DR. Thomas Tenniſon being lawful Vicar of the Pariſh of St. Martins in the Fields, one part of the ſaid Pariſh was by Act Ann. Dom. 1635. 1 Jac. II. of Parliament erected into a diſtinct Pariſh and Rectory, and called by the Name of the Pariſh and Rectory of St. James within the Liberty of Weſtminſter; and Dr. Tenniſon appointed the firſt Rector there.

The ſame Act veſts the Patronage in the Biſhop of London and his Succeſſors, and Thomas Lord Jermyn and his Heirs; and then appoints in what Order and Proportion each of the ſaid Patrons ſhall preſent; (viz.) That the Firſt Rector after the Deceaſe of the ſaid Dr. Tenniſon, or other next Avoidance, ſhould be Preſented or Collated by the Biſhop of London for the time being, and the next by the Lord Jermyn and his Heirs; the Two next by the Biſhop of London and his Succeſſors, and the next by the Lord Jermyn and his Heirs; and the like Succeſſion of Two Turns and One Turn, for all times to come.

Dr. Tenniſon was duly Elected Biſhop of Lincoln.

20. Dec. 1691. 22. Dec. 1691. 23. Dec. 1691. 25. Dec. 1691. Before Dr. Tenniſon's Conſecration, the then Archbiſhop of Canterbury did grant a Diſpenſation to him in due Form of Law, to retain and keep the Vicaridge of St. Martins, and the Rectory of St. James, together with the Biſhoprick of Lincoln, until the Firſt of July, then next following.

This was Confirmed by the King and Queen, by Letters-Patents under the Great Seal of England, (as the Statute of 25. H. 8. requires). After which, viz.

The ſaid Biſhop Elect was Conſecrated; but by Virtue of the Diſpenſation, and according to the Rules of Law, the Living did not become Void at the time of the Conſecration, (as otherwiſe it would have done); nor did it become Void until the Firſt of July, 1692. at which time it voided by Ceſſion: In which caſe the Crown hath an Undoubted Right to ſupply it by Preſentation for that Turn, to whomſoever the Patronage belongs.

This Cauſe was ſeveral times argued at the Bar, and afterwards ſolemnly at the Bench, and Judgment given by the whole Court for Their Majeſties.

The Matters which have been and probably may be again ſtirred againſt Their Majeſties Right in this Caſe, are theſe, I. Whether the Crown, upon the Promotion of the Incumbent of a Subject's Living to a Biſhoprick, hath a Right by Prerogative to Preſent to that Living for the next Turn? II. If there be ſuch a Prerogative, yet, Whether the Diſpenſation and Confirmation in this Caſe do not amount to a ſerving of that Turn? III. Whether this Act of Parliament hath made any Alteration in this Caſe, to differ it from the Crown's Preſenting upon ordinary Vacancies in other Livings, upon the Promotion of the Incumbents?

The two firſt of theſe Points being adjudged with the Crown in the Caſe of St. Martins, (which was enjoyed accordingly); and there being no difference as to theſe Points between St. Martins and St. James, the Third Point riſing upon the Act of Parliament was principally and indeed only intended to be conſidered in the Caſe of St. James's; but ſome of the now Plaintiffs Councel ſtirring the Two firſt Points again, the Court of King's-Bench took them alſo into Conſideration, and gave Judgment upon all Three for Their Majeſties; which was done by the Uniform Opinion of the whole Court with great Clearneſs.

Firſt, As to the Firſt Point,

This Prerogative and Right of Preſenting by the Crown, upon the Promotion of the Incumbent of a Subject's Living to a Biſhoprick, is an Ancient Right ſettled and eſtabliſhed by divers ſolemn Judgments in the Reigns of King Henry VIII. Queen Elizabeth, King James I. and downwards; and whenever queſtioned or doubted, always prevailed; and there is no one Judgment or Judicial Opinion in the Law-Books againſt it, but many for it. And if ſo full and particular an Exerciſe of that Prerogative doth not appear in the Old Books of the Law, as hath done in and from the Reign of King Henry VIII. downwards, it may reaſonably be ſuppoſed to be occaſioned by the Unlimited Power and Uſurpation which the Popes of Rome aſſumed to themſelves in this Kingdom, in making Biſhops, conferring Titles to Vacant Livings, and the like, not only againſt the Prerogative, but even againſt the Statutes of the Realm. And if any Inferences have at any time been drawn from any thing ſaid in any old Book in doubt of ſuch Prerogative, the ſame have been rectified by ſettled Judgments in Courts for many Ages paſt, in times when the Learning and Integrity of the Judges admitted of no diſpute.

Nor is it any Objection againſt this Right of the Crown, that it hath not been put in Execution in ſome caſes anciently where the Crown had another Title, by reaſon of Wardſhip, or of the Temporalities of a Biſhoprick being in the King's hands; for beſides what is ſaid before as to the Pope's Claims and Uſurpations, the Crown, without prejudice to the Prerogative, might make uſe of that other Title not Claimed by the Pope, upon which to bring Quare Impedits (wherein one ſingle Title muſt be relyed on) rather than to make uſe of that which the Pope then Challenged and Uſurped, it being improper for the King to ſet up his own Prerogative againſt himſelf, when he had another Title in him by way of Intereſt.

And it ſeems a ſtrange attempt after ſo many Ages, and ſuch ſetled Judicial Determinations, to queſtion that point of Prerogative, whereunto (till this Caſe) an entire ſubmiſſion hath been made, and many Eminent Clergy-men of the Church of England have enjoyed, and ſome now do hold Livings under the Title of that Prerogative; and it appears by ſome Books of Preſentations to Livings, in and ſince the Reign of Queen Elizabeth, ſtill extant (the former being loſt or deſtroyed) that the Crown hath preſented ſeveral hundreds of times upon ſuch Promotions, and Enjoyment were had accordingly.

II. As to the ſecond Point about the Diſpenſation; that can in no ſort be any Objection to the Right of the Crown; for this Diſpenſation being granted to the Incumbent to retain his Living, is not in Judgment of Law any Commenda, but coming before the Conſecration was lawful and effectual; and the now Plaintiffs by their Pleadings in the Cauſe, have owned and admitted it to be ſo; and then thereby the Avoidance was Suſpended, and no Vacancy happened by the Conſecration, nor till the Diſpenſation expired, which was the Firſt of July 1692. So that to affirm this Diſpenſation, or Confirmation, did Serve or Execute the King's turn, is to ſay the King uſed his turn before he had it, or filled a Vacancy before it was, and that not by his own, but by the Act or Inſtrument of the Archbiſhop; the Confirmation (which is the King's Act) being barely a Formality required by the Statute Hen. 8. to the Diſpenſation of the Archbiſhop.

III. As to the Third Point upon the Act of Parliament, there have been Two things Objected by the now Plaintiffs Council.

As to the Firſt; There is no doubt but that St. James is by the Act made a Preſentative Rectory, participating of the nature of other Preſentative Livings, and Dr. Tenniſon was continued in his former Cure, though under another name: And there is no reaſon in Law to make it a Donative, or otherwiſe than of the nature of a Preſentative Living in Dr. Tenniſon, nor for a diſtinction between old and new Rectories; but the Right of the Prerogative being founded upon the Promotion of the Incumbent that holds equally both in old and new Rectories where ſuch Promotion happens to be, and when this new Rectory voided by Promotion, then, and not till then, the Crown's Prerogative to Preſent aroſe, as much as it would or could have done in the Caſe of an old Preſentative Living.

As to the Second, there can be no reaſon to think the Act intended to take away the Prerogative of the Crown, which generally ſpeaking, is not bound, unleſs ſpecially named: But the end of this Act was to Erect a New Pariſh and Rectory, and to make them of the ſame nature with other Pariſhes and Rectories, and to ſettle the Rights of each as between the Patrons and Pariſhioners, but in no ſort to meddle with, much leſs to take away the Rights of the Crown; nor was there any need of a ſaving of the King's Right which aroſe by the Act by making the Rectory preſentative.

And it is not of any weight to ſay the expreſs words are for the Biſhop's Preſenting; the Intent of the Act is ſatisfied by ſetling the Ordinary Courſe of Preſentations, without Excluding the Prerogative, and the Biſhop muſt take his Right ſubject to the Rules of Law, one part of which is the Prerogative; and it hath been reſolved that the Grantee of the next Preſentation muſt give way to the Prerogative, tho he loſe his Turn by it: And if this Act ſhould be taken Literally, then there would be no Right to preſent by Lapſe, nor Preſentation by the Crown, in caſe of any Forfeiture, or of the Temporalities, being in the King's hands, which would be abſurd to maintain; and ſuch a literal Conſtruction is againſt the Rules and Reaſon of Law, and many Judicial Determinations in the like Caſes.

Wherefore it is prayed the Judgment may be affirmed.