& ea ratione inhabilis, they had nothing to Judge upon: They were only to write to the Archbishop to know if the Fact were true? If he were deficient? And therefore it need not be set forth any otherwise, than as the Statute expresses it. Tho' in that Case, they say, there are divers Sorts of Schisms and Heresies in Doctrines on which the Bishop might warrant his Refusal: Yet 'tis not so much as once pretended there are any Opinions delivered in those Cases, that Deficiency of Learning is subject to the same Rules of Pleading.
Then the Plea is in the Negative, as was shewed before, which is more than enough to make a good Difference: And Negatives in a Bar are always allowed to be more general because most favoured; and especially here, where the Matter and Person, to which the Words are applied, do sufficiently restrain and determine the seeming uncertainty of it.
[102] Canons as to Sufficiency to Presentee.—Nothing can be pretended to reduce this to a greater Certainty but the Canons or the Statute of 13 El. cap. 12. or other Laws of the same Nature, 1 Canons of King Jac. 1. made in 1602, and they were made pursuant to Canons made 1562. by which no Man was to be admitted, nisi rationem fidei juxta Articulos Religionis in Synodo Episcoporum & Cleri Anno 1562. approbatos Latine reddere, & eandem Scripture testimonio Corroborare possit; Can. 3. 4. Conditiones in ordinandis requisit'; this is merely a Negative Injunction on the Bishop never to confer Orders upon any Man that cannot do this. It is not Mandatory upon him to ordain every Man that can do this; nor does it any way lessen or diminish the Authority or Judgment of the Ordinary in Examination of the Fitness and Learning requisite.
And Stat. 13 El.—So is the Statute of 13 El. the same induces an Incapacity on those that shall not subscribe the Articles: But it leaves all Things else to the Ecclesiastical Law. Neither the Canon nor the Statute are Derogatory from the old Ecclesiastical Law. They both leave it in Statu quo to the Ecclesiastical Judges. No Man will pretend that these are a Repeal of the Statute of Articuli Cleri: So that the Law remained as it did with more Latitude indeed to the Bishop, but not with more Favour to the Clerk.
Objection as to Notice answered.—They objected that here was not convenient Notice to the Patron, and the usual Pleading of it is the same Day.
But surely that's well enough; and so was it held by all the Judges that favoured their Side in this Case: And 'tis apparent, that he had above four Months Time to have presented another. Besides, the Judges declared below, that if not a convenient Time, it ought to have come on their Side. But they admit Notice by their Replication, and insist upon his Orders as an Estoppel to say that he was Illiterate.
They pretend, That he is still under the Bishop's Jurisdiction, and that he may deprive him for the same Cause, if sufficient, after Institution: But that's a great Mistake. For there may be a Cause of Refusal, which is not of Deprivation: For he may become Learned that was not so. And besides, the Rule is false: After Induction, they would then be discoursing about Freehold, &c. A Man may be refused, because Non compos, but he cannot be deprived for that Cause, though the Bishop may provide a Curate, &c.
As to the Pretence of six Months Notice from the Time of the Refusal, 'twas never insisted on at the Bar in C.B. or B.R. and the Judge who doubted did only say, he was not fully satisfied with the current Opinion of the Books. His Doubt arose upon this, That the Cause of Refusal was not within the Patron's Knowledge. Suppose the Man had not Episcopal Orders, but pretended to them, and the Patron knew nothing of the Matter, should this Presentation prevent Lapse? And the rest were all of another Opinion. And the Books are full to this Effect: For, the Patron ought to present a Man qualified; otherwise 'tis as no Presentation; and then Lapse in Course. Suppose he had presented a [103] mere laicus, 'tis as none. Suppose he had presented a Woman as idonea persona, 'tis as none. And these Instances may seem Trivial, but our Books do mention them.
2 Roll's Abridg. 364. Kelway 49, 59. 34 Hen. 7. 21. 14 Hen. 7. 21. and Dyer 227. and Sir Symon Degge's Parson's Counsellor.
Upon the whole, the Question is, whether a Court of Law shall Repeal the Statute of Articuli Cleri? Whether the Plea shall be adjudged ill, which is in the very Words of that Statute; when the same Fact was never pleaded otherwise?
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