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A25721 An appendix to the queries upon the 25th of Hen. VIII, Cap. 21 containing some further considerations in behalf of the late illegally ejected officers of the Royal Hospital of St. Thomas Southwark, chiefly grounded upon certain passages in the grant of King Edward VI to the mayor and commonalty of the city of London : wherein the royal perogative as to the visitation and regulation of that and other hospitals is vindicated and asserted : and the late regulations in the time of King Charles II are more particularly consider'd and defended. 1690 (1690) Wing A3576; ESTC R25889 16,253 17

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Bishop of Rome or such as he should delegate and appoint and thus much is certain from the nature of things themselves that wherever there is a rightful Power of Visitation there must also be a Power of Redress and Punishment and in some cases of Expulsion and Forfeiture themselves otherwise this power of Visitation were in vain It follows therefore unavoidably from both of these things taken together if the Power and Right of the Lord Mayor and Commonalty of the City of London over this Hospital and its Possessions be but as free and no more as no more is given them by this Grant of E. 6. as full whole and ample as that of any Master of the said Hospital or others formerly was and if the Pope's power in these as well as other matters being abolished is by Act of Parliament devolved upon the King that the King hath all that Power and Right of Visitation as to this particular Case over the Mayor and Commonalty of the City of London by a very plain Inference from the words of K. Edward's Grant that the Pope had formerly over the Master of this Hospital or others or rather indeed a much greater because the Pope's Power was in its nature foreign in its original and root usurped and was attended with many and great Inconveniences to the King and Kingdom whereas the King's Power is natural to gover●●●● Persons and Estates of Men within his Realm it flows from the very nature and essential Constitution of all Governments whatsoever and without it no Government can either be so strong or so lasting as it designs to be But not to insist upon Inferences though so plain so conclusive that nothing can be more there are these very words in the Grant of the said King Edward And We will and declare by these Presents that it shall be lawful for Vs Our Heirs and Successors from time to time as often as it shall seem fit and expedient to assign Our Commissioners to visit the said Hospital and House of the Poor and to do and execute all and singular such other things whatsoever as We Our Heirs and Successors shall there command to be done From which we may observe these four things First That this power reserved to the King was strictly and properly legal in it self being founded upon an express Provision in an Act of Parl. 25 H. 8. c. 21. Secondly That bating the Authority of the Act of Parliament this is a Reservation so reasonable and just that it cannot be denied to any private Donor to appoint other Visitors as there shall be occasion to visit the ordinary Feoffees entrusted by him and to see from time to time that they be diligent and faithful in the discharge of their Duty Thirdly That this is a plain and categorical Vindication of the Regulation made in this and other Houses in the time of K. Charles II. supposing that they have also this Clause of Reservation for then he was so far from straining the Prerogative and from having acted after an illegal arbitrary manner as some that are very illegal and arbitrary themselves will needs have him to have done that it is plain he had an Act of Parliament and a Royal Grant on his side and both of them implied such a Trust committed to him as it concern'd him in Conscience to look after Fourthly and lastly The Regulations made by that wise and good Prince in pursuance of this double Trust committed to him cannot be evacuated by the ordinary Trustees and much less by no power at all of which more shall be said in its due place for then this Reservation of K. Edward this power given by the Act of Parliament were both of them absurd monstrous ridiculous and vain and this concerns as well some that call themselves Governors as others that pretend to be Officers of this House In the third place K. Edward in the said Grant appropriates unites knits and incorporates to the Mayor Commonalty and Citizens of the City of London and their Successors c. the Parsonage and Church of St. Thomas Southwark From whence we may observe 1. Bating that the word Appropriation is a term particularly respecting Rectories or Parsonages as is here expressed that as to the true Propriety which the Mayor and Commonalty of the said City were by this Grant to have in either of them the Hospital and its Revenues and Demesns were as much knit united and incorporated to the said Mayor c. as the Parish Church or the Glebe Tithe Obventions Oblations c. thereunto belonging 2. That notwithstanding this knitting uniting and incorporating which are words expressive of the Union yet the King did still reserve to himself his Heirs and Successors as hath been seen an express Power of Visitation as often as it should seem fit and expedient in the same Grant so that he might lawfully have visited notwithstanding this Incorporation that is notwithstanding the Corporation to which it was annext should always remain a Body Politick or Corporate without any surrender seizure or avoidance of their Charter 3. From hence it appears that the Visitation of the Hospital and the avoidance of the Charter whether right or wrong are clearly and manifestly two distinct things that they have no necessary dependence upon or Connexion with each other and that a Visitation of the Hospital by the King is legal though the Charter be standing and in full force 4. From hence it further follows though the Charter be restored yet all those Regulations which were made by K. Charles II. by a Power derived not only from the Grant of K. Edward but from an Act of Parliament 25 H. 8. c. 21. are still binding and valid by Virtue of that Act the said Regulations as to the matter of them being supposed to be legal and that neither the Officers nor Governors that were then discarded can lawfully be restored for this were to suppose a Visitor superior to the Supreme nay that the delegated Power which is supposed to be visited for its Faults and Failures may correct and amend that Power to which it is by Law subjected it were to imply that a legal Act may be illegal and arbitrary at the same time for if it were legal why should it not be valid and what an Absurdity is it in this Case for Substitutes and vicarious Agents to correct their Principals of whom they hold and from whom all their Power and Authority is derived or would not this in its Consequence be to invert the nature and the order of Government and to bring all things into confusion if Inferiors shall at every turn correct and alter the Establishments of a Superior Power when they cannot help confessing them to be legal and when they are made to be so by the same Law of the Land by which every Man enjoys his Property and holds his Estate It remains therefore that neither the Governors nor Officers ejected by King Charles II. can
legally be restored by a subordinate Power though by the Prince who is always the same and may be sometimes supposed to alter his Mind for Reasons best known to himself they might be if it were not for a Cause that shall be mentioned in its place which would make the Restoration of these Men to to be materially illegal by reason of some Incapacities which they labor under as shall be hereafter shewn In the mean time we may be assured that the Parliament did never intend when they gave the King this Power and Right of Visitation that it should be be made fruitless and vain by the absurd Encroachments of a Power subordinate upon it for this were to write an Act of Parliament in the Water or the Air where the Impressions vanish as soon as they are made as such a cross Contradictory and perverse Intention if it could be supposed possible to be imply'd would at the same time perfectly destroy what the Letter of the Law had given and render the sense of all Acts of Parliament and of all Writings whatsoever without the help of some infalible Interpreter whom we know not where to find precarious and uncertain For let Men say or write what they please and with never so much seeming Perspicuity and Plainness yet who knows at last but they may mean and intend the quite contrary to what they say and so there is an end of Laws and of Humane Conversation 5. It goes on to follow whether we will or no for Consequences will follow one another in their course and order that all that hath been done since the 24th day of January 1681 9 when pretended Orders were issued out at Guild-Hall for the restoring those Officers that were ejected by the Commission as the ejected Governors had likewise been restored by the same means not long before was a manifest Usurpation on both sides as well on that of the pretended Governors as of the pretended Officers acting under them upon the Law of the Land and the known Rights of the Subject the Commission still continuing for the Reasons that have been given in full force and effect 6. The Officers that intruded themselves or were imposed upon the House by an illegal Authority against the Consent and open Protestation of those into whose Places they came ought not to be considered for their respective Services so much as by way of quantum meruit but the whole Salaries from that time to this are due to those that were wrongfully dispossessed and it seems but reasonable that the Law should allow them somewhat of Reparation for the Damage and Detriment they otherwise sustained by such an illegal and undue Ejectment 7. Those Governors who have been chosen since the 24th of January aforesaid or thereabouts by sending of Green Staves as the Custom is to their respective Houses from a pretended Clerk at the Instigation or Appointment of any pretended Governor or Governors whatsoever have no power to act under that Name and Notion their Authority having been shewn so manifestly to rely upon a false Ground and to stand upon a Bottom that will not support it 8. The Officers that were appointed by Commission under the Great Seal are the only true legal Officers and have been so all this while because the Effect of that Commission still lasts which depends upon the King's Power and Right of Visitation even when the Commission it self is actually dissolved tho' it is not denied but upon the Dissolution of the Commission and the Restitution of the City Charter the ordinary Power returns together with it and that those who were placed by the Commission may in this Case be displaced after Admonition for Misdemeanor in their respective Charges of which the ordinary Visitors upon the return of the Charter and the Dissolution of the said Commission are the immediate Judges yet so as that there still lies an Appeal to the Supreme 9. The whole Administration of the Hospital of St. Thomas Southwark from the term aforesaid till this present time hath been manifestly vitious defective and void in Law those that acted by Commission having joined and acted mutually together with those that were ejected by it by that means disowning the Authority of the Commission which is the only legal Refuge and Defence they have and owning that of an unjust and Arbitrary Power which hath no manner of Color or Pretence to justifie it self though this being done by them for the good of the House and in compliance with the present emergent necessity of Affairs for a laudable and wholesom End they are not only to be excus'd but commended for it and the Acts which they did jointly being for the most part things of course in the ordinary Management of the Hospital Affairs which must otherwise have fallen to the ground to the great disappointment of the Charity and Munificence of our Royal Founder the said Acts excepting only the appointment of new Governors for which there was no necessity ought to be esteemed had and taken for valid to all intents and purposes whatsoever though they be not so in themselves 10. Though there were such an inseparable Connexion betwixt the Charter and the Hospital as is pretended that the King could not visit or regulate while the Charter stood which we have proved there was not and that even the restoring of the said Charter doth not at all affect the Visitation made in the time of K. Charles II. yet the Charter being voided and Judgment entred up against it that Judgment though false and erroneous must continue to be valid till the Error be represented and argued and the Case set right in a Superior Court that is to say the High Court of Parliament for there is no other in this Case Superior to the Court of King's Bench so that thus far at least the Commission is justified from the necessity of it when there was no Charter and so are all that acted under it unless we would have no Government or unless Judgments may be reversed with a wet Finger without any legal Process which it is hard to imagine what way it can be done without overthrowing and confounding all Justice in the World Thus far therefore we are safe in our Employments and ought to have our Salaries for the discharge of them or for but offering to discharge and execute the same if we be violently hindred from so doing till the Charter be renewed at least and the ordinary Jurisdiction of the City of London restored though none of those things were true which we have represented concerning the King 's separate Right to visit by Commission and the Validity of those Acts that are ordain'd by it which we humbly conceive to be unanswerable and so very plain that the subtilest of our Adversaries can have nothing to say for themselves These are the natural and unavoidable Consectaries from the Consideration of K. Edward's incorporating and uniting the Hospital and Parish of St Thomas