rather an Argument against their Prerogative: Besides, this Prerogative was never allowed till Dyer's Time; and in the old Books 'tis denied, where the King was not Patron.
In the Register 30. is a Writ Special, quod permittant nos præsentare idoneam personam ad Ecclesiam de, &c. quæ vacat & ad nostram spectat Donationem ratione Archiepiscopatus Cant' nuper vacantis in manu existentis. And another Sine titulo ut de jure, and that is General, ad nostram spectat Donationem. Another Writ is there Ratione custodiæ terra & hæredis upon a Tenure in capite. And another, Ratione forisfacturæ unius, & ratione custodiæ terræ & hæredis alterius per servitium. Another Writ pro Domino Rege & aliis conjunctim. Register 32. is another such by Reason of the Vacancy of the Archbishoprick.
'[166] 'Tis not an Answer, That the Writ of Waste is General, and the Count Special, because that is not en auter droit.
Then it was said that it is true, That where another Writ cannot be had, a General Writ and Special Count are allowable; but here a Special Writ might have been sued. And there were cited the 1 Inst. 26, 53, 54, 235, 344. 3 Cro. 185, 829. And as to the Queen and the Archbishop of York's Case 3 Cro. 340. that doth not come up to this Case; for tho' the Writ were General, and the Count in Right of the Duchy of Lancaster, yet both were as Patron pleno jure; and the Count did only shew, how the Plaintiff came to be Patron; but here they were several Rights, as distinct, as a Claim by a Man singly, and a Claim as Executor, or in jure Uxoris.
In Answer to this were cited the Precedents in Mich. 31 H. 6. Rot. 65. Pasch. 9 Eliz. Rot. 1408 or 1410. Hill. 13 Car. 1. Rot. 486. Trin. 31 Car. 2. Dominus Rex versus Episcop' de Worcester, Writ General and Count Special. Rastal 528, 530.
Merits of the Case.—Then it was argued, upon the Merits of the Cause, as it was appearing upon the Declaration and Plea and Demurrer: And therein three Queries were made, as had been by the King's Counsel below.
Three Points.—1. If the King hath any Prerogative to present upon an Avoidance by Promotion, where neither himself, nor the Bishop, was Patron, but another Subject.
2. If this Commendam Retinere, and to take the Profits to his own Use, was not a Service of this Prerogative Turn.
3. Supposing that there be such a Prerogative, and that the Commendam makes no Alteration in the Case, then if this Vacancy of this Church be subject to this Prerogative.
1. Whether the Crown has such Prerogative.—As to the first it was argued, That where an Incumbent is promoted to the Order and Degree of a Bishop, his Living or Benefice becomes void; and that where a Bishop is Patron, and the Advowson and Bishoprick are become void at a Time, there the King shall present; because while the Temporalties are in his Hands, he is lawful Patron for that Time, and consequently had a Right to present, but not by Virtue of any Special Prerogative; but only as a Temporary qualified Patron, like as a Dominus pro Tempore of a Manor may do Acts of Necessity which regularly belong to the very true Lord himself. And this perhaps gave the Colour for this pretended Prerogative; and in Truth it answers every Thing, that can be suggested from any ancient Authority, whether Precedent, Book Case, or Opinion. It is otherwise where a Subject is Patron, and the King hath no Possession of, or a Right to, the Patronage at that Time; in such Case he cannot present; and there is no Prerogative given by our Law, to warrant such a Right to that Presentation.
[167] The Reason and Foundation of the Prerogatives of the Crown.—All Prerogatives are founded upon some Reason of Benefit to the People, either in respect of the Government in general, or else of some particular Subjects: But this hath neither. And in 3 Cro. 527. 'tis agreed, that there is no Reason for such a Prerogative; but 'tis added, and the Addition is somewhat strange, that many Prerogatives have no Reason in them, or for them; and that 'tis unmannerly to inquire or doubt, if they are Reasonable; whereas it might be thought that Unreasonableness in the Matter contended for, had been an Argument against any Thing but an Act of Parliament.
In Dyer 228. Sir Henry Sidney's Case versus the Bishop of Gloucester, by
