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A78169 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. Barlow, Thomas, 1607-1691. 1670 (1670) Wing B843A; ESTC R232421 4,851 4

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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 then 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. Univ. 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 confirm'd 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 IV. 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 expresly forbid in the Statute Dub. But may not the University having by Statute supreme Power to make Dispense with Alter 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 expresly 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 Vice-Cancellarium 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