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
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
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
Witham deceased WRit of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton and the Award of Execution thereof upon Scire Fac ' brought by the Defendants as Executors of Sir John Witham and affirmed in the Exchequer Chamber in Trespass and False Imprisonment The Case on the Record was thus The Plaintiff William did declare versus Dutton for that he with Sir Robert Davis Baronet Sir Timothy Thornhill Henry Walrond Thomas Walrond and Samuel Rayner did 14 Octob. 36 Car. 2. at L. in Par ' Ward ' c. assault beat and wound the Plaintiff and imprisoned him and his Goods then found did take and seize and the Plaintiff in Prison and the Goods and Chattels from the Plaintiff did detain and keep for three Months next following by which the Plaintiff lost the Profit he might have made of his Goods and was put to Charges c. Contra pac ' ad damp ' 13000 l. The Defendant pleads Not Guilty as to the Venir ' vi armis and all the Assault Imprisonment and Deteiner in Prison before the Sixth of November and after the Twentieth of December in the same Year and as to the beating and wounding and taking seizing and detaining his Goods and thereupon Issue is joyned and as to the assault taking and imprisoning the Plaintiff the Sixth of November and detaining him from thence until in and upon the Twentieth of December The Defendant doth justifie for that long before viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court did constitute and appoint the Defendant his Captain General and Chief Governour in and upon the Islands of Barbadoes and c. and the rest of the Islands lying c. and thereby commanded him to do and execute all things that belonged to that Government and the Trust in him reposed according to the several powers and directions granted to the Defendant by the Letters Patents and Instructions with them given or by such other powers or instructions as at any time should be granted or appointed the Defendant under the King's Sign Manual and according to the reasonable Laws as then were or after should be made by the Defendant with advice and consent of the Councel and Assembly of the respective Islands appoints twelve Men by name viz. Sir P. L. H. D. H. W. S. N. T. W. J. Witham the Plaintiff J. P. J. S. R. H. E. S. T. W. and H. B. to be of the King's Counsel of the Island during the pleasure of the King to be assistant to the Defendant with their Counsel in the management of the Things and Concerns of the Government of the said Island in relation to the King's Service and good of his Subjects there and gives power to the Defendant after he himself had taken the Oath of Office to administer to every Member of the Councel and Deputy Governour the Oaths of Allegiance and Supremacy and the Oath of Office with further power to the Governour by advice and consent of Counsel to summon and hold a General Assembly of the Freeholders and Planters there and to make Laws Statutes and Ordinances for the good Government of the Island and to be as near and consonant as convenlently may to the Laws and Statutes of England which Laws were to be transmitted to be allowed by the King here with power also by advice and consent of Counsel to erect and establish such and so many Courts of Judicature as he shall think fit for hearing and determining all Causes as well Criminal as Civil according to Law and Equity and to appoint Judges Justices of Peace Sheriffs and other necessary Officers for administring of Justice and putting the Laws in execution provided Copies of such Establishments be transmitted to the King to be allowed and with further power to the Governour to constitute and appoint Deputy Governours in the respective Islands and Plantations which then were or should be under his Command to all and every which respective Governours the King by these Letters Patents gave power and authority to do and execute what should be commanded them by the Governour according to the power granted to him by this Commission And the Governor's Authority to continue during the good will and pleasure of the King The Defendant further pleads That after the making of the Letters Patents and before the time of the Assault and Imprisonment viz. 1 Mart. 33 Car. 2. he arrived at Barbadoes and by virtue of the Letters Patents aforementioned he took upon him and exercised the Government of that and the other Islands and continued to do so till the first of May 35 Car. 2. when he had license to return to England That he before his departure by virtue of the said Letters Patents by a certain Commission under his Hand and Seal did constitute the Plaintiff in his absence to be his Deputy Governour in the said Islands of Barbadoes to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patents That the first of August following the Defendant arrived at London in England that the fourth of May 35 Car. 2. after the Defendants departure the Plaintiff took upon himself the Administration of the Government of the Island of Barbadoes that the Plaintiff not regarding the Trust reposed in him by the Defendant nor the Honour of that Supreme Place and Office did unlawfully and arbitrarily execute that Government and Office to the Oppression of the King's Subjects viz. apud Lond ' praed ' in Par ' Ward ' praed ' That after the Return of the Defendant to the Barbadoes viz. 6 Nov. 35 Car. 2. at a Councel holden for the Island of Barbadoes at St. Michael's Town before the Defendant H. W. J. P. E. S. T. W. F. B. which five are of the twelve named Councel in the Letters Patents and Sir Timothy Thornhill and Robert Dawes Counsel for the Island aforesaid the Plaintiff then and there was charged that he in the absence of the Defendant misbehaved himself in the Administration of the Government of the said Island Non tantum in not taking the usual Oath of Office and not observing the Act of Navigation And by his illegal assuming the Title of Lieutenant Governour and altering and changing Orders and Decrees made in Chancery of the said Island according to his own will and pleasure at his own Chamber and altering the Sense and Substance of them from what was ordered in Court by and with the consent of the Councel upon which it was then and there ordered in Councel by the Defendant and Councel that the Plaintiff Sir John Witham should be committed to c. until he should be discharged by due Course of Law by virtue of which Order the Plaintiff the said sixth of Nov. was taken and detained until the 20th of Dec. upon which day he was brought to the Court of the General Sessions of Oyer and Terminer and then by
a Colony or Plantation and that imports rather the contrary and by such Names these Plantations have always gone in Letters Patents Proclamations and Acts of Parliament But whatsoever may by some be said as to Statutes in particular binding there the Common Law must and doth oblige there for 't is a Plantation or new Settlement of English-men by the King's Consent in an uninhabited Country and so is the History of Barbadoes written by Richard Ligon Printed at London 1673. pag. 23. says he 'T was a Country not inhabited by any but overgrown with Woods And pag. 100. They are governed by the Laws of England And Heylin in his Geography lib. 4.148 says The English are the sole Colony there they are called the King's Plantations and not his Conquests and he neither could nor can now impose any Laws upon them different from the Laws of England 'T was argued that even our Statutes do bind them and many of them name these Plantations as English they have some Municipal Rules there like our By-laws in the Stanneries or Fenns but that argues nothing as to the general which shall prevail when the one contradicts the other may be a Query another time By the 22 23 Car. 2. cap. 26. against the planting of Tobacco here and for the Regulation of the Plantation Trade the Governours of those Plantations are once a Year to return to the Custom-house in London an Account of all Ships laden and of all the Bonds c. And they are throughout the whole Act called the King's English Plantations Governours of such English Plantations to some of the English Plantations And Paragr 10. 't is said Inasmuch as the Plantations are inhabited which his Subjects of England and so 't is in 15 Car. 2. cap. 7. sect 5. and in 12 Car. 2. cap. 34. they are called Colonies and Plantations of this Kingdom of England From all which 't is natural to infer That the Rules in case of conquered Places cannot prevail here Conquest est res odiosa and never to be presumed besides 't is the People not the Soil that can be said to be conquered The reason of a Conquerour's Power to prescribe Laws is the Conqueror's Clemency in saving the Lives of the conquered whom by the strict right of War he might have destroyed or the presumed Chance of Subjection which the conquered Prince and People threw themselves upon when they first engaged in the War But this is not pretended to here tho' all the Cases about this Subject were put below stairs Then taking it as the truth is certain Subjects of England by consent of their Prince go and possess an uninhabited desert Country the Common Law must be supposed their Rule as 't was their Birthright and as 't is the best and so to be presumed their Choice and not only that but even as obligatory 't is so When they went thither they no more abandoned the English Laws then they did their Natural Allegiance nay they subjected themselves no more to other Laws than they did to another Allegiance which they did not This is a Dominion belonging not only to the Crown but to the Realm of England tho' not within the Territorial Realm Vaughan 330. says That they follow England and are a part of it Then 't was argued further If 't were possible that it should be otherwise when did the Common Law cease On the Sea it remained in all Personal Respects If Batteries or Wounds on Ship-board Actions lay here Then the same held when they landed there and no new Laws could be made for them but by the Prince with their consent Besides Either the Right of these Lands was gained to the Crown or to the Planters by the Occupancy and either way the Common Law must be their Rule It must be agreed that the first Entry gained the right and so is Grotius de jure Belli Pacis lib. 2. cap. 8. sect 6. and these Lands were never the Kings tho' they afterwards submitted to take a Grant of the King 'T is true in case of War what is gained becomes his who maintained the War and doth not of right belong to that Person who first possessed it Grot. lib. 3. cap. 6. sect 11. But in case it be not the effect of War but only by force of their first Entry it must be considered what Interest they did acquire and certainly 't was the largest that can be for an Occupant doth gain an Inheritance by the Law of Nations and the same shall descend then by the Rules of what Law shall the Descent be governed it must be by the Laws of the Country to which they did originally and still do belong But then supposing the Lands gained to the Crown and the Crown to distribute these Lands the Grant of them is to hold in Soccage and that is a common Law Tenure why are not their Persons in like manner under the Common Law When a Governour was first received by or imposed upon them 't was never intended either by King or People that he should Rule by any other Law than that of England And if it had been known to be otherwise the number of Subjects there would have been very small In these Cases their Allegiance continues and must be according to the Laws of England and 't was argued that ex consequenti the protection and rule of them ought to be by the same Laws for they are mutual and reciprocal unum trahit alterum and that Law which is the Rule of the one should be the Rule of the other besides 't is the Inhabitants not the Country that are capable of Laws and those are English and so declared and allowed to be and consequently there 's no reason why the English Laws should not follow the Persons of English-men especially while they are under the English Government and since the Great Seal goes thither And further a Writ of Error lies here upon any of their ultimate Judgments so says Vaughan 402. and 21 Hen. 7.3 that it doth so to all Subordinate Dominions and tho' the distance of the Place prevents the common use of such Writ yet by his Opinion it clearly lies and he reckons the Plantations part of those Subordinate Dominions Now a Writ of Error is a remedial Writ whereon Right is to be done and that must be according to the Laws of England for the King's Bench in case of a Reversal upon such Writ is to give a new Judgment as by Law ought to have been first given Vaughan 290 291 says It lies at Common Law to reverse Judgments in any inferiour Dominions for if it did not inferiour and Provincial Governments might make what Laws they please for Judgments are Laws when they are not to be reversed It lay to Ireland by the Common Law says Coke 7 Rep. 18. tho' there had been no Reservation of it in King John's Charter Then 't was inferred that the lying of a Writ of Error proves the Laws
to be the same i.e. in general the Common Law to govern in both places from the difference assigned between Ireland and Scotland it lies not to Scotland because a distinct Kingdom and governed by distinct Laws and it lies to Ireland because ruled by the same and consequently if a Writ of Error lies on the final Judgment there it 's a good Argument that the same Law prevails there These Plantations are parcel of the Realm as Counties Palatine are Their Rights and Interests are every day determined in Chancery here only that for necessity and encouragement of Trade and Commerce they make Plantation-Lands as Assets in certain Cases to pay Debts in all other things they make Rules for them according to the common Course of English Equity The distance or the contiguity of the thing makes no alteration in the Case And then 't was said as at first That this then was the same case as if the Imprisonment had been in England or on Shipboard as to the Rules of Justification that if there were another Law which could justifie it the same ought to have been certainly pleaded As to the Instructions those do not appear and therefore are not to be considered in the Case and they should have been set forth and no extraordinary Power is to be presumed unless shewn for every Man in pleading is thought to make the best of his own Case and consequently that if 't would have made for him the same would have been shewn and because they are not shewn they must be thought directive of a Government according to the Laws of England since 't is to a Subject of this Realm to govern other Subjects of this Realm living upon a part of this Realm and from the King thereof who must be supposed to approve those Laws which make him King and by which he reigns Then 't was argued Suppose this Governour had borrowed Money of a Man in the Island and then had returned to England and an Action had been brought for it and he had pretended to ustifie the receipt of it as Governour he must have shewn his Power the Law and how he observed that Law the like for Goods the same reason for Torts and Wrongs done vi armis Now the Court below could consider no other Power or Law to justifie this act but the Common Law of England and that will not do it for the Reasons given and if it be justifiable by any other it must be pleaded and what he hath pleaded is not pursued c. As to the Commitment by a Council of State what it means is hardly known in the Law of England and that Authority which commits by our Law ought to be certain and the Cause expressed as all the Arguments upon the Writ of Habeas Corpus in old time do shew but here 's no Councel and 't is not said so much as that he was debito modo onerat ' And as to the Demurr ' that confesses no more then what is well pleaded And as to Consequences there 's more danger to the Liberty of the Subject by allowing such a Behaviour then can be to the Government by allowing the Action to lye And therefore 't was prayed that the Judgment might be affirmed It was replyed on behalf of the Plaintiff in the Writ of Error That notwithstanding all that had been said the Laws there were different tho' the Foundation of them was the Common Law that they would not enter into that Question What sort of Title at first gave Right to these Lands but that this was a Commitment by a Councel of State And as to the Objection of too general Pleadings in male arbitrarie exercendo c. tho' the inducement of the Plea was so There were other Matters more particularly pleaded the altering the Decrees in his Chamber which was sufficient And as to the Objection That 't is not alledged in the Pleadings that the Charge in Councel against Wytham was upon Oath they answered That 't is not effential tho' prudent to have the Charge upon Oath before Commitment Matters may be otherwise apparent And as to the Objection That the Warrant of the Councel for the Commitment was not shewn they said that it lay not in their power because 't was delivered to the Provost Marshal as his Authority for the Capture and Detention of him and therefore did belong to him to keep And that the Councel tho' they were not a Court yet they had Jurisdiction to hear the Complaint and send him to another Court that could try the Crime and tho' it did not appear that the King gave any Authority to the Governour and Councel to commit yet 't is incident to their Authority as being a Councel of State the Councel here in England commit no otherwise and where the Commitment is not authorized by Law the King's Patent gives no power for it But the Government must be very weak where the Councel of State cannot commit a Delinquent so as to be forth-coming to another Court that can punish his Delinquency And therefore prayed that the Judgment should be reversed and the same was accordingly reversed Philips versus Bury WRit of Error to reverse a Judgment given for the Defendant in the Court of King's Bench where the Case upon the Record was thus Ejectione firme on the Demise of Painter as Rector and the Scholars of Exeter Colledge in Oxon for the Rector's House The Defendant pleads specially That the House in question is the Freehold of the Rector and Scholars of the Colledge but he says That he the said Dr. Bury was then Rector of that Colledge and that in right of the Rector and Scholars he did enter into the Messuage in question and did Eject the Plaintiff and so holds him out absque hoc That Painter the Lessor of the Plaintiff was at the time of making the Lease in the Declaration Rector of that Colledge hoc paratus est verificare c. The Plaintiff replys That the Messuage belongs to the Rector an Scholars but that Painter the Lessor was Rector at the time of the Lease hoc petit quod inquiratur per Patriam c. and thereon Issue is joyned and a Special Verdict The Jury find that Exeter Colledge is and was one Body Politick and Corporate by the Name of Rector and Scholars Collegij Exon ' infra Vniversitat ' Oxon ' that by the Foundation of the Colledge there were Laws and Statutes by which they were to be governed and that the Bishop of Exeter for the time being and no other at the time of founding the Colledge was constituted by virtue of the Statute concerning that Matter hereafter mentioned ordinary Visitor of the same Colledge secundum tenorem effectum statut ' eam rem concernent ' That the Bishop of Exeter who now is is Visitor according to that Statute Then they find the Statute for the Election of a Rector prout c. Then they find
after Judgment affirmed in the Exchequer Chamber Or if that proceeding in the Exchequer Chamber doth not come in lieu of Error in Parliament according to the Statute of Eliz. William Bridgman al' Versus Rowland Holt al' A Writ of Error and Petition in Parliament The Case below was thus William Bridgman brings an Assize for the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench and the Plaintiff declares that the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench was time out of mind granted and grantable by the Kings and Queens of this Realm and that King Charles the Second by Letters Patents under the Great Seal of England Dated the Second of June in the Five and twentieth Year of his Reign after a Recital that Robert Henley and Samuel Wightwick were duly admitted to this Office for their Lives granted this Office upon the Petition of Eliott to Silas Titus so soon as it should become void and that Wightwick was dead and Titus had surrendred his Patent did in consideration of Service done by the Earl of Arlington grant this Office to the Plaintiff and his Heirs for the Lives of the Earl of Arlington Duke of Grafton and Dutchess of Grafton and the longer liver of them from and after the Death Forfeiture or Surrender of Sir Robert Henley and that Sir Robert Henly was dead and that thereupon the Plaintiff became seized and was seized of the Office till the Defendants did disseize him c. The Defendants pleaded that they did not wrong or disseize the Plaintiff Upon the Trial of this General Issue at the Bar of the King's-Bench before the three puisne Judges the Chief Justice then sitting near the Defendant's Counsel upon a Chair uncovered the Plaintiff gave in Evidence the Letters Patents of 2 June 25 Car. 2. Then it was proposed by the Counsel for the Defendant That they would prove their Allegation that the Office was anciently granted by the Kings and Queens of England as was declared but no Evidence was given besides this Patent of Car. 2. Then the Counsel for the Defendant waving the just Exception which they might have taken to the Plaintiff's Grant as to him and his Heirs which ought not to be of such an Office for that by that means it might come to an Infant They insisted upon the meer right of Granting the said Office viz. that it was not grantable by the Crown but was an Office belonging to the Chief Justice of the King's Bench and grantable by him Then to prove this it was shewn That this Officer is to Inroll Pleas between Party and Party only and had nothing to do with any Pleas of the Crown or Criminal Matters that all the Rolls and Records in this Office were in the Custody of the Chief Justice that all the Writs to certifie or remove the Records in this Clerk's Office are directed to the Chief Justice and from the nature of the Imployment 't was insisted that in truth he was but the Chief Justices Clerk and that consequently the same must be granted by the Chief Justice And for further proof it was shown by the Records of the Court that for the space of Two hundred thirty five years past this Office when void had been granted by the Chief Justice and enjoy'd accordingly under such Grants In Trin. 36 Hen. 6. Rot. 36. inter placita Reg. Anno Dom. 1458. It is inrolled thus Be it remembred that the Tenth of July this Term in the Court of our Lord the King at Westminster came William Sond chief Clerk of our Lord the King for inrolling Pleas before the King himself in his proper Person and in the same Court of his Free-will did surrender his said Office into the hands of Sir John Fortescue Kt. Chief Justice of that Court to whom of right it doth belong to grant that Office to whomsoever he pleaseth whensoever that Office shall be void during the time that the said Sir John Fortescue shall be Chief Justice and that Office doth resign and relinquish to the use of William Brome and the said Chief Justice doth accept the said Surrender and doth the same day grant the said Office to the said William Brome who is presently admitted into the said Office for his Life and sworn accordingly Mich. 1. Edw. 4. Rot. 51. Upon Brome's Surrender to Sir John Markham then Chief Justice the Chief Justice grants it to Mr. Sonde who is admitted for Life and sworn Mich. 8 Edw. 4. Rot. 26. 1467. Upon the Surrender of William Sonde to the said Sir John Markham then Chief Justice he grants it to Reginald Sonde who is admitted and sworn Reginald Sonde enjoyed this Office till the time of Henry the Seventh and then Bray came in and was Clerk till the 13 H. 7. and then came in Roper Hill 9 Hon. 8. Rot. 3. Anno 1518. Upon the Surrender of this place to Sir John Fineux Chief Justice by John Roper the Chief Justice grants the Office to Sir John Roper and William Roper who are admitted for their Lives and sworn Hill 1 2 Edw. 6. Anno 1547. Upon the Surrender of William Roper Sir John being then dead to Sir Richard Lister then Chief Justice he grants the Office to William Roper and Rute Heywood and they are admitted and sworn Hill 15 Eliz. 1573. Upon the Surrender of William Roper Heywood being dead to Sir Robert Catlin then Chief Justice he granted this Office to John Roper and Thomas Roper for their Lives and they are admitted and sworn Mich. 14 Jac. 1 Rot. 2. Anno 1616. Upon the Surrender of John Roper Thomas being dead to Sir Henry Mountagne then Chief Justice he grants the Office to Robert Heath and Robert Shute for their Lives who are admitted and sworn thereupon Hill 18 Jac. 1. 1620. Shute being dead upon Sir Robert Heath's Surrender to Sir James Leigh then Chief Justice he grants the Office to Sir Robert Heath and George Paul for their Lives and they are sworn and admitted in Court Mich. 5 Car. 1. Upon the Surrender of Sir Robert Heath and Sir George Paul to Sir Nicholas Hide then Chief Justice he grants it to Robert Henley and Samuel Wightwick for their Lives and they are admitted and sworn Trin. 1654. Upon Wightwick's Surrender to H. Roll then Chief Justice Henly being then under Sequestration the Chief Justice grants it to Sam. Wightwick and to Robert Henly Junior for their Lives and they are admitted and sworn Mich. 12 Car. 2. Upon the Surrender of Samuel Wightwick and Robert Henly to Sir Robert Foster then Chief Justice he grants it to Henly and Wightwick for their Lives and they are sworn Wightwick died soon after and Sir Robert Henly enjoy'd it under that Grant 32 years And it was observed on behalf of the Defendant That in all these Records produced and read in Court after the mention of the Surrender to the Chief Justice there are these words To
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
then 't was said That the prerogative to present by Lapse is not in the Statute and yet that is admitted so that the omission of it there can be no objection this is a prerogative that follows a Vacancy occasioned by the exercise of the prerogative for such it is to make Bishops The King first made them by the donation of a Ring and Staff then by a Conge d'Eslier the King gave licence to choose and approved the person chosen tho' not by absolute donation as before By the 25 Hen. 8. the Crown is restored to its ancient Prerogatives and there are Letters Missive directing the choice of such a person In Wright's Case in 3 Cro. and Moore then was the first time it came in question and it was debated and considered and the Judgment upon deliberation settled it with the King And as to the Objection that in Dyer 228. 't is said That he and the rest of his Brethren thought otherwise that point was nothing to the Case then in question But however 't is observable that the Queen presented Anno 6. and the Patron did not dispute it as appears in Woodly's Case And in Owen's Rep. 't is said that several Presidents in Henry the Eighth's time were searched 'T is true that in 11 Hen. 4.67 and 21 Edw. 4.33 the King did not intitle himself by virtue of his Prerogative but by reason of the Temporalties being in his hands those Cases can influence nothing in this matter because the King's Prerogative consists not in ousting of himself but of a Stranger it is to present in the turn of another upon such a Vacancy but not where he is intituled himself there he presents by virtue of his own Interest As to the Objection That the Old Books are silent about this Prerogative 't was answer'd That before the Statute of Provisors 25 Edw. 3. the King was defeated of his Prerogative by reason of the Pope's Provisions and therefore the King could not have it whereas 't is the Exercise of his Prerogative of Promotion that gives him this Prerogative of presenting upon this Vacancy by such Promotion and therefore that Statute was made to prevent all Incroachments and tho' it was made to that very purpose yet the Clergy being then so strongly united to the Pope's Interest the Kings of England could not use that Prerogative and frequent Usurpations were made upon the Crown till the Pope's Supremacy was denied The 41 Edw. 3.5 shews that there were such Usurpations 7 Hen. 4. cap. 8. complaint is made of them and 5 Hen. 4. num 95. Cotton 458. And thus it continued till the Statute about the Supremacy 28 Hen. 8. the Kings are to make the Bishops and then consequently in point of Law the right of presenting was restored Then 't was urged That none of the old Books do mention the King 's right to present by Lapse except in Cawdries Case where notice is taken of a Case in the time of Edw. 3. but that is not to be found Bro. tit Presentment 61. is as much Authority for this as that in Cawdries Case is for the Prerogative to present upon Lapse And this right in question having been enjoyed so long should not now have been questioned In 5 Edw. 2. Maynard 148 198. there is one Instance of the Patron 's presenting again but then Provisions were common and usual Walsingham 1313. so that supposing the Patron did in those times present the King was not concerned because 't was then only the Pope's right as was thought and the Pope might be ignorant of the matter And from thence 't was argued that the practise of those Times cannot be urged as Arguments in the present Case Then 2. it was urged That the King having this Prerogative he is not debarred of it by the Dispensation to hold it c. nor by the Act of Parliament nor by the King's Confirmation of it The King by that did transfer no Right to the Incumbent but meerly did continue him in and there was no Avoidance but the same is suspended and had the Incumbent died or resigned during this time the Church had been void by such Death or Resignation and had debarred the King of his Prerogative The Incumbent still remains Incumbent for the time by force of his first presentation and so the Dispensation doth prevent the Avoidance He is not in by force of any Title which the Dispensation gives him but of his old Title Jones 91. 161. Vaughan 18. 3. Then 't was argued that the Act of Parliament for making this new Parish did not alter the Case 'T was said that the making of this a Rectory in this manner doth make it subject to this prerogative and that it was by no means the intent of the Act to debar the prerogative It is made a Parish and Rectory such as others are subject to the EcclesiasticalLaws as well as any other Benefice under the obligation to Residence and liable to the Common Jurisdiction and Censure of the Ordinary and 't is to be made vacant by the same ways and means as other livings are the words Death or any other Avoidance prove it to be so Lapse will prevail upon this Rectory and that cannot be but because 't is made a Rectory and presentative It cannot be doubted but that the next Avoidance might have been granted over by the Bishop of London before any Avoidance was Suppose the Bishop of London had died and this Promotion had happened should not the King have presented by reason of the Temporalties and yet that is as much out of the Words of the Act as this is As to its being a Donative 't was said That the present Rector doth not come in by Donation and tho' 't is true That the King cannot present to a Donative upon such an occasion the reason is because the Promotion doth not make a Vacancy of the Donative it doth not make a Cession the Parson is not subject to Censures as other Rectors are he is still in by reason of the Institution of the Founder so that nothing can be inferr'd from thence Suppose the Incumbency of a Donative had been immediately turned into a Rectory would not that have subjected it to this Prerogative 'T is admitted That the promotion of the Rector did make an Avoidance then was cited Princes Case 8 Rep. Then suppose it a Donative as to Dr. Tennison at the same time that the Church becomes vacant the Patronage vests and then the King's Prerogative shall take place either codem Instanti or before But here the Right of Patronage did vest immediately by the Act he that is to present when the Rectory becomes void he is Patron 'T is like a Reversion granted cum acciderit there is a present Interest vested and there 's no reason why it should not be so in Case of this Act of Parliament The Stat. of 12 Car. 2. for confirming of Livings makes the then Possessors full and perfect Incumbents as this