Grey's Debates of the House of Commons: Volume 3. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Tuesday, April 27.
The Articles against the Lord Treasurer were this day delivered, more fully drawn up, by Sir Samuel Barnardiston, and were as follows (fn. 1) :
I. That Thomas, E. of Danby, Lord High Treasurer of England, hath violated the method of the Exchequer, exposing thereby the revenue, and ingrossing all the power into his own hands: That the said Lord Treasurer (fn. 2) hath overthrown and violated the ancient course and constitution of the Exchequer, by perverting the method of receipts, payments, and accounts, contrary to law; whereby the King's revenue is put into confusion, and a wasteful way of expence, to the destruction of his [Majesty's] credit, and exposing his Majesty's treasure and revenue to private bargains, and corruptions; and hath ingrossed into his own hands the sole power of disposing almost all the King's revenue, laying aside the Chancellor [and Under-Treasurer] of the Exchequer, and other officers; whereby the usual and safe government of his Majesty's affairs relating to his revenue, and all checks and controuls are avoided.
II. That a about the marriage of the daughter of Sir Thomas Hyde, the said Earl caused one Mr Brandly, a principal witness in the said cause, to be arrested by an extraordinary warrant from one of the Secretaries of State; and to be kept for some time inclose custody; during which time, some of the said Earl's agents did labour the said Mr Brandly by threatnings and promises of reward, not to declare the truth; and at midnight he was brought and examined before his Majesty, upon oath; where the said Earl was present and assisting. Whereupon the said Mr Brandly did, by the means aforesaid, deliver in a testimony contrary to his own knowledge, and against his conscience, he being then in duress; by which illegal practices his Majesty was highly abused, the parties concerned in the said lawsuit greatly prejudiced, and the truth suppressed, to the manifest obstruction of justice; and all this was done with an intent to procure the said heiress to be married to the second son of the said Earl.
III. That the said Earl hath received very great sums of money, besides the ordinary revenue, which have been most wastefully spent, and far greater sums than ever issued forth for secret service, without account; the King's debts remaining unpaid, the stores unfurnished, and the navy unrepaired, to the great discredit and hazard of the King and Kingdom.
V. That though the office of Lord High Treasurer of England, is always [very] full of great and necessary employments, yet the said Earl hath also assumed to himself the management of the Irish affairs, which were, in precedent times, dispatched always by the Secretaries office, and passed in council, thereby interrupting the said Secretaries; and neglecting his own; subtilly enabling himself, the better to convert a [very] great sum [of money] out of the Irish revenues, to his own private advantage.
VII. That about the 4th of Dec. 1674, at the hearing [of] a cause in the Treasury Chamber, some Acts of Parliament, now in force, were urged against a Proclamation, and [contrary to] what his Lordship aimed at; whereupon the said Earl, in contempt of the law, uttered this arbitrary expression, "That a new Proclamation is better than an old Act," several of his Majesty's subjects being present; and, upon his Lordship's report to the Privy Council, the person in question being a foreigner, and not obeying such Proclamation, but pursuing his right at law, was banished [the Kingdom.]
Mr Powle.] By former patents—"Weekly to pay into the Exchequer, and by warrants signed by the Chancellor of the Exchequer;" this lay grievous upon the Lord Treasurer, and he procured a warrant for a patent for the sole disposing of the money himself. The Chancellor of the Exchequer hearing of this patent entered a Caveat, and the patent was stopped and overthrown. When that would not do, the Treasurer gets a warrant for this patent, whereby no order is mentioned, to pay weekly into the Exchequer—Would have it examined whether by this patent Mr Mounteney pays any money into the Exchequer, except by order of the Treasurer, ever since this patent passed—And would know whether any warrants for pensions are paid at the Custom-House, without any notice in the Exchequer, or knowledge of it—And whether, in particular, the Duke of Lauderdale hath not a pension of 3000l. per ann. paid out of the customs.
Mr Garroway.] The commissioners of the customs do not handle a penny of that money, and he begged of the King he might rather go home and quit the employment, than have that imposed upon him—Mr Mounteney, the Patentee, is at the door, and will inform you further.
Mr Secretary Coventry.] The world does not expect that a Secretary of State should understand all the offices of England—' Tis well if he understand his own—For the Privy Seal, they advice with the King's Counsel. If the warrant be docketed right, they go no farther— The Secretary has no office of correction—But if any man enters his Caveat, till—acquainted with it, the King gives a hearing—I he Chancellor of the Exchequer did desire the Patent mentioned might not pass without hearing; he was heard, and so the Patent passed—He looked no farther than the docket, but did not look whether countersigned by the Treasurer, or not—If the Attorney-General has viewed it, the Secretaries conclude it legal, he being the judge of that.
Answer. In the late King's time warrants were issued out by the Lord Treasurer, without the Chancellor of the Exchequer. In Lord Southampton's time they were issued out sometimes single, and sometimes with the Chancellor of the Exchequer joined.
Answer. The first Patent was to account a part for wines and vinegar, but that was troublesome to the collectors of the out-ports;—whereupon they were made entire upon our account, and his Patent altered thereupon.
Sir Nicholas Carew.] If it be so difficult to have an account of things, he thinks it inconvenient to have such officers as Howard, that will not tell the truth when demanded by the House—Believes he has no oath of Privy Counsellor.
Col. Titus.] As for obtaining the King's consent before he answers any man, any man may see it—Public money is all recorded, but if he desire till to morrow to search his books, 'tis a modest request, and would have it granted him.
Mr Vaughan.] You are now the Grand Jury of the nation, and suppose that the King should command him not to answer to the questions, his going to the King may put a hardship upon him, if the King should so command him—You may for the public safety command his testimony.
The Speaker then put the question to him, Whether, since the Patent was granted to Mr Mounteney, less money than formerly was brought into the Exchequer, from the customs, and more money diverted from the Exchequer?
Sir Robert Howard.] Formerly the Patentee paid the money, and it was never entered into the Exchequer, as the more easy way for the persons to get their money, than when paid in the Exchequer—What is received above the pensions (which are good store) is paid by tally into the Exchequer—The pensions are never recorded— All the out-lying moneys are foreign to his office—If the Chancellor of the Exchequer should join with the Lord Treasurer in warrants for payment of money out of his office, he cannot pay a penny. No man can cheat in the Exchequer, they never paying any money out of method. As for the Duke of Lauderdale's pension, he knows nothing of the grant of it, and many others. Some pensions are enrolled both in the Custom House and the Exchequer, enrolled in both places, and paid in both places very honestly.
Sir George Downing.] The four Tellers of the Exchequer by their oath are bound not to tell one another what money they have. As he is Commissioner of the Custom-House, he can tell you what money the Tellers have —From thence he should abuse you to pretend to do it any other way. Mr Mounteney can give you an account of it; before he pays the Treasurer's warrants, he must pay merchants debentures, and he must pay the charges of the Commissioners of the customs; likewise for discovery of fraud, fire, candles, and boats. The debentures are paid by the Lord Treasurer's warrant, or the Commissioners. He knows no new way of payments, for the said Treasurer cannot divert the course—No warrant, before or after it is entered, but is taken notice of before let pass, to be either my Lord Treasurer's warrant, the Great Seal, or Privy Seal.
If the Lord Treasurer grants any warrant contrary to the powers in his Patent, he must refund it to the Crown. If the Lord Treasurer grants ever so many warrants, and if there be no enrollment of them, the Chancellor of the Exchequer may refuse them. Many of the revenues are never chargeable in the Exchequer. For the customs, there is no charge but a farm rent. If it depends upon collection, there is an Officer on purpose for it—And for the Excise, there is a particular Receiver, and Auditor—A distinct office. If there be any Patent for a pension, or other payment, out of the Customs, it ought to be entered at the Custom House, in the office where the payment is made.
Mr Powle.] When Lord Cottington, the Chancellor of the Exchequer, was in Spain, there was a patent granted from the King, that the Lord Treasurer might sign warrants in the Chancellor's Office—More money has issued out of the Treasury irregularly, in this Lord Treasurer's time, than in any before him.
Sir Philip. Warwick.] The Lord Treasurer can do nothing in his Office, but by the King's warrant under the great Seal, or the privy Seal—Any privy Seal, or Patent, must be entered in the Office of the lower Exchequer —By virtue of the Great Seal, or Privy Seal, an order is drawn to make debentures.
Mr Powle.] The patent for the Excise runs "to pay the money as the Lord Treasurer shall direct;" this empowers him to give verbal orders, which are never recorded, which is against common Law, and by Hen. III. 1 Eliz. I. 1 Rich. II. against Statute law, that grants this revenue to the Crown. This patent brings the Treasury somewhere else—and [as to] consent of the Chancellor of the Exchequer, would have that examined, and, upon enquiry, you will find it countersigned by the Treasurer, without the advice of the Chancellor of the Exchequer.
Sir Charles Wheeler.] The Excise is governed by Commissioners in the Country, with subserviency to the Commissioners at London—This patent the Treasurer found before he came to his place. Sir Stephen Fox, who had great payments assigned him out of this revenue, for the payment of the Guards, and other uses, because of the ill correspondency he had with the Commissioners of Excise, had much trouble in it. Mr Kent, therefore, the Patentee, was chosen as a person able for it. The Lord Treasurer questioned, whether he might make a Patentee for Receiver-General, when, as heretofore, it was in the hands of the Commissioners of Excise. This was the ground of the Patent—At last, by full and joint consent of the Chancellor of the Exchequer, the thing was agreed upon—'Till the Patent coming to the sealing, a Caveat was put in by the Chancellor. Mr Kent was much disturbed, because the Patent was stopped. This was done the 8th of April last, and no longer before.
Mr Garroway.] This was designed for a temporary Patent only. The Chancellor of the Exchequer being sick, he could not for the present attend a hearing. As to calling in the Chancellor's man, he knows not what he can say for his master, and in this would not hear the man, when you may hear the master. This Patent may seem to cast dirt upon the Treasurer, but he doubts not but the Treasurer will clear it.
Wednesday, April 28.
Sir John Duncombe.] To the first Question "whether he had knowledge of the proposals of Kent's Patent" Answers, That he entered a caution against Kent's Patent. In his absence from the House, by reason of sickness, has heard of great alterations in this place, an impeachment brought against the Lord Treasurer—Humbly prays the House to consider the condition he is in at this time, sick; but will give as good an account of it as he can, and tell you how this business did first arise. There was a contest between Sir Stephen Fox, and the Commissioners of Excise. My Lord Treasurer called him to hear how the matter was. The use the Treasurer made hereof was fair—By both to bring the interest of money lower in the Bank; when this was done, he had no more to do with it. When the Treasury was in Commissioners hands, Mr Wall had a Commission for it, but in paper only. Now the question was, whether that Commission should be in paper or under the great Seal. Sir Stephen Fox desired it might be rather under the great Seal, to confirm that the Tallies struck in course, should be paid in course —Things the Treasurer has the disposing of, never came before him. He knew of this Patent two or three days before he fell sick; he got a copy of it, and found extraordinary powers in it; before Easter, about Good Friday, he was told it was at the Lord Keeper's, passing; upon which he sent his Secretary to the Lord Keeper about it, who sent him word that he heard of things in the Patent, by report, and would discourse them with him, which he did after dinner, and then desired the Keeper, that, if things were so as they were represented, before the Patent passed, he might advise with the Attorney General, being a better judge of these things than he was. The Keeper bid him go to the King, but he, being ill, desired the Keeper to speak to the Treasurer about it. On Monday, Mr Bertie came to him, from the Keeper and Treasurer, to let him know that a pressing necessity there was that the Patent, by reason of clamour, should pass, but that he should be heard. The Seal passed with these cautions. He has waited upon the King those mornings he could for his health—Undoubtedly, had he been heard there, he had never come before you—If a thing be exorbitantly done, would have you bring it to its course, without reflecting on a great person. If the King think fit to pass the Patent upon these terms, he has nothing to do, but to pay obedience to it. Whether you will examine this, or leave it before the King, to whom he has appealed, and whose servant he is, leaves it to you;— the end will be only the setting the thing right.
Sir Robert Howard.] The Question is, "whether the Lord Treasurer can, by this Patent, dispose of the Excise, without warrant by the great Seal, or privy Seal," and so become liable to no account. He thinks himself happy that he shall say nothing here, but what he has said before in another place. As good service may arise from this Patent, as ever was done to the nation, he thinks—Before this Patent was granted to Mr Kent, the Lord Treasurer sent for him, and told him, "here are debts, and there must be credits, and he would do accor ding to the constitution of the Exchequer." When he saw Kent's proposals to the Commissioners of Excise, he desired the Treasurer and Chancellor to do no such thing, for the proposals would bring things to utter ruin in the Exchequer—Says the Treasurer, "on the one side, I may do amiss in the Exchequer, and on the other side, I hazard the King's credit, if I do it not." He showed him how it might be done by the Tallies, according to law, and all returned into the Exchequer. The Treasurer was pleased with it, but, after this, he never knew of Kent's Patent, nor saw it, till he saw it here, on the reputation of a Gentleman. The course of the Exchequer is as ancient as the law of the land. There is a docket usually passes with the Patent, and that will give great light to it—It is a question, "whether this be usual? In the dockets all the contents of the Patents must be recited—This has been done, and hopes no prejudice may arise upon it. Now 'tis a question, "whether this Patent does not take away the legal account in the Exchequer?"—Tallies of anticipation take all things out of course in the Exchequer, without doubt—By no constitution nor law, but money must be paid in specie into the Exchequer; and what is otherwise is different from the law of the Exchequer—Tallies of anticipation were much more [usual] in the former Lord Treasurer's time, than this—Tallies of anticipation do expose the King's accounts to interest accounts. "What will you give us, and I'll pay you?"—The officers will do it. He cannot tell whether the Patent was by the Treasurer's procurement —He has told you that his judgment was to proceed legally in the Exchequer, and he knows nothing of passing the Patent.
Sir Stephen Fox (fn. 3).] Knows the beginning of this Patent— The Chancellor of the Exchequer has saved him the labour of saying some things about it. It began in April last, at the disbanding of the army. My Lord Treasurer then sent for the Cashiers—He gave no other assignments to them, than upon the Excise, and would ease the rest of the revenue, and burthen the Excise, that, by competition between the Cashiers and the Excise, interest might be lowered. All this was transacted between the Commissioners of the Excise, and Fox, before the Lord Treasurer, and the Chancellor of the Exchequer. Fox proposed a Commission under the Great Seal, and not a warrant from the Lord Treasurer, to be preferable before all payments to invest Kent with the greater authority—and none preferable to these Tallies moneys were upon. He knows not of the framing of the Patent, but the method of payment, preferable to all others, he promoted only. The authority of it was referred to the King's Counsel—200,000l. was borrowed upon this security—They lent it upon Tallies, and have colateral security of persons. The scope of the Patent was only to secure persons that advanced money. Though the Excise office be not so regular as the Exchequer, yet 'tis very exact for money registering and checks. No man borrows money at interest but Kent, whereas heretofore they vyed who should get most money from the Bankers.
Mr Powle.] All the officers allow this Patent to be an exorbitant power—This is so clearly owned, he need not repeat it. This clause is inserted into the Patent, and no man knows by what means. Till it is made appear that it was advised by the King's Counsel, he will not believe it.—This way destroys all method in the Exchequer— Hears no man say, that ever such a power was by Patent before. Letters Patent to pass so suddenly as this has done, looks like practice—Like a man that robs me of my purse, and says, he borrowed it of me for a time only. This may make the King's Counsel innocent, but the Lord Treasurer to blame for this haste in passing it, with which it is not consistent. Twelve months time was proposed, and the thing under consideration November last, the Chancellor of the Exchequer never consulted in it—He has had opportunities more than other men, to make this enquiry into the Patent, and the circumstances belonging to it. Would have the first question, "Whether this Patent be not illegal."
Serjeant Maynard.] Suppose this Patent said nothing how this payment is to be made, or how to be accounted for; the question will be, "Whether an affirmative clause, in an Act of Parliament, without a negative clause, takes off the power the King had before to grant such a Patent." If the King be not restrained by any clause, he may use that power he had generally before. Affirmative words do not put a negative upon King—The court of augmentations was set up, and they had power of the revenue, and all leases and grants of the King's lands, under that Seal—And the King granted a lease under the Great Seal, of some lands—'Twas adjudged that affirmative words, without a negative, do not make a restraint upon the King—There are divers revenues which come not into the Exchequer—Desires the excuse and pardon of the House, if he dares not trust his judgment for the present, in such an assembly as this; but says, that, in ordinary words, the Patent puts the account out of the Exchequer—But, under favour, suppose the Patent clearly illegal, 'twas ill to advise it, but what's your question? If not illegal, no crime, yet in the event and prospect of it it may be ill—'Tis no ground of an impeachment not to understand the law. The Treasurer's case may be that, in some points, he doubted the Patent—And he knows that, in the case of the Stannaries, he was very careful to answer the law in it. There was a present occasion of raising the King some money—He sees not that the Treasurer was the contriver of the Patent; but those who would advance money proposed it—If a great officer of State, not bred to the law, follows the advice of the King's Counsel, and if the King is found not to be restrained by general words, in an Act of Parliament—"illegal" and "inconveni"ent" are things very different, and are different questions. Thinks this Patent no ground of an impeachment upon this article.
Sir William Coventry.] He sees no ground of impeachment of the Lord Treasurer upon this article of the Patent, the illegality of it not being cleared by the lawyers. We have seen by what steps this Patent passed —Who advised it? Rightly placed upon the Privy council. But 'tis a hard thing that all the King's Ministers of State must answer all circumstances of law. If so, then 'twill follow, that no great officer of State but must be astudied lawyer—Will not defend nor oppose the Treasurer, but if it be found that the King's Counsel were neglected in the advice, or their advice not followed, should think the Treasurer to blame; but the King's Counsel hands him to it, and, all due circumstances requisite considered, he is far from impeaching the Treasurer—If the question should be put, upon the impeachment of the Treasurer, he fears the Patent would be forgotten, and nothing be said to it. Here are more articles against the Treasurer than this— The business of the navy you have appointed to hear, and you will be furnished with great business for the short time you have to sit—But would have some discountenance of this Patent now—The end of this Patent is that trick of making new credit for the King—The subjects property is in the King's credit; that has received such a blow, that it is free for men to speak to it here. 'Tis the anticipation of the King's revenue, and the facility of it, [that is] an inducement to spend more than the revenue, and to entrap men, by such securities, in the ruin of themselves, wives, and children. If this goes on, it must terminate in breach of property, and the Parliament, when it comes to it, must raise new levies on the people, or the nation be destroyed, and lost, for want of money to supply the necessities of the government. This makes his fingers itch at the Patent. 'Tis said that the Treasurer is not justified without the Great Seal, or Privy Seal, for payments, yet he that pays it is justified to the receiver; 'tis true, here is the Treasurer's order, but no Great Seal—He says, he will not allow that Auditor; then he applies to the Treasurer, and if he will be so adventurous, the Auditor resorts to the Treasurer, who probably will not make stop of payment, contrary to the intention of the Law; and so the King is put to an after-game for his money. What, if the money be squandered away, and the Treasurer in disfavour, and the King put to an aftergame?—Though in other things the Chancellor countersigns the warrants, in this the Treasurer signs only. The Crown was never thought to have too many locks and keys for money. When the order is signed to the officers of the Exchequer, they must have Seals—As now the Patent is, here's no retrospect, but still the King must play an aftergame. He avows he has long been full of this matter of anticipations, and would have discountenance of it. Would have no discountenance put upon the old and safe way of registering in the Exchequer, and would vote the Patent "dangerous, and contrary to the course of the Exchequer."
Sir George Downing.] Those that move the vote for the Patent, would not involve the Treasurer in it; others say, that such a vote will reflect upon the Treasurer; but if it be plain that it will reflect, moves to pass a vote, "that as soon as the articles shall be gone over, you will take the Patent into consideration."
Mr Swynfin.] The Debate is, whether this article be a ground of impeachment, or upon the Patent, as contrary to the course of the Exchequer. If it comes on the Lord Treasurer, whether by his procurement or not, it reflects upon you—The question with reflection on the Patent is a separate and free from the Lord Treasurer. Should the Patent be spared, for the Treasurer's sake, it would look like too great partiality—When you have cleared the Treasurer, then you come to the Patent, the ground of the Debate.
Sir John Duncombe, answers, He had been examined before the King to this interrogatory, as he is now before you, and might he have spoke his meaning and opinion, he should there have desired the King's Counsel might be heard, and desires you will do so here, because some of the Exchequer Officers are present in the House.
Sir Thomas Meres.] We men that come out of the country, and would keep the King's revenue from ingrossing, would know whether it be not clear that this Patent has the sole disposition of the money without Great Seal, or Privy Seal, and would hear the Long Robe about it.
Sir Henry Ford] Would have it enquired, first, whether this Patent be illegal, or no; and then, whether the Lord Treasurer has proceeded thereupon with ill intent. A man may do a thing amiss, with a good intent.
Sir William Coventry.] Conceives the Long Robe necessary, but not yet, to be heard. Hear the Officers of the Exchequer first—They may enlighten the Long Robe, and then their opinion is seasonable to be given
Serjeant Maynard.] You now examine matters of fact —The course of the Exchequer is the course of law —The Judges would, in such cases, examine the Clerks of the Exchequer; their course is the course of Exchequer law. If you mingle matters of discourse with matters of fact, men cannot remember them. You are to examine, whether the Patent goes to the matter of that account.
Col. Birch.] He may fail in his prudence, but shall never, he hopes, in his fidelity to this House. He is the sole Auditor of the accounts of the Excise, and they pass from him to the Exchequer. He will tell you the whole truth, so help him God!—Till he is told of it, will keep his office—When the receipt of this money was taken out of the hands of the Commissioners of Excise, it was put into the hand of Kent, and a short warrant was sent to them, that Kent should receive the money, and be accountable to the Treasurer—He has told the Treasurer, that, in case warrants should come to him, and they interfered with law, he doubted he should come to him about them. He knows little of the law, but would know so much as to do his office—He brought the laws of Excise to the Treasurer. "The business is too big for you and me," said the Treasurer, "therefore go to the Attorney General, and lay your objections before him;" and he would do nothing, till satisfied in the legality of it. He went to the Attorney General, and objected, and debated, something with him, who said he would wait upon the Lord Treasurer, and would give him satisfacin it. The Attorney did soon afterwards draw up a book and set his hand to it, as the Clerks told him, but he never saw the patent nor book—Shall say only, that, notwithstanding the clause in the patent, he assures you he shall not pay Mr Kent any money, without the broad seal, or the privy seal, for it, except necessary wages, and other small matters.
Mr Attorney Montagu.] Though Birch will not pay money without the Great Seal, or Privy Seal, yet thinks the Treasurer not empowered to do any thing. Ld—'s case—No man can dispose of the King's revenue, without either the Great Seal, or the Privy Seal—The Treasurer's very original Patent has general words in it to empower him, but the law imposes the Great Seal, or Privy Seal, upon him in all payments. If he does it without, he must refund, so that the Patent excludes not Privy Seals, nor diverts the account of the money from the Exchequer, but the officers there may call for an account of it.
Sir Thomas Lee.] If Gentlemen are not ready to give an opinion in law, why do they first give an opinion of the Patent? "Whether by colour of the Patent, the whole account is not taken from the Exchequer", is the question.
Sir John Duncombe.] He cannot, and ought not, to speak of this Patent, but must refer it to the King's Counsel. Unfortunate hands, made use of by the Lord Treasurer, may undo any Lord Treasurer in the world. If the House thinks this power is in the Patent, Kent may obey it with safety. If money be paid by such warrants from the Treasurer, where and to whom must it be accounted? He is accountable by tally in the Exchequer, and he must produce it. The order of the Exchequer, if known, would be found to be the greatest beauty and œconomy in the world. What authority or warrant, authorized by the Great Seal, may be, without expressing the cause? If for the navy, or secret service, all are expressed—These things are made public.
Sir John Duncombe.] Supposes you in debt—Estates are exposed to hardships as other men are, to take up money upon their private occasions (fn. 4).
Thursday, April 29.
On Mr Powle's motion for witnesses to be summoned, to prove the second Article against the Lord Treasurer, he was ordered to name them. He named the Lord Mayor (fn. 5). It was said to be of dangerous consequence to send an order to summon witnesses without naming them. Several other persons being named, as one Salter and Vogelsung, they were summoned to attend.
Sir John Knight.] Speaks to the business of the day. Would have the Debate of Dr Burnet's evidence put off till we have the King's answer, which we expect, and would now go upon the business of the navy.
Sir John Ernly] Dr Burnet has written so great encomiums on the Duke of Lauderdale, in some of his writings dedicatory to him (fn. 6), that sure his evidence will be of little moment against him.
Mr Dalmahoy.] The book was an encomium on the Duke of Lauderdale's justice. The Duke has done Burnet great kindnesses. 'Twill be said abroad to be done out of spleen and malice here, and if countenanced will destroy all society.
A Bill [was read the second time] to incapaciate persons from taking any offices of benefit, who are Parliament-men, during Parliament, and if any such persons be chosen, that election to be void. But the Borough, or County, may chuse the same person again, and that election stand good.
Sir Charles Wheeler.] He supposes one hundred persons in this House that would lay down their lives for their country. It may be, some few persons in this House are prisoners in the King's Bench. But this is an extraordinary case; persons that have been with the King in banishment, and they, at the King's return, for want, could not buy places of advantage whilst other men that staid at home, grew rich—Would have posts come upon particular men, and let it be laid on every man's door, but rather would have it got upon honour—Every little fellow is brought upon his oath—And not what becomes a gentleman to say. This Bill is a great reflection upon us all, and, without cause, it creates a perfect incapacity in a man to serve his prince, and country, at one time. After all the inconveniencies he has had these 30 years, thinks he should be highly tempted if he take an office—That Gentleman should have places of 4 or 5000l. per ann. and those that have been ruined have none!— Why should not those have offices that have suffered, as well as others? [Consider] the temptations of being disloyal in the late times. The King may be willing to give a man an office (and he is a great man that would refuse it)—A man that has done ill, that the King might not remove that office to a Parliament-man, that has done well, and deserves it—strange that the King should be so confined! No age wherein men were of greater loyalty than this, and now, for a few Parliament-men that have offices, to cast a reflection upon the whole assembly!—
Sir Thomas Lee.] Is a great enemy to garbling the House, as he has heard some say this Bill is. It only leaves it to a man's choice, to stay here, or go home, and that when he has an office. There are many changes in ten or twelve years, when a Parliament sits so long. Men are altered in some capacity or other. This Bill relates to no man's office now in being—Knows not but that Parliament-men may be compelled to be Sheriffs; though, indeed, in time of privilege 'tis true we may not go into the county to attend, yet knows not when in prorogation you may not be compelled to it. For the reason he has heard from Wheeler, this Bill will make the King look that popular names may not be an inducement to chuse officers from hence, and so may not be deceived.
Col. Strangways.] Observes that few are in office, that formerly have served the King—Neutral persons most. The guards are mercenary, and therefore dangerous. He that has endured all the heat of the day, would have him receive his penny too, but is for no more. Would not have those shut the door after them that have offices. Never was poor Prince, nor Kingdom, abused as ours is. No mariners paid, and yet those that bought their debentures at four and five shillings p.r pound, presently paid. For the danger he incurs and his service, he deserves an office. (For office of profit he desires none) As for the office of Sheriff, no man will desireit, unless for Yorkshire. Would have all that have offices leave them, and be chosen to them again—And the King have liberty to remove them, and take them again—As that of Parliament-man in this Bill.
Mr Secretary Coventry.] Would willingly quit his office, if it hinders him from serving the King and his country here. Justices of the Peace, and the office of DeputyLieutenants require attendance in the country, though those offices are excepted in the Bill. Would not for any office, or place whatsoever, but discharge his conscience here. Some hardships will arise in this Bill upon men — Dimmock, Champion to the King by descent, must not be chosen a Parliament-man. That any thing should force a man to a new election, that forfeits it not, is very hard; whereas, by parity of reason, if his office incapacitates a man once, it should incapacitate him again. Any man may enter into a bond to his corporation, of a thousand pounds when he takes an office, after being chosen Parliament-man, to be forfeited. Is not your mace frequently sent for the gentlemen of the Long Robe, into the Hall to attend your service? You are pleased to make use of the Privy Counsellors to carry your messages to the King. Formerly they had cushions to sit on, but were thrown out of doors, and must they be thrown out of doors too? This Bill is not consistent with the government, and he would lay it by.
Mr Vaughan.] Though we are loyal, yet there have been parties in the Parliaments, court, and country; and, in many things, have desired to advise with their country, before they give consent. Men have varied in their principles, and 'tis natural for men to do so. Where an office is inconsistent with the service of the country in the person that has it, 'tis reasonable that place should chuse another person, and where that place has no jealousy to think they shall not be well served, 'tis for the honour of the person to be chosen again. Moves for commitment of the Bill.
Col. Titus.] Never had any place at court, but what he has had these 25 years. Weighing all circumstances, he is against commitment of the Bill—There are reasons against the right of the subject—No reason why any man, but a fool or a knave, should be incapacitated to sit here. This is some invasion of the King's prerogative. If the King thinks a man qualified for an office, that is as much as to say "You will not trust him that the country trusts." You may hereby put the King upon a necessity of putting unfit men into offices. Suppose an Admiral at sea, either this man must not go to sea, or you turn him out for serving his country. These splendid and extraordinary things never yet did good. After the Long Parliament had passed the self-denying ordinance, they never did deny themselves any thing.
Sir William Coventry.] Differs from Sir Thomas Meres in his motion for adjourning the Debate. The hand that did it (himself) will stand, with all submission, to the judgment of the House in its determination, with the same heart he brought it in with. The Bill does not provide that great officers shall not serve the King. Those that have offices may be the safer in them, and those that have no places shall not get them from them that have. The old way was, men were chosen into Parliament, after they had been Privy Counsellors, and hopes so still, to be the better able to serve the country, and place they are chosen for. You are told "'tis hard for an Admiral"—and "that the Bill is not large enough for the Militia officers," which may be answered—And all the others are no objections for throwing out the Bill. We have served here a great while, and, it may be, his corporation would not chuse him again because he has no office, that another may serve them better—Consider what may be the consequence. If qualifications change— and not only absence may make us ignorant of the affairs of the place we serve for, but our presence here may do it to the office also. Edicts may meet with a stop in the Parliament of Paris, in their verification, but seldom a defeat. This case, without this Bill, may be so here. In 13 Edw. III, a writ was prayed that none of that Parliament should be Viscount, (Sheriff) or other minister, and so it went out. Here is no injury to the person by this Bill; if he have no mind to the penalty of being chosen again, if he have an office, he may chuse what he will do. Whatsoever fate you give the Bill, he does highly acquiesce in your judgment, and believes, if the Bill does not pass, it may revive in future Parliaments.
Mr Finch.] Those, possibly, may speak to the sense, though not the acceptation of the House: The consequence of this Bill is, that the service of the Crown is incompatible with that here; when you consider a man so that he has betrayed one trust, to accept of another, he will come to his corporation, to be chosen again, with an ill grace. We are not to pull feathers thus from the King. There was a time when we had wages for our service in Parliament. If no suspicion upon a man then, why must an officer be suspected now that he gets by it? If thought necessary that he should have an Estate that is chosen a Parliament-man, by increasing it he is the better qualified; having the better stake, and the more reason to support his property. In that writ mentioned of Edw. III. there is a clause, "that no Lawyer should be chosen a Parliament man." The character of that Parliament was, Indoctum Parliamentum. And Lord Coke observes, "that not one good Law was made in that Parliament." And if we should now say no Lawyer, nor Officer, should be a Parliament-man, it is in effect to say, no person that understands the business of the nation shall be. For business of the country, gentlemen may have experience, but for affairs of State they must be informed from Officers of State—self-denyal, is not so plausible an argument for this Bill. If the King knows not able men here, where shall he send, hue and cry, after them in the country? The consequence will be, you must have all officers of State out of the Lords house.
Sir William Coventry.] Sees that the sense of the House is against the Bill; and whether "rejected" or "not ingrossed" be the question, is indifferent; but the country would think better of it, if the question were "not ingrossed" than "rejected."
Friday, April 30.
Serjeant Hardres being dispossessed of his Recorder's place for the city of Canterbury, in the time of privilege, was ordered to be restored to his office. The thing being a breach of privilege, the Mayor (fn. 7) and Aldermen of Canterbury, who displaced him, were cail'd to the bar, being in custody of the Serjeant, where they all kneel'd, whilst
[The Speaker told them] That they were brought hither for a breach of privilege upon a Member of this House; whilst he was employed in the service of his country, they turned him out of the Recorder's place. They being Mayor, and Aldermen of so considerable a place as Canterbury, were supposed not ignorant, that when you violate the privilege of one Member of this House, you do it to the whole House. But finding you are sorry for what you have done, upon submission, he does discharge you, and you are discharged paying your usual fees. And the Serjeant was ordered to be restored to his place.
Sir Samuel Barnardiston. The last term, he was present at a tryal, where it appeared a great privilege of the subject was broken. He has summoned a person to make it out, who is not to be found; and desires an order to send for him.
Sir John Bramstone.] The articles against the Lord Treasurer said, "That a suit was depending, in the Ecclesiastical court, and the King's Bench." If you grant no certiorari, yet your examining a principal witness here amounts to it. Neither plantiff, nor defendant, have petitioned the House, and you call in a principal witness, and blast the reputation of the cause. On the other side, you would take it ill that a jury should find a man faulty, that you should say is a good witness. By summoning this witness, you assume a power you never had before, pending the suit, to give credit, or discredit, to a witness. Should the Lords assume hearing a cause, before it has been at tryal at Law, you would think it a great oppression to the subject.
Sir Thomas Meres.] Was always of opinion not to hear witnesses at the bar; thinks it not for your service. Why will you go to proof, when it may be, the subjectmatter of the article requires it not? 'Twill be of ill precedent for the future.
Mr Ashburnham, the Cosserer.] He has a suit now depending in Westminster-Halt, and he fears he shall have the worst of it—Prays he may have leave to bring it hither, and he hopes he shall have the better of it.
Mr Sawyer.] Recites the articles about "the Treasurer's marrying Mrs Hyde to his Son"—If you proceed to hear witnesses at the bar, you must examine the right of the marriage. These matters depending in the King's Bench, for the lands; and in the Spiritual Court, for the marriage. Those courts going one way, and you another, will much reflect on the honour of the House.
Mr Sawyer.] The sting of the business is, whether the Lord Treasurer has endeavoured by great hand, against law, in this business. They are prior possessed of them— And should it fall out that he should be innocent— Interrupted again to Order.
Mr Powle.] At the present, here are two questions on foot. He speaks to the article, whether fit to be received, or rejected. It is said "the matter is now depending in the inferior courts." As to the right of the party, every man may relinquish it, as he pleases. As a right of the nation, any man may complain of it—Great men may so awe the people, that they dare not appear themselves; the public justice of the nation may be thereby obstructed, and so the poorer sort of subjects have their causes stifled, and suppressed. Pray let us have no such doctrine here, to hinder and stifle complainants coming hither. This article is of great obstruction of justice. Brandly, the great evidence of this marriage of Mrs Hyde, sent for by extraordinary warrant, and kept to be tampered with to give false testimony!—He appeals whether a higher oppression of justice could be. In a violent manner, he has had rewards and promises, but by remorse of conscience, and shame for what he has said, is almost distracted with the sense of his sin. This way of enquiry will rather open the justice of the inferior courts. The thing may be deferred till the Parliament be up, and then carried how the Treasurer pleases—He fears that is the design.
Mr Sacheverell.] 'Tis a vain thing to go about to prove that, that when proved is of no force. Thinks it just these persons should be sent for, and strange, if this article be no crime, knows not what is. If obstructing of justice, and forcing a man to make oath before the King, at midnight, against his knowledge, be not a ground to impeach, he knows not what is.
Mr Sec. Williamson.] It may be expected he should give the House an account of what has past in this business. This Mr Brandly, was taken at the instance of my Lord Mayor, by a fair warrant, and brought to be examined before him, between eight and nine of the clock at night; as well to things relating to the person of the Lord Mayor, as the Heiress. There were no threats nor menaces used to him. Where he made a foul confession, and a shame to his coat, and in due time he will produce the warrant.
Sir Nicholas Carew.] It is said that justice has not been obstructed. There is a difference betwixt part, and all, but the frighting of one witness, may deter forty. Go on, either by the witnesses, or the question, "whether the article be a ground of impeachment."
Sir John Birkenhead.] The Lord Mayor gave bond of 40,000l. that he should not keep, or detain Mrs Hyde from her liberty. Says my Lord Mayor, "Get me clear of my bond, and the Ecclesiastical Court shall have what they please; Mr Emerton shall keep her company, or do what you please." These persons stand excommunicated for contempt; this being a marriage and no banns asked, nor other circumstances, by judgment of that court, they are not allowed to be witnesses, but stand excommunicate.
Mr Vaughan.] Suppose the King goes a hunting, and one brings an action against one of the company, of trespass for riding over his ground, should the Secretary of State hinder the proceedings, it would be proper for your cognizance, but not whether trespass, or no trespass, but whether the law was obstructed. That the thing is so or not, not now the question; but, whether the proceedings at law were suppressed by great hand.
Mr Sec. Williamson.] You are first to enquire if there be matter, and next, what proofs to it. Proposals passed from my Lord Mayor to the Treasurer, for the younger son, for Mrs Hyde. Upon the death of his mother, the Lord Mayor renewed his instances to be perfected. On January 8, he besought the Treasurer, that the articles might be formed. A few days after, came out the discovery of the precedent marriage with Mr Emerton. But there is such a fellow, practised upon, the person so beset in the country, no getting him up—This Brandly, was, by Mr Emerton, brought up to London in a stage coach; but so guarded, not to be spoken with. He was complained of to be examined for bringing the young lady to a thing next felony, the party accomplice in a matter that might be felony. He was asked, what sureties he could get. It was answered, None. So he remained in custody, till the next day—The warrant was "to all Justices of peace of Middlsex;" and he thinks through England, for attaching him." It was done without design to prevent any testimony, and making good the articles and marriage. This is what he knows in the matter.
Sir Samuel Barnardiston.] The Lord Treasurer visited my Lord Mayor, and desired him to use his interest for this match, and he would use his utmost interest for the repayment of his debt, due to him by the King, as a banker. My Lord Mayor, at last, declared he had made articles with Mr Emerton, and the young lady was married to him. The Treasurer then would know the person that married them. Both their servants went to gether to Mr Brandly, who owned that he had married them, with the time, and all the circumstances thereof. Whereupon the Treasurer gets a warrant from the Secretary to seize Mr Brandly, and did it with persons armed with swords and pistols; carries him away, and deals with him, that if he would deny the marriage, he should have 1000l. given him; if he would not, he should be ruined. This warrant, upon my Lord Mayor's letter, was served upon Mr Brandly—The King, the Treasurer, and the Secretary were present at his examination, and he was paid 20l. in part of the promised 1000l. Soon after, Mr Brandly, in great remorse, and disorder, complained that he was damned for denying the marriage upon his oath. Then upon giving him too much liquor, he denied it again. Emerton, after this, moves for an Habeas Corpus for his wife, Mrs Hyde. The Lord Mayor stands to an alias and a plures, and at last brings his daughter-in-law, Mrs Hyde, into court, and there was ordered to enter into 40,000l. Bond, not to restrain the lady. The Lord Treasurer, after this, for ten, or fourteen days, pressed the marriage with his son, and because the Lord Mayor would not consent to it, the Treasurer has endeavoured to throw all the odium upon my Lord Mayor. And this is the truth of the fact, and he will prove it.
Several questions proposed in writing [by Mr Powle] and read, and delivered at the Clerk's table, to be demanded of the Lord Mayor of London (fn. 8) :
2. Did not the Lord Treasurer, several times, promise you that, in case the match betwixt his second Son and Mrs Hyde took place, he would use his prevalent and utmost interest with his Majesty to procure you payment of the debt, which his Majesty owed you?
3. Did not the Lord Treasurer enter into articles with you, under his hand and seal, in order to this match; and before sealing such articles, did not you acquaint him with Emerton's pretence of being married to the said Mrs Hyde; and what was the date of such articles?
5. Did you not, about the 10th of January last, send down into the country a servant, at the Lord Treasurer's request, to accompany a servant of his, to examine the Minister that was said had married them? And what do you know, or believe, concerning his being apprehended by one of the Lord Treasurer's servants seizing and bringing him to Whitehall? And by what warrant was he so apprehended?
8. Did not the Lord Treasurer appoint you what Sollicitors, Attorneys, or Lawyers, should be employed in the King's Bench, and Spiritual Court ? Or did you use any but such as he first approved of? And did you not always consult with his Lordship in all the proceedings in reference to that affair? Or did you act any thing but by his direction?
9. Did the Lord Treasurer advise and direct you to stand out an alias et plures Habeas Corpus, to a fine and contempt of the court, before you brought Mrs Hyde thither? And was he not displeased and angry with you, for your giving obedience to the court at last, in carrying Mrs Hyde thither, saying, "It was too great an adventure." What was the rule of the court, which the King's Bench made, in this business, and under what penalty?
10. Did the Lord Treasurer's Son, Lord Dumblain, obey that rule of court, and forbear making his applications to her, in order to marriage? And how often did he persuade her to be contracted to him, by breaking of gold? And how was she persuaded by Lady Clifton? And what were the discontents of the Countess of Danby, that day, and your apprehensions, touching his intention to have carried Mrs Hyde away from your house?
Mr Powle.] Hears it asked "whether these Questions are pertinent to the Articles, or not?" Most of these Questions will be so. Would know how far the King is debtor to the Lord Mayor. The Lord Treasurer was the first that profferred the payment of the Lord Mayor's debts, if he would agree to the marriage. If this be so, 'tis not foreign to the Article, for it sells the King's debt, to marry his Son—And if stopping a Habeas Corpus, &c. be not a crime, 'tis strange.
When the Lord Mayor was to be called in, the Speaker informed the House, "That the Lord Mayor and Aldermen have been upon their knees here at the Bar, and you may refuse the Lord Mayor a chair. 'Tis a civility you give to a Lord that is a Peer, and not to a Commoner. The Judges who have come hither, have had chairs, because they have been called by the King's writ of attendance to the Lords house."
Lord Mayor.] As to Mr Brandly's being seized when he came to town, he knows nothing but from Mr Brandly himself. He saw the warrant from Mr Secretary Williamson, and he thinks it as a Justice of Peace's warrant, and not extraordinary.
Mr Powle.] Hears no direction, in the warrant, to any legal Officer's hand, only to a Messenger; and would have it considered, whether this is an usual way for a man to be sent for, by a Messenger, to be examined against himself.