The Authority of it is Questionable: For they agree, Schism or Heresy, which the Judges there take to be all one, a Cause of Refusal; and others said, they did not know what was Schismaticus inveteratus: But they did not consider that the Archbishop might, tho' they did not. But perhaps the Ordinary may judge that to be Schism which is not; and therefore the Temporal Courts are to judge what is Schism. And in the inforcing of this Case below, they said the Ordinary is Judge only of Matters of Fact, not if the Fact be Schism; which is somewhat strange.
The Reports of that Case are 5 Rep. 57. 1 Anderson 189, 190. Gold. 36 and 52. and 3 Leon. 198, 199 and 300. in that Case the Bishop pleaded, that the Presentee was Schismaticus inveteratus, & ideo non habilis: Upon the Validity of this Plea there were divers Arguments; two of the Judges, says my Lord Anderson, were for the Plaintiff, and two for the Defendant; and for the Decision of the Matter, the Opinion of the other was asked, and by the greater Opinion Judgment was given pro Quer.
Then were repeated my Lord Anderson's Words, fol. 189. the Instances that were urged were, says he, Criminosus & Perjurus, but they are Matters triable both by Law Spiritual and Temporal; and the Coment, or how, is necessary to be shewn to determine the Trial: But Schismaticus in the principal Cause shall be tried only by the Spiritual Court, and not by the Temporal, as that of an Heretick may be generally pleaded. And divers Cases were put to prove General Pleas and Issues triable at Common Law, and yet says he Judged pro Quer'.
This is my Lord Anderson's Opinion of that Case; and whether the Antient Authorities vouched in that Case, do warrant that Judgment must be submitted.
Authority of Precedents how to be estimated.—Besides, by our Law, 'tis not any one Opinion, tho' judicially delivered, that can make or alter the Law. Nay, it doth not oblige any further than the Reason of it is considerable, and agrees with the Constitution and Rules of Law. My Lord Vaughan always declared in Favour of Reason and Authority; and that in Honour of our Law: For the contrary is to say, 'tis founded upon no Reason. This Judgment was when the Courts below were in Struggle with the Ecclesiastical; and the then High Commission Courts Erected by 1 Eliz. had given some Provocation; which, with frequent Prohibitions, gave Occasions to the Disputes between the Bishops and the Judges, in the be-[101]-ginning of the Reign of K. Jac. 1. But admitting the Case to be Law, the same is easily distinguishable from this, and founded upon different Reasons which cannot govern or influence this.
'Twas urged first in that Case there was some Possibility for the Bishop to have set out the Heresy certainly and particularly; for all Heresy must be founded upon some particular Tenet, that is Repugnant to the common received and Orthodox Doctrine: Now in this Case, say they, the Heresy ought to be Assigned, that the Party may Traverse it, and purge himself, and the Archbishop not to be inveighled and obliged to run over all the Species of Heresy; which, say they, may be almost impossible: But may have only one particular Opinion to Examine, whether the Presentee did obstinately maintain it. For if the Temporal Court had been of Opinion that such Tenet in particular was not Heresy, tho' the Ordinary thought it so, yet then they would have over-ruled the Plea, and not have wrote to the Archbishop at all. This is the sole Cause of that Judgment: And then the Consequence will be as was observed before. But their own Reason fails in this Case; for here the Sufficiency of Learning is Traversable: For as hath been shewn it hath often been Traversed; and as to the ea ratione inhabilis, no Objection can be to that; for the old Authorities Cited do warrant, nay, require it; and all Pleas of Special Non est fact', as by breaking of a Seal, and the like, are in the same Manner.
Then besides, the very Words of the Law of Articuli Cleri are very much worthy of Consideration; it impowers the Bishop to refuse a Clerk propter defectum scientiæ & alias Causas rationabiles: Now all these Causes of Refusal, mentioned in their Cases, come under the causas Rationabiles, and causa vaga & incerta est non Rationabilis: Now want of Learning is not included by Intendment, but by express Words, and therefore need not otherwise be set forth. I take it for granted, that as they would have it, the Temporal Judges are to Judge what is a Reasonable Cause of Refusal; yet they are not to Judge, if Defect of Learning be a Cause or not: For in that the Statute is positive. Then if said to be deficient in Learning,
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