Saturday, June 6, 1657.
A great debate whether Captain Lister's Report (fn. 1) should
be made by Sir Edward Rhodes, now.
Mr. Bampfield, Mr. Fowell, and Mr. Godfrey inferred
that this Report will take two days time; and it was moved
that a Petition from Colonel Welden (fn. 2) might be read.
It was to be relieved against a debt of 4000l. which he
stands engaged for on the behalf of the public; and if the
House be dissolved to-morrow, he shall be delivered up as a
sacrifice for this sum, unless relieved before the House rise.
Colonel White and Captain Baynes moved, that Sir Edward
Rhodes's Report be heard.
The question was put, and the Speaker declared for the
Yeas. Mr. Fowell for the Noes.
The House was going to be divided, but Mr. Fowell stood
up, and said he was satisfied, and the Report was heard
Mr. Rouse. This business has many years laid upon the
consideration of many men, and I believe upon those that
are principally concerned in the trust. I would have you so
dispose of it as that the trust may not lie in nubibus, but
that the settlements may be made to the charitable uses, according to the intent of the donor. Old Hele would weep
when he heard that anthem—
"In getting goods, and cannot tell—"
Mr. Fowell. The Treasury could not settle it, for they
have been and are in continual suite and vexation about this;
and it is well known that the profits go every penny to the
schools, and other pious uses, at Plymouth and Exeter.
Serjeant Maynard told the Committee, that the whole lands
would but settle the charitable uses. There were casualties,
fines to be raised; and if the gentleman could have a portion of 2 or 3000l. I believe the Serjeant would be very willing to it. But if you go to ravel into the whole settlements,
and destroy the charitable uses, I shall use the Serjeant's own
words; you may do what you will, he must submit: but if
ever there be another Parliament, or if he die before, he will
leave it to posterity to be redressed, on the behalf of the pious
uses. So I move that you will do nothing in it, till Serjeant
Maynard is heard.
The Master of the Rolls. It is very true;. I have observed
old Hele weep when that anthem was sung—
"In getting goods, and cannot tell
Who shall the same enjoy." (fn. 3)
I know Serjeant Maynard has been in great trouble in this.
I think if a Bill were brought in, and all parties heard, it
would settle this business, which cannot be settled otherwise
by the courts of justice. I conceive that to relieve the heir
may be as much charity as any of the other uses. Equitas
The case was adjudged upon a full hearing, where— (fn. 4)
gives his estate to such charitable uses as (fn. 4) — shall think fit;
and the heir being poor, it was Resolved then, that he should
have the estate, he being also an object of charity.
Colonels Grosvenor and Cooper moved, that a Bill might
be brought in to continue the charitable uses already settled,
and let the heir have the rest, who is near akin to the estate;
she (fn. 5) being heir at common law, not only in point of charity,
but in point of justice.
Lord Whitlock. I have always observed that rule when I
served in another place, (fn. 6) to pursue the intent of the donor
where there are particular directions, and not to alter the will
of the dead; but when it is doubtful or uncertain, I have
been guilty of relieving an heir in such cases.
I would not have any thing of stain lie upon Serjeant
Maynard. (fn. 7) I have been brought up with him from a child,
and I know he intends all things justly in this business, and
will surely submit to what determination you shall make
herein, according to justice, charity, and equity.
To this purpose I would have a Bill prepared by a Com
mittee, with power to send for persons, papers, witnesses, as
they shall see cause.
Mr. Bampfield moved, that Mr. Fowell might be heard
again to matter of fact, and he was heard accordingly.
Mr. Fowell informed the House how that there was provision made in this case. There were 200l. per annum settled
upon the heir at law, and a 1000 marks a-piece upon the
daughters; which they do enjoy according to that deed of settlement. The rest of the estate was designed to pious uses,
and Serjeant Maynard never meddled with it
Colonel Carter. It was proved to the Committee that old
Hele did not by this deed of settlement intend to disinherit
all the heirs. He was displeased with the then present heir,
but this gentlewoman was not then born. He was pressed to
it by the importunity of a bad wife; and being asked what
would become of his heir, he said he had left it in such honest
gentlemen's hands as would take care of his heir. I hope you
will consider this, though it be omitted in the Report.
I understand nothing of the law, but I have been told by
good lawyers, that where a man settles his estate to pious
uses, in general terms, and no particular directions therein,
the estate descends to the heir. Besides, the will says that
these settlements shall be made in some convenient time, and
it is twenty years since. Here have been all parties heard in
the case already.
There is a short Bill in a gentleman's hand to settle the
remainder of the estate upon the petition. If you please to
read it now, it may save your time.
Colonel Jones. I am not satisfied in the matter of fact.
The matter of fact is not fully stated. I move to have it
re-committed, and then a Bill to be brought in, if you think
fit. Uncertainty remaining in the matter of fact, you are not
ripe for a Bill.
Major-General Disbrowe. There is estate sufficient to
answer all deeds and all parties. I would leave this business
of the lady, and the whole business, therefore, if you please,
to counsel, so that all claims may be understood; and then a
Bill to be brought in to settle all things.
Mr. Speaker moved, to put the question to agree with the
Committee, and then to bring in a Bill.
Mr. Bond. If you put the question to agree with the
Committee, you judge the case beforehand. I would have it
re-committed, and a Bill brought in.
Sir William Strickland moved, that it might be re-committed with power to bring in a Bill, and particular directions
to settle it upon the pious uses and the heir.
Major-General Kelsey. By agreeing with the Committee
you do not at all dissettle the business. The heir desires
only the remainder, after what is or shall be designed to charitable uses. It will be more to the advantage of the charitable uses to have a Bill brought in to this purpose.
Colonel Holland. We went as far in this business in the
Long Parliament, and I remember it stuck here. They told
us that all the estate was disposed of already to charitable
uses. If there hath been any disposition since, the Parliament was not ingenuously dealt with; and if so, there is no
danger in your giving the remainder to the heir. If all charitable uses be served, who shall have the remainder but the
Sir William Strickland. There are all the reasons that
may be, that all that remains above the settlement should
come to the heir.
(The law was so, but he was mistaken; for the remainder
is settled in the Treasury, and cannot be taken out.)
Mr. Godfrey. I move to re-commit it upon the uncertainty of the words of the Report "intended to be disposed
of," for you could ground no judgment upon them.
Colonel Shapcott. I second that motion. It is uncertain,
and you can do nothing in it but re-commit it. It has been
told you that the courts of law may grant relief in such cases,
and cases to that purpose have been cited; nay, in this very
case, relief has been given in Chancery. There is 1200l. portion
given to this lady, which is a good portion in the west. If
there be a settlement upon the heir-at-law already, you will
not let him also come in upon a charitable use.
Mr. Bodurda. It is strange to me this should hold you
so long. I looked upon this Report as an amicable conclusion between the parties, and consented to, fully, by the Serjeant and both parties. There were, indeed, some gentlemen that serve for the west, that were then, and are still unsatisfied that any thing should be taken from these uses and
settlements in their country. (fn. 8)
My motion is to agree with the Committee in this Report,
and that a Bill be brought in.
Mr. Bampfield. If it were either just or honest for you to
agree with the Committee in this Report, I should not be
against it. The matter of fact is mistaken.
The gentlewoman has a competent portion, 1000 marks
out of this estate, and the heirs were fully provided for.
That very Andrew, the father of this gentlewoman, has
released all his right to the trustees, in consideration of the
third part of this estate, which was settled upon him by the
Again you are misinformed. You have not Serjeant Maynard's consent, nor will he ever willingly agree to alter these
uses. This is such an abominable thing, that I hope this
House will never agree with the Committee. I would have
it re-committed, and to this end that it may die, and never
Major-General Jephson. I except against Mr. Bampfield's
saying this business is not honest. It is not Parliamentary.
Men may speak against the justice of a business, but after so.
many gentlemen, worthy persons, have passed their opinion
of it, to say that it is not honest, is such language as I
have not heard. He was not so civil to you as you were to
him, to let him go on after those expressions.
(For, indeed, Mr. Bampfield had found fault with the
Speaker's talking to gentlemen, (fn. 9) and was angry.)
Major-General Whalley. Whenever you put the question
to agree with the Committee, if it were my father I must
give my negative. The poor have but few friends, and I
cannot but discharge my conscience. If God have cast it
upon the poor, for you to make another will, is to alter those
intentions, and to destroy the charitable uses.
Mr. Lechmere. I have heard nothing of this business till
this debate, and I have now heard so much of it that I cannot but also exonerate my conscience as the honourable person did that spoke last. I hear it not doubted but that the
donor had a natural equity right to dispose of it to these
uses. I remember a case, this Parliament; it was Gresham's
case. (fn. 10) Will you have yourselves condemned? As to the
matter and rule, it is the same to you as in the Courts of
Justice; though you may dispose of men's estates as you
please, for that criticism over the way, (fn. 11) I could never understand it. What is not just is not honest.
I find not that this gentleman was so careless of his heir:
he made a provision for his heir. It is an usual way of settlement, to let men's estates go to collateral heirs, and not to
daughters. I hope you will not shake such settlement and
make another will. It is true you have power of men's
estates, but I hope you will not agree with the Committee in
Colonel Sankey. I must differ from those persons that
spoke last. It was clearly opened, in Dr. Fryer's case, how
that the rest descends to the heir. I would have you put the
question to agree with the Committee.
Sir Lislebone Long. I would have it well understood,
whether Serjeant Maynard did consent to this which is reported. I would have the House informed in this. Here is a
difference among the members of the Committee, not in matter of opinion, but in matter of fact. I like not your meddling with your legislation in private men's estates. There
have been settlements, and for you to go and to supply what
a court of justice cannot do! That case of Dr. Fryer was
not in Parliament, but in a court of justice.
The Long Parliament were very cautious in meddling in
matters of this nature. Even in this very business they
would not meddle. For your honour and justice, let it run
in the channel that the donor intended; otherwise, you shake
a fundamental point of the law, and hinder a man from disposing of his estate as he pleases. I would have it recommitted, to the end the parties, on all sides, may be heard, and
a Bill be brought in to that purpose, as the Committee shall
find matter of fact.
The question being put to agree with the Committee,
Mr. Speaker declared for the Yeas.
Mr. Bampfield for the Noes. The Yeas went out.
Yeas 72. Colonel White and Mr. Bodurda, Tellers.
Noes 48. Mr. Lawrence and Mr. Trevor, Tellers.
So it passed in the affirmative. (fn. 12)
It seems Mr. Lawrence said he would not be told, for he
did not understand the business; but he was a teller, and so
made his words good.
Lord Lambert moved, that Colonel Welden's petition (fn. 13)
might be read, and it was read accordingly.
The Master of the Rolls. This petition troubles me to
hear it. I wonder that sum should be now unpaid. He laid
it out for a very acceptable service. (fn. 14) I thought we had paid
it seven years since. I would have it paid out of the treasury,
which is readiest, and not stay any longer to raise it out of
Lord Strickland, Sir William Strickland, and Sir Richard
Onslow. To say he should have it out of the excise, would
do him no good. Rather let a Committee attend his Highness, to request him to grant a seal, to pay it, presently, out
of the exchequer.
Major-General Kelsey. The most likely place for him to
have this money is the prize office, which is most open.
Mr. Fowell. This sum was 6000l. I move that he may
be speedily satisfied, either out of the prize office, or else
where is readiest.
Lord Lambert moved, that he might be paid out of the
prize office, from the first money that comes.
Colonel Jones. I will say nothing as to the service of the
person. That would but spend time. The readiest way for
him to be satisfied, is to appoint a Committee to attend his
Highness for his seal for so much money out of the first
money that rises out of the prize office.
Mr. Speaker. Unless you specially design out of what this
sum shall rise, as the prize office or the like, but put it generally to receive it out of the exchequer, you may stay a good
many months, before he be satisfied.
It was moved that to the 4000l. the interest might be
Colonel Welden stood up and said, if the parties would be
satisfied without interest, he was content.
It was resolved, that the sum of 4000l. be charged accordingly. (fn. 15)
Mr. Godfrey moved, that Lord Lambert and Colonel
Jones might acquaint his Highness with this order; and it
Dr. Clarges moved, that the debate adjourned yesterday
about the buildings might be taken up according to the orders
of the House. (fn. 16)
Mr. Cary pressed for the report upon the Bill for the
Postage. (fn. 17)
Colonel Jones seconded it.
Colonel Sankey moved, that the Bill for Prisoners and
Creditors (fn. 18) might be read.
Colonel White seconded it.
Mr. Highland. I live (fn. 19) amongst prisoners. In three prisons near me there are above one thousand prisoners: so I move that the Bill may be read. (fn. 20)
It was moved that no private business at all might be done
for a week, and resolved; and that the House shall sit, forenoon and afternoon, upon public business.
The report upon the Bill for Postage was made, and the
Bill ordered to be ingrossed.
I went to Loughton in the afternoon, so minded not Committees.