Journal of the House of Lords: Volume 15, 1691-1696. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Martis, 19 Martii.
Message from H. C. to return the Bill for dividing the E. of Rochester's Estate.
To return the Bill, intituled, "An Act for the dividing and settling the Estate of the Coheirs of John late Earl of Rochester deceased, and for discharging the Trusts thereupon;" to which they have agreed, with One Amendment.
Counterfeiting and clipping the Coin, to prevent, Bill:
Message to H. C. with it.
Messages from thence, to return the E. of Thanet's Bill, and Sir R. Barkham's.
Who returned the Bill, intituled, "An Act for confirming Two Indentures Tripartite, the one of Lease, and the other of Release, made between the Right Honourable Thomas Earl of Thanct Island of the First Part, the Honourable Sackviie Tuston Esquire of the Second Part, and the Honourable William Cheyne Esquire and Sir Charles Tuston Knight of the Third Part, and the Estates thereby settled;" to which they have agreed, without any Amendment.
To return the Bill, intituled, "An Act for the vesting the Manors of Earls Croome, alias Jeffery's Croome, and Baughton, in the County of Worcester, in Trustees, to be sold; and for settling the Manor-house and Royalty of Waynsleete St. Marye's, in the County of Lincoln, and divers Lands, Parcel of the said Manor, of greater Value, to and upon the same Uses; and to enable Sir Robert Barkham Baronet to make Provision for his Younger Children;" to which they have agreed, with some Amendments, whereunto they desire the Concurrence of this House.
Bronies by Writ, Descent of.
Baron summoned by Writ, who dies leaving Issue Two or more Daughters, who die, one of them only leaving Issue, such Issue to have a Writ of Summons:
This Question was put, "Whether, if a Person summoned to Parliament by Writ, and sitting, die, leaving Issue Two or more Daughters, who all die, One of them only leaving Issue, such Issue has a Right to demand a Summons to Parliament?"
Protest against the Resolution.
"1. Because we conceive it is more suitable to the Methods of all Courts of Justice, and therefore particularly more proper for this Supreme Court, to give Judgement in particular Cases when they are brought to be tried before them, than to make a general Rule; which possibly may not comprehend all future Accidents, and may be liable to many great Inconveniencies that cannot now be foreseen, and which in its Nature seems to be a Matter fitter to be provided for by a Law than a Judgement.
"2. And because there were several Precedents offered to be produced, to shew that the Practice upon several Occasions had been directly contrary to this Rule; and because the Heralds, who we conceive disproved the printed Precedents, were not allowed Time to produce Precedents to shew where Baronies descending to several Daughters were extinguished, and new Creations of those Titles given to others.
"3. Because we conceive this general Rule now made is in Opposition to a Judgement solemnly given by this House, upon hearing Counsel on all Sides, in a particular Case lately referred by the King; and is grounded upon a bare Motion, made by some Lords, who, we conceive, were no Ways concerned in that Judgement.
"4. Because this last Rule does likewise seem to us to be repugnant to the Judgement of this House, in the Case between the Earl of Oxford and Lord Willoughby of Eresby, then referred to this House by King Charles the First, and by their Lordships thought fit to be referred to the Consideration of the Judges, as a Matter of that Importance that deserved their Assistance; who, upon mature Deliberation, returned their Opinion to their Lordships in these Words; (videlicet,)
"As to the Baronies of Bulbeck, Sandford, and Badlesmere, our Opinion is, That the same descended to the general Heirs of John the Fourth Earl of Oxford, who had Issue John the Fifth Earl of Oxford, and Three Daughters; one of them married to the Lord Latimer, another to Winckfeild, and another to Knightley; which John the Fifth Earl of Oxford dying without Issue, those Baronies descended upon the said Daughters, as his Sisters and Heirs; but those Dignities being entire and not dividable, they became uncapable of the same, otherwise than by Gift from the Crown; and they, in Strictness of Law, reverted unto, and were in the Disposition of, King Hen. VIIIth: And yet nevertheless we find, that Four several Earls of Oxford successively, after that Descent, to Three Daughters, as Heirs Males of the said Earldom, assumed and took upon them those Honours and Titles, in their Writings, Leases, and Conveyances, and their Eldest Sons have been stiled, in the Life-time of their Fathers, by the Name and Title of Lord Viscount Bulbecke, and so reputed to be."
"And the House did vote, That the Baronies were in His Majesty's Disposition; and, in their Report to the King, did declare, That for the Baronies they were wholly in His Majesty's Hand, to dispose at His own Pleasure."
"5. Because we conceive, that it is not in the Power of this House, either to explain or repeal an Act of Parliament, though a Private Act, in a Judicial Manner, but only in our Legislative Capacity. And there being an Act passed in the 15° Car. IIdi, n. 15. for settling the Lands of the Earl of Kent, which disposes of the Barony of Lucas of Crudwell, and declares the King's Power to dispose of the Barony, when more than One Female Heir, to whom or to which He pleases, or to hold in Suspence, or extinguish the same; we cannot but think this Vote is in direct Opposition to that Act.
It is Resolved, upon the Question, by the Lords Spiritual and Temporal in Parliament assembled, That if a Person summoned to Parliament by Writ, and sitting, die, leaving Issue Two or more Daughters, who all die, One of them only leaving Issue, such Issue has a Right to demand a Summons to Parliament.
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad et in diem Mercurii, (videlicet,) vicesimum diem instantis Martii, hora decima Aurora, Dominis sic decernentibus.