astical Law; then he must give Notice to the Patron. So that Default of Learning is by him (who was no great Friend to the Jurisdiction of Court Christian) agreed to be subject to the Ecclesiastical Inquiry. And then in Pleading he must show the Cause of Refusal; and the Party may deny the same; and then the Court shall write to the Metropolitan, or to the Guardian of the Spiritualities, sede vacante, to certify if the Cause be thus; and his Certificate is conclusive. If the Presentee be Dead, it shall be tried by a Jury, 15 H. 7. 7. the Bishop is declared to be a Judge, and not a Minister in this Case of Examining a Man's Ability. He is a Judge in this Case, as he is in Case of a Resignation; for an Ordinary may refuse it, and without his Acceptance, 'tis no Resignation, and must be so pleaded. Noy 147. Bro. tit. Bar. 81 & 2 Cro. 197. and so agreed, even in the Case of Leach and Thompson. In Reg. 53. is a Consultation upon this very Surmise that Inability ad Retinend' beneficium propter Crimina belongs to Court Christian; and that the Ordinary is Judge thereof: Which is much stronger than our Case, because there was a Freehold vested by Induction. But this hath been agreed by that Court, from whose Judgment the present Appeal is, that a Refusal may be upon Insufficiency appearing upon an Examination, upon a new Presentation. And constant Practise proves it.
The greater, if any Doubt is upon the Plea, if good, it says, that he was Examined, and upon Examination was found incapable.
Objections answered.—The Exception taken to it is, that it doth not set forth the particular Parts of Learning, in which he is deficient; that the Temporal Court may Judge, if it were a sufficient Cause of Refusal; which is to change and turn it ad aliud examen, what Learning is requisite for a Presentee to be Benefic'd. They would not have the Ordinary to determine what Qualifications a Person ought to have in order to take a Benefice, but the Judges in Westminster-hall. They can have no Colour for this Pretence, but that the Ordinary may have refused, when competently Learned in their Opinions: And they cannot say that the Law hath settled any Rules or Measures of Learning requisite. Some say, Latin is not requisite since the Liturgy is now in English, and therefore they would Judge of it. Others say, the less Learning the better Preacher, if he can Read, and Pray, and Preach, and be indued with Spiritual [92] Gifts; and so is their Replication. Others say, that the Ordinary's Judgment must be submitted to the Judge's Opinion of the Proportion of Knowledge necessary. Then they have a Popular Pretence, that this will give the Bishops too great a Power of Refusal, and so restrain Patrons from their Privilege of Presenting, and thereby make themselves Collators. But there's no danger of that, because there must be Notice and a convenient Time for another Presentation. And the Danger of this Restraint is as much the other way; for then the Temporal Courts are to do it; and its much at one to the Patron, which is to declare the Inability, the Ordinary or Temporal Courts. On both sides it must be agreed, that Default of Literature is a good and just Cause of Refusal: The Question is, who shall Judge of it? It is said, minus Sufficiens in Literatura, & ea ratione inhabilis, i.e. (it being indefinite) in omni Literatura necessaria.
But they Cavil at the Word minus sufficiens, as if that agreed him somewhat Learned, and forget that 'tis said ac perinde incapax. And minus sufficiens is in Lawyer's Latin totally insufficient; and so 'tis used in all Demurrers to Declarations, Pleas, Replications, quod Narr' vel placit' præd' & Materia in eodem content' minus sufficient' in Lege existunt, ad quem vel quod the Party necesse non habet nec per Legem terræ Tenetur aliquo mode respondere; i.e. ' tis good for nothing, 'tis insufficient; the Court in their Judgments upon the Insufficiency of the Plea do always say, quia minus sufficien' existit.
Then it was argued, That it is a good Plea to all Intents and Purposes, from the Nature of the Thing, and the Impossibility of making it more particular and certain. 2. From the Sufficiency of it to all Intents and Purposes of Trial. 3. From the Precedents and those of Antiquity which warrant this Form of Pleading. 4. From the Mischiefs and Inconveniences which must follow and ensue, if a greater Particularity were required.
1. The Plea sufficiently certain.—From the Nature of the Thing, and the Impossibility of making it more particular and certain; if the Bishop were bound to set down in particular, and at large, every Point of Learning wherein this poor
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