what those Terms are? And the Consequences of such an Opinion may be dangerous to the Universities, those Nurseries of Learning and good Manners. 'Tis to make them too precarious and dependent upon Will.
Powers are qualified by Law. Commissioners of Excise.—And as to the Pretence that the Land was the Founder's, and he might dispose of it at pleasure, it was answered, that before the Gift, the Lands and the Profits and the Ownership were all subject to the Common Law, and the Owner could not give such a Power as is pretended, no more than he could oblige all Differences about his Estate to be finally determined by a particular Person and his Heirs or Successors: No Absolute Power can be fixed in this Nation by Custom, but rather than the same shall be allowed, the Custom shall be void. 1 Inst. 14. Davis 32. 2 Roll's Abridg. 265. Copyholds were anciently at mere Will and Pleasure, but the Lord is now obliged to and by certain Rules: By our Law the Power of Parents over Children is qualified and restrained; 'tis no Argument, to say that the Visitor comes in loco or vice fundatoris, for the Alienation and the Statutes did oblige even himself: And though perhaps, if no Statutes had been made, his Visitatorial Power had been much larger, yet since 'tis limited to once in five Years, and his Acts to be with others Consent, 'tis as much as if he had given the College a Privilege of Exemption by Words express from any Visitation, at all other Times, and in all other Manners than those which are mentioned. Then was [54] Cited the Case of Terry and Huntington, in Scaccar' Trin. 20 Car. 2. in Hardres's Rep. 480. before Sir Matthew Hale: Trover for Goods seized by Warrant of the Commissioners of Excise; the Quære was, when they adjudged low Wines to be strong Wines perfectly made, upon 12 Car. 2. cap. 23. whether it might be drawn in Question again by an Action in Westminster-hall; and held it might, though they were Judges, and though the Statute gave an Appeal; and the Reasons given there seem to reach this Case, because they had a stinted limited Jurisdiction, and that implies a Negative, viz. that they shall not proceed at all in any other Cases; and that special Jurisdictions might be and frequently were circumscribed, 1. With respect to Place, as a Leet or a Corporation Court; 2. With respect to Persons, as in the Case of the Marshalsea; 3. With respect to the subject Matter of their Jurisdiction: And if Judgment be given in another Place, or upon other Persons, or about other Matters, that all was void and coram non judice; and though it was objected, that strong Wines were within their Jurisdiction, and that 'twas only a Mistake in their Judgment; yet it appearing upon the special Verdict, that they were low Wines, the Action was held maintainable; this is so plain, it needs no Application.
That this Sentence is void, 1. For want of Authority at the Time.—Then it was argued, that this Sentence was void, 1. Because there was no Authority to visit at this Time, there having been a Visitation by the Commissary within five Years before; that no Words in the Statute make him a Visitor generally, but only secund' stat', i.e. upon Request, or without Request a quinquennio in quinquennium semel; now here's no Request found; then the Act of Dr. Masters as Commissary is an Exercise of the Visitor's Office; Colmer's Appeal was to the Bishop as Visitor; Semel implies a Negation of having it more frequent; according to the Grammar it signifies once and not oftener, or once for all: If Semel comes alone, without any other Particle, then 'tis but once, and if with another, as ne Semel, 'tis not once, or never; and the liceat Semel can have no other Construction; it can't mean once at the least, as was argued below, especially as opposed to Request: And no Argument can be drawn from the Necessity of frequent Visitations, for that Evils are not to be presumed; and over inferior Members there's a Power in the Rector and four Seniors: Now Dr. Masters was not requested by the College, nay, they protest against it in some Degree, i.e. so far as relates to Colmer's Restitution; the Oath of a Scholar being against Appeals: And the Oaths and the Contents of them are to be deemed Part of their Constitution: But supposing that Business might be examined as a Thing proper for Consideration, when an Inquiry is made into the State of the College; and the Admission, Continuance, and Removal of the Members is certainly one Article of such Inquiry, yet that must be done in Visitation, and as Visitor, for there's no other Power found in the Verdict but that.
[55] 2. Because the Visitation held above three Days.—2. Admitting
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