that no action of Dr. Masters to be Visitation, yet this Sentence is void, because it held above three Days, and the Statutes say, after three Days it shall be taken pro terminat & dissolut'. On the 16th of June he comes with Intention to visit, doth an Act proper to his Office and Business, examines the Summoner about the Citation ; if he had come and only examined and made no Decree, it had been a Visitation; and either 'tis a quinquennial one of it self, or it is a Commencement of one, and either one way or other it makes the Deprivation void; 'tis afterwards entred as a Visitatorial Act; Eundem actum pro parte hujusmodi negotii Visitationis haberi decrevit, and then he adjourns; 'tis no Argument to say that he was hindred, for he might have proceeded in absentia; and if the 16th of June be tacked to it, 'tis longer than the Time: There needed no formal Adjournment, for that he is Authorized to proceed in a Summary way; 'tis no such Absurdity to call that a Visitation which was in some sort hindred, since notwithstanding the Obstruction, some Acts were done, and more might have been by adjourning to another Place.
3. Not a sufficient Cause of Deprivation.—Here was no such Cause as could warrant a Deprivation: it was not one of the Causes mentioned in the Statutes, which are not Directions merely, but they are the constituent Qualifications of the Power; and Contumacy is none of the Causes; nay, here is no Contumacy at all: The Offence of the Suspended Fellows was only a Mistake in their Opinions, and the Doctor's was no more; and 'tis not a Contumacy for refusing to answer to or for any Crime within the Statutes, for there was none of the Crimes mentioned in the Statutes laid to the Charge of the Rector; if the Crime charged had incurred Deprivation, perhaps Contumacy might be Evidence of a Guilt of that Crime, and so deserve the same Censure; but Contumacy in not consenting to a Visitation can never be such, especially when the Consenting to a Visitation is not required under Pain of Deprivation.
4. Visitor alone not a competent Judge.—Admitting the Visitor legally in the Exercise of his Office; that here was Cause of Censure; that the Cause or Crime was deserving of that Punishment which was inflicted; that Deprivation was a congruous Penalty for such an Offence: Yet 'twas argued, That this Sentence was void; for that the Visitor alone was in this Case minus competens judex, because his Authority was particularly designed to be exercised with the Consent of others, which was wanting in this Case: This was the same as if it had required the Concurrence of some other Persons Extra Colleg', then that such a Concurrence was necessary, appears from the Words of the Statute, his Meaning seems plain upon the whole, to require it. A greater Tenderness is all along shewn to the Rector, than to the Scholars, 'tis sine quorum consensu irrita erit hujusmodi Expulsio & vacua ipso facto; and the Sentence it self shews it necessary, because it affirms it self to be made with such Consent; and it cannot be thought that the Rector should be deprivable without their Consent, when the meanest Scholar could not.
[56] A Suspension does not make a Vacancy.—Then here's no such Consent, for 'tis not of the four Seniors, but of the four Seniors not suspended; now this doth not fulfil the Command of the Statute, for the Suspension doth not make them to be no Fellows, a Suspended Fellow is a Fellow though Suspended; a Suspension makes no Vacancy; the Taking off of the Suspension by Sentence or by Effluxion of Time, doth make them capable of acting still, without the Aid of any new Election, and they are in upon their old Choice, and have all the Privileges of Seniority and Precedency as before.
Suspension what.—If they ceased to be Fellows by the Suspension, then they ought to undergo the Annum probationis again, and to take the Oaths again: In case of Benefices or Offices Religious or Civil, Ecclesiastical or Temporal, 'tis so; a Suspension in this Case is only a Disabling them from taking the Profits during the time it continues: And 'tis no Argument to say, That there [their] Concurrence was not necessary, for that they had withdrawn themselves, and were guilty of Contumacy; for that a Man guilty of Contumacy might be present; if withdrawn from the Chapel, he might be in the College, or in the University; And 'tis not found that they were absent; and then their Consent not being had, the Sentence was void and null, and consequently no Title found for the Lessor of the Plaintiff in the Action below.
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