2. Dr. Tennison comes not in by the Patron's Presentation, but by Donation of the Parliament; and there's not any Precedent for a Prerogative to present to a Donative upon a Promotion. The King cannot present to that, which the Patron could not have presented to; and the Patron could not present to a Donative quatenus a Donative: And for the King to present to a Donative, is to injure the Patron; for 'tis to make that Presentative, which was never intended by the Patron to be so. And yet in Case of a Donative with Cure of Souls (as it may be of a Parochial Church, tho' exempt from Ordinary Jurisdiction, according to Yelverton 61. 2 Roll's Abridg. 341.) the Ordinary may compel the Patron to Collate Somebody, as was held in Case of the Rectory Parochial Donative of St. Burian's in Cornwall; and the Tower of London is with Cure of Souls. 1 Cro. 330. 2 Roll's Abridg. 331. 1 Inst. 144. The same will be void by a Promotion of the Incumbent: For 'tis not merely the Change of Inferior into Superior, that makes the Avoidance; for then an Incumbent, made Bishop of another Diocese, or in Ireland, would not avoid the Benefice: But 'tis the Doubleness of the Charge, contrary to the Council of Lateran, which hath been received here. This is more different from the pretended Notion and Reason of this Prerogative, than that Case of a Common Donative: For in Case of a Donative, there's an Incumbent of the Patron's own Preferring, who is further promoted by the King, and still in Being, and the same Patron claiming a Right to fill the same: Here 'tis an Incumbency by Gift of the King, Lords and Commons. And then, if it be considered what this new Prerogative is, for so it must be termed, since there's no Footsteps for it in the old Times, and the Statute of Prærogativa Regis (which enumerates most of them, and is rather a Collection of old Prerogatives then a new Statute) mentions it not; 'tis a Prerogative to present upon the Promotion of the Patron's Presentee or Incumbent presented in his Right. Here is no such Thing; 'tis [177] as their Books say, when the Patron's Presentee is advanced to a greater Dignity in the Church; and the pretended Reason given for it to avoid the Objection, That no Prerogative is to be injurious, or to import a Wrong done to the Subject is this, That here's no Injury to the Patron, but a Kindness to his Friend; because the Person which he chose and preferred is bettered, and further preferred to an higher Degree of Honour and State in the Church: All this fails here; so that there doth not seem to be the same Colour, why the King should have it in this Case.
It is a good Argument, according to Mr. Littleton, That because no such ever was before, that therefore of Right it ought not to be: And if no Practise hath been to warrant it, in Case of a Gift by Act of Parliament, there's no Reason it should be allowed in this Case; for a Prerogative never used, can never be with Propriety called a Prerogative; much less Reason have they for it, if they have not Practise or Precedents to warrant their Claim in case of any Donative.
Prima facie the Patron hath the Right; to evade that Right of his Mr. Attorney pretends to a Prerogative; then it being of common Right with him, they ought to demonstrate that there is such a Prerogative to control that Right in this particular Case: And the Arguments brought for it ought to be clear, convincing, and undoubted. Now because where a Patron's Presentee is preferred by being consecrated a Bishop, the King shall present; that therefore where the Parliament's Presentee is preferred, the Patron shall lose the Benefit of his Presentation, is a non sequitur; because the Cases are not the same: For the supposed Recompence or Consideration in the one, holds not in the other. This is not the Case of a Prerogative incident to the Crown from the Necessity of Government: Nor is it a Prerogative which respects the Continuance or Improvement of the Revenue, so as for the Benefit of the Kingdom, an Extent or Enlargement of it beyond former Practise, may seem absolutely needful; and therefore the common Pretences of Intendment and Presumption, are no more on their Side than upon this; nay, 'tis rather otherwise: Because that common Right is with the Patron.
It is no Objection to say, That there never was such a Promotion or Avoidance before: Whether there were, or not, is not material. But that rather turns upon them; for that Evinces beyond Dispute, that there never was such a Prerogative Presentation in Fact as they now contend for. Argument' à simili is the weakest, but they have no Case like this; nay, they have no Opinion in the Books declaring on their Side; nay, the Book Definition of this Prerogative, as was said before,
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