House of Lords Journal Volume 16: 14 May 1701

DIE Mercurii, 14 Maii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

King's Bench and Fleet Prisons for regulating, Bill, Report of Reasons for Amendments to:

The Lord Viscount Longueville reported from the Committee, some Reasons drawn by them, for their Lordships Amendments to the Bill, intituled, "An Act for regulating the Prisons of The King's Bench and Fleet."

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

"1. The Bill makes a total Change in the Method of Proceedings in the King's Courts at Westm'r; which is, that Persons arrested by Process out of those Courts should be brought to those Prisons, the Officers of which Prisons are under the immediate Inspection of those Courts, and are always present in the Courts, to answer Complaints and Actions that may be brought against them, without arresting them.

"2. Country Gaolers, being remote from the Courts at Westm'r, may more easily oppress their Prisoners, or give them too much Liberty ; and the Judges at the Assizes cannot possibly have Time nor Power to redress Complaints against the Gaolers.

"3. Men arrested for Debt in their own Countries, may more easily obtain Favour there from the Gaolers.

"4. If the Prisoners are permitted to have Liberty in the Towns where the Prison is, the Inhabitants will probably connive at it, by reason of the Profit they will get by entertaining them in their House.

"5. It lays an heavy Burthen upon the Sheriffs, who must answer for all Escapes; whereas now the Plaintiff or Defendant, or the Sheriff himself, may, by Habeas Corpus, remove the Prisoner to The King's Bench or Fleet Prisons, and so the Sheriff be discharged; and though the Sheriff may take Security from the Under Sheriff or Gaoler, yet he must take such Security as he can get, and the Security may prove insolvent.

"6. If a Man be in Execution in a Country Gaol, and the Sheriff die, the Gaoler, before a new Sheriff made, may discharge the Prisoner, and the Creditor is without Remedy; but when a Prisoner is in the Custody of one that hath the Inheritance of the Office, he is still in Custody, though the Officer die.

"7. If a Man be in Prison for Debt, and the Sheriff dies, as soon as a new Sheriff hath his Patent, the Prisoner is in his Custody; if in that Case the Gaoler suffers an Escape, before he hath given Security, the new Sheriff may be answerable.

"8. If a Man be a Stranger in a Country, and is arrested in a Corporation, if he cannot find Bail, the Cause must be tried there; though perhaps the Mayor, or other Judge of the Court and Jurymen, may be all the Plaintiff's Friends.

"9. The Country Gaols (which were primarily intended for Felons and Breakers of the Peace) have not Room enough for all Prisoners for Debt; and besides, it is not reasonable that Prisoners for Debt should be kept among Felons; and this Mischief will be very great in London and Middlesex.

"10. The Bill, as it came from the Commons, instead of regulating, doth, in Effect, take away the Prisons of The King's Bench and Fleet; for, if they are to have no Prisoners, they, by a necessary Consequence, cease to be Prisons; and though they still remain Prisons to receive such as are committed by their respective Courts for Contempts, yet they will be so few, that the Profits thereby accruing will not be a proportionable Recompense to the Officers to attend the Courts; so that the King's Four Courts at Westm'r will be without Prisons, and without Officers to assist them: For the Sheriffs of the Counties are not to attend these Courts, their Business being confined to their own Counties. Hereby these Courts will be reduced to a more mean Condition than the most inferior Court of Record in the Kingdom, and be disabled to keep the Peace, or to do Justice, and be liable to all the Insults and Affronts that shall be offered to them; and the Judges thereof will be deprived of all coercive Power."

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

A Message was sent to the House of Commons, by Sir Robert Legard and Sir Richard Holford:

To desire a Conference, To-morrow at One a Clock in the Painted Chamber, upon the Lords Amendments to the Bill, intituled, "An Act for regulating the Prisons of The King's Bench and Fleet."

Message from thence, with a Bill.

A Message from the House of Commons, by Sir John Levison Gower and others:

Who brought up a Bill, intituled, "An Act for preventing any Inconveniencies that may happen by Privilege of Parliament;" to which they desire the Concurrence of this House.

Privilege, Bill.

Hodie 1^a vice lecta est Billa, intituled, "An Act for preventing any Inconveniencies that may happen by Privilege of Parliament."

ORDERED, That the said Bill be read a Second Time To-morrow.

Message from H.C. with a Bill.

A Message from the House of Commons, by Sir Rowland Gwyn and others:

Who brought up a Bill, intituled, "An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject;" to which they desire the Concurrence of this House.

Limitation of the Crown, &c. Bill.

Hodie 1^a vice lecta est Billa, intituled, "An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject."

ORDERED, That the said Bill shall be read the Second Time on Tuesday next, at Twelve a Clock; and all the Lords summoned to attend.

E. of Derby takes the Oaths.

William Earl of Derby took the Oaths, and made and subscribed the Declaration, pursuant to the Statute.

This Day Edward Earl of Orford, delivered his Answer to the Articles of Impeachment of the House of Commons against him.

Which was read, by the Clerk, as follows; (videlicet,)

E. of Orford's Answer to Articles of Impeachment,

"The Answer of Edward Earl of Orford, to the Articles exhibited against him by the Knights, Citizens, and Burgesses, in Parliament assembled, in the Name of themselves, and of all the Commons of England, in Maintenance of their Impeachment against the said Earl, for high Crimes and Misdemeanors supposed to be committed by him.

"The said Earl, saving to himself all Advantages of Exception to the said Articles, and of not being prejudiced by any Words or Want of Form in this his Answer, and saving to him all Privileges and Rights belonging to him as One of the Peers of this Realm; for Answer to the said Articles, humbly saith,

"1. To the First Article, That he having for several Years rendered His Majesty his utmost Service and Duty, as a good and loyal Subject ought to do; His Royal Majesty was graciously pleased, upon several Occasions, to take Notice of the same; and, out of His wonted Bounty and of His free Will, was pleased to give the said Earl Two Grants, One whereof was a Reversionary Grant for Years, of some Houses, depending upon a then precedent Estate for about Nine and Twenty Years; which being a Reversionary Interest at so great a Distance, although the said Earl thankfully received the same from His Majesty, as His Grace and Bounty, yet the same was of no great Value: And the other of them was a Grant of the Remainder of a gross Sum, amounting to about Two Thousand Pounds a Year for Five Years; which are the only Grants of any Manors, Messuages, Lands, Tenements, Hereditaments, or Sums of Money whatsoever, which he, or any in Trust for him, hath had from His Majesty; and which said Two Grants His Majesty was graciously pleased, after many Years Service, freely to bestow upon him the said Earl, without any Surprize, sinister or indirect Means of the said Earl in obtaining the same; and which Grants, he humbly conceives, were not unusual in like Cases; the accepting whereof, he humbly hopes, was not any Violation of his Duty, or of any Trust in him the said Earl reposed.

"2. To the Second Article, the said Earl answereth, and denieth that he at any Time converted to his own private Use any public Money, issued to him for the Service of the Navy; or that he the said Earl ever procured or had any Privy Seal or Privy Seals, to discharge him from accounting for the same: But saith, That he the said Earl did make up, and upon Oath pass his Accompts, for the Monies imprest to him for the Service in this Article mentioned, which Accompt was legally declared and passed, upon very strict and great Examination, by the Lords Commissioners of the Treasury; and he the said Earl hath his Quietus est in due Course of Law upon the same. But the Commissioners of the Victualling-office making some unusual Objections to Part of the said Accompt, concerning some Provisions furnished to the Fleet by the said Earl in the King of Spain's Dominions, although the same were truly and really had and spent by the Seamen in the Fleet, and paid for by him the said Earl, and which Objections in like Cases had not been made, or stood upon, nor could be reasonably expected; His Majesty was pleased to direct and order a Privy Seal, to dispense with the Form in that Particular; but the said Earl did make no Advantage to himself thereby, nor was His Majesty or the Government in the least defrauded therein; it appearing, upon a very strict Examination, that less Rates were allowed for the said Provisions, than had been allowed before in like Cases, or, as the said Earl is informed, hath been since allowed: And to the latter Part of the said Article saith, That, for the Monies by him received as Treasurer or Receiver General of the Navy, he hath already delivered in his Accompts, and is ready to perfect the same according to the ordinary Method, some of them lying ready with the Auditors to be declared, and the rest of them being made up, and delivered in to be examined, in order to be passed; and saith, after just Allowances had, he does not believe he shall appear to be indebted upon the said Accompts; and also denies that any Persons are Sufferers for Want of their Dues in respect of the said Accompts, or that the public Service is, or hath been, any Ways discouraged or discredited thereby, as in the said Article is alledged.

"3. To the Third Article, the said Earl answereth, and denies that he received any Monies whatsoever from the King of Spain, or any other Person, as in the Article is alledged; and saith, That what Wine, Oil, or other Provisions, were received from the King of Spain, or any others, for the Fleet, were duly delivered and distributed amongst the Officers and Seamen thereof; and denies he did convert the same to his own Use, or did embezzle any of the Provisions, or reckoned them, or any Part of them, as bought with the Money allowed for furnishing the Navy with fresh Provisions; and does also deny that he the said Earl did enjoy any Offices inconsistent in their Nature (as he is advised) one with the other, or which were, or ought to be, Checks one upon the other; or that he any Ways secured or pretended to secure himself from rendering any Account to the Public, by any Office or Offices whatsoever; or that he is guilty of the Breach of any Laws, to his Knowledge, by executing any Office or Offices, or ever executing the same, to the Dishonour of His Majesty, or to the Prejudice of His People, as in the said Article is alledged.

"4. To the Fourth Article, the said Earl answereth, and saith, he believes, that the Prizes taken in the late War were appropriated as by the Act of Parliament in that Behalf is provided; but denies that he did, at any Time, sell or dispose of any Vessel or Vessels, or their Ladings or Cargo, taken, as or under the Pretence of Prize, by any of His Majesty's Ships of War, without Condemnation or Judicial Proceedings, or converted the Monies arising by Sale of any Vessel or Vessels, or their Lading or Cargo, taken, as or under Pretence of Prize, by any of His Majesty's Ships of War, to his own Use; but, on the contrary, did, from Time to Time, in his Station, give Orders, that the Prizes taken should be carefully preserved without Embezzlement, and duly proceeded against, and the Produce answered as the Law directs; and therefore humbly insists, that the Public hath been no Ways endamaged, or the Debts of the Nation increased, by any Neglect or Default of the said Earl.

"5. To the Fifth Article, the said Earl saith, That the East India Company, about the Beginning of March One Thousand Six Hundred Ninety and Six, did apply to the Admiralty Board, of which the said Earl was One, to empower their Ships and Officers to seize and take all Pirates infesting the Seas within the Limits of their Charter, and likewise to erect a Court of Admiralty in those Parts, to try and condemn such Pirates as they should take; upon which Application, the Board of Admiralty did take Advice, and were informed they had no Authority to grant the same; and denies he the said Earl ever discouraged or rejected the Company's Request therein, unless it were by telling them that the Admiralty by Law could not grant the same; and denies that the Company was ever denied Letters of Marque in common Form, to the Knowledge of the said Earl: And saith, as to the Matter of Kidd in this Article mentioned, he was gone upon his Expedition about Twelve Months before that Time; and as to his Commission, and the Grant in the said Article mentioned, the said Earl humbly conceives, and is advised, the same were not contrary to Law; but sure he is, the said Expedition was intended for the public Good and Service; and saith, the said Kidd had no Powers or Instructions from the Board of Admiralty, other than the ordinary and common Letters of Marque, the Contents whereof are common, and well known to Merchants: And the said Earl doth deny, that he knew the said Kidd to be of ill Fame and Reputation; but in case the said Kidd hath committed any Piracies, he the said Kidd is answerable, and ought to answer for the same, he never being ordered by the said Earl so to do; nor had he ever any the least Encouragement given him by the said Earl, or any other to his knowledge, to expect or hope for any Protection therein, or in any illegal Action done or committed by him.

"6. To the Sixth Article, the said Earl saith, he believes it to be true, that there was a horrid and barbarous Plot and Conspiracy against His Majesty's Sacred Person, and that there was an Apprehension of an immediate Invasion, but the said Earl hopes no Neglect of Duty in his Station can be imputed to him to prevent the same: And as for the Ship Dutchess, which was, amongst many others, armed and equipped in Defence of the Realm, the said Earl saith, That the Men, in the said Article mentioned to be taken from on board her, were but some of the very Persons that were just before taken from on board Captain Kidd, and returned by their own Consent on board Captain Kidd again, not being above Twenty in Number; and saith, all Fears of the Invasion were then over and at an End; and denies that the same was intended to weaken, or did weaken, the said Ship or the Navy Royal; or that the said Seamen, so returning on board the said Kidd, were levied or provided at the Expence of the Public; or did return, or were put on board the said Kidd, against their own Consent, or to the Prejudice of the public Security; or that the Ship Dutchess was thereby endangered, if she had been attacked, as in the said Article is alledged.

"7. To the Seventh Article, the said Earl answereth, and denies that he did, by Misrepresentation or otherwise, obtain or procure a Grant or Order for His Majesty's Ship Dolphin to be employed in a private Voyage or Undertaking; but what was done therein was done after the Peace concluded, and by His Majesty's Command, at the Instance and Request of other Persons, and not of the said Earl, but contrary to his Opinion; nor was the said Earl any Way concerned in Interest therein, till after His Majesty's Orders were given about the said Ship; and then, and not before, some of the Persons concerned in the said Adventure desired the said Earl to take some Shares therein (the Number whereof he doth not remember), which the said Earl accordingly did; but humbly insists, that his Actings therein were not contrary to his Duty, or the Trust in him reposed, or the Debts of the Nation thereby increased.

"8. To the Eighth Article, the said Earl answereth, and denies that at any Time, while he commanded the Navy Royal, he did, through Neglect or Contempt of Orders, unnecessarily hazard or expose to Danger the said Navy; and also denies that, upon any Opportunity of taking or destroying the Ships of the French King, he did, contrary to Advice, or in Disobedience to Orders, neglect to do the same; and also denies that he did suffer or permit any of the French King's Ships to return into their own Harbours, when he had Opportunity to prevent the same; and humbly insists, he is not guilty of any Neglect or Omission of his Duty herein, nor did expect in this Particular to be charged therewith, considering his faithful Services rendered against the French Fleet.

"9. To the Ninth Article, the said Earl saith, he believes it to be true, that His Majesty hath been engaged in several Alliances with several Princes, and particularly with the Emperor in the Year One Thousand Six Hundred Eighty-nine; and that the End of those Alliances was, to prevent the Growth and Power of France, and to secure this Kingdom and its Allies; but the said Earl does deny that he did advise His Majesty to enter into the Treaty of Partition charged upon the said Earl in this Article; and so far as the said Earl was any Ways acquainted therewith, he objected to, and gave his Opinion against, the same.

"10. To the Tenth Article, the said Earl answereth and saith, That true it is, His Majesty was pleased to employ and intrust him in the several Offices and Stations in this Article mentioned for several Years, as His Majesty's Occasions required, although not for all the Time in the said Article mentioned; and hopes, and humbly insisteth upon it, that he the said Earl did, from Time to Time, according to his Duty and the Trusts in him reposed, discharge the said Offices and Employments with Loyalty, Faithfulness, and Zeal to His Majesty and His People.

"And having thus laid his Case before your Lordships; he the said Earl does humbly insist and answer to the said Impeachment, and all and every the Articles aforesaid exhibited against him, That he is Not Guilty of all or any of them, or of all or any the Matters or Things by the said Articles charged, in Manner and Form as the same are therein and thereby alledged against him; and that the Matters by him before set forth to be done and transacted, or any of them, were not done or committed by him the said Earl against our Sovereign Lord the King, His Crown or Dignity, or the Peace or Interest of this Kingdom, or in Breach of the Trusts reposed in him the said Earl; and humbly submits himself herein to your Lordships Judgement.

"Orford."

Articles of Impeachment, &c. Committee to consider of Method of Delivery of:

The Committee appointed to consider of the Manner in delivering Articles of Impeachment by the Commons being revived:

The House was adjourned during Pleasure, and the Lords went to the Committee.

After some Time, the House was resumed.

And the Earl of Stamford reported, "That they had inspected the Journals, and find the First Step, after Answers to Impeachments are delivered, is to send a Copy thereof to the House of Commons."

E. of Orford's Answer to be copied, and sent to H. C.

Whereupon it is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Answer of Edward Earl of Orford, delivered this Day, to the Articles of Impeachment depending against him, be copied, in order to be sent to the House of Commons To-morrow Morning, by Two Masters of Chancery.

E. of Orford Counsel assigned.

The Earl of Orford having, this Day, delivered in his Answer, to the Articles of Impeachment against him, desired that Mr. Dodd and Mr. Pooley might be assigned Counsel for him, upon his Trial:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That Mr. Dodd and Mr. Pooley shall and they are hereby assigned Counsel for the Earl of Orford, as desired.

Wentworth versus Ld. Raby.

Upon reading the Petition and Appeal of the Honourable Thomas Wentworth Esquire, from several Orders and Reports thereupon made in the Chancery of Ireland, in a certain Cause there depending, wherein the said Appellant and others, the Executors of the Right Honourable William Earl of Strafford, the Appellant's late Uncle, were Complainants, against the Right Honourable Thomas Lord Raby and Mrs. Anne Wentworth, and others, Defendants; and praying the Reversal thereof:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, When the Lord Raby returns from beyond the Seas, he may have a Copy of the said Appeal; and do put in his Answer thereunto, in Writing.

King's Answer to Message about Letters concerning the Meeting of Parliament.

The Lord Chamberlain acquainted the House, "That he had attended His Majesty, with the Desire of this House, for the Letters relating to the meeting, sitting, or proroguing of the Parliament; and that the King had given Leave, that they shall be laid before this House, when the House shall think fit; that Mr. Yard had not at present brought them, because there are other Things in the Letters; but is ready to attend when the House pleaseth:"

Yard to attend with Letters.

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That To-morrow, at Twelve a Clock, Mr. Yard do attend this House with all the Letters sent by Mr. Blathwaite (by His Majesty's Command) to the Lords Justices (last Summer) concerning the sitting, meeting, or proroguing of the Parliament, and the Lords Justices Answers thereunto.

House to be called, and absent Lords summoned.

The House being moved, "That Care be taken for summoning the absent Lords;" and Debate thereupon:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That on Friday next, at Twelve a Clock, this House shall be called over, and all the Lords summoned to attend; and that then this House will resume the Debate concerning summoning the absent Lords.

Penn et al. versus Colony Bill.

Whereas this Day was appointed to hear Mr. Penn and others, by their Counsel, against the Bill, intituled, An Act for re-uniting to the Crown the Government of several Colonies and Plantations in America:"

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That they shall be heard, by their Counsel, on Saturday next, at Eleven a Clock; and that all Causes and Hearings do come on in Course afterwards.

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad et in diem Jovis, (videlicet,) decimum quintum diem instantis Maii, hora undecima Auroræ, Dominis sic decernentibus.