Besides, there's good Reason in Fact, for this Provision of the first Presentation; because the Act takes Notice of the Parish of St. Martin's, 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. Martin's; 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.
Saving of the King's Right not in this Act.—Besides, here's no Salvo 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 Counsel take Care always to insert a Saving, if the same be not necessary?
Where the Prerogative shall not take Effect against an Act of Parliament.—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 [180] 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 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 preferred; 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 'tis given: And so was it held by the Civilians at Doctors Commons, before the Chancellor 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 'tis 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.—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, 'tis 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. Anne'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 H. 8. cap. 1. all Payments to the Pope having been prohibited by 25 H. 8. cap. 21. and all Profits and Commodities enjoyed by the Popes thereby annexed to the Crown. Yet neither
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