House of Lords Journal Volume 18: 11 March 1706

Die Lunæ, 11 Martii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Merchants of London versus Bankrupts Bill.

Upon reading the Petition of several Merchants and Traders in and about the City of London, on Behalf of themselves and others; praying "to be heard to a Clause in the Bill, intituled, An Act to prevent Frauds frequently committed by Bankrupts:"

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Petitioners shall be heard at the Committee to whom the said Bill stands committed.

L. Strangford's Bill.

The Earl of Kingston reported from the Lords Committees, the Bill, intituled, "An Act for supplying the Defect of a Common Recovery suffered by Philip Smith Esquire, Viscount Strangford of the Kingdom of Ireland, and George Smith Esquire, his Eldest Son, and of the Deed which declared the Uses of the said Recovery," as fit to pass, without any Amendment.

Hodie 3^a vice lecta est Billa, intituled, "An Act for supplying the Defect of a Common Recovery suffered by Philip Smith Esquire, Viscount Strangford in the Kingdom of Ireland, and George Smith Esquire, his Eldest Son, and of the Deed which declared the Uses of the said Recovery."

The Question was put, "Whether this Bill shall pass?"

It was Resolved in the Affirmative.

Ordered, The Commons have Notice, that the Lords have agreed to the said Bill, without any Amendment.

E. of Carlisle takes the Oaths.

This Day Charles Earl of Carlisle took the Oaths, and made and subscribed the Declaration, and also took and subscribed the Oath of Abjuration, pursuant to the Statutes.

Sir R. Gwyn's Letter to E. of Stamford, Address for the Author, &c. to be prosecuted:

The Duke of Bolton reported from the Lords Committees, an Address drawn by them, upon the Resolutions of the House of Commons.

Which was read, and agreed to, as follows; (videlicet,)

"We, Your Majesty's most dutiful and obedient Subjects, the Lords Spiritual and Temporal and in Parliament assembled, beg Leave to acquaint Your Majesty, That, having taken into our serious Consideration a printed Pamphlet, intituled, "A Letter from Sir Rowland Gwyn to the Right Honourable the Earl of Stamford," we came to the following Resolution:

"That the said Pamphlet is a scandalous, false, and malicious Libel, tending to create a Misunderstanding between Your Majesty and the Princess Sophia, and highly reflecting upon Your Majesty, upon the Princess Sophia, and upon the Proceedings of both Houses of Parliament.

"May it please Your Majesty,

"This seditious Libel having been of late with great Industry dispersed among Your Subjects; we humbly beseech Your Majesty to give strict Orders for the Discovery of the Author, Printer, and Publishers thereof; to the End they may be brought to condign Punishment, according to the utmost Rigour of the Law: And we pray Your Majesty to use all Means, which shall seem proper to Your Royal Wisdom, for preventing such insolent and dangerous Attempts for the future."

Ordered, That the said Address be communicated to the House of Commons, at a Conference; and to acquaint them, that the Lords have agreed to their Resolutions, and drawn an Address to Her Majesty, to which they desire their Concurrence.

Message to H. C. for a Conference about it.

Then, a Message was sent to the House of Commons, by Mr. Rogers and Mr. Hiccocks:

To desire a Conference with them, upon the Subjectmatter of the last Conference, at One a Clock.

Ordered, That all the Lords now present be Managers of the Conference.

Bill for Amendment of the Law, &c. Lords Reasons for disagreeing to Amendments made to it by the Commons.

The Duke of Somerset reported from the Lords Committees, the Reasons for their Disagreement to some of the Amendments made by the Commons to the Bill, intituled, "An Act for the Amendment of the Law, and the better Advancement of Justice."

Which were read, and agreed to, as follow; (videlicet,)

"The Lords do not agree to the first Amendment made by the Commons, Press 2. Line 27; which is, to leave out the Clause requiring Attornies to file their Warrants, as is thereby directed:

"1st, Because Warrants of Attorney ought by Law to be filed upon Record.

"2dly, This Law is founded upon good Reason; for filing the Warrant is the proper Way of making it appear to the Court who is the Attorney, that he may be liable to answer for Irregularities and ill Practice, and also that he has a sufficient Authority to act for the Party in the Suit.

"3dly, The Suitor always pays for the Charge of filing the Warrant; and therefore the Attorney ought to be obliged to file it in due Time.

"4thly, In most of the Statutes made for Reformation of Jeofails, particular Care has been taken to make Provision for punishing the Neglect of filing Warrants of Attorney. And the Lords thought themselves the more obliged, in this Particular, to follow the Example of former Parliaments, and to require the Warrant to be filed the same Term the Attorney takes upon him to act by virtue of such Warrant:

"1st, Because, among the many Cases to which Relief is given by this Bill, there is no Help where a Warrant of Attorney is not duly filed.

"2dly, Because, although there are many Laws in Force in this Behalf, yet there has been of late a total Neglect of putting any of them in Execution.

"The Lords agree to the 2d, 3d, 4th, and 5th Amendments made by the Commons.

"To the Sixth Amendment made by the Commons, whereby the Clause empowering Courts of Law, after Issue joined, to examine such Witnesses as cannot be present at the Trial, the Lords do not agree:

"1st, Because they take such a Power to be necessary, for the Advancement of Justice, and preventing Delays; which, in many Cases, may be the Occasion of the entire Loss of the Party's Right, and are often of very ill Consequence, especially among Persons concerned in Trade, as well Plaintiffs as Defendants; for the same Proof, which by this Clause is required, to enable the Courts at Law to take the Depositions of Witnesses, who cannot be present at the Trial, will be sufficient, as the Law now stands, to oblige the same Court to put off the Trial, till the Witnesses can return into England, or be restored to their Health, so as that they may be present at the Trial: The Inconvenience, therefore, of the Want of such a Power is manifest.

"2dly, This Clause does make at least as full a Provision for a just Indifference, in Point of Examination of such Witnesses, as the Law has provided for all Examinations of Witnesses in Courts of Equity.

"3dly, This Clause may prevent many tedious Suits in Courts of Equity; for, when Persons cannot try their Causes in due Time, by reason the Witnesses cannot be present, they will be trying all Experiments, rather than lose the Testimony of their Witnesses.

"4thly, This Clause is drawn with such Caution, that no Examinations can be taken in the Courts at Law till after Issue be joined; and the Depositions can only be made Use of upon the Trial of that Issue; nor even in that Case, if it falls out that the Witnesses who have been examined can afterwards be personally present at the Trial, either by Recovery of their Health, or by the unexpected Delay of their Voyages.

"The Lords have agreed to the several Amendments made by the House of Commons, Press 4th, Line 15, Line 21, and Line the last; and also Press 6th, Line 7, Line 8, Line 20, Line 25, and Line 35.

"The Lords have also agreed to the Amendment, Press 7th, Line 6th; and to the Amendment, Press 8th, Line 38.

"As to the Amendment, Press 10th, whereby the Commons leave out from the Word ["Heir"] Line 8, to the Word ["and"] Line the last of that Press, which is the Clause relating to the Courts of Equity; the Lords do not agree, for the following Reasons:

"That Clause consists of Three Parts.

"As to the First Part of that Clause, which requires the Bill to be filed with the proper Officer, before any Process be issued thereupon against any Defendants: The Lords conceive this Provision to be agreeable to Reason and Justice, and the ancient Course in all Courts of Equity: For, at the Conclusion of every Bill, the Plaintiff prays the Court, that Process of Subpæna may issue, requiring the Defendants to appear; which demonstrates that the Process ought to follow the Bill, and not go before it; and that the contrary Practice is a manifest Abuse, only tending to encourage Suits.

"2dly, The restoring the Law in this Particular will prevent many vexatious Delays and great Expenses to the Parties, by taking away all Occasions of Disputes about the Regularity of filing of Bills, and about obtaining Costs, and other Questions relating to that Matter, which frequently happen.

"3dly, The Lords believe, that this Method will prevent many causeless Suits, by obliging the Plaintiffs to advise with Counsel, in drawing and settling their Bills before they begin to sue; for, by this Means, they will have Time to consider and be well advised of the Reasonableness of their Pretences; whereas now, they begin Suits sometimes only with a Prospect of terrifying innocent Men to a Compliance, from the Dread of the Process; and, at other Times, they are drawn in to send for Subpænas by ignorant and vexatious Persons, who are to gain thereby; and so they seldom consider of the Cause of the Suit, till after it is begun.

"4thly, The Lords hope, that no Regard to any Profits or Advantages which may arise from the Increase of the Number of Subpænas can have such Weight with the House of Commons as to hinder them from giving Relief to the People of England, in lessening the Number of vexatious Suits.

"As to the Second Part of the Clause, which obliges the Plaintiff, in Courts of Equity, to serve the Defendant with a Copy of the Bill at the same Time the Subpæna is served upon him:

"The Lords do not agree to leave it out of the Bill; because they conceive it to be reasonable, and to carry great Advantages along with it.

"1st, It seems very convenient, that Defendants, at the same Time they are served with Process, should be made acquainted with the Matter for which they are sued.

"2dly, If the Plaintiff be obliged to give the Copy of the Bill, at his own Expense, to the Defendant; it is likely to be the most effectual Way to prevent the Tediousness and Impertinence of Bills, which (as generally drawn) are a great Reproach to the Court, as well as an intolerable Vexation to the Suitor.

"3dly, This would contribute to the Cure of another very general and great Abuse, in making many Persons Defendants unnecessarily, and for Vexation only.

"4thly, This seems to be the more reasonable, because it puts Plaintiffs and Defendants upon a more equal Foot in Courts of Equity: This Part of the Clause provides expressly, "That the Plaintiff shall be reimbursed the Charges he was at for the Copy of the Bill, in case he prevails in the Suit;" and if he does not, he has no Reason to pretend to it; whereas, without this Clause, Defendants in Courts of Equity are in a very unhappy Condition. The Plaintiff is at Liberty to make as many Persons Defendants as he pleases; all of them are obliged to take Copies of the Bill, which the Plaintiff may make as long as he thinks fit; and every Defendant must put in his Answer; and when they have been at all this Charge, which generally amounts to a considerable Sum, the Plaintiff can of Course dismiss his own Bill against all, or any of them, for Twenty Shillings Costs apiece.

"It has been objected, "That, in some Cases, this may occasion great Expense to the Plaintiff; and, as the Course now is, several Defendants may appear by One Clerk, and then they may all make Use of the same Copy of the Bill."

"The Lords think, that though it be true, that several Defendants may appear by the same Clerk, who may make Use of One Copy only; yet, if the Matter were thoroughly examined into, it would be found that very few of those Defendants have escaped paying for distinct Copies of the Bill.

"If the Commons are of Opinion, That some Causes may be of such a Nature, that the giving Copies of the Bill to all the Defendants may be too expensive and unnecessary; they may, if they please, make an Exception of those Causes, as the Lords have alalready excepted Suits in the Exchequer for Recovery of Tithes; or they may oblige the Plaintiff only to serve the Defendants with true Copies of the Bills, without requiring that such Copies be signed by the Officer of the Court; which will take off all Pretence of the Greatness of the Expense, and will discover that the Ease of the Plaintiffs is not the true Ground of opposing this Part of the Clause.

"As to the Third Part of the Clause, which takes away the engrossed Copy, Abstract, or Tenor of the Bill, usually sent with the Commission to take the Defendant's Answer; the Lords do not agree to the leaving it out of this Bill;

"Because such Tenor, though it was really a true Copy of the whole Bill, can never be of any Use to the Defendant; and yet all the Subjects of England, who have the Misfortune to be sued in Chancery, must pay for this a considerable Sum, more or less, according to the Length of the Bill, although they can have no Advantage by it: But that which makes the Abuse upon the Subject more notorious is, that this engrossed Abstract or Tenor is never any true Copy, or sensible Abstract, of the Bill; but for the most Part an impertinent Scribble, and often a Piece of waste Parchment, without any Thing contained in it, relating to the Matter of the Suit.

"The Lords think, when Clerks and Officers in Courts of Justice perform Matters which require Skill, or are obliged to undergo Trouble, they ought to have just Fees and Encouragements; but they hope, when so gross an Abuse and Imposition is discovered, and laid open to the House of Commons, they will not endure that it should be continued; nor suffer the private Advantage of Clerks to stand in Competition with the general Ease of the Subject.

"As to the Clauses (A.) and (B.); the Lords have agreed."

Message to H. C. for a Conference on the Subject.

A Message was sent to the House of Commons, by Mr. Rogers and Mr. Hiccocks:

To desire a Conference, upon the Amendments made by them to the Bill, intituled, "An Act for the Amendment of the Law, and the better Advancement of Justice," at Two a Clock this Day, in the Painted Chamber.

Ordered, That the Managers before appointed be Managers of this Conference.

Williams's Bill:

The Lord Sommers reported from the Lords Committees, the Bill, intituled, "An Act to enable John Williams, an Infant, notwithstanding his Infancy, to renew a Lease of the Parsonage-house of Bugden, held under One of the Prebendaries of the Cathedral Church of Lincolne; and also for settling the Prebend of Bugden, and vesting the Ecclesiastical Jurisdiction of the Parish of Bugden in the Bishop of Lincoln," as fit to pass, with some Amendments.

Which were read Twice, and agreed to.

Hodie 3^a vice lecta est Billa, intituled, "An Act to enable John Williams, an Infant, notwithstanding his Infancy, to renew a Lease of the Parsonage-house of Bugden, held under One of the Prebendaries of the Cathedral Church of Lincolne; and also for settling the Prebend of Bugden, and vesting the Ecclesiastical Jurisdiction of the Parish of Bugden in the Bishop of Lincoln."

The Question was put, "Whether this Bill, with the Amendments, shall pass?"

It was Resolved in the Affirmative.

Message to H. C. with Amendments to it.

A Message was sent to the House of Commons, by Mr. Rogers and Mr. Hiccocks:

To return the said Bill, and desire their Concurrence to their Lordships Amendments made thereto.

Deane's Bill.

The Lord Sommers reported from the Lords Committees, the Bill, intituled, "An Act for Sale of Lands, in the Counties of Southampton and Dorset, late the Estate of Thomas Deane Esquire, deceased, for Pay ment of the Debts and Legacies charged thereupon; and for other Purposes therein mentioned," as fit to pass, without any Amendment.

Hodie 3^a vice lecta est Billa, intituled, "An Act for Sale of Lands, in the Counties of Southampton and Dorset, late the Estate of Thomas Deane Esquire, deceased, for Payment of the Debts and Legacies charged thereupon; and for other Purposes therein mentioned."

The Question was put, "Whether this Bill shall pass?"

It was Resolved in the Affirmative.

Ordered, The Commons have Notice, that the Lords have agreed to the said Bill, without any Amendment.

Answer from H. C.

The Messengers sent to the House of Commons return Answer:

That the Commons will give a Conference, as desired, at One a Clock.

Sir R. Gwyn's Letter to the E. of Stamford, Conference on the Address about:

The Commons being come to the Conference, the Managers Names were read.

Then the House was adjourned during Pleasure, and the Lords went to the Conference.

Which being ended, the House was resumed.

And the Duke of Bolton reported, "That they had attended the Conference; and delivered the Address, and desired their Concurrence to it."

Message from H. C. for another, on the same:

A Message was brought from the House of Commons, by Mr. Compton and others:

To desire a Conference, upon the Subject-matter of the last Conference.

To which the House agreed.

Then the Commons were called in; and told, "That the Lords agree to a Conference, as desired; and appoint it presently, in the Painted Chamber."

The Commons being come to the Conference, the Managers Names were read.

Then the House was adjourned during Pleasure, and the Lords went to the Conference.

Which being ended, the House was resumed.

Report of it:

And the Duke of Bolton reported, "That they had attended the Conference; and that the Commons had returned the Address agreed to by them, as follows:

Sir R. Gywn's Letter to the E. of Stamford, Address of both Houses for prosecuting the Author, &c. of.

"We, Your Majesty's most dutiful and obedient Subjects, the Lords Spiritual and Temporal, and Commons, in Parliament assembled, beg Leave to acquaint Your Majesty, That, having taken into our serious Consideration a printed Pamphlet, intituled, "A Letter from Sir Rowland Gwyn to the Right Honourable the Earl of Stamford," we came to the following Resolution:

"That the said Pamphlet is a scandalous, false, and malicious Libel, tending to create a Misunderstanding between Your Majesty and the Princess Sophia, and highly reflecting upon Your Majesty, upon the Princess Sophia, and upon the Proceedings of both Houses of Parliament.

"May it please Your Majesty,

"This seditious Libel having been of late with great Industry dispersed among Your Subjects; we humbly beseech Your Majesty to give strict Orders for the Discovery of the Author, Printer, and Publishers thereof; to the End they may be brought to condign Punishment, according to the utmost Rigour of the Law: And we pray Your Majesty to use all Means, which shall seem proper to Your Royal Wisdom, for preventing such insolent and dangerous Attempts for the future."

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Lords with White Staves do wait on Her Majesty, humbly to know what Time She will please to appoint to be attended, by both Houses of Parliament, with their Address.

Answer from H. C.

The Messengers sent to the House of Commons return Answer:

That the Commons will give a Conference, as desired, upon the Amendments made by them to the Bill, intituled, "An Act for the Amendment of the Law, and the better Advancement of Justice," at Two a Clock this Day, in the Painted Chamber.

Message from thence, to return Williams's Bill.

A Message was brought from the House of Commons, by the Lord William Pawlett and ohers:

To return the Bill, intituled, "An Act to enable John Williams, an Infant, notwithstanding his Infancy, to renew a Lease of the Parsonage-house of Bugden, held under One of the Prebendaries of the Cathedral Church of Lincoln; and also for settling the Prebend of Bugden, and vesting the Ecclesiastical Jurisdiction of the Parish of Bugden in the Bishop of Lincoln;" and to acquaint this House, that they have agreed to their Lordships Amendments made to the said Bill.

Bill for Amendment of the Laws, &c. Conference on.

The Commons being come to the Conference, the Managers Names were read.

Then the House was adjourned during Pleasure, and the Lords went to the Conference.

Which being ended, the House was resumed.

And the Duke of Somerset reported, "That they had attended the Conference; and given their Lordships Reasons for their Disagreement to some of the Amendments made by them to the Bill, intituled, "An Act for the Amendment of the Law, and the better Advancement of Justice;" and left the Bill, and the Reasons, with the Commons.

The House, taking into further Consideration the Petition of the Gentry and Clergy of the South Parts of Lancashire, came to the following Resolution; (videlicet,)

Address for an Account of Papists to be taken throughout England.

"Resolved, by the Lords Spiritual and Temporal in Parliament assembled, That an humble Address be presented to Her Majesty, humbly to desire Her Majesty, that She would be pleased to send Directions to the several Lords Lieutenants and Custodes Rotulorum, to cause the respective Deputy Lieutenants and Justices of Peace, within their several Counties, to assemble together, and then to subdivide themselves into such proper Sub-divisions as they shall think fit; and to return, under the Hands of such Deputy Lieutenants and Justices, to the said Lords Lieutenants and Custodes Rotulorum, the Names of the several Papists and reputed Papists, with their Qualities, Estates, and Places of Abode, within their several Sub-divisions; and that the said Lords Lieutenants and Custodes Rotulorum should return the same to Her Majesty in Council, and also the Names of the Deputy Lieutenants and Justices who had neglected to perform their Duties in relation to that Service; and that She would be pleased to give Direction to the Archbishops, requiring them to cause the Bishops, in their respective Provinces, to order the Clergy, in their several Dioceses, to return to the Bishops the Names of all Papists and reputed Papists in their respective Parishes, with their Qualities, Estates, and Places of Abode; and to certify the same to the Archbishops, in order that they may lay the same before Her Majesty, together with the Names of such of the Clergy as shall neglect their Duty in this Particular; and that Her Majesty would be pleased to direct the Archbishops to give Order to the Bishops, to prosecute such of the Clergy as shall be found defective herein, with the utmost Severity of Law."

Lords Committees appointed to draw an Address, to be presented to Her Majesty, upon the Petition of the Gentlemen and Clergy of the South Part of Lancashire, the Eight and Twentieth of February last, and the Resolution agreed to this Day, and the Debate in the House; and report to the House; (videlicet,)

Their Lordships, or any Three of them; to meet To-morrow, at Ten a Clock in the Forenoon, in the Prince's Lodgings near the House of Peers; and to adjourn as they please.

Queen to be attended with the Address about Sir R. Gwynne's Letter:

The Lord Chamberlain acquainted the House, "That he had attended Her Majesty, humbly to know what Time Her Majesty would please to be attended by both Houses of Parliament, with their Address; and that Her Majesty hath appointed To-morrow, at Two a Clock, at St. James's, for that Purpose."

Then,

Message to H. C. to acquaint them with it.

A Message was sent to the House of Commons, by Mr. Rogers and Mr. Hiccocks:

To acquaint them, that the Lords have sent to Her Majesty, humbly to know what Time Her Majesty would be pleased for both Houses to attend Her with their Address; and that Her Majesty hath appointed Tomorrow, at Two a Clock, for both Houses to attend Her at St. James's; and the Lords intend to be there at that Time.

Bankrupts Bill.

Then the House pursuant to Order was adjourned during Pleasure, and put into a Committee upon the Bill, intituled, "An Act to prevent Frauds frequently committed by Bankrupts."

After some Time, the House was resumed.

And the Lord Herbert reported, "That the Committee had made some Progress in the Bill; and desire another Time may be appointed, for the House to be in a Committee again, to proceed therein."

Ordered, That the House be put into a Committee again, to proceed in the said Bill, on Tuesday next, at Twelve a Clock.

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad et in diem Martis, duodecimum diem instantis Martii, hora decima Auroræ, Dominis sic decernentibus.