maintain that Writ, therefore to give that Instance against us, is hard; the Rector hath no such sole Seisin: The whole Body of the College have an Interest therein. He hath no Title to the Money in his own Right, till by Consent they are distributed; and after such Distribution, 'tis not the Rector's Money, but Dr. Bury's; he is the only visible Head of the Body indeed, but has no single Right.
Appleford's Case.—In Appleford's Case the like Argument was drawn from this Case for a Mandamus, and insisted that he might have an Assize, but said by the Lord Hale, that that was impossible; and in Truth, there's no Difference between this Case and that of a Mandamus, there was a Return that he was removed pro crimine enormi, and Appealed to the Bishop of Winton, who confirmed the Amotion, and the particular Cause was not at all returned; and held good; because there was a local Visitor, who had given a Sentence, and all Parties were concluded by it; the same being done by the Power of that Government, which the Founder had thought fit to put them under.
[48] Now 'twas argued from hence, That this was an express Case; if the Cause of the Deprivation be examinable in the Courts of Common Law, why not upon a Mandamus as well as in an Ejectment? The Lord Hale in the Case of Appleford took it for clear Law, That the Sentence was as binding as a Judgment in an Assize: He is made a Judge, and his Person particularly designed by the Founder, but he hath his Authority from the Law; and since the Founder hath trusted the Matter to his Discretion, 'tis not to be suspected that he hath done, or will do otherwise than Right.
Presumption is in Favour of Judicial Proceedings.—Then in the next Place 'twas argued, That there doth not appear any Injustice in the Sentence, and consequently it ought to be presumed Just; Credence is to be given to a Person that exerciseth Judicial Power, if he keep within his Jurisdiction. The Law hath respect not only to Courts of Record and Judicial Proceedings in them, but even to all other Proceedings, where the Person, that gives his Judgment or Sentence, hath a Judicial Authority; and here's no Fault found in the Sentence; the Jury have not so much as found the Matter and Ground of it to be untrue in Fact, or insufficient in Law.
Contumacy a good Cause of Deprivation.—Then 'twas urged, That the Cause of Deprivation here was Just, it being for Contumacy. If the Bishop had Power to visit in June, as he had, and was hindered by their shutting the Doors, whereupon he went away without doing any Thing, and came again in July, when he held his Visitation, and they behaved themselves Contumaciously, and refused to submit to his Authority; this was contra officii sui debitum; 'tis reasonable that both Head and Members should submit to the Visitor; Contumacy is a good Cause of Deprivation, and upon good Reason, because it hinders an Inquiry into all other Causes: 'Twas held so in Bird and Smith's Case, and in Allen and Nash's Case; quia fuit refractarius: Now tho' the Contumacy be not one of the Causes mentioned in the Statutes, yet 'twas certainly contrary to their Duty; Turning their Backs upon the Visitor, not Appearing upon Summons, Refusing to be examined, was an Offence, and contrary to what the Statutes require. He is to inspect the State of the College, and each Member's particular Behaviour; and now when the Visitor comes to make such an Inquisition, and the Head or the Members withdraw themselves, and will not appear to be examined, if this be not a good Cause of Deprivation, nothing can be, for that nothing else can ever be inquired into.
The three Conclusions.—As for that Statute which refers to the Causes for which a Rector may be deprived, it doth not relate to a Deprivation in a Visitation; but shews the Manner, how the College is to proceed, if he be guilty of such Offences; they may complain at any Time to the Visitor, if he wastes the Revenues, or behave himself scandalously, and upon Request will not resign, and they may Article against him out of a Visitation; but when he comes to execute his Power in his quinquennial Visitation, he is not confined to pro-[49]-ceed only upon the Information of the Fellows, but is to inquire into all the Affairs of the College, and may proceed to Deprivation, as he sees Cause. Now Contumacy is a causa of a Forfeiture of his Office, which is subject to the Power of the Visitor by the original Rules of the Foundation; and to evade or contumaciously to refuse or deny a Submission to that Power, is an Offence against the Duty of his Place, and con-
