a settled Opinion for an hundred Years is surely enough to declare the Law as to this Particular: This is sufficient Evidence to prove this Right in the Crown, there being no Judicial Opinion against it. The Reason for this Prerogative, is because the King, by the Exercise of his Prerogative in the Promotion, hath made the Avoidance, and it is but changing one Life for another, and possibly the Patron is as near the having another Presentation, as before.
Objection, that Stat. Prærog. Regis is silent, Answered. Precedents.—It was agreed that this is none of the Prerogatives mentioned in the Statute de Prærogativa Regis; but then 'twas said, That the Prerogative to present by Lapse, is not in the Statute, and yet that is admitted; so that the Omission of it there, can be no Objection; this is a Prerogative that follows a Vacancy occasioned by the Exercise of the Prerogative: For such it is to make Bishops. The King first made them by the Donation of a Ring and Staff, then by a Conge d'Eslier, the King gave Licence to choose, and approved the Person chosen, tho' not by absolute Donation, as before. By the 25 H. 8. the Crown is restored to its ancient Prerogatives, and there are Letters Missive, directing the Choice of such a Person. In Wright's Case in 3 Cro. and Moore, then was the first Time it came in Question; and it was Debated and Considered, and the Judgment upon Deliberation settled it with the King. And as to the Objection, that in Dyer 228. 'tis [183] said, That he and the rest of his Brethren thought otherwise; that Point was nothing to the Case then in Question: But however, 'tis observable that the Queen presented Anno 6. and the Patron did not dispute it, as appears in Woodly's Case. And in Owen's Rep. 'tis said, that several Precedents in Henry the Eighth's Time were searched. 'Tis true, that in 11 H. 4. 67. and 21 E. 4. 33. the King did not intitle himself by Virtue of his Prerogative, but by Reason of the Temporalties being in his Hands; those Cases can influence nothing in this Matter, because the King's Prerogative consists not in ousting of himself, but of a Stranger; it is to present in the Turn of another upon such a Vacancy, but not where he is intitled himself, there he presents by Virtue of his own Interest.
Objection, Silence of the old Books, Answered.—As to the Objection, That the old Books are silent about this Prerogative; 'twas answered, That before the Statute of Provisors 25 E. 3. the King was defeated of his Prerogative by Reason of the Pope's Provisions; and therefore the King could not have it: Whereas 'tis the Exercise of his Prerogative of Promotion, that gives him this Prerogative of presenting upon this Vacancy by such Promotion; and therefore that Statute was made to prevent all Incroachments: And tho' it was made to that very Purpose, yet the Clergy being then so strongly united to the Pope's Interest, the Kings of England could not use that Prerogative, and frequent Usurpations were made upon the Crown, till the Pope's Supremacy was denied. The 41 E. 3. 5. shews that there were such Usurpations. 7 H. 4. cap. 8. Complaint is made of them: And 5 H. 4. n. 95. Cotton 458. And thus it continued till the Statute about the Supremacy 28 H. 8. the Kings are to make the Bishops; and then consequently, in Point of Law, the Right of presenting was restored.
Then 'twas urged, That none of the old Books do mention the King's Right to present by Lapse, except in Cawdry's Case, where Notice is taken of a Case in the Time of E. 3. but that is not to be found. Bro. tit. Presentment, 61. is as much Authority for this, as that in Cawdry's Case is for the Prerogative to present upon Lapse. And this Right in Question, having been enjoyed so long, should not now have been questioned.
In 5 E. 2. Maynard 148, 198. there is one Instance of the Patron's presenting again; but then Provisions were common and usual, Walsingham 1313. so that supposing the Patron did in those Times present, the King was not concerned, because 'twas then only the Pope's Right, as was thought, and the Pope might be ignorant of the Matter. And from thence 'twas argued, that the Practise of those Times cannot be urged as Arguments in the present Case.
The King not barred by the Commendam.—Then 2. it was urged, That the King having this Prerogative, he is not debarred of it by the Dispensation to hold it, &c. nor by the Act of Parliament, nor by the King's Confirmation of it. The King by that did transfer no Right to the Incumbent, but [184] merely did continue him; and there was no Avoidance, but the same is suspended: And had the
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