reasonable to allow it to be hastened, than defeated by such a Resignation before the Time.
This Prerogative ought to admit such a Restriction from the Reason of the Thing, and from the Consideration of the Inconveniences which may otherwise follow.
To the Subject. A Patron might be content to let the King exchange a single Life, and put in a Clerk in the Place of one removed, much rather than that the Living should be held on by one in Commendam, that from thenceforth would be sure to leave it, and be absent for a better Residence in a Palace: Yet they may as they have Reason, think it too hard, that the King should, as it were, let a Lease of it first, and afterwards put in his Clerk for Life. And tho' the King doth commend here but for a small Time, yet he may for a longer. He may perhaps, as the [172] Pope did often, dispence with the Bishop to hold durante bene-placito, and when the Incumbent is in Danger of Death, then present another; so as the Patron may have his own Clerk not removed, as was first intended, but dispensed with, to wear out his Life in the Benefice, and yet after all have another put in.
The Crown may have Inconvenience by the straining of it further than this. For all Strains weaken, if not break the Thing it self.
This Opinion of theirs arises from the Principle my Lord Vaughan lays down, That a Commendam neither gives nor takes away Right, but only is a Dispensation to hold, and he continues Incumbent still, and it prevents an Avoidance; and if so, why should it not also prevent the Operation of the Prerogative too?
As to the Case of Woodley, 2 Cro. 691. they say 'tis Law, to prove the other Point for them: If it be Law for them in that Point, 'tis Law against them in this. That a Dispensation ad retinend' prevents the Grantee of the next Avoidance: The Case was thus; a Man hath a Grant of the next Avoidance, the Incumbent is promoted, but with a Commendam Retinere for six Years, and dies, the Grantee shall not present, because he is to have the next Avoidance only, and no other: 'Tis the Words of the Book, that when the Incumbent is created a Bishop, and the King Presents, or Grants, that he shall hold it in Commendam (which is quasi a Presentation) and he is thereby full Incumbent, and may plead as an Incumbent; if the Grantee of the next Avoidance do not then present, he hath lost his Presentation: for he ought to have the next, and he cannot have any other.
Now if this be so, that a Commendam Retinere hath so much of a Grant in it, and is so equivalent to a Commendam ad recipiend', that it will set aside and frustrate a Grant of the next Avoidance, and be it self taken for a Presentation to the next Avoidance against the Grantee; by the same Reason it must be taken so against the King, as a Presentation to an Avoidance, and consequently his Turn is served by it.
Inconvenience of Commendams.—Much might be said against those Commendams, as promotive of Pluralities, and tending to the Ruin of the Church; and this out of our own Law-Books: But it is not material at present. 'Tis however to be observed, that this is not a Commendatory for six Months, during the Time that the Patron may forbear to present; such Person continued then, is only Commendatorius under the Bishop to provide for the Church, as 'tis his Duty to take care of it during that Time.
3. Admitting the Prerogative, and that the Commendam doth not satisfy it, whether the present Case be within it.—Admitting that the King hath such a Prerogative; and that this Commendam, tho' it gives the full Perception of the Profits, is not a Fulfilling of the King's Turn, nor doth any way distinguish the Case, or exempt it from the Prerogative; yet this is a Case not within it. And this doth appear of Mr. Attorney's own shewing in his Declaration upon the King's Behalf: He hath set it forth to [173] be a Parish newly created by Act of Parliament, a Thing not in esse before. It appears by the Declaration what that Act is; it must be taken as 'tis there set forth; to this Declaration the Bishop hath demurred: Now if by that Declaration it appears that the Bishop, and not the King, is rightfully intitled to present upon this Avoidance, the Judgment will and must be accordingly for the Defendants.
Mr. Attorney, by his Count, doth agree an Avoidance within this Act of Parliament, by the Promotion of Dr. Tennison; and Mr. Attorney doth likewise admit
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