Journal of the House of Lords: Volume 12, 1666-1675. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Sabbati, 29 die Martii.
Message from H. C. to return the Bill for the King's general Pardon.
That whereas the Commons have received from their Lordships His Majesty's most gracious general and free Pardon, they do now return it, with this Signification, That the Commons have accepted of it with all imaginable Thanks.
Bill of Supply.
Greenland and East Country Trade Bill.
Message from H. C. for a Conference on the Dissenters Bill.
The Lord Chancellor, Lord Steward, Earl of Bridgwater, Earl of Anglesey, Earl of Carlile, Vicecomes Hallyfax, Bishop of Rochester, and Lord Widdrington, are appointed to be Reporters of this intended Conference.
Report of the Conference.
The Lord Chancellor reported the Effect of the Conference with the House of Commons; and shewed wherein the Commons agree or disagree with the Lords, in the Amendments in the Bill for Ease of Dissenters.
"The First Amendment in the 14th Line, for adding the Words ["by virtue of His Majesty's Grant or Dispensation to be published by Proclamation under the Great Seal of England, by virtue of this Act, may be"], the Commons disagree; because, they say, it is without Precedent, and may be of ill Consequence, to put a Power any where out of Parliament, whether a Law should take its Effect or no. They do not know upon what Terms and Conditions, and with what Limitations and Qualifications, such a Proclamation may issue, whereby the Intent of this Law might in a great Measure be defeated, and the Benefit of this Act rendered very uncertain to all those People to whom Ease is intended: That it puts a great Number of Persons upon a different Dependency upon the Crown from the rest of His Majesty's Subjects; and if such Dissenters should have too great a Countenance, it might cause many Persons to withdraw themselves from the Church of England.
"That, though the House of Commons cannot comply with so unlimited a Power as the issuing out such Proclamations would induce, yet, by a Clause added at the End of their Amendments to the Proviso marked (A.), they have put a sufficient Power in His Majesty to prevent any Inconveniences that may arise by this Act, which they doubt not but will satisfy their Lordships.
"To the 3d Amendment, for leaving out the Words ["before the next General or Quarter Sessions for the Peace, to be holden for the County, City, or Place, where the Meeting Place shall be, for the Performance or Exercise of any religious Duty or Worship as aforesaid"], the Commons disagree, because that these Words relate to the Way of proceeding by Justices of the Peace without resorting to the King for Licenses, which the House of Commons have thought sit to continue for the Reasons before given; and therefore they cannot agree to this Amendment.
"To the 4th Amendment, concerning the Teacher or Minister recording his License at the Quarter Sessions, and making a Declaration, the Commons do not agree, because that by this Amendment the Tests of the Oaths of Allegiance and Supremacy, and the Subscription to the Articles of the Doctrine of the Church of England, are wholly left out; which if it were admitted, Liberty might be given to Popery, and all Heresies and Sects whatsoever, though never so damnable or destructive to Christian Government, and which were never tolerated or dispensed withal in any Christian State whatsoever. They do not intend by this Act to give Ease to those that differ with us in the Fundamentals of Religion, but only in some Circumstances or Ceremonial Part of it; and they cannot know who agree with us in Fundamentals, unless they propose somewhat to which we all consent; and they conceive this Subscription to be the most proper Test, because it is the same that was enjoined in the Time of Queen Eliz. after the Reformation of Religion, before these Divisions did appear publicly in our Church: That these Tests will put a Difference between the Popish and Protestant Dissenters, which were never sufficiently distinguished by any Law yet extant; and this, they conceive, will be of great Benefit and Advantage to the Church of England, and conduce very much to the Preservation and Security of the Protestant Religion.
"To the 5th and 6th Amendments, the Commons disagree, because they think no Man deserves the Favour of this Act who refuseth to take the Oaths of Allegiance and Supremacy, which are the Civil Obligations of the Subjects of England to their King; and they cannot admit of the 6th Amendment, because they disagree to the Lords former Amendment, of procuring Licenses from the King, to which this relates.
"To the 11th Amendment, the Commons disagree, because they conceive it will be for the Advantage of the Church to invite as many to come in as may consist with its Safety, and to remove such unnecessary Scruples as may offend or hinder others from uniting with us: That they conceive that many Persons, that would renounce all Obligation of the Covenant upon themselves, are yet doubtful how far it may oblige other Persons, through a misguided Conscience, or invincible Ignorance; and they conceive themselves sufficiently secured of such Persons as shall take the remaining Part of the Renunciation: That they think it inconvenient to oblige any Person that hath never taken the Covenant to enquire into it, which all those must necessarily do who are obliged to renounce it; whereby the Memory of it will be continued, which is sitter to be buried in Oblivion.
"To the First Proviso marked (A.), the Commons agree with these Amendments; (videlicet,) 18 Line, leave out the Word ["or"], and instead thereof insert the Word ["and"]. At the End of the said Proviso, add the Clause following: Provided always, and be it Enacted, That His Majesty, His Heirs and Successors, for any Misdemeanors by colour of this Act, may, by His Proclamation under the Great Seal, take off the Liberty granted by this Act to any Person or Persons whatsoever, as to Him or Them shall appear meet or convenient; because they conceive their Lordships intend not to deprive any Persons from the Benefit of this Act, but such as have revolted from the Church of England; and they cannot esteem any Persons to have been Members of the Church of England, but such as have both conformed to the Liturgy, and received the Sacrament. They add the Clause at the End of this Proviso, for the Reason given before to the First Amendment.
Protestant Dissenters Bill.
Another Conference to be had on it.
Message to H. C. for a Conference on the Dissenters Bill;--and that the Lords have passed the following Bills.
Report from the Committee concerning Judicature, and the Continuance of Business from Session to Session.
Upon Report made by the Lord Widdrington, from the Lords Committees for Privileges, &c. "That, in Pursuance of the Matter referred to their Lordships by Order of the 11th Instant, (videlicet,) whether an Appeal unto this House (either by Writ of Error or Petition), or any other Business wherein their Lordships act as in a Court of Judicature, and not in their Legislative Capacity, being depending, and not determined in One Session of Parliament, continue in Statu quo, unto the next Session of Parliament, without renewing the Writ of Error or Petition, or beginning all anew, their Lordships considered several Precedents both ancient and modern (which were produced to their Lordships at the Committee); videlicet,
"2. In Particular: 18 E. I. Placita Parliamentaria, p. 44. and 49, the Case of William de Valentia and Isabell Mareschall. William de Valentia had been impleaded, and put to answer the Parliament before, which was presently after Christmas, at the Suit of Isabell le Mareschall, for exercising the Office of a Sheriff in the Hundred of Hostereslegh. He pleaded, he did it in the Right of his Wife; and that he ought not to be put to answer without her: Whereupon he had Time given for him and his Wife to appear as this Day, at this Parliament, beginning Three Weeks after Easter; and Isabell le Mareschall had the same Time given to prosecute.
"The same Year, p. 43. Hugh de Louther's Case; there being a Question concerning Lands held in Capite, that had been formerly belonging to one Henry de Edelyngthorp, then in the Possession of Henry de Louther as his Heir; of which Thomas de Normanvill the Escheator was to give an Account this Parliament, for recovering of the King's Right upon that Descent; and one Adam coming and laying Claim to those Lands, saying that he was right Heir, the Escheator is ordered to make Inquisition into it by a Jury, ita quod ad proximum Parliamentum post Festum S'ti Michaelis distincte et aperte inde respondeat.
"21° E. I. p. 160. Magdulphus Earl of Fife had made his Complaint, that John King of Scotland had unjustly taken from him certain Lands in the County of Fife. A Writ of Scire facias was thereupon directed to the Sheriff of Northumberland, to warn the King of Scotland to appear before the King in Parliament such a Day. The King of Scotland appeared, and made some Defence, which did not satisfy; so they were pronouncing Judgement against Him: But, before it was pronounced, He desired Respite till the next Parliament after Easter, to advise with His Council in Scotland, and that then He would come (as He said) et feray ce que faire devray, do what in Duty He was to do. Upon which, Day is given Him till the next Parliament, which was to be after Easter, in omnibus eodem Statu quo nunc.
"30 E. I. p. 234, the Case of William de Breouse, and Walter de Pederton Constable of Kermerdyn, touching the Manor of Gower, for which William was summoned in to do Suit and Service at the Castle of Kermerdyn; of which he had complained, and Day had been given to all Parties to appear next Parliament: And then it was not determined, but referred to a further Hearing at the following Parliament, which was to be held at Lyncolne, in Octabis Hillarii; and from thence, after some Debatings and Arguings, put off again to this Parliament, in the 30th of the King, in Octabis S'ti. Johannis Baptistæ, where the Business was more fully heard, and Course taken in it.
"The same Year, p. 605, some Merchants petition in Parliament for some Debts owing to them, for which they have no other Shewings but the Court Rolls, which are in the Keeping of the Stewards and Marshals, Officers to the King, before whom those Recognizances were taken, who refuse to shew them without special Warrant; whereupon they are ordered to bring all their Court Rolls to the next Parliament.
"15 E. III. N. 8. 43. 49. The Archbishop of Canterbury being arraigned in Parliament (according to his own Desire) before his Peers; the Bishops of Durham and Sarum, and the Earls of Northumberland, Arundell, Warwick, and Salisbury, were appointed to hear his Answer, the same to be debated the next Parliament; and all Things touching his Arraignment to remain with Sir William of Keldesby, Keeper of the Privy Seal.
"51 E. III. N. 96. Hugh Scaffolk, of Yarmouth, had been accused the Parliament before of divers Extortions, whereupon Commission had been granted to the Earl of Suffolk and Sir John Cavendish Chief Justice, to examine the Business; and Sir John Cavendish gave Account in open Parliament, that by 18 Inquests he had been found guiltless.
"1 R. II. N. 28. The Earl of Salisbury, William de Mountacute, brings his Writ of Error upon a Judgement in the King's Bench, by which Roger de Mortimer Earl of March, Father to Edmond, had recovered from him some Lands in Wales. The Record is brought into the House by the Chief Justice, there to remain; and a Scire facias awarded, to warn Edmond Earl of March to appear next Parliament. The next Parliament, 2 R. II. N. 21, 22, 23, 24, the Earl of March appears; saith, The Writ was not duly served, for that there was an Error in the Sheriff's Return; Edmond Mortimer, his Grandfather, being there said to be an Earl, which he never was. The Earl of Salisbury, on the other Side, affirmed it to be a good Return: So, there being Difficulty in the Matter, and the Parliament drawing towards an End, Day was given to both Parties till next Parliament, with all Advantages; and the Matter to stand as now it doth.
7 R. II. N. 20. The Prior and Convent of Montague complain of a Judgement given in the King's Bench, in Behalf of Sir Richard Seymor, in which due Form had not been observed, and obtains to have them amended: Then prays the whole Judgement to be reversed, for certain Errors; and a Scire facias, for Sir Richard to appear the next Parliament. All which was ordered; and the old Process and Record to be at the same next Parliament.
"13 R. II. N. 15. Sir Thomas Metham brings a Writ of Error upon a Judgement in the King's Bench, by which he was to pay Five Hundred Marks to John Aske; and prays for a Scire facias, returnable the next Parliament, for Aske then to appear. Which was granted.
"15 R. II. N. 22. John Sheppy brings his Writ of Error, for a Judgement in the King's Bench, given in the Behalf of the Prior of Huntington: Ordered a Scire facias, to warn the Prior to appear next Parliament, to abide the Order therein to be taken; and the whole Record and Process to be then there.
"N. 24. Edmond Bassett prays a Scire facias for a Judgement given in the King's Bench, for several Lands in the County of Sommersett, between the King Demandant and the said Edmond Deforcient: Upon this Petition, the Scire facias is granted; and it is likewise ordered, that the Matter shall continue in the same State until the next Parliament.
"5 H. IV. N. 40. Roger Deyncourt complains of an erroneous Judgement given against him in the King's Bench, for Ralph de Alderley; assigns the Errors; then a Scire facias is granted, for Alderley to (fn. 1) appear next Parliament. The next Parliament, 6 H. IV. N. 31. this Scire facias is returned Tarde venit; so a new one is granted, returnable the Parliament after that, and the Process to be continued.
"1 H. V. N. 19. Gunwardby complains of a Judgement in the King's Bench, in Behalf of John Windsor, for several Lands in Cambridgshire; assigns the Errors; hath a Scire facias granted, to warn Windsor to appear at the next Parliament, to hear the Record and Process.
"3. H. V. N. 19. Cathermaine prays a Scire facias against William Hore and John Hore, Executors of Thomas Hore, for an erroneous Judgement given in the King's Bench on the Behalf of Thomas, upon an Action of Trespass: It is granted, returnable the next Parliament.
"21 Jac. 28° Maii, the Lord Chief Justice brings into the House the Record of a Judgement given here in the King's Bench, in Placito Transgressionis et Ejectionis Firma, between William Macdonnagh Plaintiff, and John Farrar Defendant, for Lands in Ireland: Macdonnagh makes Thomas Stafford his Attorney, by a Letter there produced, and proved by Two Witnesses. Stafford assigns the Errors; whereupon a Writ is ordered, to go to the Chief Justice of Ireland, requiring him to issue out a Writ of Scire facias to the Sheriff of Wexford, to warn Farrar to appear before their Lordships at the next Session of Parliament, to hear the Record and Process of Error in the Judgement given in the King's Bench in that Cause.
"The same Day, the Earl of Bridgwater reports from the Committee for Petitions, the Opinion of that Committee upon divers Petitions, of which his Lordship did then give an Account unto the House; and it was, That they should be retained in Statu quo until the next Session of Parliament, which was ordered accordingly.
"1st Parliament of King Charles the Second, 28 December, several Petitions of Awbrey de Vere Earl of Oxon, Charles Earl of Derby, and Thomas Lord Windsor, were read, concerning the Office of the Great Chamberlain of England; and the Lords ordered, That the Consideration of the said Petitions should be adjourned to the Fourth Day of the Sitting of the next Parliament.
"The Case of Dame Alisimon Reade, the 4th of April, 1671, Wife of Sir John Reade, praying to be relieved against the hard Usage of her Husband: It was ordered, That Counsel on both Parts should be heard, on Thursday the 6th of the same April; on which Day the Lords ordered, That the further Debate of that Business should be adjourned to the First Tuesday of the next Sitting of the Parliament after the Recess then at Hand.
"The Case of the Lord Delawarr and the Lord Berkeley of Berkley, concerning Precedency, the 14 of April, 1671: It was ordered, That they should be heard on the Second Monday of the next Meeting of the Parliament after the Recess.
Writs of Error, Appeals, &c. may be continued from One Session to another.
"Upon the Consideration of these Precedents, and of several others mentioned at the Committee, their Lordships came to a Resolution, and accordingly declared it their Opinion, That Businesses depending in One Parliament, or Session of Parliament, have been continued to the next Session of the same Parliament, and the Proceedings thereupon have remained in the same State in which they were left when last in Agitation."
Cusack versus Ld. Dungannon, an Appeal from the Court of Claims in Ireland.
Upon reading the Petition of John Cusacke Gentleman, Son and Heir to Bartholmewe Cusacke Gentleman, deceased, being an Appeal from a Decree made by the Court of Claims in the Kingdom of Ireland, concerning certain Lands and Tenements, in the County of Meath, in the said Kingdom, assigned by the said Bartholmew Cusacke to one Sir Edward Bolton, in the Year One Thousand Six Hundred Forty and One (to avoid the Troubles of those Times), by Deeds dated in One Thousand Six Hundred Thirty and Eight; which Lands and Tenements are since conveyed, by Nicholas Bolton, Son and Heir of the said Sir Edward Bolton, to Mark late Lord Viscount Dungannon, in the said Kingdom of Ireland; who setting up a Title to the said Lands and Estate, as belonging to the Commissioned Officers who served His Majesty in the Wars in Ireland before the Year One Thousand Six Hundred Forty and Nine, hath, by the Combination of the said Nicolas Bolton (as in the said Petition is alledged), recovered the said Lands and Tenements by Decree of the said Court of Claims, notwithstanding that the said Lands and Tenements were assigned to the said Sir Edward Bolton only in Trust for the said Bartholmew Cusacke, whose Son John Cusacke (the Petitioner) was lately in Possession thereof; but, by an Action of Ejectment brought by the said Viscount Dungannon in the Court of King's Bench in Ireland, making Title by virtue of the aforesaid Decree (to which the Petitioner was no Party), the said Viscount Dungannon obtained a Judgement for the Recovery of the said Lands and Tenements; since which, the Petitioner's Wife and Children and Family have been thrown out of the Possession thereof, by Violence and Force, with the Help of Soldiers, to their utter Ruin, as the Petitioner alledgeth:
It is thereupon ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Case of the said John Cusacke mentioned in the said Petitions be, and is hereby, recommended to the Lord Chancellor of the Kingdom of Ireland; who is hereby directed to examine the Business complained of, and take Order therein for his Relief, according to the Justice of the Case, if it may be done by the ordinary Rules of Proceedings in the Court of Chancery in Ireland; or otherwise that the Lord Chancellor of the said Kingdom cause timely Notice to be given to the said Lord Viscount Dungannon, by his Guardian, and Nicholas Bolton, complained of in the said Petition, that they put in their Answer in Writing (which they are hereby required to do) to the said Petitions, at the Bar of this House, on the First Tuesday of the next Sitting of the Parliament after the Recess now at Hand: And it is further ORDERED, That in case Relief cannot be had for the Petitioner in Ireland as aforesaid, the said Petitioner John Cusack is hereby appointed to cause Copies of his Petitions and Appeal to be delivered to the said Viscount Dungannon by his Guardian, and the said Nicholas Bolton, One Month at the least before the Time appointed for putting in their Answers as aforesaid.
Doctor Salmon et al. versus Hamburgh Company.
Upon Report made this Day by the Earl of Aylsebury, from the Lords Committees appointed to consider what Relief may be given to the Creditors of the Corporation of Merchant Adventurers of England, commonly called the Hambrough Company, by the Judicial Power of this House, as the Case now stands before their Lordships, "That the Committee have met, and were attended by the said Creditors; but nobody appeared for the said Company (who were likewise appointed by the House to attend the Lords Committees); Mr. Harris (who was Solicitor for the said Company at their Hearing at the Bar of this House) alledging now, "That he is discharged by them, and not at all employed in their Service;" and that therefore the said Lords Committees desire the further Directions of this House, how they shall proceed in this Matter:"
It is thereupon ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That, in regard of the present Shortness of Time, this House will take up the Consideration of the great Oppression of the poor Creditors of the said Hambrough Company by the said Company, and their high Contempt of this Court and of the Courts below, on the Second Friday of the next Meeting of the Parliament after the Recess now at Hand.
Cholmley et al. versus The Grocers Company et al.
Upon Report made this Day by the Earl of Aylsebury, from the Lords Committees appointed to treat with the Wardens and Commonalty of the Mystery of the Grocers of London, and their Creditors, upon what hath been offered to this House by their respective Counsels at the Bar, in order to the Payment of the just Debts owing by the said Company, "That the said Company, by their Counsel, having made a Proposition before their Lordships, which was not satisfactory to their Creditors, and that Margaret and Elizabeth Cholmely, by John Savill Esquire their Guardian, Sarah Smith Widow, and Sir Kingsmill Lucy Baronet, and their Counsel, having made a Proposition to the said Company, which their Counsel would not accept of, their Lordships were of Opinion, That this House would please to direct, that the Lord Chancellor of England be enabled to proceed to the Sale of such Part of the said Grocers Company's Estate as is free from any prior Incumbrances or charitable Uses charged upon it before the Suits in Chancery commenced, to be paid to the several Creditors, in Satisfaction of their Debts, according to the Priority of their Decrees and Sequestration:"
It is thereupon ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That, in regard of the present Shortness of Time, this House will take up the Consideration of this Report on the Fourth Day of the next Meeting of the Parliament after the Recess now at Hand; and that, in the mean Time, the said Company of Grocers are hereby required to apply themselves with all Diligence to compose these Differences; and give their Creditors all possible Satisfaction: And it is further ORDERED, That the Lord Chancellor of England shall summon the Wardens of the said Company to appear before him, and signify this Resolution of this House unto them.
E. of Denbigh versus Burton, Privilege.
Whereas Andrew Burton Gentleman, being in the Custody of the Serjeant at Arms attending this House, for a Breach of Privilege of Parliament committed by him against the Earl of Denbigh, a Peer of this Realm (particularly expressed in the Order of this House, dated the 13th Day of this Instant March, by virtue whereof he was attached), was this Day brought to the Bar of this House; where, on his Knees, he acknowledged his Offence, and begged the Pardon of this House, and particularly of the Earl of Denbigh, and received the Reprehension of the House for the same:
It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Andrew Burton (at the Intercession of the said Earl of Denbigh on his Behalf) be, and is hereby, discharged from any further Restraint for his said Offence, paying his Fees; and this shall be a sufficient Warrant on that Behalf.
Merces versus Mercer.
Whereas there is a Petition and Appeal of Robert Mercer Merchant depending in this House, to which Alice and Ellen Mercer Infants have, by their Guardian Richard Blackmore, put in an Answer in Writing:
It is this Day ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear Counsel at the Bar, on both Parts, upon the said Petition and Answer, on the Second Wednesday of the next Meeting of the Parliament after the Recess now at Hand.
Answer from H. C.
Conference on the Protestant Dissenters Bill.
The same Lords as were Reporters of the last Conference are appointed to manage this; and to fortify their Lordships insisting upon their Amendments with those Reasons as were urged in the Debate in the Morning.
The King, sitting in His Royal Throne, adorned with His Crown and other Regal Ornaments, commanded the Gentleman Usher of the Black Rod to signify to the House of Commons His Pleasure, "That they presently attend His Majesty."
The Commons being come, their Speaker made a short Speech, and presented to His Majesty a Bill, intituled, "An Act for raising the Sum of Twelve Hundred thirty-eight Thousand and Seven Hundred and Fifty Pounds, for Supply of His Majesty's extraordinary Occasions."
"An Act for the reviving the Judicature for Determination of Differences touching Houses burnt down and demolished by reason of the late Fire which happened in London, and for rebuilding the Navy-office."
"An Act to enable the Dean and Chapter of the Cathedral Church of Bristoll to exchange their Vicarage of Berkeley, in the County of Gloucester, with George Lord Berkeley, for the Rectory of St. Michaell, in Sutton Bonnington, in the County of Nottingham."
"An Act to enable the Trustees of Sir William Hanham Baronet, deceased, to sell Lands, to pay his Debts, according to his own Direction in his Lifetime; and for Management of the Estate of Sir John Hanham, an Infant, during his Minority."
"An Act for confirming Agreements made between Sir Ralph Bankes, Sir John Hanham Baronet, Ellis Bethell, Thomas Mackrell, Richard Worland, and John Edwards, by their Guardians and divers other Persons."
"An Act for confirming of an Award made by Sir Orlando Bridgman Knight and Baronet, late Lord Keeper of the Great Seal of England, for the ending of all Differences in the Family of Sir Thomas Wolrych Knight and Baronet, deceased; and to enable John Wolrych Esquire and his Heirs to execute the Powers in the said Award mentioned."
"I thank you very kindly for the Supply you have given Me; and, that you may see how kindly I take it, I have given to My Subjects a General Pardon, which I have made as large as ever was granted by any of My Predecessors. What you have now left undone, I hope you will finish at your next Meeting; and so you may adjourn yourselves to the Twentieth Day of October next."