Hodder when presented was a Man illiterate; and that they are ready to aver, ubi & quando prout curia, &c.
The Plaintiff sur-rejoins, That Hodder was Vicar in Orders, and Licensed, prout; & hoc petit quod inquiratur per patriam; and the Defendants demur; & Jud' pro quer', & affirm' in B.R.
Argument for Plaintiff in Error.—It was argued on behalf of the Plaintiffs, in the Writ of Error, that this Judgment and the Affirmance of it were Erroneous.
For, That the Ordinary had in this Case a Power of examining this Presentee, notwithstanding their Pretence of Orders and License, and the former Examination by Dr. Sparrow late Bishop, and consequently their Replication and Surrejoinder are naught, for they rely upon that and nothing else.
[90] Whether Ordination be a sufficient Proof of Learning.—'Twas insisted on below, That a Parson once Ordained is certainly presumed to have sufficient Learning for any Cure of Souls. Nay, that such Examination upon his Ordination shall conclude any succeeding or other Ordinary from examining such a Person when presented to a Benefice. But this is contrary both to Reason and Law: And so agreed by most of the Judges, who delivered their Opinions for the Plaintiff in the Action below.
'Tis against all Reason and Sense, That because one Ordinary thought him able to take Orders and Preach in his Diocese, therefore another must deem him able and sufficiently Learned (tho' he knows the contrary) to accept a Benefice in his Diocese. 'Tis Absurd, that upon a Presentation he is to be examined, but not refused, tho' found inhabilis: And this because he was in Orders, and he could not be presented unless in Orders. And yet tho' in Orders, if he be presented, he must be examined, but to what Purpose passeth all Understanding, if his Priesthood or Orders presumed him to be qualified? 'Tis likewise to suppose Learning and Ability to be an inseparable Quality; that an ordinary Scholar can never become less so. By the old Law, the Bishop had two Months Time to examine. 2 Roll's Abr. 354. By Hob. 317. He hath a convenient Time, and by Can. 1 Jac. 1. cap. 95. the two Months is reduced to 28 Days: And the Ordinary both in Conscience and by the Obligations which his very Order doth import, is obliged to Judge for himself as well as to Examine. The contrary is Repugnant to his Office of a Judge, to be forced or compelled to institute every Presentee, fit or unfit. Besides the Ordinary pro Tempore hath the particular Care of all the Diocese, and during a Vacancy is to take care of supplying every particular Cure within his District: Then when he admits and institutes, the very Form of Words is, Accipe curam meam & tuam; which renders it more Absurd, that nolens volens he must transfer his Cure to a Man not able in his Judgment to execute it.
'Tis against the Rule of Law, for that the Words of it are express, Articuli Cleri, cap. 13. and this Coke declares to be Affirmative of the Common Law; Item petitur quod personæ Ecclesiast' quas Dominus Rex ad beneficia præsentet Ecclesiastica, si Episcopus eas non Admittat, ut puta propter defectum Scientiæ, vel aliam causam rationabilem, non subeant examinationem Laicar' personar' in casibus antedictis prout his temporibus attentetur de facto, contra Canonicas sanctiones, sed adeant Judicem Ecclesiasticum, ad quem de jure pertinet pro Remedio, prout justum fuerit, consequendo, respons. de Idonietate personæ præsentatæ ad beneficium Ecclesiasticum pertinet Examinatio ad Judicem Ecclesiasticum, & ita est hactenus usitatum, & fiat in futurum.
Here is Idoneitas personæ præsentatæ; and the Words of the Writ are quod permittat præsentare Idoneam personam. And if the Presentee were not a fit Person, no such Writ can be maintained.
[91] Exceptions in Law to a Presentee. Hob. 296.—Then my Lord Coke in his Comment upon that Statute in 2 Inst. 631, 632. saith, that there may be diverse Exceptions to Persons presented; as Bastardy, Villenage, Outlawry, Excommunication, Laity, Under-age, or Criminal and Lewd in his Conversation, or Inability to discharge his Pastoral Duty; as if he be Unlearned. And the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop, who is the Ecclesiastical Judge: And not a Minister; and he may and ought to refuse the Person presented, if he be not Idonea persona: And if the Cause of Refusal be Default of Learning, Heresy or the like, belonging to the Knowledge of the Ecclesi-
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