefore it is next to be remarked, that not only Churches, but all Free chapels, all 
a cook 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. rolls, 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 etiansi Testator qui aedificavit prohibuisset; ne Episcopus in tali negotio intromitteret Conc. tried. 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, said valet quae transfert.   Lay-Confraternities instituted for charitable Designs, and in short, all Loca pia, whether they be ecclesiastical, lay, or mixed 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 tithes; 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 posset, said been valet contra Episcopum quod alius Praelatus visitet. called. land. 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 reserved 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 aggrieved; 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 more Office of the judge; 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 confounded them. Nothing but Complaint made to a superior 
a Dav. Rep. Case Proxies.  judge 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 judge, upon his enquiry for the Execution of Justice and which propounds not any private Amends and Satisfactions, but the public 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 easy 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, conveyed 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 expressly given them, yet was it presumed, owned and practised in all. Whether the visitatorial Power was lodged 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 placed in one Person, there, as an incident to the Office, the Redress of Grievances upon Appeals was by Law vested and settled.  
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 practise have owned the Visitor's Authority herein, so likewise the Courts at Westminster have countenanced and approved 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 red, 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 resolved, That the proper Remedy of all expelled or injured 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 determined the Matter, how will you get over that Sentence? and thereupon a Mandamus was denied. But if a Fellow had no Visitor to whom he might appeal, as in Herns Case, the Mandamus was granted and adjudged good. Since therefore in all other Societies and Monasteries an Appeal to the Visitor hath been granted, since in all Colleges it hath been used and allowed, 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 interpnted a bnfice, and therefore against all these Evils he provides a Visitor, unhappily not forefeeing, that even this Remedy itself might malè interpretando be distinguished 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 easy 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 designed 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 reposed 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 chapels, can upon more expressive Words be maintained 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 expel all heresy from their Society; and if afterwards their Saviour in this very College should be exposed as a Galilaean Vagabond, and a crucified Vagabond, and if all the Fundamentals and Articles of Faith should be therein ridiculed 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 libeling his Saviour here then a Quinquennium; then it must be allowed, 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 lodged 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 governed and preserved.  
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, said nulli ali, volumus& praecipimus effectualiter intendere& parere.  
As before, the Bishop was appointed Visitor; so here all others are barred from any Partnership in the Authority: The Powers that were given him are entire, 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 lodged in the Bishop of Exeter; let us consider what is offered to divest him of this Power.  
1. A Fellow hath sworn not to commence a svit against the College, and hath renounced 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 alias 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 voided 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 designed 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 diminished, but the Right of the Subjects restrained; 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 domestic 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 foreign or superior and extraordinary Jurisdiction: In all abbeys, 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 settled by Law; they knew the practise of all Colleges, from whence these Statutes were transcribed; and therefore if they had designed 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 fixed, and therefore if any more than the customary Renunciation had been designed, the usual Oath would never have been borrowed and imposed. All Letters of great Men are renounced; all foreign and vexatious Suits are forbidden, and would it not have been as easy( 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 barred as much from all these juris& facti remediis per quae posset in integrum restitui, and renounces them in vim pacti, as well as the Fellows; and yet in the Statute he is expressly allowed 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 called 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 named him, can divest 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 lye 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. cvi quidem Reverend. Patri, ac Deputato suo( praeterea nemini) tanquam Patrono& Ordinario Visitatori, vigore praesentis statuti plenam concedimus potestatem, ut supper 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 proved, that two Powers are necessary lodged in a visitor; one is the ordinary jurisdiction, which exerts itself 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 rest him by the former general words with the ordinary powers necessary 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 troublesone and chargeable, and therefore restrained. In this general enquiry by Office which is by the Canonists called 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 placed in the Visitor; which is a Visitation upon requisition. This is a mixed 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 public enormity.  
This Branch of the Statute therefore, however it may limit a Visitation, is so far from restraining Appeals, that it enforces them; for wherever 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 designed, 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 affirmed.  

1. That all sole Visitors separately, and all Visitors ordinary, and extraordinary jointly, 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 used and exercised, and in all Courts been confirmed and allowed.  
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 rest 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 expressly 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 expelled, 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 proved, and will more fully be cleared, that if the Bishop had no Power of receiving Appeals, and consequently the Commission was voided, and the Acts of it null and inauthoritative, yet however the Visitation could not thereby be barred, nor the Bishops Right be taken away, nor the Expulsion defeated.  
The Point being thus settled, 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 easy 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 proved to be False and Immaterial; the first Proposition laid down is, That an Appeal to the visitor is by Oaths restrained; 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 induced the Founder to the making of those Orders.  
The Ground then, that is reasonably supposed to persuade him to this Policy, was the Peace and Quiet of the House: And,  
Were not all other Societies of Students as much designed 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 visitor, and gave him due Power of redressing their Grievances, and of deciding their Controversies? Would there not be much more Peace in a diocese, if the Clergy were not subject to Visitation? And if a person, 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 heresy, 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 robbed and despoiled, 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 troublesome 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 employed 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 introduced. 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 domestic Court. And tho the Censures of a Visitor may be troublesome to those Persons that deserve them; and a review of the Cause tried 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 expelled; It is plain that a Mandamus would lye for him, as well as for a Parish clerk; 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 accessary to a Statute: wherever 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 accessary to it. Now then, Si continget me per Rectorem aut in hujusmodi interest 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 explained) Causae in Statutis contentae: The interest 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 accessary to it, and guided by it.  
And if the Statutes are altered by legal Authority: The matter of the Oath is likewise changed, 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 rector of the College cannot empanel 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 signify a conviction without, or against ●aw? for if it doth not, it will not justify 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 voided, 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 voided Agreement, and so utterly null and illegal; that the vis pacti cannot support it: Sententia nulla potest partium consensu ut valeat, non tanquam sententia said tanquam contractus: called. 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 clerks 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 testimony; summary 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 trial.  
Legitimè is expounded in the Probationers Oath secundum exigentiam Statutorum, and so Canonice is interpnted secundum exigentium Canonum. Lindw. 5. Tit. de purge. 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 sense, as in this good Grammar: But the following words put the sense 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 enjoined; 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 judgement.  
If then an innocent man had liberty of Appeal; whoever doth not appeal confesses, and owns his guilt. Non appellans dicitur approbare sententiam latam carded. 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 expressly mentioned nor forbidden: And therefore that those general words may in an equitable sense 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 considered; but the domestic 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 intrinsic 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 enjoined; 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 lawful Appeal are illegal and arbitrary Acts: what obligations the Founder might have enjoined 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 visitor 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 barred from Appeal; that legal Proofs are necessary to a legal Conviction, that the Visitor is a domestic 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 red 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 sense; 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 expressly 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 fixed 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 
cook 4. Inst. p. 340, Patrick's Case carded. 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 styled the Preamble of it: the Statute itself, 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 itself, because it implies an equality. Libels that have shown the Malice, have sometimes recommended the Wit of the Adversary; but blunt downright Rudeness is always the joint 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 show himself Master as well of the sense as of the good Breeding of his Client.  
The Appointment of the Founder created him Visitor, but the Law ascertained and fixed 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 diocese, 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 proved,) 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 lodged in the Visitor, yet are both entire and distinct from each other in their nature; it will be easy 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 restrained in its extent: A Visitation is of a public 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 style 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 observed the restrictions. In a Visitation, all the Fellows must necessary have been cited, and appeared; but none were called to this Court, but those that had been partakers of the Personal wrong, and were obliged 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 proved 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 concerned 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 restrained ad negotium appellationis only, since the Acta Curiae, which are here annexed, 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 confined; 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 presumed to be Authoritative and Legal. This Rule, as it holds not in this Case, because both Powers were lodged 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 undetermined by the Party, and therefore liable to the construction of Law: wherever 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. pits 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 declared, 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 itself, if it should be voided, 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 voided 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 pronounced 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 turned 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. carded. Tus. Con. 189. scared. 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 colleges, 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 far 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 rebuk, or a Reprehension, or a Sentence in the Star chamber? or have they a relation to the old Roman Censures? If this be designed for Wit, it is not very agreeable; but if it be Ignorance, as I suppose, it is extremely gross.  
Bonacina Tom. 1. Disp, 2. de Excom. talks of Censura quibus superiores( speaking of visitors) praecipiunt sibi aliquid revelari. D'avila de Cens. Eccl. C. 3. D. 1. Visitatores been 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 rest 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 designed by these Words to give that Power, and esteemed it necessary for the Visitor, is and will be proved beyond Contradiction.  
2. As to the Praemunire. If this author 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 moved 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 proportioned to the Capacity and the Breeding of his Client; and if the Cause be good in itself, it is there put in so ill a Light, and justified 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 perplexed and confused, it will be necessary briefly to state the Case itself; not with Design at present to settle the Point, but to show she Weakness of the author.  
The visitor 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 mixed 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 mixed 
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 seemed 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 styled 
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 expressly by Charter granted; that concerning them the Kings Prohibition should not lie. The Universities, as they now by Charter sand 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 designed 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 confirmed 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. cook 11. Rep. p. 99. See said. 71. Widrington's Case.  A. 9.& 10. Eliz. Mich. It was adjudged 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 devices to Spiritual Corporations.  
And therefore Colleges, tho' not merely Ecclesiastical, yet out of a just caution, are excepted out of the Statute of chantries.  

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 said 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 mixed: It was presumed that a mixed Jurisdiction, as sufficient for the redress of all Enormities therein was lodged in the sole visitors thereof; and this more especially if the Person, from whom the Authority was derived, could grant such Power; and the Offences, that were to be punished by the visitor, could not be enquired into without it; and the Statutes( as is already proved) 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 performed without the concurrent assistance of Ecclesiastical Jurisdiction. And therefore when Ordinaries are empowered to inquire 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. cook 2. instit. 465, See Mendo l. 1. q. 26.  Not only the Judices Academiarum, but the Conservatores too abroad that represent the visitors there; and the Conservatores of the Templars in England had always a mixed 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 cook thinks the Ecclesiastical Law proper to be used by a Visitor of all Societies founded in Liberâ Eleemosyna. cook 1. Instit. 96. And this Power seemed more necessary lodged 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 designed 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 chancellors 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 seemed not reasonable to suppose that a visitor of a College ex institutione, vested with Ecclesiastical Authority by the Statutes, should have less Jurisdiction, that one who ex provisione legis, was called 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. cock. 5.9.10.14. Dav. come. 73. H. 1. Jac. B. R. Rot. 601. Rolls Ab. 341, 10. H. 7.18.  
If then Ecclesiastical Jurisdiction be necessary for the visitor of a mixed Corporation; especially in Causes originally of Ecclesiastical Conusance; it must be presumed that the Kings Grant to the Founder, for constituting a visitor gave him Authority likewise of conveying to him such Powers which were necessary 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 owned, That the mixed 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 sum. l 5]  
And lastly since the Governours of the University have always exercised a mixed Jurisdiction; and the Charter of Exeter College entitles them to the same Customs, as the University; it seemed reasonable to suppose that the visitor of a College had claim in his small Sphere to the same Rights and Liberties, as the chancellor 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 expressly granted to their visitor the use of Ecclesiastical Censures: especially since I find that the Visitors in H. 8's time, in the University, tho not empowered by express words of Commission used to punish the Members thereof by Ecclesiastical Censures, as well as Temporal.  
3. If The Body was mixed, and a mixed Jurisdiction was lodged in the Visitor; Then the Cause of the Sentence itself being originally of Ecclesiastical Connusance, seemed properly to direct the Visitor to the Use and Exercise of that Power. heresy was chiefly charged against him, and fully proved; 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 principal ejusdem Juris erit accessorium. Bract. l. 5. c. 2. fol. 401.[ See also Hankford's Opinion, 2 H. 4.15.] And Ecclesiastical Process is allowed 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 used likewise for Costs and expenses adjudged 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 itself Temporal or Spiritual, but undetermined) becomes an Ecclesiastical or Secular Purishment in respect of the Cause for which, and of the Forum in which it is inflicted.  
I have offered these Reasons with all submission, not entering 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 ainae, and if he hath mixed 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 practise of Visitors heretofore, and the plain Words of the Founder have misled him. But howsoever the Cause be determined 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 foreign and idle supposal; for heresy 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 mixed 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 inquire into Ecclesiastical Offences. There is an apparent difference between two Jurisdictions and a mixed Jurisdiction; two Jurisdictions may occasionally and by accident be lodged in the same Person; as in the Bishop of Durham; but a mixed 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 mixed; but in the other, that which was the reason of mixing the Jurisdiction, is as strong for maintaining them undistinguished, and subservient to each other. In one Case it is a Rule Quando dvo 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 mixed Jurisdiction, can by Charter, confirmed by Act of Parliament, excommunicate the Mayor for breaking the privileges 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 heresy, but not entering 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 confirmed 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 allowed to be voided; 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 mentioned; and then to show his Skill in answer in them. For first he proves in Dr. Hern's Case, that Obsequium Officium& Exercitium cannot extend to an Ecclesiastical bnfice; no, nor was it ever pretended that they did; but I hope Ecclesiasticum Beneficium, in the same Statute will reach to it. benefice indeed oftentimes are not reputed inconsistent with Fellowships, according to the intrinsic, but an estimated Value. The real Value is usually unsettled, and as depending upon Casualties, is floating and uncertain; therefore the incompatibility of a Living ought to be taken from fixed and certain Rates, and those appearing on public Record. The Kings Books, 'tis always owned, 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, settled 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 intrinsic? And dothnot this appear in the most public Records of the Kingdom? And is it not then ridiculous to say that the Living is not taxed at 100l . per Ann. but the Parish is taxed 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 determined, 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 touched 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 ranted in the Kings Books; and were, if not ranted, then in being; The Statute seems naturally to refer itself to those Books only, and the public Records there mentioned may,( and as I think, and always thought) in strictness of Law ought to be generally taken under that limited and restrained Interpretation. But, as to all new Livings not then in being, and consequently not ranted in their Books, since erected, and reduced to a settled 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 bnfice 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 observed, 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 judgement, and according to the plain intendment of the Legislator, now judicially declared, this was reduced to the other ordinary Cases expressed 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 settled before a proper Judge, was now first judicially moved and determined; I am well informed by Letter from Dr. Boucher, and it appears in his Opinion itself, that he did at that time advice 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 attaimment of it, and doth not limit the time, but proposes some Rules for discretionary Limitation. But when he is advanced, 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 bnfice, 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 pleased 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. hernia having a Parish in London, and being obliged to reside upon it, four Parts of five in a Year, can beyond that allowed time of Absence be resident in Oxford. He answers, That Dr. Hern is excused from Residence, notwithstanding the Act of Parliament that enjoins 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 imposed upon by a Case or two explanatory of 21 H. 8. It was doubted whether that Act obliged a Man to Residence only, in his Parish, or more particularly in the Parsonage House. If there was no House for the person, then the Incumbent is excused 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, cook 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 easy to prove, that his Penalty being less then Expulsion, may without express Words 
r 
Barbosa de office. Par. p. 1. c. 8. n. 41. Debet Residere Parochus in domo Parochiai, ipsa deficiente, residere debet in domo aliqua quae sit intra Parochiae limits,& 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 posset in loco vicino. residere Sess. tried. 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 itself, which this Gentleman might have red, expressly 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 pronounced 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 practise, would be voided: And this General Maxim, grossly mistaken, and misapplied, hath imposed 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 concerned, a Judge must withdraw, but not when the Authority of his Court is questioned. Quilibet Judex potest pronunciare pro seipso, quia licet illud non debt 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 appeared, they had not been suspended, and then they had been proper Judges; since they did not appear, and were justly punished, 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 itself, 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 devolved 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 used to like arguing thro the Book, he would be surprised 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 heretic and Incontinent made a weak Defence, he might be deprived, if he made none, he must be safe and secured.  
Contumacy upon a Charge includes the Offence itself, 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 posset rationabiliter& honest 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 esteemed according to the heinousness 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 enquired into and settled, 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 proved, are general, and not more fixed by private appointment, than ascertained by Law: Appeals from this domestic Judge are by Statute taken away, bet no recourse to him, either in this or any other College, hath ever been denied. 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.    

AN ANSWER TO THE Account examined.  
SInce the Account examined is a panegyric on Dr. Bury, it is easy to discover the Author, and to find out the only Man in England, that would writ well on that Subject. The Answer to it, as anticipated by M. Colmlr, will here be very short; especially, since the whole Pamphlet is at best only a bold denial of his own Crimes; and is oftentimes a Confession of the Charge. The Author of the Account had published nothing against him, but what was warranted by authentic Vouchers; and it is not his fault if the faithful and exact History of a Mans Life, becomes the severest satire against him. Malice is ridiculously charged upon the Author against a Person wholly unknown: He knows no more of him, than of Socinus, or Sandius; but that his Principles are fully as bad; and his Learning much less. The little immaterial Exceptions, that are taken to the Account, are all false; but would for the most part be wholly impertinent to the purpose, if true. The great Inconstancy of which the Author of the Account is guilty, is that the Enormous Crimes of the Rector, are sometimes made the Cause of the Visitation; and sometimes the Discovery of them is gloried in, as the Effect of it. The notorious Scandal was the Cause of the Visitation; and the Discovery of the Crimes by legal Proof, was the Result of it. The suspicion of heresy and Incontinency was violent, and occasioned the visitors Enquiry: The Proof of the Charge was plain, and brought on the Decree of the University; Crimes may upon violent Presumptions be known before a trial; and yet the trial itself, and the Witnesses therein produced, must concur to the legal Conviction of the Criminals.  
1. As to the Naked Gospel, It hath already been censured and burnt; and after the Decree of that Learned and Judicious Body upon so Infamous and Heretical a Book, it would be much more Prudence for him once more to recant his Tenets, than to defend them. For let his Friends of the Polonian Faith beyond Sea, know, That never any Decree was more unanimously signed, nor more willingly assented to by the Right Reverend, and Reverend the Heads, and the worthy Members of the whole University.  
The manner of Christs Generation was not the Question, but his Divinity: And it is a very extensive Charity indeed, that takes in all Christians, but at the same time excludes Jesus Christ. If those bold Assertions( as he says) fell from him through Heat; I believe the same warmth continued, when he took and Sparrow into his House; when he expelled Mr. Colmar, and opposed the visitor. When the Author calls Jesus Christ a crucified Vagabond, he says, That he personated an Infidel; and the Vizard that then was put on, was not, I believe in the whole Book taken off. If none under a Dean may red Socinians Books; it seems however, that one under that Degree may writ them; and the Copies of the Naked Gospel, if fitted for Deans only, ought not to have amounted to 500. However, The Gentleman, I see, quotes Cantons which he never red; nor can it be well expected, That he should be acquainted with the Rules and Orders of a Church; who denies the Chief Articles of her Faith.  
As to his Immortality: The Affidavits that were there made in the Visitation were my guides, and afterwards his own Confession hath confirmed most of those Depositions. He boasts much of his Loyalty, which it is not my business to deny: The charge is heresy, Incontinence and Bribery, and the Plea is; that he is not guilty of Treason. I am glad indeed that he is free from any one Crime, but at the same time it is hard, that a Man shall be excused for Crucifying his Saviour, because he is Caesars Friend. It is not my business to look into his Life: The History of the Visitation I have strictly pursued, and even in that out of respect to his Character, omitted a very scandalous part of the Charge. It is the disingenuous task of other Men to publish false and surreptitious Affidavits: What I have at any time set forth hath been so clearly, and judicially proved; and wholly made out, that after all his Subterfuges, the Criminal himself dares not disavow it. For doth he deny that being then Provicechancour inaudità perfidiâ( which are the words of the Decree) he obliged Litchfield by colour of his Authority to print the Naked Gospel? Is he the Author of that Heretical Treatise or not? did he call his Saviour crucified Vagabond, or will he deny the charge? Doth he not own that he sat at St. Athanasius Creed? That he sold the Places and Offices of the College; and was guilty of Bribery and Extortion? In short, there is no part of the Charge, that is totally disavowed but Adultery, and yet that crime too as it was clearly made out in Visitation; so since by supplemental Evidence is confirmed. And therefore it is left to the World to judge, how far the Church, and Nation in general are obliged to the seasonable care of the University for censuring and burning that Blasphemous and Heretical Book; and to the Right Reverend the Bishop of Exeter for expelling the Author of it.  
A COPY OF THE PROCEEDINGS OF Dr. MASTER UPON The Commission of Appeal.  

Reverendo admodum in Christo Patri ac Dom. Dom. JONATHAN Permissione Divinâ Exon. Episcopo Collegii Exon. in Universitate Oxon. Patrono& Visitatori Ordinario, Edvardus Master Legum Doct. Vicar. vester in Spiritualibus Generalis& Comissar. vester in hac Parte special. constitut. omnimodas Obedientiam& Reverentiam Paternitati vestrae Reverend. Tenore praesentium innotescimus, significamus& certificamus, quae Vigore& Virtute Commissionis vestrae mihi in hac Parte fact.& direct.& debit. cum Reverentiâ praesentat.& tradit. processum fuit,& est prout sequitur.( viz.)  
Die Sabbati( viz.) Vicesimo secundo die Mensis Martii, Anno Dom.( Stylo Angliae) 1689. inter horas nonam& undecimam ante Merid. ejusdem diei in Capella Collegii Exon. in Universitate Oxon. coram venerabili& egregio viro Edvardo Master Legum Doctore Reverendi admodum Patris Domini Jonathanis Permissione Divinâ Exon. Episcopi, Patroni& Visitatoris Collegii Exon. predict. Ordinarii Commissario vestro judicialiter seden. in praesentia mei Johannis Greeneway Notarii Publici subscript. in hac P●rte specialiter assumpti.   
Negotium appellationis promotum per Jacobum Colmer Artis Magistrum Collegii Exon predict. Socium contra Doct. Bury, ejusdem Coll. Rectorem George Verman Coll. predict, Subrector& alios &c. Quibus Die hora& Loco coram praefato ven.& egregio Viro Edvardo Master Legum Doct. judicialiter seden. comparuit Thomas Wood Legum Bacc. ex parte Reverendi admodum in Christo Patris ac Domini Domini Jonathanis permissione divina Exon Episcopi Collegii Exon predict. Patroni& Visitatoris ordinarii exhibuit Literas Commissionales ejusdem Reverendi Patris Patroni& Visitatoris predict. presato Edvardo Master Legum Doctori direct. quas eidem Ven.& egregio Viro Edvardo Master debita cum Reverentia tradidit& presentavit humiliter petens quatenus praefat. Edvardus Master onus Executionis earundem Literarum Commissionalium in se assumere& acceptare& juxta vim formam tenorem& effectum earundem procedere& pro Jurisdictione sua seu potius vestra in hac parte decernere dignaretur quibus per eum debita simili reverentiâ receptis& publice tunc& ibid perlectis dictus Edvardus Master onus Executionis Literarum Commissionalium hujusmodi ob honorem& Reverentiam dicti Reverendi Patris Patroni& Visitatoris Committen. &c. In se assumpsit& acceptavit& procedend fore decrevit in hujusmodi negotio appellationis juxta& secundum omnem vim formam tenorem& effectum earundem& Juris in hac parte exigentiam meque Jo. Greeneway No Pub. in actorem scribam sieve Reg. pro expeditione hujusmodi Negotii appellationis assumpsit tunc factâ trina preconizatione pro dict. Arthur Bury S. Th, Professor. Coll. predict. Rectore Georgio Verman Subrectore Ezra Cleveland, Thoma Lethbridge Richardo Hutchins, Benjamino Archer, Samuel Adams& Philippo thorn sociis Collegii Exon proedict. ad interessend. istis die hora& Loco ultime citatis ad respondend. dicto Jacobo Colmer in hujusmodi Negotio appellationis comparuerunt Personaliter venerabilis Vir Arthur Bury S. T. P. Rector dicti Collegii necnon Georgius Verman Subrector ibid Ezra Cleeveland. Thomas Lethbridge, Richardus Hutchins& Philippus Thorn said Benjamin Archer& Samuel Adams non comparuerunt quorum paenas Dominus reservavit in prox. Tunc comparuit Jacobus Colmer pars appellans& constituit Magistrum Thomam Wood Legum Bacc in ejus legitimum procuratorem ad agend: &c. quod statim in se acceptavit& fecit se &c. Tunc facta denuo trina praeconizatione pro dict. Benjamin Archer& Samuel Adams eisque non comparen. &c. dictus Wood in presentia Doctoris Bury Georgii Verman, Ezrae Cleeveland, Thomae Lethbridg, Richardi Hutchins& Philippi Thorn comparen.& in penam Contumaciae dict Archer& Adams absen. Loco Libelli exhibuit Protocol. appellationis quod Dom admisit quatenus de Jure &c. Deinde dictus Wood exhibuit Inhibitionem& Monitionem pro transmissione totius processus in hoc negotio habit& fact.& allegavit easdem fuisse& esse debit execute. juxta Certificat. authentic. sub sigillo Officialitatis Berks factaque deinde trina preconizatione pro dict Archer &c Adams non comparen. Dominus in penam non comparen.& in praesentia comparen. monuit eos ad introducend. processum in prima hujus causae instantia fact. &c. post merid& ulteriorem executionem dictae commissionis continuavit& prorogavit ad publicam Cameram infradict Collegium Exon. notory situate. inter horam secundam& quartam pomerid. hujus diei monitis partibus presen. ad tunc ibid interessend.& in penam Archer& Adams non comparend Cont. Cur. &c.  
Eodem die inter horam second.& quartam pomerid coram praefato Edvardo Master Legum Doctore Commissario antedict in publica Camera in Collegio proed. pro Tribunal. seden. vocatis prius praefatis Doctore Bury, Georgio Verman, Ezra Cleeveland, Thom. Lethbridg, Richardo Hutchins& Philippo Thorn factâque trina preconizatione pro dict Benj. Archer& Samuel Adams eisque non comparen. comparuit Wood Procurator dict. Jacobi Colmer & in praesentia dictor. Doctoris Bury, Georgii Verman, Ezrae Cleeveland, Thomae Lethbridg, Richardi Hutchins& Philippi Thorn. Comparen.& in penam Contumaciae dict. Archer& Adams absen. petiit procedend. fore juxta formam retroactorum in praesentia dict. Doctoris Bury, Georgii Verman, Thomae Lethbridg& Philippi Thorn exhiben. scriptum quoddam continens protestationes suas manibus suis propriis subscript.& attestat. quod petierunt admitti& inactitari sic Incipiens in Visitatione Collegii Exon &c. Et sic terminans privilegiis nostris hac ex parte intemeratis quod scriptum Dominus ad eorum peticionem admisit quatenus de Jure sit admittend.& non aliter neque alio modo Interrogatis prius Magistris Ezra Cleeveland& Rich. Hutchins duobus ex Sociis dict. Colleg. Exon. signior. an velint dict. script. sieve Protestationem attestari sub manibus suis dict. Cleeveland& Hutchins express renuncian.& eidem non consentientibus. Tunc Dominus ad petitionem dict. Doctoris Bury reservavit potestatem subscribendi dict. Instrument dictis Archer& Adams absentibus si eidem Instrument. subscribere volverint cum venerint. Postea Dominus non obstante protestatione proed. Doct. Bury, Georgii Verman, Thomae Lethbridg& Philippi Thorn decrevit procedend. fore in hoc Negotie& monuit dict. Doctorem Bury aliosque comparen. ad introducend. processum in hoc Negotio juxta Monitionem eis Judicialiter fact. eis vero non introducentibus Dominus Wood accusavit Contumacias dictor. Doctoris Bury, Georgii Verman, Ezrae Cleeveland, Thomae Lethbridg, Richardo Hutchins& Philippi Thorn in non transmittendo vel exhibendo processum in primâ hujus pretensae causae instantiâ habitae& fact.& petiit sententiam ferri &c. dictis vero Doctore Bury, Georgio Verman, Thoma Lethbridg& Philippo Thorn alleg. quod virtute Stat, Collegii praed. processum in causa amotionis vel expulsionis teneantur procedere summary& de plano& sine strepitu Judiciali eaque de causa nullum processum in Scriptis habuisse aut habere nec proinde posse exhibere nec ullum Stat. violasse. Tunc factâ denuo trina preconisatione pro dict. Archer& Adams eisque non comparen. Dominus Wood in penam eorum contumac.& in praesentia comparen. obtulit Sententiam definitivam quam petiit admitti ferri legi& promulgari said Dominus ad petitionem dictor. Doctoris Bury, Georgii Verman, Thomae Lethbridg& Philippi Thorn continuavit& prorogavit ulteriorem expeditionem hujusmodi Commissionis& finalem auditionem hujusmodi Causae in Diem Martis prox. inter horas second.& Quart. pomerid, ejufdem diei hoc in loco Monitis partibus tunc praesentibus &c. Cont. Certificatorio &c.  
Postea Die Martis( viz) Vicesimo Quinto Die Mensis Martii Anno Dom. 1690. Inter horas tertiam& quartam pomerid. in hac parte Assignatas in publica Camera Colleg. Exon. praed. coram proefato venerabili& egregio Viro Edvardo Master Leg. Dict. come. antedict. pro tribunal. seden. in praesentia mei Jo. Greeneway Not. Pub.  
Quibus, &c. factâ trina praeconizatione pro dict' Doctor' Bury, Georgio Verman, Ezra Cleeveland, Thom' Lethbridge, Richardo Hutchins, Benjamino Archer, Samuel' Adams& Philippo thorn Comparuerunt& Exhibuerunt Scriptum quoddam de novo continens protestationes suas manibus suis subscript'& attestatas( except' Cleeveland& Hutchins) quod petiterunt admitti& inactitari sic incipiens In visitatione Collegii Exon' Et sic terminans protestantes irritum fore quicquid contra Acta nostra Statutum fuerit. Quod Scriptum petierunt admitti &c. Dominus admisit quatenus de Jure sit admittend.& non aliter neque alio modo: Tunc Dominus pronunciavit pro Jurisdictione suae &c. Et Wood petiit processum coram eisdem fact. juxta Monicionem introducend. fore &c. Qui responderunt se non habere alium processum quam qui Protestationi hac Die dat. annex. est Moniti deinde ad proband. dict. processum ad petitionem Wood responderunt se non teneri Dom. judican. probare sufficere sibiipsis liquid.& verum.  
Tunc dictus Wood obtulit& porrexit Dom. judican. sententiam definitivam pro Parte sua, quam petiit admitti, ferri, legi& promulgari in praesentia dictorum Doctoris Bury, Georgii Verman, Ezrae Clevcland, Thomae Lethbridge, Richardi Hutchins, Philippi thorn, Benjamin Archer& Samuel Adams nihil peten. Dom. ad Petitionem Dom. Wood admisit, tulit, legit& promulgavit Sententiam predict. sic( ut permittitur) per dict. Wood oblat.& porrect. decernendo, pronunciando, declarando, adjudicando, restituendo& in expenses condemnando caeteraque faciendo prout in eadem Sententia plenius continetur, praesentibus tum& ibid. Adolpho Meetkerk Coll. novi in Universitate Oxon. Artis Magistro& Seymor Tredenham Collegii omnium animarum in dict. Universitate Juris Civilis Scholari Testibus ad premissa testificand. special. rogatis& requisite. in praesentia mei Johannis Greeneway Not. Pub.& Reg. assumpti, &c. supper cujus quidem sententiae prolatione, &c. Dom. Wood requisivit pub. instrument. confici& in actitari.  
Tunc Dom. Wood obtulit Billam expensarum quam petiit admitti& taxari Dominus ad ejus petitionem taxavit and. ad summam viginti Marcarum( factâ prius fide perdict. Wood Client. suum exposuisse, &c. & expositurum esse summam taxat)& Dom. assignavit pro solutione dictarum expensarum in vel citra primum diem Mensis Maij prox.& judicial. monuit Dominos Doct. Bury george. Verman Ezra Cleeveland Thomam Lethbridge Richardum Hutchins Philippum thorn Benjam. Archer& Samuel. Adams dict. sum. taxat, praed. Mro. Jacobo Colmer seu ejus procurat. in vel citra diem praed. Tunc Dom. Wood petiit sententiam executioni demandari partemque suam actual. restituere& nomen suum in Libro promptuarii sieve Registro dicti Collegii inscribere unde Dominus nomen Mr. Colmer inscripsit tum in ea parte Libri predict. qua primo deletum sieve omissum fuerit tum in ea parte ubi hoc die Nomina sociorum scribuntur& inseruntur.  
Quae omnia& singula sic( ut permittitur) Coram Nobis Gesta habita& facta vera esse Paternitati vestrae certificamus eademque unà cum Literis vestris Commissionalibus Appellatione Mandato vestro Citatorio Inhibitione cum Monitione pro processu originali nna cum sententia nostra diffinitiva praesentibus annex. Clausim& sub Sigillo Vobis transmittimus.  
In cujus Rei Testimonium has Literas Testimoniales sieve hoc praesens publicum Instrumentum exinde confectum sigillo publico& authentico Officialitatis Berks sigillari& communiri& per Jo. Greeneway Not. Publ. Actor. nostrorum. in hac parte scribam subsignari& subscribi fecimus Dat. secundo die Aprilis Anno Dom. 1690.  
Edv. Master LL. dite. diocaeseos Exon Cancellarius.  
Et ego praefatns Jo. Greeneway Regiâ authoritate Not. Publ. Quia premissis omnibus& singulis dum sic[ ut prefertur) coram come. predict agebantur& fiebant praesens personaliter interfui Eaque omnia& singula sic fieri, vidi, scivi, audivi& in formam predict. inactitavi ac man●● mea propriâ scripsi& redegi Ideo nomen& cognomen meum subscripsi ae signum meum tabellionale solitum& consuetum praesentihus apposui in fidem& Testimonium premissorum ad id specialiter rogatus& requisitus,  
Ita Testor Jo. Greeneway Not. Publ.   

These Proceedings being Printed off in hast, the Reader is desired to correct the literal Faults therein; and these Errata in the Defence,  
ERRATA.  
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