came in by Presentation or Collation and not otherwise It is not at present proper to argue when this Prerogative shall begin or commence upon this Church or if ever 't will be time enough to dispute that when another Occasion offers it self when the Doctor or any of his Successors happens to be preferred to the same state as his Predecessor is It suffices to maintain that this turn belongs to the Bishop of London This is not an Advowson created as others usually are First As was observed before no Advowson is fixed or vested or created but in futuro the same Person is made a Pluralist by Act of Parliament tho' the Act it self says the Parish was too great for one Cure Then 't was observed That this is not a Patronage turn it must be admitted that this Act vests the Fee-simple of this Advowson in the Lord Jermyn and the Bishop of London and in their respective Heirs and Successors by turns viz. to the Lord Jermyn one and to the Bishop two successively and so the Succession is enacted to be for ever now this is not one of those Patronage successive turns but it is a particular Presentation which is given to the Bishop of London by express Limitation and the penning is different The first about which the present Contest is is to be by the Bishop of London for the time being then the successive Presentations of one and two are to be one by the Lord and his Heirs and the two by the Bishop and his Successors so that there is no words in the first that looks like the Gift of an Estate but 't is only one first particular Presentation given to the Bishop more then ordinary It is not one of his turns which he is to have as Patron by two to one But first he is to present one before ever it comes into the form and manner of turns prescribed by this Act in perpetual Succession For if otherwise the Patronage would be to the Bishop three turns in four to one of the Lord Jermyns As to their Objection That a Patronage newly created shall be in the same plight and under the same Rules and Circumstances and Incumbrances as another that Objection can never take place before it becomes a Patronage which this was not And 2. with a stronger reason it can never take place till it hath been presented unto 3. It can never take place where a particular Presentation is at first given by express words The words are The first Rector shall be Collated by the Bishop for the time being and then the Succession and it is always to be remembred that 't is an Act of Parliament Now suppose the Act had said that the Patronage after an Avoidance should be vested in A. and B. but that the first Rector upon that Avoidance should be presented by J. S. a third Person this could never be reckoned a common ordinary turn subject to the like Prerogative as others The Bishop here claims not this particular Presentation in right of his Patronage whereby he is to have two turns to one but by express Gift of the Parliament Suppose the King had been Patron of St. Martyns in his own right no Man would say that this Act thus creating of a new Parish a new Rectory and a new Patron would not have bound him Surely the King's Assent as Supream or General Patron is as much implied in this Act as it would have been had he been a particular Patron of the Church of that Parish out of which the new one is taken Here the King himself gives the first Presentation to the Bishop of London for the King and People all together the whole Kingdom are Donors or Grantors of this first Presentation to my Lord of London Suppose such a Right as this is were in a Subject and he were able to prescribe for it he must then have set forth that time out of mind wheresoever any incumbent of anothers Presentation was preferr'd by him to another Living that he should have the Presentation ea vice this is the most that could be made of it Would any Man say That this Case would fall under that Prescription or the reason of it Now tho' a Prerogative be part of the Common Law and not like a Prescription yet every Prerogative hath its Boundaries and its Limits and a Reason for it too or else 't is no Prerogative that our Law allows of Besides there 's good Reason in Fact for this Provision of the first Presentation because the Act takes notice of the Parish of St. Martyns out of which this Parish is taken and the Bishop of London was Patron thereof and at first there 's the same Incumbent of both Dr. Tennison Now the Patronage being formerly in the Bishop and in the Successive Patronage created of this new Church by this Act there 's one turn in three given away from him to a third Person then this Presentation out of turn is at first given to the Bishop of London in Consideration of the third turn given to the Lord Jermyn afterwards Then there 's another thing deserving of notice in this Case and that 's this That one and the same Person being incumbent of both Parishes the King hath had the Effect of his Prerogative upon the promotion of this very Incumbent by presenting to that Church into which he came by Presentation and Induction viz. St. Martyns but here the Prerogative cannot operate because he came into this by Donation not of the Patron but of the Parliament and consequently as was said before of the King himself Besides here 's no Salvoe of the King's Prerogative or other Right and to what end in all private Acts for Sale of Estates paying of Debts docking of Settlements and the like do the King's Council take Care always to insert a saving if the same be not necessary Here 's a new Estate given and that to a particular Person and in a particular manner and no Person can claim a Right to in or over this but as the Parliament hath given it as for instance in an Act where two Churches are united as upon the Rebuilding of the City of London the first Presentation is ordered to be by the Patron of the Living of the greatest Value in the King's Books The King is Patron of the Living of the lesser Value as he is of several of them in London he shall not have his Common Prerogative of the first Presentation which he hath in all other Cases where his Interest is intermixed with others as in Case of Coparceners and the youngest is in Ward he shall present first tho' the eldest by the Common Law is to have the first turn and the King 's Right is in the Place of the youngest but yet in case where that an Act of Parliament gives a new Estate and prescribes a Method tho' in the Affirmative the Method limited shall take place against the King's Prerogative of being
Honour is Surrendred and a new Honour granted the former is either extinguished or not before the other takes effect if not then the Party hath both together against the will of the Donor and perhaps the new Honour may be of that Name and Place and those Persons may be concerned in it that will not permit it to be effected and if it be in the power of the Ancestor for the advantage of his Posterity by the Surrender of one Honour to take a greater it may be also in his power to do it for his prejudice As to the Objection That by the same Reason an Honour may be extinguished it may also be Transferred he answered That there was a great disparity betwixt them for as to Alienations of Honours there 's a great reason they should be disallowed for they all flow from the Prince and therefore 't is not fit they should be conferred on any but by the Prince tho' the King 's of England have granted power to a General to give the Honour of Knighthood c. in the Field for the Reward and Incouragement of Valour yet this granting of Nobility is a Prerogative peculiar to the King's Person alone no Man else can ennoble another Time was indeed when the Earls of Chester having Counties Palatine by virtue of their Jura Regalia did create Barons yet they never sate in Parliament as Peers because Peerage being a thing of so high a nature cannot be given by any but a Soveraign and is given as a Trust and Obligation so that common Reason saith they are not transferrable It is said in our Law that where Offices are granted to a Man in Fee See Jones 122 123. he may grant it over yet in some Cases they are so near to the Crown that they cannot be transferred but must descend with the Blood upon the same Reason no Man can ever transfer an Honour for the near Relation which it hath to the Crown but in case of Extinguishment that Relation and Trust ceaseth and so they are different Cases Then lastly as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640. he answered That notwithstanding that Case their Lordships had given him leave to argue it and therefore they intended not that should be any Impediment 2. That is no Judgment for they being a Court of Judicature do as other Judges judge of the Matter before them only Then the Question was Whether an Honour could descend to the half Blood They refetred it to the Judges who were of Opinion that it should Thereupon ariseth another Question Whether a Man might Convey or Transfer his Honour to another 'T was resolved he might not This drew another Question whereupon they resolved that a Lord could not Surrender his Dignity the Original Cause was about a Descent to the half Blood the Resolution is he cannot Surrender how then can they pretend that to be a Judgment when the Question in point of Judgment was not before them Suppose it had been resolved and it 's a wonder it had not all that time that a Lord could not forfeit and that had been a third step to have made it a perfect Business for considering the times it had been a most convenient Resolution But besides all that the King's Counsel were never heard in the point and the rejecting the Opinions of Learned Men shows it was no Resolution of the whole House tho' entred upon the Journal and therefore he prayed Judgment against the Petitioner The Earl of Shaftsbury spoke in the House for the Petitioner The stress of the Argument for the King in this Case is founded upon these two Assertions 1 That Honours are taken to be within the Statute de Donis c. and the general Rules of that Statute 2. And then secondly That Honours are to be governed as other Inheritances by the Rule of the Common Law As for the first it hath not been proved for the Resolution in Nevil's Case 2 Jac. was Extrajudicial and no Judgment of any Cause before them and in such Cases the Judges do not hold themselves to be upon Oath and if there be two or more of another Opinion they do not refuse to sign the Resolution of the major part and so it goes under the denomination of all the Judges but if it were a Judgment of them altogether they could neither alter nor make new the Law neither could they make that intended within the Statute de Donis c. which was not in being till many Ages after Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent 2. The second Assertion is contrary to the Opinion of the most Learned Men the Honour and Dignity of the House the constant practise of Westminster-hall and the direct Evidence of the thing it self Justice Berkley a very learned Judge declared his Opinion Febr. 6. 1640. as appears by the Records of this House That Honours descend from the first that was seized of them contrary to the Rules of other Inheritances and that Honours are not governed by the Rules of the Common Law Justice Dodderidge in Jones 207. is of opinion That Honours are Personal Dignities which are affixed to the Blood the Lords never yet suffered their Honours to be tried at any Court at Law or any other where save before themselves tho' their other Inheritances are tried there as well as other Mens So possessio fratris holds of Lands but not of a Dignity which is not disposed of as other Inheritances nor will it be guided by the strict Rules of Law The Lord Coke is of Opinion in Bedford's Case That an Honour could not be taken away but by Act of Parliament therefore it will be allowed that the concurrence of all Parties concerned may extinguish this as well as other Inheritances but the Concurrence of all can't be without Act of Parliament for the whole Kingdom have an Interest in the Peerage of every Lord It is a dangerous Doctrine to say our Judicature and Legislature is our own only The House of Lords is the next thing to the Crown tho' that be far above them yet those that reach at that must take them out of the way first they were voted useless and dangerous before the Crown was laid aside and as in Descent of the Crown the whole Kingdom hath such an Interest in it as the King cannot Surrender or alien it so in a proportionable degree tho' far less the King and Kingdom have an Interest in their Lordships and Dignities and Titles It is true they may be forfeited but it doth not follow that they may be extinguished by Surrender There be two Reasons for the Forfeiture 1. There is a Condition in Law that they shall be true and loyal to the Government 2. Honours are inherent in the Blood and when that is corrupted that which is inherent is taken away but in case of a Surrender these Reasons do
a Colony or Plantation and that imports rather the contrary and by such Names these Plantations have always gone in Letters Patents Proclamations and Acts of Parliament But whatsoever may by some be said as to Statutes in particular binding there the Common Law must and doth oblige there for 't is a Plantation or new Settlement of English-men by the King's Consent in an uninhabited Country and so is the History of Barbadoes written by Richard Ligon Printed at London 1673. pag. 23. says he 'T was a Country not inhabited by any but overgrown with Woods And pag. 100. They are governed by the Laws of England And Heylin in his Geography lib. 4.148 says The English are the sole Colony there they are called the King's Plantations and not his Conquests and he neither could nor can now impose any Laws upon them different from the Laws of England 'T was argued that even our Statutes do bind them and many of them name these Plantations as English they have some Municipal Rules there like our By-laws in the Stanneries or Fenns but that argues nothing as to the general which shall prevail when the one contradicts the other may be a Query another time By the 22 23 Car. 2. cap. 26. against the planting of Tobacco here and for the Regulation of the Plantation Trade the Governours of those Plantations are once a Year to return to the Custom-house in London an Account of all Ships laden and of all the Bonds c. And they are throughout the whole Act called the King's English Plantations Governours of such English Plantations to some of the English Plantations And Paragr 10. 't is said Inasmuch as the Plantations are inhabited which his Subjects of England and so 't is in 15 Car. 2. cap. 7. sect 5. and in 12 Car. 2. cap. 34. they are called Colonies and Plantations of this Kingdom of England From all which 't is natural to infer That the Rules in case of conquered Places cannot prevail here Conquest est res odiosa and never to be presumed besides 't is the People not the Soil that can be said to be conquered The reason of a Conquerour's Power to prescribe Laws is the Conqueror's Clemency in saving the Lives of the conquered whom by the strict right of War he might have destroyed or the presumed Chance of Subjection which the conquered Prince and People threw themselves upon when they first engaged in the War But this is not pretended to here tho' all the Cases about this Subject were put below stairs Then taking it as the truth is certain Subjects of England by consent of their Prince go and possess an uninhabited desert Country the Common Law must be supposed their Rule as 't was their Birthright and as 't is the best and so to be presumed their Choice and not only that but even as obligatory 't is so When they went thither they no more abandoned the English Laws then they did their Natural Allegiance nay they subjected themselves no more to other Laws than they did to another Allegiance which they did not This is a Dominion belonging not only to the Crown but to the Realm of England tho' not within the Territorial Realm Vaughan 330. says That they follow England and are a part of it Then 't was argued further If 't were possible that it should be otherwise when did the Common Law cease On the Sea it remained in all Personal Respects If Batteries or Wounds on Ship-board Actions lay here Then the same held when they landed there and no new Laws could be made for them but by the Prince with their consent Besides Either the Right of these Lands was gained to the Crown or to the Planters by the Occupancy and either way the Common Law must be their Rule It must be agreed that the first Entry gained the right and so is Grotius de jure Belli Pacis lib. 2. cap. 8. sect 6. and these Lands were never the Kings tho' they afterwards submitted to take a Grant of the King 'T is true in case of War what is gained becomes his who maintained the War and doth not of right belong to that Person who first possessed it Grot. lib. 3. cap. 6. sect 11. But in case it be not the effect of War but only by force of their first Entry it must be considered what Interest they did acquire and certainly 't was the largest that can be for an Occupant doth gain an Inheritance by the Law of Nations and the same shall descend then by the Rules of what Law shall the Descent be governed it must be by the Laws of the Country to which they did originally and still do belong But then supposing the Lands gained to the Crown and the Crown to distribute these Lands the Grant of them is to hold in Soccage and that is a common Law Tenure why are not their Persons in like manner under the Common Law When a Governour was first received by or imposed upon them 't was never intended either by King or People that he should Rule by any other Law than that of England And if it had been known to be otherwise the number of Subjects there would have been very small In these Cases their Allegiance continues and must be according to the Laws of England and 't was argued that ex consequenti the protection and rule of them ought to be by the same Laws for they are mutual and reciprocal unum trahit alterum and that Law which is the Rule of the one should be the Rule of the other besides 't is the Inhabitants not the Country that are capable of Laws and those are English and so declared and allowed to be and consequently there 's no reason why the English Laws should not follow the Persons of English-men especially while they are under the English Government and since the Great Seal goes thither And further a Writ of Error lies here upon any of their ultimate Judgments so says Vaughan 402. and 21 Hen. 7.3 that it doth so to all Subordinate Dominions and tho' the distance of the Place prevents the common use of such Writ yet by his Opinion it clearly lies and he reckons the Plantations part of those Subordinate Dominions Now a Writ of Error is a remedial Writ whereon Right is to be done and that must be according to the Laws of England for the King's Bench in case of a Reversal upon such Writ is to give a new Judgment as by Law ought to have been first given Vaughan 290 291 says It lies at Common Law to reverse Judgments in any inferiour Dominions for if it did not inferiour and Provincial Governments might make what Laws they please for Judgments are Laws when they are not to be reversed It lay to Ireland by the Common Law says Coke 7 Rep. 18. tho' there had been no Reservation of it in King John's Charter Then 't was inferred that the lying of a Writ of Error proves the Laws
to be the same i.e. in general the Common Law to govern in both places from the difference assigned between Ireland and Scotland it lies not to Scotland because a distinct Kingdom and governed by distinct Laws and it lies to Ireland because ruled by the same and consequently if a Writ of Error lies on the final Judgment there it 's a good Argument that the same Law prevails there These Plantations are parcel of the Realm as Counties Palatine are Their Rights and Interests are every day determined in Chancery here only that for necessity and encouragement of Trade and Commerce they make Plantation-Lands as Assets in certain Cases to pay Debts in all other things they make Rules for them according to the common Course of English Equity The distance or the contiguity of the thing makes no alteration in the Case And then 't was said as at first That this then was the same case as if the Imprisonment had been in England or on Shipboard as to the Rules of Justification that if there were another Law which could justifie it the same ought to have been certainly pleaded As to the Instructions those do not appear and therefore are not to be considered in the Case and they should have been set forth and no extraordinary Power is to be presumed unless shewn for every Man in pleading is thought to make the best of his own Case and consequently that if 't would have made for him the same would have been shewn and because they are not shewn they must be thought directive of a Government according to the Laws of England since 't is to a Subject of this Realm to govern other Subjects of this Realm living upon a part of this Realm and from the King thereof who must be supposed to approve those Laws which make him King and by which he reigns Then 't was argued Suppose this Governour had borrowed Money of a Man in the Island and then had returned to England and an Action had been brought for it and he had pretended to ustifie the receipt of it as Governour he must have shewn his Power the Law and how he observed that Law the like for Goods the same reason for Torts and Wrongs done vi armis Now the Court below could consider no other Power or Law to justifie this act but the Common Law of England and that will not do it for the Reasons given and if it be justifiable by any other it must be pleaded and what he hath pleaded is not pursued c. As to the Commitment by a Council of State what it means is hardly known in the Law of England and that Authority which commits by our Law ought to be certain and the Cause expressed as all the Arguments upon the Writ of Habeas Corpus in old time do shew but here 's no Councel and 't is not said so much as that he was debito modo onerat ' And as to the Demurr ' that confesses no more then what is well pleaded And as to Consequences there 's more danger to the Liberty of the Subject by allowing such a Behaviour then can be to the Government by allowing the Action to lye And therefore 't was prayed that the Judgment might be affirmed It was replyed on behalf of the Plaintiff in the Writ of Error That notwithstanding all that had been said the Laws there were different tho' the Foundation of them was the Common Law that they would not enter into that Question What sort of Title at first gave Right to these Lands but that this was a Commitment by a Councel of State And as to the Objection of too general Pleadings in male arbitrarie exercendo c. tho' the inducement of the Plea was so There were other Matters more particularly pleaded the altering the Decrees in his Chamber which was sufficient And as to the Objection That 't is not alledged in the Pleadings that the Charge in Councel against Wytham was upon Oath they answered That 't is not effential tho' prudent to have the Charge upon Oath before Commitment Matters may be otherwise apparent And as to the Objection That the Warrant of the Councel for the Commitment was not shewn they said that it lay not in their power because 't was delivered to the Provost Marshal as his Authority for the Capture and Detention of him and therefore did belong to him to keep And that the Councel tho' they were not a Court yet they had Jurisdiction to hear the Complaint and send him to another Court that could try the Crime and tho' it did not appear that the King gave any Authority to the Governour and Councel to commit yet 't is incident to their Authority as being a Councel of State the Councel here in England commit no otherwise and where the Commitment is not authorized by Law the King's Patent gives no power for it But the Government must be very weak where the Councel of State cannot commit a Delinquent so as to be forth-coming to another Court that can punish his Delinquency And therefore prayed that the Judgment should be reversed and the same was accordingly reversed Philips versus Bury WRit of Error to reverse a Judgment given for the Defendant in the Court of King's Bench where the Case upon the Record was thus Ejectione firme on the Demise of Painter as Rector and the Scholars of Exeter Colledge in Oxon for the Rector's House The Defendant pleads specially That the House in question is the Freehold of the Rector and Scholars of the Colledge but he says That he the said Dr. Bury was then Rector of that Colledge and that in right of the Rector and Scholars he did enter into the Messuage in question and did Eject the Plaintiff and so holds him out absque hoc That Painter the Lessor of the Plaintiff was at the time of making the Lease in the Declaration Rector of that Colledge hoc paratus est verificare c. The Plaintiff replys That the Messuage belongs to the Rector an Scholars but that Painter the Lessor was Rector at the time of the Lease hoc petit quod inquiratur per Patriam c. and thereon Issue is joyned and a Special Verdict The Jury find that Exeter Colledge is and was one Body Politick and Corporate by the Name of Rector and Scholars Collegij Exon ' infra Vniversitat ' Oxon ' that by the Foundation of the Colledge there were Laws and Statutes by which they were to be governed and that the Bishop of Exeter for the time being and no other at the time of founding the Colledge was constituted by virtue of the Statute concerning that Matter hereafter mentioned ordinary Visitor of the same Colledge secundum tenorem effectum statut ' eam rem concernent ' That the Bishop of Exeter who now is is Visitor according to that Statute Then they find the Statute for the Election of a Rector prout c. Then they find
command them in Ireland to do Execution there St. John vers Cummin Yelv. 118 119. 4 Inst 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed shall proceed in B. R. and 1 Rolls 774. to the same effect Green vers Cole 2 Saund. 256. The Judges Commissioners gave the new Judgment 'T is true in Dyer 343. the opinion was that he was only restored to his Action and then Writs of Error were not so frequent The Judgment may be erroneous for the Defendant and yet no reason to give a Judgment for the Plaintiff as in Slocomb's Case 1 Cro. 442. the Court gave a new Judgment for the Defendant therefore it properly belongs to the Court which doth examine the Error to give the new Judgment the Record is removed as Fitzh Nat. Brev. 18 19. on false Judgment in ancient Demesne v. 38 Hen. 6.30 and Griffin's Case in Error on a quod ei deforceat in 2 Saunders 29 30. new Judgment given here In the Case of Robinson and Wolley in 3 Keeble 821. Ejectment Special Verdict Judgment reversed in the Exchequer Chamber and they could never get Judgment here the Court of Exchequer Chamber not having given it and in the principal Case after several Motions in the Court of King's Bench the Remittitur not being entred there a Motion was made in Parliament upon this Matter and a new Judgment was added to the Reversal that the Plaintiff should recover c. Dr. William Oldis Plaintiff Versus Charles Donmille Defendant WRit of Error to Reverse a Judgment in the Court of Exchequer affirmed upon a Writ of Error before the Lord Chancellor c. The Case upon the Record was thus Donmille declares in the Exchequer in placito transgr ' contempt ' c. for a Prosecution contra regiam prohibit ' and sets forth Magna Charta that nullus liber homo c. that the Plaintiff is a Freeman of this Kingdom and ought to enjoy the free Customs thereof c. that the Defendant not being ignorant of the Premisses but designing to vex and aggrieve the Plaintiff did in Curia militari Henrici Ducis Norfolk ' coram ipso Henrico Com' Mareschal ' Exhibit certain Articles against the Plaintiff c. that Sir Henry St. George Clarencieux King at Arms was and is King at Arms for the Southern Eastern and Western Parts of the Kingdom viz. from the River of Trent versus Austrum and that the Conusance Correction and Disposition of Arms and Coats of Arms and ordering of Funeral Pomps time out of mind did belong to him within that Province and that the Plaintiff having notice thereof did without any Licence in that behalf had and obtained paint and cause to be painted Arms and Escutcheons and caused them to be fixed to Herses that he provided and lent Velvet Palls for Funerals that he painted divers Arms for one Berkstead who had no right to their use at the Funeral and did lend a Pall for that Funeral and paint Arms for Elizabeth Godfrey and marshalled the Funeral and the like for Sprignall and that he had publickly hanging out at his Balcony Escutcheons painted and Coaches and Herses and other Publick Processions of Funerals to entice People to come to his House and Shop for Arms c. That the Defendant compelled the Plaintiff to appear and answer the Premisses c. The Defendant in propria persona sua venit dicit That the Court of the Constable and Marshal of England is an ancient Court time out of mind and accustomed to be held before the Constable of England and the Earl Marshal of England for the time being or before the Constable only when the Office of Earl Marshal is vacant or before the Earl Marshal only when the Office of Constable is vacant which Court hath time out of mind had Conusance of all Pleas and Causes concerning Arms Escutcheons Genealogies and Funerals within this Realm and that no other Person hath ever intermeddled in those Pleas or Affairs nor had or claimed Jurisdiction thereof and that the Suit complained of by the Plaintiff was prosecuted in the said ancient Court of and for Causes concerning Arms Escutcheons and Funerals That by the 13 Rich. 2. 't was enacted that if any Person should complain of any Plea begun before the Constable and Marshal which might be tried by the Common Law he should have a Privy Seal without difficulty to be directed to the Constable and Marshal to Supersede that Plea till discussed by the King's Counsel if it belongs to that Court or to the Common Law prout per Statut ' ill ' apparet and that the said Court time out of mind hath been tant ' honoris celsitudinis that it was never prohibited from holding any Pleas in the same Court aliter vel alio modo quam juxta formam Statut ' praed ' Et hoc parat ' est verificare unde non intendit quod Curia hic placitum praed ' ulterius cognoscere velit aut debeat c. The Plaintiff demurs and the Defendant joyns From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber and afterwards by advice of the Judges there the Court gave Judgment for the Plaintiff which was affirmed by the Chancellor and Treasurer c. And now it was argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was erroneous and fit to be reversed And first to maintain the Court as set forth 't was insisted on 1. That when there was a Constable and Marshal the Marshal had equal Power of Judicature with the Constable as each Judge hath in other Courts 2. That the Constable had in that Court power of Judicature alone when there was no Marshal And 3. That the Marshal had the like when there was no Constable That they had both equal power of Judicature appeared by all their Proceedings by their Libels or Bills in the Case of John Keightley Esq against Stephen Scroop The Libel is In the Name of God Amen Before you my Lords the Constable and Marshal of England in your Court of Chivalry and prays that the said Stephen by their Sentence definitive may be punisht 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England So the Libels were directed to both and both sate judicially The same appears by the Sentence or Judgment given in that Court Bulmer libelled against Bertram Vsau coram Constabulario Mareschallo qui duellum inter partes allocaverunt assignaverunt locum tempus Rot. Vascor ' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King they are both sent to to return the Rolls of their Judgments Rot. Claus 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grovesnor against Richard Scroop 't is upon
they should be in actual Possession of the King held that they should be in him by force of that last Act and Reason will warrant these Differences because if otherwise Inconsistencies and Contradictions must be allowed Then this is a new Law in the whole 't is a new Parish 't is a new Advowson and in truth 't is no Advowson till the Avoidance nay by the words of the Act if any difference can be in an instant between at and after as our Law in several Cases allows it as per mortem post mortem Devise by Jointenant c. there 's no Patronage fixed 't is no Advowson until after the Avoidance for so are the words after the Avoidance the Advowson Patronage and Presentation shall be vested foret vestit ' in Episcopo Lond ' Domino Jermyn and till then 't is vested in no Body and that which is in no Body is not at all unless it be as some times for necessity sake we say in nubibus or in abeyance but to say that an Advowson shall be in abeyance before 't is created or ordained to exist or be at all must favour somewhat of Absurdity Now the King can have no Prerogative turn upon an Avoidance by a Promotion but when the Patron 's Clerk was promoted and preferred and here is no Patron till that Avoidance happen They say 't is vested immediately tho' to take possession hereafter as a Reversion granted cum acciderit according to 3 Cro. 323. and 1 Saund. 147. But that 's not this Case for there is a present Grant here the words are After the Avoidance shall be vested and not before and being a new thing it may be so as a Rent-charge de novo may be granted to take effect de futuro but cannot be so of an old Rent 2. Dr. Tennison comes not in by the Patron 's Presentation but by Donation of the Parliament and there is not any President for a Prerogative to present to a Donative upon a Promotion The King cannot present to that which the Patron could not have presented to and the Patron could not present to a Donative quatenus a Donative and for the King to present to a Donative is to injure the Patron for 't is to make that Presentative which was never intended by the Patron to be so And yet in Case of a Donative with Cure of Souls as it may be of a Parochial Church tho' exempt from Ordinary's Jurisdiction according to Yelverton 61. 2 Roll. Abridg. 341. the Ordinary may compel the Patron to Collate some body as was held in Case of the Rectory Parochial Donative of St. Burian's in Cornwall and the Tower of London is with Cure of Souls 1 Cro. 330. 2 Roll. Abridg. 331. 1 Inst 144. The same will be void by a Promotion of the Incumbent for 't is not meerly the change of Inferiour into Superiour that makes the Avoidance for then an Incumbent made Bishop of another Diocess or in Ireland would not avoid the Benefice but 't is the Doubleness of the Charge contrary to the Council of Lateran which hath been received here This is more different from the pretended Notion and Reason of this Prerogative then that Case of a Common Donative for in Case of a Donative there 's an Incumbent of the Patron 's own preferring who is further promoted by the King and still in being and the same Patron claiming a Right to fill the same Here 't is an Incumbency by Gift of the King Lords and Commons And then if it be considered what this new Prerogative is for so it must be termed since there 's no footsteps for it in the old times and the Statute of Prerogativa Regis which enumerates most of them and is rather a Collection of old Prerogatives then a new Statute mentions it not 't is a Prerogative to present upon the Promotion of the Patron 's Presentee or incumbent presented in his Right here is no such thing 't is as their Books say when the Patron 's Presentee is advanced to a greater Dignity in the Church and the pretended Reason given for it to avoid the Objection That no Prerogative is to be injurious or to import a Wrong done to the Subject is this That here 's no Injury to the Patron but a Kindness to his Friend because the Person which he chose and preferred is bettered and further preferred to an higher Degree of Honour and State in the Church all this fails here so that there doth not seem to be the same Colour why the King should have it in this Case It is a good Argument according to Mr. Littleton That because no such ever was before that therefore of right it ought not to be And if no Practise hath been to warrant it in Case of a Gift by Act of Parliament there 's no reason it should be allowed in this Case for a Prerogative never used can never be with Propriety called a Prerogative much less reason have they for it if they have no Practise or presidents to warrant their Claim in case of any Donative Prima facie the patron hath the right to evade that right of his Mr. Attorney pretends to a Prerogative then it being of common right with him they ought to demonstrate that there is such a Prerogative to controul that right in this particular Case and the Arguments brought for it ought to be clear convincing and undoubted Now because where a Patron 's Presentee is preferred by being consecrated a Bishop the King shall present that therefore where the Parliament's Presentee is preferred the Patron shall lose the benefit of his Presentation is a non sequitur because the Cases are not the same for the supposed Recompence or Consideration in the one holds not in the other This is not the Case of a Prerogative incident to the Crown from the Necessity of Government nor is it a Prerogative which respects the Continuance or Improvement of the Revenue so as for the benefit of the Kingdom an Extent or Enlargement of it beyond former Practise may seem absolutely needful and therefore the common pretences of Intendment and Presumption are no more on their side then upon this nay 't is rather otherwise because that common right is with the Patron It is no Objection to say That there never was such a Promotion or Avoidance before whether there were or not is not material but that rather turns upon them for that Evinces beyond dispute that there never was such a Prerogative presentation in Fact as they now contend for Argument ' Ã simili is the weakest but they have no Case like this nay they have no Opinion in the Books declaring on their side nay the Book Definition of this Prerogative as was said before is only to present to a Benefice vacant by promotion that was antecedently presentable here the whole Kingdom is Patron and all that they can pretend to is when a Man is dignified by promotion who