1. Concerning the Credit of the Informer, and the Perjury of the Witnesses.

Mr. Colmer could wish that his own Vindication did not so far depend on the Proof of others Crimes, that he might act on the defensive only, and clear himself with­out impeaching others. But when a Calumny is to be disprov'd, it is necessary for Men to know the Chara­cter in this Case a true representation of ill Men is not suggest­ed by Malice, but Prudence; nor is a Recrimination, but a necessary Defence. As to the Informer then, Dr. Bury, [Page 5]it is not to be deny'd, I suppose, that he was upon two express and direct Depositions judicially accus'd of Incon­tinence with his Servant; and that he was so conscious of his Guilt in that, as well as other Particulars, that upon that account only he demurr'd to the Jurisdiction of a known and lawful Judge, because he could not answer to the Charge before him. The Affidavits that were taken in the Visitation, are here annex'd; The Exceptions against them shall be elsewhere clear'd and refuted; and upon the perusal of the whole, it will be evident that the Punish­ment of Fornication was not so much heretofore the In­formers Province, as the Practice of Adultery. Tho this Testimony voluntarily made by the Party her-self upon Oath, be very strong and convincing, tho the Circum­stances and Tokens which attend and confirm the De­position, be plain and undeniable; yet ought the Affida­vit to have less weight, if he had formerly been free from the imputation of such Immoralities. Much undoubted­ly is to be allow'd to the Credit of the Person accus'd, and a tenderness is to be us'd in receiving, and in report­ing an Accusation; but when, as by the following Oath, he appears to have been always reputed a notorious Adulterer; when his Principles are such as second those Reports, he cannot justly expect that Favour to which another Man of a different Life, and Reputation might be deservedly entitled.

He may remember, I presume, how oft in the hear­ing of his own Relations, and before Mr. Colmer, he hath declared, That the Word Fornication in the Bible was Me­taphorical, [Page 6]and that nothing was forbidden by that Name but Idolatry and running after strange Gods. He hath always expressed so great a tenderness for Husbands or Wives in the Case of Coldness, that the Latitude which he allow'd them therein, would in the Language of all other Casuists be properly term'd the grossest Adultery. He having often declar'd, that there was an Obligation in Justice to allow another to answer the same Expectation, which he could not satisfie himself. Other Expressions are not out of respect to him, but out of decency omitted, as being too gross to bear Repetition. To repeat his other Crimes, his Heresie, Bribery and Extortion, were to give the History of his Life; but what is most to our pur­pose, his particular Talent in Champerty and Mainte­nance, his Intrigues with Witnesses, and his artificial ma­nagement of Evidence, need not be nicely insisted on here, as being this last Term sufficiently discover'd and expos'd in Chancery. This is the Accuser that promoted and carried on an Information of Incontinence, and the Instruments by which he compass'd his Designs, are of the same make and size. The whole material Evidence proceeds originally from Anne Sparrow and Anne Aris, and is resolv'd into the Credit of their Testimony, so that if their Oaths can have little weight, the traditional reports, however authentically deriv'd from them, must have less. As to Anne Sparrow then, you may take her true Chara­cter from Dr. Bury's own pen, who thus with his usual Elegance, and with more than ordinary Truth in one of his Papers describes her.

Anne was known to be scarce half-witted, and the Proverb which saith, Children and Fools speak Truth, is to be un­derstood of what they speak of their own Accord; but when they are in other Folks Conduct, then they speak as they are prompted.

So that here the main Witness on whose loose Expres­sions Mr. Colmer was expell'd; upon whose Testimony the Sentence is supported, is own'd and confess'd to be a Fool, Half-witted, very pliable to a Suborner, and easie to be drawn into Perjury. The other Witness Anne Aris was one that was expell'd the College by the late Rector; One that had caus'd the Expulsion of one Man, for this same Act of which she now accuses another: One that at her Delivery, and ever since had solemnly vow'd that Smith only was the Father of the Child, which now at the Rectors request after more than a Years distance from the Death of it, she charges on Mr. Colmer. These are the two Witnesses, who having before given contradictory Evidence, do at the same time swear Mr. Colmer Guilty, and themselves once for-sworn, and upon each of these singly depends a Conviction, and an Expulsion. If a Man would look back then on the Informer, and consider the main Witnesses, and the nature of the Cause, he could not reasonably expect much Truth from any of them, but if he will look forward on the gross, and apparent falsity of the Evidence it self; he will find it such, as not only an­swers, but exceeds his Expectation.

Of the Indirect Practices by which the Evidence was obtain'd.

The Servants of Exeter College purchase their Places at no easie Rate, and hold them upon very hard Terms: Some of 'em upon their Entrance were forc'd to furnish the late Rector with Mony; others that could not purchase the same way, were oblig'd under the Penalty of a Forfeiture to supply him with Affidavits. When Mr. Colmer then had justly oppos'd the Rector in the Election of Mr. Kingston; the Rector did upon that account declare that he would deny Mr. Colmer his Degree, and by Consequence compass his Expulsion: This his resolution he communicated to his Daughters in Devon-shire, and the Persons are therefore named, because Dr. Bury hath been pleas'd to deny the Matter of Fact.

Now in revenge of this Affront, and in pursuance of his Design he privately in his Closet perswades Smith (one of his Dependants) to accuse Mr. Colmer: There Smith (as by the Rectors own Confession since appears) was threatned, till he wept, was frightned with the loss of his Place, and the ruin of his Wife and his Family; and yet could by no prospect either of Reward or punishment be brib'd or terrified into Perjury. Thomasin Smith was the se­cond Witness, which the Rector labour'd to gain; and she tho much tempted, was so far from confirming the Re­ctors Charge, that she repeated Anne Sparrows Words; and wholly clear'd and acquitted Mr. Colmer. And it is to be [Page 9]noted, that Ferdinand and Thomasin have sworn in the Vice-Chancellors Court in the Cause between Col­mer and Crab, expresly contrary to what they are said to confess in the late Case. This then was thought no Evidence before the Vice-Chancellor; but when Dr. Bury had advisedly made himself Judge of the Cause; Equivocal Expressions were not only put to a strein'd and foreign Interpretation, but were crodited against the direct Oaths that were offer'd by the Authors of them. And tho doubtful Words from these two Persons, ill construed, and worse attested were admitted as Evidence against Mr. Col­mer; yet the Affidavits tender'd by the same Persons at the Tryal in his behalf were suspected, and re­fus'd: Thus the Tryal went on, and the Sentence pass'd; but the Injustice of it was so visible, and the scandal so great, that even the Rector himself without additional Evidence, could not support the Infamy of it. When therefore his first Witnesses be­ing of a stubborn and inflexible Honesty, could by no Threats or Arguments be induc'd to swear ac­cording to his Directions, nor to justifie his late Sentence; His next effort was made upon the pli­able, half-witted Anne Sparrow, who according to his own Character of her was exactly fitted to receive any Oath, and to vouch it. Sir Kingston then a known Agent of the Rector, and equally concern'd to be an Enemy of Mr. Colmer, goes to [Page 10]the Wench at London; and (as appears by Affi­davit) perswades her to charge Mr. Colmer with an Offence, of which she had before upon Oath once, and before credible Witnesses oftentimes ac­quitted him. The Oath then that was ready for her, was easily digested: She swore indeed that Mr. Colmer was concern'd with her; but it appears upon Oath that she immediately afterwards de­clar'd to Anne Pierce, That she swore only what Mr. Kingston bad her. So that here a weak, silly and scandalous Wench, who was first tempted by Eliz. Roberts, and afterwards by Mr. Kingston to accuse an innocent Person, assoon as out of their Custody, disavows the Accusation, acquits the Par­ty, and discovers the Suborners: And when this Creature repeated in Oxford the like Oaths which she made at London, it is observable, that tho she had been known to be about the Town from January to June, yet she was never examin'd till upon the return of Mr. Kingston from London, she was again under the same Persons management, and more near­ly subject to the Influences of the Rector; and therefore it is easie to imagine the Reason, why such a senseless prostitute Strumpet was immediatly after all these Crimes and Perjuries entertain'd for three Weeks together by the late Rector in his Lodgings; and why, upon the taking that Deposi­tion, nothing however materially said by the De­ponent, [Page 11]was inserted into the Oath, which was not approv'd by Dr. Bury.

But there was a double Expulsion to be carried on, and therefore two Bastards at least to be found, and Mr. Colmer was to be intitled to them both. Anne Aris then Daughter to a Servant of the College, who had been long since expell'd, was now thought by the Rector a Person fit to be recall'd, examin'd and corrupted: Above a Year had now pass'd since her Delivery; Smith had been accus'd by her as the Fa­ther of the Child, and was upon that Account already expell'd; yet now at this distance of time, she is tempted to disavow what it her Pains she had solemnly declar'd; and to charge a new Man, Mr. Colmer. Her Mother Buckland had a dependance on the Rector, and had been as to her Employment in the College, for her ill Manners particularly disobligd by Mr. Colmer, and upon his desire, turn'd off by his Friends. And therefore it is not very probable, that a Man under Mr. Colmer's Circumstances al­ready accus'd of, and expell'd for Incontinence, would have exasperated this Woman, and turn'd her out of a considerable part of her Imployment, if he had been conscious, as she pretends, that she could charge him with such a Crime, and had ever been privy to any lascivious Intrigues. This Woman then having been long and often discours'd by Dr. [Page 12] Bury in his Dining-Room, at last revenges her self on Mr. Colmer; secures her Interest with the Doctor, and tempts and perswades her Daughter to for­swear her former Accusation; and upon his Exigence to supply the late Rector with an Affidavit. The Wench then retracts what she had before testifi'd; and upon these Motives, and upon these Instigations, accuses Mr. Colmer; but immediately afterwards, (as Anne Sparrow had done before) She of her own accord protests against her own false Evidence, weeps at the mention of it; and (as appears by Oath) owns, that this Story was put into her Head, and that she was inveigled to accuse him. These are the two Witnesses, on whose Credit the whole Charge depends; and these are the Methods by which the Evidence was obtain'd; Such Agents were singled out as were known Dependents of Dr. Bury, and avow'd Enemies of Mr. Colmer; such Witnesses were chosen as confessedly had little claim to Com­mon Sense, and less to Honesty; and yet Truth is so prevalent, and Perjury so hard to be conceal'd, that even these Witnesses, under this Management, voluntarily discover'd the Contrivance, and became Witnesses of that Subornation to which they were Parties.

3. The Credit of the Person accus'd.

This Head might possibly be accus'd as vain, if the Malice of Mr. Colmers Adversaries had not made it necessary. In one of the late Libels he hath been tax'd as a Person formerly guilty of Im­moralities, tho upon enquiry it will appear that those Accusations are equally groundless, and far less plausible than the present Charge. He was first elect­ed into Corpus Christi College from Exeter, and was thence elected Fellow by those of Exeter, and the Testimonials which he lately has receiv'd from all the Fellows of that College, then and now Re­sident, sufficiently shew what Opinion they former­ly had, and still retain of his Morals and good Be­haviour amongst them. The late concern of the Fellows of Exeter in his behalf, the dismission of the Cause by the Vice-Chancellor, and the Receipt of the Appeal by the Right Reverend Visitor will sufficiently shew that he is disrespected by none there, but Dr. Bury and his Confederates. And above all the rest, there cannot be a clearer Instance of the good Opinion of the whole University than that with­out any contradiction, his Degree in Physick with a Li­centia Practicandi was lately granted to him, and by consequence his Morals were upon that strict enquiry, [Page 14]fully approv'd by the University in General, and by these of his own Profession in particular. And therefore till Dr. Bury can equally approve himself to that Learned and Judicious Body, it is not to be doubted but that his Calumnies against him will be no more successful in their effects, then they are true in themselves.

4. Of the Falsity and Improbadility of the Depositions themselves.

The Artifice that was us'd in gaining the Affida­vits of these senseless Witnesses, is an indirect Me­thod at least of producing Truth; but is a very base and scandalous way of promoting Falshood. Men that have any Credit themselves, are wont to look into the repute of their Evidence, and not upon the extorted Oaths of any prostitute Wretch to frame, and dress up an Information. However, since Testimonies of such Persons are here produc'd; It is incumbent upon Me not only as I safely may to deny the whole Charge; but to confute the Evi­dence that supports it. Now certainly the Oath of Anne Sparrow, that clears Mr. Colmer will ballance the Oath of the same Person that charges him. If a Testis Vacillans is rejected in Law, much more a perjur'd Witness that swears counter to her self, and [Page 15]falsifies her own Depositions. If she swore Truth before Alderman Fifield, Mr. Colmer is acquitted; and if she then swore false, Mr. Colmer can never afterwards upon her Testimony be justly con­demn'd.

A contradictory Oath can mean nothing, it af­firms a Crime, and denies it; it takes off its own Load, and therefore when there is no Charge remaining, all Laws allow an Acquittal. If Aris had only to do with Smith, as she swore at her Delivery Mr. Colmer cannot be joynt Father of the Child, as at so great a distance she attested. The Question only then is which Anne Aris is to belive'd, whether she in her Pains, and in all probability at no great distance from Death, or whether we must credit her sixteen Months afterwards pursuing her Mothers Revenge, and acted by the Influence of the Re­ctor. For the Indemnity of a Parish indeed great Liberties are and ought to be allow'd, and that Evi­dence will charge a putative Father before a Justice, that will not in the Spiritual Court convict an Adul­terer. And in this Case not only a Mans Reputa­tion lies at Stake, but his Civil Interest is in danger; Continence is the Condition of his Free-hold, and therefore slight and trivial Proofs, much less none, ought not to divest him of it. It being clear then, that the Witnesses have sworn against them­selves, [Page 16]Mr. Colmers Innocence is justified by the same Affidavits by which it is pretended to be impeach'd. However it is necessary to pursue the Evidence, and to discover probably therein no Footsteps of Incon­tinence, but very visible Marks of Subornation: For since the Perjury of both the Witnesses is plain, and since it is probable that they were seduc'd and in­veigled into contradictory Oaths, the only doubt that remains is on whom must fall the Guilt of suborn­ing them. The late Rector pretends to accuse Mr. Maundrel, and Mr. Cleaveland, but nothing is brought to support the Charge, but one of Anne Sparrow's sayings, and one of them too (such as they are) we have against Mr. Kingston. Now in such a Perplexity as this is, when Men have designedly en­deavour'd to promote Perjury; the things themselves well weigh'd, the Circumstances examin'd, and the Character of the Persons concern'd are in all probability the Guides that will let us into the Truth of the Cause. Mr. Cleaveland then, and Mr. Maundrel both Masters of Arts, and both in Orders, are Men of unspotted and clear Reputation, and who are ready upon Oath to deny and disavow the Charge. The late Re­ctor (as the Court of Chancery well knows) is not unpractis'd in Evidencing; and his Associate Mr. Kingston is registred in Mr. Dangerfield's Diary, as one of his singular Friends and Companions. I shall not therefore much insist on the Oaths of the [Page 17]two Witnesses that swear; that they were seduc'd and inviegl'd into the Accusation of Mr. Colmer; tho even these too are wholly rely'd on by those that want better Evidence: But I shall rely on the whole Management of the Desing, which, if taken together and seen at one view, discovers it self. The late Rector himself own'd, in the first Paper by him publish'd, that he Closeted the meanest Servants of his College; that he beat them out of their Sayings; that he labour'd for Oaths, and lastly that he turn'd one of them out of her Place, because her Husband would not swear against Mr. Colmer. Did he not expel Mr. Colmer afterwards, upon the constructive Evidence of Winks and Smiles, without one Wit­ness sworn or unsworn of his own knowledg to any one concludent Circumstance? And why should we think this Evidence less true than the supple­mental; or that a Man us'd less indirect practice in furnishing out a Libel, than in dressing up an Accusation? In short then, a sensless Wench, who within the Year had liv'd privately with the Re­ctor in his Lodgings, was deliver'd of a Bastard; and therefore for the Rector's Reputation more than the College's, it was necessary that a Father should be procured for it. The pretended Affronts that he'had receiv'd, aggravated by the former Intimacy, inclin'd him to make choice of Mr. Colmer. What Arts he then made use of to gain Witnesses, and [Page 18]afterwards to expel him without any, is already known, and truly related; Since that time, when Mr. Colmar desir'd nothing more, than an opportu­nity of confronting those Witnesses (that were said to swear against him) and of hearing their Exa­mination; all Opportunities of so fair a Tryal, either before the Vice-Chancellor, the Visitor, or his Commissary, have been deny'd him. If these Witnesses had then appear'd, and the Testimony that is printed could not have been evidently con­futed, Mr. Colmer must have submitted to the Sen­tence; and this had been a clear way of acquitting Dr. Bury, but a dangerous one too, and such an one as might have opened the Contrivance. The safest Method then was not to print the Evidence taken at the Tryal (for there was none, or such as amounted to nothing), but to publish some sup­plemental Affidavits, false in themselves, indirectly and secretly obtain'd, and which possibly with some Men might be thought the grounds of the Sentence, tho in truth they were taken long after it.

I have examined however even those surreptitious Depositions, most of them have been prov'd false already, and the rest are of the same stamp. Alice Gigger boasts in Print, that Mr. Colmer offer'd to maintain her as a Gentlewoman, if she would ride with him to Hinksey; but that she refus'd his Of­fers. [Page 19]If this Oath had been as most of the rest, without Time, Place, and Circumstance, it might have been better secur'd from the dan­ger of Confutation. But now since this Alice Gigger hath unadvisedly venturd upon two Cir­cumstances that were design'd, if true, to make the Information credible, they must equally, if notoriously false, disprove her Deposition. The place where Mr. Colmer's Horse is said to stand, was Mr. Crowder's in Holy-Well; but it is proved upon Oath, that Mr. Colmer had no Horse there, and consequently, that the Affidavit is groundless. The Wench farther swears, That she received a Letter from her Brother, by which she was de­sired not to accuse Mr. Colmer; but the same Bro­ther swears that she must then receive that from him which he never sent; that he is wholly a Stranger to the Contents of it, and never was de­sir'd to write, nor ever actually did write any thing concerning Mr. Colmer. As to the Depo­sition of Lawrence of a Violence in vain offer'd her seven Years since: Dr. Bury own'd at the meeting, and since, that the said Lawrence refus'd to accuse Mr. Colmer; but upon condition she should not be produc'd to testifie it to his face. The Person to whom she was said to complain of Mr. Colmer's Rudeness was her Dame, (who was present, and disownd it) but in her Assidavit 'tis the Dames Mo­ther [Page 20](who hath been dead about six Years). Be­sides, the place where this Deposition was taken, renders it suspicious (as appears by what's already said), especially since the Witness declin'd Swearing in the Vice-Chancellor's Court afterward, where she might have been Counter-examin'd. Freek and Clase testifie from Ann Aris; that she always utterly refus'd Mr. Colmer's rude Offers: But she swears, That before that time she had comply'd with them. The whole Charge then being thus clearly answer'd, I shall trouble the Reader but with one Observation more, which may be now at last unnecessary perhaps, but is not otherwise immaterial: When the Rectour at the Tryal endeavour'd to procure Witnesses; Joyce Aris, who had been expell'd the College for Lying, easily comply'd with his request, and was brought as one of his main Evidence against Mr. Colmer. Trivial Passages and Speeches of Ann Sparrow, she at that time repeats, and is very earnest and vio­lent (as far as her Capacity served) in accusing him, but mentions nothing in the mean time of the plain and gross Incontinence of Mr. Colmer, to which, some Months afterwards, she swears her self privy. Now since here was no kindness for Mr. Colmer (for she was now a voluntary and warm Witness against him) since there could be no danger to any other Party by the Discovery (for the Offence of the Woman was known, the [Page 21]Child dead, and the pretended Adulterer expell'd;) can any reason be assign'd, why a passionate Wit­ness should insist upon, and urge, and improve an idle frivolous Story against a pretended Crimi­nal, and omit a plain and direct Proof of his Guilt; to which she now pretends before that time to have been conscious. It is clear then that she was ignorant of any such Crime now, but was in time taught to know backwards, and to antedate that Oath which she afterwards learnt.

And what more in such a Case can be hop'd for, to clear an innocent Person from the mali­cious Slanders of a revengeful Libeller? The Person accus'd a Man of known Reputation, the Informer and Agents infamous; some of the Witnesses disoblig'd and malicious; another sens­less and half witted; all contradicting themselves and evidently forsworn; Threats used to frighten others into the like Information; Places taken away from those that declin'd the Perjury; no Oath judicially taken, but all in the absence of the Party, after the Sen­tence, surreptitiously obtain'd; the whole Contrivance manag'd by a Man of known Incontinence upon his own account, for discharging himself of a gross and notorious Crime, and carried on by the ex­torted Oaths of his own prostitute Servants, Crea­tures, and Dependents.

Mr. Colmer therefore, after this clear Vindication, may justly lay claim to the common Justice, and to the good Opinion of Mankind. Where he is known in the University, and among those of his own Profession these Scandals already have found no Credit; and he hopes that, if at a greater distance any will concern themselves to know his Charge, they will be so impartial like­wise, as to consider his Defence. Mr. Colmer's Reputation was always more valuable to him than his Fellowship. If he had been guilty of the Crime, he would never, upon an Appeal, have enhanc'd his own Punishment, since it is plain, that upon proof of the Charge, the Loss would have been no less, and the Ignominy much great­er. He hath desired nothing hitherto but a Tryal, and would willingly have submitted to the decision of any Judge, but such an one who is likewise a Witness and Accuser, and who pursu'd his own Interest as well as Revenge in his Conviction. It is not to be thought, therefore since nothing is judicially proved against Mr. Colmer, that this Subornation, so plainly made out, will be assist­ed and seconded by other Mens secret Jealousies and Suspicions, especially since it is utterly impos­sible, upon the return of the like Contrivance; for the chastest Man in the World to clear himself, and by any other Methods to justifie his Innocence. [Page 23]Tis true, I confess that much Trust is, and ge­nerally may be repos'd in those worthy Heads of Colleges, which now are, and usually have been in Oxford, and the known Credit of those Go­vernors is that which chiefly oppresses Mr. Colmer. But Men ought to consider again, that whatever his Character hath been, no Man hath taken more care to disgrace it; and that since the Foundation of the University Dr. Bury is the first Man, who hath receiv'd so great and so just a Punishment from the Right Reverend his Visitor, and hath at the same time incurr'd the Censure of the whole Uni­versity.

OF Mr. Colmer's APPEAL.

THE Liberty of Appeal was so clearly and so fully prov'd in the Account of the Bishop of Exeter's Proceedings, that little can be added to those Arguments, and less need be said in the justification of them. But since the same Libel that charg'd Fornication upon Mr. Col­mer, doth equally accuse him of Perjury, he is con­cern'd to show, that the reasoning of that Pamph­let is in one Case as weak as the Allegations are false in the other. The Author of the Account will sufficiently answer his other Exceptions; but [Page 25]these, as casting a Personal Reflection on Mr. Colmer shall here be consider'd and refuted. In this Case there neither is, nor never was any Dispute, but that Mr. Colmer is within the reach of the Local Statutes of the College, and subject to Expulsion; but the Question is only whether he was lawful­ly convict of Incontinence according to the Dire­ction and Appointment of the Statute: and whether after such Conviction, he had liberty of appeal.

The Reasons that are given against Mr. Colmer's Liberty of Appealing are three.

• 1. Because there never was an Appeal in this College, and therefore the Non-user is a presumptive Proof of the unlawfulness of it.
• 2. Because the Fellows themselves have by Oath dis­claim'd any Right of appealing.
• 3. Because the Rector when Expell'd, is expresly by Statute bar'd from Appeal; and consequently the Fellow's have not greater Allowances upon their Ex­pulsion than the Rector.

These indeed which would be plausible Argu­ments against an Appeal, if true, must be equally strong for it, if false, and thereupon it shall be provid. [Page 26]

• 1. That Appeals have always been made to their re­spective Visitors from all Colleges in general, and from Exeter in particular.
• 2. That the Fellows are not by Oath barr'd from Ap­peals, to the Visitor.
• 3. That the Rector hath the sane, and is design'd to have no other Liberty than the Fellows.

First, Then it is allow'd that Laws are to be ex­pounded by usage, and tho it is not true, yet it need not be denied, that Statutes can be cancell'd by de­suetude. Men when aggriev'd have naturally re­course to all legal Remedies; and therefore where an Action hath never been brought, it is a reason­able Presumption that it doth not lie. Now then, if Non-user would have been so good an Interpreter of the Law, Custom is no worse an Expositor; and therefore the constant Succession of Appeals in like Cases in this and other Colleges is as strong an Argument for us, as the discontinuance of them might have been against us: Nothing then but gross Ignorance of all Proceedings in Colleges could have betray'd a Man in to an Argument, which might so easily and so strongly be retorted Even this late Rector himself hath made an Appeal to the Visitor, Dr. Ward Bishop of Exeter, and brought the Opinion of Councellor Glanvile (which I have seen) to prove the legality of it. The Case of Goddard V. Hide, [Page 27] Mich. 10. Car. 1. is so Famous an Instance as at once demonstrates the Matter of Fact, and justifies the necessity of an Appeal.

A Fellowship fell void in Exeter College in Oxon, to which none were intituled but such as were born within the Diocess of Sarum: One Hide that stood Candidate for the place with Goddard, procur'd a false Certificate from a senseless half-witted Midwife, purporting that Goddard was born at Eastwoodhay within the Diocess of Winton. The Rector upon this false Certificate declar'd Goddard incapable, and Hyde chosen, and expell'd ten of the Fellows who gave their Voices for the Election of Goddard. The Fel­lows upon this grievance Appeal to the Bishop of Exeter their Visitor, and upon enquiry it appear'd that the Certificate was false, and the expell'd Fellows were by his Sentence justly restor'd. Afterwards upon an Information above, the Matter was further exa­min'd, the Parties that were Instrumental in gain­ing the false Certificate were fin'd, and the Re­ctor receiv'd a publick reprehension for giving cre­dit to the Certificate, and for expelling the Fel­lows. 'Tis here clear that the Fellows appeal'd from an unjust Sentence of the Rector, and 'tis as evident that without liberty of Appealing there must in this, as in many other Cases, a way have been open'd to the greatest and most unwarrant­ablest Oppressions.

And therefore in all other Colleges where the Visitor is subject to like or greater Restrictions, and the Fellows are under Obligations of the same: Oath, all other Appeals have always been disal­low'd, and those to the Visitor always admitted. In the Statutes of Corp. Ch. Coll. Trin. Coll. and All-Souls Statutes the Oaths are as strong, the Visitor as to this respect is as much restraind, and yet Appeals have still been as frequent as Grievances.

Now when Appeals always in all Colleges, and particularly in Exeter, have been made to the Vi­sitor, we may reflect on the knowledge of a Man who childishly declaims upon Desuetude, and hath wrote out part of a Common Place Book concern­ing the force of Non-user.

2. If Custom then, and subsequent usage can ex­plain a Statute; the Oath of the Fellow doth not bar the Appeal to the Visitor. The Oath un­doubtedly hath its force, and fecures the College from any Suit at Law; or any disturbance from abroad, but never was intended to bar the Members of it from a Recourse to the Patron and Conservator of the College.

All those Applications ad Praelatos, Proceres, Ma­gnates, which are expresly forbidden, explain the general Words, and put a restriction upon­them. A Visitor who is the Representative of the Founder, is entrusted with the Care and Go­vernment of the College, and an Appeal to him is the proper Method of preserving the Peace of it, and of redressing the private Grievances, not of promoting them. The Canonists, that allow great Liberties of Appealing, even after Renunciation, except sometimes the Case of Mo­nasteries and Religious Societies. But even there an Appeall to the Supreme Abbot, or to the Principal of the Order, was never disputed, but esteemed no other than it really is, a private recourse to a proper and to a domestick Forum. Now then, universal Authority is lodg'd in the Visitor by Statute, and is cast upon him by Law: And it is absurd to imagin, that an Oath of a Fellow in general Words, either can or was ever design'd to divest him of that Power, without naming him. And therefore, after the Practice of all Colleges, thus plainly prov'd, which is a sufficient Interpretation of the Sense of the Statute, I insist on this undeniable Argument, That if the Pounder had design'd to bar the Vi­sitor, he would in the particular; Recital which [Page 30]he there makes, that least once have mention'd him; he would in the Statute about the Expul­sion of Fellows, have inserted Appellatione remotâ he would have been as express in taking away the Visitor's Authority, as he was in conferring it upon him.

3. This Author of the Case insists, that the Rector should have the same Allowances upon his Expulsion as the Fellows, and the like liberty of Appeal; if he would read the Statute, he might find, that the Rector wants not the same Right, that he hath an Appeal to the Visitor; but neither they nor he have any from him. The Rector may be expell'd by the Bishops Commissary; and then the Statutes sufficiently warrant a farther recourse to the Bishop of Exeter himself. For it is the whole Design and Intend­ment of all the Statutes to have Members of the College concluded by no other Sentence than that of the Visitor. And therefore when a Fellow is expell'd by the Rector, or the Rector by the Commissary, the Statute doth never bar an Ap­peal; because one might be made to the Visitor; but when the Rector is remov'd by the Vistor himself, then, and then only is said Cessantibus appellationis remediis. And therefore as it is very [Page 31]plain that Mr. Colmer hath pursu'd the direction of the Statutes; so in Dr. Bury's Appeal it is equally clear that he is guilty of Perjury by break­ing them. These are the Statutes that lead the Oath, and that best expound it. The Oath is design'd summarily to repeat what the Statutes at large explain. The local Laws are not enlarg'd by it, but enforc'd. The strictest Obligation to the Statutes arises from the Oath, and the best Interpretation of the Oath is to be drawn from the Statutes.

By this you may see the Weakness of Exeter Case, and the Falshood of it is, I suppose, al­ready notorious. One thing more may be added; That whatever could not be provid by surrepti­tious Oaths, is said to be own'd by Mr. Colmer; and a bold assertion of a Lye supplies the want of Evidence. Every one of those Concessions are disallow'd, and might be easily disprov'd, did I think, when their Affidavits are so¹ false, any Credit would be given to their bare Alle­gations.

It is an incumbent Duty upon every honest Man to defend himself from Oppression and Ca­lumny. The Appeal hath righted Mr. Colmer from [Page 32]the one, and this Vindication will free him from the other, especially, when it is evident, that after all their Arts and Forgeries, the Libel is as weak and false, as the Sentence was illegal and unjust.