Dyer 'twas agreed, That the Queen had no such Prerogative; and he adds, quod sic alii Socii mei sentiebant; so that 'twas not his single Opinion against it, but the whole Court of C. B.
This here claimed not ancient.—Then 'twas said, that the ancient Law knew nothing of this Prerogative. All the Records, Law Books, and even Histories have been searched for the Maintenance of it, and no Footsteps can be found for it. No Bracton or Fleta, no Doctor and Student or Stamf. that treats of the Prerogative, hath any Thing of it. Now all Prerogatives are or must be Time out of Mind, or not at all: And then, if this be not so, it must be an Usurpation; and being not Time out of Mind, it cannot be a Prerogative, because not Part of the Common Law.
In the great Case, which they so much insist on, of Woodley in 2 Cro. 691. Justice Hutton, who was an ingenious Man, a good Lawyer, and a true English Judge, that argued against Ship-money, he expressly denies, that there was any such Prerogative; that the King had no Title to present, but where himself is Patron; and that there was no such Presentment till of late Days; nor any Book of Law to warrant it, but that Case which is in Bro. Abr. Presentment al Esglise, 61.
Then 'twas urged, That a few Years Practise can no more make a Prerogative, than it can Repeal an Act of Parliament. 'Tis true, that in the Report of that Case, Crook seems to admit, that Winch was of Opinion for the Prerogative, and only Hutton against it: For he makes Winch to say, That the King has an Absolute Title by his Prerogative, as well in the Case of Common Persons Patronage, as where himself is so: But as 'tis in Winch's Reports 96. where the Case is reported again, there they are both of Opinion against it; and Winch ridiculed the Opinion of Bro. Presentment, 61. as the Saying of the Bishop of Ely, who was then Chancellor, and might have Right to present to it by Force of his Place, if the King had such a Prerogative: And indeed Bro. himself makes a Remark upon it, as a Thing never heard of before, by a Quod nota.
The King hath presented to Livings of other Mens Patronages; but that was not by Force of this Prerogative; but on other Grounds, as 40 E. 3. 40. the King presented to a Prebendary, when the Prebend was made a Bishop: And the Reason of that Case makes for the Plaintiff in Error, i.e. because the Temporalties of [168] the Bishop, who was Patron of that Prebendary, was then in the King's Hands, and then the King was Patron so long, and he did present as such: So is the 41 E. 3. 5. the same as Patron having the Temporalties in his Hand: So is 44 E. 3. 24. upon another Reason; a Parson is made a Bishop, and the King presented not Jure Prærogativæ, but because that the Patron was the King's Tenant in Capite, and the Heir was in Ward to the King, and so he had Jus Patronatus in him: The King hath it, where he has the Temporalties; so is Fitzh. Grand Abridgment, Title Quare Impedit, pl. 35. the King claimed Title to present to the Provostry of Wells in the Gift of the Bishop, void upon the Provost's being made Dean, because the Temporalties of the Bishop were in the King's Hands at that Time.
The 11 H. 4. 37, 59 and 76. tho' cited on the other Side below, is a full Authority; 'tis a noted Case, the ancientest Case in our Law concerning Commendams: The Case in short is thus: The King brings a Quare Impedit, and makes his Title by the Creation of the Incumbent to be a Bishop. There was some Debate on the Declaration; but the Defendants plead, that the King granted the Temporalties to the new Bishop, before the Living became vacant. Then the King waves that Declaration, and betakes himself to another Title, and Declares on the Statute of Provisors, because the Pope had usurped a Power which that Statute denied him; and there's no Judgment in the Case upon the first Point; but 'tis most clear, that the King's Counsel in that Case were of Opinion against this Prerogative; because they did not stand to that Title, but amended their Declaration, and took to another.
This Point was directly to have been judged in the Case, if they had thought fit to abide by it: So that 'tis plain that they took the Plea to be good, if the Temporalties were in the King's Hands, then the King was to present; if not, that he had no such Prerogative. And this is a great Authority, that the King had no such Prerogative, because he waves the Title and goes to another.
5 E. 2. Maynard 148. Hugh de Courtney brings a Quare Impedit against Thomas
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