Grey's Debates of the House of Commons: Volume 10. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Thursday, December 3.
[On the Accounts and Observations delivered by the Commissioners of Accounts.]
Sir Thomas Clarges.] The Lords have ordered the Commissioners of Accounts to send them their Accounts under their Hands and Seals. I would know, whether they should go in person to the Lords, or are the Commissioners to send their Secretary with them?
Mr Thomas Howard.] I heard my name read in this Book of Accounts, for 50 and 100l. to Mr Kingsmell and myself: Both have had Pensions from King Charles paid all this while, and in King James's time; and application has been made to this King, who made some objections to persons names; but it is in my name, and I do receive it. I am sorry it has gone so far. I owe all to the Protection of the Government, but nothing to the Bounty of it.
Sir John Thompson.] I stand amazed that, in the best times and Governments, things should be in such darkness. I hope not to live to that day to see the House of Commons one of the Grievances of the Nation. When we see Grievances, I hope, if this House cannot take them away, it will not establish them. I believe we are under the best of Kings, but never was so much goodness so abused. The Accounts are amazing things. We were told last Session, "CountryGentlemen understood not Accounts," and now, it seems, the Commissioners of the Treasury do not. If they understand not Secret-Service, then they are not fit for their Places. 'Tis our misfortune, the person (fn. 1) is dead that should give you Account. I would know, whether the Secretary, or the Lords, understand your Accounts? When they have directions from the King —So much given to Members—I am sorry money goes so little for merit as in former Ages—Captains of Ships put in for money—Old Methods will bring in new Judgments. I am afraid some men have taken up old vices, which others have left. I would have this House begin with themselves. I do declare, I never had one penny from the King, nor ever will have.
Sir John Lowther.] As to that part of the discourse of the Gentleman that spoke last, I agree that I am not fit for my place in the Treasury. I shall be much easier out of it, and I hope I shall leave it. I remember an accident of that Gentleman, at an Accusation last Session for drinking King James's health (was ready to faint away)—'Tis strange now to make Reflections of being gagged by Offices. As for the Accounts, I dare be bold to say, some things are mistaken, and some of importance omitted, and nothing in them, but was transmitted last Session. You have an Account of eighteen Millions, to raise a dust to blind you. All the Aids amount not to eleven Millions, not much above ten. If you reckon the Lawyers, and the money come out of the Country, that is a double Reekoning; but to say eighteen Millions, when in reality, not eleven is not clear. Not having yet had the Copy of the Accounts, I cannot say much. As for King James's debt, upon the Revolution of the Government, the Receivers did very wisely to pay themselves. The next thing objected to is, in the Accounts of Tallies struck, before money came in. 'Twas for no more than 200,000l. borrowed of the City at a time, and that at the beginning of the year, when Sea and Land are at the greatest charges. People will not go on, if neither money nor credit. Some services press more than others, as Navy-Stores, wear and tear. If you strike not Tallies of Credit before-hand, 'twill cost at the latter end of the year 2 or 300,000l. It had been worth the consideration of the Commissioners, to have consulted the several Offices of the Ordnance. I did hope this as well worthy of observation as the rest. For Secret Service, in the beginning of the Reign, there was a great deal—Though remote from the Heads, you will find for the future much less, which now are put upon the proper distribution. As for Money to Members, you see all before you, and is there any thing like corrupting of Votes? I believe, if all that Sum were tendered to some persons, they would not do so base a thing; and if I would reflect upon the Government, I should say it is a great fault in allowing so little Money for Secret Service. Cromwell gave more at a time for Secret Service, in the Court of France, than all this comes to. For the Plate of Ambassadors to be returned, &c. there is now a Tryal depending with Lord Castlemaine, and all diligence possible used in it. As to Lord Griffin, in all Ages, and at all times, Accounts have passed by Privy-Seal: And for the good of the Subject it should be so. Shall Accounts be lost, and not have a discharge by Privy-Seal? But if it be to the Prejudice of the Crown, or the Subject, then 'tis a failure. For Ireland, the Musters were taken in Winter, when the Army was at the weakest, and the irregular time of the Musters was to the disadvantage of the Army, not of the Nation. Thus things have occurred to me, as I heard the Observations read; but there are some things that I wonder have escaped their observation, when Accounts have been sent three or four times back, and not perfected; and this is one of the crying shames of the Government. The next thing is, how your Money is spent in the Oeconomy of the Navy? The King took his own Dividend in the East India Company 7000l. to pay them, nay the very Crown Jewels, if I may say so. I should be glad any man abler than myself may be employed in the Treasury.
Sir John Thompson.] I confess I am not so fit for employment as that Gentleman; but should have been faithful, as I believe of him. I am not so angry as he, but, I observe, touch a place that is fore, and there will be some extraordinary motion. I cannot turn my words like a Courtier. I wonder that Gentleman should go so far back as the last Session, when the House was satisfied with me. I was forced by King James to give 200l. for my Quietus for my Patent of Barrister; so that I had no such intimacy with the Government then. I never did accept of Bribes for my Vote here, nor ever was offered any. I did then clear myself, and I could wish that Gentlemen would do so too.
Sir Thomas Clarges.] Lowther has frankly arraigned the Commissioners, and I did expect you would have called him to the Bar to have answered his Accusation. He tells you, "The Commissioners have omitted several material things;" but the Commissioners could not proceed farther, not having the particular Accounts of the Navy, Army, Ireland, or the Ordnance, before them. The Commissioners did think fit to allow all the extraordinary charges upon Revolutions. My Memory is not so good as to take all the Heads, as he has done; but what he says is an Accusation. We cannot be wiser than God has made us, nor, I believe, that Gentleman neither. Pray read the Observations.
Sir Robert Rich.] I thought, by Lowther's first Speech, he had been a good Accomptant, and he seems to be none at all, when he confesses he never read the Accounts. If the manner of the Account displeases him, we should have been infinitely obliged to him for his Company, if his weighty affairs would have permitted him. But one expression is strange; to arraign the Commissioners of casting a mist before the Eyes of the House;—'twas next to something else. He said it in that soft Language before; he durst not say otherwise here. (Mr Hampden took him down to Order, but proceeded not.)—I will not repeat the expression again, but nothing can be harder expressed. To the Observations, he said, "There might have been more Observations." I could have wished there had been occasion for none.
Sir John Lowther.] I know not that it is a reflection for an omission to be taken notice of. I have had my share as hardly on that as any man. If a man's honour must not be vindicated here, I must take occasion to do it in another place.
Sir Christopher Musgrave.] I would know why these Accounts were not brought to the Commissioners in due time? The last Session, Provisions for Londonderry, and Ships, lay here, ready laden, after it was relieved.
Sir Thomas Clarges.] We sent out above three hundred Precepts the last time; the last time given was a day in June, but we had none of those Accounts, though sent Article by Article. We did desire, that the Accomptants in Ireland should make Oath there, and answer the Objections! We could not have those Accounts brought us in any time.
Sir Stephen Fox.] I only desire to appeal to the Commissioners, whether I did not appear according to their Summons? They gave me liberty to state my Accounts in two months; but since, they could not take any more Accounts till they made their Report here.
Sir Thomas Clarges.] If they did not obey our Orders, we had no manner of Coërtion, as the Commissioners of Brook-House, who had power of committing to Prison upon Contempt. I tell you in general, once for all, we have punctually observed your Order in the Accounts of Incomes and Issues.
Sir Christopher Musgrave.] If Accomptants make not up their Accounts in three Years, what can the Commissioners do, when the Accounts of 1688 are not made up till 1689? I think it reasonable that, in a year and a half, they be brought to your Auditor, when now all is in the dark.
Sir Thomas Clarges.] When we called for the Account of the King's Houshold, we found some Accounts not made up in ten years; as the King's Chamber, &c. Of the Taxes, since Charles II, no Account has been made these thirty years. I know not if greater business, or more profitable, has diverted them. The Exchequer is very exact in their method; but, if neglected, I know not where the fault lies.
Sir Benjamin Newland.] We have set down, without altering one Letter, as Mr Jephson has delivered it to us. But for us to make Alterations, it was not fit; but we have delivered it as we received it.
Sir Christopher Musgrave.] You say, but 7 per Cent. shall be given for Interest, and they give 9 per Cent. Your Funds will miscarry, when you so increase your Interest. As for the Land-Tax, it was a certain Fund, and needed not to increase Interest; at this rate, your Interest will eat out all your Funds.
Mr Waller.] 'Tis plainly made out, that this is a breach of your Act of Parliament. I remember, an Oath was proposed to be given to the Lords of the Treasury; they objected against that, because by it they should be obliged to pay the Bankers Debt. I hope we shall not pass this over without censure.
Sir Thomas Littleton.] I take it, that this Fund of Credit was to take up Money before it came in. The Occasions of the Government pressed them so far, that they could not take up half they wanted.
Sir Stephen Fox.] We have ever struck Tallies of Anticipation; 'tis impossible, as this Government stands, to have done otherwise; the necessity is unavoidable, and we had not done our Duties to the Nation if we had done otherwise.
Sir Christopher Musgrave.] Your present consideration is, Whether Tallies have not been struck before Money was actually lent. If I heard right, I think it was owned they had struck for Seamens Wages, before the Money was actually received. Our present Question is, Whether Tallies have not been struck before the Money was actually borrowed? Lowther says, "You paid the Dutch for the Money they lent you;" but must you pay the Interest, before the Money comes in? Why paid we Interest to advance Money to them, when we might have had it at the Interest allowed?
Mr Hampden.] The King did borrow Money, and paid Interest for it. The Dutch had not, nor desired Interest, till the time the Money came into the Exchequer.
Sir Wm Strickland.] I question not, but that the Commissioners of Accounts will tell you who paid not for their Patents for their Offices, and I hope you will make them refund. I have an Account of those who have had Patents, and have not paid for them.
Sir Edward Seymour.] The Commissioners of Accounts, whom you have trusted in this service, have reason to be exempted from paying for their Patents; but, as for other Officers, it is hard the King should pay for the Patent, and, as I hear, likewise to pay for their Charges in executing that Patent.
Sir Robert Rich.] By all the inspections I have made, I find no such Covenant made.
Sir Robert Howard.] The King not only pays for the Patent, but for the Taxes of the Profit of their Patent.
Sir Thomas Clarges.] I do not say, the Treasurer of the Navy is under the Qualification of this Head. He has 3,000l. a year Salary; but I think no Fees can be taken by any Officer whatever, but by Act of Parliament, or from time to time immemorial. I remember, Mr Vaughan, (when a Member here) did plainly and positively assert, "That no Officer could take Fees, but what have been used from time immemorial, or hung up in a Table, or settled by Act of Parliament." We find great Sums to Offices charged for Fees. We had Power for the best of our service, and we sent to the greatest Officers to know what Fees. They said, "They could not, upon Oath, say "Legal Fees," but what had been taken formerly by other Officers." A poor Captain, of 6s. 8d. a day, pays 6 or 7l. for his Commission. When you have the Persons, and subject-matter, before you, then you are ready for Resolution.
Mr Foley.] The Receiver-General of the Customs, in King Charles's and King James's times, had 1000l. per ann. Salary; the Comptroller of the Customs had 6 or 700l. per ann. By the new Impositions, this brought his Place even to Receivers of the Customs, For Mr Kent's Fees, he alleges Lidcott for his Precedent. Now he has 1300l. per ann. so much as to maintain a coach and six horses.
Sir William Strickland.] When we grow poor, I would not have others grow rich. I would not increase Salaries, that had sufficient before. I hope they shall be made to refund, and be reduced to be as before. I would have the Commissioners of Accounts lay before you this Head, before you vote.
Mr Foley.] As for the Officers Fee-farm of the Customs, all other Profits being taken away from them, it was thought fit they should have Pensions for Life, and now 'tis continued to their Sons.
On Money for Secret Service to Parliament-men.
Sir John Lowther.] I think the Words of the Act of Parliament are pursued. I dare say, this is not a matter at all that comes into the cognizance of the Commission of Accounts. The Lords of the Treasury think it a part of their duty, not to enquire into matters of State; as foreign Ministers, and Members of this House.
Mr Foley.] 'Tis said, by Lowther, "That he thought not this fit for our Enquiry." Mr Jephson would tell us what Pensions were paid to Parliament-men, but not what Sums. After Mr Jephson's death, we had his Clerk, Mr Squib, before us, who said, "It was the King's pleasure, not to have Account of Sums of Money, and it was a great deal for the King's Service not to have Sums named." We have it, we received it, and lay it before you.
Sir Charles Sedley.] This is new to our ears, and foreign to story—We give great Sums, but must not receive. For Service for the State, 'tis allowable; but for Secret Service, no Parliament-man ought to be ashamed. I am an old Parliament-man, but a young Speaker—One in my company, when I was young, would needs give the Fiddlers two or three pieces, though he loved Music as little as I; but he went shares with the Fiddlers. If the Service can be distinguished betwixt the capacity of a Parliament-man, and Secret Service, let us know it. As it appears to me, it seems a Reflection upon every Member; therefore I would enquire into it.
Sir William Strickland.] For Secret Service of State, was formerly, in that Parliament called, "The Pensioner-Parliament." If this was given for public Service, let it be owned. This may be the reason we go on so slowly. Let every Gentleman lay his hand upon his heart, and declare and vote, "That whoever has received Money is an Enemy to the King and Kingdom, and the Liberties of the People."
Mr Goodwin Wharton.] If this comes to any great or considerable Sum, as I hope it will not, it may endanger the Government; as in King Charles II's time, when the Books were brought before the House (fn. 2). I hope you will do some such thing now.
Lord Castleton.] The Herd will not suffer wounded Deer to herd with them. These fort of Men endangered King Charles, and threw out King James; and God bless King William and Queen Mary !
Mr Comptroller Wharton.] I stand not up to oppose any Motion; for indeed you have not any regular Motion before you. But, since I hear a Gentleman's name (Mr Jephson) who is not alive to answer for himself, I had a friendship for him, and I think he did deserve it, and would not have had a hand in any such thing. Something he told me, after he had been with the Commissioners of Accounts, and positively he affirmed, "That no Sum of Money was paid, but what was very justifiable:" And the nature of the thing he told me too. Sums were given to two Mem bers, for Discoveries; the Members never touched it themselves, but handed it to two Persons who made the Discovery.
Sir Thomas Clarges.] We did send to Mr Jephson, who did open himself very reasonably in the matter. He thought the Precept was not full, and desired it to be explained; and he had it in the words he desired: He then did tell us, as Mr Wharton has said, "That it was for a Service of such a nature, that he thought it of no service to the Commissioners to have it known; but if they insisted upon it, they should have it:" But a week after he died.
Sir Robert Rich.] When Mr Jephson was pressed, at our Board, he was asked, "What he hesitated at?" He said, "Some in both Houses were concerned; in the one and other House four." He said positively, "It was not for their own use, but upon Discoveries to others; but positively not to themselves."
(It was whispered, "That part of this Money [20,000l.] was for the purchase of Nottingham-House, at Kensington.")
Saturday, December 5.
[Sir Thomas Clarges reports the Conference with the Lords, on the Bill of Oaths for Ireland: Which see at large in the Journal.]
[The Proviso and Articles were read.]
Sir Thomas Clarges.] In the second Article of [the Treaty of] Limerick, this matter of the Lawyers is concerned; and it seems to me more extended in the Lords Amendment of the Bill, than in the Article. "All Inhabitants of Limerick, and all in the Counties of Limerick and Clare, who are not Prisoners of War, may practice their several Trades and Professions, &c. taking the Oath of Allegiance, &c. when thereunto required." For "Profession, Trade, or Calling," the Lords have amended it thus: "Attorneys, Barristers at Law, and other Sciences"—"Other Science" is an Addition that may take in all the Popish Priests in Ireland. I know not how far "Science" may be construed; how they should have that Science. This point of Science is commonly applied to Ability; a Qualification to take the Oath of Fidelity. I thought fit to explain this matter, that you might truly understand it.
Sir John Lowther.] I think the Article comprises those only within Limerick. I hope you will not confirm, by this Act, any thing not in the Articles already. Read and compare them with the Words of the Bill.
Sir Richard Reynolds, a Judge in Ireland.] The Lords tell you upon what account this Proviso is brought in, viz. upon the Articles. 'Tis all the reason in the World to be tender of those Articles. We have received the benefit of them. Garrisons have been surrendered, Arms laid down. I conceive they should receive no prejudice by those Articles; but this Proviso of the Lords is more than the Articles; therefore I move, That a Committee may see how this Proviso extends to the Articles, that it may not extend farther.
Sir William Leman, Sollicitor-General of Ireland.] The Words of the Article [relate to] those Persons then treated with; the Words of the Articles qualify all those Persons then treated with, not Persons before the Treaty; no protection to those Persons is intended, to be qualified. I think the Lords Proviso exceeds the Articles.
Sir Christopher Musgrave.] I never, in my Observation, have known a thing of this nature referred to a Committee; never such a thing was done, for a Committee to bring you an Opinion. The Lords have sent you the Articles, and their Proviso; you may compare them, that they extend not farther than the Articles will bear; if so, you can offer an Amendment, and may agree with the Lords with that Amendment.
Sir Thomas Clarges.] I conceive, without coming to any farther Resolution, the House may adjourn the Debate to Monday. I see not, if you go to a free Conference, how we can justify ourselves—The general Sense of the House is not to break the Articles, and yet provide for the welfare of Ireland.
Mr Hampden.] I think the less notice you take of the Articles the better, for your service. I have known a great deal of Articles, after the Civil War. Whatever you do, have as little to do with the Articles as possible. I would have little said of it, whatever you intend to do. I would rather do, than promise. It is for Lawyers and Physicians: As for Physicians, let them do what they please at their perils.
[The Debate was adjourned till Monday.]
[December 7 and 8, Omitted.]
Wednesday, Dec. 9.
Mr Fuller, upon his request, was brought to the Bar of the House to make his discovery, &c. (fn. 3) Who gave an Account of his intrigue with the Lords in the Tower, Prisoners; and, "That they sent Letters and Messages by him to the late Queen, and the French King." He then proceeded as follows:—One of the Letters from the Earl of Aylesbury I opened, which assured the Queen of his fidelity, and desire "That the French would send 30,000 men, and he engaged to rise by June next, and they should be ready to receive them." This was in February last.—Two Letters were sent to the late Queen, in a bone of mutton, one from the Earl of Feversham. Several of both Houses did promise such matters as to cause the People to rebell. The Earl of Litchfield intreated, "That the landing might be in June or July, and he would be ready, when the French landed, to join several thousands." I did open the Letter from Lord Preston, declaring his fidelity to King James and the Queen; and, "That he would raise men in the North of England, if the French would land there." (He named the Earls of Peterborough, Salisbury, and others.) Salisbury declared, by Father Emanuel,"That he would advance 4000l."—King James's Declaration was dispersed by Dr Gray, and Sir Adam Blair. Salisbury's money should be advanced by Father Emanuel, (who was still in England) and he valued not a Warrant to take him, he had such friends in the Secretary's Office, and in the King's House.— The late Queen gave me a Letter to the Earls of Castlemaine and Feversham—King James had friends in the King's Council, of whose service he was well assured. There was a Commission to six Lords to manage affairs in England, as if King James was in person in England. Bills of Exchange were sent by me. The Marquess of Halifax was the first in the said Commission. There were 23,000 listed, to join with the French. I must humbly crave the protection of the House, till I bring a Gentleman to confirm what I have said. The Archbishop of Canterbury [Sancroft] encouraged the matter as much as possible; but the Earl of Portland would not meet the Gentlemen that should discover—The Archbishop of Canterbury was not able to give the Gentlemen a protection. He wrote to Lord Portland, and his Secretary wrote to him, "That it was not in his Lord's sphere, nor could he have money."—I was by Warrant committed to Prison, and that prevented the Gentleman coming in to discover.—I will forfeit my Life, if the House will give me leave to send for this Gentleman into Flanders, who will confirm what I have said. [He withdrew.]
Mr Chadwick.] Fuller has named Lord Portland, and my Lord of Canterbury; I presume to inform you, what I know of this Gentleman. He has made some believe that he knows something, but not so much as he pretends to. The King has been acquainted with all he has laid before you. I went often to him, to bring him to several points, but whenever he came to fixing time and place, he always shufled, and pretended want of Papers. He fixed for Lord Portland at Kensington, but he never kept his time. I thought fit to tell you this, and I am afraid you will find him a very shuffling fellow.
Sir John Guise.] I have heard a scandalous report of this fellow—Mr Crone was condemned upon this man's Evidence.
Fuller came in again, and said] I saw an Address from the Lords to the French King, for assurance to restore King James, from the late Archbishop of Canterbury, the Dukes of Norfolk, Newcastle, and Beaufort; the Earls of Mulgrave, Clarendon, Aylesbury, Castlemaine, and Scarsdale; the Bishops of Durham and Ely; the Lords Grey, Widdrington, Forbes, and Teynham; William Penn, and Berkshire Howard: There were near forty more, but I could not take all their names, because Colonel Parker called for the Address, to carry it to the Queen. The Queen said, "There were several Persons in both Houses"— And Father Emanuel said, "He had friends in the King's Council, and the Secretary's Office;" and the Queen told me, "If any did trouble me, to apply to Lord Godolphin; and that Lord Feversham, and several others, would assist him" as Lord Preston and Lord Aylesbury.
Sir Charles Sedley.] This young man has accused so many, that was he an Angel from Heaven, I should not believe him, he has accused so many considerable Persons.
Colonel Cornwall.] One of the King's Messengers was concerned in taking Fuller into Custody; pray let him be called in.
Mr Howe.] One thing will convince me of the credit or falsity of this Person. He says, "The Archbishop of Canterbury would meet him, and Lord Portland put it off;" and Mr Chadwick said, "He failed Lord Portland."
Mr Chadwick.] I went to Fuller, and he appointed Friday night positively to meet him; but no Fuller, nor any from him. I went again, and appointed another time at Kensington, and then the fire was there; but he failed twice before.
Fuller.] I appointed the night before the fire to meet my Lord of Canterbury at Kensington; but he said, "All was there in a hurry, and he would appoint another place." I think there were no more appointments by Lord Portland: I cannot say positively. I would have gone as a Prisoner, in Custody of twenty Messengers, if they pleased, into Kent, to receive some Papers from France. Lord Portland gave me 200l. and Lord Shrewsbury 20 Guineas—The Queen gave me 100 Pistoles, and at my return out of France 100 more, when I went away. I had 100l. more from Lord Nottingham, as soon as Lord Preston's Tryal was over (fn. 4). I have laid out in all 1500l. in the King's service, of which I have not received 500l. I lost my employment for two years—The last Queen made me a Page, and gave me 200 Pistoles, and the Money I owe will make up the 1500l. Lord Portland denied me Money to bear my Charges, and for that reason I could not go down. I wrote two Letters to him from Kent, in four or five days. I told Mr Chadwick, when he offered to go down with me into Kent, "That the Gentleman was come to Town"—I think I did give Mr Chadwick the Letter from the Gentleman, which said "That in a day or two he would come to Town"—These Gentlemen that I am to produce will bring papers (they desire not to be taken on their bare words) to show how the King is betrayed by some of his Council: The best way is to bring them presently; they fear that some about the King will prevent their discovery. I will take care to write to them, and as the House think convenient, I will either send a Messenger myself, or the King may, if he pleases: I believe I have a servant whom I may trust with the Message. I believe one of the Gentlemen is in England, and I did discover one of their names to the Privy-Council; and as for the other, I have not discovered him, because I had not an opportunity. I desire I may be taken into the protection of the House, and that I may have a Sum of Money to enable me to make this discovery.
Sir John Lowther.] You would not have sent for this man without some hopes of fruit. Possibly it had been as fit for a Secretary of State to have examined this fellow. When this man convicted a man for his Life (Mr Crone) he was not of light reputation. To betray the King's Councils, whosoever they are, they deserve to answer it. If they be too great to be meddled with, I have done little in getting on horseback to bring in King William. I believe one of these men he mentions, is not in Flanders. Perhaps he is a youth of levity or debauchery, but he offered a fair thing, to bring him. If he be your Hostage, there is no danger.
Sir Charles Sedley.] Whatever credit this man is of elsewhere, he has had great trust by Queen Marry.— This Boy having received so much Money, without doubt he was trusted. As for taking him into pro tection, and addressing the King for a Sum of Money for him, and some reward—If he produces original Papers, with Hands and Seal, I know not how he can deceive us.
Sir John Thompson.] Now this is come before you, you must do something in it; the honour of the House is concerned in it. Time will try best whether the thing be true or false. I will say nothing to his integrity, but I find he has played with both hands, here and in France; but in which he is most sincere, I know not. He tells you, "That Papers, &c. are at his Lodgings." I would secure his Papers, and send to his Lodgings.
[December 10, Omitted.]
Friday, December 11.
On the Lords Amendments to the Bill for the regulation of Tryals, in cases of Treason.
Mr Clarke.] I would not agree to the Lords Amendment in Impeachments, and limitation of time. I hope the House will be tender to reserve the right of Impeachments in their hands, and I hope this Bill will not amount to repealing the Statute of 25 of Edward III, of Treasons reserved to the judgment of Parliament. Suppose a person should conspire to burn the Fleet, if it be proved by one Witness, he is to die for it—Suppose a person should prevail with the King to raise Money without Parliament, and no way to come at such a person but by Parliament; by this Act you cannot come at him. Farther, I fear there will be no Treason but by Statute; and if there be no Indictments, there can be no Impeachments. I fear this Bill will repeal the 25 Edward III, and I am against it.
Mr Finch.] I did not expect this Objection against the Bill, but I think it is so remote, as not to come into a man's thoughts. Whereas, before the Lords Amendment, the Bill was for the Prisoner's Evidence to be upon Oath, and to have Counsel, and nothing of that to extend to Impeachments: And it does provide, that Impeachments shall not be circumscribed in point of time, and that he shall have a Copy of the Indictment, Witnesses upon Oath, Counsel, &c.— But how can this be imagined to repeal any part of the 25th of Edward III? Will you say, though this be just in Indictments, it is not just in Impeachments? The Proviso of the Statute of Edward III has reserved all doubtful Treasons to Judgment in Parliament. There is nothing touched of that Proviso in the Bill. But says Clarke, "In other things there must be two Witnesses, but in constructive Treason one Witness is enough"—This is the bottom of the Objection, and it is an imagination that Clarke has found in his Judgment—Nothing, in this Bill, does touch that; but, as he says, "'Tis hard to condemn a man for an unknown Treason, by one Witness, and a known Treason by two Witnesses."—The Amendment does not take away constructive Treason, and [there has been] but one instance, since Edward III, of constructive Treason judged; and that was in the case of John Imperial.
Mr Hampden.] If the Lords be let in upon you, they may undo you. I would treat the Lords with all respect imaginable, in my little Sphere. The Lords are content that there shall be no limitation of Impeachments in Parliament—I wish to God this Law had been sooner, and perhaps you would have had some good Commoners alive. It is objected, that this may go farther than you intended: Says Clarke, "I doubt, this will protect men against declaratory Treason." Pray, with all our haste, give me leave to propose this caution; that, after the words, "No limitation of Impeachments in time," be pleased to add, "This Law not to extend to repeal any part of the Statute 25 Edward III."
Mr Finch.] As to what has been said, "That this Amendment takes away any Privileges of the House, ushered in with a graceful concession from the Lords;" I know that a Commoner may be impeached, as well as a Lord; but if a man be impeached for that which is a known Treason, it is not to be imagined that the Commons would impeach a person without two Witnesses to that Treason. You may as well propose a Proviso for that Statute de bonis conditionalibus, as for that Statute 25 Edward III. "In doubtful Treasons, the Judges shall tarry, and not proceed till the Parliament have declared the Treason;" but I ask, if a man be indicted for that, may that be a question, and the Jury find a man guilty without two Witnesses?—No man can be proceeded against without two Witnesses, by the Statute of Edward III. No man shall be indicted, condemned, and attainted without two Witnesses—Such a case cannot be supposed—But for the reasonableness of the proceedings of this House, God forbid but that a man should have the same method of proceeding as in other places ! A man must have two Witnesses against him (by this Bill) and his own Witnesses sworn; which is reasonable in Impeachments, as in Indictments; as in other cases, so in this of Impeachments, a man shall have his Counsel. No man can say, nor suppose, there will ever be such a case, that a man shall not have this time limited in the Bill; but learned men have objected, (as Mr St John, and others,) and very much doubted, whether the Statute of Henry IV had not taken away Impeachments in Parliament; but this Bill does declare Impeachments in Parliament, and that no time takes it away. Here is no Law taken away, but the right of Impeachments is established.
Sir Thomas Littleton.] Finch says, "Impeachments in Parliament have been a question, but this Law fixes them, and no time barrs them." I know not if some have been of opinion, that Impeachments in Parliament are taken away—I do not blame Finch, who thinks the Lords thought to fix what was doubtful before. I dare be bold to say, if the Clause had been proposed here, before it would have passed this House, you would have taken care that nothing should affect Impeachments in Parliament, and the Lords say it shall—A Commoner may be impeached as well as a Lord; and, I hope, that care is taken—And, after all, the terror of an Impeachment is not so great, as it is thought. We see Persons have not valued them. Here you shall have cunning Lawyers defending an Impeachment, and I hope I shall not degrade your Members to argue against Lawyers—But when an Impeachment is by Gentlemen of his own quality, I think a Cause is as well tried without Counsel, and I would disagree with the Lords.
The Speaker.] I take leave, without arguing, to open the Clause, (and reads the Clause of Impeachments) viz. "Not confined to point of time in Impeachment, and Witnesses for the Prisoner to be sworn."—There are two things in which the words admit of doubtful Construction: One against the Honour of the Lords, and the other of the Privilege of this House. As the Amendment stands, can a Person be allowed to challenge, &c? Then that Person may challenge a Lord. In ordinary Prosecution, the Person must have two Juries, upon Oath, to find the Bill, and your Impeachment is not upon Oath. The Commons are general Inquisitors, and not upon Oath; it may admit disputes, and have variety of Opinions, and the Laws are to be taken in the most favourable construction for the Life of the Prisoner.
Mr Sollicitor Somers.] You have done justice to the House, in stating the Question. The more dark the Lords Amendments are, the more they are to be suspected. You are told, by a learned Gentleman, "That the Lords grant every one of these things to the Person impeached;" and why then a new Provision ? But that which weighs most with me is, that, in the last Parliament, every word was left out that related to Impeachments, it was of such moment; and the Lords have now made a direct contrary Clause. Whatever is from the Lords, nothing shall be offered to mend your Case. The House of Commons go from their dignity, and lessen themselves—The Power of Impeachment ought to be, like Goliath's Sword, kept in the Temple, and not used but on great occasions. The Security of your Constitution is lost, when you lose this Power. The Statute of 25 Edward III did foresee that men would be above the Law; and, I believe, did not take away those that were Treasons at Common Law. Seductio Regis can be punished no otherwise than in Parliament. In the Lords Amendments it is, "He shall have like means of Defence in Impeachment, as the Subject in inferior Courts is allowed." This is not Treason by 25 Edward III.— But do not these words give him the same Defence? —If that be so, then that Branch of the Statute of Edward III is directly taken away. 'Tis said, "The Commons may be impeached;" but we know, the Lords have refused an Impeachment, in the Case of Fitzharris (fn. 5) at Oxford. I am against the Amendment.
Mr Attorney Treby.] I do not wonder at the zeal of the House, when so great a matter is before you as stating Tryals for Treason; and the Honour of the House is a great thing in Impeachments. When the Parliament had a great opinion of Charles II, when the safety of the King's Person was considered, the Statute of 25 Edward III was thought the safest and best that ever was made: Before, there was a Latitude of Construction; and as Treason was in the highest degree of Penalty, (Lands were forfeited to the Crown, and not to the Lord) it was wisely done to constrain that construction. That part said, "Because it could not enter into the mind of man to excogitate the Offence of Treason, &c." Men may invent Treasons of a higher degree than any mentioned, &c.—and referred to Judgment in Parliament, and called another Offence. Your Value is giving Money, and bringing Men to account for great Crimes. If you only give Money, you may lie under the hardships of great Of senders—You have had instances lately of corresponding with the King's Enemies. But what I mightily wonder at is, that Impeachments should be taken away by the Statute of Henry IV; but that Statute is not meant of Impeachments, but of Appeals of one Lord against another in their Fury: It never intended taking away Impeachments; but in Mr St John's Arguments against Lord Strafford, I find no such thing. Treasons at Common Law were known within the proportion and reason of Common Law. I fear, this Clause of the Lords weakens your Constitution—Impeachments are seldom used, as not fit on common occasions; but I would keep it as it is established by 25 Edward III.—If but a doubt in it, plainly say that you will keep it, and that you will take as much care in this as your ancestors have done.
Sir Edward Seymour.] I have observed, that those Gentlemen, who are for disagreeing with the Lords in this Amendment, are against the Bill. The arguments have gone as if the Clause relates only to the Person impeached. Some reasons have been given against Counsel for the Prisoner—I have had the honour, or misfortune, to have been impeached (fn. 6); but they that brought it in were ashamed of it, and that consideration makes me desire to have it easy to such as shall come under it—Before the Statute of the 25 of Edward III, Treason was individuum vagum; but that declares it. No man doubts but that the King and Parliament can declare Treason—" Treason, or any other Felony"—That was the thing complained of in that Statute—How can Impeachments have relation to that Statute? When all is done, I am as little forward for Impeachments as any man, nor would I give the Lords new Jurisdiction; but if there be any doubt, I would have it explained, that it may be understood; but do not make it harder in Impeachments than in any other Tryal, when the whole weight of the Kingdom is upon the Prisoner.
Sir Christopher Musgrave.] This has been a long Debate, and deserves the consideration of the House, 'tis of so great importance. If I thought that it would lessen the Power of Impeachments, I should be against it. Your Power is not lessened by the Prisoner's having Counsel in Impeachment, as when tried in an inferior Court. But the construction of the words (as the Speaker said) "extends not to challenge of their Judges in Impeachments, any more than in the common way of Tryals." What is it the Lords have offered? In cases of Impeachment, that Witnesses may be upon Oath, to make them more cautious. Those who lay the greatest stress upon this Clause were most against the Bill at first; and I hear not of any Clause from those Gentlemen to mend it. I can never suppose that the Commons impeach upon one Witness, nor the Lords condemn.
To this Amendment of the Lords the Commons answered, "That the Course of Impeachment is a constitution so necessary for preserving the Government, that the Commons cannot consent to admit any relating thereto in general words; because they may be liable to divers constructions, whereby Proceedings in such Cases may be rendered ineffectual."
The following Clause, marked A, was added by the Lords:
"And be it farther enacted, by the Authority aforesaid, That, upon the Tryal of any Peer, or Peeress, for any such Treason, or Misprision of Treason, as aforesaid, that all the Peers that have a right to fit, and vote, in Parliament, shall be duly summoned twenty days at least before every such Tryal, [to appear at every such Tryal;] and that every Peer so summoned, and appearing on such Tryal, shall vote in the Tryal of such Peer or Peeress so to be tried; he and they first taking the Oaths mentioned in an Act of Parliament made in the first year of King William and Queen Mary, entitled, "An Act for abrogating the Oaths of Supremacy and Allegiance, and appointing other Oaths;" and also subscribing, and audibly repeating, the Declaration mentioned in an Act of Parliament, made in the 30th of Charles II, entitled, "An Act for the more effectual preserving the King's Person and Government, by disabling Persons from sitting in either House of Parliament."
Sir Thomas Littleton.] This Clause is not well timed, now the Crown is in more danger than the Peerage. Were I a Peer, I would so clog the Tryal of Peerage, that all the Peers must be summoned——My Reason against this is, that all the Peers of England are of kindred, which is an Exception for a Commoner. If all the Peers should come, they may have the majority of kindred, and the Commons have no benefit by it. I am against it.
Mr Bertie.] This Clause is only for Tryal of Peers out of Parliament; in Parliament they are safe. This will make Peers more ready to stand up for their Country.
Mr Sollicitor Somers.] I observe it an Objection, "That speaking against the last Clause was speaking against the Bill." 'Tis not the intention of any man to establish an Aristocracy; and this Clause is, in a great manner, to give impunity to Peers, by this Bill. If all the Peers are to be his Judges, a great many may be his friends and relations. Here is a Lord the most abandoned creature in the World, it would be strange he had neither friends nor relations to stand by him. I am against it; for, by this method, you will never have a good Bill, but it will be thus clogged. [There is] no one advantage that the Commons can have in this Bill, but the Lords have it without clogging it with this Clause. Your ancestors have placed great Power in the Lords, on account of their great possessions; a third part of the Nation was amongst the Clergy and the Lords, and the other two in the King and the Commons; but since the suppression of religious Houses, and abolishing Tenures, the Commons have been greatened—But the Lords have a Controul upon you in Law-making, and this is great Power—Suppose a great Faction in the Lords House to hinder any thing from moving to you from the King, what Controul have you upon them? What you do now in the Lords Privileges, you take so much from the Crown and yourselves. Whatever you do of this kind can never be remedied; for the House of Peers will not part with any thing they have got; the Crown may, for it must use you. If the Lords are weary of this Privilege of Tryal, let them take the common Justice of the Nation, and abide by their Privileges as they stand. When this Clause was sent down, and rejected, the Lords ordered a Committee to enquire into Precedents, and have judged it their Privilege; and as they are content with it thus, pray do you so too.
Mr Finch.] I hear an Objection made, "That, when all the Peers are summoned, those of kin will be sure to appear, and there is no compelling them." —and "that balance of the greatness of the Peers is changed—The Peers were so great men formerly"— As the Law stands now, when the King erects a Court of Tryal for a Peer, the Lord Steward summons them; and if they do not appear, they are finable for not appearing, 'tis such a contempt. Now turn the tables; what Alteration are you making in the Law? If they be impeached, they are tried by all the Peers; if indicted, all the Peers are to try him; and it is but the same in Parliament as out of Parliament. The great cure of all this is the rod of Impeachment, where you have all the Peers; but 'tis not to be supposed that one of the States will be in conspiracy to overthrow the rest. Where is the mighty mischief of this Tryal of Peers, out of Parliament, as well as in Parliament? 'Tis said, "This has been attempted before, and rejected;" but then justly, when it was tacked to matters not relative to it; but here it comes naturally. But it is said, "This is for the benefit of the Peers, and not of the Commons." But if it be a reasonable thing, I hope you will agree. Though no man is accountable for what is said in Parliament, yet there are unlucky memories out of Parliament. There is no hurt in this Clause, unless a man will say, that, the Parliament sitting, the Government is less weak than when it sits not.
Mr Attorney Treby.] The consequence of this Clause is, that when a Lord commits a capital matter, 'tis said, "It is but like Tryal in Parliament;" but 'tis of another force in Parliament, than out of Parliament. If a man be so great as to keep off a Parliament, and to make Peers, the man to be tried will be nearer impunity. I would not place them in that degree of impunity that our ancestors never knew, nor ever would give them.
[The Question for agreeing with the Lords in their last Amendment, in adding the Clause marked A, passed in the Negative; and a Committee was appointed to draw up Reasons to be offered at a Conference.]
Saturday, December 12.
[On the Observations delivered in by the Commissioners of Accounts.]
Sir John Thompson.] I could wish we had a selfdenying Ordinance, "That no persons should fit here, that have Places, or Offices of Profit."—I am justified by good authority; for, before Henry VIII's time, no person that belonged to the Court was permitted to sit within these walls. 'Tis wonderful to consider, that, when the Commons were poorer than now, they should remove great men, and favourites, from the Crown: The reason then was, there was no dependency upon the Court; they brought more of the Country, and less of the Court, with them in after times. I speak my mind truly, and have no reserves; but I believe we shall not carry this, because there were never more dependencies on the Court than now.
Sir Christopher Musgrave.] I moved the Question, and I'll tell you the meaning of it; "That no Member shall be a Receiver of Money granted by the Excise, or Taxes." I think it more proper that they should not be Receivers, than give away the Privilege of the House.
Mr Palmes.] We ought all to stand here on an equal foot. If we make discrimination of who shall have Privilege, and who not, I am against that. I would, at present, wave both these Questions, and not lose the fruit of this Debate: But if you will lay your hands upon Offices of great Profit in this House, and if you will make distribution of it to the public use, I am for it.
Admiral Russel.] I move, "That the Moiety of all Profits of Offices above 500l. per ann. should go to the use of the War."
Sir Robert Rich.] Russel spoke to me of this Motion long ago, before I had a Place; but now I rejoice that I have an opportunity to show my respect to the Government, and show myself willing to work hard to case the People.
Sir John Lowther.] I am as ready as any body for this Motion: I will only say, if I found my service acceptable, I would serve for nothing. I am for the Question entirely; but there must be Exceptions; as of the Judges: They lose by their practice in being made Judges; and the Commissioners of the Great Seal.
Sir Christopher Musgrave.] What is said by Lowther is worthy observation; they do lose by their Employments, and I would have them exempted.
Mr Howe.] I am sorry that we, that have no Offices, have no power to vindicate ourselves: But some things are to be considered in the Question. There is great difference in Employments. A man has greater loss in the Country by attending them, and some are obliged to keep Tables.
Mr Dutton Colt.] If Offices of 500l. per ann. shall not be rated, I shall have no share in it; but if keeping no Tables, I am willing to pay my share.
Col. Grenville.] I move, "That all Salaries exceeding 500l. per ann. shall pay one half to the Government, during the French War."
Sir Stephen Fox.] The necessities of the Government are so great, that they make the valiantest man tremble at the consequences of delay.
Sir Robert Rich.] The plainest way is to begin at home. The Gentlemen of the Admiralty have 1000l. per ann. paid them. My plain intention is, that they should have 500l. per ann. but to cut off two parts of three, is the way to work them to nothing.
Resolved, Nem. con. That the Salaries, Fees, and Perquisites of all Officers under the Crown (excepting the Speaker of the House of Commons, the Judges, the Lords Commissioners of the Great Seal, [Foreign Ministers,] and Commission-Officers, serving in the Fleet and Army) exceeding 500l. per ann. shall be applied to the use of the War.