of equal Duration; and that there's as much Reason for the one as for the other: But because the King hath preferred the Patron's Friend, therefore the King shall have it; that cannot hold upon a Toties quoties when the Friend is dead, and three or four more of the King's Presenting, for by this Means the Patron may never present to his Church.
2. Whether (supposing the Prerogative) it be not satisfied by a Grant in Commendam for above six Months.—The next Query was, Whether this Commendam for above the six Months, with Power to take the Profits to his own Use, shall be a Fulfilling of this Turn, or otherwise prevent the Operation of the Prerogative on it? By this he was a plenary Incumbent after Consecration, and he had the Profits to his own Use: He was not merely the Ordinary's Deputy to supply the Cure during six Months; but hath it in his own Right, and this with the King's Concurrence.
The Prerogative could only work upon an Avoidance by Promotion; and that is upon Consecration: This becomes void at the Expiration of the Term limited.
Derived from the Pope, and not favourable.—'Tis to be considered, That this is none of the old Prerogatives of the Crown, which in a Competition are to be preferred before the Subjects Right: It is a Prerogative not to be favourably interpreted, but stricto Jure; for 'twas only taken up as a Papal Right: And so 'tis plain from 2 Roll's Abridg. 358, 359. As such a Papal Right, it ought to be interpreted stricto Jure, even by the Pope's Law, being against the Patron's ordinary Right, and so 'tis naturæ odiosæ; there might be cited Suarez and others to this Purpose: Perhaps the Pope's Right was not so much allowed here, as to make it clear with him in this Point; for Doctor and Student, cap. 36 & 37. says, that the Pope's Collation of Benefices vacantium in Curia was held to be within the Statute concerning Provisions, viz. 25 E. 3.
This Prerogative hath been construed stricto Jure here.
1. In the Case which the Lord Chief Justice Vaughan Reports, where the Crown upon the Promotion of an Incumbent to the Bishoprick of Oxford (and who by Dispensation retained his Living till Death) would have presented to the Living when it fell void, by the Incumbent the Bishop's Death; it was resolved that the [171] King's Prerogative was not to present to the next Avoidance after the Promotion; but to the next Avoidance by the Promotion, which in that Case was none; for that the Avoidance was by Death.
2. In the Case my Lord Chief Justice Dyer reports 228. the promoted Incumbent was dispensed with to retain for a Term of Years; within which Term he resigned; and there, upon the Avoidance, the Prerogative was not admitted to take place, because the Avoidance was by the Resignation, and not by the Promotion.
Now, if this Prerogative is to be interpreted stricto Jure, it will have no place in this Case, where the Incumbent promoted is dispensed with to retain for a Term of Time which is elapsed: For,
The King's Prerogative will have a very natural Construction, by admitting his Title to present to all such Avoidances, as commence immediately from and by the Promotion.
This is the Avoidance which the Law intends, and which the Law would always cause (if not hindred to operate by Dispensation); and this Avoidance is that therefore, which the Prerogative must most principally respect, and only that, if it be to be strictly taken; insomuch that were it in the sole Power of the Archbishop to grant this Dispensation, it seems the King's Title would clearly be set aside by it: Much more therefore should it be so when what the Law designs, is prevented by the Act of the King himself: For tho' the Lord Vaughan saith, That the King's Concurrence to the Dispensation is only for Formality; yet 'tis plain that the King may force the Archbishop to grant it.
Now this Interpretation of the Prerogative seems to be already made in the Case cited upon a Resignation of the Incumbent dispensed with: For (as it is there intimated) if the King's Title was not supposed to be gone, by the defeating of the immediate Avoidance, which the Law intended, but the King would not permit; it would be very strange, that it should be eluded by the Resignation of the Incumbent, to which the King was no Party: For if the King had a Prerogative to present to this new, this deferred, this adjourned Avoidance, it would be more
116
