The Diary of Thomas Burton
6 June 1657

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History of Parliament Trust

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John Towill Rutt (editor)

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1828

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'The Diary of Thomas Burton: 6 June 1657', Diary of Thomas Burton esq, volume 2: April 1657 - February 1658 (1828), pp. 182-191. URL: http://www.british-history.ac.uk/report.aspx?compid=36849 Date accessed: 26 July 2014.


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Saturday, June 6, 1657.

A great debate whether Captain Lister's Report (fn. 1) should be made by Sir Edward Rhodes, now.

Mr. Bampfield, Mr. Fowell, and Mr. Godfrey inferred that this Report will take two days time; and it was moved that a Petition from Colonel Welden (fn. 2) might be read.

It was to be relieved against a debt of 4000l. which he stands engaged for on the behalf of the public; and if the House be dissolved to-morrow, he shall be delivered up as a sacrifice for this sum, unless relieved before the House rise.

Colonel White and Captain Baynes moved, that Sir Edward Rhodes's Report be heard.

The question was put, and the Speaker declared for the Yeas. Mr. Fowell for the Noes.

The House was going to be divided, but Mr. Fowell stood up, and said he was satisfied, and the Report was heard accordingly.

Mr. Rouse. This business has many years laid upon the consideration of many men, and I believe upon those that are principally concerned in the trust. I would have you so dispose of it as that the trust may not lie in nubibus, but that the settlements may be made to the charitable uses, according to the intent of the donor. Old Hele would weep when he heard that anthem—

"In getting goods, and cannot tell—"

Mr. Fowell. The Treasury could not settle it, for they have been and are in continual suite and vexation about this; and it is well known that the profits go every penny to the schools, and other pious uses, at Plymouth and Exeter.

Serjeant Maynard told the Committee, that the whole lands would but settle the charitable uses. There were casualties, fines to be raised; and if the gentleman could have a portion of 2 or 3000l. I believe the Serjeant would be very willing to it. But if you go to ravel into the whole settlements, and destroy the charitable uses, I shall use the Serjeant's own words; you may do what you will, he must submit: but if ever there be another Parliament, or if he die before, he will leave it to posterity to be redressed, on the behalf of the pious uses. So I move that you will do nothing in it, till Serjeant Maynard is heard.

The Master of the Rolls. It is very true;. I have observed old Hele weep when that anthem was sung—

"In getting goods, and cannot tell

Who shall the same enjoy." (fn. 3)

I know Serjeant Maynard has been in great trouble in this. I think if a Bill were brought in, and all parties heard, it would settle this business, which cannot be settled otherwise by the courts of justice. I conceive that to relieve the heir may be as much charity as any of the other uses. Equitas sequitur legem.

The case was adjudged upon a full hearing, where— (fn. 4) gives his estate to such charitable uses as (fn. 4) — shall think fit; and the heir being poor, it was Resolved then, that he should have the estate, he being also an object of charity.

Colonels Grosvenor and Cooper moved, that a Bill might be brought in to continue the charitable uses already settled, and let the heir have the rest, who is near akin to the estate; she (fn. 5) being heir at common law, not only in point of charity, but in point of justice.

Lord Whitlock. I have always observed that rule when I served in another place, (fn. 6) to pursue the intent of the donor where there are particular directions, and not to alter the will of the dead; but when it is doubtful or uncertain, I have been guilty of relieving an heir in such cases.

I would not have any thing of stain lie upon Serjeant Maynard. (fn. 7) I have been brought up with him from a child, and I know he intends all things justly in this business, and will surely submit to what determination you shall make herein, according to justice, charity, and equity.

To this purpose I would have a Bill prepared by a Com mittee, with power to send for persons, papers, witnesses, as they shall see cause.

Mr. Bampfield moved, that Mr. Fowell might be heard again to matter of fact, and he was heard accordingly.

Mr. Fowell informed the House how that there was provision made in this case. There were 200l. per annum settled upon the heir at law, and a 1000 marks a-piece upon the daughters; which they do enjoy according to that deed of settlement. The rest of the estate was designed to pious uses, and Serjeant Maynard never meddled with it

Colonel Carter. It was proved to the Committee that old Hele did not by this deed of settlement intend to disinherit all the heirs. He was displeased with the then present heir, but this gentlewoman was not then born. He was pressed to it by the importunity of a bad wife; and being asked what would become of his heir, he said he had left it in such honest gentlemen's hands as would take care of his heir. I hope you will consider this, though it be omitted in the Report.

I understand nothing of the law, but I have been told by good lawyers, that where a man settles his estate to pious uses, in general terms, and no particular directions therein, the estate descends to the heir. Besides, the will says that these settlements shall be made in some convenient time, and it is twenty years since. Here have been all parties heard in the case already.

There is a short Bill in a gentleman's hand to settle the remainder of the estate upon the petition. If you please to read it now, it may save your time.

Colonel Jones. I am not satisfied in the matter of fact. The matter of fact is not fully stated. I move to have it re-committed, and then a Bill to be brought in, if you think fit. Uncertainty remaining in the matter of fact, you are not ripe for a Bill.

Major-General Disbrowe. There is estate sufficient to answer all deeds and all parties. I would leave this business of the lady, and the whole business, therefore, if you please, to counsel, so that all claims may be understood; and then a Bill to be brought in to settle all things.

Mr. Speaker moved, to put the question to agree with the Committee, and then to bring in a Bill.

Mr. Bond. If you put the question to agree with the Committee, you judge the case beforehand. I would have it re-committed, and a Bill brought in.

Sir William Strickland moved, that it might be re-committed with power to bring in a Bill, and particular directions to settle it upon the pious uses and the heir.

Major-General Kelsey. By agreeing with the Committee you do not at all dissettle the business. The heir desires only the remainder, after what is or shall be designed to charitable uses. It will be more to the advantage of the charitable uses to have a Bill brought in to this purpose.

Colonel Holland. We went as far in this business in the Long Parliament, and I remember it stuck here. They told us that all the estate was disposed of already to charitable uses. If there hath been any disposition since, the Parliament was not ingenuously dealt with; and if so, there is no danger in your giving the remainder to the heir. If all charitable uses be served, who shall have the remainder but the heir?

Sir William Strickland. There are all the reasons that may be, that all that remains above the settlement should come to the heir.

(The law was so, but he was mistaken; for the remainder is settled in the Treasury, and cannot be taken out.)

Mr. Godfrey. I move to re-commit it upon the uncertainty of the words of the Report "intended to be disposed of," for you could ground no judgment upon them.

Colonel Shapcott. I second that motion. It is uncertain, and you can do nothing in it but re-commit it. It has been told you that the courts of law may grant relief in such cases, and cases to that purpose have been cited; nay, in this very case, relief has been given in Chancery. There is 1200l. portion given to this lady, which is a good portion in the west. If there be a settlement upon the heir-at-law already, you will not let him also come in upon a charitable use.

Mr. Bodurda. It is strange to me this should hold you so long. I looked upon this Report as an amicable conclusion between the parties, and consented to, fully, by the Serjeant and both parties. There were, indeed, some gentlemen that serve for the west, that were then, and are still unsatisfied that any thing should be taken from these uses and settlements in their country. (fn. 8)

My motion is to agree with the Committee in this Report, and that a Bill be brought in.

Mr. Bampfield. If it were either just or honest for you to agree with the Committee in this Report, I should not be against it. The matter of fact is mistaken.

The gentlewoman has a competent portion, 1000 marks out of this estate, and the heirs were fully provided for.

That very Andrew, the father of this gentlewoman, has released all his right to the trustees, in consideration of the third part of this estate, which was settled upon him by the decree.

Again you are misinformed. You have not Serjeant Maynard's consent, nor will he ever willingly agree to alter these uses. This is such an abominable thing, that I hope this House will never agree with the Committee. I would have it re-committed, and to this end that it may die, and never come here.

Major-General Jephson. I except against Mr. Bampfield's saying this business is not honest. It is not Parliamentary. Men may speak against the justice of a business, but after so. many gentlemen, worthy persons, have passed their opinion of it, to say that it is not honest, is such language as I have not heard. He was not so civil to you as you were to him, to let him go on after those expressions.

(For, indeed, Mr. Bampfield had found fault with the Speaker's talking to gentlemen, (fn. 9) and was angry.)

Major-General Whalley. Whenever you put the question to agree with the Committee, if it were my father I must give my negative. The poor have but few friends, and I cannot but discharge my conscience. If God have cast it upon the poor, for you to make another will, is to alter those intentions, and to destroy the charitable uses.

Mr. Lechmere. I have heard nothing of this business till this debate, and I have now heard so much of it that I cannot but also exonerate my conscience as the honourable person did that spoke last. I hear it not doubted but that the donor had a natural equity right to dispose of it to these uses. I remember a case, this Parliament; it was Gresham's case. (fn. 10) Will you have yourselves condemned? As to the matter and rule, it is the same to you as in the Courts of Justice; though you may dispose of men's estates as you please, for that criticism over the way, (fn. 11) I could never understand it. What is not just is not honest.

I find not that this gentleman was so careless of his heir: he made a provision for his heir. It is an usual way of settlement, to let men's estates go to collateral heirs, and not to daughters. I hope you will not shake such settlement and make another will. It is true you have power of men's estates, but I hope you will not agree with the Committee in this.

Colonel Sankey. I must differ from those persons that spoke last. It was clearly opened, in Dr. Fryer's case, how that the rest descends to the heir. I would have you put the question to agree with the Committee.

Sir Lislebone Long. I would have it well understood, whether Serjeant Maynard did consent to this which is reported. I would have the House informed in this. Here is a difference among the members of the Committee, not in matter of opinion, but in matter of fact. I like not your meddling with your legislation in private men's estates. There have been settlements, and for you to go and to supply what a court of justice cannot do! That case of Dr. Fryer was not in Parliament, but in a court of justice.

The Long Parliament were very cautious in meddling in matters of this nature. Even in this very business they would not meddle. For your honour and justice, let it run in the channel that the donor intended; otherwise, you shake a fundamental point of the law, and hinder a man from disposing of his estate as he pleases. I would have it recommitted, to the end the parties, on all sides, may be heard, and a Bill be brought in to that purpose, as the Committee shall find matter of fact.

The question being put to agree with the Committee,

Mr. Speaker declared for the Yeas.

Mr. Bampfield for the Noes. The Yeas went out.

Yeas 72. Colonel White and Mr. Bodurda, Tellers.

Noes 48. Mr. Lawrence and Mr. Trevor, Tellers.

So it passed in the affirmative. (fn. 12)

It seems Mr. Lawrence said he would not be told, for he did not understand the business; but he was a teller, and so made his words good.

Lord Lambert moved, that Colonel Welden's petition (fn. 13) might be read, and it was read accordingly.

The Master of the Rolls. This petition troubles me to hear it. I wonder that sum should be now unpaid. He laid it out for a very acceptable service. (fn. 14) I thought we had paid it seven years since. I would have it paid out of the treasury, which is readiest, and not stay any longer to raise it out of the excise.

Lord Strickland, Sir William Strickland, and Sir Richard Onslow. To say he should have it out of the excise, would do him no good. Rather let a Committee attend his Highness, to request him to grant a seal, to pay it, presently, out of the exchequer.

Major-General Kelsey. The most likely place for him to have this money is the prize office, which is most open.

Mr. Fowell. This sum was 6000l. I move that he may be speedily satisfied, either out of the prize office, or else where is readiest.

Lord Lambert moved, that he might be paid out of the prize office, from the first money that comes.

Colonel Jones. I will say nothing as to the service of the person. That would but spend time. The readiest way for him to be satisfied, is to appoint a Committee to attend his Highness for his seal for so much money out of the first money that rises out of the prize office.

Mr. Speaker. Unless you specially design out of what this sum shall rise, as the prize office or the like, but put it generally to receive it out of the exchequer, you may stay a good many months, before he be satisfied.

It was moved that to the 4000l. the interest might be charged.

Colonel Welden stood up and said, if the parties would be satisfied without interest, he was content.

It was resolved, that the sum of 4000l. be charged accordingly. (fn. 15)

Mr. Godfrey moved, that Lord Lambert and Colonel Jones might acquaint his Highness with this order; and it was resolved.

Dr. Clarges moved, that the debate adjourned yesterday about the buildings might be taken up according to the orders of the House. (fn. 16)

Mr. Cary pressed for the report upon the Bill for the Postage. (fn. 17)

Colonel Jones seconded it.

Colonel Sankey moved, that the Bill for Prisoners and Creditors (fn. 18) might be read.

Colonel White seconded it.

Mr. Highland. I live (fn. 19) amongst prisoners. In three prisons near me there are above one thousand prisoners: so I move that the Bill may be read. (fn. 20)

It was moved that no private business at all might be done for a week, and resolved; and that the House shall sit, forenoon and afternoon, upon public business.

The report upon the Bill for Postage was made, and the Bill ordered to be ingrossed.

I went to Loughton in the afternoon, so minded not Committees.

Footnotes

1 See vol. i. p. 366.
2 M. P. for Kent.
3 Ps. 39. in the version of Sternhold and Hopkins.
4 Blank in MS.
5 The wife of Captain Lister, of whom ''old Hele'' was "the greatgrandfather."
6 The Chancery, as a Lord Commissioner of the Great Seal.
7 This eminent lawyer has fixed an indelible stain on his own character by appearing, with professional versatility, too often exhibited at the English bar, as one of "the King's counsel," to assist in the legal murder of Sir Henry Vane; a favourite project of Charles II., who deemed him "too dangerous a man to let live." See the King's Letter to Lord Clarendon, 7 June, 1662, concerning Sir Henry Vane, with a royal hint "to put him out of the way." Lansdowne MSS. Mr. Serjeant Heywood, in his "Vindication of Mr. Fox's History," has published this letter, with remarks becoming the Vindicator's well known attachment to liberty and justice. See Monthly Repository (1811), vi. 391, 602.
8 The county of Devon.
9 See supra, p. 149.
10 April 2,1657. See Journals.
11 By Major-General Jephson, supra, p. 187.
12 "So it was resolved, that this House doth agree with the Committee in this, that the remainder of the estate of Elize Hele, not disposed, nor intended to be disposed of, to those charitable uses mentioned in the particular given in to the Committee, by Mr. Serjeant Maynard, unto the report annexed, shall be settled Upon the petitioner, being heir at law to the said Elize Hele, and that it be referred back to the same Committee, to bring in a Bill for that purpose, and for the confirmation of the said charitable uses." Journals. These "charitable uses" were:— 1. "A workhouse to be settled for the prisoners of the gaol of Devon, and provision for a minister to instruct the prisoners, and pray, &c. and for materials. 2. "The Rectory of Warrington and St. Giles, to be settled on the ministers of those places. 3. "Thirty-two pounds per annum, to Exon College, for a Divinity Lecture, by way of catechism to young scholars; and for teaching the ancient languages, wherein the Scriptures were written. 4. "The annual value of all the rest of the lands undisposed, to the Hospitals of Exon and Plymouth, and the mills called Bovey Mills. 5. "A school maintained at Moreton, and ten pounds per annum, allotted thereto. 6. "A school at Plimpton, a school-house, with fitting conveniences, and a good maintenance for a school-master there. 7. "A reversion of one tenement, to settle on Totness for a school." Besides "divers other charitable uses, as provisions for the poor, books for poor ministers, fuel for the poor of Tavistock." Ibid.
13 See supra, p. 182.
14 From Whitlock, who frequently names Colonel Welden, it appears that he was appointed, in 1648, Governor of Plymouth. Probably, in that capacity he incurred some pecuniary engagements. Whitlock mentions the same year, "upon information of the wants of Plymouth Garrison, orders for raising 4000l. for them, and Colonel Welden to go thither." Memorials, (1732), pp. 313, 357.
15 "In satisfaction of the remainder of 6000l. charged upon the Excise to be paid unto him." Journals.
16 "Resolved, that it be adjourned till Monday morning." Journals.
17 See supra, p. 156, note.
18 See vol. i. p. 5, note.
19 In Southwark, for which he was M.P.
20 "Ordered to be read the second time on Wednesday next." Journals.