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present afterwards, or remove the patron's second presentee, because the King is to have but one turn, and that the next; and if the law were otherwise, the King, by suffering many usurpations upon his lapse, might even disinherit the patron, and the rule nullum tempus occurrit regi is not to take place where the King is limited to a time certain (a).

Though the King present to a church, and his clerk is admitted'and instituted, yet he may, before induction, repeal and revoke his presentation; and it is held in this case, that the presenting another is a repeal in law, without any other notice to the ordinary (b). So, where a title by lapse comes to the King, if the King present, and his presentee is instituted, yet the King may revoke his presentation, and so annul the institution at any time before his clerk is inducted; or if his clerk be instituted upon such title, and die before his induction, the King may present another, his turn not being served by the institution only of his clerk (c).

All antient deans are elected by the chapter, by conge <f elire from the King, and letters missive of recommendation, in the same manner as Bishops (d); but in those chapters which were founded by Henry the Eighth, out of the spoils of the dissolved monasteries (e), the deanry is donative, and the installation merely by the King's letters patent (f). The chapter, consisting of canons or prebendaries, are sometimes elected by each other.

It seems that the King may erect a free chapel, and exempt it from the jurisdiction of the ordinary, or licence a subject so to do (g). Churches it seems may be lawfully built by any person, but the Bishop may of course refuse to consecrate them (h).

In consequence of his prerogative in church matters, and as founder of archbishopricks and bishopricks, the King is enti

(a) 7 Co. 28. Owen, 2. and 148. (c) Leon. 156. Wright v. Bishop of

Cro. BJiz. 44. Cro. Jac. M. 216. Het- Norwich, ley, 125. Buls. 28. Moon 269. Fitzg. (d) Agreed per Cur. 4 Mod. 213.

30" . («') Hare. Co. Litt. 95, note 3.

(A) 7 E. 4,32. Dyer, 290, 327, 360. '*

But to free the second presentation of "'' .

all suspicion of being obtained by fraud (g) 1 Burni c]- Lawi tiL Chapel.

in deceit of the King, it is proper that (A) 3 Inst. 203. 1. Burn, Eccl.

it should make express mention of the Law, tit. Church I. The new Church

first presentation, Gibs. 795. Wats. c. Act.


tied to the custody, and is seised of the freehold (a) of the temporalities of bishops, (that is, the lay revenues, lands, and tenements, which belong to an archbishop's or bishop's see,) (b) during the vacancy of the archbishoprick or bishoprick (c). This prerogative is of so high a nature, that a subject cannot claim the temporalities during the vacancy, by grant or prescription (d). But now, by statute 14 Ed. 3. st. 4. c. 4, 5. the King may, after the vacancy, lease the temporalities to the dean and chapter, saving to himself all advowsons, escheats, and the like. During the vacancy, the Crown has the right of presenting to such benefices and other preferments as fall within the time of vacation (e). And by the statute 17 Ed. 2. st. 2. c. 14. the King shall have escheats of lands of the freeholders of archbishops and bishops, when such tenants be tainted for felony in time of vacation, whilst their temporalities were in the King's hands, to give at his pleasure, saving to such prelates the service that thereto is due and accustomed. Accordingly, the temporalities being in Queen Elizabeth's hands, a copyhold escheated which was granted by the Queen, and it was held to be good {/). Our antient Kings, and particularly William Rufus, were not only remarkable for keeping the bishopricks a long time vacant, for the sake of enjoying the temporalities, but also committed horrible waste on the woods and other parts of the estate; and to crown all, would never, when the see was filled up, restore to the Bishop his temporalities again, unless he purchased them at an exorbitant price. To remedy which, King Henry the First (g) granted a charter at the beginning of his reign, promising neither to sell, nor to let to farm, nor take any thing from the domains of the church, till the successor was installed (A). And it was made one of the articles of the great charter (t), that no waste should be committed in the temporalities of bishopricks, neither should the custody of them be sold. The same is ordained by the statute of Westminster

(a) 1 Wooddn. V. I- 297. (J) Covert's Case. Cro. El. 74.

(4) Wats, ch. 40. 1 Bla. Com. 282. (;) Matt. Paris.

Tel l Bum, Eccl. Law, tit. Bishops, (*) But Queen Elizabeth kept the

VI. see of Ely vacant nineteen years, in

(d) 2 Inst. 15. order to retain the revenue. Strype, *

(0 17 Ed. 2. c. 14. F. N.B. 32. Vol.351.

1 Bla. Com. 282. 6 Com. Dig. 45, tit. (.) 9 Hen. 3. c. 5. Prerogative, D. (D. 23.)

? the


the first (a). And the statute 14- Ed. 3. st. 4. c. 4. (which permits as we have seen a lease to the dean and chapter), is still more explicit in prohibiting the other exactions. It was also a frequent abuse that the King would, for trifling or no causes, seize the temporalities of bishops even during their lives into his own hands; but this is guarded against by statutes 1 Ed. 3. st. 2. c. 2.; 14 Ed. 3. st . 4. c. 3.; 25 Ed. 3. st . 3. c. 6.

This revenue of the King, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing; for at present as soon as the new Bishop is consecrated and confirmed, he usually receives the restitution of his temporalities quite entire and untouched from the King, and at the same time does homage to his Sovereign; and then, and not sooner, he has a fee simple in his bishoprick, and may maintain an action for the profits (b).

It seems that for an enormous offence of a Bishop his temporalities may be seized in manus regis (c).

The King is entitled to a corody, as the law calls it, out of every bishoprick: that is, to send one of his chaplains to be maintained by the Bishop, or to have a pension allowed him till the Bishop promote him to a benefice (d). This is also in the nature of an acknowledgment to the King, as founder of the see, since he had formerly the same corody or pension from every abbey or priory of royal foundation. It seems to be now fallen into total disuse, though Sir Matthew Hale says (e) that it is due of common right, and that no prescription will discharge it

Under this head may also be mentioned the right of the Crown to the tithes arising in extra-parochial places, which are

(a) 3 Ed. 1. c. S1. 1 Bla. Com. 282. no* admait by the king, 2 Rol. 228.

(A) 1 61a. Cora. 282, 3. Co. Litt. l. 17, or be found guilty in a quote in

67, 341. eumbravit, after a non admittas delivered

(c) 2 Roll. Abr. 228. l. 20. In 6 to him, 2 Rol. 228.1. 10; or upon the

Com. Dig. 46. tit. Prerogative, D. (D. death of a bishop, the king, by hispre

25.) the following instances are put: as rogativc, shall have his palfrey, bason,

if he be attainted for trespass contra and ewer, and kennel of hounds; and

paean; for being a prelate, a capiat process shall issue for them, if not

does not lie against his person, 2 Rol. compounded, Sav. 53.; see further, Vin.

228. l. 25. or for a contempt, as upon Abr. tit. Prerogative, 17 V. 242. an attachment in prohibition, 2 Rol. (d) F. N. B. Mo.

228. I. 15, 30. or for not admitting a (e) Notes on F. N. B. above cited,

varlet to his corody, 2 Rol. 228.l.15: 1 Bla. Com. 283. W if he be found a disturber in a quart ,

F vested vested in him in trust and confidence, that he will distribute them for the general good of the clergy (a), but which may be granted by the King to a subject (b).

First fruits, primitive or annates, are the first year's whole profits of a spiritual preferment. Tenths or decimee, are the tenth part of the annual profit of each living. These were introduced by, and originated in, papal usurpation; and were ascertained by valuations or rates made during the reigns of Hen. 3. and Edw. 1. This usurpation was long maintained in favour of the Popes, though at times violently resisted; till at length in the reign of H. 8. it was annexed to the Crown by statute 26 H. 8. c. 3. confirmed by 1 Eliz. c. 4. and a new valor bcnrficiorum was then made, by which the clergy are at present rated (c). Various equitable discharges, allowances, and exceptions were made and granted in favour of preferments of a trifling value; and Queen Ann "in a spirit of the truest equity," resigned this revenue to the poorer clergy, by applying these superfluities of the larger benefices to make up the deficiencies of the smaller. To this end she granted her royal charter, which was confirmed by the statute 2 Ann, c. 11. whereby all the revenue of first fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. This is usually called Queen Ann's bounty, which has been still farther regulated by subsequent statutes (d).

(a) 2 Inst. 647. 2 Rep. 44. Cro. El. (c) I Bla. Com. 8S4, 5.

512. 1 Bla. Com. 113. (rf) Ibid. 5 Ann. o. 24. 6 Ann. c. 27.

(A) Bro. Ab. Patents, pi. 33, cites 22 I Geo.l. rt. 2. c . 10. 3 Geo. I. c. 10

Ass. 75. 17 Vin. Ab. 88. Prerog. M. See 2 Burn, EccL Law. 46 G«o, 3.

b. pi. 15. . e. 133.


Of the Prerogative with respect to the Houses of Parliament.

We have already viewed the King as a constituent part of the legislature; and it only remains for us to consider in the present chapter the various prerogatives which are more intimately connected with the two Houses of Parliament.

It is in the power of the Crown to add any number of members to the House of Peers, by raising individuals to the English Peerage (a); but it may perhaps be doubtful whether the King has it in his power to increase the number of the members in the lower House of Parliament, by empowering an unrepresented town to elect, and send members to Parliament. It seems clear that from the time of Edward 4, until the reign of Charles 2, both inclusive, our Kings used frequently to assume and exercise this right The last time it is known to have been exercised was in the 29 Charles 2. who gave this privilege to Newark; and on the legality of the grant being then questioned for the first time in the House of Commons, it was acknowledged by a majority of 125 members to 73 (b). The reason why it is doubted at the present day is, that by the Scotch and Irish Acts of Union with England, the representatives to be sent by the two former countries to the united Parliament, are limited to a certain specified number; and if the King could add to the number of the English members, the proportion would be unfair in favor of England, to the prejudice of Scotland and Ireland: consequently it is said this prerogative is abrogated (c). But it is submitted that the King cannot be deprived of a prerogative, except by the express words of a statute (d), and the Acts of Union contain no provision on the subject . The argument used against this prerogative of the Crown, seems to prove too much to be

(«) 1 Bla. Com. 157. 1 Wooddn. 109, b. Hargr. note 2. 2 Lord Raym.

See post, ch. 8. 951. Power in the Colonies in this re

(A) Commons Joum. March 1676, 7. spect, ante ch. 3.

Simeon's Law of El. 91, 97. 1 Dougl. (c) See Ibid. Pref. to Glanv. Rep.

on El. 69, 70. 1 Bla. Com. 97, note (rf) See 5 Bac. Ab. 559. title Prero

(6), Christian's edition. See Co. Lit. gatire, E. 5. post. cb. 15.

F 2 tenable.

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