House of Lords Journal Volume 14: 30 October 1690

DIE Jovis, 30 die Octobris.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Pope versus De Casseris.

ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the Cause wherein Charles Pope is Plaintiff, and Francis De Casseris is Defendant, on Tuesday next, at Ten of the Clock in the Forenoon.

Chancery, &c. to reform Abuses in, Bill.

ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That all the Judges do attend the Lords Committees appointed to consider of a Bill, intituled, "An Act for reforming several Abuses in the Court of Chancery and other Courts of Equity," To-morrow, at Four of the Clock in the Afternoon, in the Prince's Lodgings near the House of Peers.

Dod & al. versus Barrows.

Upon the Petition of Anne Dod Widow, Magdalen Johnson Widow, Robert Colbatch, Anne his Wife, Sarah Dod Spinster, and Pricilla Cooper Widow:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Defendant Thomas Burrows may have a Copy of the said Petition; and be, and is hereby, required to put in his Answer thereunto in Writing, on Monday the 17th Day of November next, at Ten of the Clock in the Forenoon: And it is further ORDERED, That in the mean Time all Proceedings in the Courts below at Common Law shall be, and are hereby, stayed.

Daniel versus Leigh.

Upon Report from the Lords Committees for Petitions, the Petition of John Daniell Esquire, being an Appeal from Three several Decrees made in the Court of Exchequer, on the Tenth of November 1687, on the 15th of May 1689, and on the 15th of July last past, in a Cause there depending, between one William Leigh and the Petitioners; who are of the Opinion, "That the Petition is fit to be received, and heard at the Bar:"

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said William Leigh may have a Copy of the said Petition and Appeal; and be, and is hereby, required to put in his Answer thereunto in Writing, on Thursday the 19th Day of November next, at Ten of the Clock in the Forenoon; whereof the Petitioner is to cause timely Notice to be given to the said William Leigh, to the End he answer accordingly.

Johnson versus Broomhall.

Upon reading the Petition of Henry Johnson, Defendant to the Appeal of Thomas Broomhall, an Infant, by his Guardian; praying a short Day may be appointed for hearing the said Cause; and that the Service of his Clerk in Chancery may be a good Service:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the said Cause, by Counsel on both Sides, at the Bar, on Thursday the 6th of November next, at Ten of the Clock in the Forenoon; whereof the now Petitioner is to cause Notice to be given to the said Thomas Broomhall an Infant, by his Guardian, by leaving of a Copy of this Order with the Appellant's Clerk who acted for him in Chancery in this Cause.

Admiralty Commission Bill.

Hodie 3^a vice lecta est Billa, "An Act concerning the Commissioners of the Admiralty."

The Question being put, "Whether this Bill shall pass into a Law?"

It was Resolved in the Affirmative.

Protest against it.

"Leave having been given to any Lords to enter their Dissents, if the Question was carried in the Affirmative; and these Lords following do enter their Dissents, in these Reasons:

"1. Because this Bill gives a Power to Commissioners of the Admiralty to execute a Jurisdiction, which, by the Act 13° Car. II^di, intituled, "An Act for establishing Articles and Orders for the regulating and better Government of His Majesty's Navy, Ships of War, and Forces by Sea, we conceive, they had not; whereby the Earl of Torrington may come to be tried for his Life, for Facts committed several Months before this Power was given or desired; we thinking it reasonable that every Man should be tried by that Law that was known to be in Force when the Crime was committed.

"It is by virtue of the said Act of the 13 Car. II^di, that the Earl of Torrington was judged by this House not to have the Privilege of a Peer of this Realm for any Offences committed against the said Act: And there is no other Law, as we conceive, by which the said Earl could have been debarred from enjoying the Privilege of a Peer of this Realm; which Act making no Mention of Commissioners of the Admiralty, but of a Lord High Admiral only, by whose Authority alone all the Powers given by that Act are to be exercised, and without whose Consent singly no Sentence of Death can be executed; we think it of dangerous Consequence to expound a Law of this Capital Nature otherwise than the literal Words do import. And as we conceive it without Precedent to pass even explanatory Laws, much less such as have a Retrospect in them, in Cases of Life and Death; so we think it not at all necessary to make such a Precedent at this Time, there being an undoubted legal Way already established, to bring this Earl to a Trial by a Lord High Admiral.

"The Judges having unanimously declared, That the Law Marine was no where particularized in their Books, whereby the Power or Jurisdiction of the Lord High Admiral may be ascertained, so that the Practice is all that we know of it; we conceive it unprecedented, and of dangerous Consequence, that the Jurisdiction exercised by the Lord High Admiral should, by a Law, be declared to be in the Commissioners of the Admiralty, whereby an unknown, and therefore unlimited, Power may be established in them.

Bolton.
Rivers.
Huntingdon.
Oxford.
Maclesfeld.
Craven.
Stamford.
Rochester.
Weymouth.
Bathe.
J. Bridgewater.
Herbert.
Tho.
Roffen.
J. Exon.
Crewe.
Dartmouth.
Granville.

Impeachments in Statu quo, from Parliament to Parliament.

The Earl of Mulgrave reported from the Lords Committees appointed to inspect and consider Precedents, whether Impeachments continue in Statu quo from Parliament to Parliament, several Precedents concerning Impeachments, brought to the Committee by Mr. Petyt from The Tower, as followeth:

Edw. III. A 4.

"Num.16. Berkly, accused by the King, found not guilty by Twelve Knights; yet, because the King was murdered by Persons under his Command, was kept under Bail till the next Parliament, which was A° 5; then he was discharged from his Bail; and, A° 11, he is adjudged innocent; wherein also there is some mention made of Proceedings about him A° 9, of which Proceedings there is no Record.

A 15.

"Num. 8. 43. Archbishop of Cant. desires to be examined in Parliament; who is taken Notice of again A° 17. Num. 22, where it is called an Arraignment; but it is not plain that it was an Impeachment, either from the King or the Commons.

A 42.

"Num. 20. Jn° de la Lee, Steward of the Household.

A 50.

"Num. 17. Rich. Lyons Merchant of London, impeached by the Commons, judged to Prison till he paid a Fine to the King.

On further Enquiry,it was found,that he was awarded to prison at the Will of King,and put to Fine and Ransom according to the Horribility of his Offence,and to lose his Franchise of the City ofLondon.

A 51.

"Memb. 27. Rot. Par. Afterwards he was pardoned in Part by the Jubilee Pardon; but pardoned fully by a particular Pardon, for the procuring of which, Alice Pierce is accused in the First Year of Rich. the Second.

A 50.

"Num. 21. Lord Latimer, impeached by the Commons, had then Judgement given on him; but not expressed what.

"Num. 31. 33. 34. William Ellis, Jn° Peachy, Lord Nevill, impeached by the Commons. Numb. 47. Adam de Bury impeached.

A 51.

"Num. 91. The Commons desired he might be pardoned; and he had a particular Pardon under the Great Seal.

"John Lester's was the same Case. "Num. 87. 89. 90. 92. Alice Pierce, Jn° de Lester, Walter Spurrier, were all condemned.

A 50.

"Num. 95. 96. Hugh Farstaffs was accused and acquitted, in A° 51: Rich. 2^d Par. desired he might be restored to his Favour, without any Effect.

A 51.

(fn. 1) A 1.

"Nu. 38. William de Weston, Jn° Sier de Gomine, condemned.

"Nu. 41. Alice Pierce accused and banished.

A 4.

"Num. 17. Sir Ra. Ferrers, accused by the King, acquitted; but put under Bail to appear before the King any Time between that and the next Parliament.

A 7.

"Par. 1. Num. 15. 23. 24. Bishop of Norwich, Sir Wm. Ellemhan, Sir Tho. Tryvet, Sir Hen. de Ferrers, Sir William de Farringdon, Rob't Fits Ralph Esquire, arraigned by the Commons, and condemned. "Pars 2^d. Nu. 11. Mich. De la Pool accused of Bribery by Jn° Cavendish, and acquitted.

A 10.

"Nu. 6. Accused by the Commons, condemned to be fined and imprisoned at the Will of the King. Pars 1^a, Lords Appellants accused several Lords and Commoners, whom the Commons it seems themselves had a Mind to impeach; which therefore they represent to the Lords, that Proceedings might be stayed, who notwithstanding proceeded still in their own Way.

"The Commons then impeach Sir Rob't Belknap Lord Chief Justice, Sir Jn° Cary Chief Baron, and other Judges, who were condemned the same Parliament.

"Memb. 10. Sir Symon De Burly, Sir Jn° Beauchamp, Sir James Barners, impeached by the Commons, and adjudged.

A 21. Placita CoronÆ.

"Rot. Par. Duke of Gloucester, (fn. 2) Earls of Arundell and Warwicke, appealed by the Earl of Rutland, before the King at Nottingham, and the Proceedings brought into Parliament.

"Nu. 15. 19. Thomas Arundell, Archbishop of Cant., Sir Tho. De Mortimer, accused by the Commons.

Hen. VI. A 28.

"Nu. 14. De la Pool Duke of Suffolke desired to have his Fame vindicated in open Parliament, then impeached by the Commons, but not committed by the Lords, because it was a general Accusation. At last there came a special Accusation, upon which he was committed by the Lords, and banished by the King; against which Proceeding and Banishment all the Lords, Spiritual and Temporal, protested.

"The Committee sent for the Clerk of the Rolls, in order to find more Precedents; the Records in The Tower reaching no further, the Clerk accordingly attended, but said there was nothing registered there besides Acts of Parliament.

"Then the Committee examined the Journals of the House, which reach from the 12th of Hen. VII. and all the Precedents of Impeachments since that Time are in a Lift now in the Clerk's Hands; among all which, none are found to continue from one Parliament to another, except the Lords who were lately so long in The Tower.

"The Proceedings against the Lord Stafford were as follows:

"Charles the IId.

A° 1678, Dec. 5.Dec. 28.

"Impeached by the Commons. "Examined.

In the next Parl. 1679.

"April 9. Heard his Accusation read. "April 26. Put his Answer in.

In another Parl. 1680.

"Nov. . 12. His Trial appointed. "Dec. . 7. Condemned.

"The Committee also, in Obedience to the House, sent for the late Proceedings in the King's Bench in Cases of Impeachments, which are ready to be laid before the House, as well as all the Extracts out of the Records produced by Mr. Petyt.

"Then Mr. Petyt's Clerk, who attended by Order, (fn. 3) being called in, read the Precedents following:

"Rot. Par. 4. E. III. N. 16. Thomas de Berkeley's Case.

"Rot. Par. 15. E. III. N. 8. The Archbishop of Cant. Case.

"And Rot. Claus. 15 E. III. P. 3. M. 25. Dors. Prohibitio pro Rege."

After the Consideration of which Precedents, and others mentioned in the Debate, and reading the Orders made the Nineteenth of March, 167&frac89;, and Two and Twentieth of May, One Thousand Six Hundred Eighty-five, concerning Impeachments; and after long Debate thereupon, and several Things moved:

This Question was proposed,

"Whether James Earl of Sarum and Henry Earl of Peterborough shall be now discharged from their Bail?"

Earls of Salisbury and Peterborough to be discharged from their Bail.

Then this previous Question was put, "Whether this Question shall be now put?"

It was Resolved in the Affirmative.

Then the main Question was put, "Whether James Earl of Salisbury and Henry Earl of Peterborough shall be now discharged from their Bail?"

It was Resolved in the Affirmative.

Protest against it.

"Leave having been given to any Lords, to enter their Diselents, if the Question was carried in the Affirmative;

"And these Lords following do enter their Dissents, in these Reasons:

"1. Because we conceive it is a Question not at all relating to the real Debate before us; but urged upon us, not for the Sake only of the Two Lords mentioned.

"2. Because we ought to have examined Precedents of Pardons, to see how far an Impeachment was concerned, before we had adjudged the Lords discharged; or whether an Impeachment could be pardoned without particular Mention in an Act of Grace; and what Difference there is between an Act of Grace and an Act of Indemnity.

"3. Because we did not hear the House of Commons, who are Parties, and who in common Justice ought to have been heard before we had passed this Vote.

Bolton.
North & Grey.
Stamford.
J. Bridgewater.
Bathe.
Maclesfeld.
Granville.
Herbert.

Spiller versus Herbert.

Upon Report from the Lords Committees for Petitions, the Petition of Henry Spiller Esquire, being an Appeal from a Decree made in Chancery, in a Cause there formerly depending, between Philip late Earl of Pembrooke, and the late Honourable James Herbert Esquire his Son Plaintiffs, and Sir Henry Spiller Knight deceased Desendant; as also from another Decree made in the same Court, in another Cause there also formerly depending, between the said James Herbert and Jane his Wife Plaintiffs, and the Petitioner Defendant, and now there still depending between the said Jane by Survivorship Plaintiff, and the Petitioner Defendant: "That their Lordships have heard Counsel, as well for the said Jane as the Petitioner, for and against the receiving of the said Petition; and that their Lordships are of Opinion, that the said Petition should be rejected, as unfit to be received by the House:"

After due Consideration had of the said Report, it is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Petition and Appeal of Henry Spiller Esquire shall be, and is hereby, dismissed this House, as not fit to be received.

E. of Salisbury discharged from his Recognizance.

Whereas James Earl of Salisbury did, on the 7th Day of October Instant, enter into a Recognizance of Ten Thousand Pounds Penalty, and Theophilus Earl of Huntingdon and Thomas Earl of Thannet in Five Thousand Pounds each of them, to our Sovereign Lord and Lady King William and Queen Mary, "That the said James Earl of Salisbury should appear before this House at all Times when he should be so ordered, by leaving an Order of this House at the Chamber of John Fisher Gentleman, in The Middle Temple, London::"

It is this Day ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said James Earl of Salisbury, Theophilus Earl of Huntingdon, and Thomas Earl of Thannet, shall be, and are hereby, discharged from their said Recognizances; and this shall be a sufficient Order on that Behalf.

E. of Peterborough discharged from his Recognizance.

Whereas Henry Earl of Peterborough did, on the Seventh Day of October Instant, enter into a Recognizance of Ten Thousand Pounds Penalty, and Charles Earl of Manchester and Thomas Viscount Weymouth, in Five Thousand Pounds each of them, to our Sovereign Lord and Lady King William and Queen Mary "That the said Henry Earl of Peterborough should appear before this House at all Times when he shall be so ordered, by leaving an Order of this House at his Lordship's House in Westm."

It is this Day ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Henry Earl of Peterborough, Charles Earl of Manchester, and Thomas Viscount Weymouth, shall be, and are hereby, discharged from their said Recognizance; and this shall be a sufficient Order on that Behalf.

Message to H. C. with Admiralty Commissioners Bill.

A Message was sent to the House of Commons, by Sir Miles Coke and Sir John Hoskins:

To carry down the Bill, intituled, "An Act concerning the Commissioners of the Admiralty," and to desire their Concurrence.

Adjourn.

Rob'tus Atkins, Miles de Balneo, Capitalis Baro de Scaccario, Orator Procerum, declaravit præsens Parliamentum continuandum esse usque in diem Veneris, (videlicet), 31^um diem instantis Octobris, hora decima Aurora, Dominis sic decernentibus.