If an action at law be brought by the patron againſt the biſhop, for refuſing his clerk, the biſhop muſt aſſign the cauſe. If the cauſe be of a temporal nature and the fact admitted, (as, for inſtance, outlawry) the judges of the king's courts muſt determine it's validity, or, whether it be ſufficient cauſe of refuſal: but if the fact be denied, it muſt be determined by a jury. If the cauſe be of a ſpiritual nature, (as, hereſy, particularly alleged) the fact if denied ſhall alſo be determined by a jury; and if the fact be admitted or found, the court upon conſultation and advice of learned divines ſhall decide it's ſufficiency[1]. If the cauſe be want of learning, the biſhop need not ſpecify in what points the clerk is deficient, but only allege that he is deficient[2]: for the ſtatute 9 Edw. II. ſt. 1. c. 13. is expreſs, that the examination of the fitneſs of a perſon preſented to a benefice belongs to the eccleſiaſtical judge. But becauſe it would be nugatory in this caſe to demand the reaſon of refuſal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the biſhop returns the clerk to be minus ſufficiens in literatura, the court ſhall write to the metropolitan; to reexamine him, and certify his qualifications; which certificate of the arch-biſhop is final[3].
If the biſhop hath no objections, but admits the patron's preſentation, the clerk ſo admitted is next to be inſtituted by him; which is a kind of inveſtiture of the ſpiritual part of the benefice: for by inſtitution the care of the ſouls of the pariſh is committed to the charge of the clerk. When a vicar is inſtituted, he (befides the uſual forms) takes, if required by the biſhop, an oath of perpetual reſidence; for the maxim of law is, that vicarius non habet vicarium: and as the non-reſidence of the appropriators was the cauſe of the perpetual eſtabliſhment of vicarages, the law judges it very improper for them to defeat the end of their conſtitution, and by abſence to create the very miſchiefs which they
