Page:Prerogatives of the Crown.djvu/80

 00 Head of the Church. [Ch. V. 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 va- cated (6). 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 parti- cular event, the incumbent's becoming a bishop." The patron is not materially prejudiced by this prerogative, as it only oc- casions 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 con- sent, grant to the bishop a commendavi 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 {/), is in the gift of some other patron than the King, and his Majesty grants the dis- pensation after the Bishop has been consecrated, the com- mendam is called not a commendam retinere^ but a commendam capere; and the patron's consent is necessary to the dispensa- tion, 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 (a) 1 Bla. Com. 383. (e) See 2 Burn, Eccl. Law, tit. Com- (i) Ld. Raym. 23, and the following mendain. Ld. Raym. 23. Com. Dig. note. tit. Prerogative. D. (D. 18, &c.) Hob. (c) 2 Bla. 11.773. 2 H. B. 333. 144. Stra. 1006. (rf) Ld. Raym. 23. 4 Mod. 202. 3 (/) Hob. 150. Lev. 377, 382, and the case of Saint (^) Gibs. 913, 4. Hob. 152. James's Parish. 3 Lev. 388. his