yet doth further agree That this Parish-Church was never presented to by any Person at all But he insists upon it That now it is void the King hath a Right to present to it by force of his Prerogative upon this Avoidance tho' the Act saith That the Bishop shall present after the Decease of Dr. Tennison or the next Avoidance The Query is whether the King's Prerogative can operate upon this Vacancy of this Benefice thus filled and thus avoided against the express Words of an Act of Parliament It will be necessary to repeat the Words of the Act and they are to this Effect That all that Precinct or District of Ground within the Bounds and Limits there mentioned from thenceforth should be a Parish of it self by the Name of the Parish of St. James's within the Liberties of Westminster and a Church thereupon built is dedicated by the Act to Divine Service and that there should be a Rector to have the Care of Souls inhabiting there and then after a full Commendation of the Merits and Services of Dr. Tennison in that Place the now Reverend the Bishop of Lincoln It doth Enact and Ordain him to be the first Rector of the same and that the said Doctor and his Successors Rectors of the said Parish should be incorporated and have a perpetual Capacity and Succession by the Name of the Rector of the said Parish Church and by Virtue of that Act should be enabled by the Name aforesaid to sue and be sued to plead and to be impleaded in all Courts and Places within this Kingdom and should have Capacity to hold and enjoy purchase and acquire Lands Tenements and Hereditaments to him and them Rectors thereof for ever over and above what is given and settled by that Act to any Value not exceeding 200 l. per Annum Then it Enacts That the Patronage Advowson or Presentation after the Decease of the said first Rector or Avoidance thereof shall or should belong and appertain and by that Act shall or should be vested in the said Bishop of London for the time being and his Successors and in Thomas Lord Jermyn and his Heirs for ever Then it Enacts That the first Rector after such Decease or Vacancy shall be presented or collated by the Bishop of London for the time being and the next to succeed him shall be presented by the Lord Jermyn and his Heirs and the two next succeeding turns by the Bishop and his Successors and the next turn to the Lord Jermyn and his Heirs and then the like Succession of two turns for one to the Bishop and his Succession and of one turn to the Lord Jermyn and his Heirs for ever after This is the Act. Now 't is to be considered That this Law doth bind the King and would bind him in point of Interest if he had been Patron of St. Martins in Right of his Crown and if a Right or Interest of the Crown shall be bound by an Act of Parliament a Prerogative shall be in no better plight It cannot be said That he shall not be obliged by it because not named for tho' and where he is not named he is bound by Multitudes of Statutes according to the 5 Rep. 14 and 11 Rep. 68. He is bound by all Acts generally speaking which are to prevent a Decay of Religion and so he is bound by Acts which are for further Relief or to give a more speedy Remedy against Wrong It is no Objection that this Law is in the Affirmative for that it is introductive of a new Law in the very Subject that is created de novo Then before this Act the King had no Right over this and if he hath now any over it he can only have it how when and as the Act gives it not contrary to it then the Bishop was Patron of the Place out of which the Parish is created And the Bishop can claim no other Right than what the Act gives him Bro. tit Remitter 49. 't is so agreed 1 Rep. 48. and in 2 Rep. 46. if Lands be given in Fee to one who was Tenant in Tayle his Issue shall not be remitted because the latter Act takes away the force of the Statute de donis Suppose he had been Enacted to be Patron of a Living to which he had a former Right there could be no Remitter because as to particulars the Act is like a Judgment and estops all Parties to claim any thing otherwise than according to the Act and yet Remitter is a Title favoured in the Law then if he have this only by force of this New Act and another Person should present in his turn so given 't would be an Injury if a Subject did it and consequently the King cannot do it for the Prerogative which this Act gives or which the Common Law gives is not yet come to take place Tho' this be an Affirmative Law yet according to the Rule taken and agreed in Slade's and Drake's Case Hob. 298. being introductive or creative of a new thing implies a Negative of all that is not in the purview and many Cases are there put to this purpose Then also it being particular and express it implies a Negative because this and the other are inconsistent But First 'T is observable all Prescriptions and Customs are fore-closed by a New Act of Parliament unless saved Suppose there was an Act of Parliament in Force before this viz. That the King should present yet another Statute Enacting somewhat new and inconsistent will carry a Negative and if so in Case of a former Act there 's almost as much Reason for a Prerogative It must be agreed That a Man may prescribe or alledge a Custom against an Act of Parliament when his Prescription or Custom is saved or preserved by that or another Act but regularly a Man cannot prescribe or alledge a Custom against any Act of Parliament because 't is matter of Record and the highest and greatest Record which we know of in the Law 1 Inst 115. Suppose Money were by the Law payable annually and an Act comes and says it shall be paid Quarterly by even and equal Portions at the four Feasts for the first Year this will certainly alter the Law 'T is true That a consistent Devife or Statute is no Repeal or Revocation but if a new Act gives a new Estate different from the former this amounts to a Repeal Fox and Harcourt's Case The same Rule holds even in Case of the King as in the Archbishop of Canterbury's Case 2 Rep. 46. and agreed to in Hob. 310. the Query was if the Lands came to the King by 31 H. 8. cap. 13. or by the Stat. of Edw. 6. and objected That the latter was in the Affirmative yet held That it came by the latter because tho' they were Affirmative Words yet they were differently penn'd and the last being of as high an Authority as the first and providing by express Words That by Authority of that Parliament
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
Feodary and Officiary as Earl Marshal of England which have a Relation to an Office or Land for such are Transferrable over and such Dignities as are only Personal Inherent in the Blood and only favour quasi of the Reality of which no Fine can be levied as 't is of an Annuity to a Man and his Heirs no Fine can be levied 2. A Dignity was neither subject to a Condition at the Common Law nor intailable by the Statute de Donis c. nor barrable by the Statute of Fines Indeed in Nevil's Case something which favours of the contrary Opinion is said but the Question there was Whether 't was forfeitable by Treason And therefore the present Question is very forreign to the Matter there debated A Dignity differs from other Inheritances being an Honour Personal affixed to the Blood cannot be forfeited by a Non-performance of a Condition except that Tacite Condition in Law and consequently cannot be intailed and tho' the Title of a Viscount be of a Place yet it is only Titular for it is often taken from the Sirnames of Families 3. The Title of Viscount c. is not so much a private Interest as a publick Right for Peers are born Counsellors of State and one part of a Senatory Body and therefore cannot be renounced without the Consent of all those who have interest in it they cannot without the Consent of the whole Body whereof they are so considerable Members cut themselves off from the Body and so the Objection of quilibet potest Juri suo renuntiare is easily answered 'T was further argued on the same side That 1. An Honour goes not according to the Rules of the Common Law nor is it governable by them it is not therefore pertinent to argue from those Rules which hold in Cases of other Inheritances for a Dignity descends to the Half-blood there is no Coparcinership of it but the Eldest takes the whole a Fee-simple will go to a Noble-man without the word Heirs 1 Inst 27. It differs from Estates in Land in the Intrinsick Matter as well as the Manner of the Limitation because it is given for two Reasons for Counsel and Defence and it is a Civil Interest appointed by the Civil Constitution of the Realm which goes with the Blood and is inherent in the Blood insomuch that it is agreed on all hands that it can't be transferred to a Stranger and till Nevil's Case 't was doubted whether forfeitable for Treason if a Lord die his Son shall be introduc'd without the Ceremony usual at the first Creation a Peer's eldest Son and all Minors sit behind the Chair of State to prepare them for the Sitting in the House as Members and because they have some Title to the Honour they are called Nobiles Nati for the first time they fetch breath they have Nobility in them So that he that Surrenders by Fine must not only extinguish his Estate in the Honour but also the Nobility of his Blood 2. Every Lord is not only a Lord for himself but also hath a Right of Peerage and is a Peer of the Realm and therefore a Peer for every one of the House and therefore hath the Priviledge to demand his Writ Ex debito Justitiae and is to be tried by his Peers in Capital Crimes and that appears farther from a Matter which happened in this House 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament not Peers at which the Lords wondering ordered a Committee to examine the reason of it which proves that Lord is not so high nor inclusive as Peers So that if the Fine have any Operation it takes away not only his Right but also the Right of the House of Lords 3. The trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament but if a Fine may be levied in the Common Pleas the Trial is drawn ad aliud Examen and must then be by the Records of that Court The Clerk of the Parliament always certifies if he be a Baron because he hath the Record before him but he cannot certifie he is no Baron because he hath not the Record thereof before him 4. No Fine can be levied of a thing Personal as an Annuity to a Man and his Heirs but a Dignity is a thing Personal and so he took notice of the difference betwixt the Honours of Peerage which are Personal and the Honours that are Feodary and Officiary which have reference to an Office or Land 5. He did argue ab inconvenienti that this Opinion can be no Inconveniency to the Crown but the contrary makes Nobility a meer Pageantry by putting it into the Hands of a weak and angry Father to dispossess an hopeful Son of that which is his Birth-right The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer and when the greater are gone the other must go with it And then from being a Nobleman to day he and the rest of his Family must be below all Nobility and be called Yeomen or Goodman Villers to morrow which may bring great Confusion to a Noble Family and all its Relatives and surely this House will not put such a publick Disrespect on such a Family by agreeing to so unjust an act of one Man And that which was most relied upon was a Resolution of this House in Stafford's Case Anno 1640. which no Man without Indecency can question it passed not sub silentio or obiter but upon debate neither could it be any way invalid upon account of the Times for it was in the Infancy of that Parliament and that wherein a Peer's Case who sits now in this House was judicially before them and therefore there is no reason to shake that Judgment more than any other Judgment of that time My Lord Cooke in his 4 Inst Chapt. of Ireland is of Opinion that Honours cannot be extinguished but by Act of Parliament Then as to the Precedents that have been urg'd on the other side there are none directly to the Point for as to Nevil's Case there are very few Cases cited there aright and are not to be look'd upon as Law The Case of my Lord of Northumberland in 3 4 Phil. Mar. was by way of Creation and so was the Case of Dudley And Dugdale in his Baronage of England pag. 270. gives an account of it and the rest of the Precedents are above Two hundred years old which passed sub silentio and are not to be vouched unless they were disputed The first is Bigod's who in the time of Edw. 1. surrendred the Honour of Earl-Marshal of England to the King who granted it to him in Tail This Honour is Officiary and therefore nothing to the purpose and the Surrender was made thro' fear Walsingham 95. The next is the Earl of Pembroke's Case who in 8 Edw. 4. was made Earl in Tail and by this he had the
not hold there is no Breach of any Condition in Law nor any Corruption of the Blood for these Reasons Felony without Clergy forfeits Honours whereas other Inheritances tho' Fee-simple are lost but for a year and a day and so are Freeholds for Lives which is another clear Instance that Honours are not governed by the Rules of Law It is pressed as a known Law that Honours are grantable for Lives a Point of greater Consequence than the Thing in debate It 's not a fair way of arguing nor to be allowed of As for the Precedents that are Selden 730. is expresly against them for it saith that the Honour of Baronages were in Abbots only in right of their Abbies not inherent in them So that 't is plainly inferred that other Honours are Personal Dignities The Lord Delaware's Case 11 Rep. makes nothing for them for it doth not follow that because he could not Surrender that which was not in him therefore he might Surrender that which was in him As to the other Precedents he gave these three Reasons 1. They were bare Surrenders no Fines 2. All those were made by Persons that had advantage by them having greater Honours granted unto them or such whose Interest was beyond the Seas and therefore were willing to quit their Dependencies here upon good Considerations that pleased them Et volenti non sit Injuria 3. All these Surrenders passed sub silentio and never admitted of any Dispute But as for the sole melancholy Precedent of Roger Stafford 1638. which was condemned in Parliament 1640. 't is to be observed that Resolution can't be condemned because of the Times for the Affront to the Lords in taking such a Fine was in 1638. and when could it be more properly remedied then in 1640. except it be expected there were a Prophetical Spirit of Judgment against a thing not in being there were 94 Lords present and the Vote was Nemine Contradicente which gives it as great an Authority as any Resolution that ever was The King's Counsel were not heard in the Case of Ship-money nor Knighthood-money where they had more right to claim to be heard than in this Case To conclude a Fine is a Judgment in the Common Pleas and your Lordships Honours are not triable in that Court below in Westminster-hall but if this Fine be allowable they must be triable there as well as other Inheritances And as to what has been said That some of your Lordships sit here by Remainders and they are in danger if Honours be not allowed to be intailed it 's denied and if they be intailed it 's not of the same nature with other Inheritances neither doth any Lord sit here by Title of a Remainder but by Virtue of a new Grant in the same Patent 'T was afterwards declared That the Lords Spiritual and Temporal in Parliament assembled upon a very long Debate and having heard his Majesty's Attorney General are unanimously of Opinion and do resolve and adjudge that no fine levied or at any time hereafter to be levied to the King can bar a Peer's Title of Honour or the Right of any Person claiming such Title under him that levied or shall levie such Fine Duval versus Price WRit of Error on a Judgment in the Court of Exchequer affirmed on a Writ of Error before the Keeper of the Great Seal c. in an Action of the Case for Slander The Writ was to this Effect Gullelmus Maria c. Thes Baronibus de Scaccario suo salutem quia in recordo processu ac etiam in redditione judicij loquelae quae fuit in Cur ' nostra de Scaccar ' coram Baronibus nostris praed ' de Scaccar ' nostro praed ' per Billam inter Edward ' Price Arm ' debitor ' nostr ' Johan ' Duvall Arm ' de quadam transgression ' super casum eidem Edwardo per praefat ' Johannem illat ' super quo judicium in Curia nostra de Scaccar ' reddit ' fuit pro praefat ' Edwardo versus dict' Johann ' qua quidem record ' process ' causa Erroris intervenient ' in Camera Consilij juxta Scaccar ' vocat ' le Councel Chamber coram Domino Custod ' Magni Sigilli Angliae vobis praefat ' Thes venire facimus jud ' inde versus praefat ' Johann ' coram c. affirmatum est quia in affirmatione judicij praed ' versus praed ' Johannem coram c. Error ' intervenit manifestus ad grave dampn ' ipsius Johannis sicut ex quaerela sua accepimus quos Error ' si quis fuerit modo debito Corrigi eidem Johanni plenam Celarem justitiam fieri volentes in hac parte vobis Mandamus quod si judicium coram praefat ' c. affirmatum est tunc record ' process ' tam judicii quam affirmation ' praed ' cum omnibus ea tangentibus quae coram vobis jam resident ' ut dicitur nobis in Parliament ' nostro viz. 17 die Septembris prox ' futur ' distincte aperte mittatis hoc Breve ut inspectis record ' processu praedict ' ulterius inde de assensu Dominor ' Spiritualium Temporalium in eodem Parliamento Existent ' pro Errore illo Corrigend ' fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Anglie fuerit faciend ' Teste nobis ipsis apud Westm ' 8 Maii Anno 6. Record ' Process ' de quibus in Brevi de Errore huic Schedule annex ' specificat ' fit mentio sequitur in haec verba Placita coram Baron ' de Scaccar ' c. Midd ' Memorand ' quod alias scilicet c. And by the Bill Price complains of Duvall praesent ' hic in Cur ' eodem die de placito transgr ' super casum pro eo viz. quod cum he was a good Subject and free from all Suspicion of Treason and was a Justice of Peace in Radnor and Montgomery-shire and well performed his Duty and well-affected to the King and Queens Government and ready to oppose all their Enemies c. the Defendant maliciously designing to prejudice the Plaintiff and to bring him into the Displeasure of his Prince c. did tali die anno apud Westm ' in Com' Midd ' habens colloquium of the said Plaintiff say these English words of him He meaning the Plaintiff is disaffected to the Government the Government of the King and Queen meaning and having other Discourse of the Plaintiff and of the Government of the King and Queen did say of the said Plaintiff these other words viz. He meaning the Plaintiff is disaffected to the Government the said Government of the King and Queen meaning By pretext of which said words he was injured in his Credit and fell into the Displeasure of their Majesties and his Office aforesaid by reason thereof did totally lose and remain'd hitherto daily
yet where it was good at Law and no Cheat or Imposition upon the Party but he meant as he had undertaken to pay this Money and was not deceived in his Expectation as to the Success of the Respondent's Endeavours 't would be hard in Equity to damn such a Security and therefore 't was prayed that the Decree should be affirmed It was replied That Marriages ought to be procured and promoted by the Mediation of Friends and Relations and not of Hirelings that the not vacating such Bonds when questioned in a Court of Equity would be of Evil Example to Executors Trustees Guardians Servants and other People having the Care of Children And therefore 't was prayed that the Decree might be reversed and it was reversed accordingly The Society of the Governour and Assistants London of the new Plantation of Ulster in the Kingdom of Ireland Versus William Lord Bishop of Derry APpeal from a Judgment by the Lords Spiritual and Temporal of Ireland in Parliament assembled upon the Bishop's Petition and Appeal to their Lordships form an Order in the Chancery touching certain Lands in the County and Liberties of London-Derry It sets forth amongst other things after a recital of the Proceedings in Chancery and the Merits of the Cause that the Appellants were advised that no Appeal lyes to the House of Lords in Ireland from the Court of Chancery there but that all Appeals from thence ought to be immediatly to their Lordships here the Supreme Judicature as well for Matters arising in Ireland as in this Kingdom and therefore in the Conclusion prays that an Order might be made for the said Bishop to appear and put in his Answer thereto that the Matter might be heard before their Lordships here when it should be thought fit and that the Petitioners might receive such relief as should be agreeable to their Lordships great Wisdom and Justice c. Upon presenting this Appeal to the Lords here the House appointed Lords Committees to consider the proper method of Appealing from the Decrees made in the Court of Chancery in Ireland and to report c. Then pursuant to an Order made by the Lords Committees and a Letter sent to the Lords Justices of Ireland by Order of the House of Lords here Some Precedents or Cases from Ireland relating to the method of appealing from the Chancery there were brought before the said Committee and reported to the House whereupon the House ordered that both Parties might have Copies of the same Then the Society took Copies and preferred a short Petition to the House setting forth the said matter and that they were ready by their Councel to offer several things in order to their Lordship's receiving and proceeding upon their said Appeal whereupon a day was appointed for the hearing of Councel on both sides with regard to Jurisdiction And It was accordingly argued on behalf of the said Society that the Judgments in Ireland whether in Law or Equity were not to be finally Determined there that Ireland was dependant upon England 't was urged to prove it that our Money was to be Current there that our Laws did oblige them that they were governed secundum leges consuetudines anglicanas Davis 21. in which Book 24. that the Easterlings in England who first made the Money of this Standard and from whose Name comes that of Sterling were the first Founders of the four Principal Cities of Ireland Dublin Waterford Corke and Limrick and the other Maritime Villes in that Country and were the sole Maintainers of Traffick and Commerce there which were all utterly neglected by the Irish These Cities and Villes were under the Protection of King Edgar and Edward the Confessor before the Norman Conquest and these Easterlings in Ancient Record are called Ostmanni and therefore when Hen. 2. Upon the first Conquest after their Apostacy thought fit to People those Cities and Villes with English Colonies drawn from Exeter Bristol and Chester c. he assigned to them a certain proportion of Land next adjoyning to each of those Cities which Portion is called in the Records in Ancient time Cantreda Ostmannorum Davis 25. says further that Ireland is a Member of England Inhabitantes ibidem legibus Angliae subjiciuntur utuntur In the Statute of Faculties 28 Hen. 8. cap. 19. 't is mentioned to be the King's Land of Ireland and that this the King's Land of Ireland is a Member Appendant and rightfully belonging to the Imperial Crown of the Realm of England and united to the same And in the 33 Hen. 8. cap. 1. by which the Stile and Title of King of Ireland was given to Hen. 8. his Heirs and Successors 't is further Enacted that the King shall enjoy this Stile and Title and all other Royal preeminences Prerogatives and Dignities as united and annexed to the Imperial Crown of England Nay It may be compared to a County-Palatine Created by the King of England for Davis 62. speaking of that he says that a County-Palatine hath in it jura regalia which consists in Royal Jurisdiction and Royal Seignory By the first it hath all its High Courts and Officers of Justice which the King hath and by the latter it hath Royal Services and Royal Escheates as the King hath and therefore in some respects 't is separated and disjoyned from the Crown as is Plowd 215. yet 't is subordinate and dependant though it be said that breve Dom ' Regis non Currit there yet the Writ of Error which is the dernier resort and in like manner an Appeal is excepted out of their Charters so is Dyer 321. and 345.34 Hen. 6.42 and it would be excepted if it were not so expressed for to have the ultimate Judgment is that which the King cannot grant for such grant would if allowed alter the fundamental constitution of the Realm So in Ireland which is a Realm of it self as Consisting of many Counties Erroneous Judgments given in the chief place there shall be reversed in the King's Bench in England Davis quotes Bracton lib. 3. tit ' coron ' cap. 8. that Comites Palatini habent regalem jurisdictionem in omnibus Salvo Dominio Regi sicut principi so that by his Opinion they are much the same and no Man will deny but that in all Proceedings in Law or Equity the last resort is to the Parliament of England there it is that the King 's supreme Authority is exercis'd It must not be said to be a Conquered Country for the Earl of Stassord's sake though Coke and Vaughan have affirmed it so But it may be called a Plantation or Colony dependant upon England and to many purposes parcel of it This hath not only the same person for their King but 't is under the Crown and Government of England there must be in all these Cases a Superiority or superintendency over inferiour Dominions for otherwise as Vaughan puts it 401. the Law appointed or permitted to such places might be insensibly changed within it self
without the assent of the Dominion Superiour And 2. Judgments or Decrees might be there made or given to the disadvantage or of lessening that Superiority which cannot be reasonable or to make the Superiority to be only in the King not in the Crown of England as King Jac. 1. would have had it and consulted Selden upon the point Now though the Writ of Error be only mentioned yet the same reason holds to both and the true cause why we have not so many Ancient precedents of Equity Cases as of Law ones is for that in Ancient time the Equity Courts were not so high meddled with few matters and in a Summary way but since their Authority is so advanced and their Jurisdiction so enlarged that most questions of property are become determinable there and almost every suit begins or ends with them to the entire subversion of the Old Common-Law It is and must now be reasonable to have the Examination of their final Sentences in the Parliament of England as well as of the other Suppose non-residence in Ireland should be pretended a Forfeiture of the Estate to the next remainder Man or to the King Can it be safe for to intrust them with a conclusive Opinion in this matter When Calais was in our hands Writs of Error lay thither 21 Hen. 7. fol. 3. As to the pretence that the orders of this House cannot be executed there 't is very vain for if the King's Bench Command their Judgments to be executed there this House may order theirs and in like manner as they do to the Chancery here In 15 Rich. 2. numb 17. in the Abbot of St. Osithe's Case the Lords here made an Order and charged the Lord Chancellor that he see it performed and this hath been constant practice It hath been imagined That the Jurisdiction of this House in matters of this kind is dated from the 21 Jac. 1. as to the proceedings in Chancery but that is not now to be disputed for the Commons in Parliament Assembled did agree it to be the Right of this House in the Case of Skinner and the East-India Company and in the Book about it supposed to be written by that Noble Lord the Lord Hollis 105. 't is said that where the King 's Sovereigntydoth not reach the Jurisdiction of this House cannot the contrary is implied that where the King of England's Sovereignty doth extend the Jurisdiction of this House doth so too and no Man will affirm That Ireland is out of or beyond the limits of the Sovereignty of the English Crown And as to the exercise of this Judicature by the Lords here nothing can be stronger for it then the 1 Hen. 4. numb 79. So 't is in the Record though in Cotton's Abridg 't is 80. the Commons declare that all Judgments Appertain to the King and Lords and not to them Skinner's Case 199 200. 4 Inst 349 353 354. It was further argued That Protection commands a due Subjection and that these people who insisted upon this independency had forgot the English Treasure and Bloud which had been spent for their preservation That they are part of England and subject to its Laws appears from the common Case of an incumbency here being made void by acceptance of a Bishoprick in that Colony Besides that in Ancient time the Arch-Bishop of Canterbury was Primate of Ireland and had the Confirmation and Consecration of Bishops there Cambden's Britt pag. 735. and 765. 4 Inst 360. then 't was urged that the Question now was whether it were a Dominion inferiour or equal to and independant upon the Realm of England That the constant practice had been for the Lords here to examine the Decrees in their Court of Chancery that the refusing of this Appeal would shake all those Cases thus determined that every Appeal-here from their Equity Sentences which have been very many was an Argument against the Order of their Lords and for the receiving of this Appeal here That this thing hath been acknowledged even by the Rebels there for in Sir John Temple's History of the first Progress of the Irish Rebellion written 1641. pag. 141. amongst the several propositions made by the Irish then in a general Rebellion these two are mentioned 1. That by several Acts of Parliament to be respectively passed in England and Ireland it should be declared that the Parliament of Ireland had no subordination to the Parliament of England but should have supreme Jurisdiction in that Kingdom as Absolute as the Parliament of England here hath 2. That the Act of 10 Hen. 7. called Poyning's Act and all other Acts expounding or explaining that Law should be Repealed both which with their other dangerous propositions were justly rejected however it shews their Opinion that at that time the Law was or was taken and deemed to be against them in this point and there is as much reason for keeping the final Judicature here as there is for maintaining the Superiority and Obligatory Power over them in the legislature 'T was farther urged That the with holding the Irish Lords from having the like Jurisdiction in their Parliament as the Lords in England have in Judging upon Appeals and Writs of Error was absolutely necessary for the preserving of the Possessions of the English in Ireland for those of that Country must be suppos'd to incline to their own interest and cannot be suppos'd so much inclined to love and affect the English amongst them And that this Power of Judging here is Co-eval with the very Constitution of the Government 'T was further urged That their Precedents returned did or concern the point in Question except the two or three Cases in 1661 and 1662. and two Appeals lately in 1695. that their Case of the Prior of Lauthony in 8 Hen. 6. Prynnes Animadversions 313 314 was against them the Prior having removed a Judgment in the King 's Bench in Ireland into the Parliament there which affirmed it did bring a Writ of Error in the King 's Bench in England and they refused to meddle with it the reason was because the Writ of Error before the Lords there did not lie and that it ought to have come hither immediately and all the rest of their Quotations in their Printed Case either prove nothing at all or too much for they are against the allowance of Writs of Error in the King 's Bench in England and against the Legislature of England's being able to oblige the people of Ireland both which have been approved by constant practice and therefore it was prayed that the Appeal here might be allowed and the Order of the Irish Lords might be vacated On the other side it was argued from 1 Inst 141. Prynne's Animadversions 286. and 4 Inst 12. that their Parliaments had the same Authority there in respect of making Laws for that Country as the Parliaments have for England that they have ever since 10 Hen. 7. Re-enacted there such subsequent Acts of England as they thought
good for them and that they had the like Power of Appeals Writs of Error and Impeachments c. and that the Cognizance of such Appeals in England would produce great inconveniencies by making poor people to attend here whereas they might with less trouble and expence have Justice at home that this did agree with the reasons of that Ancient Statute 4 Inst 356. that persons having Estates in Ireland should Reside in that Kingdom else half of their Estates should go to maintain the Forts there That this practice of receiving Appeals here would be vexatious to the people of that place and that no Court could have Jurisdiction but by grant or prescription and that there could be no pretence for either in this place Then was it ordered in these or the like Words Whereas a Petition and Appeal was offered to the House the Day of last from the Society of the Governour and Assistants London of the New Plantation in Ulster in the Kingdom of Ireland against a Judgment given by the Lords Spiritual and Temporal of Ireland in Parliament there Assembled on the day of last upon the Petition and Appeal of William Lord Bishop of Derry against the Decree or Orders made in the said Cause in the Court of Chancery there Whereupon a Committee was appointed to consider of the proper method of Appealing from Decrees made in the Court of Chancery in Ireland and that pursuant to the Orders of the said Committee and a Letter sent to the Lords Justices of Ireland by Order of this House several precedents have been transmitted to this House by the said Lord Justices Copies whereof were ordered to be delivered to either side After hearing Counsel upon the Petition of the said Society of London presented to this House praying that they might be heard as to the Jurisdiction of the House of Lords in Ireland in receiving and judging Appeals from the Chancery there as also Counsel for the Bishop of Derry after due Consideration of the Precedents and of what was offered by Counsel thereupon It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament Assembled That the said Appeal of the Bishop of Derry to the House of Lords in Ireland from the Decree or Orders of the Court of Chancery there made in the Cause wherein the said Bishop of Derry was Plaintiff and the said Society of the Governour and Assistants London of the New Plantation in Ulster in Ireland were Defendants was coram non judice and that all the proceedings thereupon are null and void and that the Court of Chancery in Ireland ought to proceed in the said Cause as if no such Appeal had been made to the House of Lords there and if either of the said Parties do find themselves Agrieved by the said Decree or Orders of the Chancery of Ireland they are at liberty to pursue their proper Remedy by way of Appeal to this House Sir Caesar Wood alias Cranmer versus Duke of Southampton APpeal from a Decree in Chancery the Case was thus Sir Henry Wood the Appellant's Unkle makes a Settlement in Consideration of a Marriage to be had between his Daughter Mary and the Duke c. to the uses following i.e. in Trust to Receive and Pay out of the Profits 450 l. a Year to the Lady Chester for the Education and Maintenance of his Daughter till twelve years of Age then 550 l. a year till Marriage or Seventeen years of Age which should first happen and in Trust to pay the Residue of the Profits to the Duke after Marriage he first giving Security to the said Trustees to provide Portions and Maintenance for the Daughters of the Marriage equal to the Sum he should receive and in case there should be none then the same Money to remain to the Respondent and if the said Mary should die before Marriage or Age of Seventeen years to such Uses as Sir H. W. should appoint And if Mary after Sir Henry's death die under Sixteen the Respondent then unmarried to any other Woman or after and before Seventeen the Respondent then living and unmarried or if before Seventeen she should marry any other or if she should refuse the Respondent then 20000 l. out of the Profits to the Duke But if the said Marriage shall take effect after Mary's Age of Sixteen years and she shall have Issue Male by the Respondent then for the better Settlement of the Premisses upon the Issue Male and a more ample Provision and Maintenance for the Respondent and his Wife and the longest Liver of them in Trust for the said Duke and Mary for and during their Lives and the Life of the longer liver of them and after their Deaths to the first Son c. in Tail Male and for default of Issue Male to the Daughters And for default of such Issue in Trust for such Persons only as Sir Henry should appoint and in default thereof to the right Heirs of Sir Henry Sir Henry W. at the same time makes his Will tho' dated after the Settlement reciting that he had settled the Premisses upon the Duke and Mary for their Lives and the Life of the Longer liver of them c. and confirms it and in Case the said Martiage should not take effect according to the Limitations of the Settlement or if the said Respondent should die without Issue by Mary or if he have Issue by her and that Issue die without Issue then the Remainder to Mary for Life and afterwards to her first Son and after several mediate Remainders then to the Appellant for Life c. and after to Thomas Webb c. Sir Henry Wood dies the Marriage between Mary and the Duke afterwards takes effect upon her arrival to years of Consent and they lived in that state till she was near Seventeen years of Age and then she dies without Issue The Court of Chancery decreed the Profits of the Estate to the Duke for Life It was argued for the Appellant That here was a precedent Copulative Condition that if the Marriage take effect after Sixteen and there be Issue then to the Duke and neither of these being in the Case the Decree is not consistent with the positive words of the Settlement for that the Duke was to have it upon no other terms That by this Settlement the Duke was thus provided for 1. If the Marriage did not take effect by Mary's refusal or taking another Husband the Duke was to have 20000 l. 2. If the Marriage did take effect and Issue was had then the Duke was to have an Estate for Life but not otherwise that the words are plain and certain that there must not only be a Marriage but Issue Male between them that tho' it should be agreed to be a good Marriage within the intention of the Settlement she living till after Sixteen years of Age yet when a Condition Copulative consisting of several Branches as this doth is made precedent to any Use or
receive the Allegations and Matters given in Evidence for the Plaintiff as sufficient to maintain his Title whereas they were given in Evidence and considered and if it be meant as a sufficient Evidence to controul and over-rule all other that doth not belong to the Court in Trials to determine unless referred to them upon demurrer to Evidence but is the proper business of the Jury and if the Party be aggrieved the Remedy is an Attaint Nor can it be pretended that the Defendants Evidence was admitted to over-rule the Record produced because no Objection was made to the Defendants Evidence at the Trial and the same was all given before the Record of 15 Ed. 3. was produced and consequently the Jury must consider the force of it for Evidence on both sides being given by the Law of England the Decision of the Right belongs to the Jury and the Act of Edw. 3. being repealed 't is no Matter of Law but the most which could be made of it was that it was Evidence which must be left to the Jury together with the Defendants Evidence But no Bill of Exception will lye in such a Case by the Statute when the Evidence given is admitted as Evidence and left to a Jury and where no Opposition was made to the Defendants Evidence as here in this Case and therefore in this Case a Bill of Exception could not be warrantable because the Plaintiff's Evidence was not refused or over-ruled nor was the Defendant's Evidence fit to be rejected or so much as opposed by the Plaintiff And as to the Allegations made by the Counsel and not proved those never could be an Exception And for these and other Reasons the Judges refused to Seal their Bill Upon this a Writ of Error is brought and a Petition was exhibited to the Lords Spiritual and Temporal in Parliament assembled in the Name of the Lady Isabella Dutchess of Grafton and William Bridgman her Trustee showing that King Charles the Second granted the Office in question to W. B. for the Lives of Henry Earl of Arlington Henry Duke of Grafton and of the Petitioner the Lady Isabella in Trust for the Duke his Executors and Administrators to commence after the Death of Sir Robert Henly that upon the death of Sir Robert Henly the Petitioner by virtue of the said Grant was well intituled to the said Office but was interrupted in receiving the Profits by Rowland Holt Esq Brother to the Lord Chief Justice Holt and by Edward Coleman Gent. who pretended to be admitted thereto by some Grant from the Chief Justice that thereupon an Assize was brought for the said Office which came to Trial and the Petitioners Counsel insisted upon an Act of Parliament proving the King to have the Right of granting the said Office which the Judges would not admit to be sufficient to prove the King's Right to grant the same That the Petitioners Counsel did thereupon pray the benefit of a Bill therein to be allowed and sealed by the Judges according to Law And the Petitioner's Counsel relying upon the said Act of Parliament as sufficient proof of the King 's Right duly tendred a Bill of Exceptions before Judgment in the Assize which the Judges upon the Trial said they would Seal yet when tendred to them in Court before Judgment would not Seal the same Thereupon Judgment was entred against the Petitioners Title in the Assize by default of the Judges not allowing and sealing the said Bill according to the Duty of their Office by Law whereby they are hindred from making the Matter of the said Bill part of the Record of the said Judgment now brought and depending before your Lordships upon a Writ of Error in Parliament for reversing the said Judgment in the Assize and so are precluded from having the full benefit of the Law by the said Writ of Error to examine reverse and annul the said Judgment Wherefore the Petitioners prayed that their Lordships would be pleased to order the said Judges or some of them to Seal the said Bill of Exceptions to the end the said Case might as by Law it ought come intirely before their Lordships for Judgment c. Upon reading this Petition 't was ordered that the Lord Chief Justice and the rest of the Judges of the Court of King's Bench should have Copies of the Petition and put in their Answer thereunto in Writing on ..... next At the Day appointed there was deliver'd an Answer in these or the like words The Answer of William Dolben William Gregory and Giles Eyre Knights three of their Majesties Justices assigned to hold Pleas in their Court of King's Bench at Westminster to the Petition of the most noble Isabella Dutchess of Grafton and William Bridgman exhibited by them to your Lordships THese Respondents by Protestation not owning or allowing any of the Matters of the Petition to be true as they are therein alledged and saving to themselves the benefit of all the several Statutes herein after mentioned and all the Right they have as Members of the Body of the Commons of England to defend themselves upon any Trial that may be brought against them for any thing done contrary to their Duty as Judges according to the due Course of the Common Law which Right they hold themselves obliged to insist upon in answer to the said Petition think themselves bound to shew and offer to your Lordships consideration That the Petition is a Complaint against them for refusing to Seal a pretended Bill of Exceptions contrary to a Statute in that behalf as the Petition pretends without setting forth the tenour of the said Statute or what that pretended Bill was whereas that Statute is the Statute of Westminster 2. cap. 31. and doth enact That if any impleaded before any Justices doth offer an Exception and pray the Justices to allow the same and they refuse so to do the Party offering the Exception is thereby to write it and pray the Justices to Seal it which they or one of them are thereby enjoyned to do So that if the pretended Bill was duly tendred to these Respondents and was such as they were bound to Seal these Respondents are answerable only for it by the Course of the Common Law in an Action to be brought on that Statute which ought to be tried by a Jury of Twelve honest and lawful Men of England by the Course of the Common Law and not in any other manner And the Respondents further shew and humbly offer to your Lordships consideration That the Petition is a Complaint in the nature of an Original Suit charging those Respondents with a Crime of a very high Nature in acting contrary to the Duty of their Office and so altogether improper for your Lordships Examination or Consideration not being any more triable by your Lordships then every Information or Action for breach of any Statute Law is all which Matters are by the Common Law and Justice of the Land of Common Right to be
upon grievous pain sometimes before the King himself sometimes before the King's Council sometimes to the Parliament to answer thereof anew to the grievance of the Parties and in Subversion of the Common-Law of the Land 't is Enacted that after Judgment the Parties shall be in Peace until the Judgment be undone by Attaint or Error this is agreed and amplified 3 Bulst 47.115 Here is mention even of the Parliaments Summoning persons to Answer in Subversion of the Laws There are other Statutes not Printed as 4 Edw. 3. numb 6. Cotton's Abridg. 7. and the same in 2 Inst 50. The Lords gave Judgment of Death without Indictment upon some who were not their Peers and agreed in full Parliament that they should be discharged of so doing for the future and that it should not be drawn in President that the like should not be done on any but their Peers 't is a Declaration of the Lords nay 't is an Act of Parliament and penned in the same manner as 29 Edw. 1. Statute del Estoppel at a Parliament agreed 33 Edw. 1. by common accord and 9 Edw. 2. the King in Parliament by Advice of his Council and these are held to be Statutes This was not only an acquittal from the trouble but a clear denial of the Power as appears by the words before that they had assumed upon themselves and the words subsequent that the like should not be done again The Complaint was because it was intermedling with Commoners after that manner Suppose this House should make an Order upon this matter which is a Law business and not of Equity no Execution can be made of it but Commitment There is the 15 Edw. 3. now insisted on Printed in the Old Statute Book but omitted in this 't is in Cotton 28.33 and 't is thus the Commons complained of breaches of Magna Charta c. and pray remedy with this Conclusion That every Man may stand to the Law according to his Condition and the Lords pray that Magna Charta may be observed and further that if any of what Condition soever should break it he should be adjudged by the Peers of the Realm in Parliament the next Parliament and so from Parliament to Parliament and it was Enacted accordingly This was Specious the same being only for the breakers of Magna Charta but in 17 Edw. 3. that whole Parliament i. e. all the Acts of it are Repealed which Repeal seems designed for the Petitioners for it Repeals the supposed Laws which make both their Title and this Jurisdiction which they would support 'T is observable what is said in the Repeal that the Act was contrary to the King's Oath in prejudice of his Crown and Royalty and against the Ancient Law And such is this for here 's no use of the King 's Writ no Address to or Command by the King for this Proceeding nor any mention of his name in the Petition By 1 Hen. 4. cap. 14. Appeals in Parliament for Offences are declared against as contrary to Reason and the Constitution this is such This is not incident to the Power of Hearing and Determining upon the Writ of Error because as was said before it belongs properly to the Chancery to Issue a Writ Commanding it to be done Si ita est as is Suggested By 12 Rep. 63. the King himself cannot take any Cause out of the Court where it depends and give Judgment on it himself And this House can make no Order upon this Petition that will be a Record as in Hob. 110. The Petition is in the name of a Person not party to the Record which seems very new for 't is by a Stranger in the eye of the Law to the Cause and consequently ought not to be joyned in any legal proceeding if this be such This is not incident to the Jurisdiction of the Error no more than Amendment of an Error in the Court from whence the Record comes or the filing of a Baile a Declaration or a Warrant of Attorney or the Sueing out another Process in Defect of one lost or the like These things are never Examinable in the Superior Court for in these Collateral things the other are intrusted Here 's no Hardship upon the Petitioner for he might have been Non-suite or have given this Repeal'd Act in Evidence at first and then have demurr'd on the Defendant's Evidence or might have Sued a Writ on the Statute of Westminster 2. But suppose this House should Examine this matter and find the Petition to be groundless will such Determination prevent the Judges from being troubled by Sueing of the Writ afterwards Suppose it E contra that this House should punish the Judges and commit them and award Damages or make other Order in favour of the Petitioners would such Order bar or stop the legal process afterwards can any Order made here be used below as a Recovery or Acquittal as an Auterfoits Convict or Auterfoits Acquitte If there be any thing in it 't is a breach of a Statute Law for which they are punishable at the King's Suit will the proceeding here save them from the trouble of answering to an Indictment or Information for the same thing Then since a Writ lies to Command them to Seal this Bill and since an Act of Parliament directs it if it were a true one perhaps it may be Questionable if they do not break their Oaths in case they Sign it in Obedience to any other direction If they did it in Obedience to the Royal Word Signet or Privy Seal of the King their Master 't would be a breach of their Oath Then as to presidents of the Exercise of such a Jurisdiction none come near this And abundance of particular Cases were put and answered but the considerable one was Jeffery Stanton's Case 14 Edw. 3.31 Cot. 30. The Case is odd 't is in Fits Abridgment tit voucher 119. there is a Writ directory to the Judges to proceed to Judgment or to bring the Record before the Parliament that they might receive an Averment c. To this Case it was Answered That the same was long before most of the Statutes aforementioned and in full Parliament and in that Case Stone would not agree to it but adhered to the Law according to his Opinion 't is true Shard in the absence of Stone gave Judgment according to that Advice but a Writ of Error was afterwards brought in the King 's Bench and the Judgment was Reversed 15 Edw. 3. B. R. even contrary to the Advice of Parliament to the other Judges As to the other Cases of Property Examined here either the Parties submitted to Answer or they were at the Suit or Complaint of the Commons or by Consent of the King and Commons but none of them carry any resemblance to this where the Judges insist upon it that there is another and a proper Remedy All the Cases in Ryley's Placita Parliamentaria are either Ordinances of Parliament or directions to follow
upon the Livings becoming void by Cession viz. by the Incumbents being made a Bishop but never a word of the King's Title in all the Case or any such Prerogative as is now contended for And in Owen's Rep. 144. Walmesly cites a President which he had seen in Edward the Second's time adjudged that the King had no such Prerogative and all that was said for it was eight or nine Presidents in Tradition or History of a Patron being complemented out of his Right but not one Law-Book for it Coke 4 Inst 356 357. who wrote and published much he never mentions this Prerogative but says that the Law is otherwise for upon his Observation on a Record of 24 Edw. 3. Rot. 25. coram Rege Cornub ' Admittitur Episcopus Exon ' pro fine 200 merc ' pro contemptu in non admittendo presentatum Regis ad Ecclesiam de Southwel pro quo contempt ' omnia temporalia Seisita fuerunt in manus Regis tunc temporis ante finem fact ' vacavit Archidiaconat ' Cornubiae ratione quod Incumbens Electus fuit in Archiepiscopunâ— Dublin ' in Hibernia Temporalibus Episcopi Exon ' ad tunc in manibus Regis existent per quod Dominus Rex recuperavit versus Episcopum dict' Archidiaconat ' Upon this Record he makes two Conclusions 1. Tho' Ireland be a distinct Kingdom yet 't is governed by the same Law as England in these Matters 2. That when the Arch-Deacon was by the King preferred to an Archbishoprick he had the Presentation to the Arch-deaconry in respect of the Temporalties of the Bishop of Exeter Patron of the Arch-deaconry and not by any Prerogative Here 't is observable That my Lord Coke took it that the Patronage by reason of the Temporalties gave to the King this Right and not the Prerogative Then his next Paragraph is stronger If a Bishop in England be made a Cardinal the Bishoprick becomes void and the King shall name his Successor because the Bishoprick is of his Patronage All which implies That if 't were not of his Patronage 't would be otherwise else why is that reason added Obj. But then say they The Pope's Usurpation prevailed in all those times and the Pope had it when Provisions were in use But that can be no Argument to give the Crown a Prerogative for the Pope was a Tyrant over the English Church and by the same Reason the King may claim to be above all Laws because some Judges said as Hank did in Hen. 4. quod Papa potest omnia at that rate no Act of Parliament shall bind the King because the Pope thought himself bound by no Law of ours Besides There were several of our English Monarchs and English Parliaments that boldly withstood these Usurpations and there were divers Intervals of Liberty and Freedom from that Romish Yoke and we never read of any Exercise of this Prerogative in those Intervals 'T is questioned in 41 Eliz. and in Owen's Rep. 't is said that the Pope's practise was no Authority to warrant a Prerogative for they used to do strange things and the Clergy then made his Will a Law and our English Lawyers have always complained of it Obj. There 's no ancient Books that mention Title by Lapse But 't was answered That in Caudries Case 't is fetch'd from the Reign of Edw. 3. and that is no very late Reign and Lapse is so ancient as it appears by the close Roll 21 Hen. 3. in n. 12. that the Deâ— and Chapter pretended to it during a Vacancy of a See upon an Advowson of the King 's own but it appears there by a Writ to that purpose that no Lapse per tempus semestre accrued on the King which shews that 't was old Law for the Subjects Pryn 2.481 By a Writ 8 Hen. 3. num 4. Dorso Prynne 2 Vol. 389. it appears the Archbishop of York was to present si ultra tempus sex mensium vasari contigerint and 1 Inst. 2 Inst. and all the Booksare full of it and Doctor and Student which is no new Book treats of it cap. 31. Besides that and this are different Cases there is a necessity of such a Law for the Service of the Church the King is by the Constitution intrusted with the Supreme Care of his People both for Religion and Property and if a Patron will not do it in reasonable time 't is reasonable he should lose it and the King present But to make that a similar Case they should shew that these Prerogatives were of equal duration and that there 's as much reason for the one as for the other but because the King hath preferred the Patron 's Friend therefore the King shall have it that cannot hold upon a toties quoties when the Friend is dead and three or four more of the King 's presenting for by this means the Patron may never present to his Church 2. The next Query was Whether this Commendam for above the six Months with power to take the Profits to his own use shall be a fulfilling of this turn or otherwise prevent the Operation of the Prerogative on it by this he was a plenary Incumbent after Consecration and he had the Profits to his own use He was not meerly the Ordinary's Deputy to supply the Cure during six Months but hath it in his own right and this with the King's concurrence The Prerogative could only work upon an Avoidance by Promotion and that is upon Consecration this becomes void at the expiration of therein limited T is to be considered That this is none of the old Prerogatives of the Crown which in a Competition are to be preferred before the Subject's Right it is a Prerogative not to be favourably interpreted but stricto Jure for 't was only taken up as a Papal Right and so 't is plain from 2 Rolls Abridg. 358 359. As such a Papal Right it ought to be interpreted stricto Jure even by the Pope's Law being against the Patron 's ordinary Right and so 't is nature odiose there might be cited Suares and others to this purpose Perhaps the Pope's Right was not so much allowed here as to make it clear with him in this Point for Dr. and Student cap. 36. 37. says that the Pope's Collection of Benefices vacantium in Curia was held to be within the Statute concerning Provisions viz. 25 Edw. 3. This Prerogative hath been construed stricto Jure here 1. In the Case which the Lord Chief Justice Vaughan Reports where the Crown upon the promotion of an Incumbent to the Bishoprick of Oxford and who by Dispensation retained his Living till death would have presented to the Living when it fell vold by the Incumbent the Bishop's Death it was resolved that the King's Prerogative was not to present to the next Avoidance after the Promotion but to the next Avoidance by the promotion which in that Case was none for that the Avoidance was by Death 2. In the Case my Lord Chief
Justice Dyer reports 228. the promoted Incumbent was dispensed with to retain for a term of years within which term he resigned and there upon the Avoidance the Prerogative was not admitted to take place because the Avoidance was by the Resignation and not by the Promotion Now if this Prerogative is to be interpreted stricto Jure it will have no place in this Case where the Incumbent promoted is dispensed with to retain for a term of time which is elapsed For The King's Prerogative will have a very Natural Construction by admitting his Title to present to all such Avoidances as commence immediately from and by the promotion This is the Avoidance which the Law intends and which the Law would always cause if not hindred to operate by Dispensation and this Avoidance is that therefore which the Prerogative must most principally respect and only that if it be to be strictly taken insomuch that were it in the sole power of the Archbishop to grant this Dispensation it seems the King's Title would clearly be set aside by it much more therefore should it be so when what the Law designs is prevented by the Act of the King himself For tho ' the Lord Vaughan saith That the King's Concurrence to the Dispensation is only for formality yet 't is plain that the King may force the Archbishop to grant it Now this Interpretation of the Prerogative seems to be already made in the Case cited upon a Resignation of the Incumbent dispensed with for as it is there intimated if the King's Title was not supposed to be gone by the defeating of the immediate Avoidance which the Law intended but the King would not permit It would be very strange that it should be eluded by the Resignation of the Incumbent to which the King was no Party for if the King had a Prerogative to present to this new this deferred this adjourned Avoidance it would be more reasonable to allow it to be hastened then defeated by such a Resignation before the time This Prerogative ought to admit such a Restriction from the reason of the thing and from the consideration of the Inconveniencies which may otherwise follow To the Subject A Patron might be content to let the King exchange a single Life and put in a Clerk in the place of one removed much rather then that the Living should be held on by one in Commendam that from thenceforth would be sure to leave it and be absent for a better Residence in a Palace yet they may as they have reason think it too hard that the King should as it were let a Lease of it first and afterwards put in his Clerk for Life and tho' the King doth commend here but for a small time yet he may for a longer He may perhaps as the Pope did often dispence with the Bishop to hold durante beneplacito and when the Incumbent is in danger of Death then present another so as the Patron may have his own Clerk not removed as was first intended but dispensed with to wear out his Life in the Benefice and yet after all have another put in The Crown may have Inconvenience by the straining of it further than this for all strains weaken if not break the thing it self This Opinion of theirs arises from the Principle my Lord Vaughan lays down That a Commendam neither gives nor takes away Right but only is a Dispensation to hold and he continues Incumbent still and it prevents an Avoidance and if so why should it not also prevent the operation of the Prerogative too As to the Case of Woodley 2 Cro. 691. they say 't is Law to prove the other Point for them If it be Law for them in that Point 't is Law against them in this That a Dispensation ad retinend ' prevents the Grantee of the next Avoidance The Case was thus A Man hath a Grant of the next Avoidance the Incumbent is promoted but with a Commendam Retinere for six years and dies the Grantee shall not present because he is to have the next Avoidance only and no other 'T is the words of the Book that when the Incumbent is created a Bishop and the King presents or grants that he shall hold it in Commendam which is quasi a Presentation and he is thereby full Incumbent and may plead as an Incumbent if the Grantee of the next Avoidance do not then present he hath lost his Presentation for he ought to have the next and he cannot have any other Now if this be so that a Commendam Retinere hath so much of a Grant in it and is so equivalent to a Commendam ad recipiend ' that it will set aside and frustrate a Grant of the next Avoidance and be it self taken for a presentation to the next Avoidance against the Grantee by the same reason it must be taken so against the King as a Presentation to an Avoidance and consequently his turn is served by it Much might be said against those Commendams as promotive of Pluralities and tending to the ruine of the Church and this out of our own Law-Books but it is not material at present 't is however to be observed that this is not a Commendatory for six Months during the time that the Patron may forbear to present such Person continued then is only commendatorius under the Bishop to provide for the Church as 't is his Duty to take care of it during that time 3. Admitting that the King hath such a Prerogative and that this Commendam tho' it gives the full perception of the Profits is not a fulfilling of the King's turn nor doth any way distinguish the Case or exempt it from the Prerogative yet this is a Case not within it and this doth appear of Mr. Attorney's own shewing in his Declaration upon the King's behalf He hath set it forth to be a Parish newly created by Act of Parliament a thing not in esse before It appears by the Declaration what that Act is it must be taken as 't is there set forth To this Declaration the Bishop hath demurred Now if by that Declaration it appears that the Bishop and not the King is rightfully intituled to present upon this Avoidance the Judgment will and must be accordingly for the Defendants Mr. Attorney by his Count doth agree an Avoidance within this Act of Parliament by the Promotion of Dr. Tennison and Mr. Attorney doth likewise admit and agree That the King is not Patron of this Benefice called St. James's he doth agree too That the King hath no Right given to have any Turn or Presentment by this Act for he saith 't is to be by the Bishop of London and the Lord Jermyn he doth also admit by this Declaration That Dr. Tennison was never presented to this Living that he came not into it by Virtue of any Presentation from any particular Patron nay That he did not come into it by any sort of Presentation whatever nay he
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
haberi decrevit and then he adjourns 't is no Argument to say that he was hindred for he might have proceeded in absentia and if the 16th of June be tacked to it 't is longer than the time There needed no formal adjournment for that he is Authorized to proceed in a Summary way 't is no such absurdity to call that a Visitation which was in some sort hindred since notwithstanding the obstruction some Acts were done and more might have been by adjourning to another place 3. Here was no such cause as could warrant a Deprivation it was not one of the causes mentioned in the Statutes which are not directions merely but they are the constituent Qualifications of the Power and Contumacy is none of the causes nay here is no Contumacy at all The Offence of the Suspended Fellows was only a mistake in their Opinions and the Doctors was no more and 't is not a Contumacy for refusing to answer to or for any Crime within the Statutes for there was none of the Crimes mentioned in the Statutes laid to the charge of the Rector if the Crime charged had incurred Deprivation perhaps a Contumacy might be Evidence of a Guilt of that Crime and so deserve the same Censure but Contumacy in not consenting to a Visitation can never be such especially when the consenting to a Visitation is not required under pain of Deprivation 4. Admitting the Visitor legally in the Exercise of his Office that here was cause of Censure that the Cause or Crime was deserving of that Punishment which was inflicted that Deprivation was a congruous Penalty for such an Offence yet t was argued That this Sentence was void for that the Visitor alone was in this Case minus competens judex because his Authority was particularly designed to be exercised with the consent of others which was wanting in this Case This was the same as if it had required the concurrence of some other Persons Extra Colleg ' then that such a concurrence was necessary appears from the words of the Statute his meaning seems plain upon the whole to require it A greater tenderness is all along shewn to the Rector then to the Scholars 't is sine quorum consensu irrita erit hujusmodi Expulsio vacua ipso facto and the Sentence it self shews it necessary because it affirms it self to be made with such consent and it cannot be thought that the Rector should be deprivable without their consent when the meanest Scholar could not Then here 's no such consent for 't is not of the four Seniors but of the four Seniors not Suspended now this doth not fulfil the Command of the Statute for the Suspension doth not make them to be no Fellows a Suspended Fellow is a Fellow though Suspended a Suspension makes no vacancy the taking off of the Suspension by Sentence or by Effluxion of time doth make them capable of acting still without the aid of any new Election and they are in upon their old choice and have all the priviledges of Seniority and Precedency as before If they ceased to be Fellows by the Suspension then they ought to undergo the Annum probationis again and to take the Oaths again In case of Benefices or Offices Religious or Civil Ecclesiastical or Temporal 't is so a Suspension in this Case is only a disabling them from taking the Profits during the time it continues And 't is no Argument to say That their Concurrence was not necessary for that they had withdrawn themselves and were guilty of Contumacy for that a Man guilty of Contumacy might be present if withdrawn from the Chapel he might be in the Colledge or in the University and 't is not found that they were absent and then their Consent not being had the Sentence was void and null and consequently no Title found for the Lessor of the Plaintiff in the Action below It was replied in behalf of the Plaintiff much to the same effect as 't was argued before and great weight laid upon the Contumacy which hindred the observance of the Statutes that by allowing such a Behaviour in a Colledge no Will of the Founder could be fulfilled no Visitation could ever be had and all the Statutes would be repealed or made void at once that tho' this Crime was not mentioned 't was as great or greater than any of the rest that here was an Authority and well executed and upon a just Cause and in a regular manner as far as the Rector's own Misbehaviour did not prevent it and therefore they prayed that the Judgment might be reversed And upon Debate the same was reversed accordingly Note That in this Case there was one Doubt conceived before and another after this hearing The first was If a Writ of Error lay in Parliament immediately upon a Judgment in the King's Bench without first resorting to the Exchequer Chamber but upon perusing the Statute which erects that Court for Examination of Errors it appeared plainly that that Act only gives the Election to the Party aggrieved to go thither that it did not take away the old Common Law method of Relief in Parliament and so hath the Practise been but upon Judgments in the Exchequer Court the Writ of Error must first be brought before the Lord Chancellor and cannot come per saltum into Parliament because the Statute in that case expresly ordains That Errors in the Court of Exchequer shall be examined there and so held in the Case of the Earl of Macclesfield and Grosvenor The other Doubt was raised by a Motion in B. R. for the Court to give a new Judgment upon the Reversal above and insisted on that it ought so to be as was done in the Case of Faldo and Ridge Yelv. 74. entred Trin. 2 Jac. 1. Rot. 267. Trespass and Special Plea and Judgment in B. R. for the Defendant and upon Writ of Error in the Exchequer Chamber the Judgment was Reversed and upon the Record returned into the King's Bench they gave Judgment that the Plaintiff should recover contrary to the first Judgment for otherwise they said the Law would prove defective and a Precedent was shewn in Winchcomb's Case 38 Eliz. where the same Course was taken and the like Rule was made Mich. 1 W. Mar. upon the Reversal of the Judgment inter Claxton vers Swift which is entred Mich 2 Jac. 2. B. R. Rot. 645. the like between Sarsfield vers Witherley 'T was argued on the other side That the Court which reverses the Judgment ought to give the new Judgment such as ought to have been given at first that in the Exchequer Chamber it may be otherwise because they have only power to affirm or reverse for yet in the Case of King and Seutin the Exchequer Chamber gave a new Judgment tho' they cannot inquire of Damages and that is a kind of Execution which must be in B.R. In Omulkery's Case 1 Cro. 512. and 2 Cro. 534. the Court here sends a Mandatory Writ to
to hold a Curacy of Souls and this is the Reason all their Cases go upon and the Reason insisted upon below i. e. in effect that they must try it not the Archbishop The same Pretence is applicable to any other defect and 't will in Consequence confound Jurisdictions 't will make an Enlargement of the Temporal and Diminution of the Ecclesiastical Jurisdictions tho' both are founded upon the same English Laws and of equal Age and Authority Nor is it any Answer which they have alledged against this That the Judgment at Law is not that this Hodder shall have Institution but that a Writ shall go to the Metropolitan to require him to admit a fit Person upon Mr. Hele's Presentation and that if Mr. Hodder be presented the Archbishop may refuse him as insufficient and so the Archbishop is still Judge of the Sufficiency This looks plausible but they omit or forget the Consequence that if this Judgment stand then if the Archbishop refuse the Temporal Courts must Judge upon another Writ Whether the Cause of Refusal were in a point of Learning which they think requisite for he must not plead a general Defect of Learning but mention Particulars that they may judge of them this is to subject even his Grace the Metropolitan to their Opinion in an Affair within his own Jurisdiction and Conusance It is at last to enforce the Episcopal Judges to contradict their own Opinions and to admit Persons which they think not sufficiently Learned tho' the first Judgment doth not directly place in Hodder yet the next will if the Archbishop prove of the same mind Now this is apparently the Consequence from the pretended Reason of the Judgment for them and it is in effect to deny the old Law that a defect of Learning is a sufficient Cause of Refusal and that the Ordinary is Judge of that Defect and not the Temporal Court And then as to the Cases objected Dyer 254. the Bishop of Norwich's Case in a Quare Impedit which is likewise in 2 Rolls Abridg 355 where the Bishop pleads that the Presentee was a common haunter of Taverns and other Places and Games unlawful ob quod diversa alia Crimina consimilia praed ' the Presentee fuit Criminosus sic inhabilis non idonea persona and this was held an ill Plea But the Grounds and Reasons of that Judgment were not for the generality of the Plea but because the defects specially declared before were not sufficient to make the Presentee sic Criminosus as being not Mala in se but prohibita by particular Laws under certain Penalties Nay the Argument they would make from the general word Criminosus will not hold in the Case in question but is clearly distinguishable from it because one single Act one Crime specially set forth would disable the Man but in this case Ignorance that works a Disability must not be of any one particular thing whatsoever but a general defect of Knowledge And another Reason against their Inference from these and the like Cases is this they belong to a different Examen and upon that they require as was said before a different pleading The great Case and the only one that can be pretended to come near this is Speccot's Case mentioned in every contemporary Report of that Age as a new Case and a new one it is and the Reasons of it are differently reported in divers Books and in truth the Reasons of the Judgment do not warrant it nor make it applicable to the Case at Bar. The Authority of it is questionable for they agree Schism or Heresie which the Judges there take to be all one a Cause of Refusal and others said they did not know what was Schismaticus inveteratus but they did not consider that the Archbishop might tho' they did not but perhaps the Ordinary may judge that to be Schism which is not and therefore the Temporal Courts are to judge what is Schism and in the enforcing of this Case below they said the Ordinary is Judge only of Matters of Fact not if the Fact be Schism which is somewhat strange The Reports of that Case are 5 Rep. 57. 1 Anderson 189 190. Gold 36 and 52. and 3 Leon. 198 199 and 300. in that Case the Bishop pleaded that the Presentee was Schismaticus inveteratus ideo non habilis upon the validity of this Plea there were divers Arguments Two of the Judges says my Lord Anderson were for the Plaintiff and two for the Defendant and for the Decision of the Matter the Opinion of the other was asked and by the greater Opinion Judgment was given pro quer Then were repeated my Lord Anderson's words fol. 189. the Instances that were urged were says he Criminosus Perjurus but they are Matters triable both by Law Spiritual and Temporal and the Coment or how is necessary to be shewn to determine the Trial but Schismaticus in the principal Cause shall be tried only by the Spiritual Court and not by the Temporal as that of an Heretick may be generally pleaded And divers Cases were put to prove General Pleas and Issues triable at Common Law and yet says he Judged pro Quer ' This is my Lord Anderson's Opinion of that Case and whether the Ancient Authorities vouched in that Case do warrant that Judgment must be submitted Besides by our Law 't is not any one Opinion tho' judicially delivered that can make or alter the Law nay it doth not oblige any further than the reason of it is considerable and agrees with the constitution and the Rules of Law my Lord Vaughan always declared in favour of Reason and Authority and that in Honour of our Law for the contrary is to say 't is founded upon no Reason then 't was urged that this Judgment was when the Courts below were in struggle with the Ecclesiastical and the then High Commission Courts Erected by 1 Eliz. had given some provocation which with frequent Prohibitions gave occasions to the Disputes between the Bishops and the Judges in the beginning of the Reign of K. Jac. 1. But admitting the Case to be Law the same is easily distinguishable from this and founded upon different Reasons which cannot govern or influence this 'T was urged first in that Case there was some possibility for the Bishop to have set out the Heresie certainly and particularly for all Heresie must be founded upon some particular Tenet that is Repugnant to the common received and Orthodox Doctrine Now in this Case say they the Heresie ought to be Assigned that the party may Traverse it and purge himself and the Arch-Bishop not to be inveighled and obliged to run over all the species of Heresie which say they may be almost impossible but may have only one particular Opinion to Examine whether the Presentee did obstinately maintain it for if the Temporal Court had been of Opinion that such Tenet in particular was not Heresie tho' the Ordinary thought it so
preferr'd and the reason is because it is a new Right which the Act gave to present to the Church to which the Union was and consequently it must be taken as 't is given And so was it held by the Civilians at Doctors Commons before the Chancellour of London and several assistant Delegates upon a Caveat there against Institution and on Advice of the Lawyers the King 's Presentee acquiesced and never brought any Quare Impedit The Argument now is only as to this one first Presentation there 's no flat Contradiction between the use of the Prerogative and My being Patron for ever but 't is a Contradiction to say the King and I shall both have the same Presentation To say That he shall have a Prerogative here is to say That he shall do a wrong to his Subject for the Bishop can have no other than this one Presentation he can have no other in lieu of it and has no Advantage or Recompence antecedent or subsequent from this Prerogative First-Fruits and Tenths are not demandable from this Parish because no saving of them in the Act to the King upon passing the Act 't is known That in the Commons House the same was press'd to be inserted but denied and the Clause rejected the same Attempt was made in this House but to no purpose In other Acts for the Erecting of new Parishes there is generally such a saving as for St. Ann's and St. John's of Wapping and the Act for uniting of Parishes upon Rebuilding the City hath a Clause of saving to this Effect All which shews That such a saving is necessary tho' the First-Fruits and Tenths being formerly enjoyed by the Popes might have been pretended by Construction of Law to be a Profit annexed to the Crown by Stat. of 26 Hen. 8. cap. 1. all Payments to the Pope having been prohibited by 25 Hen. 8. cap. 21. and all Profits and Commodities enjoyed by the Popes thereby annexed to the Crown Yet neither that Act nor that other in the same Year whereby the First-Fruits and Tenths of all Ecclesiastical Livings that then or thereafter should belong from any Parsonage or Vicarage were granted to the Crown were ever intended to reach this Parish of St. James's it being a new Creation by Act of Parliament and because in the Act no First-Fruits or Tenths are given or saved and there 's as much Reason to argue in that case for an implied saving as there is for this Prerogative Suppose it should be admitted That a presentable Benefice created by Act of Parliament should be subject to the same Rules as others are yet that will not reach this because not like other Benefices till once presented to 't is a peculiar singular Case by 2 Roll. abr 342. and 1 Inst 344. If a Patron present to a Donative it becomes presentative ever after which shews That 't is the Presentation which makes it presentative in its Nature now here 't is plainly a Donative till once presented to Then it was said That it is not needful to engage in the Dispute whether this Prerogative shall prevail against the Grantee of the next Avoidance according to Woodley's Case 2 Cro. 695. or whether that case be Law for that the same is plainly distinguishable from our Case for there the Grantee comes in the place of the Grantor quoad that Avoidance and he can have no better or greater Right than his Grantor would have had if no such Grant had been made Here ours is a first Presentation granted by Act of Parliament Suppose the Donors of this Presentation to the Bishop had named a Person in Esse to have succeeded upon the Death or Avoidance of Dr. Tennison no Man will pretend that this Prerogative should have prevented him the reason given in the Books cited for that Case of the Grantee of the next Avoidance is That the Patron could not grant more or otherwise than under the Contingency of this Prerogative Surely they will not say That the King Lords and Commons were such feeble qualified restrained Donors then the Parliament being the Donors the Prerogative insisted upon and the express Gift to the Bishop are contradictory and repugnant and cannot both be fulfilled It is no Argument to say That if a Vacancy had been in the See and the Temporalties in the King's hands then the King must have presented and not the Bishop and that would have contradicted the Act as much as this for that had been the same as if the Bishop had presented himself for the King during that time was in loco ordinarij To say That the Bishop of London hath no more right by the Act of Parliament then a Grantee of the next Avoidance hath by the Common Law this surely is no very close reasoning for there is some difference between the one and the other Here the Act of Parliament which hath the King's Consent gives a particular and express Right and an Act of Parliament may as Coke saith alter change annul abridge diminish qualifie enlarge or transferr any Common Law nay it hath the Common Law and the Prerogative too under its Controul Upon the whole it was concluded That by this Judgment a new Prerogative is affirm'd to belong to the Crown and this is extended to a turn after a Commendam which may be a prejudice to all the Patrons in England 2. It destroys and makes useless the plain and express Words and Meaning of the Act of Parliament which gives the first Presentation to the Bishop of London and 3. It confirms the old Non obstante Doctrine of Commendams which hath always been acknowledged to be to the prejudice of the Church wherefore it was prayed That the said Judgment might be revers'd On the other side it was argued That this Judgment ought to be affirmed for that as to the first pont tho' it hath been said to be a new thing and grounded upon late Presidents yet it hath been so often adjudged that it doth not now deserve a Debate 't was solemnly settled in Wright's Case and upon Consideration 2 Rolls Abridg. 343 344. 3 Cro. 526. Moore 399. That tho' many ancient Authorities have been lost yet in Brooke Presentment al Esglise 61. there is the Opinion of the Bishop of Ely for it And as to the old Presidents there 's no need of Recourse to them because continual Usage hath been with the King in this matter a settled Opinion for an hundred years is surely enough to declare the Law as to this particular This is sufficient Evidence to prove this Right in the Crown there being no Judicial Opinion against it The reason for this Prerogative is because the King by the exercise of his prerogative in the promotion hath made the Avoidance and it is but changing one Life for another and possibly the Patron is as near the having another presentation as before It was agreed that this is none of the prerogatives mentioned in the Statute de Prerogativa Regis but
of Cases were quoted concerning the King's Grants Misrecitals false Recitals and Deceit c. Then it was strenuously insisted upon That the Recitals and the Granting Clause must be consider'd and judged of together that the contrary Opinion is to make the Granting Part to be without any Consideration 't is to have a Conclusion without Premisses an igitur without a Cause That eadem servitia can never be intended new ones That secundum tenorem must referr to the Appendant Advowson and therefore the Advowson in gross here declared upon and pleaded to can never pass by this Grant and upon the whole it was prayed That the Judgment might be affirmed It was replied on behalf of the Plaintiff in Error That as to the Variance in the Title of Knight no Answer had been given to the reasonable Distinction between the Case of Grants and that of Writs and Indictments that here was no Proof or Appearance of a Diversity of Persons That as to the Grant it self secund ' tenorem could mean only a Reference to the Interest or Estate granted by them not to the thing or the Nature of it That such Words signified only as fully and largely they had no express Relation to the Quality of the Advowson whether in gross or appendant That by such Niceties any or most Patents might be avoided That Grants of Honours as well as of Interests if questioned must be under the same Rule and the Considerations upon which they are grounded may be subject to Inquiry if true or false c. That the Patent of it self without Reference to the pleading was good That the Judgment desired was to condemn a Patent as void because another Patent recited in it was so which perhaps was not fully recited and if it were was not in Judgment before the Court and the substance of what was urged before was in short repeated and prayed That the Judgment might be revers'd and it was accordingly revers'd and Mr. Pierse Scroope being dead presented Francis Pemberton his Clerk who was admitted instituted and inducted c. FINIS THE NAMES OF THE Principal Cases 1. DOminus Rex Viscount Purbeck Page 1 2. Duvall versus Price Page 12 3. John Duvall and Elizabeth his Wife versus William Terry of London Merchant Page 15 4. William Dolphin and Katharine his Wife versus Francis Haynes Page 17 5. Dormer Sheppard al' versus Joseph Wright al' Page 18 6. Whitfield Ux ' al' versus Paylor Ux ' al' Page 20 7. Thomas Arnold versus Mr. Attorney General and Matthew Johnson Esq Thomas Bedford Gent. Page 22 8. Sir Richard Dutton versus Richard Howell Richard Grey and Robert Chaplyn Executors of Sir John Witham decased Page 24 9. Philips versus Bury Page 35 10. Dr. William Oldis versus Charles Donmille Page 58 11. Smith Ux ' versus Dean and Chapter of St. Paul's London and Lewis Ruggle Page 67 12. The Countess of Radnor versus Vandebendy al' Page 69 13. Dominus Rex versus Baden Page 72 14. Hall al' Executors of Thomas Thynne versus Jane Potter Administratrix of George Potter Page 76 15. The Society of the Governour and Assistants of the New Plantation of Vlster in the Kingdom of Ireland versus William Lord Bishop of Derry Page 78 16. Sir Caesar Wood aliàs Cranmer versus Duke of South-hampton Page 83 17. Sir Caesar Wood aliàs Cranmer versus Thomas Webb Page 87 18. Jonathan Lord Bishop of Exeter al' versus Sampson Hele. Page 88 19. Robert Davis versus Dr. John Speed Page 104 20. Wats al' versus Crooke Page 108 21. Lee Warner versus William North. Page 110 22. Briggs versus Clark ibid. 23. William Bridgman al' versus Rowland Holt al' Page 111 24. Dominus Rex versus Walcort Page 127 25. Sir Evan Lloyd Bar. and Dame Mary his Wife and Sidney Godolphin and Susan his Wife versus Richard Carew Bar. an Infant the Son and Heir of Sir John Carew Bar. deceased Page 137 26. Sir William Morley Knight of the Bathe versus Peter Jones Page 140 27. Sir Edward Hungerford and John Hill Executors and Devisees of Sir William Basset versus Edward Nosworthy Page 146 28. Sir Simon Leach al' versus John Thompson Lessee of Charles Leach Page 150 29. Henry Earl of Lincoln versus Samuel Roll al' Page 154 30. John Fox Gen ' versus Simon Harcourt Esq Page 158 31. Henry Lord Bishop of London and Dr. Birch versus Attorney General pro Domino Rege Page 164 32. Dominus Rex versus Reginald Tucker Page 186 33. Joseph Eastmond Executor of Hester Eastmond and Samuel Neyle versus Edwyn Sands Clerk Page 192 34. Magdalen Foubert versus Charles de Cresseron Page 194 35. Philip Jermin and Sarah his Wife versus Mary Orchard Page 199 36. Bennet Swayne versus William Fawkner and John Lane Executors of B. M. Page 207 37. Dominus Rex versus Episcop ' Cestr ' and Richard Pierse Page 212