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, 'tis 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 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 200l. per Annum.
[174] 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.
Cases where the King is bound, tho' not named in Statute.—Now 'tis 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. Martin's 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 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. 'tis so agreed, 1 Rep. 48. and in 2 Rep. 46. if Lands be given in Fee to one who was Tenant in Tail, his Issue shall not be remitted, because the latter Act takes away the Force of the Statute de Donis.
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