Thursday, February 22.
The Bill for recalling the English forces out of the French
King's service, was read a second time.
Mr Stockdale.] A commitment of a Bill is, when it
wants something. He knows not whether preventing
"seamen" going over, is provided for in the Bill.
There's a talk of eighty in one ship being taken going
for the French service. Whenever such shall be found,
would have them tried as felons.
Sir Richard Temple.] Great store of gunners are gone
to the French. He would take care in the Bill that
they be not totally cut from you, by omitting a convenient time for their return; else, the penalty in the
Bill is so high, that they will serve the King of France
and never return.
Sir George Downing.] He has enquired particularly
upon this noise of so many seamen going over to France,
but, upon farther information, he finds that the French
forbid taking them into service. That nation being
full of people, they will not employ strangers, who
may, upon occasion, quit them. For example; suppose
that thirty seamen are cast away, and they have no ships
nor money to bring them home, and they must come
home to their own country at last, but must serve for bread
in the mean time;—it would be a hard case that these
men should suffer the penalty of this Bill.
Sir Joseph Tredenham.] One pilot is more considerable than forty seamen. That which must keep them
here, must be encouragement, and he would have that
Sir Robert Howard.] Perhaps this Bill may make
10,000 traitors that it intended not to be—Perhaps this
summer may make them gain another victory. Though
this is desirable, this works so great a necessity by putting streights upon men, that if they miss but a day
of their return home, they are felons. He does not
know they are so estimable in France as 'tis thought
Mr Mallet.] What sort of people are these, that
have gone after three warnings by Bills in this House?
He is informed that the success of Sicily (fn. 1) was much
by the English seamen, and 'tis high time for this Bill.
Mr Stanhope (fn. 2) .] These men are starved by ill usage
in the French army, and we have had 20,000 slain.
Would prevent that.
Mr Secretary Williamson.] 'Tis rare that a Bill should
be attended with such a Clause, "That the King cannot pardon the offenders against it." As it will not look
well towards your Prince, he would omit that Clause.
Mr Secretary Coventry.] The King has sent orders
to seize all English and Irish that have taken out commissions. Would make the Bill against such as shall go against the King's Proclamation, which is grounded on law.
That would be a good ground to make applications to
the King, on occasion, not to pardon them. This has
rarely been done, but in Sir John Coventry's and Lord
Clarendon's and those extraordinary cases. Suppose it
"Death to return"—And he'll never come home to be
hanged. This will make it to serve the King of France
more than the sin against the Holy Ghost, "That the King
cannot pardon it"—When we ask a person's consent for
a thing, we should not affront him that is to give it.
When these men went over, 'twas no felony, but a disobedience to the King's Proclamation. Many of these
men went over by treaty, and they are impossible to be
recalled—What a figure will you make of the King in
this thing? Suppose a man in a garrison and he cannot
come—But when he does come you'll hang him. The
Spanish Ambassador did not declare against any that
"were already gone" into that service, but such as for
the future "should go"—Would have only in this Bill
what the King in honour can pass.
Mr Sawyer.] There is an inevitable necessity for
these men to be hanged either in France or here, by
this Bill; and when they went over, 'twas no fault in
them. They'll stay where they are, or else 'tis immediate death; and so the Act will have no effect.
Sir William Coventry.] A Clause or two in the Bill amiss, is not a sufficient argument to reject it. 'Tis objected, "That the Clause of the King's not pardoning is an unusual Clause." But, possibly, the Committee may find something else which may serve the turn,
But if they are upon such terms that they cannot come
back, when abroad, capitulations of that nature are
always "to return to their King's service when commanded back"—As the Scotch regiment was—Either
they have liberty to return, or our fellow subjects are
ill used by such a neglect in the capitulation—No man
can say, but that the King of France is already too
strong, and no Englishman would have him stronger.
He cannot believe but that the King of France will
let them come back, and not break with England for
a matter so inconsiderable. One or two Sessions we
have had great Debate about this, and when we gave
the last money, we were sorry that France was so great.
The next Session we gave no money for that very purpose, but since we went home, what we did was so far
from recalling them, that more were sent over. In civil wars there are such animosities that make all men
mad. But such a war as this—Nothing can be proposed less a doubt, than that France is too big, and shall
we make her bigger?
Mr Vaughan.] The greatest grievance we have is this
—And one way of France's growing great is by breaking capitulations. Consider the safety of these persons.
This House is not for the King of France, and he'll
not favour the English. But he takes exceptions against the King's power of pardoning, for the former
Mr Williams.] It is no new thing to put such a
Clause as this "of the King's not pardoning, &c." into a Bill. In 2 E. III. 14 E. III. he gave pardons for felony, and murder, and then declared, "No offences
should be capable of the King's pardon, but what he
might do by his coronation oath." This Clause is a
necessity for this time, considering the frequency of pardons for crimes; he never saw the like before—But 'tis
very necessary now; the law would else be ineffectual.
The reason is, he fears there is something too near betwixt us and the King of France. 'Tis said to be hard,
because some particular persons may suffer by it. But
better that five hundred should suffer than such an inconvenience should be to the nation. We cannot do too
much in this matter.
Mr Love.] Sicily being once conquered by the French,
not a boat can pass that way without leave of the King
of France. De Ruyter was not worsted by the French,
but by the English in the French ships (fn. 3) . If you let this
alone this year, 'twill be too late to remedy it the next.
The Bill was ordered to be committed.
The Bill to prevent illegal exaction of money from the subject, was read the second time.(See Vol. III.)
Sir George Downing.] No Revenue of the King's can
be taken away by implicit words—The King's old customs—The last Act of tonnage and poundage—and no
other rates but what are in that Act—If you say "none
shall be levied but by Act of Parliament," shall the
King be debarred of his one shilling per chaldron upon
coals?—The prizes and butlerage revenues are at common law.—He knows not whether they be by Act of Parliament—Without an Act of Parliament, the King is
cut off from all these Revenues—The 16th book of
rates "All duties lawfully heretofore taken at wharfs,
&c." But this word "lawfully," is not always from
Act of Parliament, but from usage. Though never so
lawful now, yet by this Bill they are made illegal without Act of Parliament, and taken away. There is not
the third part of necessary provision for levying the
Customs by Act, but by judgments in the Exchequer,
and by usage. And if the Customs come to be collected otherwise, by this Bill they are declared null,
and so all that the Commissioners do will be void—There
are many contingent and necessary alterations. If in them
no variations are yielded, a thousand honest liege people
will be ruined and undone, and what they do be not only void, but illegal—Farther this Bill says, "they shall
not only not pay, but withstand"—He knows not the
meaning of that word. With such a manner of doing it, and to have such a word, the seamen and
bargemen will not only "withstand" the customers,
but kill them—Says the officer, "you have stolen custom," and says the seaman, "you are a lying rogue."
This word "withstand," will let in all outrages, which
such sort of men are too much inclined to already;
and all things done, contrary to this Act, must be High
Treason. Our ancestors were very circumscribed in
words. But all offences against this Bill end in High
Treason. These cases happen every day. But there is
another exception: A new commodity comes up every day. Says the officer, "'tis such a commodity,"
says the merchant, "'tis not;" and it comes to a Jury.
The law of exportation of corn, if under a quarter,
but a groat duty, and in this case a jury must judge.
In the case of barilia and pot-ashes. Says the merchant
"tis barilia," and pays not the fifth of the duty; potashes twice as much. And if it appears to be barilia,
'tis an illegal imposition—However, upon tryal for life,
'tis whether wilfully levied, or no. In this case the
merchant shall only pay his custom, if faulty; and the
officer be tried for Treason.
Mr Love.] The words in the Bill are general, and
he hopes they will not extend to duties levied by rights
of Corporations. As in the factory of Constantino ple, and other occasions to levy money, of that nature.
He hopes you mean not to have it extend to such
Mr Secretary Coventry.] You put (by this Bill) not
the power in the King's sword, but you put the power
of "withstanding" into a man before it comes to the
King. The Bill says, "he shall not only resist, but
call the Constable to assist him"—It may be a bigger
power; thus then the Militia—Will you make a Constable judge of what's depending in the Exchequer, as
chimney-money, &c? A man is arrested, and he accuses the Bailiff of High Treason. How shall any man
know what he is accused of? 'Tis the first time you
ever put it into a private man's hand to right himself.
The manner of levying Customs by the King of England and the King of France, is different—France by
his own will and pleasure, by Edict, may raise what he
pleases—England only by law; and, by consequence,
trade cannot be so easily regulated between them.
Mr Sacheverell.] Love's objection may be easily provided for; and as for Coventry's "of the Militia," there's
not one word, in the Bill, but of the civil officers, who
are mentioned. He sees the word "withstand" gives
offence, but he'll change it for "resist." 5 Elizabeth,
"made lawful to withstand." Henry VI. "lawful to
resist the purveyors, &c. who acted by the King's Commission" 18 E. I. 5 E. III. 23 H. VI.
Mr Vaughan.] A man that's robbed, shall he not
call the Constable to assist? He that acts by no commission, may by law be resisted.
Mr Secretary Williamson.] He knows not the matter of these laws mentioned by Sacheverell; but, by this
Bill, you give indifferent power to all mankind to resist
any officer—In those laws mentioned, possibly some particular inconvenience was then known. If a coat or a
cloak be asked, a man may resist. But when, perhaps,
a parish tax is asked by an officer, and alleged to be illegal, a Constable may be thereupon called for, and resistance made, as this Act is penned.
Mr Vaughan.] Where by common law may a man resist for his coat and cloak? Where an action is void
and not voidable, 'tis the same thing as if a man had
Sir Richard Temple.] If this Bill be restrained to mal
tort, or any particular thing, it cannot be too severe to
hedge it in with severe penalties. He hopes the Committee may provide against a snare, to entangle every
controversy of executions of this law, without Treason.
Mr Williams.] As to the officers, it may be doubtful in the aggressor who is the offender or the person
levied upon. But, as this Bill is, 'tis no more than a
declaration of the common law; and every Englishman
is born a common lawyer. When the law determines
the thing, it will justify the man. As when a man
distrains illegally, he may justify resistance; but not
presently to kill, wound, and beat. But the Bill means
"to with-hold the money," as one may do at common
law. The Committee may take care of the rest of
the particulars in the Bill.
Sir Nicholas Pedley, Serjeant.] The intention of the
Bill is excellently good, but he is against those general
words. Exceptions confirm the rule. Therefore would
not have so large words, and not to make sufficient exceptions. 25 E. I. "A law was made against levying taxes, saving the ancient aids accustomed." In 28 E. I.
"desired the savings might be taken away, assuring
them from those exceptions."36 E. I. "no saving
for casual profits of the King, they might be received"—This went on two years. Then we come to the
Petition of Right, where there is "no saving, no gift,
loan, tax, shall be levied, unless by Act of Parliament
and need"—No exceptions, unless you will enumerate
particular cases, and so be puzzled. He hopes the penalty may be mitigated—Many innocent persons may
be involved. Therefore be pleased to add such penalties as may be sufficient to deter men, but not to entrap.
And would have liberty for persons to have actions to
recover, when wronged by great penalties and fines.
The Bill was ordered to be committed.
Friday, February 23.
Sir John Mallet.] Complains of an Election imposed
upon the East India Company, by special directions
from the King, to exclude Mr Papillon, and Sir Francis Drake left out of the commission of peace in Devonshire.
Sir Thomas Meres.] Want of liberty of speech is a
thing so essential to Parliament, that if there is any want of
it, or 'tis impeded, that must be removed—Come we only
to discourse this matter, and not to redress things? That
is all our power—If the word "consider," be "to offer remedy," then go about to consider, the Order being only so. He has that of freedom of speech, and
many other things, to say—But would have no Grievances mentioned, so as to be foiled, without propounding remedies. At the same time that he opens a sore,
would pour in balsam.
Sir Thomas Littleton] Would offer one word. If
Mallet has not the consent of the Members he mentioned in his complaint, nor any way to make it out by
materials, he wonders he should be so officious.
A Message from the Lords interposed, "A Bill to rectify a mistake in an evidence on the marriage of Lord Maynard's son."
The Speaker.] The Order to the Committee of
Grievances is only "to report Grievances when stated,
and then to appoint a particular Committee to draw
up a form of redressing them."
Sir Thomas Clarges.] The Speaker tells the truth, but
not all the truth. At this Committee, trade, property,
and law are considered—But this Parliament has had
only a cursory Debate of them. Whether you will treat
of a redress of them in the House, or not, resolve it.
'Tis said, there are no Grievances but what you have
been told of; but there are our foreign alliances, and
other things, fit to be redressed.
Sir Thomas Meres.] The standing Committee has
power to hear and give their opinion about redress of
Grievances—We start many hares, and kill none with
effect—But whether redressed in the House, or at the
Committee, let us do it effectually.
Sir Thomas Lee.] Generally the Committee of Grievances is for things without doors—But several things
he has heard of, as men in custody (upon verbal warrants of messengers) and if Members must make their
Grievances known by petition, then 'tis fit to appoint
such a Committee as you were upon generally.
Lord Cavendish.] If this was not considered formerly, there was never more need than now. As for alliances, as long as such counsellors remain, they
may still pursue such counsels. One Lord we have
made Addresses against formerly—Would have the
mismanagement of the Treasury considered.
Col. Birch.] Moves to consider how to stick to the old
Order—The day is spent, and the Order is entered
exceeding short; but would have certain leave from
the House to proceed, and you will hear of these and
Sir Charles Harbord.] The Committee of Grievances
may make Sub-Committees to enquire for help.
Mr Powle.] He never observed that Money went on
fast, and Grievances slowly, and he fears it now. The
ancient Order was for Grievances to precede Supply;
but that Order is inverted—Therefore 'tis reasonably
moved, to consider redress of them, or appoint a Committee for it; but go which way you will, he expects
no great fruit in redress of them.
Lord Obrien.] If there be Grievances, 'tis the best
way to lay them open, and leave the Chair.
The Speaker left the Chair, and Mr Sawyer took it for the
Committee of Grievances.
Mr Papillon.] Mallet's mentioning him, as above,
was a great surprize to him. He will not now open
that matter, but if called, he will. It was a great
trouble to him to have the King's displeasure, but if
the matter be examined, it will appear he has not merited it.
Sir John Holman.] Would have taken notice of the
reversing a judgment made in the King's Bench, upon an old Statute, in the case of the false return of a
Knight for Sufsolk, by the Sheriff. If that be so, every Member may be returned here, as the Sheriffs
please, upon the penalty of a small fine in that Statute.
Sir Thomas Clarges.] If such letters from the King
to the East India company, forbidding to chuse their
governor, be not an invasion of property, he knows not
what is. Would have the governor bring these letters,
that you may see them.
Mr Sacheverell.] He sees to day what he hoped never to have seen; that after four or five years of malproceedings in Westminster-Hall, Courts of justice are
precarious. It seems that Grievances are not big enough to be redressed. The Judges either want judgment or honesty. It is become six ace, or quatre trois,
for a cause in those Courts. Would know, whether
the Chancery has taken all law into its authority. One
single person may alter all the law. He speaks it not
reflectively on this Lord Chancellor, but on that Court.
And the Judges now having their patents durante bene
placito, do as the Court directs. As in one Miller's case.
They come to Sir Lionel Jenkins's Ecclesiastical Court,
and a letter is sent to him from the King, to direct him
which way to give his judgment, and after the letter
was read, he gave a judgment pursuant to it. And at
the Court, he said "The King was concerned, and he
would have no delegates," and has none—And, at
Common Law at Derby and Nottingham assizes, one
person had paid the duty, and had a discharge in full.
The exciseman comes next day to distrain upon him,
though he owed nothing. The person brings his action of trover and conversion for the goods. The Judge
said "That there was an error in the officer, but unless he countenanced the officer, the King would lose
his revenue;" and so he caused the jury to be withdrawn. At Nottingham, he was of the Grand Jury, and
a recusant was then presented. Says the Judge, "the
indictment shall be drawn, and would have them presented, from sixteen years of age and upwards," though
no evidence upon it. The Judge sent them out with
the indictment, and the Jury must find that they came
not to church, and were all of the age of sixteen years.
He told us, "we were a company of fanatics, and
would not find a romanist, and we must find six weeks,"
when three weeks were gone already. And so we went
out to find the rest of the time by prophecy. In the
action brought by Sir Samuel Barnardiston against the
Sheriff of Suffolk, for a false return, the Judge said,
"Malfezance, in the action, was pepper, and salt, and
nothing;" and tells you it so now, because there's an
100l. damage, and so the Sheriff may return what
Member he pleases. If this be so, we all sit here to
no purpose. Would therefore first proceed in the
Grievances from the Courts of Westminster—Or else we
sit here in vain—For in Barnardiston's case, the malfezance signified nothing (though greatly to his damage)
and the fine was the punishment only. And would
likewise have considered the entitling the King to an
administration, without hearing the parties.
Sir John Birkenhead.] Sir Lionel Jenkins is in servitio
domini regis, and he cannot now answer for it. 'Tis
a great charge upon a Judge to proceed in his court
by direction of a letter—Would leave the thing till tomorrow morning for farther enquiry.
Colonel Sandys.] This looks like a confession of
the Long-Robe of what is charged upon their profession, saying nothing in justification of them.
Mr Williams.] He never knew, in his eighteen
years practice, Westminster-Hall better supplied with
Judges, with men of learning, loyalty, and integrity.
But, as for the Court of Chancery, 'tis not in in the power
of the present Lord Chancellor to alter the rules he
has found in that Court. But 'tis very fit for a Committee to enquire and represent it to the House—When
an arbitrary decree is made when the matter ought to
go to the Jury (he reflects not upon my Lord Chancellor)
but this is too common and usual—And in the Exchequer too, which is a Court both of Law and Equity.
He was of Counsel for merchants there, where 'tis too
common to determine what's black white, and what's
white black, which by law ought to be tried by twelve
men. As for the particular case of Barnardiston, he cannot say any thing to fact, but he confesses it has lain
heavy upon his spirit, and will lie as heavy on the
Committee, if they do not represent it to the House.
He takes the judgment in the King's-Bench, in that
case, to be legal, and the judgment in the ExchequerChamber to be an illegal judgment. An action was
brought by Barnerdiston against the Sheriff of Suffolk,
"for a false return of a Knight of the Shire, &c." He
being chose by the greater number, yet the Sheriff returned Lord Huntingtower, who had the lesser number.
And "that the Sheriff did it falsly, maliciously, and with
intention to put Barnardiston to charge in prosecuting
the Election, and made a double return," which, in
truth, occasioned great cost and expence. The cause
was tried in the King's-Bench, where he did then wait.
It was laid open " falsly and maliciously, &c." and the
particular facts were examined, and the Jury found
it "falsly, &c. and that he had thereupon expended
800l." and the Jury gave him 800l. damage. It was
laboured by that never to be forgotten man, Lord
Chief Justice Hale, when moved in arrest of judgment,
"the matter (says he) touches the House of Commons,
a Parliamentary superior Court, to examine. The
Question is above us." Another objection was, that it
was a new framed action, never such a one heard of
before—And shall we create a precedent? Many a
double, many a false return will be made. By the Stat.
H. VI. in a false return, an action of debt might be
brought, and if remedy at common law, why was this
Statute made? After solemn deliberation, Mr Justice
Wilde gave opinion for the plaintiff with reasons.
Rainsford said, "I am not yet satisfied to give judgment for the plaintiff." Twysden " for the plaintiff."
Hale elaborately "for the plaintiff," and so solemnly
pronounced. But from whence Mr Soames, the Sheriff
of Suffolk, had encouragement to make this return, he
shall not say what he has heard, till he be called to do
it. A writ of error was then brought to the Exchequer-Chamber, and as he has been particular in the
King's-Bench, so he shall be in the Exchequer-Chamber. Lord Chief-Justice Vaughan was not alive when
the judgment was reversed, nor Lord Chief Baron Turner. Baron Bertie was not Baron when the judgment
was given, but was Judge at the reversal; Baron Lyttleton and Baron Thurland were Judges at the time the judgment was given; Atkins at the judgment and reversal.
Wyndham and Ellis were so likewise—It comes to be argued
before Lord Chief Justice North, Justices Ellis, Wyndham, Atkins, Thurland, and Bertie. The puisne Judge
and was of opinion, that the judgment was erroneous in
the King's-Bench, and was for reversal of the judgment. Thurland the same. Ellis departed from them, and
was of opinion the judgment was good. Atkins was of
opinion it was a legal judgment. All the rest were of
opinion the judgment was illegal, and to be reversed.
Now the case was before them, how many were for the
judgment, and how many against it? Rainsford was
not satisfied, so five were certain. That the judgment was
well given, Hale, Twysden, Atkins, and Ellis. For the
reversal of the judgment, Lord Chief-Justice North,
Chief-Baron Montagu, Barons Littletion, Thurland,
Bertie, and Wyndham. Here is then the true poize of
the case. If you think fit to debate the matter, how
proper 'tis for you, he submits to your judgment.
The King may make Judges as he pleases, by his Prerogative. But if the common course of Justice be stopped, there's no Question but that 'tis under the controul
of the House of Commons. He has stated you the
fact, and, when he is called, shall give reasons why this
reversal of judgment is illegal, and a Grievance.
Sir Francis Winnington. (fn. 4) .] He has been considering,
whether he should commit an offence in violating his
conscience, in being silent, or venture to speak here,
having so little experience in Parliamentary affairs. But
his duty to his country calls him to it, and he will never fail to do his duty, let the consequence be what it
will. If it should so fall out, that the courts of Westminster should be precarious, as Sacheverell says, the
security the Kingdom has to have justice done, will
come to nothing. You know, when your doors are
shut, who are the expositors of the law—The Judges.
The discourse he has heard has mentioned persons and
things. Whether the Judges are learned, or fit, you
will not call him to give an account of his opinion. No
age, since the annals of law, can show more learned
men—They that now sit, may vye in learning with former ages. But 'tis not for this Committee to enquire
into their learning, but into who does not justice; and
'tis his duty to inform you (he may say) whose lives
and fortunes depend, if not on their learning, at least
on their integrity. He will say nothing for their integrity, though he believes their integrity. He has
practised sixteen years in Westminster-Hall to this day,
in Chancery. And thinks it sit to consider of some
bounds to be given to that Court; for the person that
sits there, though he believes he has a greater share
of learning and justice, (though possibly he has not obliged him) yet must be more than a man, that can
do all men right there. As to that Court, he has
learned it in law-books—In a few years the Chancery
is come to that unbounded greatness, that he cannot
tell a client the success of his cause. The tryal of
twelve men is little in a cause to that by one man. The
client has little remedy, and yet 'tis but the opinion
of one man. Some Member in this House has received his ruin by it. By the Statute of Westminster, causes
are to be tried in the proper County where the lands
are of vicinity, and the Jury may find the fact on their
knowledge, though they have no evidence; but now 'tis
contrary—On conscience, whether fraudulent, or not.
The matter arose from Sir William Terringham, whether fraudulent, or not. A Jury of Surry was sent for to
try this before the King's Restoration, and there were several tryals by Juries of the country—But another Surry
Jury found it, (either by the art of the Counsel, or something that he will not say) fraudulent, though several Juries out of the proper County found it not—And so 'tis in
the power of the Lord Chancellor, or Lord Keeper, to
send a cause, depending here, into Northumberland to
be tried. These things are certainly sit for your consideration. He knows not that this Lord Chancellor
has increased any of these instances; but that he found
them so. He instances these only for the Grand Committee to take the Chancery into consideration. Barnardiston's case he was a witness of; as great a cause
in the consequence of it, as has been in any age—But
to make that a Grievance, as to fact, he thought the
Jury very secure. Against Soames the Sheriff, seven or
eight hundred pounds! He would not have given it, had
he been of the Jury, for all the world. When tried by
the Jury, 'twas quæstio facti, but when that was over
'twas quæstio juris. 'Twas found " that Soames did it
falsely and maliciously, and made return accordingly."
Those very Judges that gave their opinion in the
King's-Bench, said to the Jury " 'tis your verdict, and
not ours; we are shut out in fact, but not in law;" and
would do their duty—When found so severely by a
Jury, the Law and Court have only the record to
look upon. Lord Hale, Twysden, and Waldgrave, gave
their opinion that the action would lie, because, as
presented on record, it has all the ingredients an action should have, though Rainsford was not of that opinion. No man of Law but will make this probabilis
causa. But 'tis hard that it should be a Grievance, that
a Judge is no wiser than his companions. In
the case of Nevil against Stroud, the same was brought
to the Exchequer, but never determined. The like
precedent was never known before. In the Statutes
of H. VI. H. VII. to punish Sheriffs; imprisonment, and
100l. at the suit of the party—Why is this provided
for then in law? What he says, he has abundance of
witnesses to make out—Not causa pro amico, as the
Civilians call it, for that is knavery—But there was
room for any honest or wise man to say it one way or
another—But of doing corruptly he knows nothing.
As to what has been said of the Judges of Assize, 'tis
wholly out of his cognizance—He will rather hold
truth than be thought a good arguer. He has told
you truth, and let the consequence be what it will.
Mr Sacheverell.] We need two Acts for the Chancery: 1st, That mortgagers may have time of CommonLaw to redeem them; and, 2dly, The nature of trusts—
For, as the case now is, sometimes they are by declarations, and sometimes by words—No honest man but
has a great task to go through with these trusts in
Chancery; as well as the other trouble attending them.
Mr Secretary Coventry.] This of regulating the
Chancery is so high a matter, that he would have the
Long Robe heard for that purpose only.
Mr Finch.] As to regulating the Chancery, if there
be any token of arbitrary judgment or power of exercising it, 'tis in that Court, and that alone. 'Tis
now a great and expensive jurisdiction. The present
Lord Chancellor has endeavoured to lessen and restrain
it. But as it would be an Act of legislature to extend
it, so it would be as much to diminish the power he
finds there. He moves to refer this matter to select
persons, to enquire, not only into the abuses, but even
into the very jurisdiction itself of that Court; and it
may be limited by the legislative power, by a Bill.
Serjeant Maynard.] Would have likewise a remedy
considered for taking men upon sudden and unadvised
promises, and for excessive fees, and corruption of
jurors. But as for regulating the Chancery, he
would not overload the Bill, which always destroys it. A
Motion is made for the Committee to bring in all the
Grievances in Chancery, which is he knows not what.
He would mend the most material exorbitancies.
Sir Thomas Meres.] Would have no more days upon
this, because we have so many Grievances besides—
Would go upon that of inordinate fees.
Mr Williams.] In matter of sequestration, by process,
when the estate and person are seized, &c.
Mr Secretary Coventry.] Had not the greatest miscreants in the world the benefit of tryal, to hear what
they would say for themselves on record? In all the
world 'tis so, and will not you hear that Court on this
occasion? That is more inconvenient than all the exorbitancies of the Chancery.
Resolved, That the House be moved to appoint a Committee to
bring in a Bill "for redressing and regulating all extraordinary
power and jurisdiction exercised by the High Court of Chancery,
and other Courts of Enquity, in matters determinable at CommonLaw; which the House agreed to, and ordered Sir Francis
Winnington, &c. to bring in such a Bill.