case the king and queen against the bishop or London William lancaster and  other Hilary term William and mary roll the bishop of London have the  patronage of the church of saint Martin in gross collate dr Lamplugh to the  live dr Lamplugh be create bishop of Exeter and the king by his prerogative  present dr Lloyd to the vacancy dr Lloyd be make bishop of saint Asaph and the  king present dr Tennison who be create bishop of Lincoln with a dispensation  to hold the vicarage of saint Martin and the rectory of saint James until such  a day and agree saint that the king have a prerogative to present to the  church of a subject on the incumbent be create a bishop d that upon all  avoidances by session this prerogative so often how often take place and d  that a dispensation to hold the same church do not satisfy this prerogative SC  lev SC lev Ent SC Mod SC Jones SC comb SC Carth SC salk SC holt SC ld ray Mr  Cooper may it please your lordship I be of council in this case for their  majesty who bring a quare hinder against Henry bishop of London and William  Lancaster divinity professor for recovery of the presentation here vice to the  vicarage of saint Martin in the field the declaration set forth that Humphrey  late bishop of London be seize of the advowson of the say vicarage in gross as  of fee in right of his say bishopric and that be so seize the say vicarage be  within the diocese of London he collate the say vicarage then vacant unto  Thomas Lamplugh who by virtue of such collation be put into the corporal  possession of the say vicarage and the say Thomas Lamplugh be thus vicar be  afterward create and constitute bishop of Exeter by virtue of which promotion  the same vicarage become vacant and belong to the late and then king Charles  the second shower KB er p to present by reason of his prerogative who accord  present William Lloyd divinity professor who be admit institute and induct and  shower KB then the say William Lloyd be thus vicar of the say vicarage be  afterward create and consecrate bishop of saint Asaph upon which promotion the  church again become vacant and the say king Charles the second by reason of  his prerogative again present Thomas Tennison doctor of divinity who be admit  institute and induct and the say Thomas Tennison be vicar as aforesaid be  create and consecrate bishop of Lincoln by which promotion the church be again  vacant by reason whereof it belong to the now king and queen to present ration  prerogativae of oneself a royal palace but that they be hinder by the  defendant my Lord there be upon the record which I shall skip a entry of a  demurrer upon a plea in abatement which plea be overrule and a to answer  ouster adjudge against the defendant upon that the defendant the bishop of  London come in and demurrer to the declaration general the incumbent the other  defendant dr Lancaster plead in bar that he be vicar of the say vicarage by  the collation of the other defendant the bishop of London and then he confess  the seize of Humphrey late bishop of London as it be allege in the declaration  and the collation to Thomas Lamplugh and the promotion of dr Lamplugh to the  bishopric of Exeter and the king presentation of dr Lloyd and his institution  and induction and the promotion of dr Lloyd to the bishopric of saint Asaph  and the king presentation of dr Tennison ration prerogativae and his  institution and induction then he set forth the statute of Henry c make  against sue for licence and dispensation from the see of Rome and for confer  the power of grant such dispensation on the archbishop of Canterbury for the  time be under the confirmation of the king by his broad seal in some special  case then he set forth that after the make of that Act and before the testae  of the original writ the other defendant Henry be make bishop of London and  that afterward and before the testae of the original writ to wit the that of  December the say dr Tennison be elect bishop of Lincoln then he set forth that  the archbishop of Canterbury the d of December do by his letter of  dispensation accord to the form of the say statute recite as be usual the king  pleasure signify to he dispense with the say Thomas Tennison shower KB and  grant that he shall have power and authority to retain together with his say  bishopric of Lincoln the say vicarage of saint Martin and rectory of saint  James Westminster which the say bishop elect be then possess of till the first  of July then next follow and hold the same in commendam in tam opportunity  modus et form who ante tunc usque time destroying literar management predict a  day bishop Lincoln dainties to hold back et to have and hold and may take and  dispose of the profit of the say live even if in speech vicarian et rectoria  non to sit back c then he set forth in his plea that the king and queen by  their letter patent under the great seal date d of December in the three year  of their reign and enrol in chancery accord to the form of the say statute  confirm the say letter of dispensation and then aver that the say dispensation  and confirmation be not repugnant to the law of God and that dispensation in  like case be usual grant before the say Act from the see of Rome then he set  forth that afterward to wit the that of December dr Tennison be create and  consecrate bishop of Lincoln and that vigor praemissor the say bishop of  Lincoln take to his own use the profit of the say vicarage till the first of  July ad who indeed they vicarian that secundum limitationem in prediction  letter management mentionat vigor praemissor vacavi whereupon the say bishop  of London put the defendant dr Lancaster into possession of the say vicarage  by collation and then conclude with another averment or two for great  certainty of plead the attorney general join with the bishop of London in his  demurrer and as to this plea of dr Lancaster he demurrer and the doctor join  in demurrer my Lord there be for I will take both case together another record  of the like quare hinder bring by the king and queen against the bishop of  London and dr birch for the presentation to the rectory of saint James  Westminster which I shall not now stand to open particular because I take it  to be the same in substance with the other there be some material variation as  indeed there be a particular Act of parliament set forth in dr birch plea make  in the first year of James the second shower KB er p for erect that parish  which I shall take notice of in the end of my argument not that of myself I  shall have think it necessary to do so but because when I move to make these  record consiliums I receive a admonition from the counsel on the other side at  the bar that I shall find a difference when shower KB I come to argue they and  except they mean that that Act of parliament make the difference I know of  none and I must yet confess I know no essential difference at all and if they  mean a difference that be not so I be glad to find they begin to please and  comfort themselves with this expectation that when they have lose all hold of  the former cause there yet be that straw leave to catch at in the latter my  Lord I think the point in law arise from these record be general but two the  one arise from the bishop demurrer to our declaration the other from the  attorney general be demurrer to the plead of the incumbent the declaration  entitle their majesty to the presentation here vice upon the last incumbent be  make a bishop ration prerogativae of oneself a royal palace the bishop of  London have demurrer to this title of the king by which he have force I for  method sake to make that a point which otherwise I have take for undoubted and  settle law to wit first that whenever there be a avoidance of a live by  session or by the incumbent be make a bishop the king by reason of his  prerogative be to present for that turn and not the patron and my Lord as to  the other point I conceive that the title of the king be not hurt by the  dispensation or confirmation thereof plead by the incumbent or any other  matter appear upon these record as to the first point I be sensible it be a  prejudice to a clear right find upon plain and settle law to enter into any  reason concern it or to produce argument to prove the fitness and justness of  that law for that be to draw the matter again into question and then that man  not appear reason to one man which have seem so to another whereas I take it  the authority of a constant usage for a whole century of year and upward back  and strengthen with judicial resolution and allowance from time to time  thereupon have be a sort of sensible argument which be sure of success and be  in the nature of a positive law can command a submission where it be not able  to persuade a assent in reason therefore my Lord I shall only produce some of  the principal authority which be to be find for this prerogative and rely upon  they without enter into the reasonableness of this law only so far as shall be  find incidently necessary to the confess and avoid some ancient authority  which seem to be against we in this point first shower KB there be the case of  eeds v the bishop of Oxford Vaugh in the beginning of that Lord chief justice  argument in that case it be one of the point which he take for grant and lie  as a foundation for his opinion that the king and not the patron be to present  to benefice so void by session which show that this point be then take for a  settle point in law by the counsel on both side and by the judge on the bench  or else he will not have put it among the principle which he be about to argue  from without far prove it and this I take to be one of the strong sort of  authority that can be cite so in the case of Basset v gee cro Elizabeth that  be a authority much of the same nature it be not indeed judicial the point in  question there but it be preliminary to that which be there the point in  judgement and it seem there to be admit on all hand as settle law the second  part of roll Abr after enumerate some old book wherein the contrary doctrine  seem hint at conclude with this caution but the law be now otherwise general  take and agree that be that the king shall have the presentation in the case  of armiger v holland cro Elizabeth this prerogative happen to be mention  accidental to the point in question and coke then attorney general say I can  show the resolution of all the justice that the queen in such case shall  present and Popham then chief justice say so be the common experience to this  day this case be Hilary term Elizabeth in wright case report in more there  this be the very point in question and if that report be true the judge there  call it the ancient law and prerogative of the crown and at last it be adjudge  upon many precedent show and many book cite and peruse that where a church  become void by session the king and not the patron shall present the next I  shall mention be woodley case cro James there this prerogative be shower KB er  p adjudge for the king and that in one of the hard case that can be put which  I shall have occasion to mention more particular hereafter bro Abr title  presentment all church pl cite a presentation by king Edward the three pro  here vice ration prerogativae of oneself upon the incumbent be make a bishop  and the book conclude with a remark that the law be so shower KB the same book  and the same title pl in the abridgment of part of the great case of Henry pl  it be now say in such case of creation the king shall present to all benefice  de pron  interrog  patronatu to step out and the same book and the same title  pl abridge a case Edward pl where a clerk be make a bishop by his consecration  all his other benefice be void and the king shall present de whoever  patronatibus to step out my Lord I have not prepare myself to trouble you with  produce more authority of this kind though I question not more may be find in  the book nor do I think the constant usage and practice have be for the king  to have the prerogative the crown have be in possession of it for so many year  pass for a time sufficient to procure any private person in the quiet  enjoyment of his estate and property my Lord it be true there be some old book  in the time of Edward the three and Henry the four which in the time of queen  Elizabeth and thereabouts do induce now and then a single judge to hesitate  and question the legality or at least the antiquity of this prerogative but I  can observe this upon all these case which be general of the same nature they  be quare impedits bring by the king to recover the presentation upon a  avoidance by session where he make his title either by the statute of provisor  or as guardian of the temperality during the vacancy of the see and the king  do not mention in make his title this prerogative from whence some will infer  that he have it not my Lord at present I think I have no need to go about to  look into the probability of this argument but I can admit the inference to be  good the king have two title to present one as in right of the temperality in  his hand the other by session ration prerogativae upon a quare hinder bring he  be I think regular by law to bold himself to one of they but then because he  do so I take it to be no argument to prove and therefore he have not the other  in he however I do not dispute but admit the old book till the time of Henry  the eight be not very clear in this matter and I find that that case which I  cite of Woodley in cro James say that many precedent be show and produce to  prove the lawfulness of this prerogative since the time of Henry the eight and  it must be confess that the law book speak of it since that time with great  clearness than they do before put all which together I conceive it may very  well be account for and reconcile in this manner one shower KB great reason  among many which I find give for this prerogative in the case of Wentworth v  wright cro Elizabeth and wherever it have be reason upon be that the vacancy  proceed from the king own act it be sufficient for the patron that he shall  have the advantage to present upon voidance by the act of God as death or by  the act of the incumbent as resignation and the like but the voidance upon the  promotion of the incumbent to a bishopric proceed from the king own act it be  fit he shall have the benefit of it for if the king have not do it the vacancy  may have be suspend till the death of the incumbent now my Lord this reason be  not in force from the time of king John till the twentyfifth year of Henry the  eight what it be before the time of king John we be perfect in the dark about  it have no report of law case so old but during that interval between his time  and the twentyfifth year of Henry the eight the king have little or nothing to  do with the election or consecration of bishop the election of the chapter be  then or by law ought to have be free after the king general licence to proceed  to election first have as appear by the statute of provisor Edward c and the  Richard c and the consecration or investiture be under the authority of the  see of Rome and such election and such consecration make the incumbent perfect  bishop especial as to the avoidance of his former live indeed it be true they  afterward do come and pay a formal compliment to the king in ask his assent  and renounce every thing do by the court of Rome in derogation of his royal  authority which be in order to get the temperality out of the king hand but  still the bishop be perfect bishop and all his former benefice void by the  free election of the chapter and the consecration by virtue of the pope shower  KB er p bull so that during that time the avoidance can hardly be say to  happen by the king act but now since the statute of Henry c the table be turn  the king have all the essential power necessary for make a bishop and the  clergy have nothing leave they but a mere shadow of power a negative voice  indeed a very snare to they which it be as dangerous as vain and idle to make  use of so that as the reason of this prerogative grow strong and strong I  observe the judge grow clear and clear in their opinion for it and have give  it from time to time judicial allowance I think without interruption till at  length they have add to the rest one argument more for it and that the strong  of all the authority of a long and constant usage for so many year pass to  this day and which it seem have entitle the shower KB crown to so many several  presentation to this very church of saint Martin upon the same title that be  now contend for so that my Lord I shall venture to trust this first point upon  what have be say and pass to the second the more considerable of the two that  this title of their majesty to present pro here vice upon the promotion of the  incumbent to a bishopric be not alter or hurt by the dispensation in the to  hold back or any other matter appear upon these record my Lord have prove  already that there be such a prerogative of the crown that upon all avoidances  by session the king and not the patron be to present the next step I be to  take be to show that these avoidances in these live of saint Martin and saint  James do happen by session or by the promotion of dr Tennison to the see of  Lincoln notwithstanding any matter set forth in the plead of the incumbent and  that I hope may be do in a very plain method first my Lord the election in  this case come in point of time before the dispensation but the consecration  be after the dispensation now it be most clear law by many authority ancient  and modern that it be the consecration and not the election which make the  bishop and consequent that the benefice of the bishop be not void by the  election nor until consecration so be Edward pl b and the great case of Henry  pl and the case of eed v the bishop of Oxford Vaugh and indeed all the book  which speak of a avoidance by session agree this to be law next my Lord I take  to be as clear that this dispensation and confirmation plead by the incumbent  come before the avoidance by consecration do prevent and suspend the avoidance  so that it do not happen at the time of the consecration nor until the first  of July when the force of the dispensation expire and this matter be the  better opinion of the great case already cite Henry pl and large treat of in  the other case of eed v the bishop of Oxford and sufficient prove there by the  Lord chief justice Vaughan who labour I may use if there be any occasion for  it upon these record but I think my Lord the defendant in their plead have in  a great measure save we that trouble for they have aver that such dispensation  be not contrary to the law of God that the pope use to grant such dispensation  before Henry and indeed all the other thing by which the Lord chief justice  Vaughan in eeds case prove that the archbishop and the king may legal grant  shower KB such a dispensation by that Act which be necessary for they to do  for if the dispensation be not good it will make nothing for they upon the  point that they go upon if then the dispensation be admit legal and valid as I  say it must be or the defendant have nothing in their case it be to be  consider next what be the effect of it and that be best see from the  dispensation itself it be a dispensation give a faculty to hold back not  hegoat and to retain in the same state that the incumbent have it before my  Lord it appear in eeds case Vaugh beside many authority there cite to the same  purpose and I never see any book that doubt but that by virtue of such a  dispensation in the to hold back the incumbent after his consecration continue  in his benefit per vim earlier times distinction to all intent and purpose  whatsoever during the dispensation but I shall not trouble your lordship with  a long bead roll of authority upon this head for the defendant have agree this  too in their plea they allow the dispensation to hold back in tam opportunity  modus et form to be effectual they plead the consecration but do not say the  live immediate avoid upon the consecration but on the contrary they say that  dr Tennison do enjoy the live and continue to take the profit until the first  of July then next follow at which time the say church accord to the limitation  in the dispensation shower KB er p become void so that we seem agree thus far  that the church then first become void and the only question if it be a  question be how the church do then become void and true as to that question  let they but give I a single and determinate answer and I dare refer myself to  the counsel on the other side to tell how can it be by any other mean than by  session by the promotion of the incumbent to be a bishop this be so clear a  truth that they who draw the defendant plea find it stare they in the face and  they can not avoid take notice of it nor cover it but under a general and  ambiguous expression for they say it become void that first of July vigor  praemissor but now with submission I can ask which of the premise it be that  make the live become vacant it be not the election of dr Tennison to be bishop  of Lincoln that be prove already and agree to be no avoidance in law it be not  nor can be the dispensation or confirmation for they be make to prevent the  avoidance and do actual suspend it while they have a be and for want of which  it have be vacant so that there remain nothing but the consecration that can  cause the shower KB avoidance and the vigor praemissor must signify that at  the first of July when the dispensation expire the live become void by virtue  of the consecration Vaughan chief justice in the end of eeds case speak of a  dispensation in the to hold back say thus that when it come to be determine  the matter be as if it have not be but if this dispensation have not be no  doubt the live have be avoid by session my Lord Hobart in his report in the  case of colt v glover whereas they call it commendam say a commendam to hold  back be proper no commendam but only a faculty of retention and a continuation  of the benefice in the same person and state wherein it be notwithstanding  something intervene as a bishopric or the like which without such a faculty  will have avoid it so there this faculty keep the benefice in the same person  and state it be till the first of July when for want of it the live become  void by session and my Lord it be thus prove and take for grant that the king  be to present upon a avoidance by session and that these benefice do void by  session only the conclusion be selfevident and therefore I need not mention it  and I can see but one way of evade the force that have any colour they may say  it be true the general practice have so go and so the law be general take and  in strictness of law if you follow it close it be a avoidance by session but  all general rule have their exception and this general rule have this  exception where it happen after a commendam and in this case the church  continue full after the consecration by virtue of a dispensation which the  king confirm the king have thereby supply his turn and so this may be except  out of the general rule of this king prerogative to present upon a avoidance  by session but for this I give it this answer first I say it will lie upon  they on the other side to produce authority to prove this case of they to come  within any such exception of the general rule which otherwise lie hard upon  they but true in the mean time I think it may be prove in the negative that  the law admit of no such exception and that this act of the king set forth in  the incumbent plea can in law or reason amount to a fulfil of the king title  by prerogative or a user or satisfier of the turn which the law give he and  that upon these authority and consideration those shower KB two great chief  justice Hobart and Vaughan be of opinion that there be no such exception and  Lord Vaughan in eeds case put a much strong case than this present case that  be of such a dispensation in the to hold back to last for three year if say he  I obtain a dispensation before consecration to hold my benefice for three year  during the force of that dispensation I remain parson of the same benefice of  no less estate than I have before and when the three year be pass the benefice  void as it will have do at the first if there have be no dispensation the Lord  Hobart before he in the case of colt v glover say the same thing in almost the  same word but with this addition that here be no injury do either to church or  patron for though it be damnum yet it be without in an unjust manner and so  they make no difference between this avoidance by session and after a  dispensation for they say in the case of a suspension by dispensation in the  to hold back for three year it do avoid at the end of the three year as it  will have do at first if there have not be a dispensation but then my Lord to  enter into the consideration of the reason of the thing as there be no law to  justify this difference so neither can there shower KB er p be any reason  assign why this dispensation in the to hold back thus confirm by the king  shall amount to a user and fulfil of the king turn and that upon these ground  first this dispensation or grant of this faculty to retain be the act of the  archbishop and not of the king who only confirm my meaning in this be to be  find in my Lord Vaughan who observe very well in eeds case folio where speak  of this same act of confirmation he say the king by such confirmation do not  intend to transfer any right of his into the incumbent by continue his  possession but his confirmation be only formal to complete the dispensation of  the archbishop again this I reckon be but a day or two long than a commendam  halfyearly and de least non curate law now if the archbishop have in this case  subsequent to the consecration grant a dispensation or faculty which they call  a commendam halfyearly to dr Tennison then bishop of Lincoln hegoat et rashly  these live in commendam for half a year from the time of the avoidance this be  though it be in the hegoat but a temporary provision for the church for such  time as the law give the patron to present in and though the king have confirm  such a dispensation that may have be without hurt his right of presentation  and shower KB I hold that at the end of that commendam halfyearly the king and  not the patron shall present for it be plain in hob in the case of colt v  glover where all this doctrine be treat of and from the many learned and  laborious citation by he there make out of the canon law that this commendam  halfyearly have nothing of a presentation in its nature nor meddle with the  presentation or right of patronage but be mere a temporary care or provision  for the church during the time which the patron have by law to present in and  grow out of a natural equity that the cure of soul may be always serve and  therefore it may legal be make without consent of the patron and it expire at  the time limit which a commendam in the hegoat for a long time after the  avoidance can not for that amount to a presentation in its nature and can not  be for a less time than a perpetuity and the commendatory be regular to have  be present by a patron and sometime institute and induct my Lord the use I  make of this matter be this if the king may as I make no doubt he may have  confirm such a commendam halfyearly without infringe his right of presentation  much more may he do so in a dispensation to hold back which prevent the  avoidance for so long as it continue in force it be make in time before his  right happen it be prove and indeed admit I see that the church first avoid  the first of July and since that there be nothing pretend to be do to the  prejudice of the king title or towards the supply of his turn and it be very  hard to pretend to have he do any act before he have a title in he that shall  hurt his subsequent title or be a user or executor of it beside my Lord how  can it be say that this dispensation and confirmation amount to a user or a  execution of the king turn which he have by session for it be inconsistent in  itself to say that one and the same act shall be construe a suspension of the  vacancy whereby the title shall arise and yet at the same time be a use of the  turn and a supply of that vacancy which be so suspend from happen the  dispensation and confirmation keep off the king title from accrueing till the  first of July and can they likewise give he the full benefit of that title in  the mean time that be repugnant and impossible but shower KB my Lord there be  another consideration which extend itself only to the church of saint James  where the bishop of London have only the next avoidance and the Lord Jermyn  the next after that now if the king have have his turn by this dispensation  and confirmation then the bishop of London have lose his next presentation and  so the bishop have make no title for then the Lord Jermyn be to present next  and not the bishop accord to woodley case cro James where it be adjudge that  if the grantee of the next avoidance have it evict from he by this prerogative  of the king it be lose for ever and he shall not have the next to that for  here the king present in the grantee turn but if the king have not use it then  it be not lose and they there put the case of a eviction by title of dower  subsequent to the grant of the next avoidance or by statute but my Lord coke  in his commentary upon Littleton folio b and a deny that of dower to be law in  this special case where the grantor seize of a advowson in fee take a wife by  which she become entitle to the three presentation and then grant the three  presentation to another and the husband die shower KB er p it shall be take  the three presentation which he may lawful grant that be indeed the four but  it shall seem otherwise if the grant have be make before marriage for there  the grantee lose his turn for ever by such eviction and so be cro Elizabeth in  the case of William v the bishop of Lincoln my Lord it have be already observe  and further may be see in Jones Evans v aswith Fitzherbert n b b light h there  the law be make very plain from case put that by virtue of this dispensation  in the to hold back the incumbent continue in per vim earlier times  distinction and if dr Tennison continue in till the first of July per vim  earlier times distinction then it seem the king confirmation can not transfer  any new title to he and so the king by this act of confirmation do not impair  or diminish his own title I have now my Lord go through the two main point  which I mention at first to concern both the case and now come to take notice  of the difference and distinction between the two case that be hint at by the  other side as far as I can apprehend it and it stand thus in the declaration  upon the second quare hinder bring for the presentation to the church of saint  James Westminster be set forth the Act of parliament make in the first year of  James the second for erect that a parish it enact that there shall be a  perpetual succession of rector there to have cure of soul c then it come to  appoint the right of patronage and order of presentation shower KB dr Tennison  for his great service particular to that place be appoint the first rector  afterward upon his death or the next avoidance the advowson or presentation  shall belong to the bishop of London and his successor and the Lord Jermyn and  his heir there it be give promiscuous but then it settle it in this order that  the bishop of London shall present or collate first then the Lord Jermyn or  his heir then the bishop of London twice then the Lord Jermyn once and so  twice and once for all time come this by the Act be the distribution make of  the presentation and the advowson be give to the bishop of London and the Lord  Jermyn in fee their several turn be appoint to they and now what use will they  make of this Act what will they have this matter amount to true I have all the  reason in the world to ask their pardon if I mistake their difference it be  such a trifle one the Act say that after the death or removal of dr Tennison  the bishop of London be to present first or which be all one the first turn be  the bishop of London or his successor but if the king shall present by his  prerogative in this case then the bishop will not present first and so the  letter of this law will not be fulfil I grant it but the meaning will for here  the king present by rule of law and in the right of the bishop of London the  live avoid by session in which case the law take the presentation from the  ordinary patron and give it to the crown and as to the hardship of that in  this particular case it may be object that the bishop may lose his turn I  answer that be not our present question whether he will or no or what will be  the effect between the title of the bishop and the title of my Lord Jermyn but  if that shall be the consequence that the bishop shall lose his turn the  bishop of London case will be but the same with woodley case and the same with  the case of every grantee of the next avoidance who upon eviction by statute  or elder grant or even this prerogative of the king be to lose his turn and to  this purpose there be another authority that I will mention and that be brook  abridgment title presentment all Eglize pl now if so then no doubt it be never  the meaning of this Act of parliament to tie this presentation or this turn so  fast about the bishop of London neck as a incident inseparable that nothing  can take it off or to give the bishop and the Lord Jermyn this advowson in  such a manner as no patron or patron in England hold they it be never the  intent of this law to make the presentation to this church a singular instance  shower KB and different from all the church of England beside a peculiar  exempt from the ordinary rule and government of the law and custom of the  realm such a special meaning shall have appear in special express particular  word in the Act and the reason which induce the parliament to this singularity  shall have be evident too else whenever a Act give any thing general and  without any such special intention declare or rational to be infer it give it  always subject to the general control and order of the commonlaw as to keep to  the present instance if this live have void during the vacancy of the see of  London while the temperality be in the king hand I take it for undoubted law  that the king then and shower KB er p not the successor of the bishop shall  have present and yet the letter of the law have equal as much fail in that  case as in the present case for then the king and not the bishop of London nor  his successor have present if Lord Jermyn who have the title of his turn in  the same word that the bishop have the title to his turn in shall be attaint  of treason or felony the king shall present in his turn and not the Lord  Jermyn or his heir and here again the letter of the law will fail as have or  worse than in the present case for then the Lord Jermyn and his heir will not  only not present in the second turn but will never present to this church at  all if I have land give or convey to I by Act of parliament in the usual word  of entail such a estate tail I take it be dockable by the usual mean of  docking other estate tail except there appear a plain meaning in the Act that  I shall not do it a grantee of the next avoidance be to lose it in such case  as before particular where the live become void by session but yet such a  grantee if he claim under one who have a power to make such a grant have as  good a title to it by the commonlaw as the bishop of London here have by the  statute law for both be but the law of the land the one as well as the other  and so I see no reason of difference why the rule of law about the king  prerogative shall not operate as strong upon this latter title as it do upon  the other my Lord I know not what to say further in this matter true it seem  to I to be very clear of itself it be one of those notissimums where I must  confess myself at a loss to find the to prove it by when a Act give any thing  general it give it subject to the rule and government of the law and custom  shower KB of the realm this be so evident a truth that I can argue from it if  there be occasion but I know not how to argue to it if I shall dwell all day  upon it I can only twist it and turn it and show your lordship a plain thing  and in different light and true the contrary assertion that the word of this  Act of parliament have exempt this advowson from the ordinary rule of law seem  to I I beg your lordship pardon if I mistake to be no better than a mere cavil  a play with the letter of the law a stick in the bark as my Lord coke call it  a sort of learned trifle which be I never so zealous for my client I shall  esteem as I hope your lordship will unworthy the grave attention of a court of  justice my Lord I shall trouble you no far but only to recapitulate the method  I have go in and so conclude I hope it appear clear to your lordship first  that the king have this settle prerogative that he and not the patron be to  present upon avoidances by session second that this be not hurt by this  dispensation in the to hold back but that these live do avoid by session only  on the first of July three that there be no difference in law or reason  between a avoidance happen by session immediate upon the consecration and  where it be by session suspend for a time especial by such a sort of  dispensation as this be for six month and a few day and last that this Act of  parliament set forth in one of the declaration make no diversity at all in law  between the one case and the other and therefore I pray your lordship  judgement for their majesty and writ to the archbishop to admit their clerk  because bishop be pars Mr sergeant levins may it please your lordship I be of  counsel on the other side and I shall argue both the case together as this  gentleman have do because as to the main point they be alike though I think  they do likewise differ in several point which be not so little material as he  be please to make they as I hope to prove to your lordship by and by my Lord  the record that have be open I will take as a case and not trouble you by open  it any more the parsonage of saint Martin be in the gift of the bishop of  London who collate dr Lamplugh the king make dr shower KB Lamplugh a bishop  and then present dr Lloyd and afterward make he a bishop and then present dr  Tennison then dr Tennison be elect bishop and there be a dispensation give he  confirm by the king to retain this church for above six month and then he be  consecrate now whether after all this the king shall present a new parson to  the live be the question indeed as to the other case of the church of saint  James it do not fall out to be the same case appear upon the record or that  the king have have so many turn in presentation because it be make a parish by  Act of parliament since the presentation of dr Tennison and so there have be  no turn to present till now but as to saint Martin there have be a great many  presentation by the king one after another and shower KB er p know not when  they will be at a end after this rate he have have three turn already and how  many more he may claim by the same title I can tell but my Lord that which I  have humble to offer to your lordship consideration be this that there arise  three point upon the case of dr Lancaster as to the live of saint Martin first  whether the king have such a prerogative as be here contend for and I take  leave to differ from the counsel on the other side in that point that by law  the king have no such undoubted right in case of a avoidance of a live of  which a subject be patron by the incumbent be make a bishop to present a  parson to the live second whether the king have such a prerogative as this so  often how often that as often as he make a parson a bishop though he be  present by himself by such a prerogative before yet he shall present again and  the three be that which have be touch upon by the other side whether or no  this dispensation and confirmation admit the king have such a right to present  upon this avoidance for this time this commendam to hold back for above six  month have not satisfy the king turn these point arise upon this first case  and as to the other there be only one to be add whether in the case of saint  James this Act have not make such a difference as that the prerogative be  thereby exclude my Lord as to the first point I humble crave your lordship  leave to look a little into it though I know there have be some late case that  seem to admit this prerogative in the king yet I dare be bold to assert that  the old book be all against it for I take it for clear ancient law that where  the incumbent shower KB be make a bishop all his live become void and as for  the king prerogative it be all part of the commonlaw which be law time out of  mind and f there have be any such prerogative it will have be know but in all  our old law we be certain it can find no foundation but my Lord to come close  to this first point that the king have no such prerogative upon his make the  incumbent a bishop to present to a church that be another patronage I will  first mention what I find in that case which have be cite on the other side in  woodley case cro James Hutton justice do express deny that the king have any  such prerogative or any title to present except where he himself be patron and  that there be no such presentment till of late day nor any book of law to  warrant it except the case which be in bro Abr press all englise but the  report of woodley case cro James do seem to admit that winch justice be of  opinion for the prerogative and only Hutton justice against it for he make  winch say that the king have a absolute title by his prerogative as well in  the case of a common person patronage as of his own but if you look into  Winchs report where the same case be report fol and you will there see that  they be both of another opinion that there be no such ancient prerogative and  there it shall seem that winch do ridicule the opinion of brook that it be the  say of the bishop of Ely who be then chancellor that he may have right to  present to it by his place if the king have such a prerogative and indeed  brook himself have make a remark upon it as if it be a thing never hear of  before for at the end of it he put quod notam my Lord I do agree that the king  have many time present parson in ancient time to live of the subject patronage  but I deny they be jure prerogativae but upon other ground and particular it  be so Edward there the king present a prebend upon make the prebendary bishop  but how come that the book tell you because the temperality of the bishop who  be patron of that prebend be in the king hand and then he present as patron so  long as the temperality be in his hand and so be the yearbook of Edward pl a  case be cite on the other side out of the abridgement but you will find it at  large in that book it be a presentation of the king to a prebend because the  king have the temperality in his hand and there it be a presentation as patron  for so long as they so continue in his hand so shower KB likewise be Edward  the king do there present to a live where the parson be make a bishop but why  be it not because of this prerogative there be no such thing mention but the  patron be the king tenant in capite and the heir be in ware to the king and so  he have shower KB er p law patronatus in he then there be Fitzherbert Abr  title quare hinder pl the king claim title to present to the provostry of well  in the gift of the bishop void upon the provost be make dean because the  temperality of the bishopric be in the king hand at that time and the case  that be cite on the other side be in my opinion as strong a case against this  prerogative as can be that be Henry folio and the ancient case of a commendam  in our law or that be any where extant in our book and the case in short be  thus the king bring a quare hinder and make his title by the creation of the  incumbent to be a bishop there be some debate upon the declaration but the  defendant plead that the king grant the temperality to the now bishop before  the live become void then the king waive that declaration and make a new one  and declare upon the statute of provision because the pope have usurp a power  which that statute deny he and so it will go to the king there be no judgement  at all give in that case upon the first point but it shall seem that the king  counsel in that case be of opinion against this prerogative because they do n  a stand to that title but mend their declaration and betake themselves to  another title now that be a point direct to have be judge upon if they have  think fit to have abide by it for the plea of the defendant be no answer at  all to the title that the king make because if the law be as they say it be  now take to be the temperality be in his hand or out of his hand will not  alter the case and this I say be a great authority that in so ancient a time  as that the king be satisfy he have no such prerogative because he waive that  title and go to another my Lord there be a case in the four institute and take  out of the record of Edward the king make the archdeacon of Cornwall in the  gift of the bishop of Exeter a archbishop in Ireland and the king present to  the archdeaconry but the observation make upon the record by my Lord coke be  this that it be not by his prerogative but because the temperality of the  bishop of Exeter be then in his hand I shower KB do agree my Lord that there  be some late case that have be cite which do go that way that the king have  such a prerogative and the first that be to be find in print be that case of  wright in easter term Elizabeth more pl there indeed this be the point direct  in judgement before the court and there be judgement for the prerogative  though it be oppose by the other side for this title be demurrer unto but with  very little argument as shall seem by the report of that case in that book for  there be only seven or eight precedent of such presentation show and without  more ado the court give this answer that it be the settle prerogative of the  crown to present when void by session and not the patron and they will not  alter the ancient prerogative there I confess be judgement for the king but I  say without much argument then there be the case that have be so often mention  of bed v the bishop of Oxford Vaugh and there indeed it go so far as to take  it for settle law as to this first point that upon avoidance by session the  king and not the patron shall present but as to the other point that he shall  not present a second time and so so often how often I do not know that there  have be any authority cite or be to be find my Lord I confess these two  authority be in point against I upon this first matter but I beg your lordship  will please to consider the time when these two case be ad add and the  distance of time between they the first be of Elizabeth the other be car but  now my Lord I desire to offer what authority I have to the contrary I take it  those old case that I mention before show that the king title be upon account  of the temperality be in his band or by the statute of provisor and then there  be a judgement one for the king upon the incumbent be make a bishop without  consider what other reason may be give for it a little strain may be make to  extend it from the other case and take that of prerogative to be a good title  to the king too but my Lord by what I shall flow come to show you out of our  old book and other authority I take it I shall make it clear appear that the  kin have no such prerogative to present to a live in the patronage of a  subject that be void upon his make the incumbent a bishop and shower KB I  begin with doctor student c where he be treat of lapse and show how the six  month be to be account and there he speak of the patron be to present but no  mention at all of the king within six month after the avoidance by creation  session or death so that then there be no such thing think of as this shower  KB er p prerogative my next authority be dyer b Lord Sidney case there this  matter be before the court though not judicial for there be issue upon another  point which be to be try whether the live be void by resignation or  deprivation but there the defendant title be under the presentation of the  queen who say the book suppose she be entitle by prerogative to present upon  her make the former incumbent a bishop and the benefice be void by session but  my Lord chief justice dyer have these word very remarkable and nest lie come  jeo intend quod some associate urinate to discern by sense there you have the  opinion of the whole court of common plea and this be before the case of  wright v more but now my Lord I come to cite a case that be four year after  the case in more and that be in the of Eliz it be report in Owen there this  point come in question direct whether the king have such a prerogative to  present where the parson be make a bishop yea or no and there it be say there  be eight or nine precedent in the time of Henry the eight that the king use to  present in such a case but all of they be between spiritual person and the  court say they will take no regard of those precedent for they be late thing  and true though the pope use before that time to present in such case yet the  pope have use to do strange thing by usurpation upon the clergy who be the  pope servant as indeed he begin all his usurpation upon the laity by first  usurp upon the clergy who by degree bring the laity under they too so that my  Lord your lordship see how the very pretence of this begin by the usurpation  of the pope upon his clergy in such case he have all ecclesiastical person  under his girdle they be his servant and he can deprive they or do what he  will with they and therefore he make use of they to hook in his jurisdiction  too over the laity and the clergy have all along before the reformation do  great thing for exalt his spiritual power and as long as they be under the  pope shower KB girdle whatsoever he will have be a law to they which make the  Lord Hobart entitle the pope daemon meridianus and Walmsley in the report of  Owen cite a precedent which he say he have see to be adjudge in the time of  Edward the second that the king have no such prerogative but my Lord I will  now presume to show you the book in print that he there say he have see it go  up and down in copy by manuscript long before but now it be print by my  brother Maynard and it be Edward and the case be this Hugh de Courtney bring  his quare hinder against Thomas de Hutwat for the church of Bingham and set  forth that Isabel de force countess of Aumerle present such a one upon the  live become void by session to wit by the incumbent be make a bishop but never  a word of the king title in all the case or any such prerogative as be now  contend for Stamford in his book of the prerogative cap be treat concern the  king prerogative about ecclesiastical live but there he take no notice of any  such prerogative as this either in the statute or his treatise about it  therefore I conceive I may well argue that there be none such and that the  other old case which I mention before in the time of Edward the three be of  presentation upon other ground which come at last to be extend in these latter  judgement as far as to this case but without any good foundation and that may  be reasonable infer at least doubt of because no ancient book of law give we  any hint of any such prerogative and that my Lord be all I shall trouble your  lordship with upon that point deny that the king have real any such  prerogative to present to a church that be in the patronage of another man  when it be void by session as by the incumbent be make a bishop or the like  but my Lord the second point carry this prerogative a great deal further the  king first make the parson present by the patron a bishop and then by this  pretend prerogative present to the church so void by session then he make his  own presentee a bishop and upon that present another and then make that second  presentee a bishop and now will present again and I can tell where it will end  if he have such a prerogative of present so often how often though he have do  it never so often if he may carry it on thus the patron will always be a great  way off from present to his live it shower KB be true my Lord in bed case the  king do not only give a commendam to Paul when he be make bishop to hold the  live but when Paul die he give another commendam to the new bishop the first  commendam t there be not one word in that book of justification shower KB er p  of this point of present by prerogative so often how often upon a commendam to  hold back I agree the parson be in upon the first presentation in the same  estate and so it be positive resolve by my Lord chief justice Vaughan but that  the second bishop shall have it there be not the least word speak in  justification of it nay it be adjudge express against the second bishop so  that case can be make use of for the king prerogative as to this point my Lord  if the law shall real be in this manner that as often as ever the king make a  parson a bishop he shall present to the live then the patron of a great live  shall never have his patronage but by mere accident for there be not many  great live in England such as be fit to be give to man of great learning and  part out of who when a bishopric fall a election shall be make and thus the  king will have opportunity to get all these presentation and keep they still  on because when a bishopric fall he will present such a one and when another  fall he will present another and so the patron will never come at his live  here have be two already beside this commendam to dr Tennison which we say be  a three and to what number it will increase unless the law put a stop to it  can easy be foresee and this point be applicable only to the first case and  not to the other where this have never happen till now but then the next point  which concern both the case be if the king have such a prerogative whether he  be not satisfy with his turn by this commendam for above six month that be  have go so far as the first of July when the six month end the that of June we  say it be to be suppose that the king intend to have his presentee to bold it  no long but that he will leave it to the patron to present afterward my Lord  these commendam have never be of very good reputation and in the canonist  there may be find many hard word against they in davis report a he say they  call it commendam quasi comedend because church who to give up in commendam  quasi to heal et devora and indeed the commendam be many time ad month of the  bishop my shower KB Lord Hobart cite the Council of lion as the last Council  that give leave to commendam and that council decree that a commendam shall  not exceed six month and that consensus patron et all who to hurt to be able  shall be have and out of the constitution of Othobon here in England in the  year a canon de commendam an assembly of the which upon the mischief of they  revoke all commendam nisi ex evidence usefulness One so much church entrusting  fanctam sit these commendam my Lord Hobart reckon up to be three the first be  commendam halfyearly and that say he do grow out of a natural equity that in  the time of the patron respite give he to present in the church shall be  supply with a provisional pastor before a lapse happen the next be perpetuan  or for life and the three be limitata now this commendam in our case be  neither for six month or for life therefore by consequence it must be of the  three sort a limit commendam for it be more than for six month which be only  to supply till a lapse or presentation and it be not for life in short it be  such a one as the pope use to make ex fullness power of oneself and therefore  when the king have do that which the pope do ex fullness power it must be  reckon a execution of his prerogative it can be in pursuance of the canon  which limit it to six month and no more if he do it out of his royal  prerogative and fullness of power then this must be a answer of his  prerogative as to this turn this dispensation be the d of December and it be  to hold till the saint of July and so it may have be as well for sixteen month  or sixteen year and then I take it when the king have make such a commendam it  have be a execution of his prerogative without all dispute and he have do all  that he can do to present in his turn for if it shall fall out that the king  shall give a dispensation for long than six month and afterward have the  presentation for life too that will be a strange prerogative it may first go  for twenty or thirty year and afterward be present for life at last which will  run into the same mischief as the other point of so often how often and that  will be I think very hard to maintain my Lord I confess there have be variety  of opinion in the book about the construction of such dispensation as have be  make for long than six month in cro James Woolleys case they say if a  commendam be for a time limit yet the commendatory shall be parson for life  and retain it so for the king can no more limit the time shower KB er p than  another person can confirm another man estate for a time only or a executor  shower KB assent to a legacy for a time or a tenant attorn for a time but my  Lord other be of another opinion that the party shall have the live but for so  long time only as the dispensation limit as my Lord Hobart who say a commendam  to hold back may be for year and for a lesser time than for life and this  opinion seem much more reasonable than the other that he shall hold for life  contrary to the import of the very commendam and true my reason for it be  these first if the king have not give this commendam the church have be  absolute void upon the consecration of the incumbent nothing hinder this  avoidance but this dispensation and that very dispensation do not say that it  shall be hold any long than the first of July second that which be allege will  be as good a reason for hold the benefice after a commendam for six month but  that be never pretend to be insist upon as good to give a title for life and  this be not like the case that be put of confirmation assent to a legacy or  attornement for there be a prior grant of another man which be good but not so  firm till the person the law put that upon do assent to it and when once he  have assent it be good for the whole estate grant and can be divide but now  here be a parson in that shall be out if it be not for the dispensation which  be the only title he have and therefore may be limit and if it shall be  otherwise great mischief will follow but my Lord this I say if it be only for  a limit time I do agree that he be parson for that time to all intent and  purpose but it be beyond six month it be by virtue of the king prerogative and  if so that will answer his turn and if it do answer the king turn then the  benefice become void again the first of July after the king turn serve and we  have well present our clerk be in possession of the live and the king have no  title and so much for that case of saint Martin as to the other case my Lord  of saint James I shall only trouble your lordship with a very few word the  parsonage of saint James be a new create live by Act of parliament that bind  and butt the parish and enact who shall present after the avoidance by death  or otherwise of dr Tennison to wit the bishop of London for the first turn and  the Lord Jermyn for the next and then the bishop shower KB of London twice and  the Lord Jermyn once and so for ever now as to this this with submission my  Lord I say that by this make of dr Tennison bishop the live be void of he and  the bishop of London ought to have the next turn and shall not lose it by the  king prerogative if there be such a one for this Act of parliament have  particular and express limit that the bishop shall have the first turn after  the voidance without save the king prerogative have exclude that prerogative  of the king for this turn for it create a particular way and method of the  presentation et demarcation One be exclusion of one another and my Lord though  this Act of parliament do not name the king yet I conceive it be the strong  for that there be more need to have save this prerogative because new act of  parliament make for the benefit of the church do bind the king prerogative  unless it be save as be hold in the case of the king ecclesiastical law   and  Magdal college case   and another thing be this this be a new affirmative law  and though they do not always imply a negative for the abrogation of old law  yet they do in some case and these be two especial first if the two law be  inconsistent as to person and thing which I think be our case for the statute  say the bishop of London shall have the next turn after the avoidance then the  king can have it by his prerogative and it be as much as if the statute have  say he shall not because they both can do it a second case be where the new  law be for create something that be not before there a affirmative law imply a  negative as in Hobart the case of sleak v drake and so the statute that  appoint writ of error upon judgement in the exchequer to be before the  chancellor c no other can intermeddle with they because it be a new law that  create a new judicature and my Lord I rest upon this matter in this case here  be a new church make that be not a parish before but create by this very Act  the presentation be direct in particular and express affirmative word there be  no reservation of the king prerogative therefore that be bind if he have any  though we do not agree he have any and so we pray your judgement for the  defendant shower KB er p shower KB the Lord chief justice I suppose you intend  to speak to it again Mr sergeant levins yes my Lord if you please some time  next term the Lord chief justice why brother levins true as to the first point  I think it have be too much practice now to be dispute it be a question  heretofore we know as appear by that case you mention in dyer and it be a  doubt make in woodley case in cro James but I think since wright case where it  be so solemnly resolve that the king have such a prerogative it be not to be  make a question now and then that point be take for grant and admit on all  hand in bed case in my Lord Vaughan and so it have be practice ever since as  appear by this very case before we Mr justice dolben but it have be always  grumble at my Lord the Lord chief justice but it can never be get over Mr  justice dolben the case never come in question but some judge or other be  against it shower KB the Lord chief justice the truth of it be it do import  you very much who be of counsel for the defendant as to the case of saint  Martin to make it a disputable point if you can take but the point for grant  once that the king have such a prerogative then the other thing about the  reiterate of the presentation so often how often I doubt will be a hard point  against you Mr justice dolben my Lord a great deal have be say on both side  pray let it be argue on all the point when it come to be speak to again the  Lord chief justice yes it will be speak to again I suppose some time the next  term and we will give our opinion with as great deliberation as we can it be  plain in practice it have be for many year after that judgement particular we  see within these twenty year pass in this very church a have be experience  thrice and so it have at saint Andrew Holborn in several instance in our  remembrance and that live be now enjoy under such a title Mr justice dolben  and the frequency of it in these great live be to I a very great argument  against the reasonableness of it for in saint Andrew the true patron do not  present above once in a hundred year and that be dr Stillingfleet Mr attorney  general then the king have be in possession of this prerogative a hundred year  shower KB the Lord chief justice brother I say not any thing as to the  consequence but it have be practice and adjudge and that be a great argument  of the law in this case I give you no opinion now nor will I enter upon a  enquiry into the reason upon which it be ground but it seem considerable that  it have the countenance of usage and judicial allowance and as to the other  thing if the king have such a prerogative the same reason and occasion happen  again will give he a renewal of his prerogative and therefore I say it be very  wary and perhaps necessary do of you who be for the defendant to make it the  main point in dispute for it concern you very much to have it so Mr justice  dolben I pray my Lord let we deliver no opinion till it be argue again the  Lord chief justice I do not give my opinion brother Mr justice dolben No my  Lord it be a case of great consequence and that point I desire may be argue as  well as any of the rest the Lord chief justice but brother if I be ready to  give my opinion I hope you will not restrain I Mr justice dolben if it be to  be argue again I desire the whole case may be argue entire shower KB the Lord  chief justice well brother I tell you I do not give any opinion but only we be  break the case that we may show what be a doubt with any of we and as to that  point of the dispensation and confirmation be a user of the king turn it be  agree I perceive that thereby the incumbent be in upon his former title and  then if it come to be void how come it to be void be not the promotion the  avoidance certain it be for the dispensation only prevent it for such a time  as the dispensation be in force Mr justice eyres and as for the prerogative  the question be whether this be such a prerogative as the law allow and  whether the dispensation be such as shower KB er p be incompatible with the  prerogative the prerogative have receive judgement though as my brother dolben  say it have be always oppose too and this dispensation be not sure a serve the  king turn by reason that the king be not to have any benefit by it it be only  to prevent the avoidance which make the king title and therefore suspend his  title but do not fulfil it Mr justice dolben the patron of the great live in  England have a very hard case of it if this be law and the church will suffer  by it too for there be no one that have a great live but will present a  blockhead that be not likely to be make a bishop to preserve his presentation  the Lord chief justice but sure as to the other case of saint James upon the  Act of parliament it have a great deal of weight in it for this be a new  parsonage create by Act of parliament the execution of the limitation of the  advowson of the Act ought to be pursuant to the Act if the limitation have be  once execute and advantage shower KB take thereof accord then upon the happen  of such a case for the prerogative it may have be something but now the Act of  parliament have express appoint that after avoidance as to dr Tennison the  bishop of London or his successor shall present whether that will be comply  with if the king shall now present upon this avoidance be a point worth  consideration Mr Cooper my Lord if it be otherwise that will be to construe  this Act of parliament to make this parish a single instance different as to  the title of the advowson from all the parish in England certain my Lord it be  only mean to declare the right of presentation in who it shall reside but not  to prevent any legal title that accord to the rule of law shall intervene Mr  justice dolben as to the usage I confess there be some precedent but they do  not make the law and as for eeds case I know what a noise it make in the world  and sir Jeoffry palmer who be then attorney general be of opinion that there  be no such prerogative and the judgement of that case go upon another point  because it void by the death of Paul and so I do not take that to be so strong  a authority Mr justice eyres but then there be the case in roll Abr Mr justice  dolben that be but the opinion of roll the shower KB Lord chief justice I  remember that at the time of that case of eeds it be take notice of that a  clergyman be the first man that ever question the king prerogative but we will  not trouble ourselves any further with this matter now let it be argue again  Mr attorney general when be it your lordship pleasure it shall be speak to  again the Lord chief justice it can be this term take your own time next term  some time in the beginning of the next term Mr finch my Lord I be of counsel  in this case for dr birch and we hope notwithstanding what Mr attorney have  now offer we shall have your lordship judgement for we I need not open the  record at large because Mr attorney have do it already the question that have  be make in this case have be first whether the king have any prerogative at  all such as be claim in this case second whether if the king have such a  prerogative that he not serve by the commendam in this case and three which be  the point now whether this Act of parliament have make a alteration in this  case to differ it from the other of saint Martin suppose the king have such a  prerogative in a ordinary vacancy the two first point have be adjudge already  in that other cause and so I shall not take upon I to argue they now but only  consider this case as it stand upon this Act of parliament and there my Lord  the question will not be whether this Act of parliament have not take away the  king prerogative but whether or no in this case as it stand before your  lordship the king have such a prerogative as will affect this case though I  will shower KB not at present meddle with the point that have be settle yet I  must shower KB er p beg leave a little to observe the authority that have be  urge for it and the book where it be adjudge and the reason of those authority  and first I think my Lord I may venture to say thus much to that point that  before the time of queen Elizabeth there be no resolution of any case to be  meet with in any of our book that prove this point to have be so adjudge for  the yearbook of Henry with submission I think if it be consider will rather be  a authority against it I be sure it be far enough from be a authority for such  a prerogative in the crown and I will only mention this to your lordship  because I find former all the presentation make by the king to any church  where another person be patron that we meet with in the book be either where  the bishop temperality be in the king hand or by reason of the wardship of the  patron I mention this because if it have be such a ancient prerogative as be  pretend some resolution about it will appear in the book and the reason of  such resolution be declare that so it may serve to govern other case by in the  case of wright in more it be adjudge indeed that the king have such a  prerogative but upon what reason be it so judge the book tell you that it be  upon precedent show but what be these precedent the book do not say they be  precedent of resolution in point but of practice and usage by the king in the  case of Wentworth v wright as it be report in cro Elizabeth it be say it be  adjudge upon precedent show and there be some attempt make to give a reason  for it namely that the law give the king this prerogative because of the  advancement of the incumbent to a high dignity I suppose the meaning of that  be it be in recompense of so great a honour do to the incumbent of the patron  by make he a bishop then another reason be the loss that the king have by part  with the temperality of the bishop which during the vacancy he keep in his own  hand but that my Lord be a very odd reason and with submission seem to have no  very good sound that the king restore the temperality which be the patrimony  of the church shall have a recompense require for that act of justice as for a  loss much less will it be reasonable that that recompense shall be carve out  of the inheritance of another person and then the last reason that be give be  because the king by promote the incumbent be the cause of the avoidance true  shower KB my Lord I think with submission it have much better have rest upon  the first reason because the king bestow such honour upon the patron incumbent  than to have go any further with the other reason or rather it will have do  well to have stop with this answer as I remember one book say it be one of the  prerogative of the crown of which no reason can be give but that so it have be  do and if that be the foundation of the judgement then as to this point the  case be rule upon the ancient usage of the crown usage then must be the  measure of the king prerogative in such a case and then I may take leave to  argue that where there be neither reason or law practice or usage nor any  judicial resolution to warrant it there can be no such prerogative in the  crown where it be find upon usage and practice that usage and practice must  limit it and you can go beyond that pray then give I leave to consider this  case as it stand before your lordship in the case of a donative as have be  observe in the former argument for indeed I think there be little that can be  observe in this case that have not be mention before there be no such  prerogative and yet there the same thing that be give as reason be all find as  in the other case it be the king that prefer the incumbent and lose the  temperality and be the mean of the avoidance and therefore since though there  be the like reason it be agree that there be not the like prerogative it must  rest upon this that so it be because there be not the like usage and practice  for it seem the practice be only where the patron claim come in by  presentation and not where he be in by donation now my Lord this case before  you I must take leave to say be a case that come neither within the usage nor  within any of the imagine reason upon which this pretend prerogative be find  first dr Tennison the now bishop of Lincoln come into this live by donation of  the Act of parliament and not by presentation or collation from the bishop of  London as patron he be in it as of a donative and therefore the Act of  parliament think it absolute necessary to insert a clause to subject this  church to the ecclesiastical jurisdiction of the bishop of the diocese  otherwise upon the bare erect shower KB er p ing of this into a new parish it  may have be a donative exempt from the ecclesiastical jurisdiction if then  this be a donative the patronage arise not to the bishop till it become  presentative which must be after the avoidance of this donation by the Act of  parliament for so the very word of the Act be that the advowson shower KB and  patronage after the next avoidance shall belong to the bishop and my Lord  Jermyn I can agree with Mr attorney in his imagination that the bishop of  London be still patron of this live because he be so of saint Martin I think  that point will be very hard for Mr attorney to maintain this be whole new  create as a distinct parish by this Act of parliament and a distinct benefice  from that of saint Martin the one can have no influence upon the other for I  believe he will hardly be able to maintain that if the bishop present any one  after dr Tennison have take a second incompetent live that he can maintain a  spoliation in that case for he do not come in under the same patron as to this  live but only by Act of parliament and then beside as the patronage and  advowson be in the bishop and my Lord Jermyn after the next avoidance and not  before by the very word of the Act of parliament so I will observe further  that there be another particular clause in the Act that the succeed rector  after the death or avoidance of dr Tennison shall be present by the bishop of  London and the next to he by the Lord Jermyn which show that without these  clause this be such a church as wherein the king prerogative can never obtain  because it be mere a donative and without these special provision it will  neither have be presentable nor subject to the ecclesiastical jurisdiction and  then it be more like the case of a donative than of a advowson in which the  king have a prerogative accord to those authority now I will suppose that a  Act of parliament shall be make that after the next avoidance of a donative  the patron shall present one to succeed in such a case if the king make the  incumbent of the donative a bishop will the prerogative work upon that  avoidance so as to let in the king presentee in the first instance sure no my  Lord for till the Act be make it be a donative and not subject to the  prerogative and after the Act make it be no such case as entitle the king to  such a prerogative by practice and usage then let we see what our case be here  the first instance of a presentation be after this avoidance and to say that  when the Act create the advowson and patronage it be subject to all the rule  of law that affect other advowson come not up to this question for till a  presentation have be make to this live it be but a donative and that have no  such matter as this prerogative shall work upon for with submission shower KB  it become not a advowson till after the avoidance and to object that this be  to create a strange sort of live different from all other which certain the  Act of parliament never intend to do be not applicable here neither for the  question be of a church that never be present to before the avoidance happen  what it will be after it be become presentable and have be present to be time  enough to consider when that come to be the case but we be a question concern  the first presentation to a new erect church and we hope the Act of parliament  that make it presentable must be the guide of that matter and where that Act  give the first presentation certain the person to who the presentation be give  by the Act must enjoy it accord to the Act now the first presentation in this  case be give by the express word of the Act to the bishop of London but say Mr  attorney this may be take as the gift of the next avoidance and then the king  prerogative will operate upon it as it will in other case against the grantee  of the next avoidance for the other turn there be another provision make that  after my Lord Jermyn have have one turn the bishop be to have two for one and  he will make the Act of parliament appointment of dr Tennison to be the first  incumbent to be in the nature of one turn to the bishop but sure that be a  very strange imagination that because the Act carve this live out of another  whereof the bishop be patron and give the present incumbent the new erect live  that this shall be take upon as the bishop turn when by the very act the  bishop have no turn till the avoidance I grant the case that the grantee of  the next avoidance will lose his turn by this prerogative and that be because  the grantor can grant it no otherwise than he himself have it that be subject  to the king prerogative but I do not find that ever it be adjudge that the  king if shower KB er p he be patron and make a grant of the next avoidance and  then make the incumbent a bishop shall defeat his own grant by this  prerogative it never bas be adjudge so far yet and this case I take to be much  strong it be the king grant in parliament I believe Mr attorney will have a  very hard point in that case to maintain the king prerogative against his own  grant my Lord to let in the prerogative in this case to defeat the bishop  presentation be to overthrow the express word and meaning of this Act of  parliament unless they will say that this avoidance by the promotion of dr  Tennison be such a avoidance as be not mean by the Act that say after the next  avoidance shower KB the bishop shall present that be say they the Act mean  other avoidances but not this by session I see not true how such a  construction can be make for it be such a avoidance as make the live void so  as to let in another to be present and will let in the next presentation of  the patron be it not for this pretend prerogative why then must it not mean  such a avoidance as well as any other since the Act do not particular mention  what sort of avoidance it be sure it must be such a avoidance that the bishop  must present in or lose his turn which the Act express give he so that my Lord  I take it with submission this avoidance be the meaning of the Act of  parliament then this law that do create this new advowson direct the first  presentation to be by the bishop which express exclude all other when this  avoidance happen this first presentation be to take place and then and not  till then it be presentative and consequent the prerogative can operate upon  it what the consequence may be hereafter be not at all to the present question  perhaps all may be let in that other presentative church be subject to when  once it have be present to but for the present case for the reason that I have  give I must pray your lordship judgement for the defendant for all those  argument that this be to erect a new sort of church different from and not  subject to the rule of law in other church be not at all in the present  question for we be single upon this question who shall present the first turn  to a new church erect by a new Act of parliament which limit the first  presentation to the bishop of London the Lord chief justice I suppose you  intend to speak to it no more do you Mr attorney general No my Lord I think  not the Lord chief justice it have hang long enough it be time it be make a  end of Mr attorney general my Lord we submit it to you shower KB the Lord  chief justice well we will take a little time to consider of it Mr attorney  general some time this term if your lordship please then the judge consult  together the Lord chief justice we will give our opinion tomorrow seven night  sir Henry gold their majesty sergeant at law argue for the king and queen may  it please your lordship to spare I a word on the behalf of their majesty the  king and queen who be plaintiff in this quare hinder sir Bartholomew shower  have put the case at large upon this record and have put the point upon the  bishop demurrer to our declaration and what appear in the declaration itself  for there the Act of parliament be set forth and that make the case now in  judgement before you it do appear in the declaration that this saint James be  a new parish erect by Act of parliament and take out of the parish of saint  Martin whereof the bishop be patron and dr Tennison incumbent the Act of  parliament enact first the creation of the parish and make it a rectory and  then enact the patronage and advowson and presentation to the rectory which be  that it shall appertain and belong and by that Act be vest in the bishop of  London and his successor and the Lord Jermyn and his heir in this manner  videlicet that doctor Tennison shall be the first rector and after his death  or avoidance the first rector shall be present by the bishop of London and his  successor and the next after that by the Lord Jermyn or his heir and then  twice by the bishop and his successor and then once by the Lord Jermyn and so  by turn twice and once for ever dr Tennison be consecrate bishop of Lincoln  shower KB upon which their majesty present their clerk as by prerogative they  ought but the bishop refuse to admit he and upon bring this quare hinder  demurrer to the declaration with submission my Lord the king prerogative shall  prevail as we hope to carry this presentation for if you please to consider  the Act that make it plain in several part of it shower KB er p first consider  that part of the law that create it a parish and settle the advowson rectory  and patronage in the bishop and my Lord Jermyn before you come to the first  rector for it make a new parish of part of the old one and make it a  successive rectory and enact that the rectorship be presentative and so annex  the patronage and advowson to it and vest it in point of inheritance in the  bishop and my Lord Jermyn now suppose it have be vest there then plain it can  not have alter the operation of this prerogative in law upon it for here have  be a advowson vest in inheritance and then it will have be subject to the  prerogative for I do take upon I to affirm that whether it be a old  presentative church or a new presentative church wherever it be presentative  the king shall have his prerogative there be no more difference between they  than between a old bishopric and a new one create by Act of parliament which I  shall show anon be none at all my Lord I see the objection that sir  Bartholomew shower make he will not have it a advowson until after the death  or avoidance of the church that be the very time say he that it become  presentative first true I take it to be quite otherwise and so shall he too or  else it will not serve his turn as I conceive for I take it to be a advowson  present vest in inheritance as much as a devise to one when he be one and  twenty that be the time of possession but the estate vest present it be in the  word of my book patronatus the advowson shall work present the presentation  when the avoidance happen but take it as he will have it yet it will not avail  he as I conceive for the advowson suppose it shall vest just as the avoidance  happen then there be a instant of time when it vest and even in a instant our  book be for the sake of the king prerogative there shall be a priority and a  posteriority to salve the king prerogative accord to Habss case and sadler  case   shower KB but there be no difference I say between a new rectory create  by Act of parliament and a old rectory as to this matter any more than there  be between a new bishopric and a old one now in the case of the new bishopric  which be make Henry c which give the king power to find bishopric when they be  so all the incident follow upon the foundation which belong to the old  bishopric at commonlaw and so it be agree in the case of Ridley v Fownel a  about the register of the bishop of Worcester that he have the same power by  the new creation that the old bishop have and that if he have grant the office  immediate between the statute of and of Elizabeth he may have grant it as he  please and the like be hold in the case of Bridstock v stamp in the common  plea mich of this king and queen after the statute of Henry c the king by  short catalog patronat in the thirtythird year of his reign do find the  bishopric of Worcester and that the bishop for the time be new find shall  grant the office of his register as other bishop use to grant they the bishop  make a grant it happen there be no such grant by any other bishop the question  be whether it be find that the bishop of Worcester do grant so this shall be  adjudge a good grant for that it differ from the other and it be hold but in  that case it be hold when the bishopric be find there do all the incident  follow with it present upon it and when this be do it be do by Act of  parliament yet the election must be by congee deslire and all the prerogative  belong to the bishopric be to be accord as in all other case so here when this  parish be create by Act of parliament it be subject to the rule of law as all  other parish be in the yearbook Henry b there be a case of a office find that  a be seize of a advowson in fee hold of the king as of his crown and die his  heir within age and that a stranger be seize of ten acre of land hold of  another by knight service and in fee of a and other to the use of a and his  heir a die and the other survive upon the death of a the king enter there  Ledaswick argue that the entry be not good but he make a difference where a  thing be by the commonlaw in which the king shall have prerogative and that  thing be enlarge by statute the king shall have prerogative in that  enlargement and he put this case for instance suppose forgery be make felony  by Act of parliament there the king shower KB as in another felony shall have  the year day and a keb lev pollex Freem shower KB er p waste if the Act have  rest here and go no further then it have vest the patronage and advowson in  the bishop and his successor and the Lord Jermyn and his heir and plain they  have be tenant in common and the bishop shall always have collate for the same  reason that be give in the case of copartner   light now to prevent that  inconveniency the law make a partition between they that they be to present by  turn which be the proper way of partition of advowson and so do this Act in  this case afterward videlicet two turn to the bishop and one to the Lord  Jermyn and his heir that now my Lord be the true and natural construction of  the thing as to the fix the first presentation in the bishop for I take it  plain it be a divide the inheritance and make that useful to my Lord Jermyn  which otherwise can not have be but useless to he if they have continue tenant  in common it be not to erect a rectory different from or contrary to all other  rectory or to annex this advowson and presentation so to the bishop and the  Lord Jermyn as to exclude the king prerogative which be as ancient as the law  that be the consequence if their argument be true that because these thing be  not particular save they shall be exclude but we say because they be not  particular name therefore they shall work as all incidental thing to other  advowson will work as lapse and the like but there will be no lapse to the  archbishop or to the king if what they say hold good because they be not name  neither for if you allow the one you must allow the other upon the same reason  so it will be if the Act of parliament be so strait lace that because there be  no particular save all shall be exclude I will so far come up to sir  Bartholomew shower as to agree that have the parliament make it a donative it  have be quite another thing as it may have be though a parish church accord to    light a yet if there once be a clerk present and admit and institute this be  now become a presentative church and the first time that it become a  presentative it become subject to all incident of other presentative church  for as that book say then shall incur a lapse to the ordinary as of other  benefice and if it be so subject as soon as ever it become presentative the  king shall have his prerogative operate upon it too as well as the ordinary  the king can not have it indeed till upon the presentation because it be a  donative which it be not here for though he say that the king must stay for  his prerogative till shower KB a actual presentation yet I say that as soon as  ever it be presentative it be subject to the king prerogative there be one  thing more that he have object the Act of parliament say express that the  bishop shall present upon the death or next avoidance by dr Tennison and so  this prerogative and the Act of parliament can consist and therefore this  shall work out the prerogative that I deny I do agree if the part of a Act of  parliament can consist the latter must be a repeal by the former but this  avoidance speak of here be a ordinary sort of avoidance by death resignation  or take a incompatible benefice a patronage avoidance and not prerogative  avoidance and I will put you one case which you may find in Owen knoll v Powel  it be there say by Eggerton solicitor that in Elizabeth it be adjudge in the  common plea that if the queen make a lease under the exchequer seal to begin  immediate after the forfeiture surrender or expiration of a former term and  the lessee be outlaw the second lease shall not commence it be a prerogative  forfeiture and not that mention in the lease as to the objection that have be  put of the not save the king prerogative and the express word of the Act I  will say this further to it that the word of the Act that the first rector  shall be present after death or avoidance by the bishop that be his turn shall  be first only by way of preference to the Lord Jermyn and his heir and it be  no otherwise possible to be take for the clause of first rector be not a  clause of creation but rather of explanation for it be hand in by a videlicet  so that it come in consequent upon the foundation how the patronage and  advowson shall be distribute after the death or next avoidance and where it  shall be lodge to be vest as to presentation that be by turn first by  collation by the bishop then by presentation by the Lord Jermyn and it will be  hard if in this the king shall lose his prerogative by construction when there  be express law for it and that for these reason first his prerogative be a  favourite of the law second if you consider shower KB er p it by the common  rule the king be not bind by a Act of parliament except it can appear by some  particular thing in the Act that he be intend to be bind as in blow Com and  but all be to be construe in favour of the crown and to preserve his right  three in all case general word shall not exclude the king or carry it against  the prerogative so be the case in Henry statute the king grant to one all  issue fine and amerciament shower KB of all his tenant in such a lordship the  question be how far this grant will extend and it be hold it shall not extend  to royal fine and amerciament which be declare to be the fine of his great  officer for their misdemeanour so by a grant of i royal i do not pass and so  it be hard the king shall be bar of his prerogative without a apparent  intention to bar he and there be a particular rule take in Magdalen college  case   b that where the king have any prerogative estate right title or  interest by general word of a Act of parliament he shall not be bar of they  and so my Lord it will be hard to exclude the king in this case from his  prerogative by these general word it have be object that this be a new Act of  parliament and this be make for the benefit of the church and therefore the  king be bind by it and he cite several case and among the rest that which I  mention Magdalen college case but that come not to our case there be no doubt  but that the king be bind by the statute of the Elizabeth c and all other law  make for the church to preserve the revenue of the church and wherein the  church have a manifest advantage but there be another reason give there for  they will have make the king to be a instrument of fraud which the law abhor  but let they put I one case if they can where there be a Act of parliament  relate to the church and the king prerogative relate to the matter of the Act  be such as by which the church have no loss that it be ever adjudge that the  king prerogative be shut out though not save or name beside my Lord this  advowson be part here in the church and part in lie hand and by this  prerogative the church be at no loss for it be with this church as it be with  all other church presentative beside then they say that it be a affirmative  law and imply a negative the word be general and that by such a affirmative  general law the king be bind as well as all other person No doubt but it be  thus where the king have a interest and a affirmative law be make against he  but I will put you two case the one be in the first institute a that a  affirmative Act do not take away a custom a as the statute of will do not take  away a custom to devise the other be the case of Clench v Cudmore in the  common plea easter term of this king and queen roll so shower KB say I this  case though the Act be a affirmative law yet be general without the save of  any right in consequence the king prerogative be save nay I shall go yet a  little further to consider that matter he tell you and I will agree it his  client the bishop be patron of saint Martin original and therefore there be  all the reason in the world the patronage shall be continue in he so that I  take it it be in the nature of a salvo jure to the king prerogative that as  the patronage continue so shall all the incident to it my Lord for that which  he say that dr Tennison come to be first incumbent by parliament I think it  may receive this answer from what be say just now he be incumbent of the whole  before and the make he to continue incumbent still that be a save to he of his  right to the live and then as the parliament take care that there shall be a  right save to the one and the other the bishop and the incumbent why in  consequence there shall not be the king right save as to this incident  prerogative I can see no colour of reason in the world nor that there be any  deed that he shall be particular name when it be a royal prerogative and  spring by operation of law as charge upon all presentative live and therefore  it will be vain to say that this presentative church shall be subject to it a  in Inst Lord coke express his opinion upon this subject more particular  videlicet a statute make in the affirmative without any negative express or  imply do not take away the commonlaw and this say Mr Hargrave   Litt a note  seem to be the just way of state the rule which be very common in the book  both as to commonlaw and custom see also blow Com dig dyer Bulst shower KB er  p so that my Lord I take it upon these consideration and reason which I have  mention that as to the king in this case his right be save to he by  construction of law as it be give he by operation of law to all presentative  church and therefore I humble conclude for their majesty the king and queen  and pray your judgement for they and a writ to the archbishop to admit their  clerk the Lord chief justice it have be well argue on both side true I suppose  you intend another argument sir Bartholomew shower yes my Lord my client do  desire another next term if you please Mr attorney general I do not question  but you desire to delay shower KB sir Bartholomew shower this be the first  time that this point have be argue the Lord chief justice we can hear no other  argument this term nor indeed do I believe either side can be ready Mr  attorney general we must submit my Lord if you please to put it off till next  term the Lord chief justice the matter in debate be whether the king  prerogative be not consistent with this Act of parliament for that this be not  the subject matter of the Act now we must consider the design of every Act  which be here to make this a new parish to settle the right of patronage and  then to make distribution of the patronage accord to that right which they  think fit to give to each one now when the Act of parliament have do this and  they be thereby make patron to all intent and purpose as if they have be in a  ancient right whether this Act be not full satisfy by this whether the king be  mention in the Act or not as to his prerogative be the thing to be consider  because the parish be so large therefore there be another take out of it and  the limit of a new parish set out and regulation make of the patronage and  advowson now if there be a new rectory create and the right of patronage be  settle general I think it will be hard to distinguish that from a common case  as to the prerogative but here be a particular right and presentation give to  my Lord of London he to present one time after the first avoidance and then my  Lord Jermyn he be to present another time whether or no this be so settle when  the Act say express he shall present this be not a distinct right of  presentation for that time different from the ordinary course or whether it be  not a present advowson vest in inheritance as to one part in my Lord of London  as to the other in my Lord Jermyn be the main point in the case now brother  gold you say this be a prerogative avoidance I take it not to be so it be a  avoidance by law as much as if he have take a live incompatible for if he have  do so without a dispensation will not that have avoid both these live certain  it will therefore it be not a avoidance by reason shower KB of the king  prerogative but because it be another preferment in the church incompatible  with that of hold this live and then you put the case of Knolls v Powell in  Owen which be likewise report in more twice by the name of Knolls v luce and  the last be that case cite by Eggerton the term forfeit by outlawry be a royal  forfeiture and not the forfeiture mean as to the second lease which be real so  but for what reason because in that case the term forfeit have still a be and  the king claim as assignee in law but if the king have the reversion where the  term be extinguish by a forfeiture the second lease will commence therefore  though the mean of the presentation here vice come to the crown be by  prerogative yet the avoidance be by operation of law these thing be  considerable I deliver no manner of opinion now but only mention what I take  to be the main point in question Mr justice Giles Eyre true I take it the  question be no more but whether this Act of parliament be a new Act shall bind  that which it have no intention at all to meddle with the Lord chief justice  well we will hear you to it some time in the beginning of the next term Mr  justice Giles Eyre this case upon the record be but short this a private Act  of parliament be make James to make a certain precinct of the parish of saint  Martin in the field and a distinct parish church of saint James within the  liberty of Westminster and to be a perpetual rectory with cure of soul and the  Act direct shower KB er p or order that the then vicar of saint Martin for it  take notice that he be so dr Tennison shall be the first rector of this new  parish and then settle the patronage advowson and presentation to this new  rectory after the decease of that rector which be dr Tennison name in the Act  or the next avoidance thereof in the bishop of London and his successor and my  Lord Jermyn and his heir in such manner as be there express to wit the first  rector after such decease or avoidance to be collate by the bishop and his  successor the next shower KB after that to be present by my Lord Jermyn or his  heir and then the Act give two turn to the bishop and his successor and one  turn to the Lord Jermyn and his heir for ever after this Act so make dr  Tennison who be make the first rector by the Act of parliament be elect bishop  of Lincoln but before consecration the archbishop do dispense with he to hold  these two live in commendam from the twentysecond of December to the first of  July follow which dispensation their majesty accord to the Act of Henry  confirm and then the bishop be consecrate and hold this rectory and vicarage  together with his bishopric till the first of July follow and then this  rectory of saint James become void by session and my Lord bishop of London it  be within his diocese collate it to the defendant dr birch and the king and  queen by prerogative present their clerk but the bishop refuse to admit he  upon which this quare hinder be bring by their majesty to recover this  presentation to which the defendant birch plead this special matter and Mr  attorney have demurrer to his plea and I be of opinion with my brother that  judgement in this case ought to be give for the king and queen they be by  their prerogative well entitle to this presentation and dispensation of the  archbishop nor the statute for make this a parochial church have not any way  debar their majesty of this prerogative presentation it be agree by all that  where the incumbent be make a bishop the advowson by his consecration become  void but whether this be a avoidance by the commonlaw or by the ecclesiastical  law of the kingdom be the doubt which as I take it occasion that variety of  opinion in our book between the king and the patron which shall have the  presentation those who hold the patron shall present do also hold that this  avoidance by session be a avoidance by the commonlaw which occasion the error  I think of deny the king this prerogative which I be of opinion he have and  that this avoidance be a avoidance by the ecclesiastical law of the kingdom  and not otherwise a avoidance by the commonlaw than as the ecclesiastical law  be part of the law of the kingdom and as the law of holy church original make  this avoidance so it may at the time that it make it a avoidance provide that  the king himself who make the promotion that cause the session as Supreme  ordinary shall present upon such avoidance and the patron be not thereby  prejudice for by his shower KB presentation of the incumbent who be afterward  make a bishop he have dismiss himself of the avoidance till the death  deprivation or resignation of that incumbent and that the church be discharge  of the incumbency by this promotion and session appear by the yearbook Henry  foe b and the case of commendam Davis and the case of eed v the bishop of oxon  Vaughan wherein there be so many excellent reason give to contradict what my  brother say that it be a avoidance by reason of the incompatibility of the  bishopric and the incumbency that I shall do he a great deal of wrong to  mention all that I find there to that purpose and the fact be plain otherwise  for it be plain there can be no incompatibility in the thing themselves  because many bishop do hold live for ever in commendam as annex to their  bishopric and particular the bishop of Winchester have two the avoidance be  only by the constitution of the church for the bishop be original incumbent of  all the live in his diocese and the clerk all employ under he as his vicar and  curate and that the king have such a prerogative of fill a church so void by  session upon promote the incumbent to be a bishop be plain in roll Abr and  wright case in more where it be resolve that so the law be by multitude of  precedent and authority there produce and considerate peruse I confess those  precedent be that so it have be use and practice precedent de facto but I pray  can there be a better title to any right than continual usage even in the case  of a common person continual usage in the case of the king can be but by  matter of record and when precedent of such a usage for the king from time to  time be produce shower KB er p can there be a better or a strong argument of a  title for the king and the case of eeds v the bishop of Oxford admit it beyond  all dispute for there they will not so much as let it be argue and so cro  Elizabeth and roll Abr all say that the king have a undoubted prerogative to  present upon a avoidance by session though little appear in our book of this  prerogative before queen Elizabeth time that I presume happen because the pope  claim it in disherison and usurpation upon the crown be a avoidance by the  ecclesiastical law of the kingdom yet I take it as a settle resolution and  maxim of the law that constant and continue usage and practice for more shower  KB than one hundred year be more than a good warrant to conclude that the law  be so and this argument will not be shake by say it be once out of the  prerogative for which no reason can be give for the king prerogative be part  of the law of the kingdom and the law be the judge and measure of right and  wrong and Stamford in his treatise of the prerogative say that the statute of  Prerogativa king do but confirm and declare that which be the commonlaw before  but let I demand of he who make his objection what reason there be to be give  for collateral warranties yet that be law though a natural reason can be find  out to maintain it and yet I take it to be a good reason that in this case the  presentation upon this avoidance be give to the king as Supreme ordinary by  the ecclesiastical law we be I hope better son of the church than to think the  constitution of our church void of all reason but I do but weaken this  prerogative which have be so long settle by say so much as if it want argument  to support it and I have not mention it have not the gentleman that argue last  for the defendant give occasion for it for though they pretend they will not  undertake to argue it it have be before settle in the other case they seem to  rack their invention for argument to overthrow it the king then have this  prerogative to present upon a avoidance by session I think he be not debar of  it by this dispensation which I do not observe that the gentleman who argue do  admit and therefore I shall speak but short to it he be not bar either by the  dispensation nor the Act of parliament that empower it nor the king  confirmation pursuant to the Act of Henry for the king by his confirmation of  the archbishop dispensation transfer not any right of his to the incumbent but  bare continue his possession in the live which will otherwise have be void by  the consecration and when the dispensation determine it be as if it have never  be and then the avoidance be make and the king prerogative be to take place  the avoidance for that time be only suspend by the dispensation which have not  be of force without the king confirmation but have the incumbent die or resign  during the continuance of the dispensation he be complete incumbent for that  time the church have void by death or resignation and their majesty can not  have present to it and this appear by Parkhursts case dyer b and a and roll  Abr then shower KB the king have this prerogative and be no way debar by this  dispensation and confirmation I think he be not prejudice neither by this  private Act of parliament for I think this no way alter the case or take from  the king prerogative for it be plain upon the whole face of the Act that what  the parliament design by it be to erect a new parish church which be to be  take out of another parish at that time full of a incumbent may not be  prejudice by this division and the patronage of this new church for the future  settle in order to the fill it after every ordinary avoidance it enact that dr  Tennison who the Act take notice of to be the present incumbent of saint  Martin out of which this of saint James be carve shall be the first rector of  this new parish and then vest the patronage in the bishop and my Lord Jermyn  by turn to wit the first turn of the next avoidance to the bishop and the  second to my Lord and then two to the bishop and one to my Lord forever so  that to make a rectroy presentative and settle the advowson of it and not to  injure the present incumbent out of who parish the new one be take be all that  the Act indeed intend and it will be a strange construction of the Act that it  vest the advowson in the bishop and my Lord Jermyn and give the next avoidance  to the bishop those word the next avoidance shall exclude the king prerogative  which the maker of the Act never intend to meddle with for where the king  claim a thing with respect to his royal public capacity there I think it be a  certain rule of law that general word in a Act of parliament without shower KB  er p name he will not bind he so be   and so many case cite in magd coll case  and Plowd Com and that this be new make a rectory presentative by this Act of  parliament will not exempt it from the king prerogative be plain for where  there be a session of a rectory presentative the king be to have his  prerogative and be it old or new that make no difference and therefore it have  be resolve that the wardship of the heir of beneficiary and use be give by the  statute of Henry c if after that statute beneficiary and use himself make a  feoff to the heir and die the heir within age by force of the statute of  marlbridge make two hundred year before he shall be in ware and many other  case upon the like reason there be in Vernon case   and Plowd Com bulkley case  to make this a donative till the avoidance of dr Tennison I must confess it be  a very great strain of wit it be to expound a Act of parliament quite contrary  to the intent of the maker shower KB which by every clause of the Act seem to  be to make it a parish church of itself to continue the present incumbent and  to settle the patronage and construction of statute be to be make of the whole  act accord to the intent of the maker and so sometime be to be expound against  the letter to preserve the intent   b and Jones but I think no case can be put  in law where a Act have be expound contrary to the letter to overthrow the  intention and it be plain a fallacy to say dr Tennison come in by donation of  the parliament to this rectory and thence to infer that it be a donative and  not a rectory presentative till it be make so by the bishop presentation for  be it admit that dr Tennison come in by donation though it may as proper if  not more he call a presentation by the parliament who erect the live than a  donative which be without formal institution and induction the bishop be a  party and his consent and all act of jurisdiction be include in it but suppose  I say he shall come in by donation how come it to be a donative in he and  presentative afterward the parliament it be plain give dr Tennison no right  that he have not before but have divide the parish of which he be incumbent  confirm he in the possession of what he have before by make this a new rectory  and this Act immediate upon the pass of it have make it presentative can it  cease to be so till the bishop present or can the word of this Act give away  the king prerogative right if it happen in the next turn which can not be  foresee upon the make of the Act that be only to settle the ordinary course of  presentation and not to meddle with the king prerogative which be but a  accidental thing many act of parliament have receive particular interpretation  to avoid a particular prejudice Inst   but no case can be show where the word  of a Act of parliament have be enlarge to make a construction to bar or  overthrow that which the maker never think of or intend to meddle with and  shall I admit of which I deny that the word of this Act be as forcible as if  the king be patron and have make a grant of the next avoidance and so he shall  be bind by they yet in that case which be boast at the bar to be a singular  case and unanswerable I think the king will not be prevent of his prerogative  for by such a grant nothing pass but the right he have to the next turn as  ordinary patron not any thing of his prerogative right for a estate that the  king have in any thing which come to he by such mean as other come to they by  shower KB be one estate and a estate that come to he by prerogative be another  estate and they have distinct consideration and operation in law Plowd Com  roll Abr   but I take it that case though the law be plain yet be not the king  case here but this be rather as if the king be seize in fee and when the  church be full he grant away the patronage and long after the grant the  incumbent be make a bishop and so the live void will any say that this grant  in fee will include his prerogative right that can never be intend for at the  time of the grant it can not be foresee and therefore it can be include in the  grant so nor will it in the case of a grant of the next avoidance I take it  the book be plain that they be two distinct estate therefore the Act have make  this a rectory presentative which become void by session the king prerogative  operate upon it and not have satisfy the prerogative turn by the commendam nor  bar by the confirmation or this Act of parliament their majesty have a good  right to present to this live and therefore judgement ought to be give for  they against the bishop and dr birch shower KB er p shower KB michaelmas term  the seven of William and mary in the king bench Monday November sir John holt  Knt chief justice sir William Gregory Knt sir Thomas Rokeby Knt sir Samuel  Eyre Knt justice sir Edward ware Knt attorney general sir Thomas Trevor Knt  solicitor general