Veneris, 16o Martii
L. 1a. FAGE.
Upon Sir Tho. Hobby's, Motion, Sir Jo. Bennett, Dr. Gooch, and Sir Tho. Wentworth, to be added to the Committee for Hackney Copyholders, &c.
L. 1a. - Owse.
Mr. Drake: - That the Lords desire to see the Letters, written to Mr.Drake by Sir G. Monpesson: - And Resolved.
Sir Francis Goodwynn licensed to go to the Lords, to make good the Particulars exhibited against Sir G. M. for Buckinghamshyre.
L. 2a. - Redferne..
Mr. Shervyle: - Great Consideration to be had of this Bill.
Sir H. Poole : - This done by Consent of all Parties. - Committed to Sir H. Poole, Mr. Shervyle, Knights and Burgesses of Wiltes, Mr. Carvyle, Sir Peter Hamon, Sir Jo. Walter, Sir Gary Reynolds, Sir Tho. Hinton, Sir Edw. Sackvyle, Mr. Duckett, Mr. Sotwell: - Wednesday next. Exchequer Chamber.
L. 2a.- - Mountague : -
Mr. Weston. - That Sir Geor. Moore and Sir Jo. Walter may here declare, whether they will accept the Trust, or not; else the Act will be to no Purpose.
Sir Edw. Sackvyle: - That Sir Francis Englefeild hath been made rich with this Trust. And that the Lady St. John may be relieved.
Mr. Alford: - That Sir Francis Englefeild hath exhibited, this Morning, a Petition in the Court of Wards. That the Land was made over to him for Portion, and not for Maintenance.
Sir Geor. Moore: - That he oweth much to that House, for Benefits, and Alliance. - That they have undertaken the Trust already.
Sir George Manners: - That the Committee may take Consideration of 400 l. Portion, yet behind.
Sir Jo. Walter: - That he hath undertaken the Trust. -
Committed to Sir Edw. Sackvyle, Mr. Mynn, Mr. Writtington, Sir Edw. Sands, Sir Francis Fane, Sir Edw. Coke, Sir Edw. Cecill, Lord Clifford, Sir Edw. Mountagew, Mr. Hopton, Sir James Perrott, Sir H. Withrington, Mr. Connisby, Mr. Tho. Fanshaw, Mr. Chancellor of the Duchy, Sir Geor. Deston, Sir Sam. Sands, Sir H. Poole, Sir Rich. Lovelace, Mr. Alford, Sir Francis Barrington, Mr. Middleton, Lord Lisle, Sir Francis Seymor, Sir Edw. Francis, Mr. Alford, Sir Geor. Manners, Mr. Weston, Sir Rich. Tichborne, Sir Edw. Gyles, Sir D. Digges, Sir Gilbert Houghton. - To-morrow in the Afternoon, Court of Wards.
Mr. Sadler delivereth in a Note of the Patents, whereof he made Receiver; and of all other he knoweth.
Yorkeshyre and Mynehead Election.
Sir Geor. Moore reporteth from the Committee for Privileges: First for the Constables of Yorkeshyre. - That one Aleyne, and Middlethwayte, examined. That Aleyne denied the Warrant to be his Hand; but made by his Fellow Constable, by his Consent. That Sir Tho. Wentworth wished them to intreat the Freeholders to give their Voices, &c.
That the Warrants were, " will and require;" and when from the King they did then, in his Majesty's Name, " will and command." -
That the Taking of the Names, was to let Sir Tho. know, who would be for him; - and set down the Names of those, which would not consent. -
That Stanhope, another High-Constable, confessed a Letter from Sir Tho. Wentworth, of Thanks for their Pains, with Promise to be mindful of it. -
That these Things were mentioned in Churches. -
That Three testified, at the Election about l ,000 Persons cried, " A Savyle !" And these, pressing to the Town-hall, were refused ; the Door kept with Halbards ; and One of their Heads (offering to break in) broken.
On the other Part, testified by Sir Rich. Cholmeley, that it appeared to him, as he passed with the Sheriff, he taking View of those of both Parts, the Number far above the other.
Sir Tho. Wentworth, by the Committee, cleared, for the Preparation ; and, by all the Committee, the Election cleared. The High-constables to be left to the Censure of the House.
For Myneheade; alleged by the Counsel, that Mynheade challenged, not by Charter, but by Prescription. That clearly used from 5o Eliz. That from Edw. IV. time, till 33 H. VIII. no Records of this kept; and from 33 H. VIII. ill kept: And referred from the Committee for the Continuance of -
Upon Question, the Election of Mr. Secretary and Sir Tho. Wentworth, good.
Sir Edw. Coke: - To have only an Admonition to the Constables.
Mr. Mallory: - Not to have the High Constables put unto too much Charge. - An Eye and Ear-witness of the Discontent of the Gentlemen at these Constables Doings. - A very ill Precedent to all the Counties of England. - That thousands in the Town, which were for a Savyle, and excluded.
Sir Tho. Wentworth: - That Mr. Mallory hath incurred the Censure of the House, by saying, he would speak freely, that it might be known, there were some in the
House, that durst, and would, speak for their Country. But the House cried. No.
Sir Wm. Herberte: - That the Place was so possessed with those, not of the Committee, that they of the Committee could not hear. -
That the High Constables deserve great Punishment, for the Preparation of the Business; for the High Constables have nothing to do in it. The Words, " will and require," not sufferable. - To have the Warrants read, and Proceedings upon it.
Mr. Secretary: - That the Constables have committed a Fault; but Mercy as honourable for the House as Justice. - To have them acknowlege their Faults, and be dismissed.
Sir H. Withrington: - against Sir Edw. Cokes taxing Mr. Alford's Speech. - Could himself have no Place at the Committee, being One of them. - Desireth the Opinion of the House, whether they, of a Committee, are not to have place before others of it. - For the High Constables; they have committed a great Offence, in practising to chuse whom they would. - Not too many Precedents of Mercy; some of Justice, - To have them made an Example. - Cleareth Mr. Mallory.
Master of the Rolls : - Never observed better Carriage in a Parliament, nor with more Success. - That these Constables, of small Ability: - Great Charge in coming up. - Justified, at the Committee, to have been the Use there in those Terms : - Though commendeth it not. - That Sir Tho. Savyle may be questioned, for wronging Sir H. Savyle, his Son-in-law. Not to catch Flies. - Doubteth, our Authority will not extend further.
Sir Geor. Manners: - That the Scrutiny never demanded. - Not for the Honour of the House, to dismiss the Constables, without severe Punishment. - Never the like in that Country before.
Sir Sam. Sands : - Commendeth not the Course of this Parliament. - If the Members of this House may not speak his Mind freely - No Man here to think himself so great, as to oppress any Member of this House with his Greatness. -
That these Men thrust themselves into that belonged not to them; and combined together. - To have them make Satisfaction in the Country, where they have given the Offence.
Mr. Wandesford: - That the Offence of the Constable, " to will and require," but of One. - That the Punishment already sufficient-
Privilege - Examining Members on Oath by Lords.
A Message from the Lords, by Mr. Attorney and Sir Wm. Byrd ; that the Lords have considered of the Grievances from hence : That in that, for Inns and Ostries, they have found many exorbitant Grievances : - Desire, the Proof should be without Exception. - That the Proof is to be by sundry Members of this House; therefore, out of their Respect to this House, move, these Gentlemen may make a Declaration upon Oath ; and that; if there had been any other Proof, they would not have required this. - And delivered their Names in writing.
Sir James Perrott: - against this Course : For, without Precedent. - A Disreputation to the Gentlemen, to be drawn upon Oath, as not trusted.
Sir Edw. Mountague: - To deliberate of this, because of great Weight.
Sir Edw. Coke: - No Man here, but a Judge. - Hath a Negative Voice to all Laws. -
A Judge, in a Court, not to be sworn as a Witness : So in the Star-chamber. - To send Word by these Messengers, that we will consider, and send an Answer by our own Messengers, with all convenient Expedition.
Which delivered accordingly, by Mr. Speaker.
Mr. Noye: - Great Difference between Causes originally before the Lords; contra, where originally from hence. That Causes, coming from hence, have been both examined, and judged, here. - That we give them, not as thus conceived by any particular Man, but as judged by the whole House. - The like not to be for them in the like Case. - Mr. Drake not to swear, Sir G. M. wrote the Letter, which he confessed : And the Licensing the Alehouse-keepers for Inn-keepers before put down ; and will appear by the Records, or Books, they have.
Mr. Brooke: - Could never have expected such a Message from this House. - That the Commons House a Grand Jury for the Commonwealth. - Against this Message. ......
Sir Ro. Phillippes: - That the Lords excusable in this, because the Precedents so ancient. That the Lords sensible of our Privileges. - Thinketh, they would not infringe them. -
That some, peradventure, would throw in a Bone, to hinder the good Work intended for the Commonwealth. -
That this Message may be thus answered: That we have judged these Things as Judges of State, and generally known to be true : That Mr. Drake cannot swear the Letter, yet Sir G. M. hath confessed it here: The other Things they may prove, if they be not satisfied, by the Records.
Mr. Glanvyle: - That this House no Power to take an Oath; the Reason, because presumed to know all griev-vous to the Commonwealth: Therefore the Judgment of this House, of Matter of Fact, not after to be questioned. - That all grounded upon Matters of Record, or Writing, except Two or Three.
Delivering Prisoners to Lords.
Another Message from the Lords, by the same Messengers; bringing the Names of some Prisoners, by Command from this House: - Desire to have them delivered to their own Officer, that they may have the Examination of them at their Pleasure: - And delivered their Names : George Gelder, Norton, and others .- - And desire to know, whether this House will send an Answer to the Lords this Day; who else will rise.
Sir Edw. Sands accordeth for the Delivery of the Prisoners to the Lords.
Sir Geor. Moore: - Not arguing argueth a Doubt : Therefore to send them a present Answer.
Sir Edw. Coke : - We now against new Inventions: Therefore not now to begin. - The Petition of Grievance offered to the King; never offered to question the Verity of it. -
For the Answer; should be rejoicing at the Concurrency of both Houses; would yield the last Message; for the other, cannot yield; for Judges here, and have Notice of all Things in the Commonwealth : And that the King hath never doubted of it.
Privilege-Examining Members on Oath by Lords.
Mr. Wentworth : - That these Gentlemen may (if required) upon their Words, confirm the Truth hereof; lest we may hereafter, by the like, be bound to believe what the Lords shall conclude there.
Sir Tho. Row: - No Delay in this Case - Judges here, no Accusers: - Therefore disliketh Mr. Wentw. Motion.
Sir Francis Fane : - Ready to justify, upon Oath, what hath set down.
Mr. Chancellor of the Duchy : - This may concern Life ; and may concern the great Business in Chancery, where only Two of this House Witnesses against my Lord Chancellor. -
That in the Parliament 1 R. II. the Lords took an Oath in Parliament.
Sir D. Digges : - To have a present Message : - And that, for his Part, he shall not think these Two Gentlemen wronged by being sworn.
The Message to the Lords, by our Messengers, to their first Message, not to be sent presently. - Resolved.
Master of the Wards;: - To defer our Answer also to the last Message, till To-morrow.
Sir Ro. Phillippes, contra.
Upon Question, Resolved, That all such of the Prisoners, as are in the Serjeant's Custody, whom the Lords shall require, for Examination, shall be delivered to the Lords, to be examined; and then to be remanded to the Custody of the Serjeant.
And this so delivered to the Messengers, by Mr. Speaker.
Mr. Weston: - That he informed, not upon his own Knowlege, but by Information ; so as he can swear but he was told so. - To leave the Members of this House to their Liberty to be sworn, if they will.
Mr. Hackwyll: - To appoint some Six, this Afternoon,to consider and look Precedents: and to report what they find, To-morrow Morning.
Mr. Solicitor : - The Question more for the Manner than Matter, - Not to have this Wrong to this House. - We have adjudged these a Grievance already. - That the Danger, proposed by the Chancellor of the Duchy, may be avoided. There that cannot be adjudged, because we cannot hear him ; for a Lord of that House: And, before adjudged here, a Member of this House may be sworn there.
Sir Edw. Sands: - Where said, this res judicata; denieth it. We have adjudged it a Grievance in Origine and Executione: This not to be questioned: But we have required the Lords to proceed further, for Punishment; and we know not, to how high Punishment: And if they shall think fit so, then not fit fide implicita to proceed to such Punishment; but fit for them to rely upon Matter of Record, and Deposition; which Deposition they have no Reason to credit so far, as to give Judgment of Life, or like Punishment, without Oath; which they may take, we cannot. -
For the Argument of, we Judges; Commissioners of Oyer and Terminer, and Justices of Peace, usually take Oaths before Justices of Assise. A Man may speak as a Witness, though a Judge. -
Two of the joyfullest Days, this Parliament, that ever seen: 1. Our presenting of Two Subsidies to the King; and the King's gracious Demonstration of his Acceptance: And the great Conjunction between both Houses. - Great Care not to take a Bone, where none cast. - To send a Message to the Lords, expressing our Care of our Privileges, &c.
Sir John Jephson: - That a Member of this House may be examined in another Court, if he will: - So thinketh, he may do voluntarily here.
Sir Francis Goodwyn: - Will be ready to swear what hath said. - That this ordinary at the Assises, - All Proofs must be by Witnesses, or Record. - That, that he hath said, is not to be proved by Record, nor otherwise, than by his Testimony. - Desireth to be sworn.
Mr. Griffyth : - against the swearing of the Members of this House.
Sir Edw. Sackvyle: - That he converted ; and thinketh it honourable for the House to send them up to be sworn; else, doubteth, the Lords cannot proceed to Judgment.
Mr. Beecher: - That no Necessity of an Oath; because of Sir. G. Monperson's Confession here, and flying after.
Sir Edw. Gyles : - Doubtful as yet. - The Honour of the House on the One Side ; so the Lords Honour. - Moveth, a Committee to be appointed.
Mr. Noye: - To consider of this till To-morrow ; and every Man to consider of it till then: - For, thinketh, some of us will differ from that Opinion of before.
Mr. Serjeant Towse: - For the Swearing by them.
Mr. Spencer: - No loss of Privilege to the House to do this, either by Commandmentof the House, or voluntarily.
Sir Wm. Strowde : - To have the Speaker come out of his Chair; and to debate it in Committee.
Mr. Glanvyle secondeth Mr. Noy his Motion: - The rather, because the Lords, no doubt, have, upon Consideration, thought this Motion fit. - That the Lords have sent down, upon Occasion, their Members into this House, to give Satisfaction here.
Sir Edw. Coke: - That Sir Edw. Sands hath understandingly opened this Case, and seconded by another; yet of the same Opinion as before. - That every Man may renounce his Privilege, if he will: - Therefore, because the Members of this House have done it, to let as many as will to do it.
Mr. Chidleighe; - That the Judgment of these Offenders is to be before both Houses ; so these are to be both Accusers and Judges. - Moveth, to defer it till To-morrow.
Sir H. Poole: - That we may consent these Gentlemen may do it.
Sir W. Earle: - To defer it.
Dr. Gouch, accordant.
Sir Francis Barrington, Sir Geor. Chaworth, accordant.
Mr. Raynscrofte, accordant.
Upon Question, Resolved, Not to defer this Dispute till To-morrow.
And, upon Question, Resolved, That as many of these Gentlemen as will, may, without Derogation to the House, or Blame to themselves, be sworn. -
Sir Ro. Phillippes: - That the ingrossed Bills may be read, and pass, To-morrow Morning.
Hall and Fuller's Case.
Sir Jo. Jephson: - To hear Sir Jo. Hall and Fuller's Case, this Afternoon ; and Mr. Speaker to sit here this Afternoon. - Resolved. -
Privilege - Examining Members on Oath by Lords.
Mr. Noye: - That it may be entered, this is so ordered, by the Motion of the Parties themselves here, who are to be sworn.
2ly, A Protestation hereupon, upon the Message: - And, for that the Cause of extraordinary Nature, and that they cannot judge of it there, as we here; because we had Sir Gyles Monperson present, they have not,
Mr. Drake: - Willing to be sworn; but will not renounce their Privilege.
Mr. Towerson moveth, some, whose Names he offereth, may, for the rest of the Merchant Adventurers, appear at the Committee To-morrow, for the Residue.
Hall and Fuller's Case.
Master of the Wards : - The Course he propoundeth the longer, but the surer Course. - To hear read the Information, Answer, and all the Orders in the Court of Wards : So those in the Chancery.
Mr. Finch concurreth, for the Orders; not for the Residue.
Mr. Speaker, if, upon the Opening of the Information and Answer, any Difference, then he may moderate.
Master of the Wards : - That neither Law, Equity, nor Conscience, for that done in the Chancery.
Mr. Speaker to the Counsel: - That the Hearing of this Cause, to discern of the Justice of the Court of Wards, and Chancery; therefore to open the Proceedings truly; thereby to avoid further Trouble to the House, and Discredit to themselves. The Right now not to be determined.
- The State of the Cause: That Sir Jo. Hall, by Information, Plaintiff in the Court of Wards, against Fuller. - Openeth the Information, and the Answer of Sewall and Fuller. -
Three Rules observed in the Court of Wards by the Master : - In full Term ; Counsel of both Parts there ; Notice to either Party, before any thing done. -
The first Order there, 26o Nov. 17o Jac. awarded an Injunction for Sir Jo. Hall, for Stay of Suit of Trial for Tythes.
[4o] Febr. 17o Jac. a Motion, why Sir Jo. Hall should not pay the Rent reserved upon Fuller's Lease, he receiving all the Profits; and why he should not pay the Stipend to Mr. Fuller; and why not deliver the Possession to Mr. Fuller.
9o Febr. Counsel of both Parts appeared; and, upon an Affidavit, that Sir Jo. Hall had received 120 l. of the Profits, all the Premises granted.
15 Febr. Motion made by Hall, to have this last Order revoked; but yet affirmed.
8' Maii, upon Affidavit, that Sir Jo. Hall had Notice. Day given him, to shew Cause why an Attachment should not be awarded.
24o Maii an Attachment awarded.
5o Julii, by Order in the Court of Wards, he committed ; and a Writ of Assistance awarded to the Sheriff, for the Possession. - : -
The Merits of the Cause never heard in the Court of Wards.
The other Counsel moved by Mr. Speaker, to open the Proceedings truly.
Mr. Hetley: - That Petitions of Grievance on either Side, like to a Writ of Error of Common Law; which to examine the Proceedings now of these Two great Courts. -
That the Court of Wards, in their Proceedings, have erred in all, but their Order of Dismission ; yea, more than Error: For, in other Cases, voidable only; here void, because exceedeth the Jurisdiction of that Court; That never having Power to meddle in it. -
The Information exhibited by the Attorney, in the behalf of White, the Ward, Hall no Relator; no Title made, either in Law or Equity, to the Ward. -
The Information read : And Mr. Speaker openeth it.
The Answer read.
Mr. Hetley: - That the Court of Wards have no Jurisdiction, but where it concerneth the Ward's Estate; as is here. - And void, and coram non judice. -
The Answer not proved; and they must judge secundum allegata et probata. The Lease appeareth void, upon the Defendant's own shewing; being in Reversion, and for 21 Years, -
Then a Lease made by Sewell to Fuller, for Four Years; and yet shew not, that he was in Possession: And, without Possession, the Lease void; except it be shewed, that the Lease sealed upon the Ground. - That the Court, though they have Power over the Ward, have no Power to meddle with the Executrix. -
That the Order 9o Febr. made against Hall, no Party to the Suit. 40 l. ordered to be paid Fuller for Five Months; where, by the College Provision, he was to have but
20 l. per Annum: - And is bound to pay the Residue to Fuller. -
Never heard the Possession by Injunction against the Plaintiff. -
24o Junii, both Parties dismissed.
Mr. Catlyn: - That, after this Dismission, by an Order 1o Julii, 18 Jac. Sir Jo. Hall committed. -
That immediately, viz. 1o Julii, the Process for Sir Jo. Hall, in the Court of Wards. That he, after the Dismission, never looked to the Court of Wards, nor had any Counsel there for him; though some, that had been of his Counsel, might be there. -
That Sir Jo. Hall, and his Wife, Plaintiffs in Chancery; not so in the Court of Wards. The Bill in Chancery different from the other in Court of Wards. -
That the 25th of July, before any Answer. -
That, upon an Affidavit of Sewell's Contempt, upon serving Process, &c. the Possession settled as he had it; and with Prevision, he, with Sureties, to be bound to the Court, to answer the meane Profits. -
24o Julii, an Order in the Chancery, for an Injunction.
2o Augusti, Two Injunctions met; One, out of the Chancery; the other, out of the Court of Wards, with a Writ of Assistance.
Mr. Catlyn: - That no Cause in the Bill in Chancery, for an Injunction. -
An Injunction granted in Vacation time, no Counsel, upon the Affidavit of a Child of about Ten Years old. -
That the Master of the Wards writ a Letter hereupon to the Lord Chancellor; upon reading whereof the Lord Chancellor made Claim, that it belonged only to the Chancery; and granted a Writ of Assistance to the Plaintiff.
Mr. Moore: - That this Injunction granted against my Lord's own Orders; for there provided, no Injunction to be granted, upon any Title, but where the Title continueth, and hath had such a Possession Three Years before. That my Lord Chancellor several times deferred the hearing the Letter, wittingly. That my Lord Chancellor did unjustly in Fuller's Commitment; which was only for suing in the Court of Wards. - Motion *. -
That the Lord Chancellor hath committed Four, and granted Attachments against almost Twenty more. -
The Commitment not warranted by the Affidavit, whereon grounded.
Master of the Wards: - Two Things in this Case; Form, and Substance. - Reciteth the Substance of the Information.
Mr. Finch : - If the Court of Wards no Jurisdiction, nothing, done by it, to be respected. 2ly, Admitting the Point of Jurisdiction, yet a strange Order, to have a Possession taken from the Plaintiff. - Next, the Dismission. -
For the Affidavit by a Boy; my Lord took it not, nor could know it, by the Reading of it. -
The Affidavit sufficient Ground for the Injunction, and Commitment.
That this Question between the Master of the Wards, and Attorney. - Never knew a Cause of this Nature in Parliament.
Mr. Noye: - That neither Court did well: The Question, which worst. The Court of Wards should have dismissed it. Both Courts have done ill, by granting Writs of Assistance. - To keep a Man in Possession by a Writ of Assistance, no Writ of Error lying.
In the Chancery, by the Order in November, a Writ of Assistance against the former Writ of Assistance. The Sheriff must levy an Army on either Side; and the Sheriff lead One, the Under-sheriff lead the other.
Mr. Solicitor: - The Time spent, and mis-spent. - The Miscarriage of Courts of Justice, where no Corruption, not fit for a Parliament. - Erratum in omnibus, on both Parts. - The Court of Wards clearly no Jurisdiction. - Orders against Sir Jo. Hall, where he no Party to the Suit. -
No Equity in the Bill in the Chancery : yet the Court of Chancery never knew the Bill; for would not answer.
- The Injunction right: The Affidavit Ground sufficient for the Commitment.
Sir Edw. Sackvyle: - To take Order for the Parties Enlargement, and for an End of the Suit.
Sir Edw. Coke: - That no Court of Equity hath Power to meddle with Lands, or Goods; but only imprison. - If may, by a Writ of Assistance, keep one in Possession, is more than a Writ of Right, wherein Error lieth. Here no Help; but locked up, without any Appeal. -
That these Courses against Law, and fit to be helped by Parliament: - And concurreth, in other Points, with Mr. Noye.
Ordered, That this House conceiveth it fit, that both Sir John, and Tho. Fuller, Clerk, should be absolutely freed from their Imprisonment; and the Causes be dismissed out of both the said Courts; and either of the said Parties to take his Remedy at the Common Law.