House of Commons Journal Volume 9
12 July 1678

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1802

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'House of Commons Journal Volume 9: 12 July 1678', Journal of the House of Commons: volume 9: 1667-1687 (1802), pp. 513-514. URL: http://www.british-history.ac.uk/report.aspx?compid=27661 Date accessed: 30 July 2014.


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Veneris, 12 die Julii, 1678.

Prayers.

Delays in Suits.

SIR John Birkenhead reports from the Committee to whom the Bill, sent from the Lords, intituled, An Act for reviving a former Act, intituled, An Act for avoiding unnecessary Suits and Delays; and for Continuance of One other Act, intituled, An Act for the better Settling Intestates Estates; was committed; That the Committee had taken the Bill into Consideration; and made some Amendments, which he read in his Place; and afterwards delivered the same in at the Clerk's Table: Where the same were twice read, and, upon the Question, agreed.

And the Bill, with the Amendments, being read a Third time;

Resolved, &c. That the Bill, with the Amendments, do pass: And that Sir John Birkenhead do carry back the Bill with the Amendments to the Lords for their Concurrence.

Foreign Protestants.

An ingrossed Bill, sent from the Lords, intituled, An Act for Relief of poor Protestant Strangers, was read the Second time.

The Question being put, That the Bill be committed;

It passed in the Negative.

Resolved, &c. That the Bill be rejected.

Destroying Deer.

An ingrossed Bill, sent from the Lords, intituled, An Act to prevent the unlawful Coursing, Hunting, Killing, Selling, or Buying of Deer, was read the First time.

The Question being put, That the Bill be read a Second time;

The House divide.

The Yeas go out.

Tellers, Sir Trevor Williams, for the Noes, 65.
Sir Anth. Irby,
Tellers, Sir Hen. Ford, for the Yeas, 57.
Sir Edm. Jenings,

And so it passed in the Negative.

Bill for burying in Woollen.

Sir George Downeing reports from the Committee appointed to draw up Reasons to be offered at a Conference to be had with the Lords, for adhering to the Amendments to the Bill for burying in Woollen, That the Committee had agreed upon Reasons: Which he read; and are as followeth; viz.

The Reasons, alledged by your Lordships at the last Conference, Why you did not agree to the Amendment made by the Commons, for the Distribution of the Penalty of Five Pounds, for not being buried in Woollen, were principally these;

"Because the King is Creditor Pænæ."

"Because the Commons had agreed with your Lordships in the Distribution of the other Five Pounds Penalty upon the Officers, for Neglecting of their Duties."

"Because your Lordships do conceive, that the Giving the King a Part of the Penalty, will be a Means to have the Law the better executed."

All which was reported to the Commons: But, upon the whole Matter, they have thought fit to adhere to their former Amendments; and to acquaint your Lordships therewith.

And as to your Lordships First Reason, We say, That we grant, that the King is Creditor Pænæ, by the Common Law: But where a Statute creates an Offence, and a Penalty, it has been usual therein also to provide the Distribution thereof according to the Nature of the Case; and in many of those Laws the King has no Part of the Penalty.

As to the Second, We say, That in regard the Commons have agreed with your Lordships in the Distribution of the latter Penalty which is upon the Offences, we hope your Lordships will not from thence argue, that therefore the Commons must agree in the First also; but on the contrary, that since the Commons have agreed with your Lordships in One Part, your Lordships will be pleased to agree with them in the other; especially when your Lordships shall consider the Difference of the Cases: For as to the Five Pounds Penalty in which the Commons agree with your Lordships, it is the Penalty upon Officers, for wilful Breach of their Duties: And they being generally People of Substance, and by such Neglects of their Duties the Cause why the Law may not be observed, the Commons did think it reasonable, that his Majesty should have a Part of that Penalty; and so leave them to Westminster Hall.

But, the Five Pounds Penalty, concerning which the present Debate is, is the Penalty for not being buried in Woollen; which concerns every body; and the poorer Sort make the Bulk of the People: And therefore the Commons do not think fit to give any Part of this Penalty to his Majesty. For, as they are informed, although by the Bill this Penalty is to be levied by Warrant of any One Justice of the Peace; yet that if the King be intitled to any Part of the Penalty, the King may sue for his Part in any of his Courts at Westminster; and so the Heirs, Executors, or Administrators of all the Poor of the Nation, as well as of the Rich, may be brought up to London; which would be very vexatious. Besides, it being by your Lordships, That this Penalty is to be levied by One Justice of the Peace, the Justices will be hereby made liable to account to his Majesty for the Money; which will deter Justices of the Peace from putting so good a Law in Execution.

As to the Third, We say, That we do not look upon it, That the Intitling the King to a Part of the Forfeiture, will any way conduce to the better Executing of the Law.

It is the Giving of considerable Encouragement to Informers, that puts them upon Information and Prosecutions.

And whereas your Lordships leave only One Fourthpart, being but Five-and-twenty Shillings, to the Informer, giving the other Part of that Moiety to the King; we doubt, that the Encouragement to Informers would thereby become so small and inconsiderable, as that the Act would come to nothing.

Your Lordships may further consider, That this Business of burying in Woollen, doth neither concern the King's Prerogative, nor his Revenue, but only the Good and Welfare of the Country: And therefore, that the whole Design and Scope of the Bill is, that it may be carried on and managed as such by Parish Registers, Warrants of the Justice, and the Accompts of the Overseers of the Poor.

But if the King be intitled to any Part of this Penalty, then the Matter may be carried out of the County; which the Commons desire to prevent and provide against. Besides, by the Law, in the Eighteenth Year of his Majesty's Reign, for burying in Woollen, this Penalty for not burying in Woollen is therein directed; and no Part thereof directed to the King. So that this Law takes not away any thing from his Majesty. If this Law never pass, this Penalty of Five Pounds is still in being, and no Part thereof to the King, by another perpetual Law: And therefore we hope your Lordships will not stop a Bill which is of so publick and great Concern to . . .; especially considering the present extreme Lowness of Wool, and Want of Employment for the Manufacturers and Workers thereof; and that the Finding out of Means for the Consumption of Woollen Manufactures would be a more probable Means to keep the Wool of this Kingdom from being exported unmanufactured, than any penal Laws are or can be made to that Purpose.

Keels, &c. carrying Coals.

Sir George Downing reports from the Committee appointed to draw up Reasons to be offered at a Conference to be had with the Lords, for not agreeing to the Amendments made by the Lords to the Bill, intituled, An Act for the Admeasurement of Keels and Boats carrying Coals, That the Committee had agreed upon Reasons: Which he read in his Place; and are as followeth; viz.

The Amendments, made by your Lordships, do relate to the declaring Sunderland to be a distinct Port, and not a Member of the Port of Newcastle; whereas Sunderland hath been always reputed and taken as a Member of Newcastle, in relation to Custom-house Affairs; and under the Customer, Comptroller, and other Patent Custom-house Officers of Newcastle, who have always had, and now have their Deputies there: And by the Act of Frauds, made in the Fourteenth Year of his Majesty's Reign, the Power of assigning and appointing Ports, Members, and Creeks, and the Declaring to what Head Portany Member or Creek shall belong, is vested in his Majesty: And, pursuant to That Act, about Two Years since, a Commission issued out of the Exchequer, wherein Sunderland is declared by his Majesty to be a Member of Newcastle.

If Sunderland should be made a distinct Port from Newcastle, there must be a distinct Port from Newcastle; there must be distinct Patent Officers; which would be a considerable Charge to the King, besides the Infringing the Rights of the present Patent Officers of Newcastle, who have Sunderland within their Grants. It is better for his Majesty's Customs, and for the Coal Traders, that these Places should be under One Head Office, than under distinct Offices and Officers; that so there may be One uniform Method and Management.

As to the Proviso offered at the End of the Bill, there was no such Proviso in the Act of the Ninth Hen. V.; and yet, de facto, several Commissions have issued out under the Seal of the Bishop of Durham, for the Measuring of Keels; and this Bill doth only provide, that the Commissioners shall be named by his Majesty, but doth not mention under what Seal; nor doth it take away any Right or Pretence of the Bishop of Durham, to have Commissions pass under his Seal: But, if by virtue of the general Words in the said Proviso, viz. "in such Manner and Form as hath been accustomed, "the Meaning should be, to draw the Nomination of the Commissioners to be in the Bishop, it might prove prejudicial to his Majesty's Customs

Conference desired.

Ordered, That Sir Henry Ford do go up to the Lords, to desire a Conference upon the Subject Matter of the last Conference.

Bills sent from Lords.

A Message from the Lords, by Sir Miles Cooke and Sir John Franklyn;

Mr. Speaker, The Lords have sent you down Two Bills; the One intituled, An Act for the further Relief and Discharge of poor distressed Prisoners for Debt, with some Amendments; to which they desire the Concurrence of this House: The other intituled, An Act for repealing a Clause in a former Act, intituled, An Act for inlarging and repairing common Highways, with some Amendments; to which likewise they desire the Concurrence of this House: And have commanded us to acquaint you, That they have agreed to the Bill, sent from this House, intituled, An Act for granting a Supply to his Majesty, of Six hundred Nineteen thousand Three hundred Eighty-eight Pounds Eleven Shillings and Nine Pence, for disbanding the Army, and other Uses therein mentioned, without any Amendment.

Lords agree to Conference.

Sir Hen. Ford acquaints the House, That the Lords had agreed to a Conference, upon the Subject Matter of the last Conference, at Five of the Clock in the Afternoon, in the Painted Chamber.

And then the House adjourned till Four of the Clock in the Afternoon.

Post Meridiem.

Insolvent Debtors.

THE House then proceeded to the Reading of the Amendments, sent from the Lords, to the Bill for the further Relief and Discharge of poor distressed Prisoners:

Which being thrice read, were, upon the Question, agreed.

Highways.

The House then proceeded to the Reading of the Amendments, sent from the Lords, to the Bill for repealing a Clause in a former Act for repairing and inlarging common Highways:

Which Amendments being thrice read, were, upon the Question, agreed.

Bill for burying in Woollen.

The Members appointed did then attend and manage the Conference with the Lords.

And being returned;

Sir George Downing acquaints the House, That the Persons appointed had attended the Conference; and delivered the Reasons for adhering to the Amendments made by this House to the Bill for burying in Woollen; and left the Bill with the Amendments with the Lords.

Thorisby's Estate.

An ingrossed Bill, sent from the Lords, intituled, An Act to enable Trustees to sell Mr. Thomas Thorisby's Lands for Payment of Debts, and other Uses, was read the Second time.

Resolved, &c. That the Bill be committed to Sir John Mallett, Colonel Kirkby, Sir Anth. Irby, Mr. Crouch, Mr. Treby, Serjeant Seis, Sir Rob. Markham, Sir John Talbot, Sir John Birkenhead, Sir Lyonell Walden, Sir John Barnaby, Sir John Knight, Sir Hen. Ford, Mr. Solicitor General, Sir Court. Poole, Sir Rich. Temple, Colonel Sands, Sir John Trevor, Sir Rich. Corbet, Sir Rob. Holmes, Sir Gilbert Gerrard, Sir Sam. Bernardiston, Sir Tho. Clerges, Mr. Papillon, and all that serve for the Counties of Norfolke and Suffolke: And they are to examine the Suggestions and Matter of Fact contained in the Bill, and make Provision for Payment of the Debts contracted before the Settlement; and to see the Remainder of the Estate settled to the same Uses expressed in the said Settlement; and to take Care, that the Trustees may be under an Obligation to see the Trust performed: And they are to meet To-morrow, at Two of the Clock in the Afternoon, in the Speaker's Chamber: And are impowered to send for Persons, Papers, and Records.

Lords Amendments to Bills agreed to.

Ordered, That Sir John Birkenhead do go up to the Lords, and acquaint them, That this House have agreed to the Amendments made by their Lordships to the Bill for the further Relief and Discharge of poor distressed Prisoners for Debts; as likewise to the Amendments to the Bill for making navigable the River Vale; and also the Amendments to the Bill for repealing certain Words in a former Act, intituled, An Act for inlarging and repairing common Highways; and to desire a Conference upon the Amendments, made by the Lords, to the Bill for admeasuring Keels and Boats carrying Coals.

Conference desired.

Sir John Birkenhead acquaints the House, That the Lords had agreed to a Conference To-morrow Morning at Eleven of the Clock, in the Painted Chamber.

And then the House adjourned till To-morrow Morning, Eight of the Clock.