de Hutwet for the Church of Bingham, and sets forth that Isabel de Force, Countess of Aumerle, presented such a one, upon the Living's becoming void by Cession, viz. by the Incumbent's being made a Bishop; but never a Word of the King's Title in all the Case, or any such Prerogative as is now contended for.
And in Owen's Rep. 144. Walmesly cites a Precedent which he had seen, in Edward the Second's Time, adjudged that the King had no such Prerogative; and all that was said for it, was eight or nine Precedents, in Tradition or History, of a Patron being complemented out of his Right; but not one Law Book for it.
[169] Coke 4 Inst. 356, 357. who wrote and published much, he never mentions this Prerogative; but says that the Law is otherwise; for, upon his Observation on a Record of 24 E. 3. Rot. 25. coram Rege, Cornub',
Admittitur Episcopus Exon' pro fine 200 merc' pro contemptu in non admittendo præsentatum Regis ad Ecclesiam de Southwel; pro quo contempt' omnia temporalia Seisita fuerunt in manus Regis, & tunc temporis ante finem fact' vacavit Archidiaconat' Cornubiæ, ratione quod Incumbens Electus fuit in Archiepiscopum Dublin' in Hibernia, (Temporalibus Episcopi Exon' ad tunc in manibus Regis ezistent') per quod Dominus Rex recuperavit versus Episcopum dict' Archidiaconat'. Upon this Record he makes two Conclusions;
1. Tho' Ireland be a distinct Kingdom, yet 'tis governed by the same Law as England in these Matters.
2. That when the Arch-Deacon was by the King preferred to an Archbishoprick, he had the Presentation to the Archdeaconry in respect of the Temporalties of the Bishop of Exeter, Patron of the Archdeaconry, and not by any Prerogative.
Here 'tis observable, That my Lord Coke took it that the Patronage, by reason of the Temporalties, gave to the King this Right, and not the Prerogative.
Then his next Paragraph is stronger, If a Bishop in England be made a Cardinal, the Bishoprick becomes void, and the King shall name his Successor, because the Bishoprick is of his Patronage. All which implies, That if 'twere not of his Patronage, 'twould be otherwise, else why is that Reason added?
Objections answered.—Obj. But then say they, The Pope's Usurpation prevailed in all those Times; and the Pope had it when Provisions were in Use. But that can be no Argument to give the Crown a Prerogative; for the Pope was a Tyrant over the English Church, and by the same Reason the King may claim to be above all Laws, because some Judges said as Hank did in H. 4. quod Papa potest omnia, at that Rate no Act of Parliament shall bind the King, because the Pope thought himself bound by no Law of ours.
Besides, There were several of our English Monarchs and English Parliaments, that boldly withstood these Usurpations; and there were divers Intervals of Liberty and Freedom from that Romish Yoke, and we never read of any Exercise of this Prerogative in those Intervals.
'Tis questioned in 41 El. and in Owen's Rep. 'tis said that the Pope's Practise was no Authority to warrant a Prerogative: For they used to do strange Things, and the Clergy then made his Will a Law; and our English Lawyers have always complained of it.
Obj. There's no ancient Books that mention Title by Lapse. But 'twas answered, That in Caudry's Case, 'tis fetch'd from the Reign of E. 3. and that is no very late Reign, and Lapse is so ancient, as it appears by the close Roll 21 H. 3. in n. 12. that the Dean and Chapter pretended to it during a Vacancy of a See upon [170] an Advowson of the King's own; but it appears there by a Writ to that Purpose, that no Lapse per tempus semestre accrued on the King; which shews that 'twas old Law for the Subjects. Pryn. 2. 481.
By a Writ 8 H. 3. n. 4. Dorso, Prynne 2 Vol. 389. it appears the Archbishop of York was to present si ultra tempus sex mensium vacari contigerint, and 1 Inst. 2 Inst. and all the Books are full of it, and Doctor and Student, which is no new Book, treats of it, cap. 31. Besides, that and this are different Cases; there is a Necessity of such a Law for the Service of the Church; the King is by the Constitution intrusted with the Supreme Care of his People, both for Religion and Property; and if a Patron will not do it in reasonable Time, 'tis reasonable he should lose it, and the King present.
But to make that a similar Case, they should shew that these Prerogatives were
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