Wretch was and is deficient, 'twould be a Pleading like to a Justification of an Action done by a private Person; and not like to the Pleading of the Act of a Judge, which this is: 'Twould be so large as to render it impossible for to join an Issue thereupon; and then they would have demurred with a Cause, because multiplex, duplex, incertum, & perplex', and the rest of our usual Adjectives upon those Occasions: The Assignment of several and many Particulars would have been double, and good Cause of Exception; because one Particular might be found True, and another not: And the Assignment of one Particular would have been adjudged insufficient; for then they would have said, that Learning is of a complex Nature; and if a Man should fail in answering any one Particular, tho' common Question, yet he might be qualified in general: And therefore the Assignment of [93] one Defect, tho' never so gross, shall not make a Clerk minime capax, and therefore no good Plea. For, if a Particular be Assigned, that would not prove a general Defect of Knowledge, according to the Words of the Law; which is the only Thing that could make him incapable ad habend' beneficium cum Curia Animar', and therefore the Bishop as a Judge returns him in Literatura insufficiens, & ea de causa minime capax: And the special Instances would have been Evidences upon a new Trial, or Examination before the Archbishop.
Now this Cause of Refusal distinguishes the Case from all others that they can insist upon. All other Inabilities of a Clerk depend upon one single Point, as Bastardy, Villenage, Outlawry, Excommunication, Layman, Under-age or Ecclesiastical Infamy. So all Crimes must have their Foundation from a particular Act, as Adultery, Perjury, Simony, &c. In these it shall not be enough to Plead that he was inhabilis generally, or criminosus generally, & ideo inhabilis; because no Body can be criminosus, but he that hath done some particular Crime; and that is to have a several Trial according to its respective Nature: If it be an Ecclesiastical Offence, then there is a particular Method of Trial; if a Temporal, then another. And so says Coke, 2 Inst. 632. and therefore a Particularity is required there: But here 'tis all triable by the same way, viz. a new Examination before the Archbishop. Here the Matter it self admits of no greater Certainty; for that 'tis a general Deficiency of Learning only, which can make an Incapacity of discharging the Pastoral Office. It is a Matter that must appear by a Variety of Questions, and cannot be proved by any one single Instance whatsoever.
This is the true Reason and Difference why in several Cases general Pleading hath been denied, and why in this Case it hath been always used, and never excepted against.
Then it was argued, That this Plea was sufficient to all the Intents and Purposes of Trial and Determination.
By our Law that Plea is sufficiently certain, which may be tried without inveigling either Court or Jury; that is, it must be intelligible and plain. And this surely is plain enough: The Ordinary had a Power to refuse him for want of Learning sufficient to enable him to discharge his Pastoral Office; he Pleads that he was Minus sufficien' in Literatura; this is to be tried by the Certificate of the Archbishop, or the Guardian of the Spiritualities, during a Vacancy. And that is evident by 39 E. 3. 1, 2. 40 E. 3. 25. and from Specot's Case, 5 Rep. 7.
There never was an Objection made to the Uncertainty of any Plea, if the Matter could be fairly reduced to an Issue for a Trial; now here the Court might certainly have written to the Archbishop, to have known utrum this Creature were minus sufficiens in Literatura, & ea Ratione inhabilis, and the actus Curia of the Bishop would have been Evidence before his Grace, and he might [94] have certified that he was, or that he was not sufficiently Learned. No, say they, the Court must not write to the Archbishop to know that, till it be said in what Points of Learning he was defective? And if these shall be thought material Parts of Learning for a Rector, then they must write to know if Hodder had them or not? But if they think them not material for the Qualifications of a Pastor, they must not write at all. This is the true English of the Argument. But it was argued, That the Temporal Court is only to judge, that the Cause of Refusal, if true, was a sufficient Cause: And the Books are, that a general Default of Learning is a good Cause; and this the Archbishop is to try: And this is certain enough for to make an Issue or Question proper for that Trial.
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