case the king and queen against the bishop OF London and peter birch SC ante S  Eyre justice this case between the king and queen and the bishop of London  stand for the resolution of the court the king and queen by their attorney  general bring a quare hinder against the bishop of London and dr birch to  permit the king and queen to present a fit person to the rectory of saint  James within the liberty of Westminster and this come on now upon the demurrer  of the attorney general to the plea of dr birch the attorney general in the  declaration set forth that by a Act of parliament make I James c a precinct of  ground therein express and which former be part of the parish of saint Martin  in the field shall from henceforth for ever after be a distinct parish as it  be now to be call the parish of saint James within the liberty of Westminster  independent upon the parish of saint Martin that the church situate within  that precinct shall be the parish church that there shall be a rector shower  KB who shall have spear air of the inhabitant of that parish that there shall  be a perpetual succession of rector there that dr Tennison the then present  vicar of the parish of saint Martin shall be the first rector of this new  parish and that dr Tennison and his successor rector of that new parish shall  be incorporate and have a corporate capacity and a succession by the name of  rector of the parish of saint James within the liberty of Westminster and to  have cure of soul that the patronage advowson or presentation of this parish  and rectory after the decease of the first rector or the next avoidance shall  belong to and be vest in the bishop of London for the time be and his  successor and Thomas Lord Jermyn and his heir for ever by such turn as in the  Act be express that be that after the avoidance of dr tennison incumbency the  rector shall be present or collate by the bishop of London for the time be the  next by my Lord Jermyn or his heir then the two next turn by the bishop and  his successor the next one turn by my Lord Jermyn or his heir and so to  continue in that manner for ever he set forth further that by virtue of this  Act of parliament dr Tennison be rector of this new parish and parson  imparsonee of that church and be afterward consecrate bishop of Lincoln  whereby the live void that it belong to the king and queen by reason of their  royal prerogative to present a fit person to that church so void and that the  bishop of London and dr birch hinder they c to this dr birch come in and plead  that he be parson imparsonee of the church by collation of the bishop of  London he confess the Act of parliament and that dr Tennison be rector there  and set forth further that dr Tennison be duly create and consecrate bishop of  Lincoln and that thereby the church become void and that thereupon the bishop  of London do collate he clerk and he be parson imparsonee of the church before  the writ et hoc a preparation be verify the attorney general hereupon demurrer  and I be of opinion in this case that the plea of dr birch be not sufficient  but that the king and queen ought to present to this church and that judgement  ought to be give for the king and queen accord this case have be argue twice  at the bar on each side and it seem to I that those who have argue on the part  of the defendant have make two point in this case the first be whether or no  the king prerogative of present to a rectory void thus by session and the  promotion of the incumbent shower KB shall operate and take effect upon this  new rectory shower KB er p the second point that be make be whether or no this  rectory be presentative or at least be so in the time of dr Tennison for they  will hay it be that at least during this time it be a donative and that it be  never hear that the king present to a donative upon his promotion of the  incumbent as to the first point about the prerogative for I shall say nothing  upon the point of the commendam neither have I open it because the counsel for  the defendant waive it it be a point adjudge in dr lancaster case a upon argue  this case the first time the counsel for the defendant own the prerogative in  general to present to a benefice upon the promotion of the incumbent to a  bishopric but they will have it that it shall not extend to this new rectory  but upon the second argument it seem to be suggest that this prerogative of  the king be a new thing in general and that wright case in more b be ground  upon late precedent now that point have be so often adjudge that I shall not  take any pain about it but something I shall say and that shall be short that  I think that matter be sufficient settle in wright case and upon great  consideration for the book say that the point be adjudge upon many book as  well as precedent cite vouch and peruse many evidence be lose by time but if  the bishop of Ely speak truth which I doubt not at all he do as it be report  in bro Abr title presentation all church the king have such a prerogative in  Edward the three time and do present by virtue of this prerogative and certain  there ought not to be any doubt of that point at this time of day but as to  the question whether or no this prerogative shall take effect upon this new  create rectory my Lord coke in the case of Magdalen college c tell we that in  any construction of act of parliament the original intent and meaning of the  maker of the law be to be observe and that will appear in this case by the  whole purview of this Act of parliament whereby it be obvious to collect that  there be no other intention in it but to make part of the parish of saint  Martin a parish of itself it be of too large a extent to be take care of by  one parson and that therefore this parish shall be a distinct church and  consequent subject to the king shower KB prerogative as well as any other  rectory whatsoever that be present to it be enact that the precinct of ground  therein mention which be part of the parish of saint Martin shall be  thenceforth a distinct parish of itself that it shall be call the parish of  saint James within the liberty of Westminster that the church and churchyard  already set out shall serve for those purpose that there shall be a rector  there who shall have in person air and perpetual succession that the rector  shall have the house in the churchyard to live in and it settle the patronage  these be all the particular of this Act of parliament bat there be no word nor  any matter in the Act of parliament which do any way import a intent that the  king shall not have the same right of present upon the promotion of a bishop  as he have in other case and parish perhaps if the king have any interest upon  the soil upon which the churchyard stand and it have so appear or have any  interest in the parish church of saint Martin out of which this new parish  church be take the Act of parliament may have bind such the king right but as  to any right the king have by reason of his prerogative upon this accident of  his promote the incumbent there be not one word of that in the whole Act of  parliament nor any thing like it we have a rule in law that the king be not  bind by a Act of parliament unless he be particular name for the law give he  that prerogative for the dignity of his person that he shall not be by  construction of law include in common word much less where his prerogative be  concern there be many case to this purpose and I shall instance but in one the  reason whereof seem to come close to the reason of this case and that be the  case upon the statute of Henry c of dispensation and the name of this case be  armiger v holland d that statute appoint that dispensation shall be grant by  the archbishop and confirm under the great seal and there be in that statute  negative word that they shall not be grant in any other manner there they do  adjudge that this statute only transfer to the archbishop the authority the  pope have but the prerogative which a see ante page b more c   d cro Elizabeth  more shower KB er p the king have at commonlaw to grant such dispensation be  not take away by that Act nor can he be restrain unless express name and so be  the opinion of my Lord Hobart in the case of colt v glover and there be  several case cite there likewise upon other statute to the same effect now the  case before we be a much strong case for here be no negative word in this Act  of parliament it be well say in wright shower KB case that the judge will well  advice before they will alter any ancient prerogative in the crown I do not  deny but that there be case in law where the king shall be bind by general  word in a statute my Lord coke e bring they all under these head first such  act as be to suppress wrong second such as be to take away fraud three to  prevent the decay of religion now certain this Act of parliament be not make  upon any such account it can not be make to suppress a wrong for the thing be  not in be not in be before here be no pretence of fraud and as to the decay of  religion this Act of parliament be make for the advancement of religion and  the professor of it here be great care take for the soul of the inhabitant and  two church preferment make out of one and in neither of these thing do the  king prerogative interfere at all for let the king or the bishop have a right  to present these end be equal serve ay but say they here be a wrong do to the  bishop for he lose his collation to the live if the bishop lose his collation  there be no wrong do for it be not his right to collate the law be the true  standard of right and wrong the king prerogative be part of the law of England  as my Lord coke say Inst and if by the king prerogative he ought to present in  other case as our book say he ought then it be a wrong to the king to deprive  he of the presentation it be not a great wrong in this case than the  prerogative to present to a church during the vacancy of the see the ordinary  presentation belong to the bishop in both case but the law in these  accidentals give they to the king and to say the rectory be the patrimony of  the church I grant it but be not that satisfy by the incumbent receive the  profit who be a member of the church if he be present by the king as well as  by the bishop but say they then this be a new rectory create by this Act of  parliament I can see any reason why or how that shall make any difference in  the matter at all that the one be a ancient rectory in the other case and this  be a new one this a prerogative inherent in the crown and operate upon all  presentative church when once they be make so and this be precedented before  in that new parish of saint Paul covent garden shower KB take out of saint  Giles and erect into a new parish in king Charles the first be time and it be  now late present to by the king and queen upon the incumbent dr Patrick be  make a bishop I have cause the Act of parliament in that case to be look for  and have peruse it and there be not one word in it to save the king right any  more than there be in this the reason hold as well in bishopric new create by  Act of parliament for it may as well be say this be a promotion to a new  bishopric and therefore the prerogative shall not take place and yet this  prerogative of the king be never question it have take place upon the king  presentation when the incumbent be promote to a new bishopric erect by Act of  parliament and now I come to the second point that have be make in this case  when this rectory become presentative at least whether it be in the time of  the new bishop of Lincoln for they that argue for the defendant will have the  incumbency of dr Tennison to be a donative and then the king prerogative can  not operate upon the avoidance of a donative now for that first I be of  opinion that dr tennison incumbency be of a rectory presentative and this  appear by the Act of parliament itself whereby the patronage be settle as well  as the parish it enact that there shall be a rector and a perpetual succession  of the rector and then that there shall be a prerogative and right of  presentation then it first appoint dr Tennison to be the first rector he be  vicar then of saint Martin and after that the presentation shall be in the  bishop and my Lord Jermyn as the Act direct by which it appear that it be to  be a rectory presentative and there be no other word that make it to be  otherwise but say they dr Tennison be make the first rector and then afterward  the patronage and presenta e   shower KB er p cion be settle I answer to that  those word which make dr Tennison rector be through necessity that he may be  the first and yet it do not alter the nature of the patronage and it will be a  very strange absurdity to say that the maker of this Act of parliament do  intend to settle a rectory that shall be partly donative and partly  presentative that will be a very strange construction as shower KB Plowden say  in the case of Ashton v stub the sense and reason of the law be the law and  not the word take strict and it appear by the whole frame of this Act that as  this parish be make out of another so it shall be presentative as the church  out of which it be take be presentative by the plead it must be understand to  be presentative for it be agree that the church become void by the promotion  of the bishop which can not be if it have be donative and therefore I shall  consider the reason why a incumbency of a church presentative be void by the  promotion of the incumbent to a bishopric and I shall consider the nature of a  donative and upon what principle it be find as to the first I do not take it  to be as have be say that this be a prerogative avoidance I take it there be  no such thing as a prerogative avoidance for as it be say in the case of the  king v the bishop of Winchester cro James the law give no privilege to the  king to avoid a incumbency but the church become void by reason the bishopric  and the rectory be incompatible in one person and this be ration eminence by  reason of the dignity of the bishop that he who be advance to the  superintendency of the church shall not be rector in the same church and so it  be say in woodley case as it be report in winch then as to the nature of a  donative although the exercise and function of it be ecclesiastical and  spiritual yet it be a lie foundation as it be say roll Abr it be of the  foundation and erection of the donor not by the ordinary and follow the rule  and law ecclesiastical as in the case of Fairchild v grays cro James report  likewise in Yelv it be no way subject to the ecclesiastical jurisdiction nor  any part nor any order in the church now to apply this if the church become  void it be by the promotion as it be agree by the defendant in this plea it  must be understand to be by reason of the incompatibility for a parson to be a  bishop and rector of the same church but the same person may be a bishop and  yet incumbent of a donative it be never know as have be say by the defendant  counsel that the king ever present to a donative upon make the incumbent a  bishop and I take it that the reason of that be because a donative make no  figure in the order or economy of the church and so too the bishopric and a  donative be compatible shower KB for these reason I be of opinion first of all  that the prerogative of the king shall operate upon this though a new rectory  and then second that this rectory be presentative and therefore the  presentation belong to the king and queen by their prerogative and that  judgement ought to be give for they accord shower KB a writ of error in  parliament be bring by the plaintiff Henry bishop of London and Peter birch  doctor of divinity upon a judgement in a quare hinder give for their majesty  in the court of king bench by the uniform opinion of the whole court for the  presentation to the rectory of saint James in the liberty of Westminster  vacant by the promotion of dr Tennison to the bishopric of Lincoln dr Thomas  Tennison be lawful vicar of the parish of saint Martin in the field one part  of the say parish be by Act of parliament erect into a distinct parish and  rectory and call by the name of the parish and rectory of saint James within  the liberty of Westminster and dr Tennison appoint the first rector there the  same Act vest the patronage in the bishop of London and his successor and  Thomas Lord Jermyn and his heir and then appoint in what order and proportion  each of the say patron shall present videlicet that the first rector after the  decease of the say dr Tennison or other next avoidance shall be present or  collate by the bishop of London for the time be and the next by the Lord  Jermyn and his heir the two next by the bishop of London and his successor and  the next by shower KB the Lord Jermyn and his heir and the like succession of  two turn and one turn for all time to come dr Tennison be duly elect bishop of  Lincoln before dr tennison consecration the then archbishop of Canterbury  grant a dispensation shower KB er p to he in due form of law to retain and  keep the vicarage of saint Martin and the rectory of saint James together with  the bishopric of Lincoln until the first of July then next follow this be  confirm by the king and queen by letter patent under the great seal of England  as the statute of Henry c require after which videlicet the say bishop elect  be consecrate but by virtue of the dispensation and accord to the rule of law  the live do not become void at the time of the consecration as otherwise it  will have do nor do it become void until the first of July at which time it  void by session in which case the crown have a undoubted right to supply it by  presentation for that turn to whosoever the patronage belong this cause be  several time argue at the bar and afterward solemnly at the bench and  judgement give by the whole court for their majesty the matter which have be  and probable may be again stir against their majesty right in this case be  these first whether the crown upon the promotion of the incumbent of a subject  live to a bishopric have a right by prerogative to present to that live for  the next turn second if there be such a prerogative yet whether the  dispensation and confirmation in this case do not amount to a serve of that  turn three whether this Act of parliament have make any alteration in this  case to differ it from the crown be present upon ordinary vacancy in other  live upon the promotion of the incumbent the two first of these point be  adjudge with the crown in the case of saint Martin which be enjoy accord and  there be no difference as to these point between saint Martin and saint James  the three point rise upon the Act of parliament be principal and indeed only  intend to be consider in the case of saint James but some of the now plaintiff  counsel stir the two first point again the court of king bench take they also  into consideration and give judgement upon all three for their majesty which  be do by shower KB the uniform opinion of the whole court with great clearness  as to the first point this prerogative and right of present by the crown upon  the promotion of the incumbent of a subject live to a bishopric be a ancient  right settle and establish by diverse solemn judgement in the reign of king  Henry the eight queen Elizabeth king James the first and downward and whenever  question or doubt always prevail and there be no one judgement or judicial  opinion in the law book against it but many for it and if so full and  particular a exercise of that prerogative do not appear in the old book of the  law as have do in and from the reign of king Henry the eight downward it may  reasonable be suppose to be occasion by the unlimited power and usurpation  which the pope of Rome assume to themselves in this kingdom in make bishop  confer title to vacant live and the like not only against the prerogative but  even against the statute of the realm and if any inference have at any time be  draw from any thing say in any old book in doubt of such prerogative the same  have be rectify by settle judgement in court for many age pass in time when  the learning and integrity of the judge admit of no dispute nor be it any  objection against this right of the crown that it have not be put in execution  in some case ancient where the crown have another title by reason of wardship  or of the temperality of a bishopric be in the king hand for beside what be  say before as to the pope claim and usurpation the crown without prejudice to  the prerogative may make use of that other title not claim by the pope upon  which to bring quare impedits wherein one single title must be rely on rather  than to make use of that which the pope then challenge and usurp it be  improper for the king to set up his own prerogative against himself when he  have another title in he by way of interest and it seem a strange attempt  after so many age and such settle judicial determination to question that  point of prerogative whereunto till this case a entire submission have be make  and many eminent clergyman of the church of England have enjoy and some now do  hold live under the title of that prerogative and it appear by some book of  presentation to live in and since the reign of queen shower KB er p Elizabeth  still extant the former be lose or destroy that the crown have present several  hundred of time upon such promotion and enjoyment be have accord shower KB as  to the second point about the dispensation that can in no sort be any  objection to the right of the crown for this dispensation be grant to the  incumbent to retain his live be not in judgement of law any commendam but come  before the consecration be lawful and effectual and the now plaintiff by their  plead in the cause have own and admit it to be so and then thereby the  avoidance be suspend and no vacancy happen by the consecration nor till the  dispensation expire which be the first of July so that to affirm this  dispensation or confirmation do serve or execute the king turn be to say the  king use his turn before he have it or fill a vacancy before it be and that  not by his own but by the act or instrument of the archbishop the confirmation  which be the king act be bare a formality require by the statute of Henry c to  the dispensation of the archbishop as to the three point upon the Act of  parliament there have be two thing object by the now plaintiff council first  that saint James be a new rectory create by Act of parliament and that dr  Tennison come not into it by presentation but donation and that the  prerogative operate only upon presentative live second that by the express  word of the Act it be provide that the first rector after the decease of dr  Tennison or next avoidance shall be present or collate by the bishop of London  as to the first there be no doubt but that saint James be by the Act make a  presentative rectory participate of the nature of other presentative live and  dr Tennison be continue in his former cure though under another name and there  be no reason in law to make it a donative or otherwise than of the nature of a  presentative live in dr Tennison nor for a distinction between old and new  rectory but the right of the prerogative be find upon the promotion of the  incumbent that hold equal both in old and new rectory where such promotion  happen to be and when this new rectory void by promotion then and not till  then the crown be prerogative to present arise as much as it will or can have  do in the case of a old presentative live as shower KB to the second there can  be no reason to think the Act intend to take away the prerogative of the crown  which general speak be not bind unless special name but the end of this Act be  to erect a new parish and rectory and to make they of the same nature with  other parish and rectory and to settle the right of each as between the patron  and parishioner but in no sort to meddle with much less to take away the right  of the crown nor be there any need of a save of the king right which arise by  the Act by make the rectory presentative and it be not of any weight to say  the express word be for the bishop present the intent of the Act be satisfy by  settle the ordinary course of presentation without exclude the prerogative and  the bishop must take his right subject to the rule of law one part of which be  the prerogative and it have be resolve that the grantee of the next  presentation must give way to the prerogative though he lose his turn by it  and if this Act shall be take literal then there will be no right to present  by lapse nor presentation by the crown in case of any forfeiture or of the  temperality be in the king hand which will be absurd to maintain and such a  literal construction be against the rule and reason of law and many judicial  determination in the like case wherefore it be pray the judgement may be  affirm f f the judgement be affirm accord SC shower case in parliament shower  KB er p shower KB easter term the five of William and mary in the king bench  Saturday the that may