Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol I).djvu/406

 390 an action at law be brought by the patron againt the bihop, for refuing his clerk, the bihop mut aign the caue. If the caue be of a temporal nature and the fact admitted, (as, for intance, outlawry) the judges of the king's courts mut determine it's validity, or, whether it be ufficient caue of refual: but if the fact be denied, it mut be determined by a jury. If the caue be of a piritual nature, (as, herey, particularly alleged) the fact if denied hall alo be determined by a jury; and if the fact be admitted or found, the court upon conultation and advice of learned divines hall decide it's ufficiency. If the caue be want of learning, the bihop need not pecify in what points the clerk is deficient, but only allege that he is deficient : for the tatute 9 Edw. II. t. 1. c. 13. is expres, that the examination of the fitnes of a peron preented to a benefice belongs to the eccleiatical judge. But becaue it would be nugatory in this cae to demand the reaon of refual from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bihop returns the clerk to be minus ufficiens in literatura, the court hall write to the metropolitan; to reexamine him, and certify his qualifications; which certificate of the arch-bihop is final.

the bihop hath no objections, but admits the patron's preentation, the clerk o admitted is next to be intituted by him; which is a kind of invetiture of the piritual part of the benefice: for by intitution the care of the ouls of the parih is committed to the charge of the clerk. When a vicar is intituted, he (befides the uual forms) takes, if required by the bihop, an oath of perpetual reidence; for the maxim of law is, that vicarius non habet vicarium: and as the non-reidence of the appropriators was the caue of the perpetual etablihment of vicarages, the law judges it very improper for them to defeat the end of their contitution, and by abence to create the very michiefs which they Rh