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
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
to restore his lawful King as the best and only means to put an end to those Confusions and the most conducible to his own Honor and Safety but had no thanks for his pains as the Story is largely represented by himself in his accurate and excellent Memoirs As for the Sermon it self to mention every thing that is obnoxious in it would be to transcribe it all therefore I shall set down only two notable Passages leaving the Reader to make his own Paraphrase upon them The first relates to the Tryal and Condemnation of King Charles I. by the pretended High Court of Justice which he shows us was not so bad a thing as some would make it and by several very pleasant Comparisons endeavors to make the Murther and Deposition of Princes so easie and familiar that the most squeamish of his Readers may digest it Pag. 12 13. 3. Conclus 3. All unusual are not strait unwarrantable Courses although of late less beaten Paths have been walked in it follows not that 't is a Trespass presently What will you say to Phinchas Numb 25. 6. Psal 106. 30. who executed judgment upon Zimri The one a Prince the other but a Priest and so no Magistrate nor commissioned from him that may be clearly found not that such Instances are always or in all things imitable yet 1. Where Circumstances do concur the Plea is somewhat strengthened that 's drawn after so fair a Copy that brought Gods Approbation to the Author and Imprimatur to the Action 2. A minori if a private Man without an Hearing c. much more a Supreme Court by fair Proceedings and yet that Action of the Parliament is not without Precedent neither and therefore not so uncouth as some do render it Indeed I look that peevish Spirits will be angry that I tell them so although the Sober may accept it as a Courtesie for whose sakes are the following Instances Tarquinius Superbius the Seventh and last King of Rome was expell'd and Monarchy thence together with him Nero the Sixth Emperor of Rome was by the Senate declared an Enemy and condemned to be Whipt to Death Wenceslaus King of Bohemia was deposed by the Eloctors Richard tho Second King of England was deposed by Parliament and after Famish'd in Pomfret Castle Athaliah the Queen was slain by the Officers and Captains 2 Kings 11. Amaziah tho King after he forsook the Lord was Executed 2 Chron. 25. Which I only mention to the end Mens Discontents might once be ended O rare Hospitaller The other Passage is concerning tho Ministers that were ejected by those Impudent Fellows tho Tryers for no other fault for the most part but only being scandalous for Learning Loyalty or some other Virtue and many times all Virtues in Conjunction together he presseth tho vigorous Prosecution of so good and useful a Design and that you may see he was through-paced and flinch'd at nothing he recommends Coblers and Tinkers and other Lay Divines well furnish'd with Confidence and well appointed with Lungs to be presented to Livings in the room of those Bookish Human-Learning Prelatical Antichristian Theologues that were ejected his words are these p. 17 18. 3. Encouraging an able Gospel-Ministry for them your selves and for the Nation from first to last ordinarily there neither hath been not is any true Conversion without an outward Ministry to pass by others the sad Prophaness on the the one hand Blasphemous Heresies on the other or gross Ignorance on them both are Arguments enough and over to convince us of the Necessity of such a Ministry But God forbid my Mouth should open for those whose Mouths are shut * Silenc'd Clergy-men Dumb Dogs the Scripture calls them or that I should Pronounce one word in their behalf whose wicked Conversation doth as it were Renounce the Gospel they Profess he that labors not or not to purpose let him not eat I humbly beg that those commissioned †The Tryers to that purpose would be active and impartial as to find out so to turn out such that if they do no good you may prevent them from doing hurt We are sure there is a Nest of such about the Country but where the Fault is whether because the People will not inform or those impowered not reform I cannot say whatever others may suspect nor is my purpose to confine this necessarily to a Coat our Hearts as Moses's would all the Lords people were Prophets so then that those found worthy-and approved for the Work be rewarded in it Christ saith the Laborer is worthy of his hire which is meant of a Gospel Minister whether he be sent or no O brave King's Chaplain O fine Mr. Hughes Euge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ADVERTISEMENT THere is Affidavit made before one of their Majesties Justices of the Peace and one of the Governors of St. Thomas Hospital that Dr. T. the present pretended Physician of that House did in January 88. a little before the then Prince of Orange our present gracious Sovereign arriv'd at London or the Government which was then in great Confusion was settled declare it as his Sense speaking of the four last Kings that they were Rogues and Rascals and that we had better be govern'd by a Commonwealth or a State as in other Countries than by any of them And we have other things of a like seditious Nature that shall be afterwards proved against him if there be occasion or if he wants to have them proved Quaere Whether such a true Trojan to Monarchy as this be not very fit to receive the King's Pay in a Royal Foundation And whether he and his Brother Chaplain are not very finely pair'd FINIS
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