A MEMORIAL Humbly Presented to the Right Honorable The Lord Chief Justice OF THE KING'S-BENCH In Behalf of the HOSPITALLER AND HIS FRIENDS LONDON Printed in the Year 1690. To the Right Honorable Sir JOHN HOLT Knight Lord Chief Justice OF THE KING'S-BENCH My Lord THis Discourse which was intended to be spoken to your Lordship in our common Defence containing a full and clear Representation of our Case I do most humbly beseech your Lordship of your love to Justice to accept and consider at your leisure on our behalfs I had not been so hardy to take the part of an Advocate upon me but that I knew nothing when I began to write this and till I had well nigh finish'd it of the other Side 's appearing by their Counsel against us and then it was not for me to pretend to enter the Lists with Men so used to Pleading and so particularly Eminent and Learned in their Possession as they are however having written it at first to satisfie my self and others as well as I could in the true Merits of the Cause we were ingaged in I have presumed so far at this juncture wherein our Affairs are hastening to their Crisis as to publish and expose it to the open view of the World because it may be there may be some things in it which even the ablest Practiser of the Long-Robe distracted by so many Avocations and full of other Thoughts and Business might have omitted These Two things I humbly conceive to be very plain in it First That the Lord Mayor and Aldermen of the City of London cannot restore the Ejected whether Governors or Officers without as plain and manifest a Dispensing Power as that which even the late King assumed to himself for if the Court of Aldermen may put out those at pleasure whom the King by virtue of a Power given him by an express Act of Parliament hath put into their respective Places and if they may restore those whom he by the same Authority hath legally ejected what is this but at pleasure to dispense with the Act it self and to render such a Provision in the King's behalf as vain and fruitless as if it had never been made What is it else but for the Court of Aldermen to challenge that exorbitant Privilege as it 's due which is deny'd and barr'd by an express Act of Parliament even to Kings themselves and all this for Causes so just and weighty from the foresight of the Mischiefs which such a Power may produce and from the Experience of those which it actually hath that they carry their own Sanction included in themselves though no Act of Parliament to forbid or foreclose the Exercise of a Power so Arbitrary and Boundless in it self and in its Consequences so pernicious and destructive had ever been enacted And whether a Court comparatively Inferior however otherwise deserving a due Reverence and Respect from us ought to be allowed to trample upon the just Authority of Kings and to disappoint the true meaning and intention of the High Court of Parliament it self by any Order of theirs is a thing that may deserve your Lordship's Consideration and I doubt not my Lord but you will certainly consider it to our advantage and for the restraining of a dangerous Power which may dispense with the whole Statute Book or with what part or parcel of it pleaseth as well as with any one Law I know there are many very worthy Gentlemen in the Court of Adermen that abhor the very thoughts of arrogating and assuming thus much to themselves many that are well satisfied with the necessary Regulations made in the Reign of King Charles II. in which they themselves were instrumental being thereunto commissionated under the Broad Seal of England and that it is only those who are in truth no Aldermen that would be more than such if they knew how The other thing which to the best of my understanding is every whit as clear as the former is that if the Mayor or Court of Aldermen's Power though it had been a legal Court of Aldermen which the Act of Parliament hath declared at that time it was not may over-rule the King 's in our Case then I cannot see that the Hospitals are his in any sense his Power and Prerogative in them will be utterly destroyed and he cannot so much as send a sick Seaman or Soldier into any of these Houses without first asking leave of the City which although it may be especially in the present Circumstances they would not deny him yet it is infinitely beneath the Majesty of Princes to acknowledge or submit to a precarious Dependence wherever it can be proved they have a Right even a private Person where he can make out his Title would disdain to aceept of his own upon these terms by holding it only duâ—ante beneplacito by an uncertain capricious and revocable Grant from another and therefore it concerns all that love the Monarchy of England and much more all those that are under more particular Obligations to maintain and assert it to see that its Honor and just Prerogative do not suffer in so important a Branch as this which concerns the Royal Hospitals is through the Mistakes and Encroachments of a few Men that aim at a Power which they can never prove in the present Circumstances to be their due It is not their due in our Circumstances who were put in by the King by whom the very Persons whom they will needs restore were ejected nor in theirs neither if it be true that a certain Gentleman who takes much upon him neither is nor ever was since the avoidance of the Charter a legal Magistrate of this Renowned City and that several Assessors in the Court of Aldermen have as little right to the Bench as he hath to the Chair a Controversie which in my small Opinion the Parliament hath determined already or if they have not yet done it so clearly as might be wished yet in a short time it may be hoped they will In the mean while I cannot forbear saying That I never saw less good Manners less Decency or less Modesty in the Management of a Cause than I have done in this our Adversaries have confess'd by an obstinate and stubborn silence after so many fair Challenges and repeated Provocations notwithstanding all the Mercenary Pens that are always at their Service that they have nothing to say for themselves and that both in Law and Equity it is a very plain Case against them but yet still they have a Confidence not in their Cause which they know to be very bad but in their Power which they persuade themselves is greater than the Power of Truth that is proof against all this they are resolved upon their own Conclusion and leave our naked Premises to shift for themselves Poor Premises so destitute and so friendless that even Hospitals refuse them Entertainment Nay not only so but when the Lords of the Council have
been pleased to honor this little Cause of ours little in its self but in its Consequences great and worthy that Sacred and Majestick Board with their sublime and weighty Contemplation when they have referred the further Examination of it by an express Order made in that behalf to your Lordship 's known Wisdom and untainted Justice the result of which Enquiry is to be reported back again to them to put a final period and issue to it which a Man would think in Reason should have put a stop to any further Proceedings on their part while the Affair was depending out of a dutiful Reverence and Regard to that awful Judgment and Decision that was expected yet even now do they go on as they have always done with taking it for granted that they are in the right even now doth Hughes in contempt of every thing that is Great or Good in Defiance to all the most solemn Orders of Suspension that can be made and in Despite of his own recoiling and upbraiding Book written against Pluralities and Non-Residence before it happen'd to be his own Case receive his quarterly Payments for doing nothing while I have nothing but my labor for my pains and while I have not wherewithal to defend their Majesties Prerogative otherwise than with my Pen which was a Reason of necessity why I should plead my own Cause and why I intended to do it in the following Remonstrance while I am intangled in Debt and run into Extremities by a great deal of barbarous and unchristian Vsage My Adversaries have the King 's and the Hospital Revenues at their Service to overthrow his Title and assert their own So deeply rooted even in some that call themselves Church men is the love of a Common-wealth Interest and a Dissenting Party so great is the Merit of a Sermon dedicated to his Excellency the Lord Cromwel in defence of the worst Action that ever he did or could do by a Trooper formerly under his Command by one that first fought against Monarchy with his Sword then writ and preach'd and printed against it too and was not content with Treason against the King without spitting his Venom against the Saint and the Martyr My Lord If Ludlow were so severely and yet justly treated by the Resentment of the House of Commons and if his Majesty in Compliance with their humble Remonstrance and Petition was pleased to issue out his Royal Proclamation for his Apprehension for High Treason wherever he could be found above forty Years after that Regicide was committed Ludlow that had but one Hand one Finger in that fearful Crime Ludlow that had but one Voice in that execrable Doom past by the vilest of Traytors and of Men upon the best of Kings If he were forced to seek his Safety in his Flight if he were necessitated to compound for a Life scarce worth the saving after having lived so much beyond the common periods of human Life by a silent and voluntary Exile to Climes far distant from his native Country to mountainous and barren Places where Nakedness and Thirst and Hunger reign where Want and Beggery have their Habitation then what doth he deserve who by defending all the Regicides in what they had done by studied Blasphemies and elaborate Harangues upon so horrid a Subject hath pull'd down the Guilt of them all upon himself and hath contracted their divided Impieties into one nay hath done his utmost which is worst of all to persuade these Miscreants as much as in him lay not to repent and be sorry for what they had done and to encourage others to the like Attempts The Act of Grace my Lord that hath remitted the Punishment hath not made the Fault less heinous than it was before it is plain that his Case was rather more heinous than any of the Judges and it is very strange that this Man should be thought to have a Right to eat the King's Bread when others in Circumstances scarce altogether so criminal as his are forced in foreign Countries to beg their own and glad that even that least and last of Liberties belonging to Mankind is not denied them by the pursuit of Justice and the Anger of a People barbarously robb'd of an indulgent Father a Wise Religious Chast Temperate Just Merciful Magnanimous and Heroick King which neither time nor distance are able to appease Certainly the King hath either no power to visit though never such Enormities be committed though never such personal Affronts be put upon him as it was in Mr. Hughes his Case who preach'd and pray'd in this Hospital as the King's Chaplain when he was scarce qualified to breath in his Dominions or to enjoy any benefit of a Subject certainly the King's Hospitals are any bodies rather than the King 's or in this instance at least he might exercise his Power this was an allowable Cause of Visitation If the Mayor and Commonalty of the City of London had had in this Case an Authority so wholly independent on the King as that his Majesty could not by Law have intermedled in any Affair relating to the Hospitals of the City yet the disposal of the Officers of the said Houses so as to retain and dismiss them at their pleasure being wholly Arbitrary and unaccountable in themselves without any remedy or appeal to an higher Power or a superior Court It must needs have appeared to have been very hard if they who might have dismist a Servant or an Officer for no reason at all would not have thought it reason sufficient to discard any Man that the King was displeas'd at him that he look'd upon him as disaffected to his Person or Government that he had been guilty of such things as had given just cause of Anger and Offence to his Majesty against him and the Hospital being confessed on all hands to be a Royal Foundation that Gratitude and Piety which was due to the Memory of the Royal Founder would have obliged the Trustees in future Generations to have such regard to his Successors in the Throne that his Request should be Sacred as to all those things which they might lawfully have done without it not only without the actual assignment of a Reason but without the inward Power of being able to give one if it were demanded if must be confessed in this Case that it would have been a great Affront an unpardonable Contempt of Majesty for Subjects to stand it out with their King in a Matter wherein he thought his Honor interested and concerned though he had nothing that could be called a Right but when he himself by an Authority superior to theirs by his own Authority by his Prerogative Royal by a Right given and granted him by the Parliament it self hath displaced or ejected any Person in such Circumstances as these out of any Office or Employment whereof he stood formerly possessed for a subordinate Power to pretend to restore such an one in desiance of his absolute and unaccountable
nature hath at length taught them by an Experience much to be lamented and deplored that there may be an Excess of Loyalty upon some Occasions and that Princes of that Persuasion are never to be obliged by all the utmost Services that can be done them that they know no Gratitude and can remember no Kindness but look upon all as unprofitable Servants that will not be Converts as well as they have been Friends Now though nothing be more unskilful if it be not unjust and wicked than to tack the Avoidance of the Charters and the Regulation of the Hospitals so very close together as if they had an inseparable Connexion with each other and were not to be parted and to affirm that the one being Arbitrary and Illegal the other must of necessity be so too yet this is almost the only thing that is pretended against it this is that that hath drawn such an Odium upon this latter Action for the sake of the former that it is reckoned by all that have not or cannot or will not pry into the true state of the Case among the Arbitrary Transactions of that Reign and the Persons employed in the Service of these Houses in the room of any that were â—ejected from them are blackned and branded by their Enemies for the sake of their Cause we will allow them that the first Hint of the aforesaid Regulations was taken from the seizure of the City Charter into the King's Hands and that the Charter being voided there was a necessity that the Hospitals which were annexed to and incorporated into the City should be managed as the City was by a more particular and immediate Commission from the King but yet the King need not have made any Regulation all this while and unless they can prove that the King might not have visited though the Charter had been in full force and virtue they do nothing at all or at least nothing to the purpose for if he might not have visited and made what Regulations he saw fit in case the Charter had been standing I would fain know what is the meaning of that Clause in the Act of Parliament of K. Hen. 8. which I have cited or of that Reservation in the Grant of K. Edw. 6. but if he might visit though the Charter were still standing then the Illegality of the Seizure or Avoidance of the Charter could by no means affect the Regulations that were made in these charitable Houses because they have another and a distinct Authority whereby to defend themselves Again if the Seizure of the Charters themselves though it could not be justified by Law and was defective and arbitrary as to the Authority upon which it proceeded yet had such a Reason of Equity or of Prudence or Necessity or whatever we shall call it as did really reconcile if not recommend it too to some that were no Friends to Arbitrary Power how much more reasonable was the Visitation made in this and other Houses and the Regulations consequent upon it when the King proceeded by virtue of a Power which even the bitterest Adversaries it hath must after all acknowledge to be his due nay what an Absurdity would it have been for him not to visit where he hath such an unquestionable Right of Visitation to expel those Enemies of his out of his own House that say in their Hearts We are for a Commonwealth and we will not have this Man to reign over us For turn a Dissenter or an Half conformist or a Favourer or Abetter of such turn him forward and backward topsy turvy inside and out-side set his Face towards Samaria or set it towards Jerusalem he is still the same Person all over in every part and in every Position a Commonwealth-man and an Enemy to Monarchy whether he knows it or designs it or no and he differs no more under one Representation from what he is in another any honest and fair Representation I mean than the Southern and the Eastern Prospect of the same Building which are all essential to and constitutive of the whole and are but several Parts of the same Aggregate or Commonwealth of Stones of which it is compiled It is an hard Case that a King must be forced to accept of such to be his Governors or Officers and Servants in his House that are all of them Enemies to his Government in their Notions and most of them in their Designs and if he be not forced to submit to these extravagant terms so that Governors of a Feather shall chuse one another by consent and shall administer the Affairs of the House whether he will or no and shall call Committees if they please of a select number to plot against the Government under pretence of doing the Business of the House I say if he be not thus forced but may be Law discard either Officers or Governors at his Pleasure then it is plain that they who pretend to restore the very Persons that were so ejected do assume to themselves a Dispensing Power in no less than five several Respects which is enough in all Conscience for Subjects to do First They dispense and whether the King will or no whose Authority first gave the Sanction to the Law with that Clause of the Act of King H. 8. by which the King and his Successors for the time being were for ever invested with a Power and Right of Visitation and Redress by rendering that Clause altogether fruitless insignificant and vain Secondly They dispense with the Reservation in the Grant of King Edward VI. by which after all his Concessions to the City of London he still reserved this Power and Right to himself and to his Successors in the Throne for ever Thirdly They dispense with that particular Clause in the said Grant whereby a fit and convenient Minister is provided to celebrate Divine Services and administer the Sacraments and Sacramentals to the Poor and Officers and Ministers of the said Hospital and House for by that fit and convenient Minister I have undeniably proved in my Appendix to the Queries upon the Statute of H. 8. That a Clergy-man of the Church of England according to Law was intended and the same must be understood of the Officers of the House to whom the said Hospitaller cannot otherwise administer the Sacraments and Sacramentals nor celebrate Divine Services in their presence and hearing as King Edward required they should do but as for the Poor indeed it is another Case there is an occasional Dispensation certainly included in the nature of the thing for it does by no means follow because a Man cannot bring himself to be of our Persuasion that therefore his Necessities must not be relieved his Wants supplied or his Diseases Wounds or Ailments cured but for Officers and Servants there is no color of excuse in so great Choice of fit Persons to be found and if not Officers of a Dissenting Party then it follows plainly nor Governors neither because such
Governors will always abuse their Trust in favor of that Interest and party to which they belong and they will think themselves bound to contravene and disappoint this Provision of King Edward even for Conscience sake to propagate and encourage that which they esteem the only true Profession of the Gospel and to discourage that Formality and Superstition of ours which they so loudly and so passionately and in their own Thoughts so deservedly complain of nay if we add Experience to Reason and conjecture we know by long Experience that they have always acted according to these measures Fourthly They dispense with the qualifying Act of the 25 Car. 2. as I have proved sufficiently in the following Papers it is Sir Edward Hales his Case the Bishop of Oxford's Case the Charter House Case and the whole Magdalen College Case as exactly as any thing can be only with this Aggravation which makes it so much the worse that it is a Power exercised by Subjects not by Kings by Subjects in contempt of the just Power and Prerogative of their Prince by Subjects in derogation to the standing Laws of the Realm and in defiance both of King and Parliament together Fifthly and lastly They dispense with the late Act for reversing the Judgment in a quo Warranto c. for by that Act or I am much mistaken after having very seriously considered it the present Lord Mayor commonly so call'd and several of his Collegues and Assessors upon the Bench are declared not to be and never to have been legal and rightful Lord Mayor and Aldermen of this City so that the Governors and Officers pretending to be restored holding by no other Authority but theirs and there not being a Majority in that Court without them There is nothing more certain than that they hold by nothing which is hardly so good as a drowning Man by a Reed and yet he must drown for all that For my part I must be frank and clear with your Lordship and the World that it seems to me a great Scandal to the Government it casts a Blemish of Dishonor and Reproach of Weakness and Infirmity upon the Supreme Power◠when its Enemies such as are at least virtually and consequentally if not actually so shall be suffered to swagger and domineer with the blustring Title of Governors to which they have no Title though they behave themselves of all Men the most imperiously and proudly under the lofty Imaginations that it puts into their weak Heads in a place where the King hath a legal and rightful Visitation and it is a further dishonor in this Case where they can make out no Title to so proud a Word that his Friends and Servants shall be affronted and curb'd after having had the Improvements of a polite and liberal Education by every little thing that hath neither Parts nor Breeding merely because it presumes to call it self a Governor though it knows not how to govern it self and is hardly qualified to be Governor of Jack Strawe's Castle but yet is 〈◊〉 as full and as big swell'd with the title as if it were indeed the Governor of some mighty Fortress that had a powerful Garison at its Devotion and the Country for twenty or thirty Miles round under Military Contribution and if the King of the Country by whose only Power and Authority he acts should pretend to visit or call him to an account he could immediately set him and his Army under Water and so farewell to Pharaoh and his Host for all are Aegyptians to the Dissenters and Commonwealths-men but themselves they are the only true Israelites when all is done and they make no bones of stealing this Crown Jewel of a Prerogative to visit from an Aegyptian King or indeed any King whatsoever for no King comes amiss they love them all and their Prerogative so well My Lord I do humbly propose it to your Lordship's Consideration that it is not only a dishonor to their Majesties that any of their Charities should be wholly managed by Men of a Republican Principle and Party but that the Peace of this Housecan never be secured unless we be all of a Mind as well the Governors as the Officers and Servants true and hearty Communicants of the Establish'd Church and such as have given such proofs of Conformity and Steadiness to the Government both in Church and State as the Law requires then and not before it is that we may expect to see happy Days if it be possible in a miserable Place and in the midst of Sickness and Diseases not till then it is that the Affairs of this House disturbed by mutual Animosities and intestine Broils will go on with an even and successful Pace to the Credit of the Government and to the utmost Advantage of the Sick and Wounded My Lord I humbly beg your Lordship's Pardon for this very long this unexpectedly long preliminary Address I shall add but two things more and that very briefly and so conclude My Lord What are these Gentlemen that will needs make themselves Parties and will needs be Defendants in this Cause against us The Plaintiffs certainly know best who it is by whom they are aggrieved and they complain of none but of Sir T. P. the pretended Lord Mayor and those of his Brethren that have concurred with him for the displacing of those whom K. Charles II. by an undoubted Prerogative inherent in the Crown sent hither and for the restoring of those whom he by the same Right hath ejected I have nothing to say to Hughes as to the Money that hath been paid him but I must expect my Satisfaction from those by whose Order it was done and they if any are the Defendants in this Cause And here there are two Points to be insisted upon first Whether the Court of Aldermen at the passing of those Orders were a legal Court or Whether it be so or no to this very day till it be purged of those that have nothing to do to sit there and till the Number be filled up by those that are better qualified to take the Stile and Dignity of Aldermen upon them Secondly The King's Power of Visitation being acknowledged as we are ready to prove it undeniably if it be disputed whether even a legal Court of Aldermen can rescind the legal Act of the King in an Affair that lies so plainly and so properly within his Royal Cognizance and Visitation But as for these Gentlemen that call themselves Governors and will by all means be Parties under that Name and Notion who are they Are they not all or the much greatest part of them the very same Men that were ejected by K. Charles II. so that their Title to the Stile and Office of Governors of this House is a thing every whit as much disputed and for the same Reason as that of any of the Officers pretending to be restored How then comes it to pass that they so confidently presume to act as the Delegates or
visit at all he shall have no Power either to put in or out even though never so great Abuses be committed without the Consent of the ordinary Trustees and till they shall approve of the Reasons of his so doing which is effectually to take the power of Visitation out of his Hands and to make the Act of Parliament and the Reservation in King Edward's Grant both of them very vain and insignificant things Besides It is an Opinion which the most Eminent and Learned Lawyers of this Nation have owned and espoused under there respective Hands and which we are ready to produce that the Officers and Servants of St. Thomas Hospital are not Charter-Officers but Servants ef such a nature that they may be turned out or put in at pleasure by the Court of Aldermen or the Governors acting under them even without a Reason as Masters of Families may do with their hired Servants or Shop-keepers with their Journeymen or Merchants with their Factors with whom they have not contracted for any length of time but may keep them in their Service or dismiss them from it as they please themselves Now if this be the Power of the ordinary Governors and Trustees themselves then the King who hath always a Power and Right of Visitation Paramount and Superior to any that they can pretend to may much more do the same and cannot be accountable to any for so doing any more than nor indeed so much as the ordinary Feoffees because he acts by an Authority Superior to theirs and because the last Appeal beyond which there is no remedy is lodged in him Let us suppose if your Lordship pleaseth what hath already been unquestionably proved that the King in this business acted not only by virtue of that highly rational and prudent Trust that was reposed in him by the Grant of King Edward but also by virtue of that very Power which was given him by an Act of Parliament never yet repealed either in whole or in part In this Case my Lord with your Lordship's good leave it is very plain that when upon a Visitation the King displaceth some Officers and placeth others in their stead if upon the dissolution of the Commission which may be done the next moment after the Regulation is made the ordinary Trustees shall be invested with a power of turning the Tables upon him of putting out those whom he put in and putting in those whom he put out which is our present Case and it is that wherein the chief Pinch of the Controversie lies then this Provision in the Act of Parliament is altogether vain the King's Authority is rendred useless and contemptible and the Lord Mayor and Commonalty of the City of London are effectually furnished with a Dispensing Power For he or they that may dispence with one Statute may do the same by another and in Consequence by all they being only so many several Exercises of one and the same absolute and uncontrolable Right so that this is not only to submit to a Power which we pretend to disclaim but it is to take the Scepter out of the King's Hands and to put it into those of the City to change the Form of Government from a Monarchy to a Commonwealth or rather to make the Lord Mayor of London for the time being to be the King of England in the most absolute and arbitrary Sense For dispensare boc est lege solvere is solus potest qui ferendae abrogandaeque legis potestatem habet they are the words of Grotius he only can dispense with a Law that hath a Power of making or annulling it and the same is the Opinion of Vasquez Suarez Pufendorf and others and of that Right Reverend and Learned Author himself by whom these Opinions are collected and set down in his admirable Discourse concerning the illegality of the late Ecclesiastical Commission p. 33. And my Lord Chief Baron Atkins in his accurate Enquiry into the Power of Dispensing with Penal Statutes p. 23 24 endeavors to prove by several Instances of temporary Dispensations with the Statute of Provisors and other Statutes That the Power of Dispensing with Acts of Parliament is no where else but where the Legislative Power is and that the Kings of England have sometimes accepted it from them in some particular Cases and for some limited time and with divers Restrictions which is a full acknowledgment saith he that it belongs only to the Legislative Power to dispense with Laws And this my Lord is plainly the Reason of the thing for every Law includes an Obligation otherwise it is no Law because it does not bind and no Obligation can be taken off but by a Power either equal or superior to that which made it Now if the Lord Mayor and Commonalty of the City of London may not only eject out of the Royal Hospitals those whom the King hath placed there but also restore those very Men whom he hath discarded notwithstanding the Act of Parliament gives him a Power without Appeal to visit and redress that is it gives him the same power over the Officers of such Houses that Masters of Families have over their Domesticks who may keep their Servants or turn them out of doors without giving a Reason then is that very Dispensing Power admitted and allowed in the Corporation of London which is deny'd to the King and in this particular Instance they do not only barely contend with the Law but they justle the King out of his undoubted Prerogative and unquestionable Right and bring both Him and the Parliament under their Girdle so that Now those eminent Promises do hasten to accomplishment as a late Author expresses it in a Sermon printed to justifie and affirm the execrable Murther of King Charles I. For binding of Kings in chains and Nobles with fetters of Iron for disobeying of Kings and Parliaments together such honor have all his Saints But my Lord you are always of Council for the King so far at least as not to suffer his Prerogative Royal to be unjustly invaded and therefore we rest assured that your Lordship will determine nothing as well for that Reason as out of a wise and honorable Sense of the great Equity and Justice of our Cause that shall in its Consequence affect the Government as it is now happily Establish'd or in any wise tend to the diminution of their Majesties just and clear Prerogative or to the Disinherison of the Imperial Crown of this Realm and that your Lordship will remember that the Declaration of the Lords and Commons Assembled at Westminster which was presented to their present Majesties the then Prince and Princess of Orange and which in every part of it hath been since confirmed by an Act of Parliament Entituled An Act declaring the Rights and Liberties of the Subject and settling the Succession of the Crown Which said Declaration and Act thereupon ensuing have pronounced all suspending of Laws and all dispensing with them without
consent of Parliament to be illegal I say I know your Lordship will consider that the same Authority that deny'd this Power of Dispensing to the King and Queen themselves upon Experience of the Mischiefs and Calamities it produced in the late unhappy Reign would much less have granted the same extravagant inordinate and inconvenient Privilege to Subjects nay they would never have thought of it without Indignation and Scorn and I leave it with your Lordship to determine as you shall see cause whether the Mayor and Commonalty of London's restoring those to their respective Places whom the King hath legally ejected by virtue of a Clause in an express Act of Parliament vesting him with such a Right be not a plain Instance of a Dispensing Power by rendering this Clause altogether insignificant and useless and whether it be not so much the more criminal for being exercised not by the King but by Subjects and those not of the first Rank and Quality neither in contempt both of King and Parliament together And my Lord I beg leave to propound this further Question to your Lordship whether the Restitution of the ejected Officers by the Lord Mayor and Court of Aldermen do destroy and evacuate the King's Right of Visitation or no For upon Supposition that it doth they are not only furnisht with a Power of suspending Laws and of dispensing with them but likewise of abrogating rescinding and repealing them too which is to make them every whit as absolute as the most comprehensive enlarged and unconfined notion of Arbitrary Government it self can be If it doth not then as they immediately upon the Dissolution of the Commission which as I have said may be done the next moment after the Regulation is made as they may immediately restore those whom the King hath ejected so may the King the very next minute by a new Commission eject those whom they have restored and thus there will be a circle of Appeals and Controversies will be endless Confusion unavoidable as long as such a changeable and uncertain State of things shall continue it is therefore humbly left to your Lordship whether you think it more reasonable to determine for the King and Queen and for the Lords and Commons who have given them this power of visiting and redressing as they shall find cause or for a few mistaken Men who whatever right of Government in ordinary cases they have yet have none at all in Derogation to the King's Prerogative and in Opposition to such a particular and special Visitation as is by this Act of Parliament provided for All this hath been said may it please your Lordship upon occasion of the first Head proposed to be insisted upon that the King is not bound to give an Account of the Reasons why he visits and that tho the Ejectment of the Gentlemen concerned had been never so Arbitrary yet it is good in Law the Law gives the King an Arbitrary and Despotical Power in these Cases so he do not substitute in the room of those ejected such other Persons as are not duly qualified by Law or are otherwise grosly and notoriously incapable of their respective Employments and this I hope it hath been sufficiently proved that he may do to call him to a strict Account for the Reasons and Causes of his Visitation besides that the Act of Parliament is general and without any reserve being in effect to take the power of Visitation out of his Hands for he that cannot visit but when others please hath no power or right of Visitation that is properly his own I come now to the second thing to be insisted upon supposing the King were accountable for what he did as in very truth he is not yet that there are sufficient Reasons to be given My Lord The order of Council referring the Consideration of this Matter to your Lordship sets forth as a part of the Matter of our Petition that they that claim against us were ejected by his late Majesty for not being legally qualified and so they undoubtedly were if the Act of Parliament of the 25th of that King for preventing of Dangers which may happen from Popish Recusants were a good Law and were then in full force and virtue for by that Act it is expresly enjoin'd That all that receive any Salary Fee or Wages by reason of any Patent or Grant from his Majesty or shall have Command or Place of Trust from or under his Majesty or from any of his Majesties Predecessors or by his or their Authority or by Authority derived from him or them shall undergo the Tests and make the Subscriptions therein mentioned which it is needless to recite they are so well known to all that are here present Now my Lord our Salaries are paid us by virtue of a Grant from their Majesties Royal Predecessor King Edward VI and by Authority derived from him as all other Affairs and Matters relating to the House are transacted by and under the Influence of the same Royal Grant and by Authority derived from it Nothing therefore can be more plain than that the Officers of this House receiving Wages and Salaries from the King or at least from his Royal Predecessor King Edward VI. and by Authority derived from him were obliged by the plain and express Letter of that Act without any remote Consequences or far-fetch'd Interpretations to undergo the Tests and Tryals of Protestancy and Loyalty therein enjoin'd But if a Dissenter cannot take the Oath of Supremacy which was then enjoin'd nor receive the Sacrament according to the manner and usage of the Church of England then by this Act he is precluded from receiving any Wages or Salary from the King or from any of his Royal Predecessors or by his or their Authority or by Authority derived from him or them and this upon Examination will be found to have been the Case of most if not all of those that were at that time ejected and if any Man did comply to serve a turn with these Tests which I cannot tell that any one Man did continuing still a Dissenter and a Separatist from the Church of England or an half-faced Conformist and a frequenter of both Communions as if it were indifferent to him what Religion he was of as some such there have been yet this did by no means come up to the Intention of that Act which the better to discourage and disappoint all Popish Designs would allow the King to trust or reward none for any Service in his disposal but such as were hearty and entire Conformists to the Doctrine and Discipline of the Church of England Again all Places within the King's Visitation are by a very natural and easie Interpretation within the King's Pay for the King is supposed to employ those whom he may eject out of their Employments when he pleaseth and to pay those whose Salaries he may stop as well without as with a Reason it is clear therefore upon this Account also That
of Sense that nicety of Palate in matters of Religion to which he outwardly pretends he looks upon the Liturgy and Ceremonies by Law Establish'd and upon the Hierarchy or subordinate Government of this wisely constituted Church with all the Aversion which we have for Idolatry it self or for the most gross and palpable Superstition of which the Church of Rome is guilty at this day He that pretends the same Scruples but really hath them not doth all the same things as to any outward appearance that the other doth and his Thoughts not being busied about the other World which he looks upon as a remote and an uncertain thing and perhaps observing the secular Intrigues and Policies of all Parties while Heaven and Conscience is every where pretended he is the more hardened in his Contempt of every thing that is good or sacred this Man's immediate and direct aim without any respect to his Happiness or Misery in a future State is at the Ruin of that Establishment for Reasons of Interest or out of Envy Pride or a new fangl'd Temper that is always uneasie under present things from which he pretends to separate for Conscience sake Lastly he that in his own Person conforms to the Establishment but in his practice under I know not what healing uniting and moderate Pretences is always a fast Friend to the Dissenting Parties making use of all the Power and Interest he hath to advance their Credit and to encrease their weight in the political Balance he is manifestly got into a triple League with the other two and he is much the most dangerous Confederate of the three because he is an Enemy in our own Quarters an Adversary in the disguise and habit of a Friend a Traytor that betrays and crucifies with a Kiss and makes a shew of great Zeal for the good of that Establishment which he designs to ruin and overthrow There is nothing more certain than that all these several sorts of Men do agree at the long run at the Subversion of the Monarchy it self or whatever they may say or suggest in excuse of themselves or to palliate so foul and true an Accusation yet it is certain in the Experience of this and other Nations that the Monarchy cannot subsist where Prelacy is destroy'd and I wish some new Experiment of Disciplinarian Principles and Practices in our own Age may not further convince us of the truth of this for we have Moses and the Prophets already past Experiences do sufficiently assure us what the Event of such Practices and Designs must be where they have scope and liberty enough allowed them and now I pray God those old Confusions may never rise from the dead to convince us that the same Causes the same Passions Designs and Interests let alone to themselves and pursued into their Consequences will everlastingly produce the same effects Nay in Reason my Lord as well as in Experience there is nothing more plain if we argue forward from the Cause to the Effect than that the Demolition of the Hierarchy and its Dependences together with it which all of them have their first Spring and Fountain in the Crown must be the depriving it of so many Friends and by Consequence of so much Power it not only throws a powerful and certain Interest as it were by way of scramble among the People but by disarming and disabling the circumvented Prince whose true Greatness consists in the multitude of those whose Interest it must always be to be his Friends it arms and sets up a Commonwealth Party against him at his own Charge and we know in days of yore when the Bishops were once gone the next thing complain'd of was the House of Lords and then the King himself was an insupportable Grievance and all Orders and Degrees of Men amongst us all that had either Honesty or Money and were dissatisfied with such Proceeding or were suspected or represented so to be or had appear'd in the defence of their Religion and Country were plundered sequester'd banish'd and what not as if the way to reform were to destroy and the only means to make a Nation glorious and happy were by oppressing it and tearing it in pieces But my Lord I shall not lanch out any further into these things only what I have said was in order to shew the Reasons why that Wise Prince and Excellent Person King Charles II. made his Royal Visitation by his Commissioners under the Broad-Seal in this House and why he thought fit to eject so many out of it and to deprive them of all Interest Authority or Concern in it both among the Officers and the Governors themselves because he knew many of them to be profest Dissenters or which is all one Enemies to Monarchy and Friends to no political Interest but a Common-wealth and he suspected others not to be so good as they should be and his Suspicion must be allowed to be a very good Reason in Places at his own disposal when himself is the Judge without controul or appeal of the fitness respectively of every Person for them He had Reigned very happily for many years with universal Peace and satiating Plenty belov'd by his Subjects and dreaded by his Neighbors round about as Glorious and as Great in all respects as a great Fortune added to a great Mind could make him and if we inquire into the Reasons of this wondrous Calm those Halcyon Days and Blessed Years that followed the Storms and Tempests of the late barbarous and bloody Vsurpation it can be imputed so properly to no human means as to his Restoring and Re-establishing the Church in its ancient Beauty Order Purity and Splendor and to his asserting it and defending it against all its Enemies by good and wholsom Laws but when for Reasons which I do not meddle with and which I cannot approve he thought fit to lay the reins upon the Dissenters Necks by a Toleration granted without Act of Parliament and to let them take their full swing of liberty in Religious Matters insomuch that the Parliament then thought it necessary as well to assert their own Authority and to quash this Attempt at a Dispensing Power as for other Considerations which they had before them to get the Declaration of Indulgence cancell'd and withdrawn yet from that time there was every where to be seen a virtual though not an explicit and declared Indulgence and the numbers of Dissenters were every where so considerable that if they were but kept out of all places of Trust and Consequence in the Kingdom Reason of State might even then have required that so numerous a Party should be considered as to the liberty of their Consciences and as to the outward exercise of their Religion with an Indulgence ratified by the Publick Sanction upon which they might safely rely and not have the Oppression of their Consciences or the Fears of it to urge for a Pretence to justifie or palliate Disobedience upon any future occasion
Abuses and Misgovernments from time to time that shall or may arise or shall be by them deemed or adjudged to arise in the Administration or Superintendency of the same As to the Clause produced and cited out of the Grant of King Edward whereby he reserves a Power of Visitation to himself and Successors for ever in the Hospital of St. Thomas Southwark which is the Scene of the Controversie now depending before your Lordship it hath two several Foundations to rely upon First The Clause that hath been alledged out of the Act of H. 8. by which he was intrusted with a Power of Visitation in all Religious Houses and Places exempt as this is and Parliamentary Trusts ratified and accepted by the Royal Sanction can no more be violated than Coronation Oaths for every Law is a part of the matter of that Oath which obligeth the King equally to observe and maintain all the Laws and in every Trust lodged in the King by Act of Parliament the Performance of it is supposed to be exacted and called for by the same Authority which is always sitting always in being until that fiduciary Constitution be repealed So that King Edward though he had not reserved to himself a Power of Visitation in this and other such Places yet the Act it self would have obliged him and his Successors to visit as often as occasion should require neither could he so entirely devolve such a Trust as this upon the Mayor Commonalty and Citizens of London or upon any other Person or Persons whatsoever as totally to neglect and abandon it himself which implies not only a Power of visiting at all times but a necessity of doing it in some particular Cases to consent that another shall betray that Trust which is committed to me or to put it wholly out of my power to call him to account for his Violation or Male-Adminstration of it being the same thing in the issue and Conclusion though it go somewhat further about as if I had actually and willfully betrayed it in my own Person If the words had been never so express never so absolute without the least shadow of any reserve or exception by which this Hospital was consigned over to the Commonalty and Corporation of London Yet still the King's Power of Visitation had been supposed because he could not give away the Act of Parliament nor any Prerogative inherent in the Crown to the diminution of his own rightful Power or that of his Heirs and Successors in after times and especially in such a Case as this where not only a Power was lodged but a Trust for the good of others was reposed in him by the Representative Body of the Nation which includes and draws after it the diffusive and all this with his own Royal Assent which though he may give or not give before the Sanction yet after it he cannot withdraw it as he pleaseth which would be to give him a Dispensing Power in the utmost Latitude and Comprehension of it against the true Meaning and Intention of all Laws which always design to be observed and obeyed as well by himself as others so far as he hath put himself under the Force and Obligation of them This is the first Ground upon which the Reservation in the Grant of King Edward VI. to the Mayor and Commonalty of the City of London relies it is an Act of Parliament made in his Father's time by which he was not only impowered to visit all exempt Places but it was left with him and his Successors in Trust and is a Charge which he was bound to look after as often as any real or to him so seeming Necessity should require The second Ground that justifies and warrants the Reservation is taken from the nature of the Gift it self every Man that gives or bequeaths any thing to a publick Use must be allowed to do it upon his own Conditions and with his own Reservations supposing them to be reasonable or possible in themselves Without an Act of Parliament any private Donor may appoint if he so pleaseth certain extraordinary Visitors to inspect and examine as occasion shall require the Administration of the ordinary Trustees and much more then may a King do the same when he hath an Act of Parliament to authorize and defend him in it in a publick Charity of his own Foundation In virtue of this double Authority and this double Trust derived to him from the Act of Parliament and from the Grant of King Edward his late Majesty King Charles II. did visit the Royal Hospitals belonging to this City by his Commissioners under the Broad Seal as the Act of Parliament required he should do and in this Visitation he displaced several Officers and several Governors too and placed others in their stead Which things being premised in order to the more clear and faithful Representation of our Case We presume with all humble Submission to your Lordship that as to the Visitation in the general considered there can be no question as to the Legality of it it being done in pursuance of a very reasonable and just Proviso in King Edward's Grant and by Commissioners under the Broad-Seal of England as the Act of Parliament required all the question is whether there were at that time any just Ground any reasonable or sufficient Cause of Visitation or no and this my Lord is a Question capable of a two-fold Answer First The King is not bound to give an Account of the Reasons why he visits And Secondly If he were bound the Reasons were notorious and such as in the Judgment of any indifferent Person might abundantly justifie a Royal Visitation First The King is not bound to give an Account of the Reasons why he visits or for the Regulations which he makes as to Officers and Servants belonging to the House in any such Visitation Indeed if the King should go about to alter the Constitution to imbezzle the Charity or to convert it to a quite different Use this would be so plain an Abuse of his Power and Violation of his Trust as would sufficiently warrant the Mayor and Commonalty and Citizens of London or any others in whom the ordinary Trust and Management was lodged to stand it out against him and to vindicate their Title by a course of Law by which the true Meaning and Intention of the Donor would appear from the express words of the Grant which it would always be easie to produce and the King who by the said Grant was made and constituted the Supreme Guardian and Visitor of the Charity bestowed therein could not possibly with any color or pretence of Right either imbezzle squander and abuse it to no good Use at all or convert it to any other Use than what the Founder himself had allotted But for the Officers and Servants it is another Case if the King be bound to give a particular Account why he turns out such and puts others in their room then he shall not
these are all Places within the meaning of the Act and that there was very good Reason for ejecting those Officers who had not qualified themselves according as that Act required Furthermore my Lord they do not only receive Wages and Salaries from the King but there is a Trust and a Command committed to them a Trust as to the Administration of their respective Employments and an Authority for the Execution of that Trust for in vain is a Trust committed to any Man whatsoever who is destitute of Power to see to its Execution they are the very words of the Act Or shall have Command or place of Trust from his Majesty or from any of his Majesties Predecessors c. Which words Command and Trust according to their true import and meaning must be understood in their utmost Latitude and Extent of Signification unless there were some other passages in the Act it self that laid a particular Restraint and Circumscription upon them It is but a very small Command and place of Trust which an Inferior Officer in the Excise or Customs is possessed of suppose a Gauger in the Excise or a Land or Tide-waiter in the Customs and even Offices inferior to these and yet these being all of them in the King's Pay have been interpreted to come within the meaning of this Act and we know what Artifice and what Force was used in a late unfortunate Reign to make them renounce their Obligation to the Test and promise to concur to its repeal and yet these have no Patent or Grant from the King only they depend upon his verbal appointment or they are chosen without the King 's immediate privity or knowledge by their Superior Officer and by him or them without any further to do upon any real or pretended Misdemeanor they are discarded but they receive the King's Pay for their respective Employments and from this it is that the Obligation to the Test ariseth and this if it do not equally or rather more concern all those that act in the Hospital of St. Thomas Southwark under the Grant or Letters Patent of King Edward VI. and are paid by an Authority derived from them Then I must confess to your Lordship and the World that I have considered of these things a great while and with a great deal of Seriousness and with an earnest Desire to find out and discover the Truth to no purpose The Act speaks not only of Places of Advantage with Salary or Perquisites or both belonging to them but in general of all Trusts reposed by the King that no Person ought to be admitted into such but those that will perform the Conditions by this Act required and this concerns the Governors as well as the Officers and Servants of the House for they are trusted though they are not paid I presume it will be granted on all hands that a known and open Papist ought not to be a Governor in such an House as this and why then should a concealed one be allowed who is certainly much the more dangerous of the two and how shall we know what any Man is in this Case unless he perform those Conditions and undergo those Tests without which the Law is not satisfied but he is a Popish Recusant It appears therefore as evident as Demonstration it self can make it that though the King might have ejected either Officers or Governors without giving a Reason or without being accountable to any for what he did in this Case yet that what he did was founded upon Reasons the most agreeable to Law and Justice and the most conducible to the Publick Good of any that could have been thought of or suggested It is likewise provided by a Clause in the same Act of Parliament That any Person who by neglect or refusal to do as the Act requires shall lose or forfeit any Office and shall afterwards qualifie himself by conforming to the Law yet he shall not be restored to the Prejudice of any Person who upon the Lapse or Forfeiture came into the Possession of his Vacant Place having qualified himself within the time prefix'd as the Law requires so that what firmer Tenure there can be than ours is I cannot imagine It cannot be thought an Injury or a piece of Persecution when a Man enjoys the liberty of his Conscience his Person his Estate when he is allowed all the just and convenient freedoms of Conversation together with an undisturbed License of Traffick and Commerce for him to be shut out of Places of Profit or Trust in the disposal of the State in which he is like to be troublesom to the Religion Establish'd and to the Peace of his Country it being seen by Experience that all Men in power do naturally use it and for the most part with an inexcusable warmth and heat for the Interest of that particular Persuasion which they themselves have espoused The particular Inconvenience of it in this House appeared in that when the Dissenting Party had the ascendent in it they chose no Officers but such as were like themselves and the Chappel it self which is the King's Chappel and immediately subject to his Royal Visitation was made an illegal Conventicle for three Years together to his great dishonor and to the Reproach and Scandal of the Government it self and for the merit of this among other things that do highly recommend him to that sort of Men it is that my Competitor contrary to all Law and Justice is abetted in his unrighteous and unreasonable Pretensions against me My Lord I am not for any Man 's being molested or troubled for his Conscience sake in Matters of mere Opinion it is not only against my Judgment but my Temper too and indeed unless the necessity of the Publick may excuse it it is a Cruelty that can never be excused and for that reason ought never to be practised I am very well pleased and satisfied with the Toleration which the Parliament have granted always provided That the Tolerated Parties be kept out of all Places and Trusts that are of a publick nature and in the gift and disposal of the State The Church of England is that Party of Men which all Parties will acknowledge they can live most happily under unless they be the Regnant Party themselves and we have seen so much of the inhuman Cruelties and more than Dragooning Barbarities of a Dissenting Zeal and such unspeakable Confusions consequent upon it that the best and wisest of the Dissenters themselves though upon a Religious account they could not submit themselves to the Episcopal Government or comply with the Liturgy and Ceremonies of our Church yet upon political Reasons they have always declared for supporting the Establishment as the only means to preserve the Peace and Tranquillity of their Country and to make us as happy and as great a People as in our divided Circumstances we can be But if the Reign of those that are Dissenters from our Church be attended with so many
mischiefs then certainly a mixture of such in Places of Trust and Profit of Honor or of Power in the State must have its proportionable Inconveniences attending it and for this reason it is that in Holland where the greatest liberty of Religion is allowed yet none are paid none are trusted in any publick Employment by the States but such as are of the Establish'd Religion this is largely represented by Sir William Temple in his excellent Discourse of the United Provinces and the Reasons of it with very great Judgment and Wisdom are assigned by the Heer Fagell late Pantionary of Holland in his famous Letter to Mr. James Stewart giving an Account of the Sentiments of their present Majesties concerning the Repeal of the Test and the Penal Laws so much talk'd of and endeavor'd in the late King's time My Lord I wish with all my Heart for the sake of our very Adversaries themselves that nothing else could be alledged against them or any of them as the Causes of King Charles II. his Visitation and their Ejectment consequent upon it but that they were not legally qualified for this is indeed a thing highly to be commended though a Man may labor under a mistaken Conscience that he will not however Sacrifice that Conscience to any temporal Gain or Advantage but there were also other things that lay heavy upon them we can prove one of them by unquestionable Testimony to have been then and still to be a Person zealously disaffected to the Government both in Church and State a personal and profest Enemy to the four last Kings by Name a great Magnifier of the Commonwealth Form of Government and a Publick Slanderer even at this time of the greatest and most useful Personages of this Kingdom And I desire it may be considered that he that would now so sain supplant and eject me was himself ejected for no other Reason but because in a Printed Sermon he had publickly owned asserted and defended the Horrid Murder of King Charles the Martyr For it is certain after his Ejectment that by the great Application of his Friends in his behalf he had been restored again had it not been for this one thing but this Sermon being shewn not by me who knew nothing of it at that time but by others to Mr. Secretary Jenkins and by him communicated to the King himself this was the true and the only Reason why he was not restored he having conformed to the Church of England for some time before Now my Lord it is true that the Act of Oblivion had forgiven him this Fault but yet this hinders not but it might be a very good Reason why the King would not retain him in his particular Service And I do not see how he can be restored not only without disowning the King's Power of Visitation but also without a very favorable Aspect upon that execrable Fault for which he so far incurred his Majesties displeasure as to be ejected out of his Place Indeed if the Man were in any extreme Necessity there might be some Pity due to his Relief and if he could prove any legal Property in such a Place as this God forbid but every Man should enjoy his Right but he can prove no Title unless he first prove that the King hath no Right or Power of Visitation and he is so far from being by his Ejectment in a worse Condition than he was before that he got very considerably by it for he had a Living which is a Freehold in Law bestowed upon him of twice the yearly value and a Living at such a distance that the Canons of the Church would not suffer him to enjoy both together if the Hospital were a Cure of Souls as in Law I must confess it is not but it is sufficient that it is in Conscience and he for that Reason if he had any Conscience might be ashamed to pretend to both of these Places together If the Hospital had been a Cure of Souls he would have lost his Title to it immediately upon his Institution and Induction into the other and it is strange that so little regard should be had to the Reason of that Law which was the impossibility of a Man's taking sufficient care of two Places at so great a distance as that he should be thought a fit Person to be restored after having been so fairly and so legally ejected by him that had an unquestionable Right to do it and for a Reason in which all the Royal Family is so sensibly concerned that he must have very little Respect for the Memory of our past Kings or for the Persons of our present most Gracious most Happy and Auspicious King and Queen notwithstanding that Crime still bleeding like the Blood of the Martyr which never yet was stanched for which he was ejected that will pretend to restore and reinstate him again in such Circumstances as these And if to all this we add his gross neglect of his Duty while he officiated in our House his not burying the Dead not visiting the Sick not residing upon or near the Place his slubbering over even after his Conformity the Prayers of our Church after an unseemly and ungainly manner and after all his getting little or nothing by his being restored for he must find a Curate in one place but only the Satisfaction and Gratification of a causeless Malice against one that contributed nothing to his Ejectment it will appear as I do humbly hope to your Lordship that I have not only all the Law but all the Equity and Fairness in the World on my side and how much more unconscionable must it then needs be thought when there are so many things to be said in my behalf and when I have supplied both for above this year and half that I should not receive one penny all this while upon the Hospital Account But that this Man should receive the Money I have earned and which neither he nor any of his Friends dare ever yet pretend to be his due My Lord I have but two things more to add and I have done I beg your Lordship's Pardon for detaining you so long and will be very brief in what remains My Lord that excellent Person Mr. Serjeant Pemberton in his Opinion given under his Hand upon this very Case of ours hath these very words which follow I conceive that the Court of Aldermen being the Persons who authorised the Governors of this Hospital by their Order when the Corporation of the City of London was dissolved by the Judgment in the quo Warranto the Authority of those Governors of the Hospital ceased and they cannot act again without a new Order or Appointment of the Court of Aldermen and I conceive the King's that is King Jame's Proclamation in October 1688 doth not give any Authority to the former Governers of the Hospital 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 Governors If then the Governors which were ejected could not be restored without a new Order of the Court of Aldermen the same must be granted likewise of the Officers too because they both acted by the same Authority they were both ejected by the same and it is the same that must restore them both and accordingly it must be confessed my Lord that they were both of them restored by the Court of Aldermen commonly so called but the question is whether that were a legal Court of Aldermen or no and to this I answer that it was not then in the express Judgment of the Act of Parliament it self neither is it to this very day and I am so well persuaded that this is effectually proved in a Paper lately published and Entituled Considerations upon the Act of Parliament for reversing the Judgment in a quo Warranto against the City of London that when I see that Paper substantially answered which I do particularly challenge the Defendant's Council to do I will be content not only to lose my Place and my Arrears but to suffer any other Punishment or Disgrace and I hope the Parliament when they meet will not only excuse but justifie the Author of it as well for the clearness and convincingness of the thing it self as that it tends to vindicate and assert the Honor and Reputation of that August Assembly and to the Publick Good of the Nation But let that be as it will there are several worthy Gentlemen that have put in their Claims as well to the Chair it self as to their respective Seats in the Court of Aldermen which during the avoidance of the Charter they relinquish'd Now if there were nothing else but this to be considered it is impossible to determine in favor of the Defendants till it be first determin'd in a judicial way as it now lies before your Lordship in the King's-Bench or by the Parliament it self who are the best Expositors of their own Sense and Meaning whether this be a legal Court of Aldermen or no for I suppose it will be confess'd on all sides that without the legality of the Court of Aldermen be first of all admitted there can be no legal Governors or Officers by their appointment though we say they would have been illegal though the Court of Aldermen had been never so legal because they cannot by an inferior and delegated Power reverse the legal Act of the Supreme and the Act of Parliament Confirms none of their Acts but such as would have been legal had the Authority been so and not otherwise and such as could not without iniquity and inconvenience be repealed as will appear to any Man who shall peruse it so that I think upon the whole matter there never was a more weak and shamefully defenceless Cause from the Creation of the World to this very moment in which I am speaking nor will be again from this very moment till the last Trumpet shall Sound a Resurrection at the Consummation of all things The second thing which I intend to speak to and with which I shall conclude shall be their Majesties gracious Declaration of the Twenty Third of May in the Year 1689 and in the First Year of their most glorious and happy Reign for Encouragement of Officers Seamen and Mariners employ'd in the present Service In the last Clause of which it is provided in these Words That the Moyety of our Hospitals in England employed for the Cure of wounded and sick People be reserved during the time of War at Sea for such as shall be wounded in the Service of the Navy as they shall become void from and after the First Day of June next 1689. Where we see not only that their Majesties claim a Propriety in the said Hospitals by calling them our Hospitals but as such by virtue of their Proprietary Power it being of the liberty of Proprietors to do what they will with their own they appoint that one Moyety thereof should be reserved for the Sick Maim'd and Wounded in their particular Service which without a legal Propriety they could no more do than by Law they could quarter Soldiers upon private Houses without the consent of the owners If these Houses be the City's and not the King 's then the King cannot quarter Soldiers upon them and much less Maintain and Cure them out of their Revenues without the consent of the City but this Order asks no leave of the Lord Mayor or Court of Aldermen or of the Citizens and Commonalty of the City but relies wholly upon its own Authority and appoints a Moyety to be reserved as their Majesties due whenever they please to claim it and they might have claimed more if they had so pleased and may do it as often as occasion shall require so that all the question is whether this Order be legal or no for upon Supposition that it is then the Hospital is the King 's and not the City's otherwise than by way of Trust and Delegation but yet so as that the King may at all times command to be done therein so the Intention of the Charity which was for sick and wounded People be not infringed whatsoever he thinks for his Service that the Lords of the Council were of Opinion it was legal is plain because they caused it to be Printed by an Order of the same date which is Printed together with it and I dare say it will be granted to be a much greater Exercise of Regal and Visitatorial Power to exhaust and spend the whole Revenue of the same upon Persons of their Majesties particular appointment than to appoint a few Officers and Tenders to look after them which is all that we pretend to the Gross and Substance of those great Charities being consumed upon the Patients whose Servants and the King 's we are Thus my Lord I have undertook to defend the Rights and Prerogatives of this Imperial Crown so far as this Caâ—e is concerned against those that at the Hospital Charge and out of the King 's proper Revenue are come hither to defeat and overthrow it an Attempt so Loyal that it may deserve to be considered even though in your Lordship's Judgment I should not have proved all that I pretend to do which yet I humbly hope I have done I have made it a part of my Business to evince as well as I could upon what very just and reasonable Grounds the Regulations in the time of the late King Charles II. were made and that it was not only the Monarchy and the Prerogative but the Honor and Interest of the Church of England that was concerned in them My Lord Unity is necessary in all Places for the due Administration and Management of Affairs but no where more than in such an House as this where not only the credit of so Magnificent and Princely a Bequest but even the Lives of the Patients and the