that Act, nor that other in the same Year, (whereby the First Fruits and Tenths of all Ecclesiastical Li-[181]-vings, 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.
Donative may be made Presentative, by the Patron's presenting one.—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; 'tis a peculiar singular Case, by 2 Roll's Abr. 342. and 1 Inst. 344. If a Patron present to a Donative, it becomes Presentative ever after; which shews, That 'tis the Presentation which makes it Presentative in its Nature; now here 'tis 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 ordinarii.
To say, That the Bishop of London hath no more Right by the Act of Parliament, than 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) [182] gives a particular and express Right; and an Act of Parliament may (as Coke saith) alter, change, annul, abridge, diminish, qualify, enlarge or transfer any Common Law; nay, it hath the Common Law and the Prerogative too under its Control.
Upon the Whole, it was concluded, That by this Judgment, a new Prerogative is affirmed 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.
Argument for the Defendant in Error. The Reason of this Prerogative.—On the other Side it was argued, That this Judgment ought to be affirmed; for that, as to the first Point, tho' it hath been said to be a new Thing, and grounded upon late Precedents, yet it hath been so often adjudged, that it doth not now deserve a Debate; 'twas solemnly settled in Wright's Case, and upon Consideration, 2 Roll's 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 Precedents, there's no need of Recourse to them, because continual Usage hath been with the King in this Matter:
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