AN ARGUMENT IN DEFENCE OF THE HOSPITALLER OF St. THOMAS SOUTHWARK AND OF His Fellow-Servants and Friends in the same House LONDON Printed in the Year MDCLXXXIX To the Right Honourable The LORD-MAYOR of the City of London and to the Honourable the Court of Aldermen Right Honourable I Confess it was a great surprize to me to see an Order of Court made for my Ejectment out of this House in behalf of Mr. Hughes the old Illegall Incumbent without being first heard what I had to say for my self but an after game being better then no Game at all I haue here made the best I can of a bad Market and have endeavoured to lay before you a true state of the Case humbly Entreating you to consider a little further before you determine finally and Peremtorily in the matter against the only Son of a Citizen like your selves who hath upon that account an equitable pretence to your favour to say nothing of that Justice which every Forreign Petitioner may claim I am satisfy'd by the wording of your said Order that you have been misinformed in the nature of the Controversy betwixt Mr. Hughes and me as if he had a legall night accruing to him upon the restitution of the Charter which I am well assured he hath not and I must appeal to all indifferent persons whether I have not sufficiently prov'd it This is one plain misapprehension which seems to me to evacuate the said Order because it is Founded upon it and if it had not been for that it appears to me by the express tenour of it that no such Order had ever been made Another is that the very Order it self in whatsoever words it be conceived supposeth the Cognizance of this matter to ly immediately and properly before you which I humbly conceive it doth not but before the King till he shall be pleas'd to remit it baâ—k to you which I shall be so far from being dissatisfy'd at that I repose a perfect confidence in your goodness and justice to me and I attribute it to nothing but a misunderstanding that any prejudice hath been done me in this affayr You ought not my Lord and Gentlemen to think your selves depretiated or undervalu'd in that I say the King is your Superiour in those things which belong properly and legally to his inspection when ever he pleaseth to concern himself about them and which he hath actually taken into his immediate care King Charles the Second of Glorious and Blessed memory having made a Royall regulation in this House which cannot be alter'd as I am humbly of opinion by any lesser power without the Royall assent Neither is it or can it be thought any diminuition to your Honourable Court that you should reverse the sentence you have past when even the greatest Lawyers do frequently alter their minds and the decrees of Chancery reversing one another are a plain indication that even they are not infallible whose business and employment it is to understand these matters better then others I leave it to your Lordship and the Court to consider among many other things that appear to be foul against him whether the King if it were referred to his Majesty to determine would think it fit to feed with his own proper bread or to bestow the rewards of Virtue and Obedience upon the Patron and Encomiast of his Grandsire's Murther I wish your Lordship and the Honourable Court all Happyness and prosperity and I pray as for the Peace of the Land of Canaan in generall this Land of our Nativity that flows with Milk and Honey so more especially for that of your Jerusalem and that they may prosper that love it I am may it please your Lordship and the Honourable Court Your Honour 's most humble Obedient and obliged Servant John Turner THE CASE Between Mr. Hughes the late pretended Hospitaller of St. Thomas Southwark and Mr. Turner the present Lawfull Incumbent of the same truly Stated Qui aliquid Statuerit parte inaudita altera Aequum licet Statuerit haut aequus fuerit Ad orbilium Hugonem Carpere vel noli nostra vel Ede tua BEcause Mr Hughes the late pretended Hospitaller of St Thomas Southwark renews his pretensions upon the Restitution of the Charter as if there were such a necessary Connexion betwixt old Men and old Franchises that both must unavoidably be restored together therefore I am obliged in my own just and necessary defence in opposition to the false and unjust insinuations of an Illegall pretender to State the whole matter as it is in it self and to suggest such considerations as do naturally arise from it to keep the Legall possession I am in and to preserve my self from his intended intrusions and usurpations upon it Mr Hughes was ejected at the same time or within a very little while after that Judgment was had and Entred upon the Quo Warranto against the Charter of this Famous City and therefore this is all which he urgeth in his defence the Charer is restored and so am I For we are more nearly related then the two Tyndaridae Mr Hughes who is a Schoolmaster knows who I mean that use to live and dye by Turns and like Hippocrates his twins we both of us share in the same common Fate we laugh in consort and we weep together Now to answer the more effectually this shrewd and Pestilent objection raised against me by a man that I hope understands Grammer a little better then he seems to do Sense I beg leave in the first place to lay down Mr Seymours Case as it was ingeniously and truly Stated by himself together with the opinions of three of the best Lawyers and persons of the most unquestionable Honour and Integrity as well as Skill in their Profession that this Nation affords upon it and then to raise such observations from the whole as affect my Case as well as his and to make such other animadversions and remarks upon the Circumstances peculiar to Mr Hughes or me as the occasion calls for which I will do with all the Clearness and brevity I am able without giving my self that Latitude either for anger or wit which Mr Hughes his provocations would incite me to or which his untoward History would afford me and in a word without any other reflection then what the matters of Fact essentiall to my defence do of necessity constrain me to reserving his life to be written by some other hand if there be any that think it worth their while or if there be any that can take a pleasure which I find to be very unnaturall to me in exposing the Faults or Follies or in upbraiding the complexionall misfortunes of little or imprudent men The Case as it was Stated by Mr S. and was resolved by those Learned Gentlemen is as follows The Case KIng Edward the 6th having Founded and Endowed St. Thomas Hospital in Southwark grants the Lands and Revenues belonging to the same to the Mayor Commonalty and Citizens of the City of
London for the benefit of Sick and Lame indigent Persons with liberty in his Charter reserved to visit and enquire into the management of the trust According to the usage of the City the house hath been always governed by Citizens and others appointed by the Court of Aldermen the Governours of the house for the time being and the Court of Aldermen according to the laws and customes of the City chose A their Clerk. A Quo Warranto being afterwards brought against the City and Judgment Anno 1683. being thereupon had and enter'd a Commission was thereupon granted to certain Aldermen and others to regulate the said Hospitall and inter alia to appoint Governours and Officers of the house The said Commissioners appoint B. to be Clerk of the house instead of A. during the pleasure of that Court of Commissioners His Late Majesty James the Second when this Case was stated restores to the City their antient government Lands Tenements Franchises Priviledges c. and soon after issues out his Proclamation for restoring Corporations c. dated the 17th of October 1688. and dissolves the said Commission The Case being thus stated the question is Whether by the said restitution of the Charter c. and by the said Proclamation or either of them B not having been discharged of his office by the Commissioners A hath any right to be restored to his office of Clerk especially if the Court of Aldermen hath since the restitution of the Charter confirmed all officers belonging to the City in their respective places and the right should appear in that Court to choose a Clerk of the said Hospitall Sr. Francis Pembertons resolution of this Case I conceive that the Court of Aldermen being the persons who authorised the Governours of this Hospitall by their order when the Corporation of the City of London was dissolved by the Judgment in the Quo Warranto the authority of those Governours of the Hospitall ceased and they cannot act again without a new order or appointment of the Court of Aldermen and I conceive the King's proclaimation in October 1688. doth not give any Authority to the former Governours of the hospitall to Act by the former Authority to them given by the former order of the Court of Aldermen but they ought to be Commissionated by a new order before they Act as Governours I do apprehend this place of Clerk to the Governours not to be a standing Office but rather an Employment in it's nature to be put in or out by the Court of Aldermen if they please or if the Court of Aldermen please by the Governors but such Clerk hath no fixt interest in his Employment and A. hath I conceive no right to this place unless be should see a new chosen and appointed thereunto by a new Order and the Kings Proclamation in October extends to the enabling and empowering all members Officers of Corporations to act as they might have done before the Quo Warranto's were brought but that extends only to what they might do as members or Officers of those Corporations but not to any collaterall matters which they might have done by virtue of any collaterall Commissions derived from those Corporations as the case of these Governours and clerk of this Hospitall are And I conceive that any Governours of this Hospitall appointed by those who acted as Mayor and Aldermen of London by virtue of any Letters Patents since the Judgment in the Quo Warranto are all disabled to act or do any thing as Governours Letters Patents to those Mayors and Aldermen being set aside by this Kings Proclamation in October last and all the authorities derived under those Letters Patents as depending on them falling with them Fr. Pemberton Mr. Pollexfen's Opinion of the same Case I conceive that the Clerk hath not any Office or Estate but is only a Servant to the Governours not within the Charter of restitution or the Proclamation claiming any legall right or interest but is at will of the Governours and they at their will and pleasure may put out or take in or employ in the place whom they think fit Hen. Pollexfen Jan. 11. 1688. Sir John Holt's Opinion to the same purpose I conceive that the Clerk not being a Charter Officer is not restored by the Kings Proclamation which extends only to such Officers and members of the Corporations which were made upon the Originall constitution or by virtue of some Charter but the Clerks place is only a Service or an imployment which is wholly at the disposall of the Governours as they shall think fit J. Holt. January 15. 88. The First observation I shall make from hence shall be taken from the stateing of the Case it self wherein it is set forth that this Hospitall being Founded by King Edward the Sixth the care and trust of it from time to time was committed to the Mayor Aldermen and Commonalty of the City of London reserving to himself and Successours a liberty to visit and enquire into the management of the trust and without any such express reservation in the Charter it self it is but reasonable and Just that in all Hospitals that are of Royal Foundation the King should be the proper and Supream Visitor because without this the King and his Successours can have no Assurance but that his Royal Intentions may be disappointed his Charity Embezled and the trust which is reposed in certain Persons for the due management of it betrayed and besides the Nature of the thing added to the express reservation of our Royal Founder in his Charter the King by Act of Parliament is the Supreme Visitor of Hospitalls and Publick Charities to see that they be conferred upon fit and suitable objects and managed by Officers well qualify'd for their Employments Now from hence it appears that the avoidance of the Charter and the Regulation of the Hospitalls that Followed quickly after it have no manner of Connexion with each other it is true indeed that after Judgment was had and entred against the Charter all trusts that were reposed in the City as a Corporation did of necessity fall together with it but yet it is Equally true that the King might have visited and regulated this and other Hospitalls though the Charter had stood he being Supream Visitor and Inspector of the same but more Especially of Royal Hospitalls that owe their Foundation derive their Constitution and receive their very being from the Crown so that it is plain that the old Officers might have continued in this house if the King had so pleased notwithstanding the Charter of the City was made void and that the destruction of the Charter had no immediate or consequentiall Operation upon the Officers of this House they not being Charter Officers but Persons Employ'd in a trust under the King whom he may always place or displace at his pleasure and of whose fitness and capacity for their respective Employments he is the Supreme
then what was orbitrary and dependent upon his will but a Corporation acting under him though the generall 〈◊〉 be actually 〈◊〉 upon them yet they cannot displace a particular person whom the King hath chosen with out first representing to his Majesty the reasons of it in order to the obtaining his consent so long as he is alive For a deputy a servant can do no legall act in opposition to the principall from whom the power is derived but they may and ought to represent their reasons if they be of consequence to the good of the house and if he will not Dear them they have discharged their duty and ought to be content with the honour and satisfaction of having endeavourâ— to do justice and of having eased their consciences of the guilt that would have lain upon them by a willfull neglect of the trust committed to them and after his decease as it is in our case only the Successor can destroy what the Predecessor hath done out of the fullness and plenitude of his power it being as impossible for a lesser power to destroy the act of a greater as it is for a private man by virtue of any private authority and right which he may assume or fancy to himself to chuse whether he will obey an act of Parliament that concerns him 〈◊〉 be 〈◊〉 with by another act of equall authority in its legislative originall and of greater in its post liminious application because it supercedes the obedience to the other and for any lesse power without a reason given or an application made to the Sovereign then in being to reverse what the 〈◊〉 by his own rightfull power hath ordained is for servants to assume that dispensing power to themselves which they decry so loudly and so desprvedly in their Masters for there is no right in nature but legall right and for any that have not authority to reverse the legal act of a superiour power must needs be inauthoritative illegall and void If this argument which I design only to justify my self and to shew upon what bottom my title to the place of Hospitaller stands does in its application prove too much and extend it self to others as well as my self those Gentlemen that claim and are actually repossessed upon the restitution of the Charter may thank themselves for solliciting Mr. Hughes to come up and renew his crackt and illegall pretentions and for making this defence which I would have been very glad to have let alone to become as necessary with respect to me as is is just and honest in it self If the Right Honourable the Lord Mayor and the Honourable Court of Aldermen to whom I pay all that deference and respect which their great quality and Character Justly calls for shall look upon this as written in derogation to them and to the power and trust committed to their Honourable Court I humbly hope when they have duely considers of the matter they will concurr with me and that if I should maintain the contrary position they would think themselves concerned out of a principle of Loâ—alty and duty to eject me out of this house that it is by no means a dâ—minution to their just Rights in those things which the Sovereigâ— hath not determined to acknowledge his Legall Sovereignty in thâ— which he hath For the King acted in the Regulation of this House 〈◊〉 〈◊〉 Virtue of any Arbitrary Power which he unjustly assumed and arrogatâ—â— to himself but by such an one as is inherent in him by the reserve in thâ— Charter of the Royal Founder by Act of Parliament and by the very Nâ—ture and reason of the thing by which he must always be supposed to be invested with a Power to see that his own Charities be rightly disposed The King is the First Visitor of this Hostell de dieâ— this House of Invalids the Lord Mayor and Court of Aldermen are the Second acting by a Power derivative from him and therefore it is plain they cannot resâ—ind an Act of his which would have been Legall in it self because all Legall Acts done and passed by a Legall Superior Power cannot be rescinded without the consent of the Sovereign by any Subordinate Authority acting under it because this were to rob and deprive him of that Supremacy and to assert his Prerogative to themselves and if that grave and wise Assembly in this hurry of Affairs have yielded a little too far to the Sollicitations and Importunities of Men without a Title and proceeding upon a false Erroneous Hypothesis of the Restitution of the Charter which hath no manner of connexion with our Case yet a Facto ad jus Consequeutia non valet the Fact and the right are two things and the Judgment of that right in what Persons it is placed we humbly conceive with all imaginable submission to the Court of Aldermen lyes unquestionably before the King whose just Power in this or any other matter I hope it will never be a crime to maintain For as one Act of Parliament cannot be repealed but by the Act of another so the Act of a King in those Affairs wherein he hath a proper cognizance and Legall Power can only be rescinded by himself or his Successor in the Imperial Seat unless they be such Acts as are Limited by time as in the affair of Parents or Temporary Proclamations or the like and then at the expiration of that term they die and are repealed of themselves so that having been placed in this Station by one King and allowed by another I trust his present Majesty shall have no occasion to think any otherwise then Favourably concerning me and I rely upon the Grace and Goodness of King William and Queen Mary that the Gift of Gods Viccgerents will still be without repentance as well is those of the Divinity it self That I appeal to the Throne it is because I see the whole affair lying so naturally prostrate at the Footstool and that the Judgment of it cannot appertain to any other Court or Judicature whatsoever till it be remitted from thence and I shall very willingly acquiesce in the Determination of that Power in whomsoever it is lodged is being too little an Imployment for the thoughts of Princes that have so vast objects to exercise themselves upon to whomsoever the Sovereign shall please to referr it but more especially I repose an entire confidence a Fixt unshaken and I had almost said a demonstrative assurance in the Favour of that Honourable Court to which the ordinary inspection and Visitation of this house belongs being in some sense an Orphan of the City left destitute by a good but an unfortunate Parent that was undone in part by the Fatall Conflagration and in part by other accidents incident to Trade I have a great deal of reason to expect from such a Constitution where the Lord Mayor next under his Majesty whom God preserve is my Political Father the Aldermen my Guardians and the Commons all allyed