House of Lords Journal Volume 11: 17 July 1661

DIE Mercurii, 17 die Julii.

Domini præsentes fuerunt:

The Lord Chancellor being sick, the Lord Chief Justice of the Common Pleas sat Speaker, by virtue of a Commission from the King under the Great Seal.

PRAYERS, by Dr. Hodges.

Westminster Streets Bill.

The Earl of Portland reported from the Committee, the Bill concerning the paving and mending the Highways and Streets in Westm. with some Alterations and Amendments; which, being read Twice, were Agreed to, and the Bill ordered to be engrossed with these Amendments and Alterations.

Bill for providing Carriages, and Bill for Arrears of Monies for the King.

ORDERED, That the Committee for the Bill for Carriages, and for the Bill for bringing Arrears of Monies, being now sine Die, shall meet To-morrow Morning, at Eight of the Clock. And the Earl of Derby, Earl of North'on, Earl of Bristoll, Earl of Pembrooke, and Viscount de Stafford, and the Lord De la War, are added to the said Committee.

Bill to regulate Corporations.

Hodie 1^a vice lecta est Billa, "An Act for the Wellgoverning and Regulating Corporations."

Message from H. C. with a Bill.

A Message was brought from the House of Commons. by Sir Richard Everard; who brought up a Bill, intituled, "An Act for confirming of Private Acts," wherein their Lordships Concurrence is desired.

Bill to vacate Sir Ed. Powel's Fines.

A Proviso was offered to the House, to be added to the Bill for vacating the Fines levied by Sir Edward Powell and his Lady; which was received, and read; and referred to the Earl of Anglesey and the Lord Holles, to amend the said Proviso according to the Sense of the House upon Debate; and to report the same to the House presently.

And accordingly their Lordships reported some Amendments therein; which, being read Twice, were Agreed to.

L. Chamb. excused.

The Lord Chamberlain was excused for being absent, in regard of his ill Health.

L. Hereford, Leave to be absent.

ORDERED, That the Lord Viscount Hereford hath Leave to be absent from this House, and go into the Country.

Message from H. C. with a Bill.

A Message was brought from the House of Commons, by Mr Clifford; who brought up a Bill, intituled, "An Act for preventing the unlawful coursing, hurting, or killing of Deer;" wherein their Lordships Concurrence is desired.

Bill to vacate Sir Ed Powel's Fines.

Hodie 3^a vice lecta est Billa, "An Act for making void divers Fines, unduly procured to be levied, by Sir Edward Powell Knight and Baronet, and Dame Mary his Wife."

The Question being put, "Whether this Bill, with the Proviso, shall pass for a Law ?"

It was Resolved in the Affirmative.

Protest against it.

"Whereas, before the Question was put, upon a Bill, intituled, An Act for making void divers Fines, unduly procured to be levied, by Sir Edward Powell Knight and Baronet, and Dame Mary his Wife, Leave was desired for entering Protestations of divers Lords, in case the Vote shall be carried for passing the said Bill; we, whose Names are underwritten, do protest against the said Bill, for these Reasons following:

"1. That Fines are the Foundations upon which most Titles of this Realm do depend; and therefore ought not to be shaken, for the great Inconvenience that is likely to follow thereupon.

"2. Such Proceeding is contrary to the Statute of the 25 Ed. I, now in Force; which saith, "Forasmuch as Fines levied in Our Court ought and do make an End of all Matters, and therefore principally are called Fines."

"3. And to another Statute made in the Fifth Year of King Ed. the IIId, where it is enacted, "That no Man shall be forejudged of Lands or Tenements, Goods nor Chattels, contrary to the Form of the Great Charter."

"4. And to another Statute, made in the 28th of Ed. III, where it is enacted, "That no Man, of what Estate or Condition that he be, shall be put out of Land or Tenement, nor disherited, without being brought in to answer by due Process of Law."

"5. This Proceeding by Bill, as we conceive, is contrary to a Statute made in the 4th Year of King H. IVth, wherein it is declared, "That in Pleas Real and Personal, after Judgement given in the Courts of our Lord the King, the Parties be made to come in, upon grievous Pains, sometime before the King Himself, sometimes before the King's Council, and sometimes to the Parliament, to answer thereof anew, to the great Impoverishing of the Parties, and in the Subversion of the Common Law, it is ordained, That, after Judgement given in the Courts of our Lord the King, that Parties and their Heirs shall be thereof in Peace, until the Judgement be undone by Attaint, or by Error if there be Errors, as hath been used by the Laws in the Times of the King's Progenitors.

"6. The Proceedings upon this Bill hath been, as we conceive, directly against the Statutes aforesaid, by calling Persons to answer of Judgements anew, given in the Common Pleas, and vacating the same without either Attaint or Error, and calling Persons to answer without the due and ancient Process of Law, and forejudging the Tenants of the Lands in Question without ever hearing them.

"7. For that there hath not occurred to us One Precedent wherein any Fine hath been vacated by Act of Parliament, without Consent of Parties; the Law looking upon Fines as always transacted by Consent, and with that Reverence, that neither Lunacy, Ideotism, nor any other Averment whatsoever, shall be admitted against Fines, when perfected.

"8. We conceive, to vacate Assurances by a future Law, good by the present Law, is unreasonable; and of dangerous Consequence, both in respect of what such a Precedent may produce upon the like Pretences, as also rendering Mens Minds so doubtful, that not only the Rude and Ignorant, but the Learned, may be at a Loss how to make or receive a good Title.

"9. For that it is averred in the said Bill, that all the Lady Powell's Servants were removed; whereas it appeared, by Depositions in Chancery, that Antonia Christiana, one who had lived with the Lady Powell many Years, was not removed.

"10. That Doctor Goddard a Physician, and Foucaut an Apothecary, examined in the said Cause, did testify, "They saw no Fear in, or Force upon, the Lady Powell;" and had there been any, we conceive it impossible for a Woman to hide the Passion of Fear from a Physician, which is not easily dissembled from a vulgar Eye. And Foucaut the Apothecary deposed, "That he was Twice a Day with the said Lady Powell for One Month together, immediately preceding her Death."

"J. Rob'rtes.

Albemarle.
Brecknock.
Portland.
Campden.
Mountagu.
Stafford.
Chr. Hatton.
Will. Petre.
F. Willughbye.

Message to H. C. with the Bill.

A Message was sent to the House of Commons, by Dr. Childe and Sir Wm. Glascocke:

To deliver to them the Bill for vacating Sir Edward Powell and his Lady's Fines, and to desire their Concurrence therein.

Adjourn.

Dominus Capitalis Justiciarius de Communi Placit. declaravit præsens Parliamentum continuandum esse usque in diem Jovis, videlicet, 18^um diem instantis Julii, hora nona Aurora, Dominis sic decernentibus.