House of Lords Journal Volume 11: 29 November 1664

DIE Martis, 29 die Novembris.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

The Lord Chief Justice of the Common Pleas sat Speaker this Day.

Hubbard, committed for Contempt of the Order to reinstate Aldus, L. Hereford's Chaplain, to the Church of St. Peter's Ipswich, to be released.

Whereas Joseph Hubbard, of Ipswich, in the County of Suffolke, stands committed to the Serjeant at Arms attending this House, for slighting, and refusing to give Obedience to, an Order made for putting Samuell Aldus Clerk, domestic Chaplain to the Lord Viscount Hereford, into such Possession of the Church of St. Peter's in Ipswich, (being his Lordship's Donative) as the said Chaplain was put out of by the said Joseph Hubbard and others (during the Sitting of Parliament) contrary to the Privilege of Parliament:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, upon the humble Petition and Submission of the said Joseph Hubbard, and at the particular Instance of the Lord Viscount Hereford on his Behalf, That the said Joseph Hubbard shall be brought to the Bar on Thursday next, and receive the Reprehension of this House for his said Offence, and thereupon be discharged from his present Restraint, paying his Fees: And this to be a sufficient Warrant in that Behalf.

Robert's Order for a Hearing in Chancery amended.

The Question being put, "Whether these Words ["as it shall appear to him to be on either Part, notwithstanding there be not any Precedent in the Case"] shall be added to the Order made Yesterday, in the Case of Robert Robertes Esquire, and his Wife and Son?" It was Resolved in the Affirmative.

Protest against it.

"Against which Vote, the Lord following doth protest and dissent (having Liberty of the House so to do before the Question was put), for that he is not satisfied to give Directions how the Chancery should adjudge a Cause, the Merits whereof this House never heard at the Bar, and, which, he conceives, is not legally before this House; for that the former Transactions and Proceedings which this House made therein, and all Debates, Votes, and Resolutions thereupon, are determined with a former Session of Parliament, and so totally shut out of Doors, as if it had never been entertained by this House; and for that the said Vote seems to enlarge the Bounds of the Chancery, which is by this Vote directed to make a Decree; though there hath been no Precedent in the Case, especially where the Will of the Dead may be overthrown, Infants decreed out of a legal Estate, and Provision made by the Testator to pay honest Debts defeated and avoided."

"Mohun."

Order for the L. Chancellor to proceed in the Cause, Roberts versus Wynn, in Chancery.

In the Case upon the Petition of Mr. Roberts, and his Wife, and Son, against Thomas Wynne and others:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That Directions be given by this House to the Lord Chancellor of England, that he proceed to make a speedy Decree in the High Court of Chancery in this Case, according to Equity and Justice, as it shall appear to him to be on either Part, notwithstanding there be not any Precedent in the Case.

Protest against it.

"I, being unsatisfied in my Judgement concerning the Vote which passed this Day, for an Order to be directed from this House to the Lord Chancellor, in the Case of Mr. Robertes, did demand Leave of the House to enter my Dissent, and accordingly to protest against that Vote, for these Reasons following; videlicet,

"1. I conceive this may be of dangerous Consequence, if in this Conjuncture of Time it should occasion any Misunderstanding betwixt the Two Houses, Union of both Houses conducing so much to the Safety of the King and Kingdom; for happily they may apprehend, as sometimes they have formerly done, that this House doth extend their Power of Judicature further than ever hath formerly been, and therefore should think themselves interested, that if any Remedy in that extraordinary Case should be applied to Mr. Roberts, who is a Member of their own House, it ought to be by the Legislative Power, and not by the Judicial.

"2. Whereas it hath been the Prudence and Care of all former Parliaments to set Limits and Bounds to the Jurisdiction of Chancery; now, by this Order of Directions (which implies a Command), opens a Gap to set up an arbitrary Power in the Chancery, which is hereby countenanced by the House of Lords to act, not according to the accustomed Rules or former Precedents of that Court, but according to his own Will: Sic volumus, sic jubemus; stat pro Ratione Voluntas."

"T. Lyncolne."

Adjourn.

Dominus Capitalis Justiciarius de Com. Placit. declaravit præsens Parliamentum continuandum esse usque in diem Jovis, videlicet, primum diem Decembris, 1664, hora decima Aurora, Dominis sic decernentibus.