Diary of Thomas Burton Esq: Volume 2, April 1657 - February 1658. Originally published by H Colburn, London, 1828.
This free content was digitised by double rekeying. All rights reserved.
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.
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—
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.
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 sequitur legem.
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.
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.
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.
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 heir?
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)
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 come here.
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 this.
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.
So it passed in the affirmative. (fn. 12)
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 the excise.
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.
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 resolved, that the sum of 4000l. be charged accordingly. (fn. 15)
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 Sankey moved, that the Bill for Prisoners and Creditors (fn. 18) might be read.