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
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
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
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
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
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
Attorneys of this House and to appear before Your Lordship as a Representative of the whole Body of Governors in its behalf when yet all this while it is a very great Question whether they do really belong to it or no and a Question that cannot be resolved in their Favour as I humbly conceive without the Admission of a Dispensing Power in Men that never pretended to it till now and that decry it in Princes themselves But they appear in the Hospital Behalf and they were to be commended for their Charity to appear in the Behalf of a charitable Foundation to rescue it from Abuses and to assert its Rights if they did all this at their own Charge but it is their Majesties and the Hospital that must pay for all this out of the Hospital Stock though the Design be nothing else but to overthrow the Royal Prerogative and to clip the Wings of the Imperial Eagles but this is the Commonwealth Notion of the Liberty of the Subject the Destruction of the Rights and Prerogatives of Kings But secondly my Lord as the best refuge which our Adversaries have in a very shameless and defenceless Cause they are pleased to say that our Orders from the Commission run only during pleasure and that that pleasure and its effects are extinct the one of which we grant the other we deny for the pleasure of that Court was the pleasure of the King who never dyes though he may recal what he hath done by a new Commission or by a new and further Declaration of his own will but for an inferior Court whose Abuses were intended to be corrected to renew and act over again the same Abuses and to restore the very same Persons and Powers that were discarded upon pretence that the pleasure of the Commission which they never withdrew by any act of theirs is extinct by their Dissolution is to render the King's Power of Visitation a thing so extremely mean little and contemtible and besides to cast a Blemish either of Ignorance or which is a greater dishonor of injustice upon him that it is plea not to be endured and I am sure it scarce deserves an Answer If the Governors had chosen an Officer upon a Competition and and the odds had been thirty and thirty one or any other number making only one difference it is certain it he odds had carried it but suppose within a day or two two of the thirty one had died or resigned their Staves as Governors of the House or in this Case it is certain that the pleasure of the thirty one had been extinct in the same Sense that that of the Commissioners is pretended to be and then the Will of the thirty still supposed to be surviving must have prevailed and the Officer chosen by the thirty one ejected to make room for him that was chosen by the thirty which is flat and clean contrary to the Course and Practice of all Elections and is a sufficient Idication that the Legality of such Acts when they are done derives a Validity upon them even in Arbitrary Dependences sor the time to come unless they be repealed by a superior or at least an equal Authority and the nature of Justice and Morality require that it should be done likewise for equitable Reasons and if the Act of Parliament for the reversing the Judgment hath confirm'd all those Acts during the avoidance of the Charter which would have been legal had the Charter stood how much more might those Acts to be esteem'd valid which have also a legal Foundation as this Commission manifestly had so far as the Hospitals were concern'd whether the Charter had been seized or no My Lord It is rather the King and Queen are the Plaintiffs in this Cause than we it is their Eternal Prerogaiive more than our Temporary Interest that is concerned and it is plainly a Contest and a Struggle betwixt a Commonwealth-Faction and the Monarchy and Crown of England I shall detain your Lordship no longer from the perusal of the following Memorial but humbly beg leave to write and subscribe my self My Lord Your Lordship 's most Humble and most Obedient Servant John Turner Aug. 25. 1690. A MEMORIAL Humbly Presented to the Right Honorable The Lord Chief Justice OF THE KING'S-BENCH c. May it Please Your Lordship THE Case referred to your Lordship by the Council-Board is so plain that it needs only opening and being set in its true Light to determine that Justice which is byass'd by nothing but Reasons drawn from it self to the Plaintiff's side My Lord By a Clause in a Statute of the 28th H. 8. c. 21. it is provided That it shall not be lawful for the Archbishop of Canterbury or any other Person or Persons to visit or vex any Monasteries c. Hospitals Houses or other places Religious which be or were exempt before the making of this Act but that Redress Visitation and Confirmation shall be had by the King's Highness by Commission under the Great Seal to be directed to such Persons as shall be appointed requisite for the same And in the Royal Grant of King Edward VI. to the Mayor Commonalty and Citizens of the City of London whereby the ordinary Government and Administration of the said Hospital and its Lands Revenues and Possessions is entirely committed to and entrusted with the Mayor Commonalty and Citizens aforesaid yet there is still notwithstanding a special Proviso in extraordinary Cases whereby the Power of Visitation and Regulation in the said Hospital is reserved to the King and his Successors for ever the very Words of the Clause are these that follow And We will and declare by these Presents that it shall be lawful for Us Our Heirs and Successors from time to time as often as it shall seem fit and expedient to assign Our Commissioners to visit the said Hospital and House of the Poor and to do and execute all and singular such other things whatsoever as We Our Heirs and Successors shall there command to be done As to the Clause in the Act of Parliament which is still in force that Act having never yet been repealed either in whole or in part it is plain that if this Hospital were such though it were not an Hospital of the same nature before the making of this Act if it were a Religious House in the same sense that all Charitable Foundations are interpreted to be so and if it were a Place exempt from Episcopal Jurisdiction at the time of the making of this Act and before it and hath continued so ever since in virtue of that ancient Exemption which it is matter of Fact that it hath done and it is equally certain that it can plead no other Right of Exemption but this to this very day then is it without controversie a Place subject to the King's Visitation by virtue of this Act and that the Kings and Queens of England for the time being may for ever visit and regulate all
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