would go and see it; so that putting these two circumstances together, his going in one of the chairs with my lord Warwick and Coote, and what he said after when the chairs stopt in St. Martin's lane, we think are circumstances to induce your lordships to believe, that he was present at the time of the fact committed, or very near the place; and if that be so, how far he is guilty must be submitted to your lordships' consideration; and this is all that I shall trouble your lordships with without repeating the particular evidence, which your lordships I am sure very well remember. L. Mohun. My lords, I desire I may say one word in answer to what Mr. Solicitor has obevidence given you where Mr. Coote was killed; served. I think your lordships bave had no but only the chairman that was desired to bring towards Panton-street, which is quite contrary over his chair within the rails, says, it was to the place where I was set down, at Greenstreet end; I must then be at a very great distance from the place where the fact was done. your lordships have nothing left but to consider of the evidence which has been given, which, 1 suppose, you will do among yourselves. Lords. Ay, adjourn, adjourn. L. H. S. If all have done on both sides, then bun said, if you do go, I must go and see it; and they did go all together: and the chairman says, he set my lord Mobun down at the end of Green-street, at the lower end of the fields, where the other two chairs set down captain Coote and my lord of Warwick, and that they all three walked up together towards the Standard tavern; still all this proves my lord did go there, and that he himself did say he would go and see it and it is plain that my lord Mohun did go as far as Leicester-fields, and it is only his declaration concerning himself, without any proof, that he went away and did not go into the fields, to the place where the fact was done; and we think it is sufficient proof that he was one of them that were concerned, because we do prove, that he was all along in the company till the very time that they came into the place where the thing was done. Then there is the chairman that carried Mr. James, and he tells your lordships, that the three first chairs that went up St. Martin's-lane went to the Standard tavern, and there knocked at the door, and paid the chairmen, and went out of their chair; and so says the other chairmen that carried capt. Dockwra and capt. French; and they say also, that when they came down the paved stones again, they heard chairs called for, but they did not interpose at all in the matter; but the other two chairs it seems did, for they went up to the upper end of the square, where there were two persons holding up Mr. Coote, and after they put the chair over the rails, in order to have him carried away in a chair, but they could not get him into the chair. I would likewise observe from the evidence of the surgeon, who gives you an account of what nature the wounds were; one was in the breast, near the collar-bone, on the left-side; the other was under the short ribs, on the left side too, which could not be given him by the person that he was fighting with, he being a right-hand man, as was proved by his servant. My lord Mohun has called but one witness, which is only about a little circumstance of his being wounded in the hand, and having the wound laid open, but that was two days after the fact was done; my lord Mohun could not but know that the matters he was to answer, related to a time before. It must be agreed to me, that they all three, my lord of Warwick, my lord Mohun and Mr. Coote, went all away together, that they were carried to Leicester-fields, that they were set down together, and walked up together upon the stone pavement, when the others were gone towards the upper end of the fields; so that in all probability, they all went together into the place where the fight was, and were all concerned ; and if so my lord Mohun must be equally guilty with the rest, my lord Mohun knowing what business it was they were going about. It must be left to your lordships, whether he shall not be presumed to be there when the fact was done, especially his saying when he could not prevail in St. Martin's-lane, to put the matter off till another time, that if they did go on, he VOL. XIII. adjourn into the House of Lords? L. H. S. Is it your pleasure, my lords, to "Lords. Ay, ay. L. H. S. This House is adjourned into the House of Lords. [And the Lords went back in the same order to the House of Lords, and there they staid for about two hours time, debating the matter among themselves, and afterwards returned again into the court in Westminster-hall, and were seated all in their places, as they were before, and the Lord High Steward was seated in the chair before the throne.] Cl. of the Cr. Serjeant at Arms, make Proclamation. Serj. at Arms. O yes, O yes, O yes, my lord high steward of England, his grace, does straitly charge and command all manner of persons here present to be uncovered, and keep silence upon pain of imprisonment. L. H. S. Is it your lordships' pleasure to go on now to give your judgment? Lords. Ay, ay. L. H. S. Then I must pray your lordships to give me time to write down your opinions distinctly, that I may be able to acquaint you with certainty of the numbers. Lords. Ay, ay. and put the question to every lord, beginning [Then the Lord High Steward stood up, with the youngest baron, to know what his judgment was; and the lord to whom he called, stood up in his place uncovered, and his judgment in the manner following.] laying his right band upon his breast, delivered L. H. S. My lord Bernard, Is Charles lord 3 Y Mobun guilty of the felony and murder whereof he stands indicted, or not guilty? L. Bernard. Not guilty, upon my honour. [The same question was asked severally of all the Lords, who in the same form delivered the same opinion.] [Then the Lord High Steward seated himself again in the chair, to take the number of the peers who had given their judgment.] L. H. S. My lords, 87 of your lordships are present, and you all are unanimously of opinion, That my lord Mohun is not guilty of the felony and murder whereof he stands indicted. Lords. Ay, ay. Serj. at Arms. O Yes, O Yes, O Yes, my Lord High Steward of England, his grace, does straitly charge and command all manner of persons here present to keep silence, pain of imprisonment. upon Lord Mohun. My lords, I do not know which way to express my great thankfulness and acknowledgment of your lordships' great honour and justice to me; but I crave leave to assure your lordships, that I will endeavour to make it the business of the future part of my life, so to behave myself in my conversation in the world, as to avoid all things that may bring me under any such circumstances, as may expose me to the giving your lordships any trouble of this nature for the future.* [And then making his reverences to the lords, he went away from the bar.] Cl. of the Cr. Serjeant at Arms, make proclamation. Serj. at Arms. O Yes, O Yes, O Yes, Al manner of persons here present, are commanded to keep silence, by my Lord High Steward of England, his grace, upon pain of imprison ment. L. H. S. My lords, the trial being at an end. there is nothing remains to be done here, but the determining the commission. Lords. Ay, ay. L. H. S. Sir Samuel Astry, let proclamation Cl. of the Cr. Serjeant at Arms, make pro-be made in order to the dissolving the comms sion of High Stewardship. clamation. Serj. at Arms. O Yes, O Yes, O Yes, chief governor of the Tower of London, bring forth the body of your prisoner Charles lord Mohun, whom you have committed to you, in order to be brought hither this day, upon pain and peril I will fall thereon. Then he was brought forth to the bar, and the Lord High Steward addressed himself to him in this manner : L. H. S. My lord Mohun, you have been indicted for the murder of Mr. Richard Coote, upon which indictment your lordship has been arraigned, and upon your arraignment has pleaded not guilty, and for your trial you have put yourself upon your peers, my lords here present; and they have heard the evidence, and have considered of it, and delivered their judgment upon the whole matter; and I am to acquaint your lordship, they are all unanimously of opinion, that your lordship is not guilty of the felony and murder whereof you stand indicted; and therefore your lordship is discharged from your imprisonment, paying your fees. Cl. of the Cr. Serjeant at Arms, make proclamation. Serj. at Arms. O Yes, O Yes, 0 Yes, My Lord High Steward of England, his grace. does straitly charge and command all manse of persons here present, and that have be and of our sovereign lord the king; for his attended, to depart hence in the peace of God grace, the Lord High Steward of England intends now to dissolve his commission. his grace, the Lord High Steward, he stood up. And then the White Staff being delivered t and holding it in both his hands, broke it in two and then leaving the chair, came down to the Wool-pack, and said, Is it your lordships' ples sure to adjourn to the House of Lords? Lords. Ay, ay. L. H. S. This House is adjourned to th House of Lords. And so they went back in the same order that they came into the court, and all the assembly broke up. * He was nevertheless killed in Then the lord Mohun made his reverence to duke of Hamilton, who also fell. the Lords, and expressed himself thus: p. 950, note. a duel by the See vol. 12 404. A brief Account of the Trial of CHARLES DUNCOMBE, esq. before the Lord Chief Justice Holt, at the King's Bench Bar in Westminster-hall, upon an Information for false indorsing of Exchequer Bills, and paying them into the Exchequer, as if they had been first paid into the Excise Office upon that Branch of the Revenue: 11 WILLIAM III. A. D. 1699.* [Now first printed from a MS. in the Possession of the Earl of Radnor, who has obligingly imparted it for this Collection, A. D. 1812.] June 17, 1699. THE Court waited a long time for D'Acosta the Jew, the king's evidence, upon which my Lord Chief Justice reproved the king's counsel, and asked them if they had ordered it so on purpose; to which Mr. Attorney replied, that D'Acosta promised to be here. One of the defendant's counsel said it was the Jews' Sabbath; that the Jews would not fight on the Sabbath, but rather be cut in pieces, and that the king's counsel might have dispensed with the attendance of the defendant's counsel, Mr. Attorney answered, that D'Acosta promised to be there, and made no objection as to the Sabbath, but he supposed the defendant's counsel had put him in mind of it. Mr. D'Acosta being come, the Jury was sworn as follows: Warwick Lake, esq.; Leonard Hammond, esq.; Richard Bever, esq.; Thomas Blackmore, William Fenn, Francis Heath, Francis Peters, Michael Shepherd, Richard Poston, Matthew Fern, Robert Hedin, bited the Information, which being read, Mr. Montague, counsel for the king, opened it to the effect following: The Record now read, is an Information brought by Mr. Attorney against Charles Duncombe, esq. for a high misdemeanor in the execution of his office as cashier of the excise. It shews that the lords of the exchequer had directed bills to be issued out, and that Mr. Duncombe being cashier of the excise had received 20,000l. and more of the king's money upon that branch of the revenue, and according to his duty ought to have paid it in specie for his majesty's use as the commissioners directed. On the 5th day of May, the commissioners of the excise ordered him to pay 10,000l.; notwithstanding which, he, intending to defraud the king and to lessen the credit of the exche* "Another sort of offenders were this ses- compounded to accuse the rest. Upon a ful' sion animadverted upon by the commons, but proof of the matter, Duncombe and Knight, had the good fortune to escape with impunity. who were members of the house of commons, The exchequer bills were at this time of very were first expelled the house, and committed great use in the nation, by supplying the prisoners to the Tower; Burton sent to Newscarcity of money, during the re-coining of the gate, and bills ordered to be brought in to silver species. Now because there was au punish them. The bill against Mr. Duncombe, interest of 77. 12s. per ann. allowed upon the whereby a fine of near half his estate, which second issuing of these bills out of the exche- was computed at 400,000l. was set upon him, quer, after they had been paid in, on any of quickly passed the house of commons, notwiththe king's taxes, whereas at their first issuing standing the opposition that was made to it, out of the exchequer they bore no interest, this particularly by sir Thomas Trevor the attor encouraged several of the king's officers, both ney-general. But, being sent up to the house in the exchequer, the custoins, and the excise, of lords, and the house being equally divided, to contrive together to get great sums of money the duke of Leeds gave his casting vote for reby false indorsements on these exchequer bills, jecting the bill. But, Mr. Duncombe being before they had circulated about, and been set at liberty by the order of the house of lords, brought into any branch of the king's revenue. without the consent of the commons, the latter The most considerable persons, who had carried resented it to that degree, that they caused him on this unwarrantable practice, were Mr. to be remanded to the Tower of London, where Charles Duncombe, receiver- general of the ex- he continued till the end of the session. cise; Mr. John Knight, treasurer of the cus- bills against Knight and Burton had the same toms; Mr. Bartholomew Burton, who had a fate; and so all the noise this sort of forplace in the excise-office; and Mr. Reginald gery had made, in town and country, was Marriott, one of the deputy tellers of the ex-hushed on a sudden, and no more heard of it,” chequer; which last, to procure his pardon, Tindal. The quer bills, did on the 8th of May pay in 7,8601.“ an Aid to his majesty by a land tax, payable principal money in exchequer bills, falsely in- " for one year, we are authorised to issue bills dorsed, for money that he ought to have paid into" of the exchequer not exceeding 1,500,0004, the exchequer in specie, he knowing that those "and to issue the same in such proportion as we bills had never passed the revenue of the excise."shall think fit. And whereas, by an act last Mr. Attorney (sir Thomas Trevor) argued "parliament, and by the king's proclamation, next to the effect following, viz. That Mr. Dun-"when the receivers of the revenue pay those combe had received into his hands as cashier |“ bills into the revenue, they are to bave tallies of the excise the sum of 20,0004, and more of "struck, and their bills are to be cancelled, as the king's money, which had been paid in for "more fully therein appears. These are in the revenue of the excise in old money, sent" pursuance of the authority granted unto us afterwards to the Tower to be re-coined, and by the said act, &c. for issuing, receiving came back again in milled money to Mr. Dun-"back, and cancelling the said bills, and folcombe the cashier. This money being in his "lowing the orders to be observed, to require hands, he was to have paid in according to the" you if you case indented bills to be issued direction of the commissioners of excise. They" for such sum or sums, as any three of us or ordered 20,000l. to be paid for several uses, and part of it being 10,000l. and more to be paid into the exchequer by their order of the 5th of May for that purpose. But Mr. Duncombe intending to make an unlawful gain to himself, and to prejudice the king, did not pay in milled money according to their order, but purchased to the value of 7,860. in exchequer bills upon a great discount for it; at that time exchequer" bills issued for such and such sums were discounted at 57. per cent. so that be saved 5 per cent.; this came to 400l. more or less, that he gained by this bargain. But those exchequer bills he could not pay into the exchequer with out being indorsed, to shew that those bills had been really paid into the excise upon that branch of the revenue; for, by the act of parliament, they were to be paid into the exche." quer as money that had formerly been paid on the revenue, and the persons were to write their" names upon them as they paid them; whereupon Mr. Duncombe prevails with Mr. D'Acosta to set his own name and other feigned names, some of them of persons not in being, others the names of persons that were not privy to it; and Mr. Duncombe knowing that they were falsely indorsed, paid them into the exchequer in part of 10,000l., though he knew they were not paid in to the excise. It was a misdemeanor in his office and a deceit to the king, for him who was entrusted to pay the king's Sir Tho. Powis, one of the defendant's counmoney to buy exchequer bills by which he se. It were proper before you come to make gains so much per cent. and pays them into the this objection, that you should lay it in the inexchequer at so much damage and loss to the formation, that the commissioners cansed moking: this we shall prove by our witnesses. ney bills to be issued out, to be paid into the Mr. Serjeant Darnel spoke next, and insist-exchequer; they are first to prove that, but ing a little upon the information, called for the they have not yet proved it, for this is only a king's evidence. general instruction that they should issue bills when commanded. The first was Mr. Clayton, with the order of the lords of the treasury. Mr. Darnel. Mr. Clayton, give an account of what you know of exchequer bills issued by the lords of the treasury. Mr Clayton. This is the order of the lords of the treasury, which was read as follows: "April 26, 1697, Stephen Cox, Charles Mon 66 tague, John Smith, Thomas Littleton. "To sir Robert Howard, auditor of the "exchequer." "Whereas by act of parliament for granting "the lord high treasurer for the time being 64 66 L. C. J. How do you prove it to be a true commission? the Six Clerks office. Then the Commission was read. Then an Order of the Treasury was read, dated 27th April, 1697, signed, Fox, Smith, Littleton; directed to sir Robert Howard, importing, "That for enlarging the capital stock of the Bank of England, there should be issued "out to the lord Ranelaugh upon an unsatis“fied order in his name, 332,648/. for payment "of his majesty's forces, and contingent "charges to be applied, to pay money due for quartering of soldiers betwixt 1694 and "1696, 200,000l. ; to clear quarters and sub"sistence in England, 77,6487. for the service the 1 "in Flanders 55,4007.; and that they should "take care that this should be duly paid, and "charge themselves with it." Mr. Attorney. Call Mr. Clayton. Mr. Clayton, were the bills issued according to this order ?—Clayton. Yes. Sir Tho. Powis. Upon what account were they issued? Clayton. On the 1,500,000l. act; for we did not make out any bills upon the second act till three months after. produced that they are to make bills according to their order. Mr. Attorney. Though there be a general clause in the act, yet there is another proviso about contracts for exchange. L. C. J. At this rate, gentlemen, there is not one exchequer bill in England good; you will destroy all exchequer bills. Go on with your evidence. Mr. Attorney. Call Noel. Mr. Noel, did you know Mr. Duncombe when he was cashier of the excise ?-Noel. Yes. Mr. Attorney. Call Rumney. Mr. Rumney, What do you know of Mr. Duncombe's receiv Rumney. On the 4th and 5th May, 1697, he received 20,135l. 5s. 34d. recoined from old money ? Sir Tho. Powis. If this be sufficient proof, it is strange; it recites the Capitation act, and a 2d act for deficiencies, and making good the stock of the Bank. The order recites direc-ing milled money? tions for exchequer bills to pass in all payments, except the 3s. Aid, so that there are no exchequer bills made according to the act; for their order is subsequent to both. The first orders exchequer bills to go in all payments, so after a both are passed, here are exchequer bills that ought to be made to pass in all payments, and not to pass in all payments, so that there is no exchequer bill agreeable to the intention of the 2d act. 4 L. C. J.The first hath an exception. The se cond says, all exchequer bills shall pass in all payments whatsoever. The first and second having both passed, they ought to have made their bills payable accordingly. Mr. Attorney. Their order is only upon the issue of the first act, that the exchequer bills shall be current in all payments but the three shillings aid. Sir Barth. Shower. It is before any proclamation, p. 384. "Be it further enacted, that exchequer bills be taken not only by receivers, but by all collectors of the Land tax and supply," &c. Observe this order of theirs recites both acts, therefore they ought to have framed their exchequer bills to be current in all payments, and not with an exception. L. C. J. The exchequer bills are made according to one. Will you make two sorts? First, the one act says, they shall pass in all payments except the 3s. aid, and the other act says, exchequer bills shall be current in all payments whatever; they have authority in one act to make exchequer bills current in all payments except the 3s. aid, and in another to make them current in all payments whatsoever. Mr. Attorney. It is another act that makes them current in all payments: so that you are mistaken, sir Bartholomew. Mr. Attorney. How did he receive it? Rumney. He received it from Mr. Fouquier, accountant to the excise. Mr. Attorney. How do you know he received it? Rumney. I went to Mr. Duncombe's office; I helped to carry it, part on one day and part on another. Mr. Attorney. What do you know of money paid to Mr. Duncombe, Mr. Fouquier? Fouquier. On the 27th February, 1696, he had 357 ounces 8 dwts, hammered money; On the 5th of March, 358 ounces hammered money repaid to his clerk: On the 4th of May, produce of the money so brought in on the 27th February ; on the 3d day of March, then there was paid him on the 4th and 5th One of the Defendant's Counsel said, You speak by your book. Did you see it carrried in? Fouquier. I always received it and paid it thus to his clerk. Mr. Attorney. Mr. Blessington, produce the order of the commissioners for the payment of the money into the exchequer. Blessington. There is the order of the Commissioners to pay the money into the exchequer. Then it was read, dated May 5th, 1697. Mr. Attorney. Notwithstanding this order, he bought those exchequer bills, caused them to be indorsed, and paid them into the exchequer in part of the 10,000l. Mr. D'Acosta, give an account to my lord and the jury what number of exchequer bills you sold to Mr. Duncombe, for what, and when? Sir Barth. Shower. It is to make exchequer bills general when there is a clause in one act D'Acosta. I did, upon the desire of the lords that they shall be current in ail payments ex- of the treasury, furnish bills for his majesty's cept the 3s. aid, and then by another act in the service in Flanders the 19th March 1697; I was same session they are made current in all pay-to be repaid in exchequer bills when they came ments; then, what authority had they to make exchequer bills with an exception, when the act authorizes them to make them payable in general. Serj. Darnel. If the fact were so as sir Bartholomew alledges, it will not conclude that there can be no exception. Mr. Munday. It appears by the evidence out. The exchequer bills were accordingly delivered to me on the 9th of May 1697, and wanting money at that time, I contracted with Mr. Duncombe to sell him 83 exchequer bills, amounting, with interest, to the sum of 7,894%. 9s. 6d. deducting 5 per cent. which came to 3941. 4s. 6d. The remainder Mr. Duncombə paid me on the 12th of May. |