Freehold Titles (ERO D/Q6/1/8 copy of bill of exceptions to decree concerning school lands)

20.3.8Jas1 (Wednesday 20 March 1611)

document 32301322

item four the commissioners ground their decree of transferring the patronage of the school from the earl of Oxenford and his heirs unto the bishop of London and his successors upon the said inquisition only for that as the decree reciteth it is found by the said inquisition that the said Swallow hath not certainly appointed any particular person or persons from time to time to nominate and appoint a schoolmaster there as it had been fit and necessary and therefore they desire for evidence the defects of the said conveyance of the said Swallow to some perfection in the nomination of the said schoolmaster do decree the same to the bishop of London and archbishop as aforesaid where in truth there no such thing found in the said inquisition for it is only therein presented that there was not any power or clause to their knowledge limited by the said conveyance made by Swallow whereby the earl or any other of the feoffees     have the nomination of the said schoolmaster so as the jurors find it not expressly as the decree reciteth but only to their knowledges and the truth is they never saw the said conveyance made by Swallow nor had any evidence given them what was contained in it nor any nor any evidence at all of the patronage of the said school and therefore had no means to know anything concerning it one way or other and yet that clause in the inquisition being with the rest inserted by mr Harlakenden's counsel was by some of the commissioners excepted to as tending to the blemish of the earl's inquisition but was suffered at length to pass upon answer made by some of the commissioners that that it was but an idle clause and did do the earl's title neither good nor hurt besides thereof it had been found by the inquisition that the earl had no power given him by the said conveyance to appoint the schoolmaster yet non sequitur that therefore the earl had no such power for he might have that power granted to him either by Swallow his will or by some other deed or instrument thereof not by the conveyance by which Swallow enfeoffed him fifth item the commissioners in the beginning of the said decree derive a power and authority to themselves for making their decree by the king's majestys commission under the great seal of England directed to them whose names are subscribed to the said decree among other commissioners for charitable uses within the county of Essex and refer themselves to the said commission but yet draw no date of any commission whereas there have been many commissions directed into Essex for execution of the said statute for charitable uses which being made returnable were returned and out of force at the making of the said decree so as non constat# that the commissioners at the making of the said decree had any power to make the same sixth item where the commissioners decree that Hen now earl of Oxon or his heirs shall either before or within one whole year next ensuing his or their full age or ages convey over all and every the said messuages lands and tenements and hereditaments to six or eight of the justices of the peace of Essex then dwelling nearest to the school of Colne or Coggeshall aforesaid and to their heirs forever to the uses limited by the said Swallow and as a ground of their decree in this point recite that it was the true intent and meaning of Swallow that the said lands should continue in feoffment for the uses aforesaid in perpetuity the said commissioners had no ground either by the said inquisition or other evidence whatsoever that the said Swallow ever intended to trust any other feoffees with the same school or lands but only the then earl of Oxon and his heirs who had been his only patron and advancer of the said Swallow having been the said earl his household chaplain preferred by him to the vicarage of his church in Messing and one of his parishes at Colne Priory whereof the earl his ancestors were the founders by which means the said Swallow obtained that estate which enabled him to found the school and therefore not likely that Swallow in the number of the justices of peace to whom the feoffment should be made viz six or eight as likewise place of their habitancy viz nearest unto the school of Colne or Coxall where Colne or Coxall are distant divers miles one from the other fourthly justices of peace are no corporation nor by that name capable to purchase or take item the commissioners at the instance of sir Hen Maxey one of the said commissioners have in all their proceedings intended only private ends viz to make one Crackenthorpe schoolmaster of the said school already married or shortly to be married to a chambermaid of the said sir Hen Maxey the said Crackenthorpe being a man otherwise for his youth learning and manners most unfit for the place that this hath been the commissioners principal respect in their proceedings is appeareth by those circumstances following first this business concerning the school and lands of Colne being first propounded at a meeting by the commissioners at Coxall 31.12.8Jas1 and secondly at a meeting there 15.1. after there was nothing therein done those meetings being altogether upon other occasions of like nature but only by conclusion to write unto the earl and the countess his mother to consent for the removal of the said Adams which some of the commissioners afterwards did accordingly with promise no ways to impeach the earl's interest upon the receipt of which letter as well the countess as the earl returned their several answers in writing to the commissioners whereby they yielded their consents to remove Adams with an express reservation of the earl's interest the earl by his letter moving the commissioners to nominate unto him two fit men of the place whereof he should choose one which after serving fitly their intended purpose for Crackenthorpe the commissioners at their next meeting 5.3.last refuse to hear mr Harlakenden's counsel object anything against the earl his interest not suffering the same to be so much as questioned and after the said inquisition taken the said 4.3. gave orders to draw up a decree whereby the earl's interest in the patronage of the said school should have been preserved and reserved to him and shortly after directed their letters to the earl subscribed by divers of the commissioners now parties to this decree whereby they nominated unto him the said Crackenthorpe and one Stockbridge with request that he would choose one of them thereby assuring themselves of the choice of Crackenthorpe for that they knew Stockbridge to be a man specially detested both by the earl and the countess his mother for that he had been a principal instrument against him in suits between Harlakenden and him which policy being discerned and disliked by the earl for that they had given him an election in show but none in substance he refusing to make choice of either conferred the schoolmastership on one Scott a master of arts and a man for learning and carriage without exception which being understood by the commissioners at their fourth and last meeting 20.3. last they now despairing to draw in Crackenthorpe under the earl's interest pressed some ground of matter against the earl's title but Harlakenden's counsel to discover to them Harlakenden's counsel protesting he knew nothing to impeach it the commissioners then never meeting judicially afterward nor having at any time sithence ever heard or seen any proof or evidence either for or against the earl's interest yet some of the said commissioners purposely to prevail for Crackenthorpe have sithence privately drawn up the said decree whereby they have transferred the inheritance of the patronage aforesaid secondly for that Crackenthorpe is but a bachelor of arts they have inserted a clause in their decree whereby they make a bachelor of arts capable of the said schoolmastership whereas the place deserveth both for the maintenance it affordeth being 100li per annum and for the charge it requireth a master of arts and a man of good gravity learning and carriage thirdly some of the said commissioners have sithence the making of their said decree prosecuted the cause for Crackenthorpe rather like parties than judges both in setting out the writ de executions ordinis and in procureing from the archbishop of Canterbury a grant to Crackenthorpe of the said schoolmastership notwithstanding they well knew the place to be full as well for that Scott had a grant thereof before and at the time of their decree to whom their decree extendeth not as for that it appeareth by the said inquisition recited in their decree that the said Stockbridge is yet alive and remaineth schoolmaster by the said grant of the said Edw late earl of Oxenford and standeth also therein confirmed by the said decree in chancery fourthly as this decree was never judicially agreed upon so were the hands and seals of divers the commissioners parties to it privately procured by solicitation and importuning of some others the commissioners inrsoley# meeting them viz the hands and seals of sir Anthony Everard sir     Sammes mr and mr Stevens fifthly some of those commissioners whose hands and seals are to the decree were not present at any meeting about this business when any evidence was given concerning it viz dr Sammes and mr Stephens and sir Jn Sammes a principal agent in private procuring of hands and seals to this decree never present at any more that one meeting about it viz 4.3. at which time he and all the other commissioners stood for the earl's title sixthly divers of the commissioners which took most pains and best understood the business and whose names are inserted in the decree refused to join in sealing or subscribing the same viz sir Xoph Wiseman mr Waldergrave mr Tiffin mr Sandford and some of those commissioners who have sealed and subscribed it have sithence repented their sudden and unadvised doing it viz mr Persent and mr Stephens concordatum cum recorde et exam per W Ravenscroft