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
nature hath at length taught them by an Experience much to be lamented and deplored that there may be an Excess of Loyalty upon some Occasions and that Princes of that Persuasion are never to be obliged by all the utmost Services that can be done them that they know no Gratitude and can remember no Kindness but look upon all as unprofitable Servants that will not be Converts as well as they have been Friends Now though nothing be more unskilful if it be not unjust and wicked than to tack the Avoidance of the Charters and the Regulation of the Hospitals so very close together as if they had an inseparable Connexion with each other and were not to be parted and to affirm that the one being Arbitrary and Illegal the other must of necessity be so too yet this is almost the only thing that is pretended against it this is that that hath drawn such an Odium upon this latter Action for the sake of the former that it is reckoned by all that have not or cannot or will not pry into the true state of the Case among the Arbitrary Transactions of that Reign and the Persons employed in the Service of these Houses in the room of any that were â—ejected from them are blackned and branded by their Enemies for the sake of their Cause we will allow them that the first Hint of the aforesaid Regulations was taken from the seizure of the City Charter into the King's Hands and that the Charter being voided there was a necessity that the Hospitals which were annexed to and incorporated into the City should be managed as the City was by a more particular and immediate Commission from the King but yet the King need not have made any Regulation all this while and unless they can prove that the King might not have visited though the Charter had been in full force and virtue they do nothing at all or at least nothing to the purpose for if he might not have visited and made what Regulations he saw fit in case the Charter had been standing I would fain know what is the meaning of that Clause in the Act of Parliament of K. Hen. 8. which I have cited or of that Reservation in the Grant of K. Edw. 6. but if he might visit though the Charter were still standing then the Illegality of the Seizure or Avoidance of the Charter could by no means affect the Regulations that were made in these charitable Houses because they have another and a distinct Authority whereby to defend themselves Again if the Seizure of the Charters themselves though it could not be justified by Law and was defective and arbitrary as to the Authority upon which it proceeded yet had such a Reason of Equity or of Prudence or Necessity or whatever we shall call it as did really reconcile if not recommend it too to some that were no Friends to Arbitrary Power how much more reasonable was the Visitation made in this and other Houses and the Regulations consequent upon it when the King proceeded by virtue of a Power which even the bitterest Adversaries it hath must after all acknowledge to be his due nay what an Absurdity would it have been for him not to visit where he hath such an unquestionable Right of Visitation to expel those Enemies of his out of his own House that say in their Hearts We are for a Commonwealth and we will not have this Man to reign over us For turn a Dissenter or an Half conformist or a Favourer or Abetter of such turn him forward and backward topsy turvy inside and out-side set his Face towards Samaria or set it towards Jerusalem he is still the same Person all over in every part and in every Position a Commonwealth-man and an Enemy to Monarchy whether he knows it or designs it or no and he differs no more under one Representation from what he is in another any honest and fair Representation I mean than the Southern and the Eastern Prospect of the same Building which are all essential to and constitutive of the whole and are but several Parts of the same Aggregate or Commonwealth of Stones of which it is compiled It is an hard Case that a King must be forced to accept of such to be his Governors or Officers and Servants in his House that are all of them Enemies to his Government in their Notions and most of them in their Designs and if he be not forced to submit to these extravagant terms so that Governors of a Feather shall chuse one another by consent and shall administer the Affairs of the House whether he will or no and shall call Committees if they please of a select number to plot against the Government under pretence of doing the Business of the House I say if he be not thus forced but may be Law discard either Officers or Governors at his Pleasure then it is plain that they who pretend to restore the very Persons that were so ejected do assume to themselves a Dispensing Power in no less than five several Respects which is enough in all Conscience for Subjects to do First They dispense and whether the King will or no whose Authority first gave the Sanction to the Law with that Clause of the Act of King H. 8. by which the King and his Successors for the time being were for ever invested with a Power and Right of Visitation and Redress by rendering that Clause altogether fruitless insignificant and vain Secondly They dispense with the Reservation in the Grant of King Edward VI. by which after all his Concessions to the City of London he still reserved this Power and Right to himself and to his Successors in the Throne for ever Thirdly They dispense with that particular Clause in the said Grant whereby a fit and convenient Minister is provided to celebrate Divine Services and administer the Sacraments and Sacramentals to the Poor and Officers and Ministers of the said Hospital and House for by that fit and convenient Minister I have undeniably proved in my Appendix to the Queries upon the Statute of H. 8. That a Clergy-man of the Church of England according to Law was intended and the same must be understood of the Officers of the House to whom the said Hospitaller cannot otherwise administer the Sacraments and Sacramentals nor celebrate Divine Services in their presence and hearing as King Edward required they should do but as for the Poor indeed it is another Case there is an occasional Dispensation certainly included in the nature of the thing for it does by no means follow because a Man cannot bring himself to be of our Persuasion that therefore his Necessities must not be relieved his Wants supplied or his Diseases Wounds or Ailments cured but for Officers and Servants there is no color of excuse in so great Choice of fit Persons to be found and if not Officers of a Dissenting Party then it follows plainly nor Governors neither because such
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
put into such Hands as the Law had expresly and sollicitously precluded from having any share in the Publick Administration not that the Romanists had any such real Tenderness for the Dissenters or that they on the other side by all the Caresses and Endearments in the World could be brought off from their deserved Aversions to the Church of Rome but in this common Design they both agreed That the Church of England must down and then a new Tryal of Skill would have succeeded which of these two should be triumphant at last and trample upon the other after all this Fawning and Friendship the Romanists who can never tolerate but when it is not in their Power to punish relyed upon the Favor of the King the Advantages of that Power and Interest that would be put into their Hands and their then very formidable Alliances abroad but yet the Dissenters still looked upon them but as an handful of Men and thought at last by their Numbers to prevail and this was plainly and manifestly the Game that was then played on both sides The Regulation of Corporations by the Quo Warranto's must be acknowledged to have had a great deal of Arbitrary in it because as I have already hinted it seemed to strike at the great Fundamental of the English Liberty which consists so much in the Freedom of Elections for Burgesses to serve in Parliament and by this means if Corporations might be dissranchis'd and renewed according to the King's Pleasure Parliaments might be molded according to the same And there was also a particular Account upon which this Proceedure was very offensive and ungrateful to great numbers of Men and that is that it was designed to ensure the Succession without any Interruption or Exclusion to the next Heir whose Religion was a Pretence with some and a Reason of Conscience with others for hindering his Accession to the Crown and this it did effectually do there being few or none permitted to have any Power or to make any Figure in this unprecedented universal Regulation but such as had beforehand openly declared against any such Exclusion and were zealous Asserters of the Monarchy in its old course of Descent but it must always be owned to the Honor of those Gentlemen generally speaking all over the Nation that bating the Authority by which they acted which the Parliament have declared to have been Arbitrary and Illegal and the Reason of the Thing speaks as much yet as to their Actings themselves or as to their Behaviour in their respective Charges they shewed plainly that what they had done was only out of an honest and an upright Zeal for the Preservation of the Monarchy in its true Line in opposition to the Practices and Designs of Republicans and Dissenters who were glad of any colour or shadow of a Reason to interrupt and as they thought to weaken it and render it more precarious by so doing without any thought of Compliance with a false Religion or of submitting themselves and their Posterity to the old Bondage of the See of Rome And as one great Instance and assured Token of their Firmness and Constancy to the Religion establish'd they sent us a Representative like themselves after all the Art and Industry used by Court Emissaries and Agents at the respective Elections in the beginning of the last Reign a Parliament that could distinguish rightly betwixt God and Caesar and was resolved to give to each of them their due a Parliament that opposed vigorously the Dispensing Power and stood up firmly to the Church and the Laws and a Parliament that as the Right Reverend my Lord Bishop of Salisbury in one of the six Papers that go under his Name observes made sufficient Amends for the Faults of their Election by their personal Virtues and by the Courage and Constancy which they shewed in the Defence of their Religion and Country so that when the Point of Succession was now over by the immediate Heir's being actually in the Throne and when they would not break in upon those Walls and Fences that had so long preserved this Paradise of England from the Revages and Incursions of the Boars out of the Wood and the savage Beasts of the Desart and the Field there was now no longer use of such Men they were discarded and dissolved as unfit for any future Service and new Regulations and of another sort were attempted in which none could be found so fit for the present Turn as they that were formerly the most eager and clamorous for the Passing the Bill of Exclusion the Commonwealth and the Dissenting Party who more out of Hatred to the Church of England than Love to that of Rome to which they were still more averse made large Promises of revoking all those Tests and other Penal Laws relating to Religion by which the establish'd Church was fortified and defended and this was done as it were by way of Bargain between the two Parties for the King would not annul the Penal Laws against Protestant Dissenters unless the Tests and other Laws against Popish Recusants might be abolished and abrogated at the same time and the Dissenters great numbers of them for I do not I dare not charge them all were content upon this Condition to let their new Confederates the Papists enjoy the same Freedom and Liberty with themselves intending after this when they had destroyed the Church of England to try what work they could make with their new Friends and Allies which at the long run and at the winding up of the bottom was manifestly the Design of both Parties upon each other for the nature of things will never permit there should be a lasting Peace betwixt Parties of Such different Interests and of such fix'd and rooted Aversions on both sides so that it must needs be plain to any Man that shall consider it that the Dissenting and Commonwealth Party who were generally the most hot for Passing the Bill of Exclusion besides the just Aversions which they had to Popery had an eye at the weakning of the Monarchy it self which they thought by this means might be impaired and that the other who were against it had not the least thought of Prejudice to the establish'd Religion but rather acted as they then conceived for the Defence and Preservation of it the Monarchy and the Establishment of the Church of England being so plainly bound up in each other tho I deny not all this while but many worthy Gentlemen acted in this Affair for the Excluding Side out of no other Principle but a just Tenderness and conscientious Regard to their Religion and Liberties and because they were of Opinion the Monarchy was not like to run so great an hazard by one single Interruption in the Succession to the Crown and on the other side the Non-Excluders tho what they did was out of Reasons of Policy and State and out of Principles of Conscience too yet Time the only true Judge of Controversies of this