another Subject 2. If this Commendam Retinere and to take the Profits to his own use was not a Service of this Prerogative turn 3. Supposing that there be such a Prerogative and that the Commendam makes no Alteration in the Case then if this Vacancy of this Church be subject to this Prerogative As to the first it was argued That where an Incumbent is promoted to the Order and Degree of a Bishop his Living or Benefice becomes void and that where a Bishop is Patron and the Advowson and Bishoprick are become void at a time there the King shall present because while the Temporalties are in his hands he is lawful Patron for that time and consequently had a Right to present but not by virtue of any Special Prerogative but only as a Temporary qualified Patron like a Dominus pro Tempore of a Mannor may do Acts of Necessity which regularly belong to the very true Lord himself and this perhaps gave the Colour for this pretended Prerogative and in truth it answers every thing that can be suggested from any ancient Authority whether President Book Case or Opinion It is otherwise where a Subject is Patron and the King hath no Possession of or a Right to the Patronage at that time In such case he cannot present and there is no Prerogative given by our Law for to warrant such a Right to that Presentation All Prerogatives are founded upon some reason of Benefit to the People either in respect of the Government in general or else of some particular Subjects but this hath neither And in 3 Cro. 527. 't is agreed that there is no Reason for such a Prerogative but 't is added and the Addition is somewhat strange that many Prerogatives have no reason in them or for them and that 't is unmannerly to Enquire or Doubt if they are reasonable whereas it might be thought that unreasonableness in the Matter contended for had been an Argument against any thing but an Act of Parliament In Dyer 228. Sir Henry Sidney's Case versus the Bishop of Glocester by Dyer 't was agreed That the Queen had no such Prerogative and he adds quod sic alij Socii mei sentiebant so that 't was not his single Opinion against it but the whole Court of C. B. Then 't was said that the ancient Law knew nothing of his Prerogative all the Records Law Books and even Histories have been searched for the Maintenance of it and no footsteps can be found for it No Bracton or Fleta no Dr. and Student or Stamf. that treats of the Prerogative hath any thing of it Now all Prerogatives are and must be time out of mind or not at all And then if this be not so it must be an Usurpation and being not time out of mind it cannot be a Prerogative because not part of the Common Law In the great Case which they so much insist on of Woodley in 2 Cro. 691. Justice Hutton who was an ingenious Man a good Lawyer and a true English Judge that argued against Ship-money he expresly denies that there was any such Prerogative that the King had no Title to present but where himself is Patron and that there was no such Presentment till of late days nor any Book of Law to warrant it but that Case which is in Bro. Abr. Presentment al' Esglise 61. Then 't was urged That a few years Practise can no more make a Prerogative then it can Repeal an Act of Parliament 'T is true that in the Report of that Case Crook seems to admit that Winch was of Opinion for the Prerogative and only Hutton against it for he makes Winch to say That the King has an Absolute Title by his Prerogative as well in the Case of Common Persons Patronage as where himself is so But as 't is in Winches Reports 96. where the Case is reported again there they are both of Opinion against it and Winch ridiculed the Opinion of Bro. Presentment 61. as the saying of the Bishop of Ely who was then Chancellor and might have right to present to it by force of his Place if the King had such a Prerogative And indeed Bro. himself makes a Remark upon it as a thing never heard of before by a quod nota The King hath presented to Livings of other Mens Patronages but that was not by force of this Prerogative but on other grounds as 40 Ed. 3.40 the King presented to a Prebendary when the Prebend was made a Bishop And the reason of that Case makes for the Plaintiff in Error i.e. because the Temporalties of the Bishop who was Patron of that Prebendary was then in the King's Hands and then the King was Patron so long and he did present as such So is the 41 Edw. 3.5 the same as Patron having the Temporalties in his hand So is 44 Edw. 3.24 upon another reason a Parson is made a Bishop and the King presented not Jure Prerogative but because that the Patron was the King's Tenant in Capite and the Heir was in Ward to the King and so he had Jus Patronatus in him The King hath it where he has the Temporalties so is Fitzh Grand Abridgment Title Quare Impedit pl. 35. the King claimed Title to present to the Provostry of Wells in the Gift of the Bishop void upon the Provost being made Dean because the Temporalties of the Bishop were in the King's hands at that time The 11 Hen. 4.37 59 and 76. tho' cited on the other side below is a full Authority 't is a noted Case the ancientest Case in our Law concerning Commendams The Case in short is thus The King brings a Quare Impedit and makes his Title by the Creation of the Incumbent to be a Bishop There was some Debate on the Declaration but the Defendants plead that the King granted the Temporalties to the new Bishop before the Living became vacant Then the King waives that Declaration and betakes himself to another Title and Declares on the Statute of Provisors because the Pope had usurped a Power which that Statute denied him and there 's no Judgment in the Case upon the first point but 't is most clear that the King's Counsel in that Case were of Opinion against this Prerogative because they did not stand to that Title but amended their Declaration and took to another This Point was directly to have been judged in the Case if they had thought fit to abide by it So that 't is plain that they took the Plea to be good if the Temporalties were in the King's hands then the King was to present if not that he had no such Prerogative And this is a great Authority that the King had no such Prerogative because he waives that Title and goes to another 5 Edw. 2. Maynard 148. Hugh de Courtney brings a Quare Impedit against Thomas de Hutwet for the Church of Bingham and sets forth that Isabel de Force Countess of Aumerle presented such a one
Feodary and Officiary as Earl Marshal of England which have a Relation to an Office or Land for such are Transferrable over and such Dignities as are only Personal Inherent in the Blood and only favour quasi of the Reality of which no Fine can be levied as 't is of an Annuity to a Man and his Heirs no Fine can be levied 2. A Dignity was neither subject to a Condition at the Common Law nor intailable by the Statute de Donis c. nor barrable by the Statute of Fines Indeed in Nevil's Case something which favours of the contrary Opinion is said but the Question there was Whether 't was forfeitable by Treason And therefore the present Question is very forreign to the Matter there debated A Dignity differs from other Inheritances being an Honour Personal affixed to the Blood cannot be forfeited by a Non-performance of a Condition except that Tacite Condition in Law and consequently cannot be intailed and tho' the Title of a Viscount be of a Place yet it is only Titular for it is often taken from the Sirnames of Families 3. The Title of Viscount c. is not so much a private Interest as a publick Right for Peers are born Counsellors of State and one part of a Senatory Body and therefore cannot be renounced without the Consent of all those who have interest in it they cannot without the Consent of the whole Body whereof they are so considerable Members cut themselves off from the Body and so the Objection of quilibet potest Juri suo renuntiare is easily answered 'T was further argued on the same side That 1. An Honour goes not according to the Rules of the Common Law nor is it governable by them it is not therefore pertinent to argue from those Rules which hold in Cases of other Inheritances for a Dignity descends to the Half-blood there is no Coparcinership of it but the Eldest takes the whole a Fee-simple will go to a Noble-man without the word Heirs 1 Inst 27. It differs from Estates in Land in the Intrinsick Matter as well as the Manner of the Limitation because it is given for two Reasons for Counsel and Defence and it is a Civil Interest appointed by the Civil Constitution of the Realm which goes with the Blood and is inherent in the Blood insomuch that it is agreed on all hands that it can't be transferred to a Stranger and till Nevil's Case 't was doubted whether forfeitable for Treason if a Lord die his Son shall be introduc'd without the Ceremony usual at the first Creation a Peer's eldest Son and all Minors sit behind the Chair of State to prepare them for the Sitting in the House as Members and because they have some Title to the Honour they are called Nobiles Nati for the first time they fetch breath they have Nobility in them So that he that Surrenders by Fine must not only extinguish his Estate in the Honour but also the Nobility of his Blood 2. Every Lord is not only a Lord for himself but also hath a Right of Peerage and is a Peer of the Realm and therefore a Peer for every one of the House and therefore hath the Priviledge to demand his Writ Ex debito Justitiae and is to be tried by his Peers in Capital Crimes and that appears farther from a Matter which happened in this House 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament not Peers at which the Lords wondering ordered a Committee to examine the reason of it which proves that Lord is not so high nor inclusive as Peers So that if the Fine have any Operation it takes away not only his Right but also the Right of the House of Lords 3. The trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament but if a Fine may be levied in the Common Pleas the Trial is drawn ad aliud Examen and must then be by the Records of that Court The Clerk of the Parliament always certifies if he be a Baron because he hath the Record before him but he cannot certifie he is no Baron because he hath not the Record thereof before him 4. No Fine can be levied of a thing Personal as an Annuity to a Man and his Heirs but a Dignity is a thing Personal and so he took notice of the difference betwixt the Honours of Peerage which are Personal and the Honours that are Feodary and Officiary which have reference to an Office or Land 5. He did argue ab inconvenienti that this Opinion can be no Inconveniency to the Crown but the contrary makes Nobility a meer Pageantry by putting it into the Hands of a weak and angry Father to dispossess an hopeful Son of that which is his Birth-right The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer and when the greater are gone the other must go with it And then from being a Nobleman to day he and the rest of his Family must be below all Nobility and be called Yeomen or Goodman Villers to morrow which may bring great Confusion to a Noble Family and all its Relatives and surely this House will not put such a publick Disrespect on such a Family by agreeing to so unjust an act of one Man And that which was most relied upon was a Resolution of this House in Stafford's Case Anno 1640. which no Man without Indecency can question it passed not sub silentio or obiter but upon debate neither could it be any way invalid upon account of the Times for it was in the Infancy of that Parliament and that wherein a Peer's Case who sits now in this House was judicially before them and therefore there is no reason to shake that Judgment more than any other Judgment of that time My Lord Cooke in his 4 Inst Chapt. of Ireland is of Opinion that Honours cannot be extinguished but by Act of Parliament Then as to the Precedents that have been urg'd on the other side there are none directly to the Point for as to Nevil's Case there are very few Cases cited there aright and are not to be look'd upon as Law The Case of my Lord of Northumberland in 3 4 Phil. Mar. was by way of Creation and so was the Case of Dudley And Dugdale in his Baronage of England pag. 270. gives an account of it and the rest of the Precedents are above Two hundred years old which passed sub silentio and are not to be vouched unless they were disputed The first is Bigod's who in the time of Edw. 1. surrendred the Honour of Earl-Marshal of England to the King who granted it to him in Tail This Honour is Officiary and therefore nothing to the purpose and the Surrender was made thro' fear Walsingham 95. The next is the Earl of Pembroke's Case who in 8 Edw. 4. was made Earl in Tail and by this he had the
the Alienation even of an Ideot and then after Office the Practise is to Issue a Scire facias to him in possession or to the Alienee and so is Fitzh tit Scire facias pl. 2. 106. All these Methods prescribed by the Law would be useless if the Acts themselves were void Then 't is as certain that the Office must be found during the Parties Life and during the insanity and not afterwards If there had been an Office 't would only avoid it with a prospect as it would be in case of an Heir after death Even after an Office the King cannot have the Profits from the time of the Alienation which shews it not it not void from the beginning If a Suit be against an Ideot after Inquisition the Ideot cannot plead it but the King shall send a Supersedeas to the Judges suggesting the Inquisition so that even then the Party himself cannot avoid it As to the other way of avoiding it by the Heir it must be by Writ or Entry and till Entry or Writ the Act remains good But here 's no Contest with the Party himself or with his Heirs but with a Remainder Man This Act of Surrender was no tortious Act it wrought no discontinuance there was no Trust in him to preserve the Contingent Remainder A Feoffment with livery is allowed not to be void and yet that may do a wrong by discontinuance c. As to the pretence that a Warrant of Attorney to make livery is void that doth not reach this Case for here 's an Act done by himself which would have passed the Estate as by and from himself if he had been of sound Mind Then 't was desired that the other side would shew any such Case as this whereas multitudes of Gifts Grants Releases Bonds and other Specialties sealed and delivered by the Party himself are allowed to be good and the same reason holds for a Surrender made in Person and there 's no difference between a livery made in Person and a Surrender the Act being Personal and not by another under his Authority makes the livery good and so it ought to be here 18 Ed. 4.2 Perkins sect 139. And 't is observable in 39 Hen. 6.42 per Priscott upon the Inquisition 't is reseized and revested into the Interest of the Ideot and consequently of the King and if revested 't was once out of him Now here 's no prejudice to the Man himself by this Opinion he is taken care of and his Acts avoided by the King on his behalf and his Heirs may avoid them But that Strangers should take notice of them as void was denied and therefore prayed that the Judgment should be reversed On the other side it was argued with the Judgment That this never was a Surrender that 't was against sense and reason to allow the Acts of a Madman a Person distracted to be valid to any purpose that in case of livery it had been allowed to be only voidable by reason of the solemnity and notoriety of the thing but in case of a Deed or a Thing passing only by Deed 't was otherwise and Bracton Britton Fleta and the Register were cited where 't is declared who can take and who can alien and that a Madman cannot alien and Fitzh is of Opinion that the Writ of dum non fuit compos may be brought by himself that there was a notion scattered in the Books that such Acts are only voidable but the reason of the Law is otherwise 39 Hen. 6.42 hath the distinction that Feoffment with livery is good but if livery be by Warrant of Attorney 't is void If it be a Feoffment with Warranty by Deed and possession delivered with his own hands yet the warranty is void because the Deed is void Perk. 5. The Deed of a Mad-man is void if he grants a Rent 't is void If an Infant makes a Warrant of Attorney 't is void so is Whittingham's Case A Deed and a Will are not to be distinguished and by the same reason that the one is void the other is so Finch 102. is general All Deeds of a Man of non sane memorie are null 12 Rep. Shulter's Case 'T is an offence to procure a Deed from him The Civil Law makes all his Acts which he doth without consent of his Curator to be void A Madman is taken pro absente 'T is a Rule unaccountable That a Man shall not stuitifie himself that he shall not be able to excuse himself by the Visitation of Heaven when he may plead Duress from Men to avoid his own Act. 'T is absurd to say That a Deed procured from a Man in a Fever or in Bethlehem shall be valid to any purpose Fitzherbert who was a good Lawyer ridicules the pretence and maintains That he himself may avoid such Act. Then were cited 2 Inst 14. Lloyd and Gregory 1 Cro. 501 502. Perkins tit Grant 13. Then it was said That in this Case there needs not much Argument the Reason of the Thing exposes the pretended Law And the Judges have declared that this Surrender is void the word amens or demens imply that the Man hath no Mind and consequently could make no Conveyance Wherefore 't was prayed that the Judgment should be affirmed and without much debate it was accordingly affirmed Henry Earl of Lincoln by Susanna Countess of Lincoln his Mother and Procheine Amye Appellant Versus Samuel Roll Esq Vere Booth Hugh Fortescue Esq and Bridget his Wife al' Respondents AApeal from a Decree of Dismission in Chancery The Case was thus Edward late Earl of Lincoln who was Son and Heir of Edward Lord Clinton the only Son of Theophilus Earl of Lincoln deceased being seized in Fee of the Mannors of c. after his Mothers decease who is yet living and of other Lands of about 3000 l. per Annum part of the ancient Estate of the Family And designing that in default of Issue-Male by himself his Estate should go with the Honour made his Will 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life Remainder to his first and other Sons in Tail-Male with many Remainders over to such Persons in Tail-Male to whom the Honour might descend and directed that his Houshold Goods at ...... should remain there as Heir Loomes to be enjoyed by the next Heir-Male who should be Heir of Lincoln and made the said Sir Francis the Appellants Father and after his Death Earl of Lincoln Executor On the sixth of Novemb. 36 Car. 2. Earl Edward made another Will in writing in like manner with the alteration of some Personal Legacies and afterwards in April 1686. and in Dec. 1690. did republish his Will Then Earl Edward sold part to Richard Wynne Esq for 24491 l. 3 s. 6 d. and mortgaged the Premisses in question to him for 12200 l. Then Earl Edward by Deeds of Lease and Release dated the 27th and 28th of April 1691. conveys his whole Estate to