Diary of Thomas Burton Esq: Volume 1, July 1653 - April 1657. Originally published by H Colburn, London, 1828.
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Thursday, December 4, 1656.
An Act for surveying and repairing the high-ways of this Commonwealth, was read the first time. It was a long bill.
Resolved, that it be read the second time upon Tuesday.
A Bill to confirm the sale of lands sold by the late Earl of Huntingdon. (fn. 1) Read the first time.
A Bill for the better suppressing of theft upon the borders. (fn. 2) Read the second time and committed.
Mr. Speaker left the chair, and a great debate between Mr. Robinson and Mr. Bampfield about the chair, and after that a great dispute about which, Irish or Scotch business, (fn. 3) should be proceeded upon first; both being orders of the day. It was thought that it could not be determined without the Speaker taking the chair for Mr. Bampfield. Their debate would be fruitless, for he could put no question. The business of Scotland being last ordered, and Major Ashton, who serves for Ireland, giving way without further debate, the Scotch Bill was proceeded upon.
Mr. Disbrowe reported, from the sub-committee, the clause for confirmation of privileges of corporations in Scotland. Instead of bodies politic and corporate (which were words too extensive), they inserted the word boroughs. They added further, with a saving to every man his right, and provided the liberties be not contrary to the present government.
Instead of the words, granted by patent, or Act of Parliament,—granted and confirmed by patent, and Act of Parliament.
Captain Baynes. You have confirmed their laws, now you are confirming the privileges of their boroughs, which you know not. I doubt if, instead of an union, you make not a disunion. There may be a law amongst them to hang all Englishmen, and to banish them out of their boroughs, though they have settled themselves there to trade, or the like. I would have you not confirm any thing till you know it.
Colonel Edwards. You confirm all charters to them, that were granted to them by Act of Parliament at any time since the beginning of the world.
Mr. Downing. The clause is well enough qualified, for it lays their privileges at the feet of the next Parliament to alter. It ties them strictly to agree with the present government, with a salvo cujus libet sui juris.
The Charter and Act of Parliament is full as can be.
Colonel Sydenham. I less understand this clause than I did the clause that was committed. I would not have you at all confirm them till you know them. We know that very dangerous laws are amongst them. It was once death for an Englishman to marry a Scotchwoman, and so for a Scotchman to marry an Englishwoman. Would have you lay it aside, for I do not understand it.
Mr.— (fn. 4) If it be that you look back to all Acts of Parliament whatsoever, yet have confirmed these privileges, then it will not be so practicable. But if it relate only to such privileges as now are in force and use, you ought surely to confirm them.
Mr. Drury. Soldiers that are free to set up any trade in England, without apprenticeships, are barred by this clause to set up in Scotland, and which is contrary to the ordinance. I desire the same liberty may be extended to Scotland.
Colonel Edwards. This is an unreasonable confirmation, and your salvo does you no good at all.
Mr. Disbrowe. You confirm nothing but what the Parliament of Scotland have confirmed. I would have you refer only to such privileges as are granted, and are now in use. You have granted far more by confirming their laws in the former laws.
Major-General Packer. I see no danger at all by the passing of this clause; I think the provision is very comprehensive. Reserving particular men's rights, and agreeing it to the government.
He offered the word confirmed before Act, of Parliament.
Mr. Margetts proposed, that what Mr. Drury offered might be considered in this clause.
Lord Whitlock. I doubt it is not for the service of this committee to pass this clause, as it comes in to you. If there be any difference between any Lord in Scotland, and the boroughs about any privilege, you determine the difference, and give it to the boroughs.
You may do damage to the Lords there. The chief magistrate may, at any time, revive their privileges, so there is no need of the clause. We have but confirmed London's and some few boroughs' privileges in England, and that upon serious view and examination of the Parliament what they were.
Sir Richard Onslow. The words being in the copulative, and not in the disjunctive, viz. "by Charter and Act of Parliament," I see no danger in the passing this clause.
Captain Baynes. If so, you have already confirmed those Acts of Parliament under the word laws, and what need this clause.
Major-General Kehey and Colonel White. You should not confirm these privileges till you have first seen them.
Judge Smith. The Scotch Commissioners (fn. 5) have seen most of these charters, and have confirmed them; and this is no more than his Highness has granted them already.
Mr. Downing. You have confirmed none of their laws but only this: that justice shall be administered to the people of Scotland according to their laws.
They are easily made one with you, if you do not discontent them, by the influence you have upon their trade.
The boroughs pay a sixth part of the assessments.
I always understood et to be a conjunction copulative; and ever since I read logic, I remember this to be an infallible proposition—that if any part of the clause conjunctive be not true, all the clause fails.
There cannot be a clause better qualified, and if you pass it not, you had as good lay all the bill aside.
Mr. Swinton. This clause may be laid aside, and there may be provision in the latter end, with a saving to the privileges of corporations.
Lord Cochran. Formerly there hath been contests about privileges between the sheriff and the boroughs, but those are all now settled and determined by acts of Parliament.
He offered the same amendments, that the words and confirmed by Act, &c. be added, and now in force also added, as Mr. Downing offered.
Major-General Whalley. This clause is but intruded, and has no relation to an union. This is a greater privilege than the corporations of England do desire, or would be granted by us.
It is a certain maxim, that no supreme power can conclude itself. Henry VIII. procured a law to be made, that no law made concerning him and his son might be altered; yet the next Parliament were careful to abrogate that statute. (fn. 6)
It is not proper for you to appoint what the next Parliament shall do. This clause thwarts with his Highnesses ordinances, (fn. 7) for your soldiers to set up trades in all corporations.
Captain Baynes. Let them first renew all their charters with his Highness, and so you knowing them, may then confirm them. I am against both the clause and the proviso, for I am informed that they have some privilege to ingross all trading into their own hands, and force men to sell and buy at their own rates, by prohibiting them for some days, and then setting a rate upon them in their guild, called the D.ean of Guild; which ties them, that none shall buy but at such rates.
Lord Tweedale. The proviso doth not confirm, but only reserves the privileges of the boroughs.
Mr. Robinson. The ingrossing of trade is, indeed, a great mischief, not only there, but in other boroughs; where rates upon goods imported are usually set. Yet, I doubt, if you pass not this clause, you leave the privileges of their boroughs too open; I would have their trade encouraged. But for Englishmen incorporating with that nation their marriages, this, I doubt, is not yet for the service of England. I hope you intend not to confirm the Acts made in Hamilton's parliament, but would have them limited to a certain time.
Lord Lambert. I would have the boroughs have all possible privileges confirmed to them. But, as this clause is brought in, I cannot give my consent to it, having heard these arguments against it.
I except against several laws and customs in Scotland, as the racking and tormenting of people under the lash of their justice. The proviso comes in very unnaturally, to say that a bill of Union shall not extend to prejudice their privileges. It does rather confirm them than restrain them.
I would have it left to my Lord Protector, to confirm what charters he thinks fit to confirm.
I would not pass this clause, till it be understood what these privileges are.
Mr. Downing. I do not love to talk out of Parliament. This is a place to speak one's conscience in.
The constitution of the Dean of Guild, is the noblest constitution in corporations in the world. For a groat the Dean of Guild will do you enough right and justice.
Lord Strickland. I would have this clause pass as it is; otherwise it will be a great offence. Stabitur presumptio donee probetur in contrarium. It need not to be left to the Protector, for he may not confirm only, but he may erect a corporation when he pleases.
General words in treaties pass nothing. If one conquer a nation, and confirm their laws; it is to be understood of such laws as are just, &c. You will give them occasion to suspect that you are about to take away their boroughs; by refusing to confirm their privileges. This their enemies will be apt to insinuate.
Lord Chief Justice [Glynn.] If the not passing this clause do not stagger the Bill, why may it not be left out. But to confirm these privileges generally, it cannot be for your service, unless you knew what they were. Put the case, that a Bill should be brought in to confirm the privileges of all the corporations of England; should we do it ? When the privileges of the Charter of London were confirmed, all their privileges were particularly recited.
Mr. Downing. An Act of Union must be upon positives; so that the proviso will not help. So that argument of the noble lord is answered.
The second argument has gone all along in the ignorance of these privileges, therefore not to be confirmed. As an instance, if ignorance must excuse, we are going to set up a Court at York (fn. 8) to be guided by the course of the Common Pleas. I confess I understand not the course; must I go study four years to know them, before I can give my consent to the Bill for York: the like of the Bill for the Borders. Does Cornwall know that it is for our conveniency? Or if a law for Cornwall, I must go thither to know its conveniency for the place, before I give my vote. We must believe one another, of necessity.
Colonel Jones. I am sorry to hear it said that a Parliament does not understand the practice of the Common Pleas. I would have the clause left out, for our ignorance in this case is justifiable.
Lord-Chief-Justice. Ignorantia juris non excusat is true, if that gentleman be ignorant of his own laws, his own birthright; but to be ignorant of die laws of another Common wealth, ignorance may excuse. So the comparison holds not, under his favour.
Mr. Downing. This is a judicature of the three nations, so I wonder why ignorance of any of their laws should excuse.
Judge Smith. Desired to be heard once or thrice as to the reflection upon the justice of that nation, and the late administration thereof for these four years, because it concerned him.
Lord Lambert. I have heard of St. George that was a champion for England; it seems there is now another St. George risen up for Scotland. (fn. 9) I must still insist upon it that it is not for us to confirm we know not what, but, as I said before, I would have it left wholly to his" Highness to determine what are fit to be confirmed and what not, as may be here provided for.
Colonel White. I would have it left to his Highness to confirm what privileges of the boroughs he pleases, but to confirm we know not what is not to be allowed.
Mr. Downing. You should confirm them till next Parliament, and when you better understand them you will be more in love with them. If you be not, let them be altered.
A great debate whether the clause be first amended and then put to the question, whether to stand or no.
Colonel Jones. I compare this to the dressing of a cucumber. First pare, and order, and dress it, and throw it out of the window. Would have you first put the question to agree with the Sub-Committee.
Yet, on the proposal of Lord Widdrington [Speaker] agreed that the amendments be first put.
Upon the question upon the amendment the House divided.
64 Yea. Lord Cochrane [Teller.]
74 No. Sir Charles Wolseley [Teller].
Resolved that the whole clause be left out.
Sir William Strickland and Mr. Downing. Let them be confirmed till the next Parliament. If you do nothing in it, you will give them just cause to be jealous that you intend wholly to take away their privileges.
Doctor Clarges. It will be thought by the corporations that their privileges having been debated here, a negative is put upon them, and they are lost as to their privileges.
Mr. Robinson. Now that you have had this debate, I would not have you put the boroughs into jealousy that you intend to take away their privileges. I doubt to confirm them till next Parliament will not be enough. I would not have it now laid aside by a question; but that it may be recommitted.
Mr. Speaker proposed that it might be committed to the Committee to alter or bring in a new clause to that purpose.
Resolved, That it be referred to the same Committee.
Resolved, That another day be desired for this Committee to sit.
Mr. Speaker took the chair, and resolved that Saturday next this business be taken up again by the grand Committee.
It was offered for Monday, or Wednesday, to be resumed; but Lord Cochrane desired rather to suspend the Bill for this sessions, than give it so long a day.
In the painted chamber sat the Committee for Rodney's Petition, (fn. 10) and it is said there was high language between Lord Lisle and Lord Whitlock; but they being both wise men, and deeply concerned in the business, suppressed their passion with an altum silentium.
In the Chamber for the Committee of the Army, sat the Committee for the Courts at York, (fn. 11) and we passed through a great part of the bill, till Mr. Robinson came in, and held us upon the debate about an hour, whether to have a Court of Equity at York or not. When he was gone we passed a good part further, and adjourned till Saturday at two.
The same time and place we finished the clauses recommitted upon the Bill for probate of wills, (fn. 12) and, per motion by Major-General Lilburne, the Judges' salary was voted to 200l. per annum. (fn. 13)