Journal of the House of Lords: Volume 21, 1718-1721. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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January 1721, 1-10
DIE Lunæ, 9o Januarii.
Also, the Answer of John Wentworth, alias Creswell, Esquire, Thomas Cartwright Esquire, Elizabeth Phipps Widow, Grace Phipps, William Gibberd, Edward Gibberd, Richard Mathews, Hugh Elmes, William Lapworth, John Evans, and Edward Tooley, Respondents to the Petition and Appeal of the Honourable Sackville Tuston Esquire; were brought in.
The House being moved, "That Richard Howard of St. Andrew's Holbourne Grocer may be permitted to enter into Recognizance for the Honourable Sackville Tufton Esquire, on Account of his Appeal depending in this House, to which John Wentworth, alias Creswell, Esquire, and others, are Respondents; the Appellant residing in the Country:"
This Day James Earl Stanhope and John Lord Carteret came to the Table; and took the Oaths, and made and subscribed the Declaration, and also took and subscribed the Oath of Abjuration, pursuant to the Statutes; their Lordships having first delivered Certificates of their receiving the Sacrament; to the Truth whereof, Witnesses were sworn and examined.
"1. Copy of a Commission, dated 27th June, 10o Annæ, authorizing several Commissioners, therein named, to take Subscriptions, &c. till the 7th Day of July 1711, in order to erecting the Corporation of the South Sea Company."
2. An Extract of so much of the Charter granted to the South Sea Company, dated 8th September, 10o Annæ, as authorized the Directors of that Company to take Subscriptions until the 25th Day of December 1711."
"6. A Copy of the Warrant of Her late Majesty Queen Anne, dated 22th December 1713, for Letters Patent, to empower the Directors of the South Sea Company to take into the Stock of the said Company, by Subscriptions, the Debentures for the Proprietors of the Islands of Nevis and St. Christopher's."
"8. Copy of a Constitution, dated the 6th of May 1720, relating to the appointing Managers and Directors, for doing and performing such Matters and Things as, by the Act for enabling the South Sea Company to increase their present Capital Stock and Fund, by redeeming such Public Debts, &c. are directed."
They were called in; and delivered at the Bar, several Books, Papers, and Accompts, pursuant to their Lordships Orders of the One and Twentieth and Two and Twentieth of December last, with a Schedule of them; and acquainted the House, "That the rest of the Accompts, ordered to be laid before their Lordships, were preparing, with the utmost Expedition, to be laid before this House."
"An Abstract of what Public Debts and Incumbrances have been subscribed, or discharged, by the South Sea Company, pursuant to an Act of Parliament in that Behalf, since the 25th of December 1719; and in what Manner such Subscriptions were made."
"Also, an Accompt of what Money and Exchequer Bills have been received, by or for the Use of the South Sea Company, since the 25th of December 1719; and the respective Uses and Purposes to which the same have been applied."
"Also, an Accompt of what Sum or Sums of Money have been taken up, or borrowed, on Account of the South Sea Company, or which they stand engaged for, upon Bills, Bonds, or other Contracts, under their Common Seal, or otherwise, since the 25th of December 1719.
"Also, a particular Accompt of what Sum or Sums of Money have been lent out upon the Stock of the said Company; to whom at what Times, and upon what Security the same was lent; and how much of the same has been re-paid, by whom, and at what Times.
"Also, a particular Accompt of the Sum of Sums lent out upon Subscriptions taken in by the said Company, to whom, at what Times, and upon what Security the same was lent, and how much of the said Sum hath been repaid, by whom, and at what Times."
"Also, an Account of all their Proceedings whatsoever, relating to an Act passed the last Session of Parliament, intituled, "An Act for enabling the South Sea Company to increase their present Capital Stock and Fund, by redeeming such Public Debts and Incumbrances as are therein mentioned; and for raising Money, to be applied for lessening several of the Public Debts and Incumbrances; and for calling in the present Exchequer Bills remaining uncanceled; and for making forth new Bills in Lieu thereof, to be circulated and exchanged, upon Demand, at or near the Exchequer."
"An Alphabetical List of all the Names of the Subscribers to the Four Money Subscriptions, and an Accompt of the Sums severally by them subscribed; what Money has been paid thereupon, and what remains unpaid, and by whom; contained in Seven Books, (videlicet,)
Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Managers and Directors, appointed by the Commissioners of the Treasury, do lay before this House what Directions, in Writing, they have at any Time received from the Commissioners of the Treasury, relating to the Execution of an Act of the last Session of Parliament, intituled, "An Act for enabling the South Sea Company to increase their present Capital Stock and Fund, by redeeming such Public Debts and Incumbrances as are therein mentioned; and for raising Money, to be applied for lessening several of the Public Debts and Incumbrances; and for calling in the present Exchequer Bills remaining uncanceled; and for making forth new Bills in Lieu thereof, to be circulated and exchanged, upon Demand, at or near the Exchequer."
The House being informed, "That a Person from the Trustees, appointed by an Act of Parliament, passed in the Twelfth Year of the Reign of Her late Majesty, for stopping the Breach in the Levels of Havering and Dagenham, in the County of Essex, was attending at the Door:"
After hearing Counsel, upon the Petition and Appeal of the Commissioners and Trustees of the forfeited Estates, complaining of an Interlocutory Sentence, or Decree, of the Lords of Session in Scotland, of the Nineteenth of August 1719, made on the Behalf of Patrick Farquharson late of Inveray Esquire; and praying, "That the same may be reversed:" As also upon the Answer of the said Patrick Farquharson put in to the said Appeal; and due Consideration had of what was offered by Counsel on either Side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in Parliament assembled, That the said Petition and Appeal be, and is hereby, dismissed this House; and that the Interlocutory Sentence, or Decree, therein complained of, be, and is hereby affirmed.
DIE Martis, 10o Januarii.
The Earl of Clarendon reported from the Lords Committees to whom the Bill, intituled, "An Act for naturalizing John Robethon and George Robethon his Son," was committed: "That they had considered thereof; and that the Committee had directed him to report the same to the House, without any Amendment.
Upon reading the Petition and Appeal of John Arrat Esquire; complaining of an Interlocutory Sentence, or Decree, of the Lords of Session in Scotland, of the Ninth of July 1719; and the Affirmances thereof, the Eleventh of the said Month, and Sixteenth of September following, made on the Behalf of John Wilson; and praying, "That the same may be reversed:"
It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the said John Wilson may have a Copy of the said Appeal; and shall and is hereby required to put in his Answer thereunto, in Writing, on or before Tuesday the Seventh Day of February next.
It is Ordered, That the several Papers delivered in Yesterday from the Treasury, as also the Books and Papers delivered in by the Sub-governor, Deputy Governor, and Directors, of the South Sea Company, be referred to the said Committee.
Ordered, That it be an Instruction to the said Committee, "First, to proceed to take into Consideration such of the said Papers as relate to the Appointment of Managers and Directors by the Commissioners of the Treasury, for taking in Subscriptions to the South Sea Company."
Resolution, that the Constitution from the Treasury to the Directors of the S. Sea Company was legal, &c.
That it is the Opinion of this Committee, That the Constitution from the Commissioners of the Treasury, dated the Sixth of May One Thousand Seven Hundred and Twenty, appointing the Directors of the South Sea Company to be Managers and Directors, for performing such Matters and Things as by the Act for enabling the said Company to increase their present Capital Stock are directed, has been conformable to Precedents, and legal."
"1st, Because the Act of the last Session of Parliament, for enabling the South Sea Company to increase their Capital Stock (upon which Act the Legality of the Constitution in the Question must wholly depend) hath vested the Directors and Managers, to be appointed by the Commissioners of the Treasury, with such Trusts and Powers, and required such Things to be done by them, as, we conceive, could not be intrusted to the Directors of the South Sea Company to execute, according to the true Intent and Meaning of the said Act.
"2dly, Because we conceive it to be inconsistent with the said Act, that the Directors and Managers appointed by the Commissioners of the Treasury (who by the Act are intrusted to ascertain what Annuities shall be taken in, and what Debts paid off by the said Company, what Additions in respect thereof shall be made to the Capital Stock of the same Company, how much is to be paid by the said Company into the Exchequer for the Use of the Public, what new Allowance is to be made to the same Corporation for Charges of Management, to enter into Books the Prices to be agreed on between the Company on the one Part, and the Proprietors of the Public Debts on the other Part, to adjust the Accompts of the Debts and Annuities taken in by the Company, and to certify and transmit Duplicates of the Accompts so adjusted, among others, to the Directors of the South Sea Company) should be the Directors of the South Sea Company, and they only.
"3dly, Because the said Directors of the Company appear to us plainly to be concerned in Interest, so as to incline them to execute the said Powers or Trusts partially for the Company, unless restrained by a great Degree of Honesty: And if there should be any Mistake by them committed, wilful or otherwife, to the Advantage of the Company, and Disadvantnge of the said Proprietors, in any the Matters intrusted to the said Directors and Managers, we do not find any Provision in the said Act to rectify the same; nor conceive how it can be done, unless by Application to, and by the Consent of, the said Directors and Managers, who are the Directors of the South Sea Company, and no other; which we think could never be the Meaning of the Act; but that the Intent thereof must be, that the said Trusts of Directors and Managers should have been executed by impartial and indifferent Persons.
"4thly, We conceive, that the said Act expressly requires the Commissioners of the Treasury to appoint fit Persons to be Directors and Managers, for executing the Powers and Trusts above specified; and therefore, if the above-mentioned Reasons did not sufficiently prove the Constitution in the Question not to be agreeable to the said Act, yet it seems very clear to us, that the Directors of the South Sea Company were of all others the most unfit for such a Trust, and consequently not such Persons as are expressly required by the said Act.
"1st, Because the Precedents produced are all in Time before the passing of the Act of Parliament on which the present Question did arise; and therefore, in our Opinion, can be of no Weight in determining any Question that dependeth on the Construction of the said Act, unless such Precedents had been founded on some former Act or Acts of Parliament the same in all material Points with the Act abovementioned; which, it appears to us, neither the said Charter, nor Commissions, or Appointments, produced as Precedents, were.
"2dly, All the Cases relied on as Precedents (except the last) are, as we conceive, widely differing from the Case in Question. That marked No 1. is dated before the Erection of the South Sea Company; and therefore did not, nor could, conser any Powers on the Directors of the Company, which was not then in Being; but is directed to the Members of other Corporations, divers great Officers, and very many other Persons, in order to erecting the South Sea Company. The Five following, from No 2. to No 6. included, are indeed to empower the Directors of the South Sea Company; but it is only to take Subscriptions of Tallies, Orders, Debentures, and the like Government Securities, and to compute the Interest due thereon, in order to the admitting the Proprietors into the Company at the Rates stated in the Acts of Parliament, to which the Charter and Commissions relate; but none of them empower the Directors of the South Sea Company to enter, adjust, or certify, or to do any Matter relating to Contracts to be made, whereto the Company was to be a Party, as in the present Case.
"3dly, And as to the said last Case cited as a Precedent, marked No 7. which comes the nearest to the present, the Directors of the South Sea Company being thereby appointed Directors and Managers (which they are not by any of the former) to execute all the Powers given to Directors and Managers by the Act of the Fifth of His present Majesty, for redeeming the Fund appropriated for the Payment of the Lottery Tickets: Yet neither by that Appointment, or the Act referred to, had the Directors of the South Sea Company any Authority to do any Thing in relation to Contracts or Bargains to be made, wherein the Company was to be a Party; and therefore not to be compared to the present Case.
"4thly, But, if the said last and only Precedent not before taken Notice of had been a Precedent in Point; yet, it bearing Date no longer ago than the 4th of April 1719, and being signed by Four of the Five Commissioners of the Treasury, who have signed the Appointment which it is brought to justify; and having passed under Silence, no Occasion having happened to draw the Validity thereof into Question; it could be, as we conceive, of no Authority to support the said last Appointment, when it was drawn in Question, and ordered to be considered by the Committee of the whole House appointed to inquire into the Causes of the late unhappy Turn of Affairs, which has so much affected the Public Credit at Home.
Ordered, That, on Thursday next, this House shall be put into a Committee of the whole House, to take into further Consideration the Causes of the unhappy Turn of Affairs, that has so much affected the Public Credit.
Ordered, That all the Directors of the South Sea Company as are not Members of the House of Commons, together with the Treasurer, Under Treasurer, Accomptant General, and Secretary, of the said Company, do attend this House on Thursday next.