his admission into this place the first was thought a figure peculiar to the Jesuits but now it seems the Schoolmasters have â—â—â— it too God grant they do not teach it their boys the Second besides that it was a very shameless evasion in it self was a very mean affront and 〈…〉 nity put upon me as if I were so silly to swallow such weak answers â—or â—â—â—â— and Substantiall things Heaven help the good Gentleman and instruct him better by a ray of light from thence for his noddle is as shallow as the 〈◊〉 is high as cold and as numb'd as the grey head of Brecknock where the snâ—â— is a perpetuall Incumbent all the year even when the Sun returning brings his Quo Warranto against the Winters Charter or if two Learned 〈◊〉 please him better because he pretends to something of that same let it be Rhodope and Haemus if he will for the Top of Parnassus he hath nothing to do with although he be a Paedagogue and to that of Olympus I am sure he will never come unless he mends his manners I know Mr Hughes urgeth in his own defence he did it to me in a short Conference which we had together that though it is true he were incapable by Law to execute any Ministeriall Office in this place when first he came to it and for a great while after yet at last he leapt into a Cassock and a Girdle the knot of which was a great deal Lower then it should be and that his peaceable Enjoyment to be computed from that time to the time of his Ejectment was to be interpreted as a new choice and is to looked upon as a tacit consent in the Governors who made no objections but suffer'd him to go on silently and smoothly in the execution of his Charge and I am content upon one condition that this Argument shall pass Muster in his behalf and that is that he refund to the use of the Poor of this House or to the Ornament of that Chappell which he had converted into an Illegall Conventiele all that ill gotten money amounting in all to about 200 pounds of which he robb'd the King Cheated the Hospitall and bereft the Church by withholding it from some other Person more capable and more deserving which is no more then what I think he is bound in strict Conscience to do he being the first man I believe to be met with in History that ever received a Publick and Stated Pension for a Publick and continned act of Disobedience and Contempt to the Laws of his Country a Pension from the King in the Kings own House who is the Guardian and Executor of the Laws he broke But yet supposing the connivence and sufferance he speaks of to have signify'd as much as a choice or Approbation yet he was Legally ejected notwithstanding this by a Legall Authority abundantly Paramount to that Illegall and Arbitrary little Power by which he was first introduced into his Place it was done by the King the Supreme Visitor and Ordinary of this House whose hired Servants we all are and may be Ejected at his pleasure without any wrong or injustice when ever he is weary of our Service or is disposed to take other Servants in our stead But I fancy I know Mr. Hughes his Temper so well that he will never consent to this costly Proposition of part with such a sum of money to appease a Conscience which is by no means squeamish and that he would rather have staid at home quietly in the Country then have taken such a troublesome and expensive Journey to meet with such an irksome demand that had been made by those that have Power to exact its performance For it is plain he received this money in the Hospitall's wrong and that in strict Justice he is bound to Restitution Wherefore since Mr H. will not part with his Coin he must not take it ill if we stick close to our Argument and to him by disallowing and Protesting against his tacâ—t consent for 't is plains this Notion of a tacit consent involves the Court of Aldermen and the King and all the Superiors as much as it did those honest and worthy Trustees who broke their Trust when they chose him For they did therefore only not oppose this choice because they knew nothing of it they had no notice or Cognisence of the matter and it is as plain that neither the Court of Aldermen nor the King would at that time have suffered it had a due and particular Representation of the matter been made not the Court of Aldermen who were all of them Members and Communicants of the Church of England and much less the King who would never have consented that the Panegyrist of Traytors and the vile assertor of his Fathers Parricide should eat of his bread and live upon the fruits of his bounty and if this did still lie heavy against him even after his Admission into Holy Orders then the King who was the First Visitor and Inspector of our Affairs can never be supposed in any reasonable Construction to have given his Tacit consent so that in all this affair tho' we should admit a tacit consent of the Subordinate Powers yet the Court of Aldermen and the King not concurring it was a consent of Deputies against their Principalls which is a void thing in it self and is as much as no consent a consent to that which they were obliged by their trust by their duty to their Principalls to disallow I shall not here trouble my self to compute how many infractions M. Hughes made upon the known Laws of the Land every minute was a repeated breach For after three years that he was possest of this place it is enough that after his Conformity to the Church he was Guilty of very gross and Scandalous neglects of his duty of which I shall say more hereafter and this is Sufficient to destroy his Notion of a Tacit consent for nothing ought to be tacitly consented to that cannot be explicitly and fairly defended Mr. H. his not being in Orders for so long a time his having abused the charity of the house publickly affronted and mock'd the laws of the Land cheated the King and interverted the publique Revenue to an illegall use was reason enough to justify his expulsion from hence notwithstanding his halt conformity for about a year or two before he left it and if the King as a master had not had a legall arbitrary power to turn away his Servant as every master hath even without a fault yet I hope it was a sufficient reason for a Son to proceed upon that he had justify'd the Murther of his Father and it was still a further aggravation that in his proper business as a Chaplain to the house after his pretended conversion to the Church of England he was so grossely neglectfull in the duties of his office so that if ever Servant was legally turn'd away it must be
matchless a worthy and if this man should happen to be the same with the t'other I doubt me he hath not yet repented of his Treason for this is treason too it is treason against humane Society which such principles and such practices would certainly destroy and this is the very foundation of Treason against Princes whose Persons are so Sacred above all other men not so much upon their own private account as for the sake of the publique which is highly concern'd interested in their safety and suffers in all the injuries they receive and thus much may suffice for the Character of Hugonides and his Freind whom I would not have treated at so rough a rate but that they have turn'd raillery into a pertinent thing and made it so absolutely necessary for me to expose them that it may appear at least there is no merit of congruity betwixt my small preferment and them What hath been said hitherto hath been upon occasion of the Stating of the Case as it was represented to Three worthy Gentlemen learned in the Law in order to obtaining their Opinions upon it I come now very briefly to say something with relation to the Opinions themselves by all which it is agreed that the ordinary Power of Visitation and inspection into the affairs and Officers of this House is in the Governors for the time being that is to say First in the Lord Mayor and Court of Aldermen and Secondly those other Gentlemen and Citizens that are deputed by them or allowed by their permission to manage and Transact the Hospitall Affairs and that the respective Officers belonging to it are not Charter Officers that have a fixt Interest and a setled right but only Servants at pleasure receiving wages for their work and to be dismist at discretion when the Governors think fit though behaving themselves well in their severall Employments they may be said to have an Equitable right and that it would be an Hardship in the Governors which they could not justify to themselves to turn them off against their wills in such Circumstances as these but however these Opinions do at least say thus much for us that the Persons claiming against us have no Legall right and that there is no necessary Connexion betwixt the Regulation of the Hospitall and the Restitution of the Charter so that Mr Hughes is very much out of the way when he insists so unskillfully upon a Legall right and proves himself to be as bad a Lawyer as he is a Divine or a man. But yet I confess there is one thing in the opinion of that great and Excellent Person Mr Sergeant Pemberion which I cannot perfectly assent to though I should not presume to own a difference in matters of this nature from a Person so profoundly Learned in his Profession but that the Success of our cause does in some measure depend upon it he is pleased to say that upon the Restitution of the Charter and the avoidance of that Commission that supply'd its place there were no Governors left either old or new but that it was perfectly at the discretion of the Court of Aldermen to regulate and order all those matters as they pleased but in an humble Opposition to this I presume to offer that the King being at all times vested with a Power of Visiting the Hospitalls and of making from time to time such Regulations in them as to his Princely Wisdom shall seem most meet and Expedient though the Commission be dissolved yet the Regall Power and Authority still remains and what a King hath done by vertue of his Legall and rightfull Power always inherent and vested in his Person that nothing less them a King can destroy so that those new Governors being a Constitutive and Essentiall part of this very Regulation they must stand Independent from the Court of Aldermen till the King declare them to have nothing to do in this House and the old ones that were Ejected whether Officers or Governors cannot be readmitted without the Kings consent the Kings Authority and the Validity of it in all those Acts to which it extends it self being always the same though indifferent Persons that are invested with it so that in all the Legall Jurisdictions of a King it is ille aperit nemo claudit he openeth and no man shuts he shuts and no man opens nothing but a King can dissolve those Obligations or annull those Rights which a Lawfull King hath Establisht And indeed it were a great incongruity in the King very unbecoming either his wisdom or greatness and a great diminution to his power if he should erect and constitute a Commission to regulate abuses in such things as do naturally and legally belong to his visitation and inspection and yet when the Commission was disolved the regulation should cease which would be to as little purpose as if no such regulation had ever been made only it would reflect a disparagement upon the King as weak and inconsiderable and pretending to more power then really he had for that regulation which is actually dissolved after the dissolution of that Commission by which it was made must needs have been unjust and unlawfull before it for lawfull and just things will-endure Nay I appeal to all the world what confusion it would introduce into the affairs of the City if all the acts of the Commissioners for the space of five years together should by the expiration or dissolution of the Commission be rendered null and void though yet upon supposition that the Charter could not be voided which I do not concern my self whether it could or no the Commission was so far illegall if we look down to it's root though its necessity may perhaps plead something in its excuse as I have hinted before but as for that branch of the Commission which concerned the Hospitalls it was as I have shewn strictly legall and therefore all those acts which pass'd under and from it of which the election of Governours and Officers were two must need be legall and consequently valid No Mr. Hughes do not please and flatter your little self with vain imaginations the regulation is as valid as the first authority from whence it sprang and that is the Kings though the Commission that managed and ordered that whole matter be now actually dissolved and I think I have given so very good reason for it that even your own impudence that face of yours which is your unquestionable Property and is peculiar to your self cannot without some small discolouring some streaks and Essays towards the Modesty of a blush oppose it any longer But yet I grant that though the Governors do manifestly hold by a Superior Tenure to any that the Court of Aldermen can give them yet the Charter being restored the Ordinary Visitation and Inspection of the Hospitall returns together with it and the Aldermen in the Course of things and in the Right and Power of Administration being Superior to
and Citizens of the City of London for the benefit of Sick and Lame indigent Persons with liberty in his Charter reserved to visit and enquire into the management of the trust According to the usage of the City the house hath been always governed by Citizens and others appointed by the Court of Aldermen the Governours of the house for the time being and the Court of Aldermen according to the laws and customes of the City chose A their Clerk. A Quo Warranto being afterwards brought against the City and Judgment Anno 1683. being thereupon had and enter'd a Commission was thereupon granted to certain Aldermen and others to regulate the said Hospitall and inter alia to appoint Governours and Officers of the house The said Commissioners appoint B. to be Clerk of the house instead of A. during the pleasure of that Court of Commissioners His Late Majesty James the Second when this Case was stated restores to the City their antient government Lands Tenements Franchises Priviledges c. and soon after issues out his Proclamation for restoring Corporations c. dated the 17th of October 1688. and dissolves the said Commission The Case being thus stated the question is Whether by the said restitution of the Charter c. and by the said Proclamation or either of them B not having been discharged of his office by the Commissioners A hath any right to be restored to his office of Clerk especially if the Court of Aldermen hath since the restitution of the Charter confirmed all officers belonging to the City in their respective places and the right should appear in that Court to choose a Clerk of the said Hospitall Sr. Francis Pembertons resolution of this Case I conceive that the Court of Aldermen being the persons who authorised the Governours of this Hospitall by their order when the Corporation of the City of London was dissolved by the Judgment in the Quo Warranto the authority of those Governours of the Hospitall ceased and they cannot act again without a new order or appointment of the Court of Aldermen and I conceive the King's proclaimation in October 1688. doth not give any Authority to the former Governours of the hospitall to Act by the former Authority to them given by the former order of the Court of Aldermen but they ought to be Commissionated by a new order before they Act as Governours I do apprehend this place of Clerk to the Governours not to be a standing Office but rather an Employment in it's nature to be put in or out by the Court of Aldermen if they please or if the Court of Aldermen please by the Governors but such Clerk hath no fixt interest in his Employment and A. hath I conceive no right to this place unless be should see a new chosen and appointed thereunto by a new Order and the Kings Proclamation in October extends to the enabling and empowering all members Officers of Corporations to act as they might have done before the Quo Warranto's were brought but that extends only to what they might do as members or Officers of those Corporations but not to any collaterall matters which they might have done by virtue of any collaterall Commissions derived from those Corporations as the case of these Governours and clerk of this Hospitall are And I conceive that any Governours of this Hospitall appointed by those who acted as Mayor and Aldermen of London by virtue of any Letters Patents since the Judgment in the Quo Warranto are all disabled to act or do any thing as Governours Letters Patents to those Mayors and Aldermen being set aside by this Kings Proclamation in October last and all the authorities derived under those Letters Patents as depending on them falling with them Fr. Pemberton Mr. Pollexfen's Opinion of the same Case I conceive that the Clerk hath not any Office or Estate but is only a Servant to the Governours not within the Charter of restitution or the Proclamation claiming any legall right or interest but is at will of the Governours and they at their will and pleasure may put out or take in or employ in the place whom they think fit Hen. Pollexfen Jan. 11. 1688. Sir John Holt's Opinion to the same purpose I conceive that the Clerk not being a Charter Officer is not restored by the Kings Proclamation which extends only to such Officers and members of the Corporations which were made upon the Originall constitution or by virtue of some Charter but the Clerks place is only a Service or an imployment which is wholly at the disposall of the Governours as they shall think fit J. Holt. January 15. 88. The First observation I shall make from hence shall be taken from the stateing of the Case it self wherein it is set forth that this Hospitall being Founded by King Edward the Sixth the care and trust of it from time to time was committed to the Mayor Aldermen and Commonalty of the City of London reserving to himself and Successours a liberty to visit and enquire into the management of the trust and without any such express reservation in the Charter it self it is but reasonable and Just that in all Hospitals that are of Royal Foundation the King should be the proper and Supream Visitor because without this the King and his Successours can have no Assurance but that his Royal Intentions may be disappointed his Charity Embezled and the trust which is reposed in certain Persons for the due management of it betrayed and besides the Nature of the thing added to the express reservation of our Royal Founder in his Charter the King by Act of Parliament is the Supreme Visitor of Hospitalls and Publick Charities to see that they be conferred upon fit and suitable objects and managed by Officers well qualify'd for their Employments Now from hence it appears that the avoidance of the Charter and the Regulation of the Hospitalls that Followed quickly after it have no manner of Connexion with each other it is true indeed that after Judgment was had and entred against the Charter all trusts that were reposed in the City as a Corporation did of necessity fall together with it but yet it is Equally true that the King might have visited and regulated this and other Hospitalls though the Charter had stood he being Supream Visitor and Inspector of the same but more Especially of Royal Hospitalls that owe their Foundation derive their Constitution and receive their very being from the Crown so that it is plain that the old Officers might have continued in this house if the King had so pleased notwithstanding the Charter of the City was made void and that the destruction of the Charter had no immediate or consequentiall Operation upon the Officers of this House they not being Charter Officers but Persons Employ'd in a trust under the King whom he may always place or displace at his pleasure and of whose fitness and capacity for their respective Employments he is the Supreme
and unaccountable Judge What therefore can the man do that cometh after the King Eccl. 2. 12. Or what inferiour Authority can annull that which the Supreme hath ordered and appointed To be plain in a Case that is not to be dallyed with my meaning is this that during the Life of that Glorious Blessed Prince King Charles the Second it would not have been Lawful for any inferiour Authority though the Charter had been restored to displace any Officer of his Appointment in this house by virtue of any Arbitrary Power lodged in them without a cause of Misdemeanor or of incapacity particularly assigned represented to the King himself whose gifts that are properly and Legally in his disposall cannot be taken away by any subordinate Power without his consent First had and obtained in the matter But yet I grant that now after the decease of that incomparable Prince and the Restitution of the Charter all the Trusts that were Formerly lodged in the City do naturally return together with it and that the ordinary Visitation of this Hospitall is in them unless the King and Queen shall please to interpose which they may by Law do as often as they think Fit and take the Jurisdiction in General or the ordering of any particular matter or affair into their own hands but yet still it continues good that that which was Legally Establish'd by a Lawfull and rightfull King cannot and ought not to be changed or altered by any Subordinate Power or Authority whatsoever without a Cause assigned without a Grievance prov'd without a fault alledg'd in the Person that is intended to be displac'd because this is not so much to claim a Jurisdiction over A. or B. to whom I grant as Governors they are Superiour but to Challenge and Arrogate a Power to themselves Superior to that From which alone they derive it and that is From the King which all Men must needs see to be impossible absurd Neither let any man here object that we were placed here by the Kings Commissioners not by the King himself and that the Commission was Arbitrary and Illegall For First it is a Maxim in Law and reason quod quis facit per alium Facit perâ—se what the King does by his Commissioners he does by himself and though I will not meddle with the Legality of the proceeding in the avoidance of the Charter and entring up Judgment against it yet thus much I will say that the Charter whether right or wrong being Actually voided there was no way left to manage the Affairs of the City but by Commission from the King and that what is necessary in the present Circumstances for the quiet and peaceable Administration of so Populous a City may be said at least to have Secondary Lawfnllness a Lawfullness deriving and holding from that necessity though that which gave occasion to it should be allowed and admitted to be Illegall a Controversy with which I have nothing to do which I do not pretend to understand but as for that part of the Commission which concern'd the Hospital it was in Vertue of a Power which was always vested in the King and which he might always delegate to whom he pleased so that all the Acts they did in this affair were unquestionably valid and Lawfull in themselves and cannot be cancell'd or evacuated by any less Authority without a reason of Equity or an Emergent reason of necessity assiign'd Suppose the King and Queen should graciously commit to the Mayor Aldermen and Commonalty of the City the care and management of the Tower of London and the disposall of the Places of Constable and Lieutenant and Master of the Ordinance c. they shall still be presumed notwithstanding this to reserve a Power of Visitation to themselves it is reserved in the nature of the trust though it were not expressly and positively provided for and so it is here the Kings Charity is as much and as naturally in his own disposall whenever he pleaseth to concern himself about it as his Arsenalls or Magazins and indeed the difference between these two is no more then that by the one the King provides for the Safety and defence of his Subjects and by the other he relieves the necessities of those by an effect of his mercy whom all his power cannot defend against the wants and Infirmities that are and will be always incident to humane Nature and it is but fit he should be satisfy'd whenever he desires it as to the Conduct and management of one of these trusts as well as of the Other If the King notwithstanding such Commission should after Enquiry and Visitation made displace the respective Officers in the Tower and put others in their stead there is no man living I believe in this case that will pretend to dispute his unquestionable right in doing it neither would it be Lawfull to displace them without his consent though in all other matters and in all Future Elections when a Vacancy shall happen the Commission should still continue the powers to act under it remain entire as before but their Commission cannot extend to things already determin'd by the King because the Kings authority is the Fountain of their power and to reverse his determination without a reason of equity or necessity is to disown that authority under which they act and by consequence to disannull their own for rivers must be dry when the Fountain is destroyed If a man be Tenant to a Landlord and have a lease under him he performing the Covenants that are stipulated between them he cannot be ejected out of his Farm or deprived of his Tenant-right which is a sort of secondary Frcehold so that he may renew his lease from time to time and ought to be considered caeteris paribus beyond any other pretender this being a kind of Charter-Office under the Lord of the Fee but if a man take a Servant without any other condition then that of paying him wages for his service he may part with him at pleasure for a good reason or for none at all for the law does not tell us who shall be are servants â— or oblige us to â—â—ep them who her we will â—â—honi which were in some sense â—â—â—◠〈◊〉 our 〈◊〉 our 〈◊〉 and I to 〈◊〉 order of Government 〈◊〉 of things but we may kâ—â—â— whom we please and as long as we please and dismiss them 〈◊〉 humour as well as for a reason If therefore â—â—e in this Hospitall are Servants to aâ— Master receiving wages and Salaries for our work which Master is first of all the King and Secondly a Corporation entrusted by and under him there is 〈◊〉 question but that the King in whom the first power is lodged may eject 〈◊〉 〈◊〉 or Mr. 〈◊〉 at his pleasure and we cannot complain of any legall wrong neither can we renew any pretentions for the future 〈◊〉 the 〈◊〉 of a legall right we never having had any other sort of right
then what was orbitrary and dependent upon his will but a Corporation acting under him though the generall 〈◊〉 be actually 〈◊〉 upon them yet they cannot displace a particular person whom the King hath chosen with out first representing to his Majesty the reasons of it in order to the obtaining his consent so long as he is alive For a deputy a servant can do no legall act in opposition to the principall from whom the power is derived but they may and ought to represent their reasons if they be of consequence to the good of the house and if he will not Dear them they have discharged their duty and ought to be content with the honour and satisfaction of having endeavourâ— to do justice and of having eased their consciences of the guilt that would have lain upon them by a willfull neglect of the trust committed to them and after his decease as it is in our case only the Successor can destroy what the Predecessor hath done out of the fullness and plenitude of his power it being as impossible for a lesser power to destroy the act of a greater as it is for a private man by virtue of any private authority and right which he may assume or fancy to himself to chuse whether he will obey an act of Parliament that concerns him 〈◊〉 be 〈◊〉 with by another act of equall authority in its legislative originall and of greater in its post liminious application because it supercedes the obedience to the other and for any lesse power without a reason given or an application made to the Sovereign then in being to reverse what the 〈◊〉 by his own rightfull power hath ordained is for servants to assume that dispensing power to themselves which they decry so loudly and so desprvedly in their Masters for there is no right in nature but legall right and for any that have not authority to reverse the legal act of a superiour power must needs be inauthoritative illegall and void If this argument which I design only to justify my self and to shew upon what bottom my title to the place of Hospitaller stands does in its application prove too much and extend it self to others as well as my self those Gentlemen that claim and are actually repossessed upon the restitution of the Charter may thank themselves for solliciting Mr. Hughes to come up and renew his crackt and illegall pretentions and for making this defence which I would have been very glad to have let alone to become as necessary with respect to me as is is just and honest in it self If the Right Honourable the Lord Mayor and the Honourable Court of Aldermen to whom I pay all that deference and respect which their great quality and Character Justly calls for shall look upon this as written in derogation to them and to the power and trust committed to their Honourable Court I humbly hope when they have duely considers of the matter they will concurr with me and that if I should maintain the contrary position they would think themselves concerned out of a principle of Loâ—alty and duty to eject me out of this house that it is by no means a dâ—minution to their just Rights in those things which the Sovereigâ— hath not determined to acknowledge his Legall Sovereignty in thâ— which he hath For the King acted in the Regulation of this House 〈◊〉 〈◊〉 Virtue of any Arbitrary Power which he unjustly assumed and arrogatâ—â— to himself but by such an one as is inherent in him by the reserve in thâ— Charter of the Royal Founder by Act of Parliament and by the very Nâ—ture and reason of the thing by which he must always be supposed to be invested with a Power to see that his own Charities be rightly disposed The King is the First Visitor of this Hostell de dieâ— this House of Invalids the Lord Mayor and Court of Aldermen are the Second acting by a Power derivative from him and therefore it is plain they cannot resâ—ind an Act of his which would have been Legall in it self because all Legall Acts done and passed by a Legall Superior Power cannot be rescinded without the consent of the Sovereign by any Subordinate Authority acting under it because this were to rob and deprive him of that Supremacy and to assert his Prerogative to themselves and if that grave and wise Assembly in this hurry of Affairs have yielded a little too far to the Sollicitations and Importunities of Men without a Title and proceeding upon a false Erroneous Hypothesis of the Restitution of the Charter which hath no manner of connexion with our Case yet a Facto ad jus Consequeutia non valet the Fact and the right are two things and the Judgment of that right in what Persons it is placed we humbly conceive with all imaginable submission to the Court of Aldermen lyes unquestionably before the King whose just Power in this or any other matter I hope it will never be a crime to maintain For as one Act of Parliament cannot be repealed but by the Act of another so the Act of a King in those Affairs wherein he hath a proper cognizance and Legall Power can only be rescinded by himself or his Successor in the Imperial Seat unless they be such Acts as are Limited by time as in the affair of Parents or Temporary Proclamations or the like and then at the expiration of that term they die and are repealed of themselves so that having been placed in this Station by one King and allowed by another I trust his present Majesty shall have no occasion to think any otherwise then Favourably concerning me and I rely upon the Grace and Goodness of King William and Queen Mary that the Gift of Gods Viccgerents will still be without repentance as well is those of the Divinity it self That I appeal to the Throne it is because I see the whole affair lying so naturally prostrate at the Footstool and that the Judgment of it cannot appertain to any other Court or Judicature whatsoever till it be remitted from thence and I shall very willingly acquiesce in the Determination of that Power in whomsoever it is lodged is being too little an Imployment for the thoughts of Princes that have so vast objects to exercise themselves upon to whomsoever the Sovereign shall please to referr it but more especially I repose an entire confidence a Fixt unshaken and I had almost said a demonstrative assurance in the Favour of that Honourable Court to which the ordinary inspection and Visitation of this house belongs being in some sense an Orphan of the City left destitute by a good but an unfortunate Parent that was undone in part by the Fatall Conflagration and in part by other accidents incident to Trade I have a great deal of reason to expect from such a Constitution where the Lord Mayor next under his Majesty whom God preserve is my Political Father the Aldermen my Guardians and the Commons all allyed
the Commons of the City and much more to any among the Governors that are not Free of the City they may so tye up the hands of the Subordinate Powers as that they shall have no right to any thing but their Green Sâ—aves and cannot move one step in any Emergent bus'ness of the House without the direction of the Court of Aldermen or at least their tacit consent so that I confess the Aldermen have Fully retrived the exercise of all their Power in all Emergencies that shall happen de futuro and in all matters which the King hath not determin'd and which none but the King can Evacuate or disanull and have left the others little or nothing but the Stile and Title of Governors of which I conceive they cannot be divested without the Kings express or at least implicit concurrence by referring the whole matter to the Honourable Bench but for us that are Officers it is a little otherwise it is true we are at his Majesties disposal as well as the others but only that during his Majesties pleasure we know our respective Places and our Stations and are obliged to act in our respective Spheres otherwise the business of the house must be at a stand and by consequence the Royall Charity be disappointed and this is true likewise as to our Masters themselves as to some particular Acts that is of taking in the Sick and dismissing the Sound or the Incurable and auditing the Accounts but only they can make no new order as a Court without the Express or at least the tacit and implicit consent of the Court of Aldermen It is no derogation to that great and wise Court to say that the King is their Superior not only in Generall in his Transcendent Dignity and Power but more particularly in all those matters which belong naturally and Legally to his inspection and care though by the Charter of his Royall Predecessor the ordinary administration of that very Province be committed to them For this I am sure there is none of them but will very readily grant and Zealously assert that the King is their unquestionable Superior in all Lawfull matters and that the King of England never dyes but is always the same we do very willingly acknowledge that by the Restitution of the Charter their old Authority returns together with it only that that Authority hath now a Partiall and a Temporary restraint upon it by the King who is the Fountain of that Power by which they Act his having already determin'd the Rights and Stations of some particular persons and we say we are legally possessed of our respective places till we are legally ejected that is till it be done by an equall authority to that which put us in or till the King please to determine otherwise concerning us either expressely or by returning back to the Court of Aldermen the entire ordinary power of visitation which it doth not appear to me that he hath yer done in things that by the Royall authority have been already determined and ought to stand firm till they be annull'd by the same and I do not speak this neither would I be so understood as if I were afraid of the Judgment of that Honourable Court for I know their Justice their Goodness their Integrity and Candour and am not afraid to throw my self upon it but I have said this for no other reason but that in my apprehension upon the best and most impartiall judgment I can make of things it is the true state of the Case and I hope his Majesty will not be offended with me for having thus largely vindicated his Royall rights though in an instance of greater consequence to us his poor Suppliants and Servants then himself and I entreat the Right-Honourable the Lord Mayor and the Honourable Court of Aldermen to consider that it is not we that encroach upon their rights or pretend to dispute their lawfull jurisdiction but it is they who upon grounds which they cannot justify would supplant us for they pretend a legall Claim upon the restitution of the Charter which is to disown the ordinary Jurisdiction and to put themselves out of the discretion of the Court upon a bottom of legall property which they have not whereas we do not disown it upon any other account then only upon an Emergent point of Law particular to the circumstances we are in in which the Kings honour and prerogative are concerned It remains now only that I consider as clearly as I can the circumstances peculiar betwixt Mr. Hughes and me as to the right or equity of our Case and I think in generall it is already proved supposing Mr. Hughes to have had a legall choice when he first made his entrance upon this little preferment yet that he was legally Ejected that is Ejected by virtue of that Authority-Royall which hath reserved to it self in the very Charter and Constitution it self besides other reasons that do naturally suppose and justify such a of visiting and inspecting the affairs of this house with a non obstante to all former orders of any inferiour and delegated power concerning them and if these two authorities may mutually reverse what either of them hath at any time ordained then Superiority and Subjection does manifestly loose their nature and there is nothing but disorder and confusion succeeding in their stead for no Government can stand in any place whatsoever where there are two contrary Authorities dissolving one another and rescinding each others Constitutions and Decrees Mr. Hughes being therefore â—ejected by the King and I by the same Authority put into his place does in vain insist upon the Illegality of my choice or upon the Firmness and validity of his own unless he can shew an Authority Superiour to that by which he was ejected and I chosen which was done as he knows very well by the Supreme Ordinary and Visitor of this house or unless he can give a reason why a Master of an house may not act with his servants after an arbitrary and unaccountable manner so far as the retaining them in his house service or the dimissing of them from it is concerned and since he cannot say any thing to the diminution of one King especially in a matter of incontestable right which does not equally strike at the unquestionable right and prerogative of another he will do well to tread gingerly upon so tender a point and to speak very softly concerning it and yet when he hath done and said the most he can the Hospitall though they may possibly pretend to be exempt from Episcopall Jurisdiction and if they had not pretended to thus much at least Mr. Hughes had never come thither yet they will never I hope be exempted from the Kings and will not only remain to be a reall though lame and imperfect part of his Dominions but also the object of his peculiar care who is in generall the Father of his Countrey but more especially the
Order from the Commissioners for the Union that is in effect I had two Legall Orders for the place of Hospitaller and one for the Parish the latter of which two Orders was with his Majesties particular knowledge and Approbation so that it was his own Act in his own House and what more Legall choice then this there can be where the King meddles with nothing but what is Legally in his own disposall as this matter of the Union manifestly was I would be glad to be informed For it is plain that this was not only the Act of the Commissioners who gave their consent as indeed they could not well deny it to what they knew to be the Kings pleasure but more immediately and expresly of the King himself who if he did many Arbitrary things which I neither can nor will defend though in Gratitude I ought not to upbraid him with them yet I hope the Legall Acts of a Lawfull and rightfull King as all men will acknowledge that Prince to have been at that time ought not to be the less binding and valid because afterwards for this was in the first year of his Reign he did several things which were Arbitrary and Illegall If a Mandate be sent down to any Colledge in either University for the admitting of a Master or Fellow who could not Statutably be chosen supposing he ly under no incapacities by Act of Parliament or by the known Laws of the Realm this Mandate according to the common Practice of the University takes place without any more ado unless there be some great exceptions against the Person or else some other more deserving or more desirable Person be precluded by it in which Case they usually represent back again to the King and Endeavour to get it withdrawn not that they dispute the Kings Power but that they endeavour to encline his will to a choice more agreeable and pleasing to themselves or more for the Interest and Honour of their Society in deferrence to which it is very well known that they do sometimes Court a Mandate instead of refusing it and are glad in such Cases where their local Statutes are a little too hard upon Merit that the King interposeth his Authority Royall for the Encouragement of Arts and the advancement of Learning and that in those Colledges that are not of Royall Foundation yet by such Mandates a Freehold is convey'd the Person invested hath an equall right in at common acceptation with any other Member whosoever But whatever exceptions may possibly be offer'd against this practice in the Universities tho' nothing hath been in repetition more frequent ever since I knew what the University was and a great while before nor any thing in Fact more firm then such investitures by the King's letter yet no man sure will dispute the Kings Prerogative in his own Foundation and a Foundation in the Charter of which there is an express reservation to himself and Successors to inspect and visit at all times hereafter and where the King hath an undoubted and unquestionable right of putting in and putting out when he pleases provided they be not unqualify'd by law for their employments which was Mr. H's Case when he came first to this house who was so unqualify'd by law for his place that even the King himself could not dispense with him in such an house as this I suppose it will be granted that the Kings Mandate ought to take place and I had more then a mandate if more then that can be because a mandate was recalled for my advantage I had the concurrence of the King and Commiâ—â—ioners for an union of the two places that is for an actuall possession and injoyment of them both and what firmer title to a thing of this nature there can be I cannot Imagine and certainly the law would have done very weakly to entrust the King with the disposall of so many and so great Spirituall preferments so as to intitle the persons on whom they are conferred to a Free-hold in the same if at the same time he shall not be allowed to place a Chaplain in his own house of his own or his Royall Ancestors Foundation in the constitutions of which he hath expressly reserved a right of inspection and regulation to himself The Second thing I hinted at with which I shall shut up all is what I have already pretty largely insisted upon but cannot in this cause be too frequently repeated or too heedfully attended to and that is that the dissolution of the Commission by which this regulation was made doth not at all affect the regulation it self so as that must of necessity be dissolved together with it for this were to suppose that an house can be no sooner built but it must tumble and fall down again as soon as the Scaffolds by the help of which it was erected are removed and the Artificers disperst and gone away whereas then indeed it is and not till then that the house appears in it's true Beauty and Strength It hath been prov'd sufficiently already that the King had always a power of visiting this house even though the City Charter had stood so that though the administration of the City and the visitation of this house were both of them intrusted with the same Commissioners yet they were manifestly two Commissions tack't together that were in themselves distinct from one another and the King if he had pleas'd might have put the visitation of this house at that time into other hands and as soon as the regulation had been perfected he might have dissolved the Commission but what a mock regulation had this been what a Scandall and Contempt would it have brought upon such a regulating design as this if the regulation had been dissolved together with it or indeed to what purpose would such a regulation have been and yet if it be not actually dissolved upon the dissolution of the Commission it self then the Governours and Officers must stand as they were till they are displaced by the same or an equall power because in this it was that the regulation consisted Queen Elizabeth by her Commissioners visited the Universities altered their Statutes and made many great and lasting regulations which remain to this day notwithstanding the Commission be not only dissolved but the Commissioners long since dead and mouldered away to dust in their graves And so in the late Case of Magdalen College there is no man of common sense can question but if the Commission had been legall or managed and pursued after a Legall manner but the Regulation would have been valid though the Commission had expired after the business it was intended for had been done otherwise it would have been a Commission as Ridiculous and absurd as it is acknowledged to have been Arbitrary and Illegall This is what I have to say for my self and my Friends and Fellow-Servants in this house but against Mr. Hughes in particular all things are so