THE Master of the Temple A bad a LAWYER, AS THE Dean of Paul's Is a DIVINE.  
IN A Letter from a Gentleman of the Temple, to his (quondam) Tutor in Oxford.  
About the Law-Part of Dr. Sherlock's modest Examination of the Oxford Decree.  
LONDON: Printed, and Sold by E. Whitlock, near Stationers-Hall, 1696.   

A Letter from a Lawyer in the Temple, to his (quondam) Tutor in Oxford.  
SIR,  
THough it be some time since I left the University, yet my Obligations to it continue fresh upon me. I have still (and ever shall have) the same Concern for its Honour and Interest, that I had when I was actually a Member there. In Truth, the Socinians, the Tritheists, and Latitudinarians both in Opinion and Practice, increase so fast in this Town, that they frequently provoke a Wish for my Return thither. For, notwithstanding the Calumny and Reproach which Heretics and Dissenters have cast upon that Seminary of Learning and Virtue, in Contempt of the Public Opinion of the greatest part of the Christian World; yet I must declare, that I observed Probity, Good manners, and Religion, more Visible and Exemplary in that Place, than they can be pretended to be amongst Us here.  

SIR,  
I cannot but with great Concern Acknowledge, that Your Pulpits are more earnest in Recommending Practical Piety than Ours, notwithstanding the Youth of those who generally fill 'em. Our Master entertains us of late with such Arguments and Concessions about Christianity, that Infidels seem rather encouraged than convinced by his Reasonings. One while he confesses the Souls of Brutes to be Immaterial, and anon he supposes some hidden unrevealed Decree of the Deity for their Annihilation at Death; and yet again argues from the Immateriality of an Human Soul, that the same is necessarily Immortal, and must endure to Eternity. These, and such like Discourses from the Pulpit, fill the Coffeehouses about Us, upon Sunday Evenings, with many Wild Disputes concerning a future state: And in truth, the Deans Sermons, together with three of his Old Friend's, viz. One, concerning the Temporary Duration of Hell-Torments; and to prove, that God is not obliged to fulfil his Threaten, but that, on the contrary, it may be for his Honour to be better than his Word: A Second, concerning the Concealment of a Man's Christianity under a Mahometan or Pagan Government, rather than disturb it: And a Third, concerning the Perfection of True Wisdom (if a Man can hit it) in the Practice of an appearing freedom and openness, with a Resolute Reservedness, as little appearing as is possible: These, I say, have given such Subjects of Discourse to the Youth of this Place, that 'tis scarce Imaginable how much the Number of the Pretended Wits and Atheists is of late increased.  
But Sir, the informing you in these Particulars was not the Design of this Letter; though I could not forbear Complaining of the Decay of Religion, to You, whose Prayers may assist to stop it, and to beg of God the Forgiveness and Reformation of those, who occasion or promote it. What I intent by this Paper, is, to show my Duty and Filial Regards to my Mother University, by making a short Observation, or two, upon the 7th Page of our Dean's satire, on the Proceed about Mr. Bingham's Sermon.  
I shall not presume to venture upon any Argument about the Opinion Censured. My Reverence for your Knowledge in these Matters, and the Application of my Studies another way, do expressly forbid it.  
That which I here offer to your Consideration must be agreed proper to the Profession I am now engaged in, viz. An Essay, to prove, that the Vice-Chancelour, Bp. of Oxford, and Heads of Houses there, have not incurred any Praemunire, or other danger, to themselves, or the University, in their late procedure about the Sermon abovementioned: And (to tell you my Opinion freely in this matter) if the Dean's Divinity be no better than his Law, I think him deeply engaged to the Legislative Power, which took away the Writ de Haeretico Comburendo. He is pleased to insinuate, That you ought to have advised with men of Skill, how far your Irregular and Unstatutable Proceeding might affect you. I take the thing to be so very plain, that you needed no Consultation with Lawyers beforehand, nor afterward neither. But, since the menaces pronounced have proceeded from a Person, whose Station and Converse suppose him advised by men of Skill, Some, on your behalf, have considered the matter; and I find the Templars to smile at the Deans Presumption, in pretending to impose on the World (especially on his Neighbours, the men of the Law) a Proviso, in an Act of Parliament, which stands repealed by a subsequent Act; and upon which Repeal the greatest miscarriages of the Last Reign are Founded. For, in truth, the Suspension of the B. of London, and the Business of Magdalen-Colledge were no miscarriages, but upon that supposal, viz. That the Act in the First of Elizabeth, erecting an High-Commission-Court, was a New Law; and that therefore being repealed, any the like Commission was Illegal. Thus, I am sure, the Opinions and Complaints ran, before, and at the Arrival of his Present Majesty.  
It is not easy to imagine from whence he could have received this Notion, unless it were from Bp. Cartwright's Book, who for his own Justification, maintained that Law to be but Affirmative of the Old Common Law of England. And yet even that Supposition, were it true, would not answer the Deans Purpose, as will appear by and by.  
I believe, You Sir, who are a good man, will be apt to think, that it Savours strongly of Prevarication to Print part of a Clause, and omit the most material words in it, which are placed in the midst of the Paragraph, and could not well be overlooked, but by one that was resolved to overlook 'em, because it was for his purpose to do so. Yet this little Piece of Art the Dean has stooped to, as you shall see presently: which is the more remarkable, because he has Printed the Words of the Act in a different Character; which, amongst ingenuous Persons, I think, supposes a Literal Recital.  
This way of Dealing I confess, as odd as it is, is not wholly without a Precedent, (whether it will warrant or justify our Master I shall leave you to determine,) but he has the Honour of following the example of a Reverend Prelate, who upon a certain occasion thought fit to launch out of his Profession, and argue a Law-Point: to prove his Argument he quoted a Charter, but was pleased to repeat only half the words of the sentence, and then stopped short, omitting these, Salva Persona nostra, Regina nostra, & Liberis nostris, donec emendatum fuerit; & quandocunque Emendatum esset, intendent nobis sicut prius: Matthew Paris can give you the whole in King John's Reign; but the mischief is, the latter words, if inserted, would have spoiled the force of that inference for which the Quotation was used, and we are not to expect from either of 'em that they should every day answer their own Arguments. This Practice is too often observable in the Discourses of Those, who, to show their Reading, endeavour to fetch Arguments from Professions, in which they were never Educated, or not sufficiently Studied.  
Sir, I must beg you, not to construe this Reflection as general: For it must be acknowledged, that Your Gown doth afford many instances to the contrary; and particularly, the Universal Learning, and apparent Sincerity of the great Bishop of Worcester, is a notorious exception to these Remarks. He must be owned to have read more of our Law-Books than, perhaps, any man that is not a Lawyer; and to have employed what he has read Knowingly and Fairly. But as 'tis plain our Dean has no pretence to the First Part of this Character, so whether he has any to the Latter, or not, you are to judge upon what follows.   

The Case is thus.  
A Sermon is Preached at Oxford, in which there is a Passage complained of, as giving occasion of Offence. The Vicechancellor Convenes several Heads of Houses, amongst which were more than six Doctors of Divinity. They Judge, Declare and Determine these Propositions (that there are Three Infinite Distinct Minds and Substances in the Trinity; and that the Three Persons in the Trinity are Three distinct Infinite Minds or Spirits, and Three Individual Substances) to be False, Impious, and Heretical, dissonant, and contrary to the Doctrine of the Catholic Church; and especially to the Doctrine of the Church of England publicly received. Wherefore they do Command and publicly Enjoin all and singular, the Persons committed to their Care, not to publish for the future any such Tenet in their Sermons, or otherwise.  
The Question now, upon this Case, is, Whether the Vicechancellor and Heads of Houses have been guilty of any Crime, according to the Laws of this Realm, either Ecclesiastical or Civil, or by the Statutes of the University?  
I say, that the Negative is plain. For, first, this is not a Judicial Proceeding, in order to punish the Person who had publicly maintained these Propositions, but a Declaration rather of their Opinion by way of Caution, to the Members of the University under their Care: The Wherefore, in he Close, doth plainly show their honest and justifiable intent and design. And no man can have the Forehead to assert, that Twenty Men may not deny the Notion in Debate to be true, with as much Freedom, by our Law, as Two or Three may affirm it. Nay, if it was their Judgement and Opinion, as undoubtedly it was, the Morals even of a Lawyer will assure the Dean, that it was their Duty to declare so, in order to prevent the Growth of the supposed Error, or Heresy among those committed to their Charge. The Judgement of Universities hath been Frequently and Legally declared upon Less Occasions, even upon the Printing of Pamphlets, though out of their Precincts, and by Persons not under their Care. Their Power hath, with Allowance, been extended to forbid the Reading of Erroneous Treatises; and how comes it to be a Crime in them then to Censure, what is publicly Preached before them, by One of their Own Members?  
But suposing it to be a Judicial Proceeding; yet their Statutes are their Warrant for it. The plain words of which are, Haeretici, Schismatici, & quicunque alii minus recte de Fide Catholica & Doctrina vel Disciplina Ecclesiae Anglicanae sentientes, usque tam Conciones quam Libri quibus malesanae opiniones propagantur cohibeantur. And this is entrusted Judicio Vicecancellarii, assidentibus Ipsi Praefectis in Ordinario suo Conventu. Thus runs the Statute, de Authoritate & Officio Vicecancellarii. There is another Statute as to Sermons, and that runs thus, Siquis pro Concione aliqua, intra Vniversitatem ejusve Praecinctum habita quicquam doctrinae vel disciplinae Ecclesiae Anglicanae publice receptae dissonum aut contrarium protuerit, sive protulisse ab ipso Vice-Cancellario suspectus, vel alio aliquo rationabilem suspicionis Causam afferentedelatus fuerit; the Vicechancellor may thereupon proceed, adhibito Consilio Sex aliorum S tae. Theologiae Doctorum (quorum Vnus sit S tae. Theologiae Professor Regius, si concioni interfuerit.) There is not a step they have taken in this Affair, which is not according to the Power granted to 'em in these words. And I wonder therefore what the Dean means by reproaching their Proceed as Irregular and Vnstatutable. There seems to be a Fate upon him in misunderstanding and misrepresenting every thing that carries the Name of a Law; for he deals just as skilfully, and fairly with these Local Statutes, as he does afterwards with those of the Realm.  
If then these Statutes of theirs are valid, they are an Ample Warrant for what they have done: And Valid they are, unless they are contrary to the express known Laws of the Realm, which I shall prove 'em not to be immediately. In the mean Time, supposing there were an Error in their Proceed, it is but the Error of a Judge at most, which is never Criminal by any Law in the World (unless Corruption attend the Senrence) where the Person and the subject Matter are within his Jurisdiction. Now, in both Respects, That is the Case here. 'Twas a Member of the University that maintained the Proposition censured, 'twas in a Sermon preached before the University. The subject matter of the Words relates not to the Temporal Government, but merely to an Opinion in Religion, to an Article of Faith: And it must be agreed, that Sermons before them, and the Doctrines delivered in those Sermons, are under their Cognisance. Now supposing the Censure to be a Mistake, no Man of sense but the Dean, will pretend that this mistake is a Crime: It only gives Cause of Appeal to some Superior Judge, in Case the Constitution allows one; as Ours, both in Civil and Ecclesiastical matter, doth in most Particulars.  
There are but few Cases of any kind or Nature whatsoever, where the Law hath empowered a Final Determination in the first Instance: Even in Colleges and Universities there are Visitors, and in most Cases, Appeals from the first Order or Sentence. Mankind doth so generally agree this to be reasonable, in consideration of our obnoxiousness to Error, that Appeals are deemed Remedies approved by the Law of Nature; and in this, Divines, Canonists, Civilians, and Common-Lawyers do all agree: And, if so, with what Colour can the Dean insinuate, that this Proceeding hath brought either the Persons concerned, of the University, into any danger, supping if contrary to the Laws of the Realm.  
The next thing to be considered, is, whether any Law of the Realm doth control or overrule this matter?  
The Dean says, that such Declarations are not fit to be entrusted with any Body of Men less than a National Synod. I shall not dispute about Convenience; though, with submission to better Judgements, Our Constitution can hardly admit of any Alteration, but for the worse. But the question is how the Law stands?  
The Objection is from the 1st of Eliz. Cap. 1. Upon which the Dean says. We find the power to order, determine, or adjudge any matter or Cause to be Heresy, restrained only to such as heretofore have been determined, ordered or adjudged to be Heresy by the Authority of the Canonical Scriptures, or by the first Four General Councils, or by any other General Council, wherein the same was declared Heresy by the Express and plain Words of the said Canonical Scriptures; or such as hereafter shall be ordered, judged, or determined to be Heresy, by the High Court of Parliament of this Realm, with the assent of the Clergy in their Convocation. This is his Quotation: Then he goes on thus, And if the King could not grant a greater Authority than this to his High Commissioner for Ecclesiastical Affairs, it is not likely that any other Body of Men have it. And my Lord Coke says, That this is a direction to others, especially to Bishops, in their adjudging Heresy, 3 Instit. pag. 40. And how they have obseryed this Law in their Decree, they had best consider.  
To which I answer; That, were this Law in force, and did it concern them, yet for the Reasons above mentioned, 'tis no more than an Erroneous Judgement, as we have seen many on the 25 E. 3. and reversed with abhorrence; and yet the Judges not deemed offenders, because they were not so Wise as their Superiors, who were of another Opinion. But his Emphafis lies on the last words, They had best consider how they have observed that Law. You, Sir, know best, whether the Position be declared Heresy by any of those Councils: But, I'm sure, I know, that there is no such Law in force; and, if there were, yet it concerns not this matter. First, It no ways concerns this Procedure, but only a Legal Process upon a Person for Heresy, in order to his being condmned, and delivered over to the Secular Power, to be burnt. In the next place, it concerns only the High-Commissioners, and none else; it was not intended to oblige even the Bishop of a Diocese in his Ordinary Proceeding. 'Tis true, Coke says, That it may serve for a good Direction to Others, more especially to a Diocesan, being sole Judge in so weighty a Cause; but he doth not say it obliges him, nor can He, or any body else pretend it does: much less doth Coke say, that it extends to a Vice-Chancellor's Government of the University, with the Assistance of the Heads of Houses, or Doctors of Divinity: Neither Diocesans nor Universities are mentioned or intended, as appears by the whole Contexture of the Act.  
But suppose the Act were Directory, nay, Compulsive upon a Diocesan (which 'tis not) doth it follow that the Direction extends to Universities also? The meaning of a Law is, to be extended no further than the Words of it, and not strained, to take in Parallel-Cases and Remote Consequences. Then, consider the Reason of the thing; May not the University be allowed to censure a Member for Heretical Words, though they should not be such as contained Heresy condemnable by the Ordinary? May they not caution against a Doctrine as Heretical, for which the Ordinary cannot Sentence in order to Death? The Punishment of Heresy at the Time, when this Statute was in force, was Fire: Suppose the Bishop obliged by this Law now, yet he could not punish such Heresy as was within it, but upon a contumacious Adherence of the Offending Party to his Opinion. Does it follow from thence, that the University may not Censure other Words, which do not strictly come within the Statute, as Impious and Heretical? Nor reprimand one of her own Members for using 'em?  
But this is a Debate upon Suppositions only, and those utterly false. For Coke himself tells us, in the First words of the very Sentence quoted by the Dean, that the Act extended only to the High-Commissioners, which were appointed by the King in pursuance of it. So that if the Dean had Printed the whole sentence, as it lies in my Lord Coke, he would not have been capable of raising so much as the shadow of an Argument from it. How this agrees with the Common Rules of sincerity; the Dean, who understands how to reconcile every thing to every thing, may please to tell us; for I dare say, no body else can.  
However, take it again as he would have it; and let us see what follows. Because this is a Direction to Bishops in their Dioceses (whereas Coke only says, It may serve for a good Direction to 'em, in so weighty a Cause; and so, That's not very fairly quoted neither) because this is a Direction to the Ordinary; therefore, What! Therefore, you had best consider, how You have observed that Law, which does not concern You! O the Power of No-Logic and No-Law, met together!  
As he eclipse Coke's Opinion, so he maims the very Paragraph of the Act of Parliament, upon which he found'st his employed Menace. For, as it lies in the Act, it is a Restraint of the Power, which the High-Commissioners were to have, by Virtue of the King's Letters Patents, and of that Act. The words are, by Virtue of this Act, and these he omits. Now this Proviso implies, that, if the Proviso had not been added, the General Purview had given them a greater Latitude and Power; for otherwise the Proviso had been useless. The General Purview, giving a Power to exercise Ecclesiastical Jurisdiction, it must be supposed, that Ecclesiastical Jurisdiction might declare and punish other Heresys, than what are mentioned in the Proviso; and the Provisoes being restrained only to those Commissioners, shows, that the Lawmakers' thought other Heresys might be declared and punished, than what are there mentioned: Tho they would not permit These Commissioners to declare any other.  
But further, If there be a Repeal of the Clause which enacts the High-Commission-Court, (as there is by the 17 Car. 1. Cap. 11.) the Proviso, in restraint of these Commissioners, is, and must be Repealed too. This Natural Reason and Common sense might have taught the Dean, without his resorting to the Temple Library, or consulting his Men of Skill about the matter. For either that power of Erecting an High-Commission-Court was in affirmance of the Common-Law, or introductive of a New Law. If the former, as was Argued in the last Reign; yet, even then, this proviso being restrained to such Exercise of Ecclesiastical Jurisdiction by Letters Patents by Virtue of that Act; the same can never extend to other Ordinary Acts, or Exercise of Jurisdiction, without a special Commission, because the words have so restrained it. And if the Power of that Court were New, and Created by that Act, as all the Dean's Lawyers do, and must contend; then the Court being gone, the Proviso in restraint of it is vanished too. So that at last here is no 1 Eliz. cap. 1. left for the University to consider; and the Dean has dealt with Them, as the World often has with Him; has thrown away his Advice upon 'em to no purpose.  
It is News to Me, Sir, and will be so to the World, I believe, what you tell me, with regard to the Reprimand, supposed to have been given lately to the University. It has been talked very confidently of here in Town, as a thing past Dispute, and the Dean, I assure you, has taken Heart upon't, and (according to his way) defied all the World more than once from the Pulpit in the strength of it. And 〈…〉 send me word, That it does not at all 〈…〉 the Meeting of the Heads of Houses, or of the University, that any such Reprimand, so much talked of here, has been sent: And this, you say, I may depend upon, as certain.  
You surprise me, Sir, and I believe what I am going to say, will as much surprise You. You tell me, that it is taken for granted at Oxford, that the Judges of England have given their Opinions in Prejudice of the Vniversicy, and their Proceed.  
You may be aftured, that this Report, as loud and as largely spread as it is, is scandalous and groundless. You may be assured of it, I say, both from the known Law of the Realm, and from the known Honour and Probity also of the Persons filling those Places. For by our Law, the Judges are not to give any Opinion out of Court, upon any Matter, that may possibly come before 'em in Judgement; and if they do, 'tis an Irregularity in their Behaviour; an Indecency, seldom committed, but never owned. For such Opinions, being Extrajudicial, are not upon their Oaths; and are neither obligatory to themselves, nor valued by others. 'Tis a Reproach upon the King to suppose their Opinion asked in this case. Many of 'em, I am sure, when requested by Ministers, upon greater occasions than this, have refused to give it, as in Justice and Honour it became 'em; and would therefore, if they should have been asked upon this, have certainly denied it. Shipmoney, and Non-obstante's, and Quowarranto's had some such Preliminary Interrogatories about Opinions; but Experience tells us, that the Nation would not bear it: Besides, These Gentlemen now on the Bench are not quite so Dependent on the Crown, as the Beneplacito Men were.  
'Tis true, they are bound to advise the King, when required: But that cannot be concerning an Act already done by the Subject, whether Lawful or Criminal? For in these Cases the King hath his Sergeant, his Attorney, Solicitor, and other Counsel, Learned in the Law, to advise w●●●.  
You may depend upon't therefore, that nothing of that Nature can have been done or attempted, as peremptory as the Dean's Creatures have been upon 〈◊〉 ●ccasion.  
So that, upon the whole, think you need not sneak to any Socinian, Tritheist, or Latitudinarian whatever, upon the account of the evil Consequences that may attend your Conduct in this matter. Fools and Cowards may blame you for having gone so far; but with Wife and Honest Men, your only Fault will be, if you go no farther.  
Sir, I might enlarge upon the Powers and Privileges of the University, in respect of declaring Doctrines to be Erroneous; and I could find Materials enough from good Histories, Reports, and Journals, and those approved by Lawyers, for that purpose: But at present, I think it enough to have answered the Dean, till he shall be pleased to give further occasion by Writing about Law Points again.   
I am, Sir, Your most humble Servant. Feb. 3. 1695.