case the king and queen against the bishop OF London and peter burch s t p  Hilary term William and mary roll SC in h l show p c the statute James c enact  that the parish of saint James shall be divide from the parish of saint Martin  that a new church shall be erect in saint James and that the bishop of London  and Lord Jermyn shall present to such new church by turn that the then  incumbent shall be rector of the new parish and that on the first avoidance  the bishop shall present and on the next Lord Jermyn and his heir and so  alternately turn for ever if the incumbent be promote to a bishopric by which  promotion the church become void the king by his prerogative and not the  bishop by virtue of the statute shall present for although it be a new church  yet it be subject in this respect to the like incident as other church S c g  SC Godol and Hugh Ent h SC Godol I SC Hugh Ent shower KB er p post SC lev SC  lev Ent SC Mod SC Jones SC comb SC Carth SC salk SC holt this day this cause  come to be argue for the presentation here vice to the rectory of saint James  in the liberty of Westminster sir Bartholomew shower who argue for the  defendant it rest upon their demurrer to their majesty count upon the quare  hinder open the record at large and then proceed in his argument thus my Lord  I shall not at present meddle with any thing that relate to the other case of  saint Martin as to the point which be overrule by the court that the king have  such a prerogative in ordinary case but that which we humble insist upon be  that this case be not within the reach or extent of this prerogative and this  with submission do appear of Mr attorney own show in his declaration here on  the king behalf he have set it forth to be a parish new create by Act of  parliament and a thing not in be before and it appear by the declaration what  that Act be and you must take it as it be there set forth we have demurrer to  the declaration and if upon that Act it do appear that there be no right do  accrue to the king shower KB to present to this upon this avoidance then your  judgement must and will be for the defendant Mr attorney my Lord have agree by  his writ and count that it be a avoidance within this Act of parliament upon  the promotion of dr Tennison and he do likewise admit and agree that the king  be not patron of this benefice of saint James and that this Act have give no  right to the king to any turn or presentment for it be to be by the bishop of  London and the Lord Jermyn he do also admit by this declaration that dr  Tennison be never present to this live and admit he come not in by virtue of  any presentation from any particular patron nor indeed by any sort of  presentation whatsoever and that this parish church be never present to by any  person at all but he conclude that now it be void the king have a right to  present to it by force of his prerogative upon this avoidance though the Act  say the bishop shall present after the decease of dr Tennison or the next  avoidance then my Lord the question be whether this prerogative can operate  upon this vacancy of this benefice thus fill and thus avoid against the  express word of a Act of parliament which word be that the bishop shall  present after the decease of dr Tennison or the next avoidance my Lord I must  crave leave to repeat the word of the Act and they be to this effect that all  that precinct or district of ground within the bind and limit there mention  from thenceforth shall be a parish of itself by the name of the parish of  saint James within the liberty of Westminster and a church thereupon build be  dedicate by the act to divine service and that there shall be a rector to have  the cure of soul inhabit there and then after a full commendation of the merit  and service of dr Tennison in that place the now reverend bishop of Lincoln it  do enact and ordain he to be the first rector of the same and that the doctor  and his successor rector of the say parish shall be incorporate and have a  perpetual capacity and succession by the name of rector of the say parish and  sue and be sue and hold and purchase land for ever over and above what be  settle by the Act not exceed two hundred pound per annum and then it enact  that the patronage or presentation after the death of the rector or avoidance  shall belong and appertain to and by the Act be vest in the bishop of London  for the time be and his successor and Thomas Lord Jermyn and his heir for ever  so shower KB then my Lord here be a patronage give by Act of parliament and by  the way I will observe that it be not a fix patronage till after the vacancy  nay that it be no patronage at all for there be no word of present vest it and  then I be sure the king prerogative can have no operation upon any benefice  till after it become a advowson then my Lord this law enact that the first  rector after such a decease or vacancy shall be present or collate by the  bishop for the time be and the next to succeed he by the Lord Jermyn and his  heir the two next by the bishop and the next by my Lord Jermyn and so twice by  the bishop and once by the Lord Jermyn for ever this be the Act and I will beg  leave to make four or five observation upon it first my Lord it be a new law  in the whole it be a new parish it be a new shower KB er p advowson nor with  submission be it any advowson till after the avoidance nay by the word of the  Act if there can be any difference in a instant between at and after as in our  law in several case it be allow as per death and post death c it be no  advowson till after the avoidance for so be the word after the death and  avoidance of dr Tennison the advowson patronage and presentation shall be vest  in the bishop and the Lord Jermyn and till then they be vest in no body and  that which be in no body be no where at all and it be vain to say that that  exist which be in abeyance as sometime for necessity sake we do for that be  almost the same thing as to say that the thing be not but to say that a  advowson shall be in abeyance before it be create and vest must favour  something of absurdity second dr Tennison come not into this rectory by our  presentation but by the donation of the Act of parliament and the king have no  prerogative in the case of a donative upon a promotion nor be there any  precedent of such a thing the king can present to that which the patron can  not have present to and the patron can not present to a donative quasi a  donative for for he to present to it be to make it presentative it be to alter  the nature of the thing and so injure the patron and yet a donative with cure  of soul will be void by a promotion of the incumbent as appear Yelv roll Abr  and this be further evident my Lord from the pretend notion and reason of this  prerogative for here be a incumbency by the gift of king lord and Commons and  then consider what this prerogative be as it be state in the book it be a  prerogative to present upon the promote of the patron presentee shower KB or  of the incumbent by his grantee and in his right to a great dignity in the  church and when they will avoid the objection that the king can do no wrong  they say there be no injury but a kindness to the patron because it be a  kindness to his friend be prefer to a high degree of honour and state in the  church all which fail here and there be no reason for the exercise of this  prerogative as there be in the other case it be a good argument accord to Mr  Littleton because no such thing ever be before therefore of right no such  thing ought to be novelty be always a argument against the right pretend to  and because this be in the case of a gift by Act of parliament there be no  reason it shall be allow for a prerogative that be never use and in propriety  of speech can never be call a prerogative much less if there be no practice or  precedent to warrant the claim in the case of any donative my Lord prima fancy  we have the right to avoid that right of we be this prerogative set up now  they ought to demonstrate that there be such a prerogative to control our  right in this case and the argument ought to be convince and undoubted and it  be no consequence that because where a patron incumbent be prefer by be  consecrate a bishop the king shall present that where the parliament incumbent  be prefer the patron shall lose his benefit because the case be not the same  for the suppose recompense and consideration in the one case will not hold in  the other and we be not here in the consideration of a prerogative incident to  the crown for the benefit of the government nor be it a prerogative which  respect the continuance or improvement of the treasury so as for the benefit  of the kingdom and extend or enlarge of it beyond the former practice shall  seem needful and therefore the common pretence of presumption and intendment  be no more on their side than they be on we nay it be rather on our side who  have common right to present and we insist with submission on the Act of  parliament in this case and that there be neither record nor book case nor  judicial opinion nor any instance in history or tradition that there be ever  any such prerogative in the king or practice by he we say that there never be  a particular case wherein the king do so present and my Lord it be no  objection to say that there never be any such promotion or avoidance before  this whether there be or no I shall not pretend to answer but that turn upon  they for that show there never be any exercise of such a prerogative shower KB  presentation in fact as they now contend for a argument a like be the weak of  argument but I say they have no case like this nay they have no book declare  on their side the book say that it be only to present to a benefice vacant by  promotion that be antecedent presentable but here the doctor be so far from  come in by our presentation that he be here in by the whole kingdom as patron  and all that they can pretend be when a man be dignify by promotion who come  in shower KB er p by presentation admission institution and induction or by  collation and induction which be all one and no otherwise my Lord we have have  many new parish create and we never read I can say it I never read that this  prerogative be ever extend to they not so much as in a moot case or any  extrajudicial opinion of any judge or any reader upon a statute I be not to  dispute when the prerogative shall commence or begin in this church or if ever  it be time enough to dispute that when another occasion offer itself upon the  preferment of my client or his successor it suffice I to argue whether in this  case the king shall have a prerogative to prevent the next turn belong to the  bishop next my Lord that which be considerable be that this benefice be not a  advowson create as other usual be for it be to commence de going to be and  beside it differ from all other in other respect the same person be make a  pluralist by Act of parliament though the Act itself say the parish be too big  for one and it differ in other thing the rector be make a corporation capable  of sue and be sue and of receive and purchase land to such a value I offer  this only to show that it be not a common ordinary rectory next my Lord I will  further observe that this turn which we claim be not a patronage turn for it  must be admit that this Act vest the feesimple of the advowson in the bishop  and my Lord Jermyn and their respective heir and successor by turn and so the  succession be enact to be for ever now this be none of those patronage  successive turn but a particular presentation which be give to the bishop of  London by express limitation and the word and pen be different that which give  the patronage and that which give the presentation the first be in the bishop  the other be by turn so that there be no word in the first presentation which  look like a gift of a estate in the patronage but only one first particular  presentation give to the bishop more than ordinary this be not to be a turn  which he be to have as patron but first he be to have one presentation before  it come in to the form and manner of turn shower KB prescribe by the Act to  wit in perpetual succession for if otherwise the patronage will be to the  bishop three turn in four to one of my Lord Jermyn and then as for their  objection that a patronage new create shall be in the same plight and under  the same rule and circumstance as another that objection can never take place  here because it can never take place till it become a patronage which be not  nor can be till it have be present to nor where a particular presentation be  at first give by express word suppose the Act have say that the patronage  shall after the death or avoidance of dr Tennison be vest in a b but that the  first rector shall upon that avoidance be present by c a three person this  will never be reckon a common ordinary turn subject to the like prerogative as  other here the bishop do not claim this particular presentation in right of  patronage but by express gift by Act of parliament and then my Lord I insist  upon this that this Act bind the king in point of interest and prerogative for  every Act of parliament bind all person and include their assent pass present  and to come as my Lord Hobart say and it have the royal assent and bind the  king and his successor as well as the subject suppose then the king have be  patron of saint Martin in his own right I dare say they will not contend but  that this Act thus create a new parish a new rectory and new patron will have  bind the king if the Act have give the patronage to another but this be not so  much for the question strict and proper here be not whether the king shall not  be bind by this Act because he be not name but whether this prerogative shall  hold place upon a vacancy by this promotion of a incumbent make by this Act  never present collate institute or induct and where the first presentation be  by the same Act give to a particular person and the king be as much bind by  this Act as to prerogative as he will have be have he be particular patron of  the church out of which the new parish be take and here the king himself give  the first presentation to the bishop of London for the king and people all  together be grantors then suppose such a right as this in a subject and the  subject be able to prescribe for it he must then have set forth that time out  of mind whensoever the incumbent of another presentation be present by he to  another live he shall have the presentation she vice this be the most that  ever can be make of this prerogative now no body will say that this case fall  out to be under such a prescription or the reason of shower KB it and as for  the prerogative though it be part shower KB er p of the law yet every  prerogative have its boundary and limit and a reason for it too and that which  be not within the reason be not within the limit or else it be no prerogative  that the law allow suppose that we turn this argument into the manner of  querying or interrogate accord to the practice of the civilian what if the  avoidance be by promotion the word of the Act be a natural answer to that  quere that the rector shall have the first incumbency by presentation of the  bishop and that be the opinion of the Act of the king and parliament but Mr  attorney say no the king shall have it by prerogative beside we know there be  good reason in fact for this provision for the bishop be patron original of  the parish of saint Martin out of which this new parish be take and there be  possible a reason why he shall have the first presentation when it be take out  of the parish of which he be the original patron and a three presentation give  away to a stranger it show it be a particular design kindness in the  parliament to the bishop in recompense of divide his parish and then my Lord  there be another thing considerable to show that there be no need to strain  the prerogative here for one and the same person be parson and incumbent of  both parish the king have have the effect of his prerogative upon the  promotion of this very incumbent for the king have present to that church into  which he come by presentation and induction but here we insist upon it that  the prerogative can operate because he come into this live not by donation of  the patron but of the parliament and consequent as I say of the king himself  beside this Act of parliament give the first presentation in this manner it do  of itself bind and foreclose the prerogative be introductive of a new law and  of a new law upon a new subject it imply a negative of every thing which be  contrary to the purview of this Act and it be no objection to say that the  king be not oblige by it if he be not name for there be numerous case in our  book that prove he bind though even where he be not name all that tend to the  promotion and prevent the decay of religion so be   and   so by all the act  that be to give speedy remedy against wrong he be bind by the statute of  marlbridge cap against distrain tenant to answer without writ as the Inst and  and by the statute of Henry c concern discontinuances Inst and because they be  make to give her who have shower KB a right a more speedy remedy to wit by  entry where at the commonlaw she be force to a real action so be Barkleys case  Plowd     light the king be bind by the statute de gift and the reason give be  because a alienation will be a wrong to the subject therefore unquestionable  the king be bind by this Act for here will be a injury to the bishop by the  loss of his presentation upon this prerogative and it be now no objection that  this law be in the affirmative because it be introductive of a new law in the  very subject matter create de to make new before the Act the king have no  right and if he have none before he can only have it now how and when the Act  give it not contrary to it bro title remitter agree   and   if land be give in  fee to one who be tenant in tail his issue shall not be remit because the  latter Act take away the force of the statute de gift suppose we have be enact  to be the patron of this live and it have exist before and we have be before  patron in another nature then there have be no remitter because as to  particular the Act be like a judgement and estops all party to claim otherwise  than as by the Act though that of remitter be a title favour in law then if we  have this only by force of this new Act and another shall present in our turn  so give it will be a injury if a subject do it and consequent the king can do  it for the prerogative which this Act give or which the commonlaw give not  inconsistent with or contradictory to the particular provision of this Act be  not yet come to take place though this be a affirmative law yet be  introductive or creative of a new thing accord to the rule in hob in the case  of Slade v drake if the subject matter be new and introductive of a new thing  it imply a negative of all that be not in the purview a the Edward c that  prescribe a Plowd   show parliament Cas Peer wms ld ray term Rep shower KB er  p the form of redress error in the court of exchequer before the treasurer be  hold to exclude all other method be introductive of a new law and so be it  resolve in the case of the Lord Macklesfteld and though it be a particular  expression affirmative yet it imply a general negative too for both can never  take place and then I will observe that all prescription and custom will be  foreclose by a new Act of parliament unless save and there be the same reason  that the prerogative shall be for it be so in the king manor as well as the  manor of the subject as to custom I agree that a man may prescribe shower KB  to have a custom against a Act of parliament when his prescription be save by  that or another Act so be the Instit but regular a man can prescribe to or  allege a custom against a Act of parliament because it be a matter of record  and the high record that we know of suppose that by a buy law money be Payable  annual and one and twenty day of grace notwithstanding any custom for the make  of such a buy law if a Act come and say that it shall be pay quarterly by even  portion this will alter the law I must agree that a consistent devise or  statute be no repeal or revocation but if the new Act give a new estate as in  this case there the latter shall control the former for this amount to a  repeal and so the lord hold it as it be hold in this court in the case of the  clerk of the peace between fox v Harcourt in dr foster case   the question be  upon the statute of recusancy whether a man may be prosecute for both the  penalty and it be hold he may because the act be consistent but there the rule  be take and agree if a Act of parliament give a power or a interest to one  person there by that express designation all other be exclude and so in case  of estate the same must hold as be cite in the case of Stradley v townsend  Plowden and and in Gregory case   the same rule be take and agree that a  latter statute in the affirmative shall not control a former law if the first  be particular and the latter general which imply the contrary if the fact be  otherwise as it be here the case there be about the weave of cloth not have  serve seven year as a apprentice against the statute of Philip and mary and  the question be whether the statute of Elizabeth c have repeal it and agree it  do not because the former be particular and the latter general but if the  former have be general and the latter particular the latter will control it  and the same rule hold in the case of the king as in the archbishop of  Canterbury case   hob the question be if land come to the king by Henry c or  by Edward c and it be object that the latter be in the affirmative and yet  hold it come by the latter because though they be affirmative word yet the  latter be different pen and the last be of as high authority as the former the  latter Act shall take place now my Lord suppose I shall admit that there shall  be no contradiction for the king to have the like prerogative prevail shower  KB where the Act of parliament general limit the presentation as where it be  ancient presentable because there the king may have such a prerogative and a  man still be a patron of the live as he be before yet here it will not do  because the king can never have this presentation and the bishop too and be  particular vest for the first presentation in the bishop it must go accord to  the Act therefore there be a vast difference now between the reason of the one  case and the other when the patronage come to be in exercise and when a  particular presentation to the live be give by express word of the Act of  parliament as for instance in a Act where church be unite as that for  rebuilding the church in London there it be order that the first presentation  shall be by the true patron of the live of the high value in the king book  suppose then the king happen to be a patron of the live of the lesser value as  he be of many in London there it be hold and have be practice that the king  can not have his common prerogative of the first presentation which he have in  all other case where his interest be intermix with other as in the case of  coparcenary where the young be in ware he shall present first though by the  commonlaw the old be to have the first turn but where a Act of parliament  prescribe a particular way though in the affirmative the method limit in the  affirmative shall take place and shall control the common prerogative which  the king will have of be prefer in interest before any other and I can see but  it must be the same in this shower KB er p case and for a precedent there be  Mr crook case b for woodstreet in doctor be Commons before the delegate and  upon advice the king presentee acquiesce my Lord you will consider the reason  how the king come to be exempt out of a Act of parliament it can only be by  construction of law now that construction shall never be against the express  word sense and reason of the Act either plain express in it or plain inferable  from it now here be the express word and the intent of the Act both concur and  then there be a great deal of reason for the make such a construction as this  we will have that it be a Act for the promote of religion and then it shall  have bind the interest of the king if he have be patron of the parish of saint  Martin then with submission it will bind the prerogative though I suppose for  the present that the prerogative shall operate if it be a ordinary turn of a  presentation therefore to say the king shall have such a prerogative in such a  case as this be to do wrong and to deny the word of the Act which shower KB  express say the bishop shall have it and the king and he both can beside our  presentee be never prefer by the king which be the reason of the prerogative  and again my Lord with submission first fruit and ten be not reserve out of  this parish as they be now in ordinary live and therefore not demandable  because there be no save in the Act for the king right and I do not doubt but  they will say that first fruit and ten be due to the king by commonlaw though  the quantum be settle by the Act of parliament and they be sharp enough in the  late reign to have exact it but in be deny in both house to be insert in this  though it be in other act for erect of new parish there be general such a save  as in the Act of saint John at Wapping and that I mention of rebuilding the  church of London after the fire there be express provision and save which show  that such a save be necessary and the statute of Henry c which give and annex  they to the crown have be declare to be affirmative of the commonlaw and then  there be as much reason to argue that a save shall be as necessary for this  prerogative as for that other right my Lord until it be once present to it can  be subject to that prerogative which for the present I will not dispute  against because the court seem to rely upon the authority of woodley case but  yet that can be no objection for it be plain distinguishable from the case of  a grantee of the next avoidance who come in the case of the grantor and take  his grant subject to all encumbrance and title his grantor be subject to we be  now first by the Act of parliament they be by avoidance by the promotion of  one present by he that claim under the patron and that be the same as if he  have be present by himself this case be not so for we can say he be presentee  to we or any other that claim under we suppose the Act have express declare  that dr Burch shall have be collate by the bishop to this live upon the first  avoidance then they scarce will pretend that this prerogative shall take hold  of it upon the promotion of dr Tennison they say indeed no grant but must come  under the contingency of this prerogative but they say a Act of parliament can  alter it so that it be not applicable to our case either in respect of the  limitation nor of the king prerogative at large it have be insist on that the  difference be trifle between this and the other case of dr Lancaster nay it  have be say that this be a stick in the bark and the opinion on their side be  a notissimum so that it be below the dignity of this court shower KB to have a  argument about it and that it be not the intent of the law to exempt this live  from the common case of other and that the question be not whether the word of  a Act shall bind against the general reason of the law which be for the  prerogative my Lord we insist upon it it be the intent of this Act to  difference it in this as it have difference it in several other particular  however it suffice that the first presentation be by express word exempt else  their kindness to the bishop of London be frustrate they say there will have  be special and other word use if what I argue for have be intend but that will  not reach to this first presentation whatsoever it may to any afterward and  likewise we return the argument and say if the contrary have be intend other  word and contrary word will have be use and my Lord it be no argument to say  that if a vacancy have be in the see of London and the b ante page shower KB  er p temperality in the king hand then the king must have present and not the  bishop that will by no mean contradict the Act so much as this do for that  have be the same as if the bishop have do it for then the king for that time  be in loco ordinarii and have all the benefit as he have and to suppose that  if my Lord Jermyn have be attaint of treason the king shall present it will be  contrary to the word of this Act that be no argument neither for in the case  of attainder the king claim in the right of the person so attaint and  therefore it be no conclusion against we neither nor indeed any conclusion at  all and for the objection if a estate tail be give by Act of parliament it be  dockable that be not any argument in this case neither for suppose a Act of  parliament say that a shall have the manor of d for and during his life and  after his decease it shall descend to or be enjoy by c or by the old son of  the body of a that shall be then live will any man say that against these word  any act of a shall prevent a enjoyment accord to the Act nor can any thing dr  Tennison do or agree to as no question be do to his own promotion hinder the  operation of the Act of parliament and though it be but a general argument  that the bishop of London have no more right than the common grantee of the  next avoidance have by his grant that be no close reason for there be some  difference between the one and the other for in our case we claim under a Act  of parliament that can change alter annul abridge diminish qualify enlarge or  transfer any common shower KB law right and then here be particular  demarcation which be always exclusion of one another a Act of parliament have  the commonlaw and the prerogative too under its control and to evidence that  the prerogative be not so much value in law as a interest the king have we may  see Baskervils case   if the king have the title to present by lapse and the  patron present and his presentee be admit institute and induct and die the  king have lose his turn for no one time to run up king extend only where he  have a interest certain and permanent not to a limit prerogative title my Lord  we have all the common topic of argument on our side that the king prerogative  be bind because not save and the Act be for the benefit of the church and that  which we humble insist upon be this that not only this be a new law and  inconsistent with the former as to person and thing but that this avoidance be  upon the promotion of a person never present by we but who come in by Act of  parliament and they can show no precedent for the prerogative in this case  neither and if it be that he have a prerogative in ordinary case to present he  ought not here when we claim under a express particular limitation by  particular word suppose it have be give to the archbishop of York who never  have any thing to do in the live before he have have as much right to present  as the bishop of London have now and that we take to be good and the same Act  which make it at first a parish be that which give the first presentation in a  particular express way and it will be the same if it be give to a stranger and  that construe it as they will have it to leave a loophole for this prerogative  to get in at be to overthrow the intention of it and for these reason we pray  your judgement for the defendant shower KB hilary term the four and five of  William and mary in the king and queen bench Wednesday the that February