Grey's Debates of the House of Commons: Volume 7. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Friday, May 9.
Sir Gilbert Gerrard makes his Apology for his Pension out of the Excise.] What share I had out of the Excise was in compensation of part of the Farm which I took, &c. and I appeal to Sir Stephen Fox, whether I had any thing out of the Revenue, but in compensation of the Farm, &c. My reputation is as dear to me as my life, and if I took Money to give any one individual Vote against my conscience, I had rather be buried as deep as the centre of the earth. I will venture my life for your service, and have been against all things of Popery, and I was, the last Parliament, for removing the Duke of York from the King's Presence and Councils, &c. and against the Proviso for him in the Act for the Test of both Houses, &c. I have no more to say, but will withdraw, if you please, and leave myself to your Judgment. He proffered to withdraw, but was forbidden.
Sir Henry Capel.] No man has the least suspicion of this Gentleman. But I would have you send for Mr Charles Bertie (fn. 1), who was mentioned as a person who can inform you of several Pensions.
Which was ordered accordingly.
Mr Sacheverell.] The Law has gone upon several Priests, &c. and yet the town is full of them; and no wonder, when one of the Houses of Parliament countenances their being here. The Lords have sent for several condemned Priests. I would know, why the Lords send for them? They can give no Evidence, and the execution of them is delayed. I would send to the Lords to know the reason of it.
Sir Robert Carr.] If the Lords can dispense with that Statute of the Oaths of Allegiance and Supremacy, they may dispense with any other Law.
Mr Powle.] The Question is now, whether this be a seasonable time to set this Debate on foot, and quarrel with the Lords? Yesterday the Lords did not do a seasonable thing to deny us a Committee about settling methods of Tryal, &c. (fn. 2) I would not enter upon this matter of the Priests, &c. till the Tryal of the Lords be over. I think it not a prudential Motion to the Lords now, and pray let it alone now.
Sir William Coventry.] As to this of the Priests, your Message may be turned such a way as may give no offence to the Lords, viz. "That the Lords having sent for the Priests, &c. we, supposing it may tend to the Tryal of the Lords, desire that the Lords would communicate to us what discovery they have made that may be useful at the Tryals, &c." This will put the Lords upon giving you such Reasons for it, as may be useful to you, and by it the Lords have no just ground to deny you.
Sir Thomas Littleton.] I find that good nature works not at all with the Lords. It does just nothing by tenderness, and if you are more nice and tender than usual, they will make the bolder with you about the Pardon, &c.
Sir Thomas Clarges.] The whole manner of the Lords Proceedings, since the Plot, seems extraordinary, and I despair of Justice from them. (Whether it be my weakness to think so, I know not.) They have made a Secret Committee to take the Evidence, &c. and it is all about the town as if the Lords were the Prosecutors, and not we. May they not, in this, intercept the King's Justice? And then they may do it in all other things. By those licences no man can be safe. Another thing makes me despair: We have sent to the Lords for a Committee to adjust all disputes about the Tryals, and we are warranted by a late Precedent, in Lord Strafford's case; and I am informed, that they do not only deny it us, but in a contemptuous manner will take no notice of it. In this emergency, I think it is fit to take notice of it to them.
Mr Swynfin.] I think you are well moved by Coventry, &c. If the two Houses do not agree, you can have no fruit of all your labours about the Plot. It is strange if the Lords should not take Evidence about the Plot; it is for your service; they have communicated it to you. Had not the Lords declared by Vote, "That Impeachments, &c. depending in Parliament, cannot be tryed out of Parliament," the Popish Lords had been tryed before you met again. I would go the most reasonable way. The Lords have sent for these Persons, &c. and you have sent for Persons condemned (Coleman, &c) and the Lords may do so too. I would therefore send to the Lords, to know what discoveries these Priests have made to their Lordships for your use.
Sir Robert Carr.] I remember not that Coleman was examined by Order of the House, &c. after he was condemned; your Journal will show it. I see not that the Lords comply with you in the least, but are still taking away more Privilege from you, as lately in the Money-Bill, &c. You get nothing by gentleness, and the Lords may think to give away all your Privileges.
Sir John Trevor.] I have always admired what the Lords will do in these Impeachments. Shall the Lords go on, and examine all your Evidence by way of anticipation?—There is not one syllable, that the Justices of Peace have taken, of several examinations, by the Lords Order, but what is public. The World knows all, but what your Secret Committee have kept private. It is said, "We must be gentle with the Lords." But if the Lords encroach thus upon us, what shall we be reduced to at last? They would have encroached upon you in the Money-Bill, &c. and if Money may be had without your consent, good-night to your Privilege, and you may shut up shop. I would therefore send to the Lords to know, why, in such an extraordinary way, they have proceeded in sending for these Priests, who are attainted? If the King had done half so much, you would have complained by way of Address.
The King, by the Usher of the Black Rod, commanded the attendance of the House in the House of Peers.
Exceptions were taken at the Speaker's carrying up the Money-Bill for disbanding the Army, which occasioned this Debate following, at the Speaker's return.
Mr Trenchard.] The King may have other business with us besides passing Bills. The Money-Bill ought to have the Commons consent for the carrying it up. But as you, Mr Speaker, carried it up, it is your gift of the Money, and not ours.
The Speaker.] When a Bill has passed both Houses, it is to be carried up to the King, that it may be perfected into an Act by him in his Royal Robes. Was there any one word said against it, before I went up? Did any man stand up to move you to make any previous Vote? Had it been so, there had been something to doubt.
Sir Thomas Clarges.] You, Mr Speaker, did not know but that there might have been Debates before you had gone with the Bill. I stood up myself, if you had had patience to stay, and I would have given you my Reasons why you should not have carried this Bill up. I never knew, but that a Secretary of State did previously tell us, "That the King would pass Bills, if they were ready." And having no such intimation, I intended to have told you, that you ought not to have carried up the Bill.
Sir Nicholas Carew.] It is usual to keep the MoneyBill till the last thing, when other Laws are ready, and till then to lie upon the Table. The carrying up the Bill, in this manner, may be a Precedent, in time to come, that the Speaker may carry up the Money-Bill without any Order from the House, and may be of ill consequence. I desire that it may never be done any more.
Sir Thomas Lee.] If you claim that as a Right, the Lords may do the same with any other Bill. After a Bill is finally and fully agreed by both Houses, both have a Right to it, and you have only the Right of presenting it—The Lords may let your Bills lie upon their Table. I know not what you, Mr Speaker, could do in this case, having no directions in it.
Mr Boscawen.] All other Bills (when passed both Houses) are left with the Lords, but the Money-Bills are not. The House having no notice from the Lords that the King would pass Bills, you, Mr Speaker, could not divine that is was the King's intention to call for the Bill. I would enter it into the Journal, as a stanaing Order for the future, "That the Speaker shall not carry up any Bill, till the House have intimation from the King, or Lords, that his Majesty comes to pass Bills."
Mr Secretary Coventry.] After the Black Rod had knocked, &c. you could not ask a Question, nor we answer; you are to attend the King immediately. You may make an Order for the future.
Mr Bennet.] That word "immediately" made Mr Seymour (the former Speaker) go away "immediately;" and when the King had commanded it, &c. he adjourned the House "immediately;" and you set an Order upon your Books, &c. (fn. 3)
Mr Powle.] I take it to be the ancient constitution of Parliament, that no Bills pass till the last day of the Session, and then neither this House, nor the Lords, can stop any Bills that are ready, and they ought to be tendered to the King to pass them, or Le Roi s'avisera. I know that the usual way and custom is, that when Bills are ready, and both Houses are in great haste to pass them, they send to the King to give him intimation that they are ready, if he please to pass them. If this was not done now, it was through inadvertence somewhere. If you please to pass some Vote in it, to be a rule for the future, I am contented.
Colonel Titus.] I take it for granted, that there is no one Act that the Speaker can do, but by Order of the House. Next, how could you know that the King came to pass this Bill, or any Bills, seeing that the King comes to the Lords House on other occasions, and makes Speeches? I would gladly know, how you could know, that the King would pass the Money-Bill? You might have carried it up, to have brought it down again. I would be secured in this matter, for the future, by an Order, and I am satisfied.
Sir Thomas Clarges.] Our Money-Bills have usually had compensations; we have now a Habeas Corpus Bill that is near ready, and I would have moved you, not to have presented the Money-Bill, till that was ready for passing. You are told "That the Lords may make obstructions to your Bills, though passed both Houses, &c." But the Lords can make none, after notice is given that they have consented. We may stop our MoneyBill; they cannot—But with humble application we may show the King Reasons why we cannot bring it up. I would have an Order made, "That no Money-Bill be carried up without the consent of the House," because this Bill has.
Lord Cavendish.] Your going out of the Chair, &c. was regular; but carrying up the Bill, &c. without consent of the House, was irregular. But for the future, I would have an Order, "That not any Bill shall go up, till Bills of Grievances may be ready too."
Mr Boseawen.] I would have a Committee to examine Precedents, and inspect the Journal about this matter, and make you a Report.
Ordered, That a Committee be appointed to inspect the Journals, and search Precedents, touching the carrying up of Bills; and what previous intimation ought to be given to this House of his Majesty's intention to pass Bills; and from and by whom such notice hath usually been given; and whether the House may debate, after the Message delivered by the Black Rod for attendance of this House upon his Majesty.
The Lords desired a Conference, &c. which was agreed to, and reported as follows: "The Lords do not agree to a Committee of both Houses, because they do not think it conformable to the Rules and Orders of Proceedings of this Court, which is, 2nd ever must be, tender in matters relating to their Judicature (fn. 4)."
Sir Robert Howard.] The Lords have absolutely denied you Conference and conversation, about Methods of Proceedings in the Tryals, and you may for ever be denied it. It will be a strange spectacle to see the Earl of Danby at the Bar to-morrow, there to arraign your Vote, &c. and all the Counsel for him; and the people admitted to hear it, by pretence of not agreeing with the Lords in this Conference. They that carried this Question of not conferring with you, are resolved to carry the other Question of saving him. They who are against any Method of Proceeding, are against the thing itself; they will resolve this to be a good Pardon, and there is an end of all. Here is the case; Can any man say that ever a Pardon was obtained against the King's Coronation Oath? Edw. II. Edw. III. against all consideration of Appeal, &c. Common Nusance, &c.—Against all those visible things; all pardoned. You desire to argue with the Lords, and they will not agree with you. And now, which way shall we proceed in Parliament, in the declaratory power of Treason? A Pardon will, at the root, destroy any Act of Parliament.
Sir Thomas Meres.] Suppose the Commons say, "Their scaffolds and seats in Westminster-Hall are inconvenient," must they not be heard? But in a thing never heard of, Danby to go triumphantly into Westminster-Hall, and come back triumphantly, and be acquitted in the Lords House, must we not be heard by the Lords as to methods, &c? By this Proceeding of the Lords, all Laws are cut off. This hinders all Questions whether the Pardon be good, or no. This erects such a Judicature as was never before. In the mean time, before you proceed any farther, I would search what the Lords have done.
Mr Sacheverell.] I am really against desiring the Lords to sit this afternoon. The Lords have determined the point; they will have nothing to do with you; and I would make a Vote to have no more to do with them. This is not only Lord Danly's case, but the rest of the Lords in the Tower. If this be so, let us have no farther correspondence with them; and vote it.
Sir Thomas Lee.] I move you, to search the Lords Journals. If you find it so, then I am for all the things moved for.
Colonel Titus.] As to all the Proceedings in Lord Danby's case, and the five Lords, &c. I hear the Bishops are likely to sit. This is a novel thing, and contrary to all Precedents and practice. The Bishops are not men of blood, and will be very merciful to the Lords; it concerns us, that Law and Custom may not be changed.
Resolved, That a Committee be appointed to inspect the Lords Journal, &c.
Mr Sacheverell.] The Lords have given you no Answer at all to the point of a Lord High Steward, and let the Lords Judicature be ever so great, they ought not to go in an unusual way. To that point they have said nothing. You will find a Protestation entered into the Lords Books, and by that you will see what Lords are for it, and what against it.
In the Afternoon.
Mr Hampden reports the search of the Lords Journal.
Mr Sacheverell.] This will not abide any great delay. During all this time of the Lords settling the Order of Tryals, &c. the Bishops become concerned—Another Lord may be assigned Counsel in fortification of his Pardon, &c. Your Committee cannot give you an account of what is done to-day in the Lords Journal; but if you please, I desire, before I give you my opinion in the case, that the matters you sent to the Lords yesterday about, and their Answer, may be read, and then you are ready for Judgment.
They were read accordingly.
Now I see plainly what pass we are at. You have desired a Conference, &c. only to suppose that the Lords will not take any unusual methods; and to that you have no Answer. You next would know, upon what account the Lords desire of the 'King a Lord High Steward; and to that you have no Answer at all. Next, you have proposed a Committee of the two Houses, to prevent differences and delays in the Proceedings, &c. Notwithstanding all this foresight of yours, this is as if, "Let the Commons do what they will, they will give you no Answer." You must show your resentment, that the Commons will not suffer the House of Lords to trample upon them. If they will do at this rate, they will strain their power, as they did in the last Parliament—They ordered their Officers to make use of a considerable sum of money which was for disbanding the Army. Perhaps their Judicature is one of the greatest Grievances of the Nation. All they shelter themselves with, is their Judicature; so sacred, that we must not speak of it. There are but two ways to let the Lords know how we resent it, viz. To punish those that appear for Danby as Counsel, who are of the same degree with us, Commoners; and to take such methods as have been taken, that no person of the Long Robe presume to plead against your Vote; and if they do, that they shall be esteemed enemies to the Privileges of the Commons of England.
Which Motion was seconded by many.
Mr Boscawen.] The four Gentlemen retained Counsel for Lord Danby were at the door this morning, to have had the Opinion of the House in this matter. By what discourse I had with them, they were not forward to appear in the business. If you do it with the least noise, it is best. Gentlemen here cannot but be sensible of the consequence of the affairs depending betwixt us. I am far from giving up our Right, and yet I would not make a false step in it. Therefore I move, that if any Counsel shall presume to plead, &c. as before.
Sir Henry Ford.] The Lawyers are in little better condition, than betwixt the upper and nether mill-stone. If the Lords commit the Lawyers to the Tower for not pleading, your Vote cannot fetch them out. I would not have them plead without leave of the House.
Sir Robert Carr.] The Courts of Westminster never assign Counsel against themselves. This will be Counsel of Commons against yourselves. It is not necessary that the Lords should assign Counsel, for two reasons: It is not Counsel that will convince the Lords of the legality of the Pardon. They plead for their fees, and they have better Law near at hand, the Judges. And the Lords will not go, I presume, to Westminster-Hall, and expect that we shall go and wrangle with the Lawyers.
Sir Thomas Clarges.] Your Vote is general, and Counsel are assigned in defence of Lord Danby, by the Lords. For Counsel to appear in this case, is for a Commoner to be of Counsel against himself; for all the Commons of England are parties to this Impeachment. "All the Commons here" is by a fiction in Law, and it is a just Vote, "That no Counsel be admitted to plead in behalf of this Pardon."
Mr Vaughan.] If either House say they will, or will not do a thing, without giving any reason for it, I would not have that failure here. That large Jurisdiction of the Lords was the cause of so much blood from R. II's time to Hen. VII. I fear, the time you have spent so long will be lost by this arbitrariness of the Lords. Now for the appearing of the Counsel, &c. If the Commons are represented here, the Laws made here are as much as if all the Commons of England were here present. You cannot call all the Commons to give their voices here. When once it is said, "You represent the Commons here, by a fiction in Law" (as Clarges) your Bills will be but "fictions." Without injustice to the people of England, you cannot (for your honour) be present when the Counsel are at the Bar, to plead Danby's Pardon; and I insist positively upon the Vote moved for.
Lord Cavendish.] When Lord Strafford was arraigned for Treason, he was so far from pleading a Pardon, that he wrote a Letter to the King to pass the Bill of Attainder. This is widely different from Danby's case. In Dr Shirley's case, a Vote passed of this nature, and the Serjeant took the Counsel into custody (fn. 5), &c. and what was the consequence? We ended in a Breach; and that, I fear, will be the consequence now, and is the thing that Danby's Party in the Lords House aim at; which will be the most fatal thing in the world. Before this Vote pass, I would see a little, &c. lest things come to the last extremity; and vote only, that no Counsel presume to plead, without leave of the House.
Mr Rushworth.] In the case of Sir Ralph Ferrers, 4 R. II. Resolved, "That he ought not to have Counsel of any earthly creature, but of God himself, in case of Treason." 5 R. II. Sir Ralph Coggan impeached, &c. was denied Counsel—28 Hen. VIII. the Duke of * * * * * * had Copies of his Charge, but no Counsel, &c. In the case of Lord Middlesex, he was denied Counsel; but that was to Misdemeanors only. Lord Bristol was accused 2 Char. I. To the Earl's Answer, Counsel was allowed him; but the King sent a Message to the Lords, "That Counsel was not to be assigned in Felony and Treason." And the Lords offered the Order of 21 James, and said, "They had assigned Counsel, before the King's Message came." The Judges were not advised with; but these were plain matters of Misdemeanor, but not Felony and Treason, wherein they could not have Counsel, by the ancient and fundamental Law of the Land.
Sir John Trevor.] Several Precedents have been cited to you; give me leave to make some observations upon them. The Lords cannot assign Counsel in any Impeachment, without the leave of the Commons. The case of Ferrers was this: He was impeached for Treason; which Treason was contained in several Letters, found by a beggar, of his Correspondences in France, &c. which were afterwards found to be forged (See Cotton's Records, 4 R. II.) He was denied Counsel, &c. Coggan's case was a Riot upon the Knights of St John of ferusalem; it tended only to Treason, and he had no Counsel allowed him. The Cambridge Riot, where the Townsmen seized the University Treasure, Treason; they were not allowed Counsel. In the Earl of Bristol's case, which was not an Impeachment, the King laid it down as a fundamental Law, "That in Felony and Treason no Counsel was to be allowed, &c. but that Parliament was dissolved. By Habart's Reports (printed) the Earl of Bristol, by Law, could have no Counsel. The prisoner is always supposed as learned as the Jury. But I would ask, where matter of Law has been alleged by the prisoner, and Counsel has not been assigned him? The Earl of Danby ought not to have Counsel, and he ought to have pleaded his Pardon before you, face to face; and if it be otherwise, it is Error, and may be reversed. The Lords cannot take the jurisdiction to themselves, without the Commons, and therefore your Vote is grouned on Reason, and it binds without doors as well as within, and is no "Fiction in Law," as it is called by some. If you make a Vote that no Counsel shall appear, you conclude yourselves generally. I would have it, "That none shall appear without leave of the House."
Mr Williams.] I take the case plainly, as the Common Law stands, that whoever is at the Bar for his life, ought to have Counsel for matter of Law. And it is the Rule of Law generally, that he cannot have Counsel; but any Person indicted of Treason or Felony, in matter of Law cannot be denied Counsel. The Law is the same in Parliament, and out of Parliament; and whilst we are hunting down one man, let us have a care that we do ourselves no hurt. Danby is to stand and fall by his Pardon; and he is to live and die by it. I am not Lawyer enough to decide the matter, that here is Law in it as to this particular point. Now, whether the Lords can assign Danby Counsel, without the leave of the Commons? Take it in an ordinary case, for you must make an analogy: Have the accusers any hand in assigning Counsel? It is the Court that is judge of Law, and they assign Counsel. But it is said, "The Court is Counsel for the Prisoner;" but they may assign Counsel. We all know, the Commons have no hand in giving Judgment; it is the Lords that do it. Therefore I take that to be the reason why they may assign Counsel, and no others. I admit, that it is a more solemn thing than an Indictment of a Grand Jury. This difference is only in degree, not essentially. "But will you trust the Lords to assign Counsel?" say some. I answer: As the Lords are trusted with the Judgment, so they are trusted with every thing that leads, and induces to it. You may as well say, how can a Commoner be a Witness for a Lord? as deny him Counsel. You do not eat and drink for all the Commons of England. I take it, that the Lords are proper Judges, and of all things that induce to it. If there be Right to Danby in having Counsel, let Right be done him.
Mr Vaugban.] Consider what Williams says, "It is the Right of the Lords to assign Counsel, &c." Let him give an instance, when ever the Lords assigned Counsel out of them who are the accusers.
Mr Williams.] I spoke to the necessity of the thing. Danby must have Counsel out of the Commons, or none. The Court may assign him, for Counsel, any man whom they think fit.
Sir John Trevor.] I have had the honour to serve the King, as Counsel. I, by my Oath, am not to plead an uatruth, and if I declare an opinion for the Prerogative that I think is not so, I am perjured.
Sir Thomas Lee.] The Lords are now setting up their jurisdiction. In all causes, and in all time, courses of Parliament and Westminster-Hall have been very different. It is a strange thing, that a point of Law should be found out, by two or three Gentlemen, that neither the Lords, nor Commons, can find out. The nature of your accusation of this Lord is from the notoriety of the thing; every man is his Accuser and Prosecutor. There is a great difference, in a suit, between the King and the subject. There can be no benefit here to the Prosecutors, in the Impeachment. I make no doubt, but that the Lords may assign Counsel for their information. Lord Mordaunt escaped, &c. because the Commons would not proceed, &c. As it is now, I fear this way will destroy all Impeachments, and therefore I am against it.
Sir Robert Howard.] I have but one word to say to what we are to do. We are driven to a necessity to desend ourselves from as great a blow as we can apprehend. I will say something new to you, not yet observed. If a man be impeached at the Bar, and if matter of Law arise, the Prisoner may have Counsel. But if there be so extraordinary a thing as this Pardon, so got, and snatched from the King, and all turned into a Point of Law, it is strange.
Mr Garroway.] Do you remember what you have voted? Are you afraid of what you have done? If these Lords have Counsel assigned, be not afraid of what you have done. Let us leave our cause fair to the world, and trust God. If the Lords will retreat, they may; they will not hear you as to method of Proceedings, &c. and now you will not defend yourselves. I would say, "That if any Counsel plead in justification of this Pardon, they shall be esteemed Betrayers of the Privileges and Liberties of the Commons of England."
Mr Powle.] It is the greatest mistake in the world, to tye us up to Arguments of inferior Courts, and the greatest mistake, to presume, that this House will do any injustice, to deprive any man of his just defence. When there is just cause to have Counsel, this House will allow it to the greatest offender in nature. No Commoner ought to plead against what we have done, without our licence. But now you have made a step in this matter, never admit this to be done by the Lords, solely, and singly, upon their own power only, without admitting you to Conference, to settle methods of Proceeding in the Tryals of the Lords, &c. I see not why we should go to any extreme Votes to occasion a Breach betwixt the Lords and us. But if there be such a strange fate over us, let us not be the occasion of it, for the greater satisfaction of Country, that we have done nothing precipitately. Lord Danby is not so low, but that he has friends; therefore I desire, that, in our Proceedings, we may not do that which carries defiance in the forehead of it to the Lords. If you vote, therefore, "That no Commoner presume to plead in defence of Lord Danby's Pardon, without the consent of this House," you do that in substance which has been proposed you in words.
Resolved, That no Commoner whatsoever shall presume to maintain the validity of the Pardon pleaded by the Earl of Danby, without the consent of this House first had; and that the Persons so doing shall be accounted Betrayers of the Liberties of the Commons of England.
[Resolved, That the Answer delivered by the Lords this day, at the last Conference, tends to the interruption of the good correspondence between the two Houses.]
Saturday, May 10.
Mr Sacheverell.] Mr Bertie did acknowlege a great sum of Money (at the Committee of Secrecy) which he received and accounted for in an extraordinary manner, which never came to the Exchequer; but he says, "He has the King's hand, for his discharge." He refuses to tell the Committee what service the 200,000l. he received was for; he says only "for secret service." I would therefore command him to produce those Books of Account of secret service, and how he disposed of the Money. I know he has acknowleged such a Book to have been in his hands.
The Speaker interrogated Mr Bertie, at the Bar, thus.] Mr Bertie, the House has been informed of great sums of the King's Money, which have come to your hands, and that no account has been given of it, in the place where the King's Revenue is accounted for, in the Exchequer. The House would know, how you have disposed of those great sums to Members of the last Parliament, and if you have receipts for them? The House would have you produce your Books, that they may see how you have disposed of that Money. The House is particularly informed, that you have struck Tallies in the Exchequer for 200,000l. The House would know, how you disposed of it. The general name of "secret service" will not serve turn; you must produce your Books, and the acquittances, else you will fall under the displeasure of the House.
Mr Eertie.] Mr Speaker, I am sorry that the House has commanded me to give them an account of what I have made no account of. I hope you will not command me to disclose secrets of the King's, without his leave.
The Speaker.] It is not fair for you to entitle the King to the mismanagement of Money and misemployment of it—It is not a service to the Nation.
Mr Bertie.] I have accounted with the King, and I hope I am fully discharged of the Money.
The Speaker.] The House well knows, that the King has not time to take particular accounts of his Money. If the King has signed the Book, let us see that Book.
Mr Bertie then withdrew into the Speaker's Chamber.
Mr Hampden reports, from the Committee, the Reasons to be offered at a Conference, [as follows:
"The Commons hope that your Lordships will not proceed to the Tryal of the Lords, &c. till things are adjusted betwixt the two Houses, as they desire at all times to keep a good correspondence with the Lords, so most especially in this conjuncture, when the most heinous delinquents are to be brought to Justice: And therefore, for Answer to the last Conference, the Commons have commanded us to say this to your Lordships: That your Lordships do not offer any Answer or satisfaction to the Commons in their necessary proposals amicably offered, by way of supposition, that they might have been confirmed therein, by Answer from your Lordships, that your Lordships do intend, in all the Proceedings upon the Impeachments now depending before your Lordships, to follow the usual course and methods of Parliament.
"And farther, that your Lordships have not given the least Answer or satisfaction to the Commons, concerning your Lordships Address to the King for a Lord High Steward, though the Commons proposed their desire of satisfaction in that matter in as cautious terms as could be, to avoid all disputes about Judicature.
"The Commons, to avoid all interruptions and delays in the Proceedings against the Lords impeached, and the inconveniences that may arise thereby, having proposed to your Lordships, that a Committee of both Houses might be nominated, to consider of the most proper ways and methods of proceeding upon Impeachments, your Lordships, without any Reason assigned, (save only that you say, you do not think it conformable to the Rules and Orders of the Proceedings of this Court) have refused to agree with the House of Commons in appointing such a Committee, though not heretofore denied, when asked upon the like occasion, and at this time desired purposely to avoid disputes and delays.
"And therefore the House of Commons have commanded us to acquaint your Lordships, That, things standing thus upon your Answer, they cannot proceed in the Tryals of the Lords, before the methods of Proceedings be adjusted between the two Houses."]
Sir Robert Peyton reports an Address to his Majesty, for the Militia to be in Arms, &c. during the Tryals of the Lords, &c. [as follows:
"We your Majesty's most dutiful and loyal Subjects * * * * * * and Commons, in Parliament assembled, taking notice of the great resort of the multitude of Jesuits, Popish Priests, and other Popish Recusants, to the Cities of London and Westminster, and parts adjacent, and their obstinate continuance there, in contempt of your Majesty's Laws, and Royal Proclamations in pursuance thereof, and considering the great dangers that may ensue thereby, especially at this time of the approaching Tryals of the Popish Lords now Prisoners in the Tower, in whose behalfs some desperate attempts may be made; for prevention thereof, and for the better securing your Majesty's sacred Person, we most humbly beseech your Majesty, That you would be graciously pleased to give order, that the Militia of London, Westminster, Southwark, the Tower Hamlets, and the Counties of Middlesex and Surry, may immediately be raised and put in a posture of defence, in such proportions, and for such time, as your Mashall think fit."
The Lords concurrence was desired.]
Sir John Trevor reports, from the Conference with the Lords, a Petition from the Earl of Danby concerning his Counsel;" That they durst not appear to argue the validity of his Pardon, by reason of a Vote of the House of Commons:" And that their Lordships desired to know, whether there was any such Vote as was alleged in the Petition.
Mr Garroway.] Whether this Paper be an original, that the Lords gave you at the Conference, or not, it is no matter; but you may take a Copy, and deliver the Paper back again.
Mr Sacheverell.] I conceive that now you are to consider, whether we should give an Answer to the Lords, or whether this House can tell, whether Danby's Counsel has given him such an Answer in matter of fact? When the Lords can give you satisfaction to the desires of this House for a Committee to adjust matters of the Tryals, &c. by way of good correspondence, then it is time to proceed.
Mr Vaughan.] Look over the Journals from Edw. III's time, and you will never find that we ought to be asked Questions at a Conference. In plain terms, this is an accusation against the House of Commons, and you are asked, whether you are guilty, or not guilty? In Sir John Fagg's case, which Gentlemen may very well remember, you were asked at a Conference, whether it was by the Speaker's Warrant, that the Counsel who appeared, &c. were attached (fn. 6).
Mr Powle.] I remember that Question was asked at a Conference, and then it was said, "That the proper way of asking a Question was by way of Message, and not by Conference." But I would not have you take that for granted that it is not parliamentary to ask Questions; for it is so; but then by a Message, and not at a Conference.
Sir Thomas Meres.] A Question that we like not we let pass, and make no Answer to, and this Question will keep cold.
Sir Thomas Littleton.] I would not let this thing altogether sleep, but would order some Members to search the Journals, to see whether there have been such Proceedings in the like cases.
Colonel Titus.] I doubt not, but a Question may be asked from either House. The Lords desire to know whether such a Vote has passed this House, or no? As much as to say, "If you have, then we'll take a course with you." This business being over, I will acquaint you what Money has been issued out of the Exchequer for secret service, in Lord Southampton's time. By comparing estreats of other years, all the expence was 34,000l. and in this Treasurer's time, in six Terms has been expended 231,600l. This I have not upon hearsay, but good information. Of this sum, there has been paid to Mr Charles Bertie 197,000l. This he cannot deny. We have traced it so far as to find that Bertie has a Book, wherein all this is set down. He answered the Secret Committee, "That without leave of the King, he would not produce the Book." If the power of the House cannot command him to bring this Book by to-morrow morning, &c.
Mr Sacheverell.] There were more Books than this that we are informed of. Mr Bertie said, "That this Money was paid, without account, to the Exchequer: He accounted for it to the King, and has only [his hand?] for it."
Therefore press him to tell the House, how many Books there are, and in what manner he is discharged for the Money?
Sir Thomas Clarges.] There is one Book we can prove, by one that gave it him.
Mr Bennet.] Tell him what you will do with him, in case he refuses to inform you, &c. It is his embezzlement of the Money, and he has cozened the King and the Nation, if he refuses to inform you; and a good Bill will make him tell you how the Money was disposed of, and refund too.
Mr Bertie. again at the Bar.
The Speaker.] Mr Bertie, I hope you will give speedy and sober Answers to the House, who are satisfied that great sums of Money have gone through your hands for secret service, and particularly that you have struck Tallies for 200,000l. in a year.
Mr Bertie.] I disposed of none, and had no Tally. I remember not who I assigned it to. I have adjusted it with the King, and I made no account of it, and am discharged by the Privy Seal, that enabled me to receive it without account.
The Speaker.] Was any of it disposed of to any Members of the last Parliament?
Mr Bertie.] I remember not lending, paying, or assigning of the Money. It may be, it was for lands the King bought of some Persons. Usually, I presume, I took acquittances, and I delivered them up. I keep no Book, nor accounts of them. I delivered them up about March last, and am fully discharged. To what and to whom I paid the Money, I have no account about me. I needed no discharge at all, being sufficiently discharged by the Privy Seal. About March was the last time I had the Book, and then I delivered it to the King's own hand, and I know not who the King gave it to, to keep. It was in his Closet, and nobody was present.
And being interrogated farther about the Books, &c. he said,] I have no Books, but some short accounts of Papers which I stiched into Books. My discharge is in the Exchequer, and the King looked upon the particulars of the account, and said "he was satisfied." He withdrew.
Colonel Titus.] Mr Bertie has made you a discourse with many subterfuges. We are able to prove, that there is such a Book, and it was delivered to Bertie's own hand. The Honourable Person, Sir Robert Howard, can satisfy you in it.
Sir Thomas Clarges.] It does appear, that the Warrants for the Money were signed by the King, they were procured by Lord Danby alone, and drawn by this Gentleman, and not by the Secretaries of State, whose Office it was to draw Warrants for Privy Seals. Lord Danby drew all these sums by his procurement. He was Secretary himself.
Sir Robert Howard.] This very time the Warrants for secret service were procured by Lord Danby, and countersigned by himself. (He took up the Secretaries places; they had little to do.) The Privy Seal was granted, and the sum is right. As for the manner of the thing, such a thing has been done for secret service without account, to the end that spies may not be known in the Exchequer. If it be a free gift, it is so declared in the Exchequer. The Money granted for secret service, is true to the proportion told you here. If the King should send an account into the Exchequer, he would tell tales of all, and therefore it passes without account. The thing is at the bottom. Bertie tells you, "he has a Privy Seal, and will give no account." It is certain, that no man is so unwise, but he will keep notes of what he does, and there were original directions to whom this Money was to be paid. He gave his own acquittance for the Money. This is a thing of an extraordinary nature, and will hardly pass without account, when you come to that part of it.
Sir Thomas Player.] It is a pity this Gentleman's name is not Osborne. Danby committed Treason, and says, "the King bid him do so." And this Gentleman is charged with disposing of Money to Members of the last Parliament, and such vast sums for secret service, and he tells you, "That he did it by Order from the King." To help to destroy the Nation by Order from the King! I move you therefore, that you would let this Gentleman be secured, because he charges the King, &c. and that you would address the King, "That he may bring you an account of this public Money; that this House may take some course to prosecute this Gentleman for embezzling the public Money."
Mr Powle.] Mr Bertie has told you, "He disposed of the Money, &c. and had no particular directions from the King." There is a case in all times, when Money is to be issued out for secret service, and is not for in accounted the Exchequer, and by slight account passed over.
Mr Bertie was called in again.
The Speaker.] The House is dissatisfied with your present Answers, and have certain knowlege of great sums, and you could not pay such great sums without a receipt. The House will not take advantage of your present Answers, but have sent for you again, and expect a directer account from you. By what warrant could the Treasurer countersign the Privy Seals, and know not the sums?
Mr Bertie.] I have no Book, and I cannot inform you, else I would really produce the Book. I had directions from the King himself, sometimes by the King's warrant, and sometimes by my Lord Treasurer himself. The King himself sometimes directed me the payment of several sums.
The Speaker.] But here have been great sums paid.
Mr Bertie.] I hope the House will not require me to tell you, without the King's leave. By the King's Order, I paid the Money; it is impossible for me to give you an account for three or four years, of sums I have paid, If I had the King's leave and command, I would answer, &c. but I never discovered the King's secrets without his command; and the Treasurer's orders were in pursuance of the King's commands. If the King pleases to give me his commands, I am ready to inform you. In that Book, of all the particulars of secret service, I trusted nobody to write it. I wrote it fair, and, I confess, I took a copy of it. The acquittances were my vouchers, and who signed them I humbly desire not to declare, without the King's leave. No servant of mine did ever do any perfect thing, but only took Memorandums, when I was in a hurry of business. I had the payments, &c. always in notes, and I needed no cashiers, and had little trouble in telling Money. Scarce a man that deals in Lombardstreet but has had notes of me, and most part of the Money I paid in notes. I do not remember the Goldsmiths names—I think I have had of Mr Duncombe—and sometimes notes upon Goldsmiths whom I never saw in my life, nor spoke with. He withdrew.
Sir Samuel Barnardiston.] I would advise you to examine the Goldsmiths Books, Duncombe's and the rest. You may know much.
Sir Robert Howard.] Since these two years (fn. 7), there has been issued out of the Exchequer, for secret service, &c. 252,467l. 1s. 9d.
Mr Garroway.] Mr Bertie does not scruple to acknowlege the receipt of the Money, but he will not tell you to whom it was paid, without the King's leave.
Mr Williams.] These things reflect upon the King's honour, and I move, "That Mr Bertie may be committed to the Serjeant, till you can consider what farther to do with him." All is laid upon the King. Men are come to that degree of confidence, that it will never be well till you make them great examples. The last Parliament, the Nation was mightily induced to the French War, by the encouragement of some of your Members, and you had a Poll-Bill for the use of the Navy, and the Officers of the Navy treated with the Merchants for several things, and you were told, that "that Money was in the NavyOffice, in a room by itself." As soon as they had got the Merchants goods, this Mr Bertie, by his tricks, paid them nothing, and converted the Money to another use; and in the condition you are now in, you have occasion for credit, and you lie exposed to all your enemies, and he has mispent your Money. Look into the Records, and you will find one Article against the Duke of Somerset, "That he had corrupted Parliament-men." It was one of the chief Articles, &c. and shall we be afraid to do less? Nothing contributes more to the destruction of the Nation than this. Where a man has done so ill, I would make no scruple, by the legislative Authority, to cut him off. Lay your hands on your hearts. I think this man is guilty, &c. who can inform you, and will not. I would therefore imprison him, and when such men as he can inform you, and will not, I would squeeze the orange, and make them refund.
Ordered, That Mr Charles Bertie be committed to the Custody of the Serjeant at Arms attending this House, for his contempt of this House.
[Ordered, That the Officers of the Ordnance do attend on Monday Morning next, to give this House an account touching the Train of Artillery and Ammunition that are ordered to be shipped for Portsmouth.]