House of Lords Journal Volume 16: 17 April 1699

DIE Lunæ, 17 Aprilis.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

The Lord Chief Justice of His Majesty's Court of Common Pleas sat Speaker.

Cloribus & al. Nat. Bill.

Hodie 1^a vice lecta est Billa, intituled, "An Act for naturalizing Augustine Cloribus and others."

Doughty versus Cotton & al.

Upon reading the Petition and Appeal of Philip Doughty Esquire, from several Decrees, Orders, and Proceedings, made in the Court of Chancery, on the Behalf of Thomas Cotton Esquire and Philadelphia his Wife, and Edward Doughty Gentleman; and praying the Reversal thereof:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the said Thomas Cotton, Philadelphia his Wife, and Edward Doughty may have a Copy of the said Appeal; and shall and they are hereby required to put in their Answers thereunto, in Writing, on Saturday the Two and Twentieth Day of this Instant April, at Eleven of the Clock in the Forenoon.

Wilson versus Monoux.

The House being this Day moved, "That further Time may be allowed the Respondents, to answer to the Appeal of Jane Wilson:"

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Respondents shall put in their Answer to the said Appeal on or before the Two and Twentieth Day of this Instant April, at Ten of the Clock in the Forenoon; and that this House will hear the said Cause, by Counsel, at the Bar, on Tuesday the Five and Twentieth Day of this Instant April, at Eleven of the Clock in the Forenoon.

Message from H. C. to remind the Lords of the Bill for the Quiet of the Subject against defective Titles, &c.

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

To put this House in Mind of the Bill, intituled, "An Act for the General Quiet of the Subject, against all Pretences of Concealments, Encroachments, or other defective Titles."

Harvey versus Western.

Upon reading the Petition of Elizabeth Harvey Appellant, against Thomas Westerne Respondent; praying, a short Day may be appointed for hearing of the Cause; and that the Respondent Westerne do then produce, upon Oath, all the Books, Accompts, and Papers, relating to the Partnership, which he was ordered to produce before a Master in Chancery; and also those Books which he concealed, and were afterwards produced in Court by John Gilbert, Westerne's Clerk; and an Order for such Witnesses to attend at the Hearing as were produced to prove Writings viva Voce in the Court of Chancery:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the said Cause, by Counsel, at the Bar, on Monday the Four and Twentieth Day of this Instant April, at Eleven of the Clock in the Forenoon: And it is further ORDERED, That the Respondent, Thomas Westerne, do produce at the said Hearing, upon Oath, all the Books, Accompts, and Papers, relating to the Partnership, which he was ordered to produce before a Master in Chancery; and also those Books which were produced in the Chancery by John Gilbert, Mr. Westerne's Clerk.

Harvey's Witnesses to attend.

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That Mr. James Moody, Mr. Francis Bythell, Mr. John Warfield, Mr. Thomas Kelsey, Mr. Samuel Wallin, Mr. Jacob Bonele, and Mr. Edward Hubbert, do attend, as Witnesses, on the Behalf of Elizabeth Harvey, at the Hearing of the Cause depending in this House between her and Mr. Westerne, on Monday the Four and Twentieth Day of this Instant April, at Eleven of the Clock in the Forenoon.

Message from H. C. to return Guy's & al. Nat. Bill.

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

To return the Bill, intituled, "An Act to naturalize Scipio Guy and others;" and to acquaint this House, that they have agreed to the Lords Amendments made to the said Bill.

Wrayford's Bill.

The Lord Guilford reported from the Lords Committees the Bill, intituled, "An Act to enable William Wrayford Gentleman, and Dame Anne Rich Widow, to make Leases of Houses and Ground in Covent Garden, late the Estate of John Athy, Citizen and Haberdasher of London," as fit to pass, with some Amendments.

Which were read Twice, and agreed to; and the Bill ordered to be engrossed, with the said Amendments.

Message from H. C. to return the Bill for Augmentations on Vicarages.

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

To return the Bill, intituled, "An Act for settling Augmentations on certain Vicarages for ever;" and to acquaint this House, that they have agreed to the Lords Amendments made to the said Bill.

Leigh versus Langhorne.

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Lords Committees appointed to consider of the Petition of Francis Leigh shall be, and is hereby, revived; to sit on Thursday next, at Ten of the Clock in the Forenoon; and that all the Parties therein concerned do then attend.

Capt. Desborow's Petition; Report of Address upon.

The Earl of Rochester reported from the Lords Committees (appointed to draw an Address to be presented to His Majesty upon the Heads agreed to by the House, upon the Report made the One and Twentieth Day of March last, relating to the Petition of Captain Desborow) an Address.

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

Address upon it, concerning the Squadron at Newfoundland under Commodate Norms, not fighting Powis;

"We, Your Majesty's most dutiful and loyal Subjects, the Lords Spiritual and Temporal in Parliament assembled, humbly acquaint Your Majesty, That we have received a Petition from Charles Desborow, late Captain of Your Majesty's Ship The Mary Galley, employed in the Expedition to Newfound

desiring Desborow may be restored, and Norris su'pended.

land, in the Year One Thousand Six Hundred Ninetyseven, under the Command of Captain Norris; which Petition sets forth, "That, on the One and Twentieth of July, One Thousand Six Hundred Ninety-seven, Monsieur Ponti appeared off the Port of St. John's, which gave the fairest Opportunity imaginable to those that were then employed on that Expedition, to have taken the French, if the Intelligence that from Time to Time was given by the said Charles Desborow and others had been believed; and that, instead of receiving any Encouragement for his Readiness to do Service to the Nation, he was unjustly charged with Breach of Orders and Neglect of Duty, and dismissed from his Command:" Which we conceived to be a Matter of so ill Consequence to Your Majesty's Service, if there were Truth in it, that we thought fit to enter into a particular Examination, upon Oath, of the Allegations of the said Petition; wherein the said Desborow doth acquaint the Committee of this House, "That, on the One and Twentieth of July, Five French Ships appeared off St. John's, which were reported, by Prisoners taken, to be Part of Monsieur Nesmond's Squadron, appointed to attack St. John's: That, on the Three and Twentieth of July, Four English Men, who had been taken Prisoners by Ponti, made their Escape; and informed him, the said Desborow, "That the Five Ships before mentioned belonged to Ponti; that most of his Men were sick; and that their Provisions were short." These Four Men informed Commodore Norris the same Thing, and also that they came from The West Indies; but he would not believe them: That Alexander Cumberbatch (who was a Prisoner with Ponti, but being sent under a Guard to the Shore to get him Provisions and Liberty to Water) gave us Notice hereof by Letter; and told us, "That if we would serve our Country, this was the Time:" That Edwards and Shuttleworth brought this Letter from Cumberbatch, and affirmed the same Thing; but we would not believe them: That, on the Six and Twentieth of July, the said Desborow was sent out to discover them, and Captain Littleton was sent out the same Day, or the next, to Cerboneir; where pursuing a French Boat sent out from Ponti, the Frenchmen were forced on Shore, and surrendered themselves to the Merchant-men that kept Guard on the Island of Carboneir, who brought Five and Twenty of them to Captain Norris, to whom they owned it was Ponti's Fleet, and not Nesmond's; but he would not believe them, and threatened to whip them. While this was doing, the said Desborow came in, and assured them, there were Five French Men of War, and no other Ships near them. But neither the French Prisoners, Shutleworth, the said Desborow, nor the Four English that had been Prisoners, could be believed; so it was resolved, not to go out to fight them."

"William Essex and Charles Hashfield, being examined before the said Committee, said much to the same Effect; and particularly, "That they heard the Four English Prisoners say, That those French Vessels were Five Men of War under Ponti, come from Carthagena, who, they said, were weakly manned, and had but little Wood and Water on board."

"And Cumberbatch informed the said Committee, "That, when he came out of France, the Commissioners of the Admiralty gave him Five Hundred Pounds, and a Medal and Chain of One Hundred and Fifty Pounds Value; and gave his Mate Fifty Pounds, and a Medal of Thirty Pounds, for the Intelligence he the said Cumberbatch had given to Commodore Norris at St. John's."

"John Bayley deposed, "That the Ship Monck, where Captain Norris was Commander, had several Bales of Linen and Woollen, Brandy and Wine, Haberdashery Ware, and Druggets, on board; and that the Bales lay between the Guns, and before the Cabin Door, from the One and Twentieth to the Eight and Twentieth of July; and that the said Ship was so pestered with Goods, that she was not fit to go to Sea all the while Ponti lay there; and they took the Fishes, Top-masts, and Chains, to make a Boom across the Harbour, to keep Ponti out."

"George Wittered also deposed, "That the said Monck was so pestered with Goods, on the One and Twentieth of July, when Ponti appeared at the Mouth of the Harbour, that she was not fit to go out; and that they took the Fishes, Top-masts, and Chains, to make a Boom, to keep Ponti out."

"We have likewise looked into the Resolution of the Council of War, of the Four and Twentieth of July, One Thousand Six Hundred Ninety-seven; which was called upon receiving an Express from the Masters of the Merchant Ships at Carbonier, of Five French Men of War being seen off that Port, which the Officers of the said Council of War judged to be a Part of Monsieur Nesmond's Squadron; whre it was considered, "Whether the Squadron should go to Sea, or not?" To which Council of War the Land Officers were joined. And the Question being put, the Votes were as follows, every Man signing his Opinion to his own Name:

"Seamen:

Francis Dove, Yea.
Robert Stapilton, Yea.
James Littleton, No.
Charles Desborow, Yea.
Cooper Wade, Yea.
Roffey, No.
James Mighells, Yea.
Thomas Day, Yea.
John Cranby, Yea.
John Drake, No.
Nicholas Trevanion, No.
John Norris, Yea.
Tho. Smith, No.

Landmen:

John Gibson, No.
Thomas Dore,
Tho. Handasyd, No.
Cliff. Brexton, No.
Griff. May, No.
Hugh Boyd, No.
M. Smith, No.
Jos. Hargrave, No.
Rob't Dalyell
H. Petyt, No.
George Watkins, No.

"These Votes were signed the Four and Twentieth of July, at Three of the Clock in the Afternoon; by which it was carried, that the Squadrom should not go to Sea.

"After this, we examined all the Captains that are now in England, that had been employed on that Expedition, who owned the Intelligence abovementioned, but distrusted the Truth thereof, thinking still it must be Nesmond, and not Ponti; and yet, by out others, to be further satisfied of the Truth of the aforesaid Intelligence.

"As concerning the said Desborow's being broke by a Court Martial on the Eleventh of August following, for Neglect of Duty and Breach of Orders; we have likewise examined as many of the Captains of that Court Martial as are now in England; who do not charge the said Desborow with any particular Breach of Orders or Neglect of Duty, but referred themselves to the Depositions taken at the Court Martial for the Ground of their Reasons for breaking the said Desborow: Whereupon we had Resort to the original Depositions then taken upon Oath; and First, of John Stoneman the Master of Your Majesty's said Ship Mary Galley, which saith, "That, having sailed out of St. John's Harbour, on Monday the Six and Twentieth Day of July, they steered to the Northward; and on the Seven and Twentieth of the same, they gave Chase to Three small Sail; One whereof proved to be The Lisbon Merchant, Captain Sooks Commander, who came that Morning from Carbonier, and acquainted them, that the Night before there was taken a French Man of War's Boat, with several Prisoners, and that Captain Littleton was gone thence with them to St. John's; also that there were Five Sail of French Men of War then at Anchor in Conception Bay." He further deposeth, "That, on the Eight and Twentieth, they saw them at about Four Miles Distance from them; that the biggest of them had a White Flag at Main-top-masthead, which he judged to be a Ship of about Eighty Guns, under Sail: That thereupon they made the best of their Way for St. John's Harbour, to acquaint the Commander in Chief with it: That they plied off and on, off St. John's, till the Nine and Twentieth, when they sailed again to the Northward, the Wind at South West and by West, and the Weather very foggy: That, at Eleven that Night, they fell in with the aforesaid Five Sail near Cape St. Francis: That the Sternmost of them fired a Gun, and made False-fires; upon which all their Lights were put out immediately, and they lost Sight of them, it being hazy Weather: That they stood upon a Wind till it cleared, which was about Two in the Morning, when the Wind coming out at N. N. E. and seeing no Sail, they stood in for Carbonier, to gain Intelligence if those Ships had done any Injury there: That their Captain went ashore, and returned at Nine at Night, and brought a French Prisoner with him, which had been taken in the aforementioned Boat." He further adds, "That that Night, about Twelve a Clock, the Current set them so near to the Shore, that they were obliged to come to an Anchor till Three in the Morning, when they weighed and made Sail for St. John's; but the Wind being contrary, they got not off that Harbour till the One and Thirtieth, when their Captain went into the Harbour in his Boat, to acquaint the Commander in Chief with what Intelligence he had learnt."

"Mr. John Crow Lieutenant of Your Majesty's said Ship Mary Galley, John Carr, and Nicholas Bundock, Mates of Your Majesty's said Ship, in their several Depositions, say near to the same Effect.

"Mr. Arthur Bass, Lieutenant of Your Majesty's Ship Monck, doth depose, upon Oath, "That, being sent by Captain John Norris, Commander in Chief of Your Majesty's Ships in Newfoundland, to get Intelligence from the Northern Parts of the Coasts, on the Eight and Twentieth of July, under Bell Isle, he saw Five Ships, which he was informed by the Inhabitants of that Place were French Ships, Men of War; and that he did at the same (fn. 1) Time see in the Bay Your Majesty's Ship The Mary Galley; and, to the best of his Judgement, she was from Six to Eight a Clock no nearer to the French Ships than Two or Three Leagues."

"Which being the only Deposition that charges Desborow with being at that Distance from the French Ships; we must observe, that the said Bass was not on board the same Ship with Desborow, which the other Four Deponents were; and besides, the said Cumberbatch, who was then aboard Ponti's Ships, does depose, That on the Eight and Twentieth of July (as he believes it was), he saw a Frigate-built Ship of Six and Thirty Guns, which he took for English, which Ship in Truth proved to be the said Mary Galley;" so that it does not appear to us, that any Breach of Orders or Neglect of Duty could justly be charged upon the Petitioner Charles Desborow. Whereupon this House proceeded to pass the Three following Votes; (videlicet,)

"1. It is Resolved, by the Lords Spiritual and Temporal in Parliament assembled, That it is the Opinion of this House, that Captain Charles Desborow was unjustly broken; and also that an humble Address be presented to His Majesty, from this House, that he may be restored to His Majesty's Favour and his own just Rights.

"2. It is Resolved, That the Squadron commanded by Captain Norris, at St. John's in Newfoundland, not going out to fight Ponti, upon the several Intelligences gven, was a very high Miscarriage, to the great Disservice of the King and Kingdom.

"3. It is Resolved, That the joining the Land Officers with the Sea Officers, in the Council of War of the Four and Twentieth of July, One Thousand Six Hundred Ninety-seven, was One Occasion of the Miscarriage in not fighting Ponti.

"All which, according to our Duty, we lay before Your Majesty, to the End Your Majesty may be plainly and impartially informed of the great Miscarriage in that Expedition, and the true Cause and Ground of it; not doubting but that Your Majesty, upon a serious Reflection of this our humble Representation, will give effectual Orders for the redressing and recompensing this poor Man's Grievances and Sufferings in particular, and for the vindicating the Reputation of Your own Service, both at Home and Abroad; which, we are sensible, hath extremely suffered on this Occasion; and for preventing the like Discredit, Damage, and Misinanagement, for the future.

"And whereas several Matters of very great Consequence have been, throughout the Course of these Examinations, sworn against Captain Norris, which we forbear to enter into a more particular Inquiry of, because the said Captain Norris was not here to answer for himself; we humbly desire, That Your Majesty would give effectual Orders, that the said Captain Norris be forthwith remanded, and ordered to attend this House the next Session of Parliament, to answer such Matters as have been now objected against him; and that, in the mean Time, the said Captain Norris may be suspended from his Employment in Your Majesty's Service."

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Lords with White Staves do attend His Majesty, with the Address agreed to this Day, relating to Captain Desborow.

Message from H. C. to return the Bill for making the River Trent navigabie.

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

To return the Bill, intituled, "An Act for making and keeping the River Trent, in the Counties of Leicester, Derby, and Stafford, navigable;" and to acquaint this House, that they have agreed to the Lords Amendments made to the said Bill.

Allen versus Billingsgate Bill.

Whereas this Day was appointed for hearing Daniel Allen, against One Clause in the Bill, intituled, "An Act for making Billingsgate a free Market for Sale of Fish:"

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Petitioner shall be heard thereunto, To-morrow, at Eleven of the Clock in the Forenoon; as also Counsel for the Lord Mayor of London, if he thinks fit; and that the House be then put into a Committee on the said Bill.

Adjourn.

Georgius Treby Miles, Capitalis Justiciarius Com. Placit. declaravit præsens Parliamentum continuandum esse usque ad et in diem Martis, (videlicet,) decimum octavum diem instantis Aprilis, hora undecima Aurora, Dominis sic decernentibus.