Journal of the House of Lords Volume 27, 1746-1752. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Martis, 13o Januarii.
Byrd & al. Leave for a Bill.
Hodie 1a vice lecta est Billa, intituled, "An Act for raising Money, by Leasing or Sale of the Estates late of Thomas Taylor Esquire the Father and Thomas Taylor Esquire the Son, deceased, to discharge the Debts and Encumbrances affecting the same; and for making a Partition of such Estates, or so much thereof as shall not be sold, for the Purposes aforesaid."
Bp of St. David's to preach the 30th Inst.
L Lovat delivers in his Answer.
The Order of the Day being read, for bringing Stmon Lord Lovat to the Bar of this House, in order to the putting in his Answer to the Articles of Impeachment of High Treason exhibited against him by the House of Commons:
"The Answer of Simon Lord Fraser of Lovat, to the Articles of Impeachment of High Treason, exhibited against him, by the Name of Simon Lord Lovat, by the Knights, Citizens, and Burgesses, in Parliament assembled, in the Name of themselves and all the Commons of Great Britain.
"The said Lord, saving and reserving to himself all Benefit and Advantage of Exception to the Uncertainties and Insufficiencies in the said Articles contained, and also all Advantage and Privileges belonging to him as a Peer of this Realm, in Answer to the aforementioned Articles, says, That, being as fully sensible as any British Subject of the many Blessings these Kingdoms have enjoyed under His present and late Majesty's mild and equal Administration; and having, in the Rebellion of One Thousand Seven Hundred and Fifteen, given the strongest Proofs of his Zeal for, and Attachment to, His late Majesty, and the Succession of the Crown in His Illustrious Family, against such as had undertaken the Destruction of both; he cannot but lament his Misfortune, to have his Fidelity questioned at the End of his Days, and himself, when near worn out with Age and Infirmities, charged with intending the Subversion of a Government he had, in the Strength and Vigour of his Age, exerted his utmost Power and Address to support. Under this heavy Pressure, attended with many other Calamities and Misfortunes, particularly his own Unability to manage his Defence, his only Resource is in your Lordships Justice; who will, he is well assured, regard only plain Facts, not as aggravated by Skill and Oratory, but as clearly and manifestly proved by the Testimony of credible and unexceptionable Witnesses.
"Under this firm Persuasion, therefore, the said Lord, in Answer to the First and Second Articles, denies that he did wickedly, maliciously, falsely, and traiterously, compass or imagine the Death of His said present Majesty; or correspond with the Pretender; obtain or accept any Commission or Commissions, Grant or Letters Patent, from the said Pretender, or traiterously conspire or enter into any Association whatsoever, for raising a War or Rebellion against His said Majesty, within this Realm; or for obtaining Troops, Money, or Succours, from France, for that Purpose, in Manner and Form as by the said Articles is alleged.
"To the Third Article; the said Lord denies that he did assemble himself with any Traitors or Rebels; or raise, or cause to be raised or assembled, any armed Men, for the Service of the said Pretender or his Eldest Son; or array, or cause to be arrayed, any Person or Persons whatsoever, against His said Majesty; or levy, or cause to be levied, any War against His said Majesty, in this Realm, in Manner and Form as in this Article is charged.
"To the Fourth Article; the said Lord denies that he did compose, write, or send, or cause to be composed, written, or sent, any Letter, Paper, or Writing whatsoever, to the said Pretender's Eldest Son, to any such Purport or Effect as by the said Article is supposed, or to any other Purport or Effect whatsoever.
"To the Fifth Article; he denies that he did compose, write, or send, or cause to be composed, written, or sent, any Letter or Letters, Paper or Papers, to any Person or Persons, to such Purport or Effect as by the said Article is alleged.
"To the Sixth Article; he denies that he ever did furnish or provide the said Pretender's Eldest Son, or any Traitors or Rebels, with any Arms, Ammunition, Implements of War, or other Things useful or necessary for the Purpose in the said Article mentioned; nor did he send his Eldest Son, or any of his Name, Family, or Dependants, to the Assistance of the said Pretender's Eldest Son or any Rebels whatsoever; nor encourage, advise, direct, or instruct, any of them in the Prosecution of the said Rebellion.
"To the Seventh Article; the said Lord denies that he ever did hold, entertain, or keep, any Intelligence or Correspondence with the said Pretender's Eldest Son, either in Person or otherwise; nor did he entertain or keep any Correspondence with any other of the Persons mentioned in the said Article, or with any other Person employed by the said Eldest Son of the Pretender in the said Rebellion, knowing any of them to be so employed.
"And as to all other Matters or Things in the said Articles contained, and which is not herein particularly answered (if any such there be), the said Lord avers that he is not guilty of them, or any of them, in Manner and Form as laid in the said Articles, or in any other Manner or Form whatsoever: And humbly submits himself to your Lordships Judgement.
Petition of L. Lovat, concerning his Estate and Strong Box, rejected:
The First, complaining, "That the Order of this House of the 18th of December last, relating to the Factory or Receivership of the Petitioner's Rents, has not been obeyed, so as to be made effectual to him; nor has the Contents of the Strong Box, taken from him, and now in one Captain Ferguson's Possession, been delivered to his Agent, as had been promised him;" and praying, "That Obedience to the said Order may be compelled, and an immediate Restitution of the Money taken out of the said Box; or that such Order may be made concerning this Matter as to the House shall seem meet."
Leave for Mr. Fraser, his Agent in Scotland, to go to him.
The other Petition, setting forth, "That Mr. William Fraser, Writer to the Signet, who for many Years has acted as his chief Agent, and has had the Management of his Estate in Scotland, is, by his Direction, come to Town; but cannot have Access to him without the Permission of this House;" and praying, "That the said Fraser may have Liberty to come to the Petitioner at all seasonable Times."
Ordered, That the said William Fraser be permitted to have Access to the Petitioner, at all seasonable Times, between the Hours of Ten of the Clock in the Forenoon and Two of the Clock in the Afternoon, in the Presence of such Officer belonging to The Tower of London as the Constable thereof shall appoint.
Commons to have a Copy of L. Lovat's Answer to the Articles of Impeachment:
Ordered, That a Copy of the Answer of the said Lord Lovat, to the Articles of Impeachment of High Treason exhibited against him by the House of Commons, be prepared; and, when the same has been carefully examined by the Clerk, it be sent by a Message to the House of Commons, and left with that House.
L Lovat recommitted to The Tower.
Ordered, That the said Lord Lovat be conveyed back to The Tower of London by the Lieutenant of the same, or his Deputy, to be there kept in safe Custody, until he shall be thence delivered by due Course of Law.
Evans against Blood & al.
Ordered, That the Hearing of the Cause wherein Richard Evans Gentleman is Appellant, and William Blood Gentleman and others are Respondents, which stands for To-morrow, be put off to Friday next; and the other Causes removed in Course.
DIE Veneris, 16o Januarii.
Hodie 2a vice lecta est Billa, intituled, "An Act for raising Money, by Leasing or Sale of the Estates late of Thomas Taylor Esquire the Father and Thomas Taylor Esquire the Son, deceased, to discharge the Debts and Encumbrances affecting the same, and for making a Partition of such Estates, or so much thereof as shall not be sold, for the Purposes aforesaid."
Commons Replication to L Lovat's Answer.
To acquaint this House, "That they have considered the Answer of Simon Lord Lovat, to the Articles of Impeachment exhibited against him by the Knights, Citizens, and Burgesses, assembled in Parliament, and do aver their Charge against the said Simon Lord Lovat, for High Treason, to be true, and that the sand Simon Lord Lovat is guilty, in such Manner as he stands impeached, and that the Commons will be ready to prove then Charge against him, at such convenient Time as shall be appointed for that Purpose"
Burton & al Petition referred to Judge.
Upon reading the Petition of John Burton of Winchester College Doctor in Divinity, and Joseph Smith of Wonwick in the County of Northampton Esquire, praying Leave to bring in a Bill, to enable the Petitioners to dispose of the Inheritance of so much of the Estates, in the County of Warwick and elsewhere, in the Petition mentioned, as shall be sufficient to discharge the Debts and Encumbrances therein expressed.
It is Ordered, That the Considcration of the said Petition be, and is hereby, referred to the Lord Chief Baron of the Court of Exchequer and Mr Baron Clarke; with the usual Directions, according to the Standing Order.
Evans against Blood & al.
After hearing Counsel, in Part, upon the Petition and Appeal of Richard Evans Gentleman, complaining of an Order, or Decree, of the Court of Exchequer in Ireland, of the 7th of June 1744, to which William Blood and others are Respondents.
DIE Lunæ, 19o Januarii.
Colmore's Petition referred to Judges.
Upon reading the Petition of Anne Colmore, Widow of Charles Colmore Merchant, deceased, who was Second Son of William Colmore late of the Borough of Warwick Esquire, deceased, by Elizabeth his Wife, also deceased, and of Charles Colmore, Eldest Son of the said Charles Colmore, deceased, by the said Anne Colmore, praying Leave to bring in a Bill, to enable the Petitioners to make Building Leases of certain Estates in the Petition mentioned, and for making more effectual a Power of Leasing, contained in a Settlement made the 3d Day of April last.
Evans against Blood & al.
DIE Mercurii, 21o Januarii.
Cowper's Petition to receive Cahill's Appeal.
A Petition of John Cowper of Staples Inn London, Gentleman, was presented, and read, setting forth, "That Instructions were sent your Petitioner, to pre pare an Appeal, on Behalf of John Cabill Esquire and his Son, from several Orders of the Court of Chancery in Ireland, but, by some Accident, Part of the said Instructions were omitted, and which the Petitioner did not receive till lately," and praying, That the said Appeal may be received, as though presented within due Time"
Cahill against Moore & al.
Accordingly, the said Appeal was presented, and read, complaining of Two several Orders of the Court of Chancery in Ireland, of the 20th of January 1743, and 3d of March 1745, made in a Cause wherein Nicholas Moore, James Poe and Mary his Wife, and James Sheridan then Lessee, were Plaintiffs, and the Appellants Defendants, and praying, "That the same may be reversed and set aside, or rectified in such Manner as to this House in their great Wisdom and Justice shall seem meet"
Ordered, That Nicholas Moore, James Poe and Mary his Wife, and the said James Sheridan, may have a Copy of the said Appeal, and they are hereby required to put in their Answer or respective Answers thereunto, in Writing, on or before Wednesday the 25th Day of February next, and that Service of this Order on their respective Clerks in Court, or their Solicitors, be deemed good Service.
Carver & al. against Polhill & al.
A Petition of Mary Carver and others, was presented, and read, setting forth, "That the Petitioners Appeal stands to be heard on Monday next, but the Officecopy of the Depositions of some of their Witnesses are mislaid, and cannot yet be found," and praying, "In regard the same are very material, that the Hearing the said Appeal may be adjourned to such further Day as this House shall please to appoint."
Lords to be summoned.
Evans against Blood & al.
After hearing Counsel, as well on Friday and Monday last as this Day, upon the Petition and Appeal of Richard Evans Gentleman, complaining of an Order, or Decree, of the Court of Exchequer in Ireland, of the 7th of June 1744, made on the Behalf of William Blood, William Adams and Ann his Wife, and praying, "That the same might be reversed, and that the Original Bill and Bill of Revivor, in the Appeal mentioned, might be dismissed with Costs, and that this House would give the Appellant such further and other Relief as to then Lordships great Wisdom should seem meet" As also upon the Answer of the said William Blood, William Adams and Ann his Wife, put in to the said Appeal, and due Consideration had of what was offered on either Side in this Cause.
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in Parliament assembled, That the said Petition and Appeal be, and is hereby, dismissed this House, and that the said Order or Decree therein complained of be, and the same is hereby, affirmed And it is hereby further Ordered, That the said Appellant do pay, or cause to be paid, to the said Respondents, the Sum of Sixty Pounds, of lawful Money of Great Britain, for their Costs in respect of the said Appeal.
DIE Jovis, 22o Januarii.
Epus. Litch & Cov.
Epus. Bath & Wells.
Ds Hardwicke, Cancellarius.
Dux Dorset, Præses
Comes Gower, C P S.
Dux Devon, Senescallus.
Dux Grafton, Camerarius.
Dux St Albans.
Dux Ancaster & Kesteven, Magnus Camerarius Angl
Viscount Say & Seale.
Viscount St John.
Ds Willoughby Br.
Ds Willoughby Par.
Ds. St. John Blet.
Ds. (fn. 1)Cornwallis.
Lord Byron & al Petition referred to Judges.
Upon reading the Petition of William Lord Byron, Frances Shaw Widow, and Elizabeth Shaw Spinster her Daughter, an Infant, praying Leave to bring in a Bill, for making and effecting a Settlement upon the Marriage of the said Lord Byron and the Petitioner Elizabeth, pursuant to the Treaty and Agreement for that Purpose, in the Petition mentioned.
It is Ordered, That the Consideration of the said Petition be, and is hereby, referred to the Lord Chief Baron of the Court of Exchequer and Mr Baron Clive, with the usual Directions, according to the Standing Order.
Foley against the Bp of Worcester's Privilege.
Upon reading the Petition of Edward Foley, of Carey Street, in the Parish of Saint Dunstan in the West, in the County of Midd'x, Esquire, One of the Burgesses of the Borough of Wyche, otherwise Drortwich, in the County of Worcester, and Relation in the Cause therein mentioned, praying the Consideration and Judgement of this House, "Whether the Petitioner and his Agents may be at Liberty to proceed in a Cause, upon an Information in the Court of King's Bench, in the Nature of a Quo Warranto, exhibited against Isaoc Lord Bishop of Worcester, in Pursuance of a Rule for that Purpose, his Lordship insisting upon a Right of voting for the Election of Bailiffs of the said Borough, and, being served with a Process to appear to the said Information, hath given Notice, by his Soliciton in the said Cause, to the Petitioner's Clerk in Court, that he would insist upon Privilege"
It is Ordered, That the said Petition be referred to the Consideration of the Lords Committees for Privileges, their Lordships to meet on Monday Se'nnight next, and that a Copy of the said Petition be sent to the said Lord Bishop.
Ld Lovat's Solicitor changed.
Upon reading the Petition of Simon Lord Lovat, praying, "That Mr William Fraser may be appointed One of his Solicitors, in the room of Mr Hugh Froser, he being necessarily required to go into the Country"
It is Ordered, That the said Mr. William Froser be assigned the Petitioner's Solicitor, in the room of the said Mr Hugh Fraser, as desired, and that the said Mr William Fraser may have Access to the Petitioner at all seasonable Times.
Su Thomas Parkyns's Bill.
Ordered, That the Committee to whom the Bill intituled, "An Act to enable Sir Thomas Parkyns Baronet and Jane Parkyns (with the Consent of their Guardians and Trustees) to make a Conveyance, by Way of Settlement, on their Intermarriage, notwithstanding their Minorty," be revived, and meet on Tuesday next.
Treaty and Convention with Holland and other Powers delivered.
"Copy of a Treaty of Friendship, good Understand ing, and Subsidy, between the King of Great Britain and The States General on the one Part, and the Flector of Bavaria on the other, Munich, 21st July, 1746, N. S, and Translation"
"Copy of a Convention between the King of Great Britain and The States General on the one Part, and the Empress Queen of Hungary and Bohemia on the other, Hague, 31st August, 1746, N S, and Translation."
Lord Lovat's Trial appointed.
Ordered, That Monday the 23d Day of February next be, and is hereby, appointed for the Trial of Simon Lord Lovat, in Westminster Hall, upon the Articles of Impeachment exhibited against him by the House of Commons, for High Treason.
Committee to inspect the Journals relating to Cases of Impeachments.
Then the Lords following were appointed a Committee, to inspect the Journals of this House, relating to former Cases of Impeachments, and to consider of the Proper Methods of proceeding, on the Impeachment against Simon Lord Lovat, and to report to the House what they shall think proper thereupon, (videlicet,)
Returns of the Lords of Sessions, concerning Heretable Jurisdictions in Scotland.
The Lord Chancellor acquainted the House, "That he had received from the Lord President of the Court of Session in Scotland, in a Letter from his Lordship, Two Returns from the Lords of Session there, to the Orders of this House of the 5th of August last, in which Letter he desired it might be signified to the House, that though, for the Reasons in the Returns mentioned, the said Lords have not been able to give them the Satisfaction which the House expected, and they wished, yet, when those Difficulties shall be removed, and the Intentions of the House signified to them, they shall leave nothing undone, that in them lies, to prepare Diaughts of Bills, or Clauses, for making effectual Provision for the regular Administration of Justice, in that Part of the United Kingdom, by the King's Courts and the Judges thereof"
"In humble Obedience to your Lordships Order of the 5th of August, directing the Lords of Session to prepare the Draught of a Bill, for remedying the Inconveniencies arising from the several Kinds of Heretable Jurisdictions in that Part of Great Britain called Scotland, and for making more essectual Provision for the regular Administration of Justice throughout that Part of the United Kingdom, by the King's Courts and Judges there, and to cause such Draught of a Bill to be laid before the House at the Begining of the next Session of Parliament They, having taken the Matter recommended to them into their serious Consideration, and observing, that it is impossible to make effectual Provision for the regular Administration of Justice, confining the same to the King's Courts and Judges in this Part of the United Kingdom, without taking away several Kinds of Heretable Jurisdictions, which, by the Articles of the Union, are secured to the Proprietors as Rights of Property, and therefore cannot, without due Satisfaction, be taken from them, have judged it improper for them to present your Lordships with the Draught of a Bill, that should set out with extinguishing those Rights of Property, or should proceed on a Supposition that no such Right subsist, when they verily believe many do, tho', from the Impersection of the Records, they have not been able to give your Lordships the Satisfaction you expected on that Head.
"But as they are extremely desirous to contribute, so far as in them lies, to the Execution of your Lordships Design, of remedying the Inconveniencies arising from the several Kinds of Jurisdictions, and of making more effectual Provision for the regular Administration of Justice in this Part of the Kingdom, they shall take the Liberty of suggesting some Matters that may be proper to be in your Lordships Eye when you reassume the Consideration of this Subject.
"In the Entry, as One of the principal Causes of lodging high Jurisdictions in powerful Families heretofore was the great Difficulty the Government was under of bringing Offenders to Justice, and executing the Laws, when the Country was yet uncivilized, and the Necessity of committing that Charge to such as were able to execute the same, and as that Part of the United Kingdom commonly called The Highlands of Scotland, has at all Times been, and at this Day is, in a State so unsettled, that Offenders are not from thence easily amenable to Justice, nor can Process of Law have free Course through it, due Care must be taken, to bring that Part of the County under Subjection to the Law, and to secure the Execution of Process of all Kings within it, before any Hopes can be entertained of seeing a regular Administration of Justice by the King's Courts and Judges there.
"1mo, That Circuit Courts be held, Twice in every Year, at Glasgow, Stirling, Perth, Aberdeen, and Irverness, where Offenders from The Highlands and other Places may be brought before the King's Judges, and be tired for their Offences, but, until some Shelter and Accommodation shall be provided in other Places in The Highlands where it may be thought proper to hold Circuit Courts, it seems impracticable for the King's Judges to carry their Circuits into the Body of The Highlands, whatever good Effects might be expected from then Presence there.
"2do, As One of the greatest Inconveniencies resulting from the inferior Jurisdictions is the Dependance upon the Lord of the Jurisdiction, arising from the Power of inflicting Capital or other severe Corporal Punishments, it may be considered, whether, as a Regulation of the public Policy, the Trial of all Crimes inferring the Loss of Life or Demembration may not be confined to the High Court of Justiciary at Edinburgh, or to the Judges in their Circuits, leaving to the Lords of the respective Jurisdictions the Escheats resulting for the several Convictions, to which they have Right by then Charters But as the restraming Sheriffs, Stewarts, or the Judges of other inferior Jurisdictions, which by the Wisdom of Parliament shall be thought proper to be continued, from trying Offenders even for Crimes which infer the Loss of Life or Demembration, may be attended with Inconveniencies to the Subjects, making it necessary that Persons committed should often lye long in Gaol before Trial, whereas the speedy Administration of Justice often contributes greatly to the attaining the proper Ends and Purposes thereof, it is humbly submitted, whether the inferior Jurisdictions may not be allowed to proceed as formerly on all Trials, but with this Proviso, That, in Cases where a Sentence is pronounced by an inferior Judge, which reaches either Life or Limb, such Sentence should be forthwith reported to the Justice Court, with a full Copy of the Trial, in order that the Justice Court, upon Examination thereof, may approve of the same, or discharge the Execution of the Sentence, or commute the Punishment, and return their Orders to the Court where the Trials were taken.
"3tio, The Law of this Part of the United Kingdom has retained Trials by Juries in all Capital and other Crimes that are atrocious, but has departed from the Use of Juries in almost all Civil Cases, and has lodged the Power of determining on the Import of the Evidence, in such Cases, in the Judges, with great Advantage to the Suitors, and to the general Satisfaction of the Subjects. It has also denied Credit to Parole Evidence for the Establishment of Debts and Contracts of divers Kinds, and relies on written Documents in such Cases, and for the Recovery of such Documents, when necessary in Judgement, different Processes are contrived, from all which it is apparent, that Civil Cases in this Country require a Form of Proceeding that is inconsistent with the Shortness of the Abode Judges can make on their Circuits in any one Station; and therefore the Criminal Causes are and may by them be tried, to the great Advantage of the Subject, and Peace of the Kingdom Civil Causes cannot.
"4to By the Law of this Part of the United Kingdom, all Parole Evidence given in Criminal Cases must be reduced into Writing, and be made Part of the Record, which occasions great and unnecessary Loss of Time to the Court, and raises the Expence of the Extract Now though in Criminal Proceedings before an inferior Magistrate, whose Sentences are liable to Review, it may be necessary to continue the Practice as it now is, yet it will tend much to the Dispatch of Business, and to the Ease of the Subject, to supersede the Necessity of reducing into Writing the Parole Evidence to be given in the High Court of Justiciary, or before the Judges in their Circuits And, lest any unforeseen Inconvenience should hereafter arise from what is now proposed, the Provision may be temporary.
"5to, The Subjects of this Part of the Kingdom have found great Benefit from the lower Jurisdiction, that has at all Times been in Sheriffs, Stewarts, and Magistiates of Boroughs, of trying lesser Offences, and Civil Actions of small Consequence. By the Law of this Part of the Kingdom, no Civil Action, where the Demand is under Two Hundred Merks Scots, or Eleven Pounds, Two shillings, Two Pence, and Two Thirds of a Penny, Sterling, can be tried, in the First Instance, before the Court of Session, but must commence before the inferior Magistrate within the County, where Justice may be had at home, and without great Expence; and the immediate Punishment of Petty Offences, in the least expensive Manner, has, at all Times, been attended with advantageous Effects. Now, as this speedy and easy Way of coming at Justice, in the Course whereof if any Wrong shall be committed it may be summarily set to Rights by the Process of Suspension, in the Nature of an Appeal to the Higher Court, is of considerable Utility, it may be considered, whether, though Expediency may require the consining the Trials of all Crimes inferring Capital or any Kind of Corporal Punishments, such as have been already described to the High Court of Justiciary and the Judges thereof in their Circuits, the Jurisdiction of the Sheriffs and other inferior Magistrates respecting lesser Offences, and the Determination of Civil Causes, as now established, ought not, from Regard to the Utility thence derived to the Public, to be confirmed, and those inferior Magistrates encouraged to do their Duty.
"6thly, What is more particularly meant by what has been just suggested is, that whereas Sheriffs and Stewarts have at present no other legal Reward for doing their Duty than Sentence Money, which is a Sort of Poundage out of the Sum decreed for If this Sentence Money were discharged, and in Place thereof a reasonable Salary were allowed to the Judge, in Proportion to the valued Rent of such Shire or Stewartly, and if the Judge were to have the Holding of his Office quamdiu se bene gesserit, or, in the Law Language of this Country, ad Vitam aut Culpam, Men would soon be found willing to qualify themselves for the Discharge of such Offices, and desirous to continue in them by the faithful Discharge of then Trust, so that it would then become a Matter of less Moment by whom such Judge was appointed.
"7thly, Though the high Jurisdiction, which, by the Grant of Pit and Gallows, is in Barons, may very properly be restrained, yet it seems to be expedient, not only that the Baron's Jurisdiction, in respect to the Recovery of his Rents, but also that his Authority with respect to the Correction of lesser Offences and Trespasses, and the Recovery of small Debts due by one Tenant to another, be left entire, as the Preservation of the Peace and of good Neighbourhood, without engaging the lower Class of Manking in expensive Law Suits, seems to be of great Consequence.
"These Considerations the Lords of Session, who have not, for the Reasons assigned, been able to prepare the Draught of the Bill expected, have humbly presumed to lay before your Lordships, that your Lordships may have Possession of what appears to them fit to be done, and to be avoided, on the Subject of your Order, and that your Lordships may see how desirous they are, so far as they are able, to obey your Commands.
"In humble Obedience to your Lordships Order of the 5th of August, directing the Lords of Session to inquire and consider what Regalities and Heretable Sheriffships are subsisting within that Part of Great Britain called Scotland, what Persons are now in Possession thereof, and which of such Regalities were granted before the Act of the 11th Parliament of King James the Second of Scotland, intituled, "That all Regalities being in the King's Hands be annexed to the Royalty," and which of them since, and as to such of them as have been granted since, which of them were granted with Deliverance in Parliament, and which without, and to certify the same to the House at the Beginning of the next Session of Parliament, they have applied themselves with all Diligence to the Execution of your Lordships Commands, and have, by Inspection of the Records of Charters, Retouts, and Proceedings in Parliament, by Committees of their own Number, and by Examination of the Officers appointed to keep them, done all that is in their Power to procure to your Lordships the Satisfaction you expected, but without Success, as all that could be discovered from these Records, after a Search of many Years, could not produce any compleat Answer to the Question your Lordships are pleased to put For though in the Register House there appears several Rolls of Charters, down from the Reign of King Robert the First to that of King James the First of Scotland, and from thenceforward Books in each Reign, into which great Numbers of Charters are transcribed,
"Yet, 1st, it does not appear, nor can it, that the Series of these Rolls or Books is compleat, because the Entries of these Charters are not made in them regularly in Order of Time, but Charters of a later Date are followed by others in the same Book of a Date many Years earlier, so that there may have been several intermediate Books between those that now appear, for any Thing that can be certainly known, for there is no Minute Book now appearing, in which the passing these early Charters at the Seal has been entered.
"2dly, Though all the Records of Charters that ever existed were now extant, the Satisfaction expected would not thence flow, because it is a known Fact, that many of the Charters that passed the Seals were not recorded, partly from the Neglect of Officers, and partly from the Impatience of those who obtained them, as there was no Penalty attendant upon the Omission to record such Charters, which gave Rise to the Act 7th 3d Session Parliament 2d K. Charles 2d, Anno 1672, intituled, "Act concerning Writs passing the Great and Privy Seal," whereby, on a Recital, that the Service of the Crown, and the Interest of the Subject, had been much prejudiced by the Neglect of registrating Charters, &c. which pass and are written to the Great and Privy Seals, it is, for remedying and preventing of this Evil for the Time to come, Ordained, "That all Charters, &c which thereafter should pass under the Great or Privy Seals should be registrated in the Registers of these Seals, respectively, before the Seals be appended to them" And yet, from the Examination of the Officers, it appears that, this Act of Parliament notwithstanding, many Charters have between the Date thereof and the Union past the Great Seal, which do not appear in the Records thereof.
"3dly, Many of the Books of the Records of Charters still extant are in so bad Condition, some of them being daminified with Sea Water, and so defaced and obliterated in several Places as not to be legible, some of them having had Leaves by Accident or Design torn out of them here and there, and others of them having Leaves of Blank Paper unfilled up still appearing in them, that it is impossible to rely on them for a Discovery of what Charters may have been granted.
"Such is the Condition of the Record of Charters And the Record of Retours can yield no clearer Light, as the like Practice has prevailed in the One Case as in the other, after the Precept for Infeoffment was issued, it was usual to carry it away, on Promise to return it in order to recording, but Infeoffment being once taken, as no Penalty attended the not recording, it never was returned, and thence has flowed the Imperfection of that Record, which is by the present Officer better taken Care of than heretofore it has been.
"For it is to the Penalty unnexed to the Neglect of pursuing the Directions of the Statute made in that Behalf, that the Perfection of the Register of Seasines, Inhibitions, &c in this Part of the Kingdom, and from which it reaps so much Advantage, proceeds By the Statutes appointing these Registers, the earliest whereof is in the 1617, the Instrument, if not registered within a certain Number of Days, is declared to be ineffectual, and therefore these Registers at this Day effectually answer the Purposes for which they were intended.
"Had the Records already mentioned yielded any Light, the next Step would have been, to have consulted those of Parliament, to see whether in them any such Deliverances as are mentioned in the Act of King James the 2d could be met with, at the Date of the respective Erections or Grants, but, as there was no Certainty that those Erections or Grants could be discovered from the Records of Charters, it became unnecessary to be very inquisitive about such Deliverances in Parliament as might have attended them Besides that, upon viewing what are called the Records of Parliament, such as precede the Reign of King James the Sixth do not appear to be attended with such Marks of Authority as to give them all Credit, or to give Evidence that there were none other The Keepers had an Opinion, founded on Tradition, that several of the Records of Parliament lie in the Castle of Edinburgh, locked up in the Room where the Crown of Scotland was deposited at the Time of the Union, but what Ground there is for this Tradition, does not appear, and the Court has no Authority to order Inspection of what may be lodged in that Room.
"Thus it will appear to your Lordships, that, tho' every Line in the Records relating to Regalities and Heretable Sheriffships were collected together, which would be a Work of several Years, no Certainty could from thence result, that many Heretable Offices, not vouched from these Records, would not appear to be now subsisting, and lawfully established, upon Production made by the Proprietors, from their Charter Chests, of the Chartes, with Deliverance of the Parliament, if after the Act of King James the 2d, or of the Charter, if before that Period, with Retours and other proper Conveyances thereof Now, as the Lords of Session have no proper Authority to compel the Proprietors or Claimants of such Jursdictions to exhibit their Titles, and as the Proprietors are not by Act of Parliament obliged to lay their Titles before the Court against a Day certain, to enable them to form a Judgement of their Validity, your Lordships will be satisfied, that it is not possible for them, as Matters are at present circumstanced, to make to the House such a Return as your Lordships expected.
Returns to be considered and printed.
Ordered, That the said Returns be taken into Consideration on Tuesday the 10th of February next, and the Lords to be summoned, and that the Two Orders of this House of the 5th of August last, the First directing the Lords of Session in Scotland to prepare the Draught of a Bill for remedying Inconveniencies arising from several Kinds of Heretable Jurisdictions, and the other to inquire and consider what Regalities and Heretable Sheriffships are subsisting there, together with the said Returns, be forthwith printed.
Trowell against Renton Hearing put off.
Ordered, That the Hearing of the Cause wherein Elizabeth Trowell and Thomas Trowell her Husband are Appellants, and Thomas Renton and others Respondents, which stands for To-morrow, be put off to Monday next.
DIE Lunæ, 26o Januarii.
Garrard & al. Petition referred to Judges. (fn. 2)
Upon reading the Petition of Thomas Gariard the Elder of Chipping Lamborn in the County of Berks Esquire, Thomas Garrard the Younger Esquire his Eldest Son and Heir Apparent, George Garrard Gentleman his Second Son, Robert Garrard Gentleman his Third Son, Nicholas Garrord Gentleman his Fourth Son, Christopher Garrard Clerk his Fifth Son, and Richard Garrard Clerk his Sixth and Youngest Son, and also of John Eorle Esquire One of the Trustees for and on the Behalf of the said Thomas Garrard the Elder and his said Sons, praying Leave to bring in a Bill, for revoking and making void a Will, or Writing, and Settlement, in the Petition mentioned, made and executed by the Petitioner Thomas Garrard the Elder, and for making such Settlement and Disposition of his Real and Personal Estates, as is therein agreed upon between the Petitioners.
Kynaston's Petition referred to Judges.
Upon reading the Petition of Thomas Kynaston Clerk, Parish Minister or Stipendiary Clerk or Chaplain in and for the Parish of St. Buttolph without Aldgate, London, and also Owner and Proprietor of the Rectory of St Buttolph aforesaid, and of the Advowson and Right of nominating a Parish Minister or Stipendiary Clerk or Chaplain in and for the said Parish, for himself and on the Behalf of Thomas Kynaston his only Son, an Infant, and also of John Torriano Esquire, praying Leave to bring in a Bill, for Sale of the Rectory, Tithes, and Advowson, of the said Parish, and for purchasing another Estate, to be settled to such of the Uses of the Petitioner Kynaston's Marriage Settlement as are still subsisting.
It is Ordered, That the Consideration of the said Petition be, and is hereby, referred to the Lord Chief Baron of the Court of Exchequer and Mr. Baron Clive; with the usual Directions, according to the Standing Order.
Armistead to enter into Recognizance for Cahill.
The House being moved, "That William Armitstead of Halfmoon Street in The Strand may be permitted to enter into a Recognizance for John Cahill Esquire and John Cahill his Eldest Son, on account of their Appeal depending in this House, they being in Ireland"
Trowell against Renton.
This Day being appointed, for hearing the Cause upon the Appeal of Elizabeth Renton, now Trowell, Daughter of the deceased Sir Thomas Renton Knight, and Thomas Trowell Merchant in London, her Husband, for his Interest, complaining of an Interlocutor of the Lord Ordinary, of the 29th of January 174½, and also of an Interlocutor of the Lords of Session in Scotland, of the 16th of February following, and likewise of Part of an Interlocutor of the said Lord Ordinary, of the 24th of July 1742, and praying, "That the same may be reversed, varied, or amended," to which Appeal Thomas Renton, David Nisbet, Doctor David Cockburne, Claud Johnson, and Alexander M'Conochie, are Respondents.
Ordered and Adjudged, by the Lords Spiritual and Temporal in Parliament Assembled, That the said Petition and Appeal be, and is hereby, dismissed this House, and that the Interlocutors, or so much thereof as is therein complained of, be, and the same are hereby, affirmed And it is further Ordered, That the Appellants do pay, or cause to be paid, to the Respondents, the Sum of Twenty Pounds, for their Costs in respect of the said Appeal.
DIE Martis, 27o Januarii.
Dring to take the Name of Garforth, Leave for a Bill.
Upon reading the Petition of Edmund Garforth, lately called Edmund Dring, Clerk; praying Leave to bring in a Bill, to establish and confirm the Surname and Arms of Garforth to him and his Posterity, pursuant to the Will of William Garforth, late of the City of York, Esquire, deceased.
Bill presented, and read.
Accordingly the Earl of Warwick presented to the House a Bill, intituled, "An Act to enable Edmund Garforth, formerly called Edmund Dring, and his Heirs, to take, use, and bear, the Surname and Arms of Garforth."
DIE Mercurii, 28o Januarii.
Dring to take the Name of Garforth, Bill.
Lords added to the Committee on Tayler's Bill.
Ordered, That the Duke of Manchester, Earl Cowper, Lord Delawarr, and Lord Cadogan, be added to the Committee to whom the Bill for raising Money, by Sale of the Estates late of Thomas Taylor Esquire the Father and Thomas Taylor Esquire the Son, to discharge Encumbrances affecting the same, stands committed.
Plunket against Visc Kingsland & al.
After hearing Counsel in Part, upon the Petition and Appeal of William Plunket of Portmarnock in the County of Dublin Gentleman, complaining of a Decree of the Court of Chancery in Ireland, of the 14th of December 1745, to which Henry Lord Viscount Kingsland and others are Respondents.
DIE Jovis, 29o Januarii.
Sir Tho Parkyns's Bill.
The Earl of Shaftesbury reported from the Lords Committees to whom the Bill, intituled, "An Act to enable Sir Thomas Parkyns Baronet and Jane Parkyns (with the Consent of then Guardians and Trustees) to make a Conveyance, by Way of Settlement, on then Intermarriage, notwithstanding their Minority," was committed "That they had considered the said Bill, and examined the Allegations thereof, which were found to be true, that the Parties concerned had given then Consents, and that the Committee had gone through the Bill, and directed him to report the same to the House, without any Amendment."
Plunket against Vis Kingsland & al,
After hearing Counsel, as well Yesterday as this Day, upon the Petition and Appeal of William Plunket of Portmarnock in the County of Dublin Gentleman, complaining of an Order, or Decree, of the Court of Chancery in Ireland, of the 14th of December 1745, made in a Cause wherein the Appellant was Plaintiff, and Henry Lord Viscount Kingsland, Francis Lord Baron of Athunry, and Thomas Wakeley Esquire, Defendants, whereby an Issue at Law was directed to be tried, and praying, "That the said Order, or Decree, might be reversed, and that the Appellant might have such further and other Relief as to their Lordships in their great Wisdom should seem meet" As also upon the joint and several Answer of the said Lord Atbunry and Thomas Wakeley put in to the said Appeal, and due Consideration had of what was offered on either Side in this Cause.
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in Parliament assembled, That the said Petition and Appeal be, and is hereby, dismissed this House, and that the said Order, or Decree, therein complained of be, and the same is hereby, affirmed.
Carver & al. against Polhill & al, and Wood against Polhill & al.
Ordered, That the Hearing of the Cause wherein Mary Carver Widow and others are Appellants, and David Polhill Esquire and others Respondents, and wherein William Wood Esquire is Appellant, and the said David Polhill and others are Respondents, which stands for Monday next, be put off to Wednesday.
DIE Veneris, 30o Januarii.
Epus. Litch & Cov.
Gulielmus Lee Miles, Capitalis Justiciarius Banci Regii, declaravit præsens Parliamentum continuandum esse usque ad et in diem Lunæ, secundum diem Februarii jam prox sequen. hora undecima Auroræ, Dominis sic decernentibus.