said wrong to the Court of Common-pleas where the chief Justice thereof did openly affirm That he knew not what was force and fraud if these Actions of the said Confederates were not and Judge Puliston and Judge Atkins two of the other Judges did also in open Court several times earnestly expresse themselves against the foulnesse of the said Levingstons practice in obtaining the said Fines but said it was past their power to relieve your Petitioners but there was a Parliament then sitting that could and they believed would relieve them 8 That your petitioners have for the space of a year and half addrest themselves to the late Parliament for relief which was so far sensible of the foulness of the Crime That they caused it particularly to be excepted out of the Act of General pardon but never found leisure-time for the hearing thereof or giving your petitioners relief or to provide for prevention of like wickedness for the future Your petitioners believing That God hath sitted you with Spirits to relieve against Oppression and to do and act righteousness Humbly beseech you to vouchsafe a Hearing to your petitioners Complaint and to afford them such relief That the said Fines and Deeds so unduly obtained may be produced and vacated Offenders punished and like wickedness for the future by some good law prevented And as they now do so they shall continue to pray that the Spirit of Wisdom Councel and the fear of the Lord may rest upon you and abide with you for his glory the good of his people establishing Righteousness in the Nation that the Calamities thereof may cease when men of publike Spirits shall stand up that date and will do justice SOME CONSIDERATIONS HUMBLY PROPOSED To the Worthy Members of Parliament By Thomas Levingston Esquire and Anne his Wife and William Powel otherwise Hinson Esquire concerning a Petition and Complainst against them by John Blount and Mary Countess of Sterling his Wife and Others now under consideration before the honorable Committee for receiving PETITIONS FIrst The matter in difference between the Plaintiffs and these Defendants is onely the Title unto the Estate lately belonging unto the Lady Powel deceased the Defendant Anne's Mothers Sister Secondly the Complaint against the Defendants is That they did wickedly force the said Lady Powel by several evil practises used upon her to settle her Estate upon her Neece the Defendant Anne and did cause a Fine to be antedated for the perfecting of the said Settlement And therefore the Plaintiffs desire the said Fine and the Defendant Anne's Deeds to be produced and vacated Whereas the Force complained of hath been legally examined and tryed For the Force complained of by the Plaintiffs is a pretended forcible Entry upon and also a forcible Detainer of the House of the said Lady Powel and that was legally tryed by a Jury upon the place where the force is supposed to be committed and no force found And the pretended antedating of the Writs for the Fine complained of is no more then the antient usual practise in levying Fines for many hundred years when any settlement is made of any Estate in the vacation time For the Writs must bear date in a Term and cannot bear date in the succeeding Term and therefore must bear date in a preceding Term And in most of the assurances and settlements made of any mens estates in England by Fines acknowledged between the Terms the Writs must bear date and be returnable the Terms foregoing and if those be not good in law most mens Titles to their Estates are void and if this were not admitted the people could not make any perfect Conveyances and Assurances of their Estates by Fines in the vacation time And as well the said pretended force and antedating of the said Writs as all other the supposed evil practises that the Plaintiffs could then suggest were examined before the Judges one of which took the said Fine in a judicial way the said Lady acknowledging to him that she did the same freely and willingly and without constraint And upon the Plaintiffs first reproachfull false suggestions they gave rules to stop further proceedings upon the said Fine But upon full hearing of both Parties with their Councel gave their Judgement that the said Fine should be proceeded in to be perfected which was done accordingly Therefore the said Complaint against the Defendants is irregular For their Complaint ought now to be against that Court of Justice who have examined and determined the Matters complained of and caused the Settlement complained against to be perfected if they have done Injustice therein and the parties ought not to be further vexed and molested when their Cause is Legally heard and judged But if the supposed evill gaining a Title to the said Estate by the Defendants be not fully examined yet it is both Examinable and Determinable in the ordinary Courts of Law and Equity And many Settlements of several Estates by Fines and Deeds have been anulled and vacated upon sufficient proof made that they have been unduely gained or procured by evill practices Yet the Honourable Committee for receiving of Petitions onely upon hearing the said Complaint against the Defendants without their Answers or Defence have required the Defendants Deeds and Evidences concerning the Defndants Annes Title to the said Estate to be produced which may be of very evil consequence that their Adversary claiming the same Estate should peruse or be advertised of their Title before any Tryal be brought upon the same The Defendants in all humility and submission offer it to consideration First Whether the Legislative Power as Legislative can try the Matters in question suggested against the Defendants For if the Defendants have evilly and wickedly gained a pretended Title to the said Estate they have transgressed either the common law * or the Statute law of the land or else they have done contrary to the Rules of good conscience and equity If either of the first the Defendants punishment for their offences will be known by the laws they have broken and it is onely the Jurisdictive power as Jurisdictve that can try the Defendants for those offences The business being no more then the Application of the laws in being to the offences done If the Defendants have done the latter that is done contrary to a good conscience and eequity in gaining the said Title then that must be tried by the known Rules of Equity known and practised in this Nation For there cannot be a particular Equity that concerneth the Defendants onely And that cannot be within the limits of the legislative power as legislative when the work is onely to measure a Fact by the Rule already in being Secondly It is humbly offered to be considered Whether any Reasons be offered by the Plaintiffs against the Defendants why the legislative power should in an extraordinary way should take this particular Controversie out of the hands of the Ordinary Courts of law and
have been paid in that very Moneth where in the Lady Powel died 't is evident to every man for what cause Sir Edw. Powel and Mr. Hinson his kinsman have been so assistant to M. Levingston to get that estate which Sir Edward and M. Hinson were debtors to and M. Levingston hath power to release if his Deeds thus gained shall be upheld And the Petitioners do observe that M. Levingston and his wife would fain insinuate a scandal and stick some oblequie upon that dead Ladies reputation who living as they would have the world believe obliged them with the guift of her whole estate But truth will out and were M. Levingston and his wife conscious to themselvs that the lady Powel had really intended her estate to them the Petitioners believe they would in modesty and common gratitude have forborn to have hinted that reproach and scandal to her who being in her grave cannot now make answer for her self And lastly the Complainants say That all the English Histories and Records cannot parallel this transcendent practice whereby the estate in question is gotten from them and that they have hitherto pursued it as with Hue-and Cry and shall give a more particular account of it hereafter this being but minutes of it and in haste The Progress of the Fines These several Fines were acknowledged the 18th day of September 1651. The Several Writs of Covenant sued forth for the passing of these Fines are all antedated and bear teste the 30th day of May 1651 and made Returnable Tres Trinitatis following which is the 16th day of June The Dedimuâ— Potestatem to enable the Judge to take these Fines in sued forth after the acknowledgement of them and antedated and made to bear date the 31th of May 1651 Returnable Tyes Trinitatis as aforesaid So that the return of this antedated Commission is expired above 3 months before the acknowledgement and yet this is not Error relieve-able at Law The States Silver is entred upon Record of Trinity Term 1651 near four moneths before the acknowledgment but in truth was not entred until the 24th day of September 1651. It is Endorsed upon the foot of the Fines that the first Proclamations were made the 18th day of June in Trinity Term 1651 according to the Form of the Statute Which is a meer falsehood impossibility and contrary to the Statute The whole Transaction of these Fines from the beginning to the end was acted and done within 11 days all out of Terme to wit between the 17th day of September and the 29th day of the same moneth to fore-close the Court of Common-Pleas that it might not be in their power to relieve the Petitioners upon Complaint which they made to the Court upon the first day of the next ensuing Term FINIS * Rom. 4. 25. Where there is no Law there is no Transgression Romans 3. 20. By the Law is the knowledge of Sinne Romans 7. 7. I had not known sin but by the Law * The wisdom and care of the Parliament in their late constitution of the Committee for Petitions provided against the confounding the Legislative power with the jurisdictive limited them to receive such Petitions onely for the Parliament as are proper to the legislative power or not relievable elsewhere * Mr. Vandenbemde was offered by Mr. Levingston a year before to be of this Plot and to have share of the benefit but he refused it * Judge Atkins said in open Court it sounded ill in his ears here that it would found worse in Parliament and worse in the high Court of Heaven * Mr. Levingston by agreement with Mr. Vandenbemde is to have 4 years profits of Mr. Vandenbemde's share of the land 's in question to bear his charges against the Petitioners Complaint in Parliament
may resolve to go or abide imprisonment in case Chancery should order him to reconvey They say also that Chancery cannot make a good Title of these lands to the Petitioners nor will any man deal with them for their interest in the land upon a Decree in Chancery should the Petitioners have need as indeed they well may have to mortgage sell or settle them for the truth is no Court but Parliament can vacuate Fines inrolled of Record though gotten by practice and that was agreed in Star-chamber 12 Jac. by the then Lord Chancellor Egerton and all the chief Judges of England And that Fines are only to be vacated in Parliament Mr. Levingston well knew whatever he pretends when he made his Agreement with Mr Vandenbemde one other of the dis-inherited Grandchildren to give him his share of the lands in question gotten from him by this practice * for by the Articles betwixt them Mr Levingston provided to defend himself against your Petitioners Complaint in Parliament at Mr. Vandenbemdes costs and charges which shews Mr Levingston knew and expected that your Petitioners must and would come to Parliament for relief As to Mr Levingston's Objection Why Parliament should not intermeddle herein because his offence is either against Common law Statute law or Rules of Equity and therefore he onely to be censured by Common law Statute law or Court of Equity We answer That all fraud is against the common law and that his false Antidates and recording of his Fines and Proclamations thereupon are against two Statute laws the one of 4. H. 7. and the other 23 Eliz. before mentioned and all his whole action is against the Rules of good Conscience in that Mr Levinstgon being a person of a gainful profession and having at present an estate in land of 600 l. yearly by the guift of your Petitioners Grandfather besides the land in question of part of which he also was to have a share and having no child himself should yet by so foul a practice go about to dis-inherit the Petitioners three whereof are the mothers of 19 children of the best part of their livelyhood to maintain themselves and them But we say as before no Court can vacuate a recorded Fine but Parliament how transcendent soever the Crime in obtaining of it be and therefore we appeal to Parliament to do it and to punish the offence For when a Lawyer shall so notoriously practice to violate the Laws and all Rules of Equity and good Conscience his Knowledge ought to aggravate his Crime And by the Argument of Mr Levingston the Parliament should have no power to punish any offence at all for all Offences are either against common law Statute law or good Conscience And therfore by this Rule all Crimes must be censured and punished by the Courts below and Parliament should have no jurisdiction over any Crime at all which how abhorrent from Reason and contrary to Experience it is let all men judge that understand any thing at all what the power or course of Parliament is And the Complainants observe that M. Levingston doth very wisely desire to be judged in Chancery for that Chancery cannot vacate the Fines nor punish his offence how transcendent soever it shall appear to be But we say it is the proper work of Parliament to relieve where the inferior Courts cannot and the inferior Courts cannot nullifie a fine therefore Parliament must otherwise there will be a failer of power to do justice And it is manifest where great frauds or force have appeared to the Parliament it hath been usual for them to give a remedy where there was none before and a more full or more speedy remedy where there was remedy by law before especially in matter of complaint of complicated nature as this is where both the Civil Title and matter Criminal is in question before them And we say That Fines Recognizances inrolâ—ed and Conveyances gotten by practice or duresse have been complained of and vacuated in Parliament and that shall be made manifest by examples if it be denied As to the consideration offered Why the Deeds should not be produced to the honorable Committee before the Crime be examined We answer That the fight of the Deeds would more clearly manifest the practice by comparing the Ladies Seal and hand-writing and the names of the Witnesses endorseder subscribed and more especially in this Case is it necessary that all Deeds be produced and publikely perused because the Petitioners have reason to believe that M. Levingston hath in the Deeds whereby he claimes the personal estate contrived great guists and bequests to some persons whom he intends to produce as Witnesses for him to prove the Deeds for the land and so Witnesses that swear for their own benefit shall not be detected for want of sight of all Deeds Nor is this Order of the honourable Committee to compel him to being in his Deeds more then necessity to discover the practice requires nor more then Chancery and other Courts use to do in matters of complaint of fraud and practice and many other Cases As to so much of Mr. Levingstons Considerations as concerns the means occasion or procurement of the Petitioners Complaint they deny That they complain by any other means or procurement then their own and for their own Inheritance Estate Right and they recriminate his charge of malice and falshood upon himself he having lately had three of his Witnesses convict of perjury in the Upper-Bench before the Lord chief Justice Roll and two others of them indicted and to be tried for perjury the next Term in other Causes that have issued from these practices And that the Defendant Mr Levingston did heretofore offer to one Dowthwait a reward of 50 l. value to swear your Petitioners out of other part of their inheritance to the value of 500 l. yearly is sworn by Douthwait himself upon his Examination in Chancery in another Case And the Petitioners do aver That they â—omplein as well for the personal estate as real being both unduly gotten from them by M. Levingston and his wife and when by Justice of Parliament the petitioners shal have set aside M. Levingstons pretended Deeds the petitioners being Heirs and next of kin to the Lady Powel shal then be ready as occasion serves to say as much truth against Mr. Cromptons title to the personal estate if he shall then make any as Mr. Levingston shal say And the Complainants say that they did heretofore in open Court refuse to be concluded by the reference proposed betwixt Mr. Levingston and Mr. Crompton concerning the personal estate in question wherin one M. Sadler was named a Referree for Mr. Levingston And the petitioners do affirm thâ—â— Sir Edward Powel and M. Hinson alias Powel his kinsman being bound by recognizance of 8000 l. for payment of 4000 l. in trust to be at the Lady Powels kinsman as aforesaid and that 2000 l. part of the said 8000 l. being to