Grievances is another, and his proper Office and Business at all Times. 'Tis the Case of all the Bishops of England, they can visit by Law but once in three Years, but their Courts are always open to hear Complaints and Determine Appeals; so that here, tho' but one Visitation can be in five Years without Request, yet the Power and Authority to hear and examine any Difference between the Members, and to relieve against any particular Injury, that is continual, and not limited.
No Visitation when obstructed by the Constumacy of the Visited.—Then 'twas argued, That tho' what was done upon the 16th of June was with an Intention to Visit, yet being denied to enter the Chapel, where the Visitation was appointed to be held, it was none; and his Calling over the Names, was only to know who hindred the Visiting; and his making an Act of it afterward, or Administring an Oath at the Time, can never be called one; tho' it hath been below said to be a Tacking that of June to that of July; but that cannot be, for then it continued much longer than was intended; nay, much longer than it can by the Statutes of the College, for that is to cease in three Days.
It turns rather the other Way; having been hindred in June, he makes an Act of it in July, in order to call them to an Account for it, as for a Contumacy, and to bring them to Judgment at his Visitation: 'Twas no more than taking an Affidavit of the Service of a Citation.
The Appointment of a Visitation in the Hall was occasioned by the Obstruction met with at the Chapel; and 'twould be a very strange Construction, that when he designed a Visitation, and was hindred, that the Hindrance and his Inquiry about it should be called a Visitation; and a former Contumacy in opposing an intended Visitation, should prevent their being subject to an actual true one.
Concurrence of Fellows not necessary.—Then 'twas argued, That there was no Necessity that there should be the Consent of the four senior Fellows to the Deprivation of the Rector; and by one of the Counsel it was owned, that if such Consent had been necessary, the Sentence had been a Nullity: But as this Statute is framed, 'twas argued, that the Bishop might deprive tho' they did not concur, for these Reasons:
1. By the Statutes, the Bishop for the Time being, is made the ordinary Visitor of Exeter College, and that where any one is Visitor of a College, he hath full and ample Authority to De-[44]-prive or Amove any Member of the College quatenus Visitor. 2. There is an express Power given to the Bishop to proceed to the Deprivation of the Rector, or the Expulsion of a Scholar; and this in his Visitation. And 3. The qualifying Words do not restrain it to be with the Consent of the four Fellows; the Word is Deprivatio as to the Rector, and Expulsio as to the Scholar; tho' they are synonymous as to real Sense, yet by this Statute they are differently applied: Then it says, If the Bishop do proceed, &c. that only relates to the Case of a Scholar, because the Word there used is Expulsio, which is never applied but to the Amotion of a Scholar; and it is impossible to relate to the Rector, for then he must consent to his own Deprivation, for his particular Consent is mentioned and required, and that is not to be expected: And in this Case, the Consent of the senior Fellows, without that of the Rector, is not sufficient.
But then the subsequent Words are, That if the Rector be deprived by the Bishop's Commissary, with the Consent of the senior Fellows, he may appeal to the Bishop: 'Tis true, the Rector hath that Liberty, if the Commissary do deprive him; but there are no Words that do abridge the Bishop's own Power. The Commissary's Power is restrained by these Words, To have the Consent, &c. but the Bishop's own Power hath no such Qualification.
Power given by the Founder is the Rule.—It is objected, That 'tis unreasonable to imagine a greater Power in the Visitor over the Rector, than over the Scholars. But the Question is not, What was fit and reasonable for the Founder to have done? But to consider, upon Perusal of the Statutes, what he hath done? Suppose he doth give such an absolute Authority, 'tis what he had over the Thing granted; he might have reserved to himself a Power of Revocation, or what other Power he thought fit; and by the same Reason he might give the like to a Visitor of his Appointment; and having done so, it must be supposed that he had some Reasons for so doing. The Rector hath a Privilege, not to be deprived without the Benefit of Appeal, if 'twere by the Commissary: The Scholars have no Appeal.
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