House of Lords Journal Volume 3: 16 March 1626

DIE Jovis, 16 Martii,

Domini tam Spirituales quam Temporales, quorum nomina subscribuntur, præsentes fuerunt:

E. of Cleveland's Privilege. Hancocke arreted.

Upon the Reading of the Petition of James Hancocke, Servant to the Right Honourable the Earl of Cleveland, complaining that he is arrested, in Contempt of the Privilege of this House, by one Bradshaw, and detained Prisoner in The Compter of Wood-strect; and that the said Bradshaw intends to obtain a Judgement and Execution against him, now he is in Prison; it is Ordered, That the said Execution be stayed; and that the Serjeant at Arms bring hither the said James Hancocke on Saturday next; and also that he bring hither the said Bradshawe at that Time, to answer his Contempt.

According to the Order of the Second of this March, the Lord Bishop of Lincolne sent his Answer, subscribed by his Lordship, unto the Complaint of Tymothy Pinckney, which was read, in hæc verba: videlicet,

"May it please your most Illustrious and most Honourable Lordships.

Bishop of Lincoln's Answer to Pinckney's Complaint.

"To that Petition of Tymothie Pinckney, sent unto me by Order of that most Honourable House, bearing Date 2 Martii 1625, together with the Depositions of Kenneday, Ferrers, Kellwood, and one Ann Pinckney, relating to the same, and another controverted Order of that most Honourable House, bearing Date 28 Maii 1624; I hope your most Honourable Lordships will conceive it is impossible for me, during my Abode in this Place, and in the Compass of Six or Seven Days, to make any legal or final Answer, as well for the Uncertainty of the Charge in the Petition, and especially in the Affidavits concerning some Words pretended to be spoken by me very near Two Years sithence, without assigning the Day of the Month, the particular Place, and the Persons present (as, under Favour, they ought to do); as principally destitute of Counsel Learned (now especially in Time of the Assizes); eloigne from the Sight of the Journal Books, and Conference with the Clerk of that most Honourable House; from the Multitude of Orders, hereunto relating, registered in the Chancery, not easily to be found but in Term-time; from the Conference with the Master of the Rolls, and divers of the Judges, now absent in their Circuits, who have (as I verily believe) satisfied the Expectation of this Order in Question; from all Speech with my late Secretaries, now out of my Service; and most especially from my Want of Memory, that never groweth better in great Calamities.

"Being impossibilitated, therefore, by so many pressing and most evident Considerations, to make any Answer at all in so short a Time, and from this Place; I most humbly beseech your most Honourable Lordships, to receive in good Part a short Satisfaction, which I presume to offer unto your most Honourable Lordships in the mean Time; desiring rather (I take God to my Record) to be in my Grave than many Days in the Suspicion of the least Contempt or Neglect of that most Honourable House.

"For the general, Non arbitramur quenquam dicere quod non sentiat, I call God to witness, I never thought, and consequently never speak, but with all Duty, Awe, and Reverence, of the Orders of that most Honourable House; nor ever, in my Life, neglected a Motion or Intimation made unto me by any one of the Honourable Members of the same. If, through human Weakness or Infirmity (wherein I abounded), I have been so unfortunate as to give Cause for any of the most Honourable Lords to conceive otherwise, I am sorry for it, and ready, in the most humble Manner that can be prescribed, to give Satisfaction.

"For the Particulars, I will first speak unto the Neglect objected in the Petition, and then to the offensive Speeches in the Assidavits, as near as my Memory (now upon the Point of Two Years after) shall help me, but most truly and ingenuously, to the best of my Remembrance.

"For the First, the Ground of all this Mistaking is Mr. Clerk's, or his Man's Mistaking, of the Order of 28 Maii 1624, and penning the same ambiguously, and not to the Sense and Direction of that most Honourable House; the which could not possibly be rectified, because the House was adjourned the next Day after. The Case was thus: The Lords of the Committee made their Report just in the Manner as is set down in the Order. Whereupon I went from the Wool-pack, and acquainted the House, that my Honourable Lords of the Committee were not well dealt withall by Pinckney, by reason this Cause had been formerly referred, by the Parliament and the King himself, to be heard in the Chancery, by the Lord Keeper, the Master of the Rolls, and Two or Three Judges, which Pinckney (it seems) concealed from their Lordships: That accordingly, after Twenty Hearings (at the least), there was a final Decree made therein: That this Decree was put under the Great Seal, and in Part executed: That the Land was sold to one Crashaw, according unto the same: That, their Lordships of the Committee taking no Notice of this Decree, I conceived the most Honourable House would not revoke it, without Examination: That the very same Decree did appoint the Master of the Rolls and Three Judges to receive the Demands of all the Creditors, and to satisfy them in Proportion out of the Surplusage of the Estate: That, if it pleased their Lordships, the Decree might stand (having wrought the Effect desired in the Report of the Lords); and the Commissioners named in the Decree be ordered to take into their Consideration what was reported by the Lords, for the Relief of Pinckney, and the like Creditors. All which was generally approved, and Ordered by the House. But, in the Penning of the Order, there is slipt an absolute Contradiction, that Pinckney should be referred to the said Commissioners (which must needs aim at the Commissioners in the Report); and that he be relieved by the Decree, which must refer only to the Commissioners in the Decree; which latter (upon the Faith of a Poor Churchman) I conceived to be clearly the Sense of the House. But howsoever the Clerk and I may differ about the Sense of the House (wherein I must appeal to the Judges and Learned Counsel then present), take it as he sets it down, the Decree in Chancery is not struck at, or so much as mentioned, either in the Lords Report, or in the Order; the which Order is not warranted by Mr. Clerk's Notes, nor was it drawn up until after the Session ended, as I am credibly informed.

"First, therefore, the Creditors being left to be relieved by the Decree, I did not conceive any Direction for a new Commission; but did recommend them to the Judges, Commissioners in the Decree, and Pinckney more especially, to my Remembrance; where, for aught I ever heard to the contrary until this Time, they received all Contentment, according to the Goodness of their Debts and Demands. If it be otherwise, your Lordships can easily redress it. Only I do remember that Pinckney's Wife said plainly to me, that the Master of the Rolls should not hear any Part of her Cause, which I thought not worthy to reply unto; for I am sure that Pinckney or his Wife attended, amongst others of the Creditors, the Commissioners in the Decree, Two or Three Times sithence this Order, and that without any coercive or compelling Course of the Chancery for them to do so. The Master of the Rolls and Sir Edward Leech can say more herein than I can do.

"If the Commissioners in the Report had stood, they needed no new Commission, being already all Four Commissioners for Chancery Causes, which was all I said to Ann Pinckney. And if they had proceeded to hear the Cause according to the Report (as they might have done for me), their Decree had walked with the Decree of the Chancery, tanquam in linea parallela, not enabled by this Order to touch, and much less to overthrow, any Part of it.

"When I waited upon His Majesty, by Direction of that most Honourable House, for an especial Commission to re-hear the Cause between Mathew and Mathew (for these Commissions are ever granted by the King Himself), Imoved His Majesty, for avoiding their Clamours, for a new Commission in the Cause of Barne-Elmes, which His Majesty absolutely refused to grant; saying, that many of His Servants, as Sir George More, Seton, and Drumman, were tired in that Cause: That He had once already commanded it to be reviewed by me and the Judges, because a certain Cabinet was found to be taken for the making of the Decree: That, if I had taken another Bribe for this last Decree, that should be reviewed also, or else the Decree should stand; and the Consideration of the Lords Order, as touching the Creditors, be referred to the Commissioners in the Decree, unless the Lords, at their next Meeting (which should be within Five Months), might find further Cause, in a Parliamentary Way, to overthrow and reverse it; but how or when they, the said Commissioners in the Decree, made their Certificate in the Cause, whether in my Time or sithence, or peradventure not as yet, I cannot call to Remembrance.

"If, therefore, I seem to any of your Lordships to have omitted any Circumstance in the Performance of this Order, I protest before God, and your Honourable Lordships, it was not out of any Obstinacy, but mere Distraction and Confusion; which I beseech your Lordships to pardon and pass over.

"For the Words in the Two Affidavits of Kellwood and Kennedey, although, being referred to that Order, mis-conceived by the Clerk, and imperfect to all Sense, it were no Contempt at all (which I submit notwithstanding to that most Honourable House) to say, I cared not for that Order, which I took not to be any Order at all; yet the Truth is, I never spake any Word sounding that Way. But telling Kennedey, that the Four Judges mentioned in the Report had already sufficient Commission, under Seal, to rehear the Cause, if they pleased; but that I believed they would not alter the Decree but by Bill of Review; he again replied, That the Order of the Lords took away the Decree. To which I answered, passing on to my House (as far as I remember), That I cared not how he construed the Order of the Lords; but I could not find therein any one Word that struck at the Decree, or enabled the Judges to reverse the Decree, otherwise than by a Bill of Review, as Two or Three of the same Judges had told me themselves. To this he replied, That he and all the rest were so far spent, as they were not able to be at the Charges; which is all that ever past between me and him, sithence that Time; for Kennedey hath accepted his Money; Ferrars and Johnson have made their Sale, and received their Three Thousand Pounds; Kellwood likewise hath accepted his Money, for the which he had sold the other Kennedey some under-valued Commodities; Pinckney and his Wife (if I am rightly informed) have been heard, I am sure might have been heard, before the Master of the Rolls and Judges, according to the Decree; and never attended me, in any further Pursuance of the Order of the Lords, these Eighteen or Twenty Months, to my Remembrance.

"Were I to make a legal and final Answer, I would humbly recommend unto your Lordships Considerations unanswerable Exceptions against their false Affidavits.

"1. Kellwood (as I am informed) and Kennedey especially (a Man condemned to Death in Scotland for Forgery), are Persons infamed, and their Credits to be examined, before they be admitted as Witnesses against a Peer of the Realm, and a Lord Keeper of the Great Seal, as I then was.

"2. If they were never so honest, they are Parties to the Decree, to the Report, to the supposed Order of the Lords, to the prosecuting of the same (as Kennedey confesseth); and therefore partial Witnesses against me.

"3. If they were no Parties, yet do they omit to ascertain the Day, Place, and Persons present at the speaking of the Words; which being ascertained, I shall be able to produce Half a Score Gentlemen of Quality, that shall swear they heard not one Word fall from me derogatory to any Order of the House of Parliament.

"4. If all were certain, yet have they omitted their Time to complain of a Verbal Contempt. Two Years very near are now past, nay Two Sittings in Parliament are past, wherein they have been silent. Verbal Injuries (according to the Civil Law) must be complained of within the Year, aliter remissæ censentur. Contempts must be pressed at the next Term, or Sitting of the Court, against the which they are committed. Scandalous Words against the King must be complained of within Three Months. Words of High Treason are, by the Laws, confined to be complained of within Six Months. All Informations against any Penal Law made, or to be made, must come within the Compass of One Year, unless it be ex parte Regis, who hath a Year longer; and it is impossible for any Man to give an Account of every Phrase he shall use, Twenty Months after the Words spoken.

"5. Lubricum tantum Linguæ non est ad Judicium trahendum, say the Civilians. I am sure, if my Tongue had slipt (as I hope in God it will not appear it did), my Heart did never conceive the least Derogation to any Order of that most Honourable House, or the bare Intimation of any one Peer that fitteth in the same.

"If, therefore, your most Honourable Lordships shall require any further Answer, I will apply myself a most humble Suitor unto His Majesty, for His Grace and Favour, that, coming personally unto that most Honourable House, I may (as in all Duty I am bound) perform punctually your Lordships Orders therein; not doubting but His most Excellent Majesty, who gave me this Leave of Absence, upon my humble Petition, will graciously condescend thereunto. But, if your most Honourable Lordships shall be so graciously disposed as to accept of this most humble Satisfaction, I shall have much Cause to acknowledge your Lordships Grace and Favour in the same, and to be very careful of my Carriage and Respects to your most Honourable Lordships, whom God Almighty ever prosper and preserve.

"John Lincoln."

Referred to the Committee for Petitions.

The which Answer is referred to the Lords Committees for Petitions; and their Lordships are to report to the House what Course is fit to be taken, as well for the clearing of the Aspersion which the said Lord Bishop of Lincoln hath laid on the Lords Sub-committees for Privileges, &c. appointed by the House to peruse and perfect the Journal Book; as also what is fit to be done for the Relief of the said Petitioner Tymothy Pinckney; and for the Satisfaction of a Debt owing to Sir William Paddy by Sir John Kennedey, Knight, deceased, and to report their Advice to the House.

Raleigh's Restitution in Blood.

Whereas the Bill for the Restitution of Carew Raleigh was reported to the House (14 Martii), by the Committee, to be fit to pass, with some few Amendments, and One Proviso to be added; it is this Day Ordered, upon the Petition of the Earl of Bristoll, That the Judges shall consider of the said Bill so amended, and of the said Proviso so added, and present their Opinion thereof to the House To-morrow Morning.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem crastinum, videlicet, 17^m diem instantis Martii, hora nona, Dominis sic decernentibus.