Printed only to save the labour of transcribing many Copies, and to prevent the mistakes thereby apt to be incurr'd, and meerly for the satisfaction of private Friends, who either want or desire a most impartial Information of that Affair.

§.1. THe Founder of the College of St. Marie Magdalen in Oxon, The unlaw­fulness of Ap­pealing evin­ced from the Oath, which is constantly taken by every Fel­low. doth take so very great care throughout the Statutes, of his President's Power and Authority (especially in conjunction with College Officers, who by the Statutes are appointed for his Assistance,) more especially in inflict­ing every statutable sort and degree of punishment, without interruption whilst it is do­ing, and without trouble when it is done, that if the Deans (his Assistants) are but difficult and backward in joyning with him, the Vice-President is to be sent for, and (in his presence) they are to be deprived of the profit of their places, (as well money, as commons) Stat. cap. 8. p. 33, 34. quousque effectualiter se correxerint, & in praemissis se emendaverint. And to the end that no trouble may follow after, (as no interruption can go before,) every Fellow is indispensably to take three Oathes, (one as Cap. 52. p. 125. Demy, Cap. 15. p. 43. another as Probationer, a Cap. 6. p. 28. third as Fellow,) in each of which he ever swears, (especially in that which he takes as Fellow) quod Praesidenti in licitis, & honestis, maximè in Collegii negotiis & factis, obediet, assistet, & reverentiam debitam obedienter impendet. And again, 2. quod monitionibus, injunctionibus, & decretis, correctionibus, & puni­tionibus quibuscunque Praesidentis, &c. parebit cum effectu. And again, 3. quod contra­rium vel repugnans praemissis, in judicio, velexira, tacitè vel expressè, non faciet, seu fieri procurabit, aut fieri permittet, nec eisdem consentiet quovismodo. And 4. again he farther swears [...], [si contingat me in posterum propter contemptum, rebellionem, inobedientiam, malos mores, vel alia mea That D. Yer­burie was pu­nisht propter sua demerita, and even less than he de­serv'd, ap­pears by his several con­fessions in his own hand­writing, and by the Visi­tors Sentence of Condemna­tion. demerita, seu propter causas in praesentibus statutis contentas, per Praesidentem Note the many Terms of universali­ty, by which Appeals are put under a moral impossibility. corrigi, & puniri, aut alias à dicti Collegii* susten­tatione, & societate ejusdem juxta formam statutorum ejici, expelli, privari, excludi, vel etiam amoveri; ex certa mea scientia, pure, sponte, simpliciter & absolute, * OMNI ACTIONI, occasione correctionis, punitionis, vel privationis, exclusionis, expulsionis, seu amotionis hujusmodi, contra Praesidentem aut alios dicti Collegii Scholares vel Socios qui pro tempore fuerint, conjunctim vel divisim QUOMODOLIBET instituendae, AP­PELLATIONIQVE & QVERELAE in ea parte fiendis, ac QVAKVM­CVNQVE literarum impetrationi, precibus Principum, Praelatorum, Procerum, Mag­natum, & aliorum QVORVMCVNQVE, QVANTVMCVNQVE alias mihi probitatis & vitae merita suffragentur, in vim pacti renuntio in his Scriptis.]

§. 2. Having thus premised the Fellows Oath which had been taken by Dr. Yerburie, and of which he had been often put in Note that Dr. Yerbury being admo­nished of his Oath against Appealing, was thankful for the chari­ty of that ad­monition; saying first to the President, and afterwards to Mr. Basket (in these words, or to this effect,) I am not so much in love with per­jury, as to break my oath to no purpose; nor so fond of an expulsion, as to incur it by an Appeal. mind by the Praesident, an Oath excluding the possibility of Appeal in the case of punishments and corrections, to any power or person to be imagin'd, much more to the Visitor, the Bounds and Limits of whose Power were fitly set him by the Founder, (as being an Officer of his Creating;) let us consider how this Oath may be illustrated or explain'd by several statutes, wherein Appeals and Complaints are interdicted by the Founder, and which the Fellows of the College are sworn to keep.

[Page 2] And from the several fol­lowing Sta­tutes, which every Fellow is sworn to keep.First in the Statute [de Lectura statutorum, & scrutinio pro delictis detegendis haben­do, cap. 16. p. 46, & 47.,] ‘when any person of any quality shall be punished at the discretion of the President and the Deans (or any one of Them,) The person punish­ed is injoyned to undergo his correction, Cessantibus QVIBVSCVNQVE Pro­vocationibus, Appellationibus, & aliis Iuris & Facti Remediis, per quas, seu per quae ipsius delinquentis correctio & punitio differri valeat, seu alias quomodolibet impediri, sub poena amotionis perpetuae à Collegio memorato.’ Here the punished party, Cap. 16. p. 47. al­though he knows not his accuser, and is bound not to know him sub poena perjurii, is yet obliged to acquiesce in whatever punishment is inflicted, without any Complaints or Ap­peals of any kind whatsoever, and without all kind of remedy; and all under the penalty of perpetual Banishment from the College.

Secondly, in the Statute de correctionibus faciendis circa delicta leviora—(cap. 25. p. 62, 63.) The Fellows are capable of being put out of Commons, (and de facto have been often by Dr. Frewen, oftner yet by Dr. Langton, extreamly often by Dr. Humphry, as appears by the College Registers,) even by the strength of that weakest Statute: ‘Ipsumque nihilominus sic delinquentem, juxta excessum & delicti qualitatem, Praeses Predictus (vel vice-Praeses absente Praeside) cum consensu duorum Decanorum, vel saltem unius, corrigat puniatque pro commissis: Quam correctionem & punitionem, cul­pabilis in ca parte absque contradictionis, APPELLATIONIS, vel QVERELAE obstaculo, sustineat patienter: & si similia fecerit post, arctiùs & acriùs procedatur contra cum, &c.’ Here Complaints and Appeals are made to be morally impossible.

Thirdly, in the Statute [de correctione sociorum super majoribus criminibus defamato­rum, Cap. 27. p. 65, 66.) If any Fellow shall be guilty of manifest perjurie, or Breach of oath, of theft, of conspiracie against the good estate of the College, or of any other Fact bringing prejudice or scandal to the same; & shall be convicted of it, either by his own confession, or by competent witnesses to be approved of in the judgement of the Presi­dent, with the assistance of the Vice-President, two Deans, and Bursers of the College, or by evidence of the Fact; ‘EX TUNC à dicto Collegio praesentis nostrae ordinationis vigore, nulla alia praemissa monitone, eum exclusum, & privatum fore ipso facto decernimus & statuimus, absque CUJUSCUNQUE APPELLATIONIS remedio vel QUE­RELAE.’ Here all Remedy by Complaint or by Appeal in any kind, is most strictly for­bidden in the case of expulsion.

Fourthly, in the Statute, by which Dr. Yerbury was put out of Commons, (cap. 35, p. 92.) The President sitting with the Deans and Bursars, and other Fellows whom They shall choose, is to put an end to all dissensions and quarrels, within the College walls. Which proves, that in That, as in many other cases within the College, (though not in all,) the President with his Assessors is [...], & le dernier Re­sort de la Iustice. The Founders own words are precisely These. ‘Nec liceat alicui de dicto Collegio cujuscunque status aut gradus extiterit, occasione alicujus Irae, Rixae, Iurgii aut dissensionis infra dictum Coll. ortae vel motae inter eosdem, persecutionem fa­cere, aut litem aliquam movere, vel aliquem impetere, aut ad judicium trahere, coram aliquo judice extrinseco Ecclesiastico vel seculari. And that by judex extrinsecus, he means the Visitor himself, as well as any other foreign Judge, is undeniably ap­parent from the very next words; Sed volumus quod omnino hujusmodi jurgia, irae, rixae, discordiae, & dissensiones, infra dictum Collegium per personas praedictas, (to wit the President, Vice-President, Deans and Bursars) aliqua ordinatione bona seu con­cordia FINALITER terminentur, & etiam decidantur. And in the same Statute, quic­quid ipse Praesidens cum Vice-Praesidente, Decanis, & Bursariis, in praemissis duxerit ordinandum, per partes hujusmodi discordantes firmiter observetur, & executioni absque contradictione qualibet demandetur.’

Fifthly, at the close of the very same Statute (p. 93.) there is to be found this other instance of the Presidents being impowered, yea, appointed and injoyn'd (toge­ther with Them above recited) ipso facto to expel a disturber of the peace and unity of the College, as a perjur'd transgressor of College Statutes. ‘Si post monitionem Prae­sidentis, aut eo absente Vice-Praesidentis ab incepto non desistaet, si judicio eorundem, & majoris partis 13. Seniorum in ea parte culpabilis, & parere recusans reperiatur, tunc ipsum ut unitatis & pacis perturbatorem, & statutorum Coll. nostri violator [...]m tan­quam Perjurum perpetuo exclusum, & amotum decernimus ipso facto.’ In which case, there cannot be place for an Appeal, be the sentence right or wrong, if such as 'tis, it is given, judicio Praesidentis & Assistentium; for that is all that the Statute does [Page 3] require to the expulsion spoken of, though that Iudicium should be erroneum. Exactly so it is in that other statute, by which we sentence't Dr. Yerburie to a much lesser punishment. Si Iudicio Praesidentis & unius Decanorum reus esse apparuerit, &c. 'tis neither required nor supposed that our Iudgement should be Infalli­ble; It justifieth the Satute, that twas our Iudgement; aequum, an iniquum, it mat­ters not, 'tis ex decreto Fundatoris, a very statutable sentence, of which the party grie­ved cannot pardonably complain (much less from it can he Appeal) unless he can prove that our sentence was against our own Iudgement. For whether that Judgement were true or false, It is abundantly enough, that it was Sincere. This is said only to prove, that our Sentence had been just, (that is, according to the statute,) although our Iudgements had been erroneous. But that our Iudgements were not erroneous, and that our sentence was Milder than for the grievousness of the offence, our Visitor did declare at a publick hearing, and (since that) by a publick instrument under his Lp's own hand and Episcopal seal; And Dr. Yerburie himself hath confest in writing, as is to be seen in the College Register.

§. 3. Now having proved from the Statutes and the Oath above written,How the power of the Visitor is cir­cumscribed in the statutes. that no Fellow of our College can appeal to the Visitor in such a case, without committing the crime of Perjury, (which without Cap. 27. p. 66. all Remedy or * Delay is to be punished with expulsion, as shall be shew'd,) we shall proceed to give an Accompt of the Vse and Power of the Visitor, as the Founder hath prescribed in the conclusion of his Statutes. Where first it being said what he is not to do, 'tis presently added what he is. Et si aliqua nova statuta per aliquem successorum nostrorum Episcop. Winton. cap. 54. p. 131. First, he is not to make any new Statutes at all, nor so much to as interpret the Founders Satutes, unless according to the Nolentes insuper aliquam interpretationem fieri de iisdem aut circa ea, nisi juxta planum sen­sum communem intellect. &c. ib. p. 132. * plain and common sense and understanding, according to the literal and Grammatical importance. Against which importance if he shall happen to expound, we are † sworn to reject such expositions.

It being said what he is not, About what it is proper to be conver­sant. it presently follows in the Statute what he properly is to do. Cap 54. p. 131. ‘Si tamen de & super aliquo articulo nostrorum Statutorum inter Praesi­dentem & Socios aut aliquas personas nostri Collegii dubium aliquod seu discors opinio oriatur, cujus decisio, sanus & planus intellectus intra Quindenam à tempore Emer­gentis Dubii conputandam nequiverit haberi, tunc volumus, quòd Praesidens nostri Col­legii, quàm citiùs poterit, Dominum Episcopum Wintoniensem pro tempore existentem, in quo sinceram fiduciam ponimus, consulat; cujus quidem determinationi, interpretationi, Declarationi, super praedicto dubio faciendae, volumus Praesidentem, Socios, & quascun (que) personas nostri Collegii obtemperare, & cum effectu parere, &c.’ After which he goes on to say, that the Visitor is to expound the controverted Statute Secundum grammati­calem & literalem sensum & intellectum, &c.

§. 4 Now 'tis obvious to observe,What obser­vables arise from the sta­tute last men­tioned. first that here is no mention of any possible Ap­peal to be made by provoked and punished Malefactors, from the President & Officers by whom the punishment is inflicted, without the least discord, or doubting, about the sense of the Statute, by vertue of which it is inflicted. Nor did the Criminal himself ever pretend any such thing. Secondly, we observe, that when a doubt of the sense of any Statute does arise, the President must Appeal, and none but he. (Thirdly.) Nor must He do it neither, untill together with the Officers, he has debated the matter for 15. dayes. So careful was the Founder that the Visitor might not be troubled, but in a case of meer necessity; whereas if the Visitor will admit of an Appeal from every person, who shall repine at his punishment (though exceedingly less then his crimes de­serve,) neither the Visitor, nor the President, no nor the College where he presides, shall ever enjoy either peace or honour. Fourthly, we observe from our College Registers, that ever since the Foundation, (somewhat more than 200 years,) though frequently the Fellows have been put out of Commons, propter verba tantùm indecora, and frequently expell'd for their Rebellions, to the President's order and command, (E.G. Cap. 6.28. & cap. 14. p. 40. Rebellion is often the Founders own word,) yet there never was an example of any Fellow or other person who appeal'd unto the Visitor or to any other power, upon pretence of an unjust or a rigorous Sentence. Mr Searle and Dr. Yerbury are the two first persons who durst attempt it.

[Page 4] The usefulness of the Visitor in 5. respects, by way of Prolepsis to all objections.§. 5. But notwithstanding that there cannot be a Statutable Appeal from the Pre­sident and Officers in the case of correction; yet there is use of a Visitor in many respects. As first, when due corrections and Reformations are obstructed, by the multitude or potency of the Offenders themselves, or their Abettors. Here the President by his Oath is bound to complain unto the Visitor, giving up to Him the Offenders names. Vid stat. de jurament. Dni. Praes. c. 2. p. 8. & 9. Next, in matters of difference between the President and Fellows, when the difference cannot be ended by the Vice-president, and Deanes, and the Senior Fellows; the Vi­sitors judgement is to be sought, and submitted to. c. 2. p. 11. Thirdly, when the Visitor shall be intreated and sought to a visitation, either by the President, Vice-president, 3. Bursers, and three Deans, or by the 12. Seniors, or by the common consent of all the College. v. stat. de Visit. cap. 53. p. 126, 127, 128. Fourthly, Once in three years, though not desired by any person, either within or without the College, the Visitor by Statute may come and visit, super omnibus & singulis Statutis commodum & Honorem Collegii concernentibus. Cap. 53. p. 126. & 127. Fiftly, in cases of dispute about the sense of any Statute betwixt the President and the Fel­lows, when the president and his Assistants cannot clear the doubts within 15. dayes, Then the President is by statute to consult the Visitor, and all must acquiesce in his Decision. v Conclus. statut. cap. 54. p. 131.

The Presidents obligation from his oath to punish the Violators of statute with­out Fear or Favour. Cap. 2. p. 8.§. 6 Now follows part of the President's Oath, by which he stands obliged to punish all persons of all qualities in the College, without favour or partiality. ‘Quod­que quantum in me fuerit, correctiones, punitiones, & reformationes debitas, veras & rationabiles, & justas, de quibuscunque delictis, & criminibus, & excessibus Scho­larium & Sociorum dicti Collegii Quorumcunque, quoties, ubi, & quando, & prout opus fuerit, juxta negotii qualitatem, omnemque formam & effectum Ordinationum & Statutorum praedicti Collegii, per dictum Reverendum Patrem editorum, abs (que) partiali­tate quâcun (que), postpositis & cessantibus omnimodis prece, pretio, amore, timore, odio, in­vidia & favore, nec non affectionibus consanguinitatis & affinitatis, facultatis, sive Sci­entiae, ac praerogativis specialibus, ex quibuscunque causis praetensis, etiam vel conceptis, diligentèr & indifferentèr faciam & exercebo, & ea per alios fieri & exerceri faciam, & etiam procurabo, & ea quae in ea parte faerint facienda fideliter in omnibus exequar, & exequi faciam juxta posse.’

The Purport and Scope of Dr. Yerburies Apeal.§. 7. When according to this Oath, and in obedience to the Statute (cap. 35. p. 91, 92. The President with the Officers (appointed by Statute to assist him) had put Dr. Yerburie out of Commons, Decemb. 27. 1662. He, against his own Oath, and Decla­ration and the Statutes of the College above recited, made an Appeal unto the Visi­tor, wherein he accused both the President and the Officers, Note that these wilful and studied slanders (for which he was after­wards con­demned both by the Visitor and Himself) were all commenced in the dreadful Name of God, and so we leave it to consideration, whether there was not in his Appeal a most wilful Breach of Oath. of conspiring together to do him wrong; of meeting in a time and at a place altogether incongruous; and of pas­sing upon him an unjust sentence, without any Accusation, or Information, or complaint brought against him, against the Form, Tenor, and Grammatical sense of the College Statutes, &c. Things not only false, and groundless, but against his own knowledge, and his manifold Confessions, not onely when he submitted to the sentence given, (as he then did profess) with all meekness and humility, but also after he had made and presen­ted his Appeal.

His solemn Trial and con­viction before the Visitor, with the Vi­sitor's sentence of condemna­tion.§ 8. The Visitor appointed a day of hearing, (which was April. 9. 1663) when the President and his Advocate (having first protested against the Illegality of the Appeal on Dr. Yerburie's part, and reserv'd that question [whether he might Appeal or not] for a fitter season of debate) produced a Certifi­cate of the matters of Fact, attested by the President, Vice-president, Deans, and Bur­s [...]rs, and as many more of the 13. Seniors as had been eye and ear witnesses, and were present in the College when the Certificate was to be signed. According to which Certificate, Dr. Yerburie was guilty in 15 Particulars, the least of which of it self had been sufficient, to justifie the punishment inflicted on him. But he had a Nar­rative of his own drawing up, which some while before he had presented to the Visitor. And even according to that his own Narative, (how partial soever he had made it, and how skilfully soever his learned Advocate had pleaded in its excuse, when to defend it was most impossible,) The Visitor, as the Iudge Appealed to, did declare him [Page 5] he guilty in no less then nine points, even according to the Confessions which in his own hand writing were then produced. The Visitor also told him (in the presence of the President, and of the Advocates on either side, and of a great many more both friends and strangers,) that his Crimes were much aggravated by the unjustness of his Ap­peal; and by having been committed against a President, who had been very obli­ging to him, as having spared him often, and corrected him at last with much more tender­ness and favour, then according to the Statutes he might have done. Then his Lp. did Note that the Visitor did not enjoyn, yea said expresly that he would not enjoyn the President, to forbear expel­ling D. Yer­burie, in case he should obey the whole Decree, by his Confession, and Recantation. But onely made it his Request, To which the President made a Conditional promise, that he would not expel him, unless befound himself bound to do it, upon a review of his Oath and the College Statutes, in which one case Dr. Yerbury's Recantation could not acquit him. enjoyn him to make a submission, and confession, and Recantation, before the Presi­dent, and Officers, in such form and manner, as his Lp. said he would Decree in an Instrument, under his hand and Episcopal Seal.

§. 9. Two Confessions and Submissions (and both in writing) Dr. Yerburie made before the Visitor and the President, His two first submissions re­jected by the Visitor, though the same in sub­stance with his two last. The Visitor's Instrument thereupon directed to our Vniver­sitty, under his Lps. Hand and Seal. (one April the 9. another April the 10,) but both being rejected as insufficient, his Lp. sent down an Instrument signed with his own hand, and sealed with his Lp's Episcopal seal, the Original of which is in the custody of the College, but a true Copie of it is this which follows.

§. 10. Omnibus Christi fidelibus, ad quos hoc praesens scriptum pervenerit, aut ad Quos infra scripta spectant, seu spectare poterunt quomodolibet in futurum.

Georgius permissione divina Winton Episcopus Salutem in Domino. Vniversitati vestrae notum facimus, & pro veritate attestamur, quod scrutato Registro nostro comperimus & invenimus quandam sententiam per nos nuper latam sub tenore verborum sequentium.

In Dei nomine amen. Auditis visis & intellectis, ac plenariè & maturè discussis per nos Georgium permissione divina Winton. Episopum, & Collegii Sanctae Mariae Magdal. Oxon Visitatorem (in causa infra scripta inter partes inferiùs nominatas, virtute officii mei visitorii) Judicem legitimè constitutum, meritis & circumstantiis cujusdam causae praetensae Appellationis & Querelae, quae coram nobis in Iudicio inter Hen. Yerbury M. D. dicti Collegii sociorum unum partem appellantem, & querelantem ex vna, & venera­bilem virum Thomam Pierce S. Theol Professorem, Praesidentem, & Decanos dicti Collegii partes appellatas & que [...]atas ex altera, nuper vertebatur & p [...]ndebat, Vertitur (que) adhuc & pendet indecisa, ritè & leitimè procedentes, partibus praedictis coram nobis in judicio comparentibus, parteque praefa [...]i Thomae Pierce & Decanorum praedictorum Sen­tentiam ferri, & justitiam fieri pro parte sua parteque praefati Hen. Yer­burie justitiam pro parte sua instantèr respectivè postulante, & petente; ri­mato (que) primitùs per nos toto & integro processu coram nobis in huimodi causa habito & fa­cto, & diligenter recensito, servatis (que) per nos de jure in hac parte servandis, ad nostrae sen­entiae definitivae sive nostri finalis Decreti prolationem, in hujusmodi causa ferendi, sic duximus procedendum fore, & procedimus in hunc qui sequitur modum.

Nos Georgius permissione divina Winton. Episcopus, Iudex ante dictus, Christi nomine pri [...]mitus invocato, ac Deum solum oculis nostris proponentes, de (que) & cum consilio Iuris­peritorum cum quibus in hac parte communicavimus, maturè (que) deliberavimus, appellati­onem & querelam praetensam ex parte & per partem dicti Hen. Yerbury in hac parte ut­cunque de facto interpositam, fuisse ac esse nullam, in justam, & de Jure prorsus invalidam, & ex minus veris, justis causis & legitimis factam & interpositam, viribus (que) & effectu juris caruisse & carere debere.

Ac benè, juste, & legitimè, per Praesidentem & Decanos antedictos à quibus in hac parte appellatum & querelatum extitit processum,The chief part of the Injunction, to which Dr. Yerburie in writing did finally refuse to yield Obe­dience, as well as in contemptuous words, attest­ed by a pub­lick Notary. pronuntiatum, & decretum fuisse & esse adomnem juris effectum, pronuntiamus, decernimus, & declaramus.

‘Et 1. Ob prolationem * verborum quorundum sic imprudenter & inconsideratè per praefatum Henricum Yerbury, loco & tempore praedictis emissorum, contra quendam Henricum Clerk Med. Doctorem Sociorum etiam dicti Collegii unum, & contra dicti Collegii statuta in eo casu provisa * Eadem ut Recantet & Retractet;’ 2. Ac dictam sententiam sic contra ipsum per supradictos Praesidentem & Decanos la [...]am fuisse ac esse justam, & legitimam; 3. paenam (que) eidem impositam & inflictam, aliquanto mitiorem, & favorabiliorem, quàm pro delicti gravitate fuisse, coram Praesidente ac Decanis praedictis confiteatur, 4. Eamque Confessionem in scriptis eisdem tradat, Injunximus & Injungimus.

Ac insuper dictum decretum per Praesidentem & Decanos antedictos interpositum, per [Page 6] hanc nostram Sententiam definitivam, sive finale decretum Ratificamus & Confirma­mus per praesentes; Quam sive Quod, ferimus & promulgamus in his Scriptis.

In quorum omnium & singulorum praemissorum fidem, nos Episcopus antedictus has li­teras nostras fieri fecimus Testimoniales; sigillo nostro Episcopali (quo in hac parte uti­mur) munitas, & manu propria consignatas. Dat. Decimo die Aprilis, Anno Dom. 1663.

Geor. Winton.

Iunii 17. 1663. Concordat cum Exemplari à M^ro Cruys Notario publico, trasmisso. Ita testor Edw. Houghton, Notarius Publicus. Concordat cum Originali, Ita Testor Robertus Cruys LL. Bac. & Notarius Publicus.

Yet was he not expelled for that Crime only, final Contempt to that Decree, but for seve­ral other Crimes to each of which an Expulsion did indispen­sably belong.§. 11. Now its as clear as the light, from the words of this Instrument, that Dr. Yerburie was obliged by the Visitors sentence and Decree, not onely to confess, that he was justly and statutably punished by the President and the three Deans, by whom he was put out of Commons, no nor onely to confess that his punishment was milder and more favourable then for the grievousness of his offence; But (as the first and chief thing in the Visitors Injunction) he was also to Recant and Retract the words (EADEM verba, the very SAME words,) which he had imprudently and inconsiderately vented, both against Dr. Clerk, and against the Statutes of the College: for his final Contempt to which part of the Decree, although the President and Officers might very justly have expell'd him, yet did they expell him for several other Crimes, as well as that, to which other Crimes an expulsion from the College was so peremptorily due, that if they had not expell'd him, they had been perjur'd. For thus stands the case, and thus it is exprest in the College Registre, by the pen of a publick Notarie.

Being Cited he appeare's.§. 12. According to a Citation which was deliver'd to Dr. Yerburie, he made his Appearance on the day and place therein limited. And at a meeting of the Pre­sident and 13. Seniors, being required to perform obedience to the Visitors Injunction, as much as might be in his Lp's own words expressed in the Instrument, by turning the Subjunctive Mood into the Indicative, and the third person into the first, or by translating them into proper and significant English words, that his Lp's Order might be fully and unfraudulently obeyed, he did often, and absolutely refuse to do it, nor would give in more at that time, then these words following.

April the 28. 1663.

His first Paper not accepted, and Time gi­ven him for a second.§ 13. ‘I Henry Yerbury Dr. of Physick and Fellow of St. Mary Magd. College Oxon, do readily & willingly submit to the Determination of the Reverend Father in God George Ld. Bp of Winton, Visitor of the said College, according to an Instrument under his Lp's Episcopal seal, Acknowledging that as to the manner of what I spake at the late Election of Officers, concerning Dr. Clerke, (being the only thing con­demned by the Visitor) I was not so prudent and considerate as became me; and that all Truths were not then and there to have been spoken against him.’

H. Yerburie.

§. 14. This being not accepted, (as being scandalously deficient) he was warn'd to give his last Answer, and to prepare himself for it by nine of the Clock the next morn­ing; when, at a like meeting, he finally refused to yield obedience to what was requi­red, as before, especially to the most important clause of the Visitors Instrument, ending with these words, Eadem ut Recantet & Retractet, but in stead of doing That, gave in a paper with these words following.

[Page 7] April 29. 1663.

§. 15. ‘Whereas Mr. President declared himself unsatisfied with that submission tendered by me yesterday, His second paper, which he professed to be his last. alledging that it was deficient in several particulars, (which I conceived had been sufficiently impli'd, though not express'd) namely, that I had not confess'd the sentence given against me by the President and the three Deans, to be just, and that the punishment inflicted was milder and more favourable, then the weight of the offence, I do now in express terms confess, and acknowledge these particulars, and what ever else my Lord our Visitor by his instrument hath injoyn'd, his Lp. having been pleased to interpret those words, recantet & retractet, to respect only the imprudent and inconsiderate manner of what I said, without relating to the matter or truth of it, not to be recanted by’

Hen. Yerbury.

Vera copia, ita testor Edv. Houghton Notarius Publicus.

§. 16. This second submission having been read, in the hearing of the Officers and 13. Seniors,Made appear to be faulty in no fewer then Ten or Eleven re­spects. (together with a publick notary,) the President made it appear to be in ma­ny respects deficient, in divers, false, in some contumelious; and that as well to His authority, as to the Visitors Decree. For first, whereas he calls it his yesterdays sub­mission, it was in reality a refusal to submit, both to the instrument of the Visitor, and to the President's Order thereupon. Next, a submission is at once too general and equi­vocal a word, and comes not home to the Visitor's instrument, which requires Confes­sion I and Recantation. Thirdly, the recital of what was said to be yesterday deficient, II is it self deficient, and very fraudulent. For besides the two particulars which are here III recited, he was yesterday told of his being obliged to confess, that his Appeal was null, unjust, and made up of things false, unjust, and illegal. Nor only so, but also in writing to recant and retract his Eadem ver­ba, &c. very words, which he impru­dently had vented both against Dr. Clerk, and against the Statutes; which although the chief things exacted from him, he neither then did, nor doth he now take notice of. Fourthly, the two particulars which he recites of what he yesterday omitted, are very IV falsely recited in several respects. For according to the instrument his confession was to be this, [That it was well, and justly, and legally decreed by the President and the Deans, when he was put out of Commons for fifteen days;] The first and third of which ad­verbs he wholly leaves out, and turns the second into an Adjective; betwixt which two there is a great and important difference; because a sentence may be just, which yet (in many respects) may be unjustly and illegally pronounced. Again, according to the instrument, wherein the words are, poenam ei inflictam fuisse favorabiliorem quàm pro delicti gravitate, he should have confessed in the English, that his punishment was more favourable than for the Grievousness of his offence: whereas he falsely translates it thus, (as well in mockerie to the instrument, as against common sense,) that the pu­nishment was more favourable then the weight of his offence: as if gravitas in That place had signified weight; and that the weight of the offence had been favourable too; or that the punishment was but more favourable, than That which was not so at all. For which, and divers other reasons, (especially that the Visitor might not be mock't and derided, under pretense of his being obey'd) the President insisted on what he frequent­ly had injoyn'd, to wit, that Dr. Yerbury should shew the impartiality of his obedience to the Visitors Order & Decree, by varying no more from the words of the Instrument, wherein his Recantation and Confession are injoyn'd, than * by turning the third into the first per­son singular, and the Subjunctive mood into the Indicative: which he often and finally would not perform. Fifthly, he saith he doth now in express terms confess and acknow­ledge these particulars; whereas the Terms are not expressed in conjunction with his V Confession; which if any, is but imply'd, as it stands in connexion with [express terms] and [these particulars.] Sixthly, he professeth to confess whatsoever else my Lord VI our Visitor by his Instrument hath injoyn'd, in meerly indefinite and general Terms; neither naming the nullity, falseness, injustice, and illegallity of his Appeal, (which he was to confess in writing, and terms expresse,) nor so much as Comprehending or Im­plying [Page 8] those things, which the Visitor had commanded him to recant and retract, and not to acknowledge, or to confess: unless he purposely means to scoffe, both at the Visitor and his Instrument, by declaring to confess what he is bound to disavow. Seventhly, by VII saying [That his Lp. had interpreted those words, retractet & recantet, to respect only the imprudent and inconsiderate manner of what he said, without relating to the matter or truth of it,] he usurps and injures his Lp's. name and Authority, against his Lp's own hand and seal; and withall against the judgement of Common sense. Against the former, as appears by the words of the Instrument, to which his Lp's. own hand and seal are fixt; (a copy of which instrument Dr. Yerbury professed to have in his pocket, and so he could not make excuses from wants of knowledge;) against the latter, for these two reasons; first because the two words imprudenter & inconsideratè are not ingredients in the object, on which the act of Recanting is in the Instrument to be placed, (unless by way of consecution, as the word Eadem doth relate to the whole clause going before; in as much as verba imprudenter & inconsideratè emissae contra Hen. Clerk, & Collegii statuta, are clearly to be taken in sensu composito;) but more directly in the Reason which his Lp. alledgeth in his Instrument, why he decreed the Recantation: witness these words, [ob prolationem verborum, &c.] Next because the Recantation (both Act and Object,) is injoyn'd in these words by ☞the Visitor and his Instrument, Eadem ut recantet & retractet, injuximus, & injungimus. Where 'tis so plain that the word [eadem] agrees with [verba] going before, that there is no possibility it should agree with any thing else. Which made so clear a demonstration, that the words themselves were to be recanted, and not the bare manner of their prolation, That Dr. Yerbury confessed more than once, the VIII Visitors Instrument was against him. Eightly, in saying that his Lp. did interpret [recantet & retractet] to respect only the imprudent and inconsiderate manner of what he said, without relating to the matter; he chargeth his Lp. with an absurdity, which could not possibly stand with his Lp's great wisdom. For, to omit that he opposeth his Lps private interpretation (made no-body-knows when, and before no-body-knows whom,) against his publick Instrument and decree, (as was said before,) to which (in the hearing of the President) his Lp. exacted a full obedience, and that upon pain of his being left to the greatest severity of the Statutes; he also forgeth his Lp. to have done a thing so extravagant, that it may very well be reckon'd inter scandala magnatum. For when [eadem] is the word which agrees with [verba] and is govern'd by the words [recantet & retractet,] how can any man say, (Dr. Yerbury only excepted,) that [retractet & recantet] have no relation to the matter of what was said, when they must rather (of the two) have relation to nothing else? Or if they relate unto the manner, (as by way of Connotation they also do,) yet can it not possibly be exclusive of the matter, if [eadem ut recantet] be sense or La­tin; as That must necessarily be, to which (with so great and so Christi no­mine primitus invocato, ac Deum solum oculis nostris proponentes, de & cum consilio Ju­ris-peritorum cum quibus in hac parte communica­vimus, matu­réque delibe­ravimus, and so forwards in the Instru­ment. avow'd a considera­tion) his Lp. set his own hand and Episcopal Seal. Ninthly, in saying, that Recantet & Retractet, do not relate unto the Truth of what he said, he is just as impertinent, as in other things false. It having been somewhat else, and not the truth of what he said, for which his Lp. did declare he had been justly put out of Commons; and for IX which, as for other Reasons, his Lp. injoyned him to recant. The falsehood of much, if not of all that he had said, having been proved by the President, as well before the Visitor in the presence of Dr. Yerbury, (who did not offer at a reply in his vindicati­on,) as in the presence and hearing of the thirteen Seniors, when Dr. Yerbury was not silent only, as to any reply, but seemingly satisfied and convinc't by what the Presi­dent X had said in return unto him. Tenthly, 'Twas observ'd in the President's Ani­madversions on Dr. Yerburie's last paper, That though he confesseth Two particulars, yet still he retracteth and recanteth nothing at all; no not so much as the imprudent and inconsiderate manner of what he said, to which his paper confesseth the words Re­cantet XI & Retractet in the Instrument do relate. Last of all, for the matter, which is imported by the word eadem, and needs must be, (whether the manner be, or not,) he does not only pass it by, (as he does the manner,) or by a modest silence, not re­cant it, but immodestly declare's, (notwithstanding his own acknowledgement of the Visitors Injunction, and its importance in the Instrument,) That it is not to be re­canted by him.

[Page 9]§. 17. These were the President's Animadversions which he delivered to this ef­fect, and in much the same terms, Dr. Yerburie's Confession that the Visitor's Instrument was against him; with his final Assevera­tion That he would not re­cant his words. by word of mouth, (before the persons above named) This is said only to shew, That the Faults of his Submission were so gross and obvious, as not to need a second Thought for their Discovery. as soon as he had read Dr. Yerburie's Paper, which he did with an au­dible voice. This being done, he required Dr. Yerburie to give his last and final answer, whether or no he would recant, as the Visitor's Instrument had obliged him, and as his President did require. And the rather did he call for a final answer, be­cause the patience of all present had been already much tir'd, and himself on the mor­row was to take a long Iourney in College-business. To which it was said by Dr. Yer­burie (in these words, or to this effect;) Note that he offered to alter some phrases or expressions in his Paper, not relating to the Recanting or retracting of any words. It is my last and final answer, (And should you ask me never so long, I should but give the very same,) That I cannot retract and recant my words. And though I must confess again, that the Instrument is against me, I can doe no more then I have done in that Paper.

§. 18. The President hereupon read the Oath Cap. 6 p. 25, 26, 27. which had been taken by Dr. Yerburie;The Presidents and Officers Proceedings thereupon. and shew'd him (as he read) his manifold transgressions and breaches of it. Then he read over that other Statute, of which the title is, Cap. 27. p. 65. Quomodo proceditur contra Secios & Scholares Coll. super majoribus criminibus defamatos;] and told Dr. Yerburie, to whom he read it, that as well for his manifest and manifold breach of Oath, whereof himself and the Officers had found and judged him to be guilty; and to each of which Breaches of Oath an Expulsion from the College did by force of that Sta­tute indispensably belong; Ib. p. 66. (Ex tunc, & ipso facto, nullâ aliâ praemissâ monitio­ne, & absque cujuscunque Appellationis remedio, vel querelae,) as also for his con­spiracies against the good estate of the College, and for other great crimes bringing Scandal and prejudice unto the said College; such as were his Contempts, and his Slan­derous Defamations, committed against the This will be proved by his own Let­ters from Lon­don to Oxford, and by his own Confession of them in the presence of ma­ny witnesses, one whereof is a Publick Notarie, under whose hand it is attested. Visitor, the This will be prov'd, as by other evidences, so by his Letters to Mr. Tayleur, which he communicated to divers who will attest it As also by divers other Letters, and words of mouth, to four other persons, of which proof will be made when occasion serves. President, and Offi­cers of the College; for all these reasons, and especially for the first, (which alone had been too sufficient,) He the said President did then affirm, That with the sober advice, and by the unanimous consent, of all the Officers there present, who were appoin­ted by the said Statute to concur and assist in that particular Case and affair, he was obliged to declare, and did declare his Place void; and that ex tunc (as the Statute words it) he stood depriv'd for ever of all right and title to the place of a Fellow, which once he held, in Magdalen College here in Oxford.

Which Sentence being pronounced,His Submission to the Legality of his Expulsi­on, and his promise to keep his Oaths, by not so much as complaining of it. Dr. Yerbury put on his hat; affirming that now, being not a member of the College, he need not shew that respect to which he was bound when he was Fellow. For which ingenuous acknowledgment that now he ceased to be a Fellow, the President first gave him a Commendation; and then required him by vir­tue of two other Oaths, (which He the said Dr. Yerburie had formerly taken,) to de­clare in writing under his hand, Cap. 15 p. 43. Cap. 52. p. 125. That he did perfectly acquiesce in his Expulsion, and would not endeavour his Restitution by procuring any Letters, or by making any Appeals, nor create any trouble to the President and Officers, or either of them, by any process of Law, or other course whatsoever. To which Dr. Yerburie made this Answer; That he would look upon his Oaths, which then were shew'd him, and doubted not but he should perform what by those Oaths he was bound unto; and that the more to the President's satisfaction, for taking time to consider of it.

A true Copie of the Statute, by virtue of which Dr. Yer­burie was ex­pelled.§. 19. Item statuimus, ordinamus & volumus, quòd si contra aliquem Sociorum vel Scholarium dicti Collegii infamia oriatur, super crimen Haeresis, Simoniae, aut super perjurio manifesto, vel furto notabili, homicidio voluntario, adulterio, incestu atro­ci, percussione injuriosâ Socii vel Scholaris, laesionem enormem inferente, praesertim Prae­sidentis, Vice-praesidentis, alicujúsve Decanorum vel Bursariorum, Magistri, vel Do­ctoris ipsius Collegii, vel super alio crimine similiter enormi, aut aliquo alio crimine de majoribus criminibus, vel quòd notorius fornicator existat, aut quòd conspirationes il­licitas fecerit aut inierit, vel eas fieri procuraverit contra Statum dicti Collegii, vel facientibus conspirationes hujusmodi praestiterit consilium, vel favorem, aut aliquod fa­ctum ejusmodi perpetraverit, per quod grave damnum, praejudicium vel scandalum dicto Collegio generetur, & praemissa, vel eorum aliquod, publicè confessus fuerit co­ram Praesidente dicti Collegii, assistentibus sibi Vice-praesidente, duobus Decanis & Bursariis, vel per Testes idoneos Praesidentis, Vice-praesidentis, & aliorum superius nomi­natorum judicio approbandos, aut per Facti evidentiam coram eisdem reus manifestè con­victus fuerit, ex tunc, à dicto Collegio praesentis nostrae Ordinationis vigore, nullâ aliâ praemissâ monitione, eum exclusum & privatum fore ipso facto decernimus & statuimus, absque cujuscunque Appellationis remedio vel querelae.

The Conclusi­on.§. 20. After This we desire it may be heeded, first, that Dr. Yerburie did finally Re­fuse to obey the chief part of the Visitor's Instrument and Decree. Secondly, that we ex­pelled him, not singly and solely for that Refusal, but for several other Crimes for which we must have expell'd him, or else be perjur'd. Thirdly, that we did not require him to repeat whatever words he had spoken against Dr. Clerk and against the Statutes, and so to recant them in the Retaile, (though according to the Instrument we might have done it;) But being desirous to make his Task as easie for him as was possible, we did only require him to recant them in the Gross, as our Visitor in his Instrument was pleas'd to order and injoin. Fourthly, that we omitted to make any mention (in our Injunction,) either of matter or manner, Truth or Falshood, for fear of putting any Rub in the way which we had smooth'd to his Recantation; But dealing tenderly with him as with a weak (whom yet we found a wilfull) Brother, we required him only in general Terms to yield obedience to the Visitor's Injunction, which did concern his Re­cantation. And to prevent all deceipt which is apt to lie in Generals, as well as to vindi­cate and evince the perfect Sincerity of his obedience, we required him to comply with the Visitor's most plain and unavoidable Sense, by varying no more from his very words, then by turning the third person into the first, and the Subjunctive into the Indicative mood, and so instead of those words (which are the Visitor's in his Instrument,) Ob prolationem * VERBORVM quorundam sic imprudenter & inconsideratè per praefatum Henricum Yerburie loco & tempore praedictis emissorum contra quendam Henricum Clerk Medicinae Doctorem, Sociorum etiam dicti Collegii unum, & contra dicti Collegii Sta­tuta in eo casu provisa, * EADEM VT RECANTET ET RETRACTET,—INIVNXIMVS ET INIVNGIMVS; to substitute These in obedience to them— ‘[Ob prolationem verborum quorundam sic imprudenter & inconsideratè per me praefatum Henricum Yerburie loco & tempore praedictis emissorum contra quendam Henricum Clerk Medicinae Doctorem, Sociorum etiam dicti Collegii unum, & contra dicti Collegii Statuta in eo casu provisa, EADEM RECANTO ET RETRACTO.]’ But This, or any Thing else, which might be tantamount to it, he did often and finally refuse to doe.

§. 21. We will not here add, by how many obliging methods he had been sought long before; how very often he had been spar'd, when according to the Statutes he should legally have been punish'd; how many of his Faults were connived at, for fear his Contempt of admonitions should necessitate his Expulsion; with what offers of Re­ward, Respect, and Partiality, he had been courted and wooed to be but a Regular Col­legiate, and by such humble Importunities of the President Himself, (who never once commanded, as by Statute he should have done, until his earnest Intreaties had been despis'd,) that Dr. Yerburie profess'd his Amazement at it; with what invincible patience and forgiveness the President had put up his publick Indignities and Affronts, his Lyes and Slanders, confessed also to have been such by Dr. Yerburie Himself, as [Page 11] soon as he came to be in cold blood; how early and how often he had merited an Ex­pulsion, which was inflicted but once, and as late as might be: we say, we will not in­sist upon such Things as These, nor shew the Origin and Growth either of his Guilts or his Discontents, unless we are forc'd by his Continuance in the desperate Course he hath begun, to proceed farther yet in our Vindication.

Now we leave it to be consider'd by as many as have the patience to peruse this Accompt,

I. Whether comparing Dr. Yerburie's Oath against Appealing to any person, (p. 1. §. 1.) with the Appeal of Dr. Yerburie (p. 4. §. 7.) And Both with the Instrument of the Visitor unto whom his Appeal was made, (p. 5. §. 10.) And all three with the Statute by which a manifest Breach of Oath is to be punished with Expulsion without Remedy or Delay, (p. 10. §. 19.) And this again with that Oath which the Praesident had taken to punish All without Fear or Favour, according to the plain and literal sense of each Statute, (p. 4. §. 6.) we had not been strictly bound in Conscience to pro­ceed to that Sentence which is pronounced (p. 9. §. 18.) though Dr. Yerburie had committed no other Crime.

II. Whether it was not another Crime (deserving Expulsion of it self,) to persevere in Disobedience to the Visitor's Injunction, which Dr. Yerburie by an Statut. cap. 6. p. 26, 27. Oath did stand ob­liged to obey. And whether he did not so persevere, whose last and final Submission was in so many respects deficient as is evinced, (§. 16. p. 7, & 8.)

III. Whether it was not another Crime (deserving Expulsion of it self) to enter into Conspiracies against the Praesident and the Officers, (which Officers he was Statut. cap. 6. p. 25, 26. sworn both to Reverence and Obey) and against the good Estate of the College, (to be pu­nished by Expulsion without all Remedie by Appeal, p. 10. §. 19.) and this in many more respects then here is Paper to contain. But Proof shall be made as occasion serves, or when the President with the Officers shall be thereunto called.

IV. Whether it was not another Crime (deserving Expulsion of it self) as well by Word as by Epistles to slander the Visitor, the Praesident, and his statutable Assistants, in This will be publickly made good, as is of­fer'd in the margin of p. 9. §. 18. several kinds (which for brevities sake are here omitted) to the great Prejudice and Scandal thereby accrewing to the College, to be punished by Expulsion without all Remedie by Appeal, (p. 10. §. 19.)

V. Whether it were not another Crime (deserving Expulsion of it self) not to submit unto his punishment of being put out of Commons, although he had expresly sworn to doe it, and protested that he did it, whilest yet he willfully did it not, as is evident by the Date of his Appeal, attested by his publick Notarie Lecta & in­terposita fuit haec Appellatio in Hospitio vulgò dicto The Catharine-wheel, in paro­chiâ S. Mariae, &c. Ian. 8. 1662. in praesentiâ mei Greg. Ballard LL. Bacc. Notarii publici, Henrici Alworth LL. Do­ctoris, & Iohannes Rodes literati. Ian. 8. 1662. (in a certain Alehouse or Inn call'd The Catharine-wheel) which was within the 15 Daies, during which he took an Oath to acquiesce in his punishment with all submission, and solemnly promis'd that he would doe it with all meekness and humility; and with thankfulness too, that his punishment was milder then he saw by the Statute it should have been.

Other Crimes of Dr. Yerburie might here be added, (deserving Expulsion of them­selves) were it not for their reflexion upon some other persons whom we respect, for which one reason they are withheld, unless some farther Provocation shall draw them forth.