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
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
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