1 Concerning the Expulsion and Appeal of Mr. Colmer.

Mr. Colmer was a Gentleman, whose demeanour in the College had formerly been such, that it much recommended him to the favor of the Rector, and his family. The Rector in a printed paper openly professes, that he held a greater familiarity with him than is usual between the Rector, and a Junior Fel­low [Page 5] of a College. What were the secret springs either of this intimacy, or of distast afterwards, as things transacted in a family, we think it not fit to publish, but what appear'd above board was as follows.

About December then 1688, when Sir Kingston stood Candidate for a Chaplain-Fellowship; the Rector vehe­mently espous'd his interest, as knowing that he could afterwards command his Vote, and by it, (as he himself profess'd) make the division of the College so equal, that the sole absolute power of determination in all causes should fall upon him-self. And since, Mr. Colmer, be­ing not ignorant of Mr. Kingstons manners, and former demeanour in the College, nor insensible of the Rector's design in promoting him, thought it his duty to con­curr with many of the Fellows in opposing this Election; The Rector openly declar'd, that he would upon that account compass Mr. Colmers Expulsion. In order to this, some moneths after, he charges him privatly with incontinence; and endeavours to frighten him into a resignation of his Fellowship. When that project fail'd and Mr. Colmer insisted on his innocence; and seemed not at all apprehensive of any danger on that account; The Rector accused him before the Vice-Chancellor; and procur'd his warrant to summon one Smith before him, and to take his depositions. The Testi­mony of Smith was so far from charging Mr. Colmer, that it wholly justify'd his innocence; and the other allegations of the Rector seem'd so trivial, and incohe­rent, that the Vice-Chancellor thought fit to dismiss the [Page 6] cause. When this design therefore met with no bet­ter success than the other, the Rector desisted from the troublesom course of examining Witnesses before a Magistrate, and resolv'd on a more compendious method of expelling him by bringing the Cause before himself. Accordingly on Oct. 10^th. 1689. The Rector call'd a meeting of the seven Senior Fellows, and told them that the occasion of it was a business in which he was to act the part both of an Accuser, and a Judge; and he might have added, of a Witness too: For, upon the Tryal, he accus'd Mr. Colmer of lying with one Ann Sparrow, who had lately been de­liver'd of a Bastard: and for evidence, he took his vo­luntary Oath, that Smith after much importunity us'd with him in his Closet to confess at whose expence he maintain'd the Woman, desir'd time to speak with his Friend. This Friend, the Rector was resolv'd should be interpreted Mr. Colmer; and thence inferr'd that he maintain'd the Woman and was Father of the Child, tho' Smith, who appeared at the meeting, avow'd, that he knew no such thing of him; and that the Rector misrepresented his words; and mistook his meaning. Upon no other Oath than this, founded upon a false surmise, taken by him, who was his Judge, and professed himselfe his Accuser, Mr. Colmer was declar'd legally convicted of incontinence.

There were indeed other Allegations in this Cause; but those, bare Allegations, without proof; and not sufficient to justify the Charge, if they had been prov'd. It was said that the Rector's wife said, that a cer­tain [Page 7] maid said to her; That she had formerly said to another Woman, That Mr. Colmer was uncivil to her; But the Maid, that was said to have said this, though in Town, was not produc'd; and the Woman, who was said to have receiv'd the complaint, was there pre­sent, and denied it. Traditional stories, Hear-says and Reports were urg'd against him; but the authors of them, tho' Servants of the Colledge; and subject to the Rector's Summons, were not call'd, nor produc'd. On the other side two Divines attested upon Oath, That the party, which was with Child, not only acquitted Mr. Colmer before them, but own'd, that she had been dealt with to accuse him. Against this plain, and express evidence, and against the Testimony of Smith, who was said to be his Accuser, The equivocal expressions, general words, and frivolous discourse of some talkative Women, ill attested, without Oath, and at second hand, were re­ceiv'd and credited; and upon these Proofs, and upon this process only, Mr. Colmer was expell'd; and devested of his Free-hold.

It is natural for men, that use such process as this, to shun a re-hearing; and therefore it is no wonder, if now the Rector pretended, That this his interlocutory sen­tence was conclusive; and final, and that Mr. Colmer was by Oath barr'd from any appeal to the Visitor. If the Statutes and the Oath, that was founded upon them, had been capable of such a sense, it would have been a great hardship on Mr. Colmer, who avow'd his own innocence, to have been necessarily expos'd either [Page 8] to the scandal of Fornication, or to the guilt of Per­jury. However he was resolv'd to consider his Oath, to undergo his misfortune, and to proceed no other­wise in his appeal, than it was permitted, and war­ranted by Statute. But, Upon the perusal of the Sta­tutes; and the consideration of the evidence given against him; he was himself convinc'd; and was con­firm'd in his opinion by Dr. Bouchier, Professor of the Civil-Law in Oxford; that he had free liberty; and just cause of appeal to the Visitor. The Motives, that prevail'd with him to think so, were such as these.

1. That the Oath,^a being accessory to the Statute, did only restrain those Persons from vexatious appeals, who were expell'd according to the appointment and dire­ction of the Statute; and according to the form therein laid down, and prescrib'd.

2. That, (the Statute requiring^b a legal conviction; and the Proofs in Mr. Colmer's Case being so far from making a legal conviction, that they were not sufficient to make a man of any reputation suspected) Mr. Colmer was not Statutably Expell'd, and consequently not barr'd from appeal.

3. That in the Oath it-self the word^c mea shows [Page 9] plainly that the Demerita must be in a true; not in an imputed sense; as must the alias probitatis merita which are oppos'd to them; and therefore it follows; either that a Person innocent of the crime objected may ap­peal; or that he must be forc'd to own that by virtue of his Oath, whereof he is not guilty; which were great impiety.

4. That,^a 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 be thought on, is not expresly mention'd 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 do­mestick Court; to one that is a forraign Judge, not to a Visitor, who is a part, and the first Member, of the College.

5. That these interpretations of the Oath ought to be receiv'd, as being most consonant to Law; and such as are least tending to establish arbitrary power; and to ex [...]lude legal remedies against wrong-doing.

Mr. Colmer therefore finding that he had liberty of [Page 10] appeal from grievances; and knowing that none could receive his appeal, but the Ordinary; made his appli­cation to the Bishop of Exeter, Successor of the Foun­der of that College, Patron, Ordinary and Visitor thereof. He insisted much on his own innocence, re­presented to his Lordship the injustice of the Rector's procedures, the invalidity of the evidence against him; and the credibility of the proofs offerr'd in his favor. Among other things, he shew'd to his Lordship the Affidavit made by Ann Sparrow, the Mother of the Ba­stard Child; who being put to her Oath before an Al­derman of Oxford, acquitted Mr. Colmer; and nam'd the Person one Roberts, who had tempted her to ac­cuse him. His Lordship was farther inform'd, that a great part of the College were so sensible of the inju­ries done to him; and so much at variance with his judges on that account; that, without the Ordinarie's interposition, these differences could not probably be compos'd. And lastly he beg'd of his Lordship to re­ceive his appeal; to grant him a new hearing only; That so the proofs of his innocence, and his guilt might equally be produc'd; and, according to the just weight of either of them, the Sentence against him might be confirm'd or annull'd.

My Lord of Exeter had now a very difficult choice either of taking upon him a long, expensive, and with­all an invidious trouble, or of neglecting his duty, and hazarding the rgihts of his Successors. The contentious humour of the Rector, which in former instances had [Page 11] sufficiently discover'd it-self, gave him prospect of op­position; and his Lordship was not insensible that the Nature of the Cause, which was brought before him, was capable of misconstruction. But these Prudential Dissuasives weigh'd not so much with him, as the stron­ger motives of honour, justice, and conscience, which induc'd him to receive the appeal. He was sworn to preserve the rights of his See; and this of receiving ap­peals and visiting Exeter-College was not only one of them, but so much the more necessary to be preserv'd, as his Lordship's Diocess hath a more than ordinary re­lation to that College. He knew, that these arbitrary, and illegal Methods, however now supported by spe­cious pretences, might easily on worse occasions be drawn into precedents; and might give colour for the usurpation of such an uncontrolable power, as neither was just nor fit for such a Rector to enjoy. And, as to this Case it-self, the dismission of it by the Vice-Chan: the hasty, and unstatutable proceedings of the Rector, the resentments of part of the College on that ac­count, the invalidity of the evidence against Mr. Colmer; and the contradictory testimonies of credible witnesses then and since offer'd, were sufficient pleas for a far­ther enquiry. Since therefore the Appeal was neither frivolous nor vexatious, his Lordship was convinc'd, that the admission of it was not a matter of favor, but justice; and that he, as superior judge, ought of right, and equity to receive it.

His Lordship was thus satisfy'd of the justice of the [Page 12] Appeal; nor was he less convinc'd of his power of re­ceiving it. He had good reason to think, that the Law, and the College Statutes supported this his authority; and the arguments, on which he chiefly grounded his opinion, are (for the satisfaction of others,) here recited, and made publick.

1. Since, as it is evident in this Case, A Fellow may appeal; there must be a competent Judge of the Ap­peal; and not only no other immediate Judge, than the Bishop, can be assign'd; but all other ^a Judges are, in causes relating to the College, expresly by Statute excluded.

2. The force of the word Ordinarius doth necessarily import universality of Jurisdiction; and therefore where no intermedial Jurisdiction is plac'd any where else, this, to prevent the defect of justice, must be let in.

3. Altho', by the Statutes, the Visitation of the whole College be restrain'd to requisition, or five Years; yet ^b the words in the beginning of the Statute are general, and apt for an universal provision; and cannot be sa­tisfyed by a Quinquennial Visitation of 3 days; nor by one upon requisition; For there may be a combi­nation of the majority of the Seniors, who only have power to desire it.

4. The Visitor was upon like reasons limited to a [Page 13] Quinquennial as a Bishop to a Triennial Visitation; It was the only design of the Canon in one Case, and of the Statute in the other to prevent the Charge of Proxies, and Sportulage; and therefore as a Bishop when barr'd from Solemn, and costly Visitations, is not restrain'd from exercising the ordinary acts of Jurisdiction; so neither, during the Quinquennial Term, doth a Visitor's power cease; but upon Emergent occasions, in any grievance, or Appeal, without any Charge of the College, Exerts it self. The General enquiry into matters undetected in both cases is limited; but the Cognizance of matters de­lated to them is in neither restrained.

Upon the whole then, the Bishop was sensible, that Mr. Colmer having a presumptive greivance done him in a matter of a high nature, had free liberty of making an Appeal; that his Lordship, as Ordinary, was Judge of Appeals; and therefore since the Appeal was law­full, and the matter of it just, and equitable; and the Cognizance of it lay before him, the Visitor as in justice, and prudence he ought, receiv'd and admitted it.

2 Concerning the Proceedings of the Bishop and his Commissary upon the Appeal.

There can be no greater Evidence of the calmness, and deliberation; which his Lordship us'd in his proceedings upon the Appeal, than the great distance of the dates between the Appeal and the Commission: the one presented on the 24 Oct. 1689. and the other [Page 14] was not granted before the 21 of Feb. following. Indeed his Lordship being willing, not to expose the authority of the Rector, at first try'd the mildest and most private methods of enquiring into this Cause, and adjusting it. He, by letter requir'd 2 of the Fellows, and as many more as the College should think fit, to attend him at London; and to bring with them a Copy of the proceedings against Mr. Colmer, and resolv'd, if any Evidence could be offer'd by them, to confirm the Sentence against him. This was so just; and so reasonable a demand from a Visitor, that I doubt not, the Reader will be surpriz'd to hear, that it met with a denial. A Letter, or rather, a Remonstrance was sent by the Rector; and in it the Visitor was acquaint­ed, that no Appeal at all lay in this Case, and if any, should lye the matter would not fall under his but the V. Ch's. Cognizance. What slender grounds there were for these pretences, will herafter appear; at present, I shall pur­sue the Relation of Matter of Fact; and give you the suc­cess of this answer. Upon this refusal, which was a new presumption of guilt; and upon the repeated instan­ces of Mr. Colmer; his Lordship being, immediately af­ter Parliament, oblig'd to attend the care of his Diocess, granted a Commission, and intrusted this Cause, to Dr. Masters his Commissary. If there was no other proof of his Lordship's impartiality in this affair, there never was a clearer instance of it given, than in one circum­stance of this Commission. For tho' Mr. Colmer's Lawyers did, not without colour of Law, insist, that such Com­missions [Page 15] of rehearing ought to admitt of no more Evi­dence, than what, in the last instance, had occasion'd the first Sentence; yet because his Lordship had heard that the Rector had obtain'd some fresh proofs of Mr. Colmer's guilt, he was so kind to D^r. Bury, and so little favourable to the Appellant, that he gave the Rector leave to bring in what fresh matter he could to justify his former judgement. So that tho' the former Evidence had been defective; and the process upon it illegal and arbitrary yet was the Bishop resolv'd to expose the Ap­pellant to any fresh charge; and not to suffer him, if guilty, to take any advantage of the Rector's hasty, and Exorbitant proceeding. This single consideration would acquit My Lord of Exeter from any partiality to Mr Col­mer; and yet, since this sometimes hath been, without any ground, objected to his Lordship. I shall take leave to anticipate one passage of the like nature in his General Visitation; and to give it place here. When the Bishop had by Letter, and Commission endeavour'd to Convict Mr. Colmer; and found at last, that the Re­ctor, and his party would not be brought to accuse him; His Lordship in his Visitation, among the Articles exhibited to those Fellows, who own'd his Authori­ty, made this One: to discover to him any Person in the College who was guilty or suspected of Incontinence. When in their answers no body was return'd suspected of that Crime; But the Rector himself; When no proofs against Mr. Colmer were produced; and two Material Affidavits which are here annex'd, were offer'd and [Page 16] taken in his favor; His Lordship according to the Me­thod of legal Process was oblig'd to acquit, and restore him. But at the same time the Bishop openly said to him? I was resolv'd to have Expell'd you my self at this Visitation; If I could have by any means obtain'd legal proof of the crime alleg'd against You; And I do now admonish You to prostrate Your self before God with Prayers and the sharpest repen­tance; If Your Conscience upbraids You with the guilt of this Lewdness.

After this short digression (which is a full answer to the Charge of partiality in his Lordship) it is necessary to re­turn to the Commission it self, and to give an account of the Acts done by Dr. Masters in pursuance of it. The Commission it self, being granted on Mr. Colmer's request, was wholly restrain'd to his Cause: the Pow'rs given were of no farther Extent, than to the Matter of the Appeal; and the Process upon it was suitable to the Commission. Whether we look on the Citations that were serv'd, or the Judicial Acts, that were Executed; these limitations are every where strictly observ'd: And more remarkably, when the Sportulage, which is due to the Visitor's Com­missary upon a Visitation, was offer'd to Dr. Masters, he refus'd the present; and disavow'd his coming upon a Visitation, as he had before done in Court. So groundless altogether are their arguments, who main­tain, that this particular enquiry into Mr. Colmer's Case only, and that Civiliter, can be intended or taken for the Visitor's General, and Solemn Visitation which is alwayes Criminally.

[Page 17] When Dr. Masters came into the Chappel, he read his Commission; and acquainted the Rector with the li­berty there given him, not only to justify his former pro­ceedings against Mr. Colmer; but to give in any other fresh Evidence against the Party Expell'd. The Rector was so far from complying with these just and equitable demands; that he openly denyed the jurisdiction of that Court; and set out the bounds, or rather the infinity of his own uncontroulable power. He said, That he might Ex­pell all his Fellows if he pleas'd; that he was absolute, and accountable to None; and that however arbitrary his Go­vernment might be, there was no remedy to be obtain'd against it. At last having 3 days given him to make out his Charge against the Appellant, he made no other use of it, than to draw up two protestations against the Visitor, with a postscript of Allegations against Mr. Colmer. In the first, it was alleged not only that no Appeal in Ge­neral could lye in this Case; but that if any lay, the Vi­sitor was not the Competent Judge of it, but the Vice-Chan­cellor. The Commissary was abundantly satisfi'd, as of the Lawfulness of the Appeal; so of the Jurisdiction of the Visitor in Cases of Appeal, and pronounced for the validitie of the same. He knew that the Vice-Chancellour (whose right he would have been very tender of) neither had any title to the Cognizance of this Case, nor laid claim to any. 'Tis true indeed, that by the Rector's Oath, if there be any strife or discord between him and his Fel­lows, he is oblig'd to stand to the Arbitrement of the Chan­cellor, or in his absence, of the Vice-Chancellor of Oxford.

[Page 18] But I Since no Jurisdiction is given to the Vice-Chancel­lor in the Statutes over the Fellows they are not oblig'd to own him as Judge; But the Rector only is bound to submit to him, as Arbitrator. The Fellows therefore must not necessarily have recourse to him; but, upon recourse had, the Rector is sworn not to decline his decision.

2 That Part of the Oath extends to those private Con­tests which the Rector shall have with the Fellows in his Personal Capacity agreeable to the Law of the Vniversity; but not to those that shall arise, when he acts Collegiately in Concurrence with the Majority of the Seniors. In the one Case, this intermedial arbitrement, for the ease of the Visitor and of the Fellows, is allow'd: and the Fel­lows have the Security of the Rector's Oath for his acquie­scence. In the other, the Cause is immediately devolv'd to the Ordinary.

3 At the hearing of this Cause, the Rector expresly deny'd, that the Vice-Chancellor, or any other ought to intermeddle in it.

This, and this only was the Exception taken to the Jurisdiction; nor were the Allegations against the Appel­lant more Weighty or Material. The crime of Inconti­nence in General was objected to him; and some Collateral circumstances, which should make out the Charge, were recited, and tender'd to the Commissary. But when Proof of them was requir'd from the Rector; it was answer'd that he was not oblig'd to give it; When a Lawful Cause of Expulsion was insisted on, it was pretended, that a rea­sonable Cause was sufficient, and when a reasonable Cause [Page 19] was to be desined, it was such as the Rector and the majority of the 7 seniors should think to be reasonable.

The Commissary was sensible; That a legal conviction must be founded on such evidence, as is agreeable to the rules of law, and justice; and that an uncontrolable power of judging that to be evidence, which is not so, is equivalent to an arbitrary power of expelling men without evidence. And therefore since there was no other evidence of the Rector's despotick, and absolute power, but his own allegation; since there was no cause of the Appellant's expulsion given; and no proof of any crime so much as offer'd, The Commissary as he was oblig'd by Law, and Justice, reversed the Rector's inter­locutory decree; and by a desinitive sentence restored Mr. Colmer.

It is evident now that the Rector had all advantages allow'd him of justifying, or of corroborating his sen­tence; That more than usual time was granted to him for the obtaining fresh proofs; and an Extraordinary li­berty was afforded him of producing them; and that, in short, if Mr. Colmer be guilty, he ows his impunity not to the Favour of the Bishop; but to the obstinacy of the Rector.

3. Concerning the Offences of the Rector and Others, which oblig'd the Visitor to make his solemn and General Visitation.

Nothing but the concurrence of so many exorbitant crimes, as at this time appear'd in the College, could [Page 20] have perswaded the Bishop to Visit the College in person; and to wave those just excuses, which his business and indisposition of body now afforded him; It will be ne­cessary therefore, before we enter upon the Visitation it­self, to give a previous account of those offences, which occasion'd it; and to begin with that, which we cannot name the first, nor the greatest; but which hath nearest relation to the former discourse; and may therefore not improperly be plac'd next to it. Assoon as Mr. Colmer was reinstated by the Commissary; he was, immediately after his departure again Expell'd or rather disown'd by the Rector. The pretences and colours upon which he now proceeded, and the management of this process were more surprizing, even then his former conduct in this affair. He cited Mr. Colmer to answer to a new Charge; and at the meeting disir'd a Publick Notary to attest; That he did not own him to be a rightful Fellow of the said College, but a pretended Fellow; and as such, he would proceed against him, upon farther evidence of incontinency. Now it is not easy for a less subtile man, than the Rector to imagine, why he should deny him to be Fellow; and yet proceed against him. If he was Fellow, why disavow'd? and if not, how could he fall under his jurisdiction? The Rector's autority over him was founded on Mr. Colmer's relation to the College; and why should the one remain, if the other was determin'd? If Dr. Masters proceedings were valid, why is Mr. Colmer's right disputed; and if there was a nullity in them; why is his present right implied, and confess'd by a subse­quent [Page 21] Expulsion? Mr. Colmer therefore told the Rector, that if he would not own the Sentence pass'd by the Bi­shop's Commissary he thought he had no jurisdiction over him; There being no Statute provided for the Expulsion of Intruders, and pretended Fellows. But if the Re­ctor would own that Sentence, he was ready to answer to any new Charge, from which that Sentence did not clear him. The Rector persisted to deny the Commissa­ry's autority: and upon that account only Mr. Colmer thought it not advisable for him, nor a duty incumbent upon him to submit to the Rector: who upon his own Principles had no jurisdiction: and from whom there could be no expectation of justice by what he had said, and heretofore done. He left the Room therefore: and in his absence, part of a Paper which the Rector had formerly Printed, concerning Mr. Colmers Case: was read before the Seniors: and, upon this evidence, without any witnesses call'd, or proof given, Mr. Colmer's name was struck out of the book: and somewhat was declar'd: either that he now was not, or that hereafter he should not be Fellow. And now, since we have had occasion to mention that Paper, we should not let it go without some particular remark: and its due Character: It is design'd for the summ total of all the Rector's evidence, and the defence of Mr. Colmer's Expulsion: and is wrote, with as much prudence as the affair it-self, of which it treats, was manag'd with as much decency, as Mr. Colmer would wish to his adversary: and with as much truth, as we might justly expect from a man of the Rector's principles.

[Page 22] These unjustifiable proceedings carried on so rudely, at this time, in such a manner, must be intended and taken as direct affronts to the Visitor, and his autority. However his Lordship's resentments were not so height­ned by these injuries done to himself: as by the other scandalous offences of the Rector; which were levell'd against his Savior. For not long before this time, an Heretical book, entitled the Naked Gospel, was publish'd by Dr. Bury; in which with some weak arguments, and disagreeable mirth, The Author endeavors to confute the divinity of Christ; and to expose it.

The Godhead of our Savior (who in some places is nam'd a Crucified Vagabond) is declar'd to be a dan­gerous and impertinent Speculation, and (to speak in this Author's Idiom) a silly Qnestion, and a Push-pin point. The Fundamental Articles of our Faith are there stil'd Gross impositions; and matters of no certainty, nor per­haps of credibility. The Council of Nice is by him re­presented as an ignorant, and Partial Synod; and the Decrees of it such, as were made according to the in­terest of Parties, not the merits of the Cause. His way of reasoning is much like that, when heretofore he pre­tended to sole, unqualified, and incommunicable power from the words in the College Statutes: sit unus Rector; tho' in other places the officers and seniors have a joynt autority; and are Commissioners with him. In short, all the absur'd and desperate opinions of the Anti-Tri­nitarians abroad are here repeated, and avow'd: all the old misapply'd citations, of which the more learned [Page 23] Arians are now asham'd, are here reviv'd and enforc'd; and indeed the whole System of the Socinian doctrine is by this Plagiary transcrib'd, and made his own with the new additions only of worse language, and less decency. This book the Rector, being then Pro-Vice-Chancellor of Oxford, carried to the Press; and, by the autority of his Character prevail'd with the Prin­ter to print it without any other licence. Assoon as it was finish'd; he dispers'd it to some Friends; and intended, as he himself since professes, to have presented it to Convocation. But when his Friends had dis­swaded him from so dangerous an attempt; He re­solv'd in a second Edition to mollify some harsh ex­pressions, to carry on the same design with more cun­ning; and to give as great a stroke to the Divinity of Christ, with more security to himself. Thus this Blas­phemous Treatise, with some few variations, some­times alter'd for the better, more often for the worse, was publish'd by him, and his confident Sir Kingston, with more openness, and assurance than the former.

It was time now for the Bishop to be mindful of those earnest entreaties and prayers, by which the Founders of that College have adjur'd him to pre­serve the Christian Faith in it. He foresaw the sad con­sequences, which must necessarily ensue if Dr. Bury, were permitted, in such a Station, by the power of his irresistible autority, to publish such doctrines; and to en­force them. This book of the Rector's was not more [Page 24] complain'd of to the Visitor, than his life; and his Mo­rals discredited the College as much as his Speculations. He openly sold the offices and places of the College; and consequently the Collegiates were expos'd to the impositions of those, who had purchas'd a right of de­frauding them. His Chastity was said to be so notorious; that he seem'd to have other designs in Expelling Mr. Col­mer, than the punishment of Vice; and to have acted more like a Rival, than a Judge. His indifference to order in the Chappel; His neglect of discipline in the House; His not maintaining of Lectures, &c. made the whole College, as far as in him lay, one continued disorder. So that the Dissentions of the Fellows upon these arbitrary proceed­ings grew high; and, without the interposing care of the Visitor, there was no prospect of quiet, and agreement. It was easy now to foresee, that nothing could put a stop to the approaching ruine of the College, but a Visitation: no other way was left of reforming these Enormities; or of com­posing these Divisions; no other method could prevent the change of this Nursery of Religion, into a Seminary of Socinianism; and therefore his Lordship was resolv'd to discharge the great trust, which was happily repos'd in him: and so far to imitate his Noble Predecessor, who had at great expences founded that College, as to exempt him-self from no trouble, or charge, in reforming, and preserving it.

4. Concerning the Visitation it self, the Evidence there given, and the Sentence there pronounc'd.

HItherto, in all the former proceedings, no other power was allow'd to his Lordship by the Re­ctor, but a General Visitation: The Universal auto­rity, which the Statutes repose in him, was accord­ing to his interpretation, wholly resolv'd into a Quinquennial Enquiry: and all the General words, which give Latitude, and full Extent to his power, were pretended to have reference to no other, than this Jurisdiction. His Lordship therfore being willing to reform the College not only by Legal, but Unexcepti­onable methods, appointed the 16 of June 1690. for the day of his Solemn and General Visitation to be held in the Chappel, and serv'd the College with a previous Citation in order to it. Now was it hardly to be expected, that the exercise of this unquestionable power, which had always been own'd and confess'd, could afford any colour of dispute, even to those, who always thought it more wisdom to put of their own Tryal, than to make their Defence. And yet, when the Bishop went in Person to the Chappel; where the Rector, and Fellows had been cited to appear, he found the doores designedly shut against him. Nine of the Fellows, indeed who were sensible of the Rector's Arbitrary proceedings, and of the Bishop's undoubted [Page 26] Autority, attended his Lordship, and own'd his Visita­torial power. But the Rector and some Fellows with him appear'd; and in a very tumultuous manner in the open Quadrangle offer'd a Protestation against his Autority; and would not permit him to have any entrance into the Chappel; which was the proper place for them to tender the Protestation, and for him to receive it. Other indignities and disrespects were then offer'd to his Lordship, which, by his order, I for­beare to report; even the indecent behaviour of Sir Kingston, which deserves a particular mention, but that it would force such reflections, as I make it my bu­siness to avoyd.

The substance of their Protestation was this, that the Bishop's power of Visitation is not general, but limited and restrain'd to once in 5 Years, that Dr. Masters by a Commission from the Bishop lately exercis'd acts of Jurisdiction, and Visitation in the College, in restoring an expelled Fellow; and that therefore within the term of 5 Years, which was not yet expir'd, his Lord­ship was barr'd from any other Visitation.

This Argument or rather Cavil is so very weak in it self; and supported by so little colour of reason, that it is necessary to beg the Reader's pardon for troubling him with a solid confutation of it: For it is evident, beyond dispute, That

1. The Nature and being of a Court can be no other, than what is granted in the Commission, on which it depends: and therefore since the Commission, which [Page 27] is here annex'd, is restrain'd to the Cause of Appeal only, the acts of the Commissary were, and must be agreea­ble to it, and are null in themselves, if they exceed those restrictions.

2 The nature of a Visitation is a voluntary enquiry into matters criminal, and correction therupon; But the Matter transacted by Dr. Masters was a nude Cog­nition of a grievance done to a certain Person, at his instance, and ended in Restitution only.

3 The nature of a Visitation of a College requires it to be general, both as to Crimes, and Persons; But to this Court were call'd those Persons alone, who had been partakers in the personal wrong.

4 The Commissioner openly declar'd; that he did not then come upon a Visitation; and therefore refused the Sportulage, in that Case appointed by the Founder.

5. The Rector, who gives a new autority to the Com­missary, when gone, Protested against him, when pre­sent; The Judicial Acts, that he did, were neither own'd nor observ'd; and the Process upon the Appeal, which is now say'd to be a Visitation, was then pretended by the same Man to have been invalid, and null.

The Visitor therefore esteeming the injury, and vio­lences offered to him, as an invasion of the Prerogative (the Visitatorial power being first deriv'd from, and confirm'd by the Crown) apply'd himself by Peti­tion to their Majesties in Council.

The application to Council in things of this Nature hath allways been warranted by Custom; the Prece­dents [Page 28] of their final decision, or arbitration are not few, and their orders have usually by mutual consent of both Parties been obey'd. But now the Rector openly declar'd that he would not acquiesce in their deter­mination of the affair, nor be concluded by it: whe­ther upon notice of this, or whether their Lordships did not take this Cause to fall under their Cognizance, or upon any other motives (which being things secret and uncertain it is not proper to enquire into) Their Lordships thought fit wholly to dismiss this Cause from that Board; and to refer the Visitor to the usual course of Law.

The Bishop finding himself left to the methods of Law, again took the advice of the most learned Coun­cil in the Laws, both Common, and Civil, and was by them satisfy'd in these three points; which in the pre­cedent discourse have been stated, and setled,

1. That he, as Ordinary, had power of receiving, and determining Appeals.

2. That the Commission made to his Commissary was only a Commission of Appeal restrain'd to the hearing and determining of the cause of that appellant only.

3. That being constituted by the Statutes Visitor and empowr'd without requisition to visit once in five Years; and the execution of that Commission not be­ing a Visitation, the Bishop might Visit, assoon as he thought fit.

His Lorship being thus confirm'd in his opinion, [Page 29] went down to Oxford in his way to his Diocess, with a resolution to Visit; but to deferr his Visitation, till the meeting of the Parliament should oblige him to re­turn to London. During his stay the Rector convening all the Fellows in an insulting manner told them, that he had defeated the Bishop's design of Visitation; and had thrown him flat on his back; farther adding to that part of them who had submitted to the Visitor, that tho' he had power to expell them, yet now he would only Re­gister them: But they were not to look on this as a Pardon, but as a Reprieve; For that they should continue at his Mercy, and removable at his Will.

Whereupon, Complaint of these Arbitrary proceedings being made to his Lordship, then at Christ-Church; He being sensible, that inevitable ruin to the College must fol­low, if some speedy stop was not put to the Rector's Ex­orbitant designs, resolv'd immediately to proceed to a Visitation, and serv'd a Citation on the Rector, and Fel­lows (being then in Town) to appear after some few days in the College Hall.

At the day appointed, two hours earlier, than usual, the Rector order'd the College prayers to be said, and after the end of them, instead of opening the gates, as he ought, he order'd them to be more firmly barr'd, and secur'd; resolving, as he had before kept the Bishop out of the Chappel, now to double his rudeness, and shut him out of the College. The Bishop knowing his temper, and apprehending such usage from him, resolv'd (as he had been before by his Councill advis'd) to have kept the [Page 30] Visitation as near the College as conveniently he could; but hearing afterwards that the Doors of the College were open'd; and that a great uproar was occasion'd thereby; he went with all convenient speed to put an end to the confusion; and to proceed, as quietly as might be in the Visitation.

How the Gates were open'd, or by whom, the Bishop knows not; and less can he understand, by what colour of Law, at that time, they were shut up. But probable it is, since the Gates were open'd from the College side, that some of the Fellows finding themselves unstatutably confin'd by the Rector, and having no prospect of liberty within the three days appointed for the Visitation, thought fit to free themselves from an illegal and arbitrary Im­prisonment. And if any tumult happen'd on that account, the guilt of it must certainly lye on those, who by their unjustifiable act first occasion'd it; and afterwards, by their rude, and violent interposition, promoted it.

As soon as the Bishop came into the Hall, the Rector with like rudeness, as formerly, threw in the former Pro­testation against the Bishop's Jurisdiction. The Bishop however permitted that the Protestation should be read, (as far as the Fellow, that accompany'd the Rector, could read it,) and upon the Rector's desire, promised that it should be entred in the Register. His Lordship farther desired the Rector to sit down, who return'd this answer only to the Civility: No I will stand by what I doe. After this indecent language, in a Contemp­tuous manner, He went out of the Hall; and refus'd [Page 31] to attend the Visitation; or indeed, the Issue of his own Plea. Now however a Plea to a Jurisdiction may exalt a man against him who hath no Jurisdiction at all; yet a­gainst a known Ordinary Judge in case he should seem to intermeddle beyond his Jurisdiction, great Temper, and Reverence is to be us'd; the matter is to be debated before him; and his judgment is to govern the question till farther Appeal. With all which the shutting up the Chappel Doore at one time, and the College-Gates at a­nother, the flinging in a Protestation, and rudely reced­ing without expecting the Success of it, are very in­consistent: a defence, cloath'd with these circumstances, is so far from tempering the Contempt, that is adds thereto Enmity to the Judge, and despight to the Law; than which there can be no greater aggravations.

However his Lordship without taking notice, or advan­tage of these indecencies, order'd the Protestation to be read throughout; and Proclamation to be thrice made for the Rector and protesting Fellows to appear; and to jus­tify their protestation; and to hear his Lordship's Judg­ment therein: but when none would answer, tho divers of the protesting Fellows were present; he observ'd the usual forms of process; and proceeded on regularly in the business of his Visitation. The Articles of Enquiry were read; and the Bishop, as by Statute directed, gave an Oath to such of the Fellows, as own'd his Lord­ship's Authority; and oblig'd them to discover to him such Enormities in the College, as by publick fame, or otherwise should come to their knowledg. It is not [Page 32] thought convenient, nor is it consistent with Statute, to discover the names of those that detected each crime; But in General the returns upon Oath to the Interroga­tions were these;

1. That the Rector was the reputed Author of a Book, call'd the Naked Gospell; that he sat at S. Athanasius's Creed in the Chappel; that he was generally suspected of Heresy; and did not read Prayers in the Chappel as often, as by Statute he was oblig'd

2. That he pretended to an Arbitrary, power over the Fellows; and had put some of them out of Commons for obeying the Inhibition of the Visitor in Mr. Colmer's Case.

3. That he had sold Places and Offices in the College, particularly those of the Cook, and Butler; and propos'd the Illegal Exaction of Bonds from the Fellows, who should thereafter be Elected, whereby they should engage to seek no reparation if he expell'd 'em.

4. That he was by publick Fame, upon probable grounds suspected of Incontinence.

5. That Dr. Hern, having a Parsonage, above the va­lue limited in the Statute; kept his place, contrary to the intent of the Founder.

6. That Mr. Vivian was Elected into Mr. Colmer's place being then full.

7. And lastly: That Divinity Disputations were seldom held: the Philosophical Lectures perform'd by Deputies; the Catechist's Duty not observ'd; and in short, the whole Discipline of the College neglected.

The Visitor seeing the Rector [...]nd others charg'd with some of these Crimes upon Oath, and suspected of others, called them again in Court to answer to these Accusations: and when they could not be brought to appear, his Lordship thought fit, not to punish the contempt of the Rector till he had taken all farther just, and legal methods of detecting the Crime, and expected his submission and innocence to the last day. In the mean time his Lordship found, that some of the Fel­lows, who factiously abetted Dr. Bury in these his arbi­trary proceedings could not be brought to appear be­fore him, and to own his power: this great, and repeat­ed contempt met with no other punishment than a su­spension ab Officio & Beneficio, for three Months, and farther, till they should be brought to own his Autori­ty. And since Sir Kingston, the Person who had be­fore rudely affronted the Bishop, immediately upon his Suspension, the same day, exercised his Office in the Chappel, upon the doors whereof the Sentence had been affix'd; the Bishop according to the direction of the Statutes, upon so great a contempt, heightened with so many aggravations, thought fit, to Excommunicate him.

The substance of the Evidence, which was taken be­fore his Lordship, and upon which his Sentences were grounded, was in short this which followeth. As to Dr. Hern, it appear'd by the Register of the Lord Bi­shop of London; That he was Admitted and Collated to the Parish of St. Anns 1 Apr. 1686. and upon com­paring [Page 34] of the Statute of the College, with the Act of Parliament relating to the Rector of that Parish; it ap­pear'd, that such maintenance was by the Act setled, and such residence enjoyn'd, as is wholly incompatible with his Fellowship. The Condition of his Parsonage is, that he shall reside upon it four parts of five in the Year; and the Condition of his Fellowship is, that he shall not be absent from the College above fifty days. All livings rated above 8 l. per Annum in any publick Records are in­consistent with a Fellowship; and upon this, 100l. are setled by Act of Parliament: besides several rents, and other perquisites.

Dr. Hern, by this direct clear, and authentick Evi­dence, had no right to his Fellowship; and by his for­mer acts in matters of the like nature, had no Plea for favour: He having been instituted at one time, to Blandford, and at another time to the Rectory of Hay­man in Dorset-shire, took occasion still to keep himself free from the danger of the Statute; by a resignation at Eleven month's end; and thus, by observing the let­ter of the Law, eluded the design of the Legislator. The Rector had often openly threatned him with Expul­sion on these accounts; but he knew the methods, that would pacify this Governour, and was careful to prevent, at least to appease his Indignation. The Visitor saw therefore that it was a Crime of the Rector and the College, not to have declar'd his palce void long since; and therefore, now at last took away that Scandal from the College by removing him.

Concerning Mr. Vivian, it appear'd that he had been elected into Mr. Colmer's place; which was never void: since Mr. Colmer was not then Statutably Expell'd; and the business of his Appeal was at the time of the E­lection depending before the Visitor. And since Mr. Colmer, now appear'd, and was ready to answer to what ever could be alleged against him, and neither in the detections of the Fellows, nor otherwise was charg'd with suspicion of Incontinence; and by the Oath of two Persons, that appear'd in Court, was acquitted from the former Accusations, the Visitor could find no cause to displace or expell him.

And lastly as to the Rector, Litchfield the Printer of the Naked Gospel, came into Court, & attested upon Oath, that he receiv'd that Heretical Book from his hands; and was Authoriz'd by him, being then Pro Vice-Chancellour, to print it. It was swore that the former Cook, and present Butler gave him, one 150 l. the other 170l. for their Places; and the Bond it-self for the Payment of the Mony with the Rector's Receipt in his own hand on the back of it was brought into Court. Concerning the 4^th. Article, three Affidavits were taken, which out of respect to the Re­ctor's Character, it is thought fit at present to conceal.

His Lordship was now fully satisfi'd, that it was not consistent with the interest of the College, the reputation of the Vniversity, or the pious design of the Founder; to permit the Rector, any longer to maintain such a Station, as he now had in the College, and Vniversity. His Lordship therefore found himself oblig'd to de­prive [Page 36] him, which he resolv'd to doe confining himself strictly to those methods, which the Statutes direct in the deprivation of a Rector. And therefore, since there are some words in the Statute that seem to desire, and re­commend to the Visitor a concurrent Vote of the Majority of the Seven Senior Fellows there present, to strengthen, and confirm his Act of Deprivation, the Visitor took the consent of Four of them accordingly; whose names are subscrib'd to the Instrument hereafter annexed. If excep­tion be taken by any, to the Persons concurring, as be­ing not really the Seven Seniours of the College; they may know that the Bishop was satisfi'd, that the Statute was sufficiently observ'd in the concurrence of those that subscrib'd to the Deprivation. For

1. The Statute by maxime Seniores rather directs than commands the Concurrence of the Seniors. The Founder requires indeed the consent of Four Fellows; but he wishes only, that if it be possible, those Fellows, that consent may be the Seniors. Neither were those the very Seniors that Expell'd Mr. Colmer, but only the Seniors present.

2 The constant usage in this and all Colleges inter­prets those words of the Statute. The concurrence of Seniors to all publick Acts, is always understood to mean the consent of those that are (not absolutely and truly the Seniors of the College, but) the most Senior of those that are present; and he, that by his own crime, incapa­citates himself from performing any Acts of his place, is by the rules of Law, and Reason, reputed as absent.

3. It would be absurd in expelling a Rector to require [Page 37] the Consent of those Fellows who are participes cri­minis; and are by the Visitor him-self, upon that con­tempt, already suspended ab Officio, as well as, a beneficio; and so made incapable of giving any legal concurrence.

His Lordship having thus according to Law depriv'd the Rector, knew how little submission was to be expect­ed from him; and therefore thought it necessary to en­force his Sentence. The only Method of doing it was such, as the Statute directed; and since in Cases of Ob­stinacy, Censures are there expresly prescrib'd, by which must be meant Ecclesiastical Censures (this, as all other Col­leges in Oxford being exempted from Episcopal and Metro­political Jurisdiction; and immediately subject to the Ec­clestastical Jurisdiction of the Visitor thereof, if he be a Per­son Competent and fit to Exercise such Autority) the Bishop as Ordinary, thought convenient to give the Rector Seven days after monition for his removal; and in Case of far­ther Contumacy, pronounced him Excommunicate.

The account of the Visitation being thus given it may not be immaterial to add; that upon his Deprivation, such of the Fellows of Exeter College, as were capable, according to the order appointed in the Statutes, pro­ceeded to the Election of a New Rector; and Unani­mously chose Mr. Painter, a person of unexceptionable worth and integrity.

And lastly, for the Honour of the Vniversity of Oxford, it must not be omitted, that immediately afther this di­scovery of the Author of the Naked Gospell, which was made by his Lordship; The Vniversity, being now sen­sible [Page 38] of the place, where the book was Printed, and of the Author himself, who had perfidiously us'd the colour of their autority in publication of it, by a solemn Decree condemn'd that Heretical book, and particularly seve­ral propositions therein contain'd; and order'd it to be publickly burnt in the Schools.

Thus have we now given a full account of an intricate Cause; intricate only, as designedly perplex'd by those, who, being afraid of the Sentence have disputed every step of the process. And indeed, if we look back, and take a review of the whole Cause, it will be easy to ob­serve, That, the strength of the Adversaries consists more in the number of their Cavils, than in the force of them. For first is it not evident, that by Law, and the Statutes of the College, no man ought to be devested of his Free-hold without legal conviction? Was there any concludent circumstance, in Mr. Colmer's Case alleg'd, upon which he could be legally convicted? at least was there any proof of such allegation? If we let in the supplemental evi­dence, which was taken after the Sentence, and therefore cannot in equity, justify, or support it; even in that, there is hardly ground for jealousy, much less for certainty. Where the same man is Accuser, sole Witness, and Judge, are not the proceedings, if not null, yet at least, justly suspected? And, where there is ground of suspicion ought not the Ordinary to admit an appeal, and to allow a re­hearing? If there was not therefore such proof, nor such legal process against Mr. Colmer, as the Statute requir'd; it is evident, from the Statute it-self, that he is not [Page 39] barr'd from appeal. 'Tis apparent it was not the design of the Founder to make the Rector absolute, and uncon­trollable; and to set up a Court in his breast, from which no writ of Error, or appeal should ly. At least, it is not easy to imagine why Mr. Colmer should be more forsworn for appealing, than the late Rector now is: Both were expell'd by competent Judges; both are equally barr'd from appeal; and the only difference between them is, that there are legal proofs against the latter, but not against the former. If therefore an appeal is to be admitted, who but the Ordinary is the Proper judge of it? and what application upon such grievances hath ever been made to any other, than the Visitor? In all other Colleges, where the Visitors are restrain'd from the frequency of solemn, and chargeable Visitations; the power of receiving appeals oftner, has either not been disputed, or upon dispute, adjudg'd to them, and ad­mitted. Extraordinary emergencies have always been allow'd to have speedy remedies; nor is it reasonable, that no redress should be obtain'd, till either the grie­vance be of five Years standing, or till the parties obnoxious desire a Visitation. If the Rector, and the majority of the seaven Seniors, spend the revenues of the College, and commit dilapidations; can there no stop be put to the exorbitance till the Quinquennial term is expir'd? And is not the College to be visited, till it shall be wholly ruin'd? The Bishop then had power of receiving appeals; and as there never was a greater necessity for the exercise of that power than in this instance, so was there never more mo­deration [Page 40] us'd in the acts of it. What interest could the Bishop of Exeter have in this Cause, but the performance of Justice? and what design could the Rector have in not producing his former proofs, but the establishment of an arbitrary and uncontrollable jurisdiction in him-self? It is plain then, that the Commission of appeal was upon just motives legally granted; and is no less evident, that it was wholly restrain'd to the matter of the Appeal. What right had Dr. Masters to Visit Exeter-College, but by a Deputation from the Bishop? And how can the Depu­tation appear, but by the Commission? If there be no Commission then that enables him to Visit; if the powers given in the Commission of Appeal are not General, but subject to restrictions, and determin'd: it shall be allow'd that the Commissary did make a Visitation, if it can be prov'd, that he could make any. The Commissary, acting by a limited Commission, confin'd him-self strictly to the bounds of it; but if he did not; his acts, as supported by no autority, were null and invalid; and as they could not affect the College, so neither could they prejudice the Bishop's right to a future Visitation. If the Restitu­tion of Mr. Colmer was such a judicial Act, as a Visitor only can exercise; and if Dr. Masters had power of Vi­sitation; why was it protested against as a null and in­autoritative act? and why was it never admitted to be of any force by the Rector, till it was pleaded, as a barr to the Jurisdiction of the Visitor? Since therefore Dr. Masters did not Visit, the Bishop was not now restrain'd from his right of Visitation; and if he had right of being [Page 41] Judge, there is none, even of the Rector's Friends, that can dispute the equity of the Sentence. Bribery, Heresy, and Incontinence, clearly made out, and prov'd, are cer­tainly sufficient to make a Governor of a College, un­worthy of that Station. And now if the Sentence of Deprivation was rightly inflicted; it was necessary, that all legal Methods should be us'd, which could enforce that Sentence. And since the Founder had directed the Visitor, who was always to be a Bishop, to the use of Ecclesiastical Censures; Excommunication was the last and only remedy, whereby the late Rector could be oblig'd to Submission.

It is clear then, that as his Lordship's designs were honourable and just; so his Methods of pursuing them have been Statutable and legal; and that the justice of his Sentence doth not more plainly appear than the le­gality of his Process. It is clear at last, That the late Rector's arguments in Law, are as bad, as those which he uses in Divinity; and that his Plea is no more true, than his Gospel.