The History and Proceedings of the House of Commons: Volume 3, 1695-1706. Originally published by Chandler, London, 1742.
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First, because that the Recital, that every Person to be admitted into any Office or Employment, should be conformable to the Church, as it is by Law established, is confined to such Laws as enact, that every such Person shall receive the Sacrament of the Lord's Supper, according to the Rites and Usage of the Church of England.
Secondly, because the Corporation and the Test-Acts, which have been frequently evaded, and are by this Bill intended to be made effectual, do provide, that all Persons to be admitted into any Office or Employment, in pursuance of those Acts, should receive the Sacrament of the Lord's Supper, according to the Rites and Usage of the Church of England; and all Persons under such Obligation to receive the Sacrament, the Commons conceive are obliged to be conformable to the Church, as it is by Law established.
To the fifth Amendment, second Skin, Line the fourth, the Commons disagree, because your Lordships admit this Bill to be reasonable as to the Officers and Persons described in the former Part of this Clause, and the Commons see no Reason why this Bill should not equally extend to the Persons and Officers described in the latter Part thereof, left out by your Lordships in this Amendment.
Secondly, your Lordships leaving out, in this Amendment, these Words, (viz.) ['Who by the Laws are obliged to receive the Sacrament of the Lord's Supper, according to the Rites and Usage of the Church of England,'] may countenance an Opinion, that the Persons described in the Words left out by your Lordships, are not obliged to receive the Sacrament.
Thirdly, those Words do equally refer to the Persons described in the former Part of this Clause, to which your Lordships have agreed, as to the Persons described in your Lordships Amendment, and the Commons take it to be very evident. that every Person described in this Clause, as sent up to your Lordships, is obliged to receive the Sacrament of the Lord's Supper, according to the Rites and Usage of the Church of England.
To the eighth Amendment, line 34, the Commons have disagreed, because (tho' many other Reasons might be offered, from which the Commons can never depart, yet, at this time, they think it sufficient to say) that the Penalties, left out by your Lordships in this Amendment, are reasonable, and no more than what is necessary to make this Bill effectual.
To the ninth Amendment, third Skin, line the ninth, the Commons disagree, because they think the Penalty of Incapacity, as qualified by the subsequent Provisoes, is a proper Punishment for this Offence; and the Commons conceive it necessary to encrease the Penalty upon a second Offence, as has been practised in many other Cases.
To Clause (D.) the Commons disagree, because the Commons think it necessary that the Bill should equally extend to all Persons, before recited, as obliged to receive the Sacrament, and see no Reason for the Distinction made thereby.
To Clause (E.) the Commons disagree, because, if such Persons are obliged to receive the Sacrament, there is no Reason to exempt them out of this Bill, and if they are not obliged, the Clause is unnecessary.
Because these Words left out of this Amendment are introductive to the Clause left out by their Lordships in the fifth Amendment. Besides, as the Law now stands, there are many Offices and Employments, to which Persons may be admitted, without being under an Obligation to receive the Sacrament on that account; and therefore they cannot agree to let a Clause stand, wherein a Matter of Fact is positively affirmed, which they take to be otherwise.
The Lords insist on their fifth Amendment, because the Act of the 25th of King Charles the Second, called Test-Act, which has been found by Experience to have been an effectual Security against Popery, (and which their Lordships are willing to enforce yet further by this Bill, as to the Dissenters) is known to every body, and it is generally understood to what Employments it does extend; and therefore their Lordships think it reasonable to rest there, and not to subject Men to the Penalties of this Bill, upon general or uncertain Words.
1. The Lords do not go about to take away the Force of the Corporation Act, or to lessen any Security the Church of England has by it, but cannot agree to extend the Penalties of this Bill, to the general Words of that Act, which, by Construction hereafter, may serve Purposes which are not owned at present to be the Intent of this Bill.
Whatevever Regard their Lordships may have to Reasons which the House of Commons are resolved never to depart from, they hope it will not seem strange, that they are not convinced by such Reasons as are not thought fit to be offered.
But, in justification of their Amendment, their Lordships think fit to say, that as they have an undoubted Right to begin Bills with Pecuniary Penalties, and to alter and distribute pecuniary Penalties in Bills sent up to them by the House of Commons (which Right their Ancestors have always enjoyed; and from which their Lordships can never depart) so they are convinced there never was a more just Occasion of making use of that Right, than in the present, Case.
2. They conceive the Penalty of one hundred Pounds and five Pounds a Day for every Day after the Offence committed, to be excessive; and the whole being given to the Informer, would prove a dangerous Temptation to Perjury, and a pernicious Encouragement to Informers, the most odious sort of Persons, which would be a Blemish on the best Reign.
Their Lordships have given a sufficient Proof of their Willingness, to make this Bill as effectual as will consist with Reason, by agreeing to such a pecuniary Penalty (besides the Loss of Office) as may be a proper Encouragement to Informers to swear the Truth, tho' not perhaps a sufficient Temptation to go further.
As to the ninth Amendment, the Commons say they disagree, because they think Incapacity a proper Punishment for this Offence. The Lords insist upon their Amendment, because they think directly the contrary.
Their Lordships observe, that, as the Law now stands, any Person having an Office may be present at Mass, upon much easier Terms than he might be present at a Conventicle, if the Lords should depart from this Amendment.
3. The Lords think, that an English Man cannot be reduced to a more unhappy Condition than to be put by Law under an Incapacity of serving his Prince and Country, and therefore nothing but a Crime of the most detestable Nature, ought to put him under such a Disability; they who think the being present at a Meeting to be so high a Crime, can hardly think, that a Toleration of such Meetings ought to continue long; and yet the Bill says, the Act of Toleration ought to be kept inviolable.
The Lords do not think it at all necessary to make any increase of Punishment for a second Offence, because the first Offence is made Forfeiture of Office; and when the Office is gone, the Person may go to a Meeting without Breach of any Law, while the Act of Toleration continues; and if he shall afterwards get another Office, he will forfeit the same, and incur the Penalties in this Act, if he shall ever after be present at a Conventicle, which their Lordships think sufficient Punishment for a second Offence.
2d Skin, 33d line. The Lords agree to the Commons Amendments to their Lordships Amendment, with the Addition of the Words following, after the Words [prayed for] viz In pursuance of the Act passed in the first Year of King William and Queen Mary, entituled, An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown; and the Act passed in the 12th and 13th of King William the third, entituled, An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject.
The Lords insist on the Clause (B.) Because to leave Protestant Dissenters subject to Penalties, if they do not accept of Offices, and at the same time to restrain them, if they accept of them upon the Penalties of this Bill, from doing what they think themselves obliged to, in Conscience, is Persecution for Conscience, aud does not agree with what is set forth in the Preamble of the Bill.
The Lords insist on the Clause (C.) Because they see no Reason why being present at Sermons or Lectures, preached or read in the Universities, and established by ancient and very good Intentions, should subject Men to the Danger of incurring the Penalties of this Law; and the same Clause was thought necessary in the Act of Uniformity.
The Lords insist on the Clause (D.) Because the foreign, Reformed Churches allowed, or to be allowed, were, by the Act of Uniformity, exempted from the Penalties of that Law; and other foreign Protestants, who have been forced out of their own Country, by a cruel Persecution, having settled here in England, by Encouragement from Parliament, as well as from the Crown, it would have a strange Appearance, if it should be thought so high an Offence for any of her Majesty's Subjects in Office, but once to be present at their Way of Worship: This would give such a Discountenance to those of the same Religion abroad, as would no way suit with her Majesty's Character of Head of the Protestant Interest in Europe.
The Lords insist on the Clause (E.) Because the Persons concerned in it have no Profit, nor any Trust but what relates to the Poor; and without this Clause, Charitable Foundations, as Hospitals, public Work-houses, and the like, would meet with Discouragements, and the Number of them might be lessened.
The 16th, The Committee of both Houses met at the free Conference, which was manag'd for the Lords, by the Duke of Devonshire, the Earl of Peterborough, the Lord Bishop of Salisbury, the Lord Somers, and the Lord Hallifax.
'Who acquainted the Managers for the Lords, that the Commons had agreed to the Addition of the Words their Lordships had made to the Commons Amendments to the Lords Amendment in the 2d Skin, l. 33. but insisted on their Disagreement to the Lords other Amendments, and to their Lordships Clauses marked B, C, D, and E, and therefore had desired this free Conference with the Lords, in order to preserve a good Correspondence between the two Houses.
'That the Interests of the Church and State were not to be supported without it; and that the Commons might omit nothing to maintain a good Correspondence, they had taken this Way, which had been practised with so good Success by their Ancestors.
'That the Intent of this Bill for preventing Occasional Conformity, is only to restrain, to put a Stop to a very scandalous Practice, which is a Reproach to Religion, gives Offence to all good Christians, and to the best among the Dissenters themselves.
'That those Laws were thought sufficient to secure our Establishment; but since the Iniquity of Men had found out Ways to evade and elude them, the Commons would never doubt but the Lords would let these Men see, they would not be wanting on their part, to maintain and support it; that this Bill appears to the Commons, absolutely necessary for the preventing those Mischiefs which must prove destructive to the Church, and the Monarchy.
'That the Commons were incapable of having any Designs they were ashamed to own: That they designed nothing but the Preservation of the Church of England, and the Monarchy, and doubted not to meet with a ready Concurrence from the Lords in their Designs.
'That when the Corporation-Act was made, the Parliament had fresh in their Minds the Confusions and Calamities, that had been brought upon the Nation, by such as pretended to be at the same time in the true Interest of Religion and their Country: That the Parliament by that Act, and afterwards by the Test Act, thought they had secured our Establishment both in Church and State, and that they had provided a sufficient Barrier to defeat and disappoint any Attempts against them, by enacting, that all in Offices should receive the Sacrament of the Lord's-Supper, according to the Rites and Usage of the Church of England; and never imagined a Set of Men would, at any time, rise up, whose Consciences were too tender to obey the Laws, but hardned enough to break through any.
'That as upon the Revolution, the last Reign began with an Act in favour of the Dissenters, so the Commons do desire, in the Beginning of her Majesty's auspicious Reign, an Act may pass in favour of the Church of England, that the Laws which have been invaded may now be effectually enforced; and that those Men may be kept out of Offices, who have shewn they never wanted the Will, when they had the Power, to destroy the Church.
Their Managers then acquainted the Lords, that the Commons insisted on their Disagreement to the second and third Amendments made by the Lords in the Preamble of the Bill, and on their Disagreement to the fourth Amendment; and argued,
'That if the Laws provide, they shall receive the Sacrament, and by that intend a Conformity; then whosoever breaks the Intention of the Laws, breaks the Law, or at least evades the Law, and it is fit to secure us against such Practices.
'That however, if the Lords had pleased, they might, by a very little Amendment, have obviated the Objection they make to these Words, by changing every Person into several Persons; which would have reconciled them to the most rigid Construction.'
'That the Inducements for passing the Corporation Act, according to the Preamble, were, that a Succession in Corporations might be perpetuated in the Hands of Persons well affected to the King and the established Government, and for the Preservation of the public Peace both in Church and State.
'That the Lords agree this Bill should relate to Officers in the Test Act, because the Law intends those Officers should be conformable; and if the Intention of that Law be the Reason to provide against such Evaders of it, the like Intention in the Corporation Act, will serve for a Reason to provide against the Evaders of the Corporation Act.
'That Occasional Conformity declares a Man's Conscience will let him conform, and in such a Man, Non-conformity is a wilful Sin; and why should occasional Conformity be allowed in Corporations, when the Lords agree, that out of Corporations it ought to be allowed?
'That if it be reasonable, as the Lords allow it is, that he who hath an Office out of a Corporation, tho' it entitles him perhaps to very little Profits or Trust, should be conformable; it is certainly much more reasonable, that another who is trusted with Magistracy and Power in a Corporation, and has thereby a greater Influence, should be conformable.'
'That if the Lords were pleased to consider how much greater the Penalties and other penal Laws were, in many Instances, than in this Bill, they presumed the Lords would not think those in this Bill, excessive.
'That in laying Penalties, the Commons shall always endeavour to make them such as shall neither tempt to Perjury, nor totally discourage Informations and Prosecutions, which they thought this Amendment of the Lords would do, should the Commons agree to it.
'That an Incapacity, as qualify'd by the subsequent Proviso, is a very proper Punishment; that a second Offence is a Relapse and an Apostacy, which are Circumstances that aggravate and make it more heinous than the first Offence, and therefore deserve an Increase of Punishment.
'That he is indeed reduced to a very unhappy Condition, who is made incapable of serving his Prince and Country; but in the present Case, our Prince and Country would be in a more unhappy Condition, to the served by such, whose Principles are inconsistent with the Good and Welfare of our Establishment.
'That the Exempting Protestant Dissenters from serving Offices, would rather establish Occasional Non-conformity than prevent Occasional Conformity, and therefore increase, not cure, the Evil the Bill was intended to remedy.
'That those Sermons and Lectures having been in such manner provided for, it was not thought necessary when the Act passed in the 16th, and in the 22d Car. II. to prevent and suppress seditious Conventicles (in both which Acts Conventicles are described, as in this Bill) to have any particular Exceptions for them, and yet they were never by any Constructions taken to be Conventicles.
'That the Places of Governours of some Hospitals are very considerable Preferments, and given as such to the Clergy of the Church of England, and the Commons can never consent by any Law, to let in the Dissenters to the Enjoyment of them.
'That by their agreeing so far as they have done to this Bill, they have gone a great way for the preventing the Evil this Bill is intended to remedy, and own it to be a Scandal to Religion, that Persons should conform only for a Place.
'That the Lords do not take going to a Meeting to be malum in se, for that the Dissenters are Protestants, and differ from the Church of England only in some little Forms, and therefore the Lords think loss of Office a sufficient Punishment, without an Incapacity.
'That it can never be thought those of the better sort will be guilty of this Offence; if they are, they lose their Offices, and loss of Office is a severe Penalty in inferior Officers of the Customs, and Excise, and who have little else to subsist on; in short, they will be undone by the loss of their Office; and this the Lords think severe enough, without carrying it much further. This is yet more considerable in Patent-Places, which by a common custom are bought and sold, and are of the nature of Freeholds.
'That in some Corporations the Lords take the Election of Members to serve in Parliament, to be only in such as are concerned in the Government of them, as at Buckingham, &c, and the Lords would not by this Bill deprive Men of their Birthrights.
'But of late, in the greatest Extremity of the Church, they joined with her; when the Bishops were in the Tower, the Dissenters shewed they had no prejudice to the Church, and so they have continued to behave themselves.'
'That the Lords did equally desire a good Correspondence betwixt the two Houses, and were so satisfied of the necessity of Union at this time, that they thought all measures fatal that might create any Divisions amongst Protestants at home, or give any check to the necessary Union amongst our Allies abroad, of the reformed Religion.
'For which Reasons, in a time of War, they thought Alteration unnecessary, and dangerous, and were unwilling to bring any real hardships upon the Dissenters at this time, or give them any Cause of Jealousies or Fears.
'That the Toleration hath had such visible and good effects, hath contributed so much to the Security and Reputation of the Church of England, and produced so good a Temper amongst the Dissenters, that the Lords are unwilling to give the least discredit to that Act; being sensible that Liberty of Conscience, and gentle Measures, are most proper, and have been found most effectual towards encreasing' the Church and diminishing the number of Dissenters.
'That the Lords apprehend, that some parts of this Bill by them amended, have an air of severity improper for this Season; that though there may be some things to be found fault with, yet a proper time ought to be taken to apply remedies; that the attempting too hasty Cures, have often proved fatal.
'That the Lords could not conceive, the Interest of the Church and State were not to be supported without this Bill; since in case of such Danger, and necessity, this Remedy must have been proposed before now, by some of those worthy Members of the Church of England, who in so many Parliaments since the Toleration, have shown so much Zeal for the national Church and Government.
'That the Lords think they have sufficiently shewn their dislike to the Practice of Occasional Conformity, on which they inflict no less a Punishment than loss of Place, and have consented likewise to a reasonable Fine to be said on those who are proved guilty of this Crime.
'The Lords cannot but conceive, that if this Bill did enact nothing new, there would not be such a Contest about it; that it is plain, tho' Occasional Conformity ought always to have been esteemed a Crime, yet that the Practice was new, and the Punishment provided by this Law new likewise; the Lords therefore consent to a Punishment, but would proportion the Penalty to the Offence.
'That as the Commons need not to be ashamed of Designs so laudable as the Preservation of the Church of England, and Monarchy, so the Lords conclude their Desires of securing the Toleration-Act, the Peace and Quiet of the Kingdom at home, and the Interest of the Nation abroad, will meet with a fair Construction; especially when they hope the Church is so well secured by her Doctrine, by the good Laws of the Realm, and the Protection of so pious a Queen, assisted by a Parliament so well affected to the Church and State.
'That the Lords not only allow the necessity of an established Religion, and a national Church, but being likewise of that national Church, they can never be wanting to those Measures they think proper to secure it. And tho' by the first appearance, the Members of the House of Commons may seem, upon this Occasion, the most zealous Champions for the national Establishment, yet the Lords think the only Contest between them is, which shall most befriend and take care of the Church; the one would procure a hasty-settled Submission, not so much to be depended upon; the other would obtain for her a more gradual but a safer Advantage over those that dissent from her, the same End being designed by both, and only some difference in the Means to attain it.
'That the Lords do not well understand the Inference, that as upon the Revolution the last Reign began with an Act in favour of the Dissenters, so the Commons do desire in the beginning of her Majesty's Reign, an Act may pass in favour of the Church. The Lords conceive, that both Reigns began upon the same bottom and foundation; and that as in this Reign her Majesty hath been pleased to give gracious Assurances as to Liberty of Conscience, so in the last, the Church ever met with Protection and Support.
'That the Interest of the Prince is to support the Church against her Enemies; that it is hard, as well as untrue, to say of the Dissenters they never wanted the Will, when they had the Power to destroy the Church and State; since in the last and greatest Danger the Church was exposed to, they joined with her with all imaginable Zeal and Sincerity against the Papists, their common Enemies, shewing no prejudice to the Church, but the utmost Respect to her Bishops, when sent to the Tower; and that ever since they have continued to shew all the Signs of Friendship and Submission, to the Government of Church and State.
'That in truth, formerly the Dissenters had been seditious, and in Arms and Opposition to the State and Church; but it was the effect of Persecution, and that even then, they were open and avowed Enemies; but that Toleration and Tenderness had never missed of procuring Peace and Union, as Persecution had never failed producing the contrary effects.
'That the Lords cannot think the Dissenters can properly be called Schismatics, at least those that differ in no essential point; that such an Opinion allowed, would bring a heavy Charge upon the Church of England, who by a Law have tolerated such a Schism; that Connivance hath been used to Schismatics: that public allowance was never given to such, and the Churchmen having Allowed Communion with the reformed Churches abroad, professing Calvinism, it must follow, they hold them not guilty of Schism, or could not allow Communion with them.
'That this Bill inflicts a second Punishment on those who fled from France for their Religion; That they fought a very improper refuge amongst those that must think them guilty of Schism, and must use them accordingly; That this may be used as an Argument to justify even the Persecution in France; Why may not the Roman Catholics with Reason banish those, that even Protestants can hardly endure amongst them, and for whose Doctrine and Practice they shew such an Aversion, that a Man must forfeit his Place, and undergo a hard Penalty but for entering once into their Congregation?
'That the Lords cannot depart from the Clause relating to the Dutch and Walloon Churches so long established amongst us, lest it should give great Disgust and Offence to our Allies abroad; and at the same time forfeit the greatest Character can be given a Church, that of Tenderness and Charity to Fellow-Christians; the contrary Practice being what is so much abhorred amongst Roman Catholics.
'That tho' the Lords allow, that no Man hath a Place by Birthright, or but few such Examples in our Government; yet that giving a Vote for a Representative in Parliament, is the essential Privilege whereby every Englishman preserves his Property; and that whatsoever deprives him of such Vote, deprives him of his Birthright.
'The Lords are of Opinion, the Dissenters should have Liberty of Conscience, but agree to the further Measures proposed by the Commons, to allow neither Dissenters, nor Occasional Conformists any share in the Government; but they take this to be the great Security for the established Religion, that all who sit in the House of Commons must be Churchmen, and the difference between a Churchman chose by Churchmen and chose by Dissenters is only this, that the former will be for using severer, the other gentler means, for bringing the Dissenters into the Church.
'That the disagreeing to the Clause relating to Work-Houses where the Poor were employed and relieved, seems very hard, since it could never be conceived, that the distribution of some presbyterian Bread to the Poor, and dissenting Water-gruel to the Sick, could ever bring any Prejudice to the Church of England; especially by such as having no Authority in the Government, or profit by the Administration of such Charities, gave them indifferently to those of all Persuasions.
'That the Lords conceived the Act of Toleration had visibly proved to the Advantage of the Church, that even the Practice of Occasional Conformity in a few, as it had done great Prejudice to the Dissenters, so had it added to the Reputation and Authority of the Church; the Dissenters having determined the point against themselves by this Practice, for if they can conform for a Place, much more ought they to do so in compliance with the Law, and for the sake of Unity.
'The main Design of this Bill, is to secure the Church of England, and in this the Lords do perfectly agree with the Commons, both sides of the House join in it with equal Zeal; and the main point of this Bill being the excluding all Persons from Employments of Trust, who join themselves to any other Bodies for religious Worship, besides the Church of England, the Lords do agree entirely with them likewise in this; all the difference is, what further Penalties should be said, besides the forfeiture of the Employment, on Persons so offending.
'The Lords look on the fixing of Qualifications for Places of Trust to be a thing entirely lodged with the Legislature, that without giving any reason for it, upon any Apprehension of Danger, how remote soever, every Government may put such Rules, Restraints, or Conditions, on all who serve in any Place of Trust, as they shall see cause for; but Penalties and Punishments are of another nature.
'Popery has been ever look'd on as that which we ought to apprehend and fear the most, and guard chiefly against, it being our most inveterate, most restless, and most formidable Enemy; and therefore there has been always a great difference put between Papist and Protestant Dissenters, how bad and dangerous soever they may be.
'There has been a Spirit of Moderation eminently conspicuous in the whole Progress of our Legislation, with relation to that Religion, suitable both to the natural Gentleness of this Government, and to the Charity which our Religion teaches.
(2 & 3 Edw. 6. cap. 1.) Any Clergyman that should use any other manner of Mass, wilfully standing in the same, or that should preach against the Book of Common Prayer, for the first Offence was only to forfeit one Year's Profits of any one of his spiritual Preferments, with six months Imprisonment: Here was a mild Punishment, even of a Clergyman offending; and yet that was not inflicted, unless he continued obstinate.
'By the same Act, if any of the Laity should procure or compel any to use any other Form of Worship in a Cathedral or Parish-Church; even for so public an Affront to the established Religion, he was only to be fined in 10£. or to suffer three Months Imprisonment.
'With this gentleness was our Reformation at first set up; and tho' perhaps, it may be suggested, that by this mildness Papists were so favourably used, that they had it soon in their power to lay that Work in the Dust, and to burn those who had used them so mercifully: Yet when things were happily re-established by Queen Elizabeth, tho' the Penalties were a little heightned, still the Moderation of that time was eminent.
'A Clergyman that before, for his first Offence, had, forfeited one Year's Profits, of any one Preferment, did by the Act of the Queen forfeit one Year of all his Preferments, and the Procurers or Compellers of using another Form of Worship, even in a Cathedral, were fined in an hundred Marks.
'With such gentle Methods was our Reformation at first established: And when the many Conspiracies against the Life of that Queen forced the Government to greater Severities, yet in the Statute of the twenty third of the Queen, the hearing of Mass was indeed made more Penal, one hundred Marks was set for the Fine, with a Year's Imprisonment; but with this temper, that if the Person accused did before Judgment submit and conform, he was to be discharged: this is the highest severity to which our Laws have carried the hearing of Mass, and here is an easy way provided to escape it. It need not be observed that the Penalty of this Bill goes higher, and is not easily avoided.
'A Papist Convict, as soon as he conforms himself, and receives the Sacrament, is immediately cleared; no Incapacity lies upon him: But this Act carries that matter further, to a Year's Incapacity. A Papist that shall relapse, and fall under a second Conviction, is only convicted over again, without any Aggravation of the Censure; which by this Bill is much heightned upon a second Offence: so that the Penalties of this Bill are higher than any the Law has said on Papists, for assisting at the solemnest Acts of their Religion. It is true, if a Papist shall hear Mass with five Persons more than those of his own Family, he falls under the Penalties of this Bill; but all that have been abroad, and are acquainted with the Methods of that Religion, even where it acts in a full freedom, know that the practice of solitary Masses amongst them is so common, that no Man of that Church is in danger of falling under any Penalty for having any number about him in the Acts of their Worship.
'When the first Act against Conventicles past, which is the Foundation of a great part of this Bill, the Fines set were six Months Imprisonment, to be redeemable by five Pounds, for the first Offence; a Year's Imprisonment, to be redeemable by ten Pounds, for the second Offence; and Banishment, for the third Offence.
'The Lords disliking that Severity, added a Clause for redeeming that by an hundred Pounds, and appropriated the Fine; the Severity of these Pains did not agree with the Temper of Englishmen, and the Act was not much executed. Some Years after that, a gentler Act was made, the Fines were then set at five Shillings and ten Shillings for the first and second Offence: but no Man could be fined above ten Pounds for any Offence against that Act, except the Master of the House where the Conventicle was held, who was to be fined in twenty Pounds.
'The Severity of this was intended to force the Dissenters to petition for the Toleration, that was then designed, and followed not long after; this Act was executed in Starling's Mayoralty with the greatest Severity, at the time that Madame was at Dover. Soon after, that Prosecution was slackened; but, after the attempt made for the Exclusion, these Laws were again executed for some Years, with great Severity by a Popish Management. After they had set the Church against the Dissenters, then, according to their wonted Acts, they studied to set the Dissenters as much against the Church.
'When, by such Methods, we were reduced to the last extremities, then was the late King invited to come and deliver us; and after he had secured our Religion, our Laws, and our Liberties, he, by the Act of Toleration, which he passed, quieted those Heats that had almost consumed us: Whatever some may think, he will be still reckoned amongst the greatest of our Kings; to him we owed a long continuance of a flourishing Time, even during a great War, and it is to him that we owe the great happiness of her Majesty's being now on the Throne.
'The Church has no reason to complain of the Effects of the Toleration; for as the numbers of those who divide from us do visibly abate all over the Nation, so the Heat and Fermentation which was raised by those Divisions is almost entirely laid, and we cannot but look on that as a happy Step towards the healing of our Wounds.
'But what may we not look for under the Reign of such a Queen! whose Example, whose Virtues, and Zeal give us reason to hope for a happy State of matters in the Church, if undue Severities do not again raise new flames, and set a new edge on Men's Spirits, which may blast those Hopes, and defeat the Success that we might otherwise expect under such an auspicious Reign?
'Before the Act of Toleration passed, while Conventicles were illegal and criminal Assemblies, yet even then a Man in Office, that was present at them, was only liable to a Fine often Pounds: Whereas by this Bill, he is liable to a Fine of an hundred Pounds for being present at them, though they have now an Impunity by Law: It does not seem very suitable, that the same Action shall be made ten times more Penal after such an Impunity is granted, than it was before the passing that Law, while such Assemblies were illegal.
'This is yet more extraordinary, with relation to the Churches of the foreign Protestants, that were taken care of even in the Act of Uniformity, so that these are illegal Assemblies, not only tolerated, but allowed: Now how unlimited soever the Legislature is, as to the Qualifications necessary for all that hold any Place of Trust, yet it seems contrary to all known Rules, to lay a very heavy Penalty on any Action that is allowed by Law.
'A known Maxim, with relation to the Laws that are highly penal, is, that the Words expressing the Crime, ought to be clear, and of a determinate Sense; not liable to Constructions and Stretches: Since the greatness of the Penalty may prove an inducement to make those Stretches, and to carry them far beyond what is intended. The Crime so penal by this Bill, is to be in a Meeting with five more than the Family, under the pretence of religious Worship, other than according to the Liturgy and Practice of the Church of England. Now we know indeed what the Liturgy is, but it is not so easy to tell what the Importance of the word Practice may be, or how far that may be carried; whether it is the Practice of Cathedral or Parochial Churches, and whether Practice shall govern the Liturgy, as in the not saying the second Service at the Altar, or Christning after the second Lesson? and whether all Family-Prayer, if not by the Form of the Liturgy, is not condemned? Though many Books for Family-Prayers have been much recommended, and commonly made use of.
'In the Country, few Persons of Condition are so retired, as not to have often five more than their Family within their Houses; must these be excluded from Family-Prayer, if it is not according to the Liturgy ? and may not even the Liturgy-Prayers, without Psalms and Lessons, be likewise included within these words, or at least be carried to that by vexatious Informers, and be so given by easy Juries, and partial Judges? It therefore seems ensnaring and unbecoming so mild a Government, as ours happily is, especially when it is in such hands, to lay so heavy a Penalty upon an Offence so dubiously expressed.
'But as the Penalty seems excessive, and the words are of uncertain Signification, so the Lords do not approve of the Application of the Sums to be raised by this Bill, that they should all go to the Informer. The ancient Method was, to give them to the Crown, and to leave the encouraging informers to the Crown: It was one of those Trusts that were lodged with the Sovereign; and so the Laws were to be executed severely or more remissly as the public Occasions required; but by this Bill all is given to the Informer, one hundred Pounds for the Offence, and five Pounds a Day for three Months, both which may amount to five hundred and fifty Pounds.
'For though an Oath must be made within ten Days, yet this not being to be done in open Court, the Party may not hear of it; and if he knows it to be false, he may have no regard to it, so he may let it run to the term limited by the Bill.
'This Nation has been groaning long under false swearing, that has been in every corner; all sides have had their share in it. Till God pours out another Spirit upon us, one of our chief Securities against false Witnessing, is, that such an Infamy follows it, especially when Servants swear against their Masters, that a small matter cannot tempt even a bad Man, to so base a Practice: But if so great a Sum were to be the Reward of such Villany, it is hard to tell where it would stop.
'A couple of bad Servants, dismist for ill practices, might be tempted, by Interest as well as Revenge, to lay a probable Story, and to carry it through by bold swearing; a great deal of this sort was but too much practised among us twenty Years ago; and it is to be feared, that such a Bill as this would set the same things again on foot.
'Those who acquaint themselves with the Roman Historians, see in them what a sort of People the Delatores were; the encouraging them, especially Servants against their Masters, was reckoned among the greatest Reproaches of the worst Emperors: But tho' Domitian made much use of such vermin, it is set out with great Pomp and in very lively Expressions, as the glory of Trajan's Reign, that he freed Rome from that Plague, and banished all those infamous Betrayers of their Masters. It is to be hoped, that a Reign which God delights to honour, shall have no such blemish cast on it: And that no Encouragement shall be given to false Accusations and Perjury, which the Lords apprehend might follow, if so great a Reward were offered as this Bill proposes: They think the Reward they offer is enough to encourage honest and well-minded Men to discover what they may know: And do not think fit to lay before them Temptations, that may be too strong in so corrupt an Age.
'As for this Occasional Conformity, the Lords do not go about to excuse, or to defend it; but they who have observed the Progress of these matters, and have born a large share in these Controversies, must acquaint the Commons, that it is no new Practice invented to evade the Law: It has been both the Principle and Practice of some of the most eminent among the Dissenters ever since St. Bartholomew's, in the Year 1662. It is known, that Baxter and Bates did still maintain it, and that several Books have been writ about it: And as the fiercest of the Dissenters, who intended to keep up a Wall of Partition between them and the Church, have opposed it much; so that Party of Dissenters that came nearest the Church, and of whom the greatest numbers have come over to it, were those that pleaded for it. Nor is it a certain Inference, that because a Man receives the Sacrament in the Church, he can therefore conform in every other particular; the Office of the Communion, is certainly one of the brightest and best composed of any that ever was in the Church of God: The little exceptions that lay to the Posture, were so fully cleared by the Rubric that is added, that it is indeed a wonder how any Person should except to any thing in the whole Office. But it does not necessarily follow, that therefore every Man who is satisfied with this, should be likewise satisfied with every other part of Conformity. There was a very learned and famous Man that lived at Salisbury, Mr. Tombs, who was a very zealous Conformist in all points but one, Insant-Baptism; so that the receiving the Sacrament, does not necessarily import an entire Conformity in every other particular; no more than a Man who can subscribe to the two first Articles of our Religion, that are indeed the main ones, and contain the Doctrine of the Trinity, and the Incarnation and Satisfaction of Christ, is by that concluded to assent to the rest of the thirty-nine; the Dissenters agree to the first, but refuse some of the last: This is likewise to be remembred, that, after St. Bartholomew, in 1662, Occasional Conformity was a step that carried many much farther from Occasional; it grew to a constant Conformity, if not in the Persons themselves, yet in their Children; so the Lords now see some descended from Occasional Conformists, espouse the Cause of the Church with much Zeal.
'But that is not all; the Words, left out in this Amendment, contain a Proposition, which they cannot assent to as true: For, as the Law stands, any Person to be admitted to any Office; is not obliged to be conformable or receive the Sacrament; Officers of Inheritance, Forest Officers, Noncommission Officers in the Fleet, and many others, are under no such Obligation.
'The Managers of the House of Commons themselves, seem to admit the Words too general to be maintained in strictness, and therefore they have laboured to qualify them by Construction; that is an Expedient which must be resorted to, when untrue or improper Words happen to be found in a Law already made; but when a Law is making, it has not been usual to contend for keeping in Words which are plainly liable to exception, especially in a Case where the Clause is unnecessary, and the Preamble sufficiently expresses the Design of the Law without it.
'That Law was made when the Kingdom was under a just apprehension of Danger to the Church; and the Expedient agreed upon as most likely to secure her, was, the placing all the considerable Offices in the Hands of her Members; so that the Design of the Test-Act is the same with that of this Bill.
'To encounter a Practice which is supposed may be made use of to elude the true Design of the Test-Act, the Commons have proposed by this Bill to restrain absolutely Persons in Office from going to Meetings, and the Lords agree with them so far as relates to all manner of Offices comprehended in the Test-Act, which the Lords think is the right measure to go by.
'All Offices which relate to Magistracy (as well within Corporations as without) are manifestly comprehended in the Test-Act; and therefore the Lords have wondered to hear the Managers of the House of Commons argue, that it is of consequence to secure the Magistracy of the Corporations in the hands of Church-men, or to affirm, that if this Amendment was agreed to, Dissenters may let themselves into the Government of Corporations; since it is directly otherwise.
'Part of that Act has been repealed, and there was no great regard had to it, at the time when a more effectual Security was given to the Church by the Test. The Lords go not about to weaken the Force of the Corporation-Act, but think it not reasonable to extend the Penalties of this Bill to the general and uncertain Words of that Law.
'The Managers of the Commons say, the Words of the Test-Act are as general as those of the Corporation-Act; if so, we seem to be contending about nothing; since, how general soever the Words of the Test-Act are, the Lords have agreed they shall stand in the Bill.
'The Words in the Test-Act are universally understood; no doubt remains to what Offices and Persons it extends; it is not so as to the Corporation-Act; the uncertainty of the Words in that Law, determines the Lords to think they ought not to be the Description of the Persons to whom the Bill should reach.
'They think themselves obliged to be more cautious in this matter, because the Bill now depending does not only concern those who shall for the future come into Offices, but such as are at present possessed of them.
'In Corporations there are many Offices of a private and inferior nature; some have been obtained by Purchase, some by long Services; and Men have attained to others in course; some of these are Freeholders, many of them the whose Subsistence of Families, and perhaps have been enjoyed many Years, under an obedience to all such terms as the Law now in being has prescribed. And the Lords think it hard to disturb Men in their Freeholds and Possessions by new Laws, unless the case be such, that the Security of the Government does appear to be manifestly concerned. Where that does appear, the Lords can satisfy themselves in dispensing with private Considerations (as is seen by what they have agreed to in this Bill,) but they can not go farther.
'The Practice of Occasional Conformity is not new, it is almost of the same date with the Act of Uniformity; it has been a known Dispute among the Dissenters, and vindicated in print by some of them, and practised by many of them, who had no thoughts of Offices, and has been a means of bringing several Persons entirely from Meetings. The Objection to their Practice by those of the Church of England, has been but of late.
'The Lords do not go about to justify Men who can come so far towards uniting with the Church, and yet will stop there, any more than they do to to justify any other of the points upon which the Dissenters continue their Separation.
'They are willing to make it impossible for such Men to keep in Offices, because Hypocrites would make use of such a liberty; but they are not willing to ruin Persons utterly, on account of a Practice, that many well-meaning Men have been and may be led into, and which they think tends naturally to bring them over entirely to the Church.
'Experience shewed this in the Instances of some of the most active Informers in prosecuting Dissenters on the Acts against Conventicles; who were convicted of Perjuries against many Persons, though there the Temptation was nothing comparable to what it would be, if these Penalties should stand.
'And though the Commons have yielded to the Lords Amendments, that two Witnesses shall be necessary, and that the time of Prosecution shall not be left indefinite; yet that will not be sufficient, for both those things were provided for in the Conventicle-Act.
'The word Employment is more general than any Word the Test-Act has; such Punishment ought only to be for a Crime of the highest nature; and yet going to a Meeting is no Crime, as the Law now stands, nor will it be a Crime in any Man who is not in Office, when the Bill is passed into a Law.
'The Lords agree to that part of the Penalty which answers the visible Design of the Bill, by making the going to a Conventicle to be Forfeiture of Office. To go further, to ruin Men's Estates, to make them infamous, (for what can be more infamous than such a Disability) they think is to exceed all Bounds.
'The Managers for the Commons say, there are greater Penalties in other Laws; it does not appear by any Instances which have been given. These Penalties are much heavier than in most of the Laws about Religion. But if that were true, what is to be inferred from thence, if the Crimes be not the same in the heinousness of their natures? Justice and good Policy require there should be some Proportion between the Offence and the Punishment.
'In the present Case, an innocent Man has only a fort of negative Proof to defend him from false Witnesses, who may chuse to assign such a Time and Place for the Fact, as they know the party can be least likely to defend himself.
'Whereas in the Case of the Test-Act, the Man who resolves to obey the Law, which is to subscribe the Declaration, and receive the Sacrament, has not only the Liberty to chuse his own Witnesses of his receiving the Sacrament, and Attestation of the Minister who officiates; but the whole is put upon Record: So that when a Man has complied with the Law, he is beyond all Possibility of suffering by a false Accusation.
'There seems to be no Occasion here to increase the Punishment upon a second Offence, for it does depend upon the former, as in most cases, where the Penalty is increased for the second Offence; for when the Office is gone, the Person is under no legal Restraint from going to Conventicles.
'If he obtains a new Office, he brings himself at the same time under the reach of this Law, upon a new Account; and if he offends again, he will lose that Office, besides incurring the pecuniary Penalty.
'The Proviso, which is to qualify the Incapacity, is made so very hard, that it is a new Instance of the great Severity of the Bill. A Man to set himself right again, must take more public Shame to himself, than the severest Laws against Papists require, to discharge all the Penalties and Incapacities, of a Popish Recusant convict, as appears plainly by perusing the several Acts relating to that Matter; and the Lords will always be tender of putting greater Hardships on protestant-Dissenters than Papists.
'That no Comparison ought to be made between the Penalties the Law had said upon Papists for holding of Offices of Trust, without taking the Test and receiving the Sacrament, and the Penalties to be said upon Occasional Conformity, for holding their Offices after they have been at a Conventicle.
'This Difference of Punishment, that ought to be observed between these two, is not upon the account that the Errors of the one are much greater than the Errors of the other, how true soever that is; but because the one depend upon a foreign Power, and are subject to it: So the Nation is really in danger if such Men should hold Employments, who must be looked on as public Enemies, and as Persons who receive Directions from an Authority that we are sure is ever contriving our Ruin; but no such Danger can be apprehended from Men who have no other Strength than what they have among ourselves, which we are sure can no way be compared to the Strength of the Established Church.
'As to the Occasional Conformity, it will appear no such formidable Thing, if we consider what the Sense both of the Church of England, and of the Church of Rome was, of this Matter, upon other Occasions.
'In the Beginning of Queen Elizabeth's Reign, the Reformation and the Liturgy were put on a foot, to bring over the whole Nation, that had then a Leaven of Popery, to concur in it; it had this Effect, all the Papists of England came to Church, and were Occasional Conformists: Yet the Church of England was not uneasy at this; they complained of no Danger from it. But who was sensible of it? It was the Pope, and he was in the right, as to his own Interest; for he saw what in time that Occasional Conformity would grow to, and therefore he put a Stop to it, and by a Bull condemned it. And indeed the Church of Rome has shewed by the Methods of all their Missions, that they apprehend no Danger, but great Advantage, from any Step of the Occasional Conformity of Protestants. They accept of any thing, and encourage every thing of that kind; and we have all seen, by the fatal Effects of their Practice, that they are in the right, and gain their Ends by it.
'As for the Clauses about the foreign Protestants, there is great reason to give them all just Encouragement; for as they have brought among us many new Manufactures, so they have carried them so far, that of late Years we have exported to the Value of a Million of Woollen Manufactures, more than was done in King Charles's Reign, before they came among us; and the putting them under Apprehensions or Discouragements, may be a Means to drive them to a Country where they are sure of an entire Liberty.
'The Book that goes under the Name of Mr. De Wit shews, that the Dutch reckon that the Woollen Manufactures can never have such a Settlement among us as with them, because they who must work them, cannot have so entire a Liberty of Conscience here as there: We have felt the happy Effects of the Liberty granted them in the last Reign, and it is to be hoped, that nothing will be done in this to impeach that, or to raise Apprehensions and Fears in the Minds of Men that are so useful to us, in the most important Article of our Trade.
'As to the Clause concerning Universities, we are not to consider the Danger they may be in under our present Circumstances, but what may happen in another State of things. It is not so long, since we saw what Advantages were like to be taken against those Learned Bodies, if there had been such a Law to furnish those that were troubling them without any Reason or Pretence, with the Handle that this Bill might have given them without this Clause; and therefore the Lords think they are too much indebted to those great Foundations, not to take care of them, and think themselves bound to secure them, even from remote and possible Dangers; besides that, the Vice-Chancellor and Heads of Houses, being Men often of great Dignities and Preferments, may by a severe Prosecution be ruined, unless secured by a Clause.
'As for the Clause concerning those Societies that are engaged in taking care of the Poor; the Nation, and this City in particular, has seen such good Effects of their Care and Industry, that it cannot seem reasonable to put any Discouragement upon them. How many poor Children do they take care of? They are by their means clothed and taught, and bound out to Trades; and if some missed People join their Assistance and Charity to so great a Work, shall they be hindered from it, or punished for it, if they have been so far mistaken as to be at a Conventicle? But this Clause has no relation to endowed Hospitals which are under peculiar Statutes, and to which none of these People have any Access: The Law has taken care of these, and secured them; and this Clause relates only to free and voluntary Societies, for such Charities, which the Lords do not think fit to put any Restraints upon, or to bar any from coming into them.'
'That no time could be more seasonable for this Bill, than the present; because the Church was now in no danger of Popery, or of Fanaticism: But good Laws are to be made for Posterity, and may be obtained most easily in the best Reigns.
'That the Right of Election of Members to serve in Parliament, is in those that are concerned in the Government of Corporations, and if they should by this Bill be turned out of their Employments, and consequently lose their Votes in the Elections; yet it cannot be said they lose their Birth-rights, because no Man is born a Magistrate.
'That an innocent Man is no more secure under the Test-Act, than under this Bill; the Question must be always upon his Acting or not Acting, which does not depend upon the Record; and a very violent Prosecution has been known within a few Years against an Alderman of Worcester, a constant Conformist, only upon a Nicety, and where there has been no Fault in the Party.
The Thanks of the House given to the Duke of Ormond, Lord Marlberough, and Sir George Rooke.
During this Interval the House Resolv'd Nem. Con. to give their Thanks to the Duke of Ormond, Sir George Rooke, and the Earl of Marlborough. Which was done accordingly: To the Lords Ormond and Marlborough, by a Committee appointed for that Purpose; and to Sir George Rooke from the Chair, he being in his Place. The Answer of the Duke of Ormond was to this purpose:
'That it was the greatest Honour which could be given a Subject. That as for his part, he had done nothing, but what was his Duty: That all the Troops under his Command behav'd themselves very gallantly; and he desir'd to express his utmost Thanks for the Honour the House had done him.'
'That nothing could add to the Satisfaction he took in the Queen's most gracious Service, but the obliging and favourable Sense which that House was pleased to express of them, (his Endeavours perhaps) of which Honour, no Man could be more truly sensible than himself. That, our Success was chiefly to be imputed to God's Blessing upon her Majesty's happy Conduct, and the great Bravery of her own Troops, and those of her Allies
The Speaker gives the Thanks of the House to Sir George Rooke.
'Sir George Rooke, you are now return'd to this House, after a most glorious Expedition; her Majesty began her Reign with a Declaration that her Heart was entirely English, and Heaven hath made her triumph over the Enemies of England: For this, Thanks have been returned, in a most solemn manner, to Almighty God; there remains yet a Debt of Gratitude to those who have been the Instruments of so wonderful a Victory, (the Duke of Ormond, and yourself, who had the Command of the Sea and Land-Forces.) In former times, Admirals and Generals have had Success against France and Spain alone, but this Action at Vigo hath been a Victory over them confederated together: You have not only spoiled the Enemy, but you have enrich'd your own Country; common Victories bring Terror to the Conquer'd, but you brought Destruction upon them, and additional Strength to England: France had endeavour'd to support its Ambition by the Riches of India; your Success, Sir, hath only left them the Burden of Spain, and stript them of the Assistance of it; the Wealth of Spain and Ships of France, are by this Victory brought over to our juster Cause. This is an Action so glorious in the Performance, and so extensive in its Consequence, that as all Times will preserve the Memory of it, so every day will inform us of the Benefit.
'No doubt, Sir, but in France you are written in remarkable Characters in the Black List of those who have taken French Gold; and 'tis Justice done to the Duke of Ormond, and your Merit, that you should stand recorded in the Registers of this House, as the sole Instruments of this glorious Victory; therefore the House came to the following Resolution.'
Resolved, Nemine Contradicente, That the Thanks of this House be given to the Duke of Ormond, and Sir George Rooke, for the great and signal Service performed for the Nation at Sea and Land: 'Which Thanks I now return you.'
Sir George's Answer.
'Mr. Speaker, I am now under a great Difficulty how to express myself upon this very great Occasion; I think myself very happy, that in Zeal and Duty to your Service, it hath been my good Fortune to be the Instrument of that which may deserve your Notice, and much more the Return of your Thanks. I am extremely sensible of this great Honour, and shall take all the Care I can to preserve it to my Grave, and convey it to my Posterity without Spot or Blemish, by a constant Affection and zealous Perseverance in the Queen's and your Service. Sir, No Man hath the Command of Fortune, but every Man hath Virtue at his Will; and though I may not always be successful in your Service, as upon this Expedition, yet I may presume to assure you, I shall never be the more faulty.
'I must repeat my Inability to express myself on this Occasion; but as I have a due Sense of the Honour this House hath been pleased to do me, so I shall always retain a due and grateful Memory of it: And though my Duty and Allegiance are strong Obligations upon me to do my best in the Service of my Country, yet I shall always take this as a particular Tie upon me to do Right and Justice to your Service upon all Occasions.'
Mr Colepepper's Petition.
During this Interval, likewise, Mr. Colepepper, who delivered the famous Kentish Petition, and was under Prosecution for the same, petitioned the House, that Proceedings might be stopp'd; upon which he was call'd before the House, and being ask'd, whether he was sorry for the several scandalous, and seditious Practices by him acted against the Honour and Privileges of that House, against the Peace of the Kingdom in general, and the Quiet of his own Country in particular: He reply'd, he was sorry. Upon which, a Resolution pass'd to address the Queen to stop Proceedings, according to the Prayer of the said Petition.
The Land-Tax Bill pass'd. ; Motions for resuming Grants. ; A Place-Bill mov'd for, and over-rul'd.
About the same time the Queen went to the House of Lords, and gave the Royal Assent to An Act for granting to her Majesty a Land-Tax: And the Question being put the same day in the House of Commons, whether Prince George's Servants should be capacitated to sit in Parliament, it was carry'd in the Affirmative by a great Majority. Then Sir Edward Seymour mov'd for bringing in a Bill, For Resuming all Grants made in King William's Reign; which being carried by a Majority of one hundred and eighty Voices against seventy eight, Mr. Walpole mov'd, That all the Grants made in the Reign of the late King James should be resum'd likewise, which pass'd in the Negative. Sir John Holland made a Motion for bringing in a Bill, For the more free and impartial Proceedings in Parliament, by providing that no Person whatsoever in Office or Employment should be capable of sitting in Parliament, which pass'd also in the Negative. But in Lieu of it, a Bill was brought in, and carry'd, For the more free and impartial Proceedings in Parliament, by Providing, that no Person shall be chosen a Member, but such as have a sufficient Real Estate.
The Queen's Message to the Commons.
'That her Majesty having received several Letters from the States-General, as also several Memoirs from their Ambassadors, setting forth the great Apprehensions they lie under from the extraordinary Preparations of France, &c and the Necessity of making an Augmentation of the Forces of England and Holland, as the only Means to prevent the Ruin that threaten'd them, was pleased to propose some Expedients to the States-General, which she hoped might have been of some Advantage to the common Interest, &c. But those Expedients not having produced the Effects she hoped for, and the States-General having renew'd their Applications to Her Majesty, with more Earnestness than before, to assist them, in this time of their Danger, with an Augmentation of her Forces; Her Majesty had commanded the said several Letters, &c. to be transmitted to them, that they might the better judge of the Danger which threaten'd them.
'To which was added, That Her Majesty conceived this Matter to be of great Consequence, as to acquaint them with the present State of it, that she might have their Advice upon it; not doubting but that they would take such Measures upon this Occasion, as may be for Her Majesty's Honour and Service, the Safety of her Kingdom, and the necessary Support of her Allies.,
Commons Address to the Queen.
'Most gracious Sovereign, We your Majesty's most dutiful and loyal Subjects, the Commons in Parliament assembled, do beg leave to return your Majesty our humble Thanks for your Majesty's most gracious Condescension, in communicating to your Commons the several Memorials, Transactions and Letters that have pass'd between your Majesty and the States-General, for the Augmentation of your Majesty's Forces, which are to act in Conjunction with the Forces of the States-General; by all which, your Commons are entirely convinced of your Majesty's great Tenderness for your Subjects, in not laying a greater Burthen upon them than the Necessity of Affairs does absolutely require.
'And your Commons do humbly assure your Majesty, that in case your Majesty shall think it necessary to enter into any further Negociation for encreasing the Forces, which are to act in Conjunction with the Forces of the StatesGeneral (for whose Interest and Preservation we shall always have the greatest Regard) your Commons will enable your Majesty to make good the same.
'And your Commons do further crave leave humbly to beseech your Majesty, that you will be pleased to insist upon it with the States-General, that there be an immediate Stop of all Posts, and of all Letters, Bills, and all other Correspondence, Trade and Commerce with France and Spain, which your Commons are humbly of Opinion is so absolutely necessary for carrying on the just and necessary War, wherein your Majesty is engaged; to the interrupting the Trade of your Enemies, and reducing them to the greatest Streights; that your Commons do humbly desire, that England may not be charged with the Pay of such additional Troops, but from the Day when such Stop shall be made by the States-General.'
'Gentlemen, It is with great Satisfaction that I receive this Address, which enables me to join with the States-General in augmenting our Forces, according to their Desire: I make no doubt but the Condition you mentioned will be approved, since it is absolutely necessary for the Good of the whole Alliance; and I shall this Night send Directions to my Minister in Holland to concur with the States in providing the Troops accordingly'.
Proceedings against the Lord Ranelagh.
Among the most material Transactions of this Session we must range what follow'd in the House, after the Commissioners for public Accounts had delivered in their Report: For they having made very severe Observations on the Conduct of the Earl of Ranelagh, as Pay-Master of the Army, and his Lordship's Answer not being deemed satisfactory, they first resolv'd, That his Lordship had given great and unnecessary Delays in his Proceedings before the Commissioners; and, after both Parties had been heard, Nem. con. that it appear'd to them, that the seven Commissioners had had very good Grounds for making their Observations in their Narrative or Representation said before the House; That all Money issued to the Pay-Master General of the Army, ought to be applied to the Use of the Army and Forces only, and to no other Purpose whatever. That all Privy-Seals, Orders of the Treasury and other Warrants to the Pay-Master of the Army, to apply the Money in his Hands, to other than the Use of the Army and Forces, were illegal and void. That all Privy-Seals, or Warrants to the Auditors of the Imprest to pass Accounts without proper Vouchers, or to make any Allowances, other than according to the Law and Course of the Exchequer, were illegal and void. That the Seven Commissioners had made good their Allegations, &c. And lastly, That it appeared to the House, that the Pay-Master had misapplied several Sums of the public Money.
And Lord Hallifax.
They likewise resol'd further on the said Report, That Charles Lord Hallifax, Auditor of the Receipt of the Exchequer, had neglected his Duty, and was guilty of a Breach of Trust, in not transmitting the Imprest Rolls half-yearly to the King's Remembrancer, &c. and that an Address be presented to her Majesty, that she would be pleas'd to give Directions to the Attorney-General to prosecute him for the said Offence. Which said Address being presented accordingly, the Queen said in Answer, 'I will send to the Attorney-General, and give him my Directions pursuant to this Address.'
Message from the Lords thereon.
'That the Lords have appointed a Committee to consider of the Observations in the Book of Accounts said before them by the Commissioners of Accounts, the 15th of January, and also those deliver'd the 2d Instant from the said Commissioners: That the Committee met yesterday Morning, and have proceeded upon the first Observation, and the additional Observations relating to the Auditor of the Receipt of the Exchequer. And those Commissioners being Members of this House, the Lords do desire, that this House will give leave that those Commissioners, or some of them, should attend the said Committee to-morrow, at ten of the Clock in the Forenoon.'
Report from the Lords Journals.
Feb. 5. His Grace the Duke of Somerset reported from the Lords Committees, appointed to consider of the Observations delivered into this House from the Commissioners of Accounts, That the said Commissioners had not attended the Committee; but upon Consideration of the whole Matter, the Committee had order'd him to report as followeth:
'The Committee appointed to consider of the Observations in the Book of Accounts delivered into this House the 15th Day of January last, and the 2d of this Instant February, have made some Progress in considering the said Observations; and do humbly take leave to acquaint the House, that they have examined into the first of those Observations; and also the further Observation delivered into this House the 2d Instant, relating to the transmitting the Ordinary Imprest Rolls to the Queen's Remembrancer. They have inspected several of the original Imprest-Rolls, delivered into the House by Mr. Barker, Deputy to Her Majesty's Remembrancer. They also examined divers Officers of the Exchequer and others, upon Oath; and do find, that by the ancient and uninterrupted Course of the Exchequer, two Imprest Rolls are to be made out for each Year; the one comprehending all Sums Imprest from the End of Trinity-Term to the End of Hillary-Term; the other containing all such Sums from that time to the End of Trinity-Term. Which Rolls are commonly call'd Half-Yearly Rolls, tho' improperly. They find, that by the ancient Course of the Exchequer, these Imprest Rolls being made out by the Auditor of the Receipt, are to be delivered by him to the Clerk of the Pells; whose Duty it is to examine and sign them; and this being done, the Clerk of the Pells delivers them to the Remembrancer.
This Usage was by degrees discontinued, in the Reign of King Charles the Second; and the Remembrancer, or his Agent, used to come to the Office of the Auditor of the Receipt, and take away the Imprest Rolls from thence immediately. But in the time when the Earl of Rochester was Treasurer, the ancient Usage was restored, and he did order that the Imprest Rolls should be carefully examined and signed by the Clerk of the Pells, before they should be transmitted to the Remembrancer. And accordingly, since that time, the ancient Custom has been observed, as well before as since the Act of Parliament made in the eighth and ninth Year of his late Majesty, for the better Observation of the Course anciently used in the Receipt of the Exchequer; (that is to say) the said Half-Yearly Rolls, when made out and signed by the Auditor, have been by him transmitted to the Clerk of the Pells: And when the Clerk of the Pells has examined and signed them, he or his Deputy has delivered them to the Remembrancer. And this appears by the Remembrancer's Indorsement upon the Rolls.
The Committee finds, That Charles Lord Hallifax has been Auditor of the Receipt, from the End of November, 1699; since which time, six Imprest Rolls have been transmitted to the Remembrancer, and there is a seventh Roll now under Examination of the Office of the Pells; and no other Roll can be prepared 'till after the 12th of this Instant February.
Upon the whole Matter, the Committee are humbly of Opinion, that Charles Lord Hallifax, Auditor of the Receipt of the Exchequer, hath performed the Duty of his Office in transmitting the Ordinary Imprest Rolls to the Queen's Remembrancer; according to the ancient Custom of the Exchequer, and the Direction of the Act 8th and 9th Gulielmi Tertii Regis; intitled, An Act for the better Observation of the Course anciently used in the Receipt of the Exchequer: And that he hath not been guilty of any Neglect or Breach of Trust upon that account.
Which Report being read; as also the Examinations taken upon Oath by the Committee; as also the Dates and Indorsements of the several Imprest Rolls, delivered by Mr. Barker, Deputy to the Queen's Remembrancer: It was proposed to agree with the Opinion of the Committee in this Report.
It is resolved and declared by the Lords Spiritual and Temporal in Parliament assembled, That Charles Lord Hallifax, Auditor of the Receipt of the Exchequer, hath performed the Duty of his Office, in transmitting the Ordinary Imprest Rolls to the Queen's Remembrancer, according to the ancient Customs of the Exchequer, and the Direction of the Act 8th and 9th Gulielini Tertii Regis; entitled, An Act for the better Observation of the Course anciently used in the Receipt of the Exchequer: and that he hath not been guilty of any Neglect or Breach of Trust upon that account.
It is ordered by the Lords Spiritual and Temporal in Parliament assembled, that the Proceedings of the House, and of the Committee, appointed to consider of the Observations in the Book of Accounts, delivered into this House the 15th of January last, and the 2d Day of this Instant February; and the Resolution of this House thereupon, shall be forthwith printed and published.
'Sir Joseph Tredenham reports, That they had attended the said Conference, and that the Lord Rochester managed the Conference on the part of the Lords, and acquainted them, that the Lords had desired this Conference, for the Continuance of the good Correspondence between the two Houses: And that the Lords were not satisfied with the Reasons given by this House touching the Amendments to the Bill, entitled, An additional Act for appointing and enabling Commissioners to examine, take and state the public Accounts of the Kingdom; and that they do insist on all their Amendments to the Bill: And that in answer to their Reasons given by this House against the said Amendments, the Lords gave the Reasons following, viz.
'To the first and second Reasons offered by the Commons, the Lords answer, that the Commissioners named by the Commons having already made some Progress in the stating the Accounts, the naming of some new ones can be of no Prejudice to the perfecting that Work, the nature of taking and stating Accounts being such, that new Men being joined with others, may be very capable of going on with the Remainder of that Work.
'The Lords do agree, that in the Act passed in the nineteenth of King Charles the Second, for taking Accounts, the Commissioners thereby constituted were named by the Commons; and the Lords did agree to it, both because they approved of the Number and Quality of the Persons, and because they, being not Members of the House of Commons, might always be sent for at the Pleasure of the Lords, to explain any Matters relating to those Accounts. But the Lords having now had Experience by the last Act, which constituted no Commissioners but only such as were of the House of Commons, that their Lordships cannot have those Commissioners at any time before them, to answer such Questions, or explain such Doubts, as their Lordships may have Occasion to enquire into; or even to intimate such Points as seem to have been omitted, either in the Accounts or the Observations made thereupon; is one very great Reason why the Lords have found it necessary to name such, in this Bill, as their Lordships may from time to time receive Informations from; without which, their Lordships examining into the Accounts will prove defective and dilatory.
'To the third and fourth Reasons, their Lordships reply, that they are unwilling to enter into a Dispute with the Commons, what is the proper Work of either House, in relation to the granting Supplies to the Crown, or taking or examining the Accounts thereof; because they would avoid any Controversies of that kind with the House of Commons, especially at this time, having by Experience found that such Debates have frequently been attended with ill Consequences to the Public. But upon this Occasion their Lordships conceive 'tis very plain, that since this Bill provides that the Accounts shall be laid before the Lords, it must be likewise owned, that it is the proper Work of this House to examine them; and by no means can their Lordships acquiesce in the Reason given by the House of Commons, that they being the Representatives of all the Commons, no Commoner can be named, but by them; because that would, by the same Parity of Reason, deprive their Lordships of the Power of assigning Council to any Man impeached by the House of Commons, which in Cases of Misdemeanor they have always done; and by the late Bill for regulating Trials in Cases of Treason, it was agreed by both Houses, that Council should be allowed in Cases of Treason, even upon Impeachments; which Council must have been assigned by the Lords, and out of the Commoners.
'Lastly, the House of Lords cannot allow the Disposition as well as granting of Money, by Act of Parliament, to have been solely in the House of Commons: And much less can their Lordships consent, that the Lords have not always had a Right of naming any Persons to be employed in the public Service by Act of Parliament, and assigning them such Salary for their pains, out of the Exchequer, as should be agreed on in that Act of Parliament. And for these Reasons their Lordships do insist on all their Amendments to the said Bill.'
Two free Conferences reported.
'That the Conference was begun by the Managers for the Commons, who acquainted their Lordships, that the Commons had desired this free Conference, to preserve that good Correspondence which had hitherto continued between the two Houses.
'That they had solemnly and deliberately considered their Lordships Amendments to a Bill from the Commons, entitled, An Act for appointing Commissioners to examine and state the public Accounts of the Kingdom, and the Reasons which induced their Lordships to insist on those Amendments, but had not found them sufficient to convince them; and they still disagree with the Lords in those Amendments; and insist on that Disagreement.
'That the particular Knowledge the Commons had of the Commissioners named in the Bill, recommended them to their Nomination; and the Progress those Commissioners have already made, in stating those Accounts, hath justified the Commons good Opinion of their Abilities and Integrity.
'That to add new Commissioners, must of necessity delay the perfecting this Work, and would hazard the rendring the Bill (which continues only for a Year) ineffectual; for the Commissioners proposed in their Lordships Amendments, will find themselves by their Oath, and to answer their Lordships Expectations, obliged to inform themselves, as well of what hath already undergone the Scrutiny of the present Commissioners, as in those Particulars which shall hereafter become the Subject of their Enquiry, and that such Retrospect cannot be consistent with the Dispatch the Bill requires.
'That in answer to their Lordships Argument, derived from the Quality of the Commissioners named in the Bill, it was demanded, whether their Lordships could have any Assurance, that the Commissioners they proposed will not be elected in the Vacancy of this, nor in any succeeding Parliament, wherein these Accounts may be required? Should that happen, their Lordships Amendments would not be useful to attain the End intended.
'That the Commons could not determine how far the Quality of the Commissioners named in the Act of Accounts, made in 19 Car. II prevailed with their Lordships in agreeing thereto. There was indeed no Member of the Commons of that Committee which met at Brook-House with great Reputation; but how little they effected, how soon they were dissolved, and how the Fruits of their Labours became abortive, is fresh in Memory.
'That from thenceforth the Commons, with better Success, reposed Trusts of this nature in their own Members: Of such were the Committee for disbanding the Army, constituted 31 Car. II. Such are the Commissioners in the Act whereunto this Bill relates. It might with as good Logic be argued, that their Lordships agreed to those last recited Acts, because the Commissioners therein named were then Members of the House of Commons; as that their Lordships were induced to an Agreement with the Commons in the Nomination of the Commissioners of Brook-House, because they were not of the House of Commons. But upon this Variety in the Precedents, it may be more reasonably inferred, that their Lordships have from time to time agreed to the Commissioners named by the Commons without respect to their Quality, and because the Right of such Nomination is in the Commons only.
'That the Measures by which both Houses are to govern themselves, are derived either from Precedent or Reason; their Lordships had not offered any Precedent in justification of insisting on these Amendments. If there be any Force in the Argument their Lordships derive from the Clause in this Bill, which provides, that the Accounts shall be laid before the King, and both Houses of Parliament; it extends as well to vest a Right in their Majesties to nominate such Commissioners, as in their Lordships, for it equally relates to both.
'That the Title and Design of the Bill, is to appoint Commissioners to examine, take and state the public Accounts of the Kingdom, which, during the Session of Parliament, is the proper Work of the House of Commons; and no Inference can be more natural, than that it is in the Commons only to name Commissioners for the Exercise of that Authority, which is an Essential Part of their Constitution.
'That they desired to know the End their Lordships would propose to themselves by such Enquiry, should any Misapplication of Money, or Default of Distribution, appear in these Accounts; their Lordships cannot take Cognizance thereof originally, nor otherwise even in their judicial Capacity, than at the Complaint of the Commons; should a Failure or Want of Money appear, it is not in the Lords to redress it, for the Grant of all Aids is in the Commons only.
'That such Enquiry can only be of use to the Commons to direct their future Supplies; and herein the last Commission proved useful this Session, the Commons supplying the Defects of the Fund upon the Expences in the Excise. If there be a Redundancy, the Commons only can apply it to the Charge of the ensuing Year: If there be discovered Misapplications, or undue Preferences, the Commons only can frame the Accusations, and lay them before their Lordships for Judgment.
'That the Managers added, that tho' this Bill be thought so useful at this time, as cannot be sufficiently express'd; yet nothing can be of greater Importance to the Public, than the maintaining the just and distinct Rights and Privileges, which each Estate of this Kingdom enjoys according to our Constitution: The Lords have many high Privileges to recommend their Lordships to the Favour of their Prince, and to support their Figure in the Government; but the Commons have little besides this one, of giving Money, and granting Aids. This is their undoubted and inherent Right, and therefore every thing that intrenches on that, the Commons may be allowed to be extremely jealous of.
'That the Liberty of naming Commissioners to take Account of the Public Money is a necessary Dependance of this Right, is evident, if their Lordships will consider, that when any Aids are given, the Commons only do judge of the Necessities of the Crown, which cannot otherwise be made manifest to them, than by enquiring how the Money which hath been granted, and Revenue of the Crown is expended and applied. If the several Branches of the public Revenues are rightly considered, it will be found there is some particular Use to which they were originally assigned. There are some necessary Charges incumbent on the King in the Administration of the Government, which these Supplies are to defray; there is no Fund set aside for Contingencies, no Provision made for Casual and Incident Charges, but all extraordinary Expences require an extraordinary Supply: and when the Commons do think fit to erect such a Commission, the Expence made in the Execution of it must soon or late be drawn from the Purse of the People. And since the Burden must inevitably light upon their Shoulders, they only can be Judges of the Weight which is fit to be imposed, and to assign the Quantum of the Charge, which in this Case is proportionable to the Numbers of the Commissioners: so that this doth not only relate to this undoubted Right of the Commons, but doth finally end in raising of Money itself; which being a Privilege derived to them from their Ancestors, and continued by the uninterrupted Practice of all Ages, 'tis a Right the Commons cannot depart from, but must for ever assert, support and maintain.
'For that altho' the Lords, in the Preamble of the third Reason, seem to wave the Dispute; yet having in their last Reason disallow'd the Right of the Commons, in granting, limiting, and disposing public Aids, the Commons think it of highest concern that this Affair, being the main Hinge of the Controversy, should be cleared and settled.
'That the ancient manner of giving Aids was by Indenture, to which Conditions were sometimes annexed; the Lords only gave their Consent, without making any Alteration: And this was the continued Practice, until the latter end of Henry the Fifth, and in some Instances until Henry the Seventh.
'That in the famous Record, called, the Indempnity of the Lords and Commons, settled by the King, Lords and Commons, on a most solemn Debate in 9 Hen. IV. it is declared, that all Grants and Aids are made by the Commons, and only assented to by the Lords.
'That the modern Practice is to omit the Lords out of the granting, and name them Parties only to the enacting Clause of Aids granted to the Crown; to which their Lordships have always concurred, and on Conferences departed from their Attempts of petty Alterations, in Acts relating thereunto.
'And that altho' the Account then stated was ordered by 19 Car. II. and the Act to which this Bill relates, to be brought before their Majesties and both Houses of Parliament, this was a voluntary Act, and no Concession of the Commons; for when their Lordships insisted upon it as of Right, in 31 Car. II. it was denied; and their Lordships, after several Conferences thereupon, withdrew their Amendment to that Bill.'
'That the Substance of what was delivered by the Lords was to this effect; That their Lordships are willing at all times to meet with the Commons at Conferences and free Conferences, with an equal Desire to continue a good Correspondence between both Houses; and have often condescended in some things; rather than to go on with further Debates: For tho' Conferences are the best way of reconciling any Difference between the two Houses, yet they are Marks to the World that there is such a Difference; and the Lords, even in this Case, would have condescended to depart from their Amendments, if they had not judged them to be of such Consequence, that they could not do it.
'That in the Act 31 Car. II. for Disbanding the Army, there was no Direction to give any Account to either House; and in the Act in the Year 1677. for the Building of Ships, there was no Account to be given to the House of Lords: So that these Precedents, which the Gentlemen of the House of Commons insisted upon, are not very applicable in the Matter of Debate, for in the last Act, and the Bill now depending, there is a Clause, That an Account shall be given to both Houses.
'That the Lords had experienced by the last Act, That the Enquiry their Lordships are directed to take by this Act is defective and dilatory, for want of Commissioners that can attend them; and are able to explain such things as they may have Occasion to enquire into: And it cannot be imagined, that ever they can have that Satisfaction by writing to them, which they may arrive at by personal Examination.
'That it is very true, that in the Act of 19 Car. II. for taking the public Accounts, there were no Commissioners named by the Lords; but 'tis as true those Commissioners were not Members of the House of Commons; and they had no reason to disagree in that Matter, because this Objection did not lie against them.
'That their Lordships declined all Arguments concerning the Rights of the Commons in Granting, Limiting, and Disposing public Aids, and therefore forbore to answer any Arguments of that kind; for that the Business now depending relates only to the taking Accounts, and directing such Part of the Revenue as is not appropriated to the Payment of Salaries to such Persons as are employed therein, which their Lordships take to be quite another thing.
'That the Commons urge it with great Weight, if their Lordships could shew no Precedent for doing this: But if there be any such Precedent, their Lordships did hope the Commons would allow them for Reasons; for it is not to be supposed these Precedents were made without Reason.
'That the Commons insist they are the Representative of all the Commons of England; and that the Lords can name no Commoner a Commissioner, nor appoint Money to such Persons for these Services. It appears by the Journals of the Lords, and 'tis to be supposed in those of the Commons likewise, That in the Poll-Bill, August 1660, the Lords named Commissioners for the Cinque-Ports, and expunged some in Kent and Sussex; to all which the Commons agreed: In an Act 31 Car II. for Disbanding the Forces, the Lords added Bennet Lord Sherrard, and the Commons agreed to it.
'That in an Act made 12 Car. II. for speedy Disbanding the Army, the Lords named Commissioners that were Peers, who were to be joined with Commissioners named by the Commons; and afterwards, in an Additional Act for Disbanding the Remainder of the Army, John Walker was added a Commissioner by the House of Lords, and his Salary was twenty Shillings per Diem, which last Precedent comes directly up to be a Precedent in point; only in the Amendments now offered, there are four who are to have five hundred Pounds per Annum each, and he was one who had three hundred sixty five Pounds per Annum.
'That it was insinuated by some of the Gentlemen of the House of Commons, That the End their Lordships could propose to themselves by such an Enquiry, must be either to discover what Offences have been committed in the Misapplication, or whether there be a Failure of the Money for the Ends for which it was intended; and that to neither of these their Lordships Enquiry can be of Use: For as to the Punishment, it must be by Impeachment; and if there be any want of Money, the Lords cannot come at it. This their Lordships look on as an Objection to the Clause itself, but not to their naming Commissioners, to satisfy their Lordships in relation to the Accounts.
'That there are other Uses may be made of these Accounts; the Lords may have Leisure to enquire into these Accounts, whilst the Commons are employed on other weighty Occasions; and the Lords may take notice, for there is an Account of it in the Printed Votes, licensed by the Speaker, That the Commons have not made so great a Progress in those Accounts as their Lordships have done; and should the Lords discover Miscarriages, they may order a Prosecution of them in the Exchequer, lay them before the House of Commons, or represent the Matter to the King.
'That there are some Precedents in Richard II's time, and it seems to be implied in the Precedents quoted in the Year 1677, about the Act for Building thirty Ships, That the House of Commons have not of themselves a Right to take these Accounts, for the Dispute, then, was not about the Commissioners, but the laying the Accounts before the Commons alone; for, had they Power to call for them themselves, an Act would not have been necessary; and the Precedent of the Lords receding at that time ought not to be reckoned to their Disadvantage, because from their suspending their Privileges at that time, which they did with a Protestation, and from the thirty Ships that were built thereupon, it is, that we sit here in Safety.
'In that Dispute it was acknowledged, That it was the inherent Right of the Lords to call for the Accounts; so that 'tis no extraordinary thing that the Commons have now done, for this Bill gives the Lords and Commons an equal Right to call for the Accounts: And since the Commons cannot call for these Accounts so well as by this Bill, wherein they have named Persons, under their own Jurisdiction as Members of your House, it is but reasonable they likewise should name such Commissioners as they may have Authority to call upon; for the Commons will hardly allow them Authority to send for the Members of the House of Commons.
'On the whole, since the Bill had allowed their Lordships to take the Accounts, their Lordships desire to know what Reason there could be, why they should not be allowed the proper Methods of coming at these Accounts.
'To this the Commons reply'd, That the Precedents in 1660, 31 Car II. and Additional Bill in 12 Car. II. were no Grounds for their Lordships insisting to add and appoint Commoners; because in those the Lords had the Consent of the Commoners signified to their Lordships by their Representatives in Parliament. But, the Lords have no Right to impose an Office or Burden upon any Commoner, without their own Consent; and, in the Course of the Legislature, the Lords have no Means to know, neither hath a Commoner any way to signify his Consent or Dissent, but by his Representatives in Parliament. To insist to appoint Commoners, after their Dissent is signified in the proper Parliamentary way, is to insist upon a Right of appointing Commoners, and imposing a Burden upon them without their Consents; which their Lordships never pretended to, no more than the Commons to nominate and appoint Peers in any Commissions.
'That in the Aid given in the second Year of their Majesties Reign, the Lord Dursley was inserted a Commissioner; in case the Lords had not signified his Dissent, he had been a Commissioner; and yet that would not have been a Precedent of the Commons Right of appointing a Peer to be a Commissioner, and insisting upon it. But the Lords by Amendment left him out, and the Commons agreed to the Amendment, though in a Money-Bill; conceiving they had no Right to insist upon naming a Peer without the Consent of the Peers, who only can bind their own Members: Neither can the Peers pretend to a larger Right over the Commons.'
'That their Lordships in their Reasons say, That if they may not nominate Commoners Commissioners, by Parity of Reason they may be deprived of assigning Council upon Impeachments for Misdemeanour, and in Cases of High-Treason, where Matter of Law appears.
'That the Commons conceive this is not a natural Consequence: For in Cases of Impeachment they act in their judicial Capacity; and the Law gives the Party accused a Right to have Council, and their Lordships assign Council, when the Party cannot get Council to assist him, and the Law enables their Lordships to do it. But there is no Law, which entitles them to nominate Commissioners for passing Accounts.
'That as the Lords cannot supply the Want, that being the Act of the Commons, nor punish the Misapplication till Complaint is made by the Commons; so neither can their Lordships acquaint the Commons at a Conference, that there hath been a Misapplication of the Money; because that were giving Judgment, before the Matter came judicially before them.
'And that to insist upon it at this time, is most unseasonable, when the Commons, for the Support of the Government, lay under the heavy Burden of so many Taxes; which Weight will be much encreased by being denied the Satisfaction of knowing how their Money is disposed of, and having those skreened from Justice, who misapplied the same; which must necessarily happen, by denying to agree with the Commons.
'That in answer to what was said by their Lordships, That in case of the building the thirty Ships, it was admitted their Lordships had a Right to take the Accounts; it was admitted, with this Distinction, That as to the Stating and Examining the Accounts, it belonged only to the Commons, but that the Lords claimed the Cognizance of the Accounts in their judicial Capacity, for their Information in Cases of Misdemeanour.
'That as to the Question which their Lordships ask, To what end are these Accounts to be laid before them? to which there seems some Difficulty to make an Answer; the Commons cannot but observe from thence, Their Lordships Right to demand to have those Accounts, is not very clear; for it is a strange kind of Right, for which 'tis hard to give a Reason.
'Upon Consideration whereof, it was Resolved, That this House doth adhere to their Disagreeing with the Lords to the Amendments made by the Lords to the Bill, entitled An Additional Act for appointing and enabling Commissioners to examine, take and state the public Accounts of the Kingdom: And that this House doth adhere to the Bill, as it was sent up from this House.'
Commons Address to the Queen about the public Accounts, &c.
'Most gracious Sovereign, We your Majesty's most dutiful and loyal Subjects, the Commons in Parliament assembled, (being deeply sensible, that notwithstanding the immense Sums which have been raised for the Service of the late War, the Nation still labours under a vast Debt of many Millions of Money) do think it our indispensible Duty to lay before your Majesty the unhappy Causes and Instruments, which appear to us, to have brought this heavy burden upon your People, not doubting but your Majesty will be graciously pleased, in your great Wisdom and Goodness, to give such effectual Orders, that neither any indirect Practices shall be suffered, nor any Persons entrusted with the Administration of the public Affairs, who have been the Authors of all our Miseries.
'We therefore humbly crave leave to represent to your Majesty, that during the said War, which was carried on in Defence of the Protestant Religion, and the Liberties of Europe, against the common Enemy of both, and therefore chearfully supported by the People of England; yet, even then, when the great Necessities of the Kingdom did require a more than ordinary Frugality, there appears to have been a general Mismanagement of the public Revenue, which was principally owing to some of those great Officers of the Treasury, who, being more intent on their own private Profit, than the due Execution of their public Trusts, did neither discharge the Duty of their own Places, nor take care that the sub-ordinate Officers should discharge theirs.
'And we can attribute it to no other Cause than this Remissness in the Treasury, that many Receivers in the several Counties of England and Wales, made so long and unnecessary Delays in their respective Payments into the Exchequer, of the Taxes given by Parliament, and levied on your Majesty's good Subjects, by which means they made unreasonable Advantages to themselves, whilst the Public was forced to pay great Interest and large Premiums, not only for the want of their own Money, but, as we have great reason to believe, many times for the Loan of it; and several Receivers in such intermediate Time have failed with considerable Sums in their hands, to the great Loss and Damage of the Public.
'Your dutiful Commons do farther humbly represent to your Majesty, That great Sums of Money have been borrowed, and divers Tallies with Interest struck unnecessarily upon the Assessments and other Parliamentary Aids, before the public Occasions have required them; and this Practice hath been pursued, when Votes of Credit have been obtained, upon Representations made to your Commons of very pressing Necessities for the same: whereby many Officers of the Revenue, and their Friends, have had an Opportunity to receive great Sums for Interest, which did incur on such Tallies before their Money was paid in, to the Use of the Public; for the Advantage of which Interest, we have also reason to believe, that many Accomptants (who have received from the Exchequer great Sums of Money for the Use of the Public) did industriously delay the Payment thereof to the Seamen and Soldiers, to whom it was due. And this seems to be the great Inducement, that made such Accomptants trust great Sums of the public Money in the hands of Goldsmiths and other Persons, in order to make private Advantages of it, and lend it back to the Exchequer in other Persons Names: All which tended to the great Damage of your Majesty's good Subjects, to the manifest Wrong and Discouragement of the Seamen and Soldiers, and to the great Dishonour of the English Nation.
'This evil Practice of striking Tallies with Interest, before the Money was paid in, was also attended with another very great Inconvenience to the Public, that whenever the Nation had Occasion for Ready-Money to answer the present Necessities of the Kingdom, many Persons who advanced their Money upon Loan, knowing they should have the same Advantages by Delay, as by Prompt-Payment, would not bring their Money into the Exchequer for several Months after the Tallies were struck; whereby the Government was forced, in the mean-time, to pay excessive Rates for Stores and Provisions for the Army and Navy, in regard the Merchants and Tradesmen could have no Ready-Money for their Goods, but remote Tallies upon a large Discount.
'And by these and other undue Means, a very great Part of all the public Aids were squandered away in extravagant Interest, large Premiums, and in excessive Rates for Stores and Provisions, which has been one of the great Causes that hath brought so heavy a Debt upon this Nation.
'But here we cannot, in Justice, omit to acknowledge the present good Management of the Treasury, whereby, for the Honour of your Government, and the Advantage of the whole Nation, no unnecessary Tallies with Interest are permitted to be struck, nor more Money at any time borrowed, than the Necessities of the Nation do require; and Care is taken to support the Credit of the Navy, Victualling, and other public Offices; and that Stores and Provisions are in good measure provided, with as great Advantage to the Public, as if the same were purchased with Ready-Money; which Frugality and good Management will be found to be one of the most effectual Means, to make your Majesty's Government easy at home, and to carry on a vigorous War against the Common Enemy abroad.
'And we humbly crave leave farther to represent to your Majesty, that though your Commons (who are always ready to support the Dignity of the Crown) had amply provided all those Sums, which (according to the largest Estimates laid before them) were thought necessary for the Occasions of the Civil-List, yet, over and above the said Sums, and out of the Aids given by Parliament, (which by the Law of England are appropriated, and ought to have been employed in the common Profit of the whole Realm) many large Sums of Money, during the time of such heavy Taxes upon the People, have been diverted under the Head of secret Services, and for Salaries, Bounties and Pensions to private Persons, which (if proper to be paid at all) ought to have been supplied out of the Civil-List: Nay, to so great a Degree did this Profuseness extend, that several thousand Pounds were paid out of public Aids, to purchase great Places for the late Earl of Sunderland, and the present Earl of Albemarle; so little could your Commons depend upon the Integrity of the public Officers, so little Regard was had by them to those heavy Taxes the People lay under, that nothing less could secure the public Money from Misapplications, than an express Clause of Appropriation; which though not at all necessary for the Security of the public Money in general, but only to direct the Application of it in some particular Cases, yet whenever your Commons made no such particular Appropriation, they seldom fail'd to misapply the public Money; which has been another great Cause of the heavy Debt that lies upon the Nation.
'And your Commons humbly crave leave farther to represent to your Majesty, that the ancient and established Method of accounting in your Majesty's Exchequer, hath been in Manner following: that is to say, the Auditor of the Receipt is to make out and transmit the Imprest Rolls halfyearly to your Majesty's Remembrancer, in order to the Charging and Prosecuting the Accomptants; which being communicated to the Auditors of the Imprest, they are to certify to the said Remembrancer what Accomptants have not brought in, or prosecuted their Accounts, and thereupon the Remembrancer is obliged, every issuable Term, to issue out Process against them, so that the Auditor of the Receipt is the main Wheel that sets all the rest a going; and when that great Officer is deficient in his Duty, it is not regular, nor indeed possible, for the rest to proceed, but all Process against Accomptants must be at a stand, and your Majesty, and all your loyal Subjects must extremely suffer by it. And as to the Clerk of the Pells, he is to examine the Imprest-Rolls, but the Auditor is obliged to transmit them to the Remembrancer; and when, thro' the Neglect or Corruption of the said Officers, this ancient Method and Course of the Exchequer, was not so strictly observed as it ought to have been, it was expresly provided by an Act of Parliament, so lately made as in the eighth and ninth Year of the Reign of his late Majesty King William of glorious Memory, and entitled, An Act for the better Observation of the Course anciently used in the Receipt of the Exchequer, in these Words following; that is to say, 'That the Auditor of the Receipt shall transmit the ordinary Imprest-Rolls half-yearly to the King's Remembrancer, in order to the Charging or Prosecuting of Accomptants; and shall half-yearly, (to wit) at Easter and Michaelmas, make out and transmit to the said Commissioners of the Treasury, or the Treasurer for the Time being, the Declaration of the Receipt, Issues and Remains at the Exchequer for every Half-year successively; all which Matters and Things, and all other Matters and Things belonging to the Office and Duty of the Auditor of the Receipt, shall be faithfully and carefully done and perform'd by the Auditor of the Receipt for the Time being, in such Manner as hath been anciently accustomed. And it is hereby farther provided, that the said Auditor do, as frequently as he thinks fit, but at least once in every three Months, carefully examine the Teller's Vouchers, for the Payments which he allows in his weekly Certificates.' But so it is (Most Gracious Sovereign) that notwithstanding the plain and express Words of the said Statute so lately made, Charles Lord Hallifax, the present Auditor of the Receipt, though he was himself a Member of that Parliament, yet he hath taken so little Care to discharge the Duty of his Office, for the Interest of your Majesty and the Security of the Public, that he hath not duely performed any one of the Particulars above-mentioned; and for want of examining the Tellers legal Vouchers, the said Auditor manifestly deceived your Majesty and the Public, by inserting into the weekly Certificates of the Receipts, Issues, and Remains of the Exchequer, such Sums of Money as were never actually and bona fide paid to the proper Parties, nor the Crown legally discharged thereof: And as to the Imprest-Rolls, your Commons cannot without Grief observe to your Majesty, that notwithstanding there may be six Imprest-Rolls now transmitted to the Remembrancer, yet it is well-known in the said Office, that none of the said Rolls from the eight and twentieth of June, one thousand seven hundred, exclusive, were so transmitted, till very lately after the two and twentieth of January last, and after the said Commissioners of Accounts had made their Enquiries into that Neglect by Order of your Commons; which being long after the Time they ought to have been transmitted, the said Auditor was very far from doing his Duty in this Particular; and by reason of this Neglect, no Charge could be made in the mean time upon the respective Accomptants, who have received vast Sums of the public Money, which are unaccounted for to this day; and by this means, notwithstanding the Imprest Accomptants ought annually to account within three Months after the End of each Year, yet due Process hath not, nor indeed could be issued out against them; and many Persons who have received great Sums by way of Imprest, from the Treasurer of the Navy, and Pay-Master of the Army, are skreened from Prosecution, and not being set Insuper in the Exchequer, cannot be regularly called to an Account for the Moneys by them received: And we have great reason to believe, that the Damage to the Public by this Neglect in the said Auditor and his Predecessor, may amount to several Millions of Money, since by length of time (during which the principal Accounts have been neglected) many of the Persons who received the said public Moneys, are either dead, or become insolvent; and the greater the Neglect of the former Auditor was, before the making the said Statute, and before the present Auditor came into his Office, the greater ought to have been his Care to discharge his Duty, pursuant to that Law, which he himself was present at the making of, and which he has so highly neglected for the space of three Years and upwards, ever since he came into the said Office, to the great Detriment of your Majesty, and all your loyal Subjects.
'And notwithstanding it was also provided by another Act in the fourth Year of the late King William and Queen Mary, chap. 3. that in case any Officer of the Exchequer should demand or take any Fee, Gratuity or Reward, or misapply any of the weekly Sums therein mentioned, or should not perform other things which by the said Act they are required to perform, they shall forfeit their Offices, and be incapable of any Office or Place of Trust, yet the said Auditor hath acted contrary to the said Statute, and hath received several Sums of Money to his own Use, contrary to Law and the Trust reposed in him: for all which, or any other Breaches of his Duty, as well as for those formerly laid before your Majesty, (for whose gracious Answer to our humble Address on that Occasion, we return your Majesty our most humble and hearty Thanks) we earnestly desire your Majesty will be graciously pleased to order your Attorney-General, effectually to prosecute at Law the said Auditor of the Receipt: And thus, as we have seen great and good Actions rewarded by your Majesty, we doubt not but to see all Deceits and Mismanagements duly punished; since your Commons can propose no Benefit to themselves by all their Enquiries, unless the Laws are put in due Execution, and those who have lived so long in defiance of them, come at last to feel their Weight.
'And by the Neglect of the said Auditor and his Predecessor, the Auditors of the Imprest, and the Remembrancer, and other Officers of the Exchequer, have not been able so proceed in their Duty, according to the Law and Course of the Exchequer; several of which Officers have been also negligent therein, whereby all the public Accounts of the Nation are far behind. The state whereof (as delivered in to the said Commissioners of Accounts) in the Particulars hereafter mentioned, is as followeth:
'The Earl of Ranelagh, late Paymaster of your Majesty's Forces, of one and twenty Millions and upwards, received in fourteen Year's time, hath passed no Account during all the late Reign, farther than the last of December, one thousand six hundred and ninety, nor any other Account farther than March one thousand six hundred and ninety two, which was not declared before the twentieth of June last, and even that upon Vouchers, which were not sufficient for a legal Discharge.
'The Commissioners for the Sick and Wounded have brought in no Account during all the late Reign, and none since, any farther than the one and thirtieth of December, one thousand six hundred and ninety.
'The late Treasurer of the Chamber, Sir Rowland Gwyn, the late Master of the Robes, the Earl of Albemarle, and Mr. Parkhurst, Mr. Paschall, and others, Commissioners of the Prize-Office, have delivered in no Accounts at all to the Auditors of the Imprest.
'Jacob Vanderesche, Esq; Paymaster of his late Majesty's Dutch Forces, hath received three Millions twenty five thousand seven hundred fifty three Pounds nine Shillings and six Pence; which by computation is fifty two thousand nine hundred and seven Pounds six Shillings and eight Pence Farthing, more than the Pay of those Troops could have amounted to, if they had been always compleat; no Deductions made from them, and upon an English Establishment, which all of them were not: and yet the said Vanderesche hath passed no Account at all; and, tho' often summoned, hath never appeared before the said Commissioners of the public Accounts, but stands indebted to the said Troops in one hundred and twelve thousand two hundred twenty nine Pounds nine Shillings and eight Pence; which is now demanded as an Arrear due to them, your Majesty and the Public.
'The late Treasurer of the Navy, of seventeen Millions and upward received, hath brought in several Accounts, to the last of December, one thousand six hundred and ninety eight. His Account for the Year one thousand six hundred and ninety two, was declared the third Day of July last; since which the Accounts of the three following Years only have been declared.
'The said Treasurer, by Mr. Papillion, Cashier of the Victualling Office, hath passed no Account during all the late Reign, farther than the one and thirtieth of December, one thousand six hundred and ninety six, which was not declared till the 19th of May, one thousand seven hundred and one; and on the Foot of that Account he remained indebted five hundred thirty four thousand twenty seven Pounds three Shillings and three Pence.
'And many other Accomptants, whom it would be too tedious to enumerate to your Majesty, are either far behind in their Accounts, or have never brought in any Accounts at all; insomuch that altho' forty five Millions five hundred sixty eight thousand seven hundred twenty five Pounds nineteen Shillings and two Pence Farthing (a Sum never known to be raised in very many Reigns before) hath been levied on your Majesty's good Subjects, and issued out of the Exchequer to the several Paymasters and Treasurers of the Navy, Army and Ordnance, for the Service of the late War, between the fifth of November, one thousand six hundred and eighty eight, and the eighth of March last past, (besides the several Millions of Money raised for other public Uses) yet the far greatest part thereof hath not been accounted for to this day, to the great Dissatisfaction of your People, and the great Dishonour of the Nation.
'By these Neglects and Delays, all Accounts have been rendred so intricate and confused, that the several Accomptants have had great Opportunities of defrauding the Public, the Discovery of their Frauds has been made very difficult, and a hindrance thereby is given to the passing all succeeding Accounts.
'Hence it is that so many public Officers and Accomptants have raised great Estates to themselves, at the Expence of the Public, when it is evident they have had no lawful Means to attain them; and several Persons, whose Duty it was to hinder such Exorbitancies, measuring their Requests rather by their own Avarice than their Merit, have obtained for themselves Grants to such a Value, as in foregoing Reigns have been esteemed large Supplies towards great and public Services; which has been another great Cause of the Debt that lies upon the Nation.
'And your Commons do farther humbly represent to your Majesty, that notwithstanding such vast Sums issued out to the said late Paymaster and Treasurer, whereby your Commons had amply provided for all those Services, and for the effectual carrying on the War against France; yet they find, to their great sorrow, that not only the Officers, but the Seamen and Soldiers, who on all Occasions have behaved themselves bravely in defence of their Country, have not been paid during the late War, and that great Sums are still owing to many of them: whereas if the public Money had been duly applied to the Uses for which it was given by your Commons, instead of those many Hardships that were endured by your Majesty's most faithful Subjects and their Families, who served so well in your Fleets and Armies, they would have had Justice done them during the last War, and been encouraged more chearfully to engage themselves in this.
'But, instead of Justice, we have too much Reason to believe, that those very Persons, who by long and unnecessary Delays have compelled them to accept of remote Tallies and Paper-Securities, have (amongst others) taken Advantage of their Necessities, and employing Brokers to buy up those Tallies and Securities at a low Rate, have afterwards paid themselves with that ready Money which they should at first have distributed to the Seamen and Soldiers.
'And such was the mysterious Trade upon Tallies and Exchequer-Bills, which was formerly carried on by common Brokers, betwixt the Exchange and the Exchequer, and which did, as it were, prey upon the very Vitals of the Government; and so great gain was made thereby, at the Expence of the Public, that vast Sums of Money were employed in it, which did very much lessen the true trading Stock of the Nation, whereby both the Exportation of the woollen and other Manufactures of this Kingdom, and the Importation of Bullion, and other Commodities of foreign Countries, to be manufactured in England, have been very much obstructed, to the great Prejudice of your Majesty's Customs, the loss of the Balance of Trade, and the great Impoverishment of the whole Kingdom.
'And tho' the late Paymaster and Treasurer, by long and unnecessary Delays in settling their Accounts, have in great measure prevented any Discovery of their undue Proceedings, and have endeavoured to protect themselves from a just and fair Account to the Nation, by Privy-Seals and other unjustifiable Warrants, surreptitiously obtained for passing their Accounts, without proper Vouchers, contrary to the Law and Course of the Exchequer; yet your Commons, by the great Fidelity and Diligence of the same Commissioners for the taking, examining and stating the public Accounts of the Kingdom, have not only discovered the several Mismanagements above-mentioned, but also some of the unwarrantable Proceedings used by the said late Paymaster of your Majesty's Forces, by whom a considerable part of the Money which came to his hands, and which ought not to have been applied to any other purpose than the Payment of the Army, hath been diverted to his own and to other private Uses; for all which, upon a full and fair hearing in his own Defence, he hath justly incurred the Censure of this House, and been declared guilty of a high Crime and Misdemeanor.
'And we find, to our unspeakable Grief, whilst his late Majesty was engaged in the Prosecution of the glorious Design of preserving the Protestant Religion, and the Liberties of Europe, and was thereby necessitated to commit the Care of the public Affairs in this Kingdom to particular Ministers, (whereof none were more particularly entrusted in the chief Administration than those who have been the great Causes of the unhappy differences among us:) This general Mismanagement of the public Affairs did actually spread itself over the whole Kingdom, and seems to be owing (amongst other things) to a Disposition of Offices and Places, where Men were rather chosen for their Inclinations to serve a Party, than for their Qualifications to serve the Public.
'And these Men being conscious to themselves of the many Frauds and Offences committed against the Public, have no other hopes to shelter themselves from Justice, than by taking away the Reputation of those who desire to do Right to their Country, by detecting their Iniquities; and being united in Guilt and Interest, they endeavour to amuse and impose upon those, whose Posterity, we have too much Reason to fear, will groan under the sad Effects of the wickedness of the one, and the too great credulity of the other.
'These, dread Sovereign, are divers of the Causes of those Mischiefs your Kingdom suffereth by the late Mismanagements, and which your loyal Commons could not omit thus humbly to represent in all dutiful Manner, without being unfaithful to your Majesty, and to the Country by whom they are entrusted.
'From hence your Majesty will be graciously pleased to take notice, that the great Debt which lies upon the Nation, and all the Arrears which are owing to your Majesty's Forces, do not arise so much from the Deficiencies of the Funds, as for want of Care in the Management, and Fidelity in the Application of them.
'But since it hath pleased Almighty God to place your Sacred Majesty on the Royal Throne of your Ancestors, we have so entire a Confidence in your Majesty's Goodness, that we can no longer fear to see the public Revenue mismanaged or misapplied, the Accounts neglected, or the Forces unpaid; and we chearfully depend on your Majesty's Wisdom, that all our Grievances, by your Grace and Favour, will in due time be redressed and removed, by punishing those who have been the Causes of them, and by entrusting none in the Administration of the public Affairs, who, for their own private Advantage, have manifestly contributed to the Calamity of their Country.
'Thus we humbly crave leave, upon this Occasion, to repeat our Assurances to your Majesty, that we will always stand by and assist your Majesty to the utmost of our power, in preserving the established Government both in Church and State, maintaining the ancient Glory of the English Nation, and defending the Liberties of Europe against the boundless Ambition of France.'
'Gentlemen, the Repetition of these Assurances you give me in this Address, of your Zeal for my Service, and the Good of the Kingdom, is very acceptable to me. I shall consider the several particulars of it, and always have great regard to the Representations of the House of Commons, and the true Interest of England.'
Mr. Bertie, a Member, complain'd of by the Lords.
'Mr. Speaker, we are commanded by the Lords to acquaint this House, that whereas a scandalous Paper reflecting on the Lord Chancellor and his Proceedings in the Court of Chancery, hath been complained of and read in the House of Lords, of which their Lordships are informed upon Oath, that Mr. Robert Bertie, a Member of this House, can give some Account; their Lordships do desire, that for that purpose this House will give leave for him to appear before the Lords.'
'The Commons having received a Message from your Lordships, wherein your Lordships did acquaint them, that a Scandalous Paper reflecting on the Lord Chancellor and his Proceedings in the Court of Chancery, has been complained of and read in the House of Lords, of which your Lordships are informed upon Oath, that Mr. Robert Bertie, a Member of the House of Commons, can give some Account; Your Lordships do desire that for that purpose, the Commons would give leave for him to appear before your Lordships.
'The Commons have commanded us to acquaint your Lordships, that they not being informed by the said Message, of the particular Matters contained in the said Paper, or upon what Grounds your Lordships ask to have their Member appear before you, they desire your Lordships to let them know what the nature of that Account is, which is expected from their Member.'
Ordered, That the said Committee do draw up what is proper to be offered to the Lords, at a Conference upon the Subject-Matter of the Message from the Lords the 4th Instant, relating to the Commissioners of Accounts, and the Lords Proceedings in relation to the Observations of the said Commissioners.
Feb. 16. Colonel Granville reported from the Committee to whom it was referred to draw up what is proper to be offered to the Lords at a Conference, upon the Subject-Matter of the Message from the Lords the 4th Instant, relating to the Commissioners of Accounts, and the Lords Proceedings in relation to the Observations of the said Commissioners; that the Committee had drawn up the same accordingly, which they had directed him to report to the House, which he read in his Place, and afterwards deliver'd in at the Clerk's Table, where the same was read, and agreed unto by the House, and is as followeth:
'The Commons cannot comply with your Lordships Desires contained in your Message of the 4th Instant, because the Commons are still of the same Opinion as was delivered to your Lordships in February 1691, at a Free Conference upon the Subject Matter of the Amendments made by the Lords to the Additional Bill for the appointing and enabling Commissioners to examine, take, and state the public Accounts of the Kingdom; when they desired to know the end your Lordships would propose to your selves, by an Enquiry into the public Accounts: For should any Misapplication of Money, or Default of Distribution appear in the Accounts, your Lordships cannot take Cognizance thereof originally; or otherwise, even in your Judicial Capacity, than at the Complaint of the Commons. And should a Failure or Want of Money appear, it is not in your Lordships power to redress it; for the Grant of all Aids is in the Commons only. Or if there be any Surplusage, the Commons only can apply it to the Charge of the ensuing Year.
'But should the Commons give leave to the Commissioners to attend your Lordships, no Information they can give against any Person whatsoever, can entitle your Lordships either to acquit or condemn. Yet since this Message, the Commons find in your Lordships Journals the following Resolution: viz. 'That it is Resolved and declared by the Lords Spiritual and Temporal in Parliament assembled, That Charles Lord Halifax, Auditor of the Receipt of the Exchequer, hath performed the Duty of his Office in transmitting the ordinary Imprest-Rolls to the Queen's Remembrancer, according to the ancient Custom of the Exchequer, and the Direction of the Act 8 and 9 Guliel. Tertii Regis, entitled, An Act for the better Observation of the Course anciently used in the Receipt of the Exchequer: And that he hath not been guilty of any Neglect or Breach of Trust upon that Account.
'Which looks to the Commons as if your Lordships pretended to give a Judgment of Acquittal, without any Accusation brought before your Lordships, and consequently without any Trial. And that which makes your Lordships Proceedings yet more irregular, it tends to prejudging a Cause which might regularly have come before you, either originally by Impeachment, or by Writ of Error from the Courts below. And therefore the Commons can see no use of this Resolution, unless it be either to intimidate the Judges, or prepossess a Jury.
'But if your Lordships could have judged in this matter, it does not appear by your Lordships Journals, that you have had under Examination the respective Times of transmitting the several Imprest-Rolls to the Queen's Remembrancer; without which, it is impossible to know whether the Auditor of the Receipt has done his Duty according to the Act of Parliament.'
'Feb. 18. It is resolved and declared by the Lords Spiritual and Temporal in Parliament assembled, That the Lords have an undoubted Right, (which they can never suffer to be contested) to take Cognizance originally of all Public Accounts, and to enquire into any Misapplication or Default in the Distribution of public Moneys, or into any other Mismanagements whatsoever.
'It is resolved and declared by the Lords Spiritual and Temporal in Parliament assembled, That the Lords in their Enquiry into the Examination of the Observations of the Commissioners of Accounts, in relation to Charles Lord Hallifax, and in their Resolutions thereupon, have proceeded according to the Rules of Justice, and the Evidence that was before them.
'It is resolved and declared by the Lords Spiritual and Temporal in Parliament assembled, That the Commons in their Reasons delivered at the last Conference, have used several Expressions and Arguments highly reflecting and altogether Unparliamentary, tending to destroy all good Correspondence between the two Houses, and to the Subversion of the Constitution.'
'That the Attempt the Lords have made to acquit Charles Lord Hallifax, Auditor of the Receipt of Exchequer, is Unparliamentary, and not warranted by any Precedent: And the Resolution thereupon is plainly contrary to what appears on the Records themselves.
'That the Conference desired by the Commons, was in order to preserve a good Correspondence between both Houses, by offering Reasons to prevent the Lords from proceeding in a Case which they had no Precedent to warrant; and the Commons expressing the Consequences they apprehended might follow from that Resolution, was neither reflecting nor unparliamentary, or tending to destroy the good Correspondence between the two Houses, and much less to the Subversion of the Constitution.
'That the Lords delivering at a Conference their Resolutions instead of Reasons, in answer to the Reasons of the Commons, is not agreeable to the ancient Rules and Methods of Parliament, observed in Conferences between' the two Houses.
'The Managers acquainted their Lordships, that the Commons had desired this free Conference, in order to maintain a good Correspondence between the two Houses. And that, upon consideration of the Reasons offered by the Commons at the first Conference, and their Lordships Answer delivered at the last, they took the Points in difference to be, First, that no Cognizance the Lords could take of the Public Accounts, could enable them to supply any Deficiency, or apply any Surplusage of the public Money, in case any should be found. And then your Managers went on to open the rest of the Particulars which they had in direction from the House to insist on, which they did in the same manner as they appear by your Journal; but added, when they acquainted their Lordships, that the expressing the Consequences which they apprehended might follow from their Resolution, that it was not a Charge upon their Lordships, that they intended that Consequence; but they would have been very glad their Lordships would have been pleased to have let them know what use was to be made of it, or what they intended by it: And concluded, that, if their Lordships did controvert any of those Points, your Managers were ready to maintain them.
'The Lords made no answer to any of those Particulars, save to the matter of the Resolution relating to the Lord Halifax;-upon which their Lordships did acknowledge, that they were no Court of Enquiry, to form any Accusation: That their Proceedings in relation to that Lord, was no Trial; nor was their Resolution any Judgment or Acquittal; but that he might still be prosecuted as before: But that which gave occasion to that Proceeding, was the Resolution of the House of Commons, which they found in the printed Votes, reflecting upon a Member of their House; and thereupon they thought fit to give their Opinion, which they did in their legislative Capacity.
'To which the Managers replied, that their Lordships having, in their Resolutions, declared, that they had proceeded according to the Rules of Justice, and the Evidence that was before them; the Commons could put no other Interpretation upon it, than that it was intended as a Judgment: And no Judgment could be made, where there was no Accusation; and if it was not a Judgment, they could not imagine what it did tend to.
'As to their Lordships delivering their Opinion; the Managers observed, it was against the Rule of any Court, that any Judge whatsoever, should deliver an Opinion in a Cause that might come before him; and this Matter might hereafter come judicially before their Lordships.
'And the Managers observed the great difference between the Resolution of the Commons, and that of the Lords. The Vote of the House of Commons was but in order to a Prosecution, which they can never Vote, without declaring the Crime; and they can never come to be Judges of it. The House of Commons is the Grand Inquest of the Nation; and every Grand Jury that finds Billa Vera upon an Indictment, does by that declare the Man guilty. But the Lords have a Judicial Capacity; and their Resolution before an Accusation brought, is prejudging the Cause that may come regularly before them. And some of the Managers in speaking to these Points, were frequently interrupted by their Lordships.
'As to the Observation the Commons made, that the Lords had not examined the respective Times of transmitting the Imprest-Rolls to the Queen's Remembrancer; your Managers said, that, as their Lordships Resolution was no Judgment, so this Conference was no Tryal. But to shew the Mistake of their Lordships Resolution, they observed the Dates upon the several Imprest-Rolls that had been transmitted to the Remembrancer; that they apprehended there were still two wanting. That the three last that were transmitted, came not to the Remembrancer till January last, the two first on the 23d, the last on the 27th. The first of these three Imprest-Rolls was Money imprest to the 21st of February, 1700. and said to be in the first Year of the Reign of Queen Anne; which shewed that that Roll was so far from being examined or transmitted in time, that it was not made up till since her Majesty came to the Crown.
'That as the Custom formerly has been, to set down the Time of the Examination of those Rolls; since Mr. Charles Montagu came in to be Auditor, he set down the Month, but not the Day: And since the Lord Hallifax was Auditor, he had set down neither Month nor Day. And by his Example, on the three last Imprest-Rolls the Clerk of the Polls had put down no time at all.
'To which a noble Lord in his own Defence replied, That the Lords Resolution was well founded, since they had the Rolls themselves before them, and Proof upon Oath; that by the Words of the Act, the Auditor was to transmit the Imprest-Rolls to the Remembrancer Half-Yearly, according to the usual Course of the Exchequer; which is eight Months, and four Months; that it was not his Duty to transmit them immediately to the Remembrancer; because he was to send them to the Clerk of the Pells, who is to examine and sign them. And it cannot be imagined, the Auditor should be tied to a certain Time, to transmit the Rolls to the Remembrancer, because they must first go through another hand; and he never took it, there was any Occasion to put down the Time he examined them, for that would appear from the Time of the Delivery, and Date of the Roll.
'That there was one examined by the Clerk of the Pells, the 4th of July, and not delivered till the 23d of January; which he did not take to be the Auditor's Fault, but took it to be the Duty of the Clerk of the Pells to deliver them. That every body knew the great trouble had been given in his as well as other Offices, by the Commissioners of Accounts. That no public Loss had happened by not transmitting these Rolls; no Process having been issued forth for many Years upon them.
'To this your Managers answered, That tho' Half-Yearly should be taken for eight Months, and Four Months; yet by that they must be transmitted twice a Year; and that he had fail'd in his Duty in that respect.
'To construe the ancient Course of the Exchequer, in the Act of Parliament, to be meant that the Clerk of the Pells should transmit the Rolls; is a direct Contradiction to the Act, that says the Auditor shall do it. And the ancient Course of the Exchequer not having been observed, was the Occasion of making that Law; and that they thought Laws were made to be observed. That indeed no Process could issue, till the Rolls were transmitted; and possibly that might be the Ground the Accounts have been so long unpassed, to the prejudice of the Public. That his Lordship's Apprehension there was no Loss to the Public, by not transmitting the Rolls, might probably be the Reason of his Lordship's neglecting his Duty.'
The Royal Assent given to several Acts.
While these Disputes between the two Houses were in agitation, her Majesty being desirous to have an end put to their Sitting, ordered Mr. Secretary Hedges to acquaint the Commons, That she desired they would give all possible Diligence to the Business depending, her Majesty finding it necessary for the public Affairs, to put an end to that Session: Upon which they resolved on an Address to her Majesty, humbly to lay before her, That they had already dispatch'd all the necessary Business before them. The concluding Day at length came, (Feb. 27.) when her Majesty went to the House of Lords, and sending for the Commons, was pleased to give her Royal Assent to the following public Bills, viz. An Act for granting to her Majesty several Subsidies for carrying on the War against France and Spain: An Act for granting an Aid to her Majesty, by Sale of several Annuities at the Exchequer, for carrying on the War against France and Spain: An Act to enable her Majesty to settle a Revenue for supporting the Dignity of his Royal Highness Prince George Hereditary of Denmark, in case he shall survive her Majesty: An Act for continuing the Duties upon Coals, Culm and Cinders: An Act for granting a Supply to her Majesty, by several Duties imposed upon Malt, Mum, Cyder and Perry: An Act for preventing Frauds in her Majesty's Duties upon Stampt Vellum, Parchment and Paper: An Act for Advancing the Sale of the Forfeited Estates in Ireland; and for Vesting such as remain unsold by the present Trustees in her Majesty, her Heirs and Successors, for such Uses as the same were before Vested in the said Trustees; and for the more effectual Selling and Setting the said Estates to Protestants, and for Explaining the several Acts relating to the Lord Bophin and Sir Redmond Everard: An Act for the Finishing and Adorning the Cathedral Church of St. Paul's, London: An Act for Explanation and making Effectual a late Statute cencerning the Haven and Piers of the Borough of Great Yarmouth, and for Confirming the Rights and Privileges of the said Borough: An Act for making the River Cham, aliàs Grant, in the County of Combridge, more Navigable from Hythe-Ferry to the Queen's-Mill in the University and Town of Cambridge: An Act for explaining of a Clause in an Act, made in the Seventh Year of his late Majesty's Reign, relating to Borelaps, and to take off the Additional Subsidy upon Irish Linen: An Act for the better preventing Escapes out of the Queen's-Bench and Fleet Prisons: An Act for punishing of Accessaries to Felonies, and Receivers of stolen Goods, and to prevent the wilful Burning and Destroying of Ships: An Act for the better Repairing and Amending the High-ways from the North End of Thornwood Common to Woodford, in the County of Essex: An Act for continuing former Acts for exporting Leather, and for Ease of Jurors, and for reviving and making more effectual an Act relating to Vagrants: An Act for encouraging the Consumption of Malted Corn, and for the better preventing the Running of French and foreign Brandy: An Act for Taking, Examining and Stating the Public Accounts of the Kingdom: An Act for enlarging the Time for taking the Oath of Abjuration, and also for Recapacitating and Indemnifying such Persons as have not taken the same by a Time limited, and shall take the same by a Time to be appointed, and for the farther Security of her Majesty's Person, and the Succession of the Crown in the Protestant Line, and for extinguishing the Hopes of the Pretended Prince of Wales, and all other Pretenders, and their Open and Secret Abettors: An Act for punishing Officers and Soldiers who shall mutiny and desert her Majesty's Service in England and Ireland, and for punishing False Musters, and for better Payment of Quarters in England: An Act for the more effectual preventing the Abuses and Frauds of Persons employ'd in the Working up the Woollen, Linen, Fustian, Cotton, and Iron-Manufactures of this Kingdom: An Act for raising the Militia of this Kingdom for the Year one thousand seven hundred and three, notwithstanding the Month's Pay formerly advanced be not repaid: An Act for Reviving and Continuing the late Acts, for appointing Commissioners to Take, Examine and Determine the Debts due to the Army, the Navy, and for Transport-Service; and also an Account of the Prizes taken during the late War: An Act to oblige Edward Whitaker to account for such Sums of Public Money as have been received by him. And to thirty-one private Bills. Which done, her Majesty was graciously pleased to deliver herself to both Houses, in the following Expressions:
'I Return you My hearty Thanks for the great Dispatch you have given to the Public Affairs in this Session, which is an Advantage extremely material at all Times, and I hope we shall find the Fruits of it this Year in the Forwardness of our Preparations.
'I am to thank you, Gentlemen of the House of Commons, in particular, for the Supplies with which you enable Me to carry on the War; it shall be my Care to have them strictly applied to the Uses, for which you have designed them, and to the best Advantage for the Public Service. You have reposed great Confidence in Me by allowing so unusual a Latitude, as you have in the Clause of Appropriation; I shall improve all Opportunities in the Use of it, for the Honour and true Interest of the Nation.
'I desire and expect from you, That you make it your Business in your several Countries to continue and preserve the Quiet and Satisfaction of my Subjects: I hope such of them as have the Misfortune to dissent from the Church of England, will rest secure and satisfied in the Act of Toleration, which I am resolved to maintain: And that all those who have the Happiness and Advantage to be of the Church of England will consider, That I have had my Education in it, and that I have been willing to run great Hazards for its Preservation; and therefore they may be very sure, I shall always make it my own particular Care to encourage and maintain this Church as by Law established, and every the least Member of it, in all their just Rights and Privileges; and upon all Occasions of Promotions to any Ecclesiastical Dignity, I shall have a very just Regard to such, as are eminent and remarkable for their Piety, Learning and constant Zeal for the Church; that by this, and all other Methods which shall be thought proper, I may transmit it securely settled to Posterity.
'I think it might have been for the Public Service to have had some further Laws for restraining the great Licence, which is assumed, of Publishing and Spreading scandalous Pamphlets and Libels; but as far as the present Laws will extend, I hope you will all do your Duty in your respective Stations to prevent and punish such pernicious Practices.
'I must not conclude without acquainting you, I have given Directions, That my Part of all the Prizes, which have been or shall be taken during this War, be applied entirely to the Public Service; and I hope my own Revenue will not fall so short, but that I may be able, as I desire, to contribute yet farther to the Ease of my People.'