House of Commons Journal Volume 12: 25 January 1698

Martis, 25 die Januarii ;

Nono Gulielmi Tertii.

Prayers.

Committees.

ORDERED, That all Committees be revived.

Duties on Glass.

A Petition of the poor Working Glass-makers, in and about Stourbridge, in Worcestershire, was presented to the House, and read; setting forth, That, by reason of the great Duties laid upon Glass-Wares, many of the Petitioners are reduced to that Poverty, that they are forced to live upon the Parish; and more must do the like, if the said Duties be continued; the Glass-masters not being able to carry on their Trades: And praying the Relief of the House therein.

Ordered, That the Consideration of the said Petition be referred to the Committee, to whom the Petition of the Glass-makers of the Town of Stourbridge is referred: And that they do examine the Matter thereof; and report the same, with their Opinion therein, to the House.

Duties on Leather.

A Petition of the Fellmongers, Glovers, and others trading in Leather, in the County of Essex, in behalf of themselves, and others of the same Occupations within the said County, was presented to the House, and read; setting forth, That the general Decay of their Trade, and the great Impoverishment of great Numbers of them, is occasioned by the great Duty upon Leather, and must, in all Likelihood, end in the Ruin of the Petitioners, and their Families: And praying the Duty upon Leather may be taken off.

Ordered, That the Consideration of the said Petition be referred to the Committee, to whom the Petition of the Aldermen, Stewards, and Company of Fellmongers, Leather-dressers, and Glovers, in the City of Chester, is referred: And that they do examine the Matter, and report the same, with their Opinion therein, to the House.

Ditto.

A Petition of the Tanners, Fellmongers, Shoemakers, Glovers, Leather-dressers, and Artificers of the LeatherTrade, within the Borough of Bodmyn in the County of Cornwall, was presented to the House, and read; setting forth, That their Trades are generally carried on by Credit; but the excessive Duty on Leather, which is paid with ready Money, obstructs that general Credit with which their Trades were formerly carried on; and People discouraged to buy, by reason of the Decay of Trade: And praying the Consideration of the House therein.

Ordered, That the Consideration of the said Petition be referred to the Committee, to whom the Petition of the Aldermen, Stewards, and Company of Fellmongers, Leather-dressers, and Glovers, in the City of Chester is referred: And that they do examine the Matter; and report the same, with their Opinion therein, to the House.

Vesey's Nat.

Sir Henry Colt, according to Order, presented to the House a Bill to naturalize Dudley Vesey, an Infant: And the same was received.

The Bill was read the First time.

Resolved, That the Bill be read a Second time upon Saturday Morning next.

General Naturalization.

A Motion being made, and the Question being put, That Leave be given to bring in a Bill for a general Naturalization.

It passed in the Negative.

Dun Navigation.

A Bill to make the River Dun, in the County of York, navigable, at the Charge of such as shall undertake the same, was, according to the Order of the Day, read the First time.

Resolved, That the Bill be read a Second time, upon Tuesday Morning next.

Godolphin's Will—Privilege of a Member in a Suit.

Mr. Travers reported, from the Committee, to whom the Petition of Don Phillip de la Guerra, relating to the Will of Sir William Godolphin, was referred, the Matter, as it appeared to the said Committee, and their Resolutions thereupon; which they had directed him to report to the House: And which he read in his Place; and afterwards delivered in at the Clerk's Table: Where the same were read; and are as follow; viz.

That the Committee, at their First Meeting, received from the Petitioner a Spanish Copy of the Notarial Act of the 30th of March 1696, set forth in the Petition, as the last Will of Sir William Godolphin; and a Translation thereof in English; with a Procure to the said Don Phelipe to exhibit the same.

That the Relations also of the said Sir William laid before the Committee another Will, on which Administration was granted to them; and represented several Facts relating to this Affair.

That both Sides also were heard by their Counsel.

And, the Case being new, and very extraordinary, the Committee directed a particular Report of the Fact to be made, as it appeared to them upon Examination; with their Observations on the same; and their Opinion upon the Whole; as followeth;

That, upon comparing the Petition with the Notarial Act, the Petitioner appears to have been misinformed in several Matters of Fact; for the Committee did observe, That there is not the least Mention, in the Notarial Act of the 30th of March 1696, (which the Petitioner calls the last Will and Testament, in Writing, of Sir William Godolphin; and offers to prove it so) of any of the Legacies to Sir William's Relations, which the Petition suggests.

And whereas it is alleged, That Administration was granted to the Relations, before the said Will could be returned into England, or any Caveat entered; the Committee were satisfied, That the Relations had sent over a Commission to Spaine, to prove their Will; and got it executed there; and had it returned several Weeks before Administration was granted to them.

That the Administration also appears to be cum testamento annexo; and not granted to the Relations, as next of Kin, as is suggested in the Petition.

That, as to the Notarial Act itself, the Committee observed, that it was an Instrument certified by a publick Notary, but not signed by or with the Name of Sir Wm. Godolphin; and that the Tenor of it was, a Power given to Four Persons, whereof Three were Priests, named therein, to make and pass, after his Decease, his last Will and Testament; expressing therein, the Gifts, Legacies, Foundations of Memories, good Works, Patronages, and other Dispositions which he had communicated to them; to be disposed of in such Manner and Form, as should appear to them to be most requisite and convenient; adding Two other Persons to be joined with the former Four in executing the Will which should be made after his death, by the Four, for the Good of his Soul; which he declared his universal Heir; giving to every one of the Six named in this Instrument a Legacy for himself and certain Sums for Masses, and other superstitious Uses, to the Value, in the whole, of near 2,000 Pistoles; revoking, disannulling, and making void, all other Wills, Codicils Powers to make Wills, or any Dispositions, which he may have made heretofore, either by Word, Writing, or in any other Form; to the end they may have no Force nor Avail in any Court of Justice, or otherwise: And desiring, That this Power, and the Testament which should be made by virtue thereof, be performed and executed as his last and determined Will.

That the Committee, taking notice that this Power referred to Instructions, asked Don Phelipe for a Copy of the Instructions given by Sir William Godolphin to his Testamentario's; but were answered, That he had not seen any such Instructions: And being ordered to bring with him, at the next Meeting of the Committee, the Will which the Testamentario's had made after Sir William's Death, he brought them an Abstract of the Legacies and Dispositions therein; but did not produce the whole Instrument, though he acknowledged the Abstract was made here, and not sent to him in that Form out of Spaine; but that it did agree in Substance with a Writing to that Effect, remaining in the Hands of the Secretary to the Spanish Ambassador residing here: And being desired to get and produce that, he did, at the next Meeting of the Committee, acquaint them, That he could not procure it.

That the Counsel for the Petitioner urged, That the Power to make a Will was good by the Laws of Spaine: That the Testamentario's had made a Will pursuant to that Power; and Legacies were given by them to Persons in England, and the Residue to the Poor: That they ought to have Liberty to prove their Will; but were obstructed by Privilege: Also, That the Instrument produced might be understood to be, not only a Power, but a Will in itself; for that there were Legacies given therein: And that the Four Testamentario's, with the Two others added to them, were in the Nature of Executors; and that, though some Clauses therein might be void, according to our Law, yet utile per inutile non vitiatur.

That the Counsel for the Relations cited the Rule of Law, Facultas testandi est jus personalissimum, dependens à solâ voluntate ipsius testatoris; et adeo ei adhæret, ut non sit transmissibilis ad alium: They admitted, That, by the Laws of Spain called leges Taurinæ, a Man might delegate this Power of making a Will; but under certain Limitations, which are not found in the present Case: 1st, They must, for preventing Frauds, have particular Instructions in Writing: Those are not produced here; and the Testamentario's always refused to shew any such to the Relations, though often demanded on their behalf in Spain, as appears by a Letter from Mr. Stanhope, the English Envoy there: In the next place, according to that Law of Spain, no Commissary, by virtue of such a general delegated Power, could give above One-fifth of an Estate from the Family; but these Testamentario's have given away near Four-fifths, and left but about One-fifth, which they could not come at, being in England: 3dly, This Law is restrained indigenis Hispaniæ; whereas Sir William Godolphin was an Alien there; and, being a Subject of England, could not make his Will but according to the Laws of England.

That they urged, That, in point of Law, one Man cannot make another's Will, nor delegate to another a Power of doing it; and cited Mr. Swinburn's Authority, in these Words; "If the Testator should refer his Will to the Will of another; as if he should say, I give thee Leave and Authority to make my Will; and to make Executors for me, whom thou wilt: If thereupon, thou didst make a Will in his Name; yet this Will is void in Law; for, as thy Soul is not my Soul, so thy Will is not my Will, nor thy Testament my Testament."

They did further insist, That if this Instrument of the 30th of March 1696, should be reckoned valid, as to the particular Dispositions therein specially mentioned, which do not amount to above 2,000 Pistoles; and as to the Revocation of all former Wills; yet this cannot be admitted to be the last Will of Sir William Godolphin, because it refers plainly to another Will to be made after his Death by the Four Testamentario's; which he declares, in this Instrument, shall be reckoned as his last and determinate Will; and the Six Persons named in this Power were to execute the same.

That they being limited as to their Legacies, if they were capable of taking any; or of being Executors, as the Priests are not by our Law; yet they could be only Trustees as to the Residue, and that for the next of Kin, in this Case; the making the Soul the Heir being utterly void, and of no Effect.

That the Committee had also before them the Testamentary Disposition, declared by the said Sir Wm. Godolphin, and, at the Desire of Mr. Stanhope, the English Envoy at Madrid, repeated, writ down, read to, and approved of by him, some few Days before he died, in the Presence of several Witnesses, who have been since duly sworn by Commission out of the Prerogative-Court of Canterbury; on Return whereof, Administration, with the said Testamentary Disposition annexed, was granted to Francis and Elizabeth Godolphin, Two of the Legatees; who are also the only Persons next of Kin, in equal Degree, to the said Sir William.

And the Committee took Notice, That this last Will stood by itself, and was independent on the Notarial Act of the 30th of March, and Three Months after it; and that no Procure appeared to them to have been given for disturbing this Administration of the Relations, till the 7th August 1697, when that produced by Don Phelipe bears date; being Thirteen Months after Sir William's Death, and Eight after Administration granted; arising, as it seemed to the Committee, from an Opinion of Two Civilians, That that Notarial Act would be admitted as a Will here; which, the Committee were informed, would, in consequence, force the Relations to resort to the Priests in Spain for their Legacies.

That the Committee observed, That his last Disposition shewed he retained his natural Affection for his Family, as far as he was permitted to act freely; the principal Legatees being the only surviving Children of that Brother, whom Sir William left Executor, in a Will he made just before he went out of England; which Will was produced to the Committee.

That it was proved to the Committee, That when one of Sir William's Relations, whose low Circumstances had been certified by the Magistrates of Falmouth, where she lived, had applied for some Exhibition out of that large Fund of Charities which was left by him, she received this short Answer from the Testamentario's, That she was no Catholick, and therefore it could be no Charity to give her any thing.

That the Committee were also informed, That the said Sir William Godolphin had been bedrid several Weeks before the said Notarial Act was passed; and in that Condition was surrounded, and, in a manner, subdued, by Priests, Jesuits, and Friars; so that his own Nephew, who went from England to visit him, could be admitted but seldom to his Presence: And he acquainted the Committee, That his Uncle told him, That the Priests were ready to tear him in Pieces for his Estate; so that the Disposition to the Relations, of what the Testamentario's then knew was in England, seemed to be but their Permission to let him act freely for so much as they did not hope to come at otherwise for themselves.

And that upon the whole Matter the Committee came to the following Resolutions; viz.

Resolved, That it is the Opinion of this Committee, That the Notarial Act at Madrid, of the 30th of March 1696, for so much thereof as relates to a Power pretended to be given to Four Persons, therein named, to make Sir Wm. Godolphin's Will after his Death, is null and void.

Resolved, That it is the Opinion of this Committee, That the Expression used in the said Notarial Act, of Sir William Godolphin's declaring his Soul his universal Heir, is void, and of no Effect, in our Law.

Resolved, That it is the Opinion of this Committee, That the Administration granted to the next Relations of Sir William Godolphin, on a Will solemnly declared by him some few Days before his Death, in Presence of a competent Number of credible Witnesses duly sworn by Commission out of the Prerogative-Court of Canterbury, is well granted, and ought to have its full Effect.

Resolved, That it is the Opinion of this Committee, That there is no reason that Charles Godolphin Esquire, a Member of this House, should wave his Privilege in this Case.

The said Resolutions, being severally read a Second time, were, upon the Question severally put thereupon, agreed unto by the House.

Ordered, That a Bill be brought in upon the Three First of the said Resolutions: And that Mr. Traverse, Mr. Boscawen, and Mr. Solicitor-General, do prepare, and bring in, the Bill.

Estates given to superstitious Uses.

Ordered, That Leave be given to bring in a Bill for the better Discovery of Estates given to superstitious Uses: And that Mr. Pendarvis, Mr. Godolphin, and Mr. Solicitor General, do prepare, and bring in, the Bill.

Salt to be sold by Weight.

Mr. Foley, according to Order, presented to the House, a Bill to oblige all Retailers of Salt to sell by Weight: And the same was received; and read the First time.

Ordered, That the Bill be read a Second time upon Saturday Morning next.

Woollen Manufacture.

Ordered, That the Bill to encourage the Woollen Manufacture in England; and to restrain the Exportation of Woollen Manufactures from Ireland into Foreign Parts; and for the better preventing the Exportation of Wool from England and Ireland; be read a Second time Tomorrow Morning.

Supply.

Sir Thomas Littleton, according to Order, reported, from the Committee of the whole House, who were to consider further of the Supply to be granted to his Majesty; and of Ways and Means for providing for the Deficiencies, and disbanding the Army; the Resolutions of the said Committee; which they had directed him to report to the House; and which he read in his Place; and afterwards delivered in at the Clerk's Table: Where the same were read; and are as follow; viz.

Resolved, That it is the Opinion of this Committee, That for the encouraging the speedy advancing the Sum of 250,000 l. by way of Loan, for the disbanding the Army; together with the Sum of 600,000 l. already encouraged to be advanced for the Use of the Fleet, and other Exigencies, and Services of the Government; there shall be Provision made for the raising and satisfying the said Eight hundred and Fifty thousand Pounds, with Interest, within the Year 1698.

Resolved, That it is the Opinion of this Committee, That a further Time be allowed for purchasing the Annuities mentioned in the Act, intituled, An Act for enabling such Persons as have Estates for Life in Annuities, payble by several former Acts therein mentioned, to purchase and obtain further or more certain Interests in such Annuities; and in Default thereof, for admitting other Persons to purchase or obtain the same, for raising Monies for carrying on the War against France.

The said Resolutions, being severally read a Second time, were, upon the Question severally put thereupon, agreed unto by the House.

Ordered, That a Bill be brought in upon the last Resolution: And that Mr. Attorney-General, Mr. SolicitorGeneral, and Mr. Lowndes, do prepare, and bring in, the Bill.

Supply Bill; Discount on Exchequer Bills.

An ingrossed Bill for reducing the Discount on Exchequer-Bills, and giving them a better Currency, was read the Third time:

And a Debate arising thereupon;

Resolved, That the Debate be adjourned till Thursday Morning next.

Acts relating to Exchequer Bills, &c.

Resolved, That this House will, To-morrow Morning, resolve itself into a Committee of the whole House, to consider of the several Acts relating to the ExchequerBills, and the Malt-Tickets.

False indorsing Exchequer Bills.

The House proceeded in the further Examination of the Matter touching the false Indorsement of Exchequer-Bills:

And Mr. Peters was called in; and further examined, touching the Charge of Money, and Exchequer-Bills, charged in Excise, in May 1697, presented to the House upon Saturday last.

And then he withdrew.

Also Mr. Presgrave and Mr. Hern were called in; and examined.

And then they withdrew.

Candles.

Ordered, That Candles be brought in.

And they were brought in accordingly.

Then Mr. Powell was called in; and examined.

And then he withdrew.

Then Mr. Stent was called in; and examined.

And then he withdrew.

Which Examination relating to Charles Duncomb Esquire, a Member of this House;

To which he being heard in his Place;

And then withdrawn;

Resolved, That Charles Duncomb Esquire, a Member of this House, having contrived and advised the making false Indorsements of Exchequer-Bills, and paid the same into the Receipt of Exchequer for Excise, although they had never passed through that Revenue, be, for the said Offence, committed Prisoner to his Majesty's Tower of London: And that Mr. Speaker do issue his Warrants accordingly.

Ordered, That no Person be admitted to converse with the said Mr. Duncomb, by Letters or otherwise, until the further Order of this House.

Ordered, That the said Mr. Duncomb be permitted to have a Servant to attend him in the Tower.

Ordered, That the said Mr. Duncomb do give in his Answer and Defence, in Writing, upon Friday Morning next.

Ordered, That Mr. Bartholomew Burton be remanded to the Prison of Newgate: And that Mr. Speaker do issue his Warrant accordingly.

Resolved, That this House will, upon Friday Morning next, proceed in the further Examination of the Matter touching the false Indorsement of Exchequer-Bills: And that all Persons who attended this Day, do then again attend this House.

Ordered, That Mr. Alvarez de Costa and Mr. John de Costa do attend this House upon Friday Morning next.

And then the House adjourned till To-morrow Morning, Ten a Clock.