nity and office of the archbishoprick or bishoprick so being void, and none other: and if they do defer or delay their election above twelve days next after such licence or letters missive to them delivered, that then for every such default the King. at his liberty and pleasure shall nominate and present, by his letters patent under his great seal, such a person to the said office and dignity so being void as he shall think able and convenient for the same; and that every such nomination and presentment to be made by the King, if it be to the office and dignity of a bishop, shall be made to the archbishop and metropolitan of the province where the see of the same bishoprick is void, if the see of the said archbishoprick be then full, and not void; and if it be void, then to be made to such archbishop or metropolitan within this realm, or in any the King's dominions, as shall please the King's highness, his heirs or successors: and if any such nomination or presentment shall happen to be made for default of such election to the dignity or office of any archbishop, then the King by his letters patent under his great seal shall nominate and present such person as he will dispose to have the said office and dignity of archbishoprick being void, to one such archbishop and two such bishops, or else to four such bishops within this realm,. or in any the King's dominions, as shall be assigned by his Majesty." This statute was afterwards repealed by 1 Edw. 6.. c. 2. which enacted, that all bishopricks should be donative as formerly. It states in the preamble, that these elections, "are in very deed no elections; but only by a writ of congé d'elire have colours, shadows or pretences of election (a)." This is certainly good sense. For the permission to elect. where there is no power to reject, can hardly be reconciled with the freedom of election. But this statute was afterwards repealed by 1 Ma. st. 2. c. 20. and other statutes, and consequently the 25 H. 8. c. 20. was thereby revived (b). But the bishopricks of the new foundation were always donative (c), as also are all the Irish bishopricks by the 2 Eliz. c. 4 (d).

(a) See 1 Burn, Eccl. Law, 202. (b) 12 Co. 7.

(c) Harg. Co. Litt. 134.

(d) 1 Bla. Com. 379. n. 7. Christian's edition. The proprietor of the Isle of Man was patron of the bishoprick there, but the Archbishop of York

did not consecrate him till the broad seal of the King's consent was produced. Johns 29. As to the power of the archbishop to consecrate, &c. bishops in the King's foreign dominions, 26 Geo. 3. c. 84.

Every archbishoprick and bishoprick in England is of the King's foundation (a); and Lord Coke establishes the right of donation in the Crown on that principle (b).

As patron paramount of all the benefices in England, the right and care of filling all such churches as are not regularly filled by other patrons, belongs to the Crown; whether it happen through the neglect of others (as in the case of lapse) or through incapacity to present, as if the patron be attainted or outlawed, or an alien, or have been guilty of simony, or the like (c). Upon which ground the King hath right to present to all dignities and benefices of the advowson of archbishopricks and bishopricks during the vacation of the respective sees. Not only to such as become void after the seizure. of the temporalities, but to all such as become void after the death of the bishop; though before actual seizure. And as it is a maxim in law, that the church is not full against the King till induction; therefore though the bishop hath collated, or hath presented, and the clerk is instituted upon that presentation, yet such collation or institution will not avail the clerk, but the right of presenting devolves to the King (d). And it is said, that this privilege which the King possesses of presenting by reason of temporalities of a bishoprick being in his hands, shall be extended unto such preferments, to which the bishop of common right might present, though by his composition he has transferred his power unto others: and therefore when the temporalities of the archbishoprick of York are in the King's hands, the King shall present to the deanry of York, although by composition between the archbishop and the chapter there, the chapter are to elect hin; and this because the patronage thereof de jure doth belong to the archbishop, and his composition cannot bind the King, who comes in paramount as supreme patron: for of the whole bishoprick the King is supreme patron, although it be dismembered into various branches, as deans and other dignities; and of ancient time all the bishopricks were of the King's gift, but afterwards the King gave leave to the chapters to elect; yet the patronage notwithstanding remains in the King (e).

(a) 2 Inst. 3.
(b) 1 Inst, 134, 344.
(c) Gibs. 763.

(d) Ibid. Wats. c. 9. Co. Lit. 388.

(e) Wats. c. 9. 2 Roll. Abr. 343. Where

Where the parson of a parish is consecrated (a) a bishop, he thereby vacates his benefice and other dignities, and the King who thus occasions the vacancy has the prerogative right of filling all the presentative benefices and dignities thus vacated (b). Lord Chief Justice De Grey, speaking of this right (which is in general exerted by the archbishop of Canterbury by the command of the King, but may it seems be exercised by the King himself singly) observes (c), that "it appears in Bro. Presentment 61. to be as old as Edward the Third's time. It was exercised under Hen. 8. and Queen Elizabeth. The law concerning it was doubted in Charles the Second's time, and since, but finally determined in favour of the Crown in King William's time, King and Bishop of London (d). This is not a right of patronage in the King; nor is it a right of eviction; for it ejects nobody: nor an usurpation; for it is a rightful act. But it is a contingent casual right, arising upon a particular event, the incumbent's becoming a bishop." The patron is not materially prejudiced by this prerogative, as it only occasions the exchange of one life for another.

On a vacancy taking place by the incumbent being made a bishop, the King may also before the title to the bishoprick is complete by the consecration of the bishop, and though the advowson belong to a common person, and without his consent, grant to the bishop a commendam retinere, or faculty to retain, thereby committing the vacated benefice to his care and possession to live as before, with the bishoprick (e).

Where the benefice, being void (f), is in the gift of some other patron than the King, and his Majesty grants the dispensation after the Bishop has been consecrated, the commendam is called not a commendam retinere, but a commendam capere; and the patron's consent is necessary to the dispensation, and must be given in an authentic manner and mentioned therein (g). The rule is, that no commendam can be granted but with the consent of the patron. In granting a commendam retinere the King, who is patron by the promotion, signifies

his consent by his mandate to the Archbishop to grant dispensation.

A commendam may it seems be temporary or perpetual, at his Majesty's pleasure (a). When a commendam is limited to a certain time, the King shall present by prerogative at the end of the term, notwithstanding the previous grant of a commendam; unless it happen that the commendatory Bishop die or resign before the expiration of the term; for in such case, the church becoming void not by cession but by death or resignation, the turn of the Crown is served, and the patron, whoever he be, shall present (b). It is likewise served, if the commendam was originally unlimited, that is (according to the language of the faculties) during the life of the person and his possession of such see; because this amounts to a presentation, and therefore in this case also the right of the Crown is served, and the patron shall next present (c). But if a Bishop who is possessed of a commendam is translated to another see, and so a new title accrues to the Crown by a new promotion, the same commendam may be continued, if the King please; but it must be by a new dispensation, granting it to be held with the new bishoprick (d).

Commendam temporary in retinere may be renewed and prolonged: that is to say, before the original incumbency ceases by the expiration of the first dispensation, a second dispensation may be granted to prevent the avoidance and continue the incumbency (e).

Where the advowson is in common, so that the patrons are to present by turns, the prerogative presentation does not pass for the turn of the otherwise rightful patron; for the prerogative right does not supply, but only suspends or postpones the turn of the patron, and of all the patrons, if more than one, and doth not take away the right of the one, and leave the rest entire; for that would be rank injustice, and this, being

(a) Gibs. 914. 2 Burn, Eccl. Law, tit. Commendam, page 6.

(b) 4 Mod. 212. Ld. Raym. 23., (c) Gibs, 915.

(d) Noy, 94.

(e) As to presentments by the King to the prejudice of another's right, see 25 Ed. 3. st. 3. c. 1. By the Lord Chan

cellor, of Benefices in the King's gift, see 1 Burn, Eccl. Law, tit. Benefice, 143. As to the Law in Ireland with respect to a Bishop's losing, by his translation, benefices which he held before, see Bac. Abr. 530, Prerogative, D. 2. Bura, Eccl. Law, tit. Benefice, 128, and Bishops, 192.

the

the act of law, nemini facit injuriam (a). And as the intervention of the prerogative presentation does not satisfy or disappoint the turn of the otherwise rightful patron, neither does it destroy the effects of a prior grant of the next presentation by the owner of the advowson (b). If the incumbent of a donative is made a Bishop, the King shall not present to the donative, because such a promotion does not make an avoidance by cession, for the incumbent is the creature of the founder, and is not subject to ordinary and episcopal visitation (c).

When the King has in his natural capacity an interest in the presentation, and the prerogative right happens at the same time, the interest shall be preferred: as if the King be seized in fee of an advowson, and create the incumbent Bishop, his Majesty shall present as patron, that being a title precedent to that of the prerogative (d).

If a grant be made to the King of the next avoidance of a living, and a stranger upon the death of the then incumbent present, and his presentee continue in six months and die, yet the King may present another, quia nullum tempus occurrit regi. So, if a grant be made to the King of all such presentments as should happen within twenty years, and in the twenty years there happen ten presentments which are filled up with a stranger, yet the King shall present to them over again (e).

If the King be patron of a church, and he omit to present within six months, the ordinary cannot present for the lapse, but is only to sequester the profits and serve the cure till the King thinks proper to present; but if in this case the ordinary collate his clerk, and afterwards the King present, the clerk so collated cannot be turned out without a quare impedit (ƒ).

But, though the King may remove the patron's or stranger's clerk that comes in upon his lapse, yet if such clerk happen to die incumbent of the church, or if the church become void by a bona fide resignation or expiration, before the King presents, the King loses the advantage of the lapse, and shall not

(a) Grocers' Company v. Archbishop of Canterbury, 2 Bl. R. 770. 3 Wils. 214. S. C.

(b) Cailland v. Troward, 2 H. Bl. 324. judgment affirmed in B. R. 6 Term R. 439, and afterwards in the House of

Lords, May 16, 1796.

(c) Agreed per Cur. 4 Mod. 213. (d) Ld. Raym. 26.

(e) Plowd. 243. a.

(ƒ) Bro. tit. Presentment, 24. Comp. Incumb. 118.

present