Bishop Barlow's State of the Case, Whether any Books may be lent out of Sir THOMAS BODLEY's Library? Occasioned by Mr. Selden's soliciting the UNIVERSITY for certain MSS. out of it.  

To the READER.  
THE following Case was drawn up by Dr. Barlow, than Head-Keeper of the Public Library at Oxford, and afterwards Bishop of Lincoln, on Account of the Request made to the University by Mr. Selden, that they would lend him certain MSS. out of the said Library. It was well known that Mr. Selden had one of the most curious Collections of Books in Europe, and that to deny him would, in all Probability, be a great Detriment to the Public Library, he having declared his Intention of bestowing them upon it. But notwithstanding this, the University, upon mature Deliberation, returned him Answer, that they could not permit the Books to go out without Breach of Statute, and betraying the great Trust reposed in them. However, they told him withal, that they would, by Virtue of the absolute Power lodged in them, obtain a legal Dispensation of the Statute, that he should have Three out at a Time, provided he would give Bond of 100 l. for their Restitution. But that was so much resented by him, that he 
* See Bp Burnett's Life of Sir Matt. Hale, p. 15●6. and compare it with Mr. Wood's Account of the Matter, in Hist. & Antiq. Uniu. Oxon.  struck out that Part of his Will, by which he had given them his Books, and with some Passion declared, they should never have them. Which when the Executors saw, they stuck at the Matter a little; but having considered better of it, they came to this Resolution: That they were to be the Executors of Mr. Selden's Will, and not of his Passion; so they made good what he had intended in cold Blood, and passed over what his Passion had suggested to him.  
It is thought proper to print this Case for the Satisfaction of such Persons, who perhaps, being ignorant of the Force of the Statute, may take it as a great Affront, if, upon Solicitation, they be denied any Book out of the Library, whereas the Statute is so express, that there is no doubt the University will never attempt to dispense with it, unless upon Prospect of some such extraordinary Benefaction as Mr. Selden's, whose Books were of so inestimable a Value.   

CASE. Query. Whether any Books may be lent out of Sir Thomas Bodley's Library?  
1. SIR Thomas Bodley's Statute (confirmed in Convocation Jun. 20. Ann. 1610.) saith thus:— 
a In Append. Stat. inter Stat. Bibl. Bodl. § 8.  Statuimus, et in formam PERPETUI Edicti, et INDISPENSABILIS ordinamus; ut NULLUS de caetero, CUJUSCUNQUE LOCI, AUT STATUS, fuerit (OMNI praetextu, causa, ratione cessante) QUODCUNQUE Volumen, sive catenis alligatum, sive solutum (QUANTALIBET praestita CAUTIONE, aut Fidejussoribus, de libro bona fide redhibendo) datum, aut commodatum habeat. It is impossible to make any Prohibition more Peremptory, and Categorical;—  

1. No Book whatsoever can be lent.  
2. Nor any Person whatsoever borrow.  
3. Nor any Caution how great soever be admitted.  
4. Upon no Cause assigned, or Pretence whatsoever.  
5. And this Edict is declared Perpetual and Indispensable.  
6. And the Reason of all this Rigidness is given in the Preface to the Statute (by Sir Thomas Bodley, and the University) that they knew by many sad Examples, that such lending of Books had been a great Loss and Ruin to many Libraries.— Quoniam variis anteacti temporis exemplis, cum in Academia hac nostra, tum in aliis hujus regni partibus abundamus, undè nimis edocti sumus, QUANTAM celeberrimis PLERISQUE Bibliothecis RUINAM, et PERNICIEM, invexerit frequens Librorum COMMODATIO.   
II. It is true the Pious Founder of that Library, (who by the forenamed Statute would have it perpetually, and indispensably unlawful to lend Books out of it) hath left a supreme Power in the Convocation (or University met there) to dispense with or alter any (even this) Statute.— 
b Stat. Bodl. § 13. in calce.  Atque penes hanc Domum (Convocationis) interpretandi, immutandi, abrogandi, innovandi Constitutiones antea latas, et Decreta nostra, simulque illis addendi detrabendique; in omnem denique eventum Bibliothecae incolumitati multo ante prospiciendi, suprema authoritas semper esto.  
III. So that it is evident that the Convocation hath a supreme Authority (when to their Prudence it shall appear to be for the Behoof and Benefit, for the Preservation and Melioration of the Library) to dispense with this Statute, which the Pious Founder calls perpetual and indispensable.  
IU. But the University hath (hitherto) been so far from thinking it fit to dispense with this Statute, that she hath declared it more indispensable, and by an express Law, and Statute, made it unlawful for any to endeavour, or to propose such a Dispensation, no not in the House of Convocation itself. The Stature occurs in the 
c Stat. Acad. Oxon. Tit. X. Sect. II. § 5. De materia indispensabili.  Book of Statutes; where I observe—  
1. The Preface to that Statute, is this.— Quia ex nimia Dispensandi licentia grave incommodum Universitati antehac obortum est, Statuit Universitas, ne in posterum Dispensationes ullatenus proponantur in Casibus sequentibus.  
2. The Statute follows, where (amongst other things) it is thus decreed— Statuit ne circa supremas Benefactorum defunctorum Voluntates, aut Ordinationes eorum quascunque Universitati commendatas, nec circa Ordinationes aliquas ex Benefactorum voto vel rogatu cum Universitatis consensu, editas vel edendas, quicquam postea immutetur, vel de eodem immutando petitio aliqua in V Domo Convocationis fieri permittatur.  
So that the Obligation of this Statute considered, I conceive it (at present) utterly unlawful  
To lend any Book out of the Library.  
Or so much as to propose any Dispensation to that End in the Convocation; for that is expressly forbid in the Statute.  
Dub. But may not the University (having, by Statute, supreme Power to make, Dispense with, Altar, or Abrogate any Law which concerns the Library) Dispense with this, about lending Books out of it?  
Answ. Yes, Provided that it be done in a Regular, and Legal Way, which is set down expressly in the Statute.— 
d Stat. Acad. Tit. X. Sect. 2. § 5.  Denique Statutum est, ne in aliquo casu praemlsso, quisquam subpoena Bannitionis, Dispensationem proponat; nisi Cancellarius Praefectorum arbitrio rem permiserit; ut de Consilio maturo (in Conventu ipsorum ordinario) prius habito, ex necessaria, et perurgente aliqua causa (per Vicecancellarium, Collegiorum, et Aularum Praefectos, et Procuratores, vel majorem partem eorundem approbanda) hujusmodi Dispensationem in Domo Convocationis proponi permittant.  
By these Praemisses it manifestly appears (from the express Words, and Letter of the Statute)  
That the Statute against lending Books out of the Library, is (by the 
e Vid. Appendicem Stat. inter Stat. Bibl. Bodl. § 8.  Will of our Pious Founder) EDICTUM PERPETUUM ET INDISPENSABILE.  
And this is confirmed by the University Statute, with the Annexation of an High Penalty, making it Banishment for any to propose a Dispensation in this particular.  
And though (notwithstanding the Severity of these Statutes) the University (by her Absolute Power) have Authority to dispense in some Cases, yet never without that Legal Solemnity, and Formality of Law, which is expressed in the Statute: that is— The Chancellor must be acquainted with the Business, and he must approve, and refer it to the Heads of Houses, else no Dispensation can be proposed.  
And when he hath done this, unless the Vicechancellor, and Proctors, with the Major Part of the Heads of Houses, approve it too (and that after Mature Deliberation) it cannot yet be proposed.  
And when all this is done, unless the Convocation do approve it, no Dispensation is, or can be granted.  
V Here it may be further inquired,  
1. De Praeterito, Whether the University have Dispensed? And it is manifest She has not. For though a Dispensation was proposed and granted, yet seeing that Proposition wanted the necessary Requisits, and Formalities of Law, expressly required by Statute as Antecedent to such Proposition, therefore, 1. The Proposition was Illegal. 2. The Proposer (by Statute) Criminal, having incurred the Censure of Banishment, if the Rigour of the Statute were executed. 3. And the Concession, and Grant of the House, which followed upon these Illegalities must needs be null.  
2. De Futuro, Whether in Reason and Prudence She ought: that is, whether it may be rationally thought to be, è re Academiae, and for the Public Good of the University, to dispense with those Statutes (which our Pious Founder, and wise Ancestors made, and desired they might continue Indispensable) to gratify any private, and particular Person whatsoever.  
VI And here I shall not be so confident (or impudent rather) as to take upon me Categorically to determine this Question; that I shall leave (as of right I should) to the Authority and Prudence of the University; only I shall crave leave to offer these Considerations, which possibly may not be altogether impertinent, as to the stating of this Particular.  
1. That the University hath hitherto esteemed the Founder's Will and Statute so sacred, that they have denied to dispense with it, though to gratify the greatest Personages of this Nation. So Anno 1624., William's Bishop of Lincoln, and then Lord Chancellor of England, would have borrowed Paulus Benius Eugubinus de dirimend. Controvers. de great. & Lib. Arbit. but was denied. Again Anno 1645. King Charles (then in Oxon) desired to borrow Mr. D' Aubigne's History. Dr. Fell (the Vicechancellor) sends a Command to Mr. Rouse (than Head-Keeper of the Library) to deliver it. He goes to the King, and shows him the Statute, which being read, the King would not have the Book, nor permit it to be taken out of the Library; saying, it was fit that the Will and Statutes of the pious Founder should be Religiously observed. And April 1654. My Lord Protector sent his Letter to Mr. Vicechancellor to borrow a MS. (Joh. de Muris) for the Portugal Ambassador. A Copy of the Statute was sent; (but not the Book) which, when his Highness had read, he was satisfied, and commended the Prudence of the Founder, who had made the Place so sacred. Now would it be thought proper to lend to an Inferior Person, and deny my Lord Protector? Or can we think that Statute will not satisfy any Subject, which his Highness was so well pleased with?  
2. If the University (by her Absolute Power) should dispense with this Statute (which the Pious Founder calls in dispensable) and give Way that one may borrow; then by doing this to One, a Gap is open to All (who may be, or think themselves to be as great and good) to desire the same Favour: and if we consent and lend all; by this means the Books will be dispersed, and many Books in private Hands which were intended for the Public.  
3. Suppose three Books at a time be lent to any private Man, 'tis true, he is furnished, but 'tis manifestly to the Prejudice of the Public, the University wanting those Books, while he has them: So that if any Foreigner coming hither from abroad should desire to see them, or any at home desire to use them, both are disappointed, to the Diminution of the Honour so the University in the one, and the Benefit it might have by those Books in the other. And therefore it seems most agreeable to reason, and the Public Good (and the declared Will and Precept of our Prudent and Pious Founder) not to lend any Books out of the Library: for by not lending, private Persons only want the use of those Books which are another's, whereas by lending, the University wants the Use of those Books which are her own. Sure no prudent Man can think it fit to gratify Particular Persons with the public Detriment.  
4. The Library is a Magazine, which the Pious Founder hath fixed in a Public Place, for a Public Use: and though his Charity to private Persons is such, that he will hinder none (who is justly qualified and worthy) to come to it, yet his Charity to the Public is such that he would not have it Ambulatory, to go to any Private Person. And sure 'tis more rational that Mahomet should go to the Mountain, than that the Mountain should come to Mahomet.  
5. Lending Books makes them liable to many Casualties, as Absolute Loss, either by the Carrier's Negligence or Violence offered him by the Way: or they may be lost by the Person that borrows them; for (presuming the Person Noble, and careful for their Preservation, yet) his House may be burned, or (by Robbers) broke open (as Mr. Selden's unhappily was), or (in case they escape these Casualties) they may be spoiled in the Carriage; as by sad Experience we find; for above 60 or 100 Leaves of a Greek MS. (Num. 131.) lent out of Bibliotheca Borrocciana to Mr. Pat. Young, were irrecoverably defaced. Now what has happened heretofore may happen hereafter; and therefore to keep them sacredly (and without any lending) in the Library (according to our Good Founder's Will and Statute) will be the best way for their Preservation.  
6. If the Will, and Statute of the Founder were Religiously kept, and all lending declared unlawful, it would be a great Encouragement for Men to give more to that Magazine, when they should see the Sacredness of the Place, and from thence be sure, that what they gave should be Religiously preserved.  
7. Lastly, if the University do ratify the Will, and Statute of our Pious Founder, and declare against lending of any Book to any Person, in any Case whatsoever (except for the Press, 
* See Archbishop Land's Hist. of his Chancellorship of OXFORD, p. 73 and 79.  which Archbishop Laud and Sir Kenelm Digby allow as to their Books, in their Donations) as this will conduce to the Preservation of the Books, so 'twill free the University from Solicitations; and if any should solicit for Borrowing any Books yet he had no Reason to take it ill, if he were denied: seeing 'tis impossible that any Person of Honour and Prudence can think our Fidelity to Sir Thomas Bodley to be an Incivility to Him.