Diary of Thomas Burton Esq: Volume 1, July 1653 - April 1657. Originally published by H Colburn, London, 1828.
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Tuesday, December 30, 1656.
Major-General Disbrowe. It is fit every man should be encouraged for the service he does or hath done for you; but if this 200l. per annum have been paid three years together, and haply but a quarter of a year's service done? I would have it continued while the service is, but not longer.
Resolved, that it be recommended to his Highness the Lord Protector. (fn. 1)
Mr. Attorney-General brought in a petition touching Lord Fiennes and Mr. John Ashe, (fn. 2) for relief against bonds entered into by them for the public.
Resolved, that it be committed to the Committee of the Devizes. (fn. 3)
It recites, that the grant is for his good service. A rent of 4l. per annum, is reserved as a blanche ferme to his Highness. The lands were the late Duke of Hamilton's. (fn. 4)
Captain Baynes. The order of the day was, the Spanish business. (fn. 5) I desire that, in order thereunto, the Bill for the excise might be read.
An Act for explaining a certain Act of Parliament for the maintaining of ministers, and the more frequent preaching of the Gospel in the city of Bristol, and for supplying the defects of the said Act. Read the first time.
Lord Fiennes presented a petition of the President and Scholars of Corpus Christi College, in the University of Oxford, touching a right of presentation to a Benefice of Mesyhampton, in Wiltshire, and Merston Measie, in Gloucestershire. By an ordinance of Parliament, this Mesyhampton is united to Merston Measie, whereby the College have lost their right of presentation, and the presentation has fallen upon one Mr. Genner, a late member of Parliament; desires it may be repealed.
The Master of the Rolls. Mr. Genner has built a fair church at Merston Measie. I would not have that pulled down, nor the right of the College taken away; but that maintenance may be provided for both.
Lord Whitlock and Sir William Strickland. There is all the reason that may be, that the College should be preserved in their right. They have no heirs, but must repair to you. I desire this petition may be committed.
Major Porter brought in a Bill for Confirmation of Claims, (fn. 6) and Mr. Speaker said he had waited a fortnight for it.
Mr. Robinson. If you have nothing but private business, I wish we may go home again. Let us do some public business. I dare say, more private Bills are brought in this Parliament, than in all the Long Parliament.
Major Aston. The most necessary business is the debate upon the letter, to preserve a right understanding between his Highness and us, which ought not to be put off. I desire that may be the first business, that no just cause of exception may be against us, but that we may go on hand in hand in unity.
Mr. Robinson. The order Of the day, is the Bill for the excise, in order to monies for the Spanish war. If you have no occasion for monies, let us know, that we may go home. I believe it was the great reason of calling us hither, to carry on that war.
Mr. Highland stood up and made a long speech, how much the lives, and liberties, and estates of the people of England were concerned in our late judgment against Nayler. Better we had never been born than have taken that liberty to ourselves, to exercise such a power over the liberties of the people. We had better deny ourselves, than let such a thing pass.
Sir Thomas Wroth. This gentleman does, in plain terms, arraign the proceedings of this House. I would have us tender in entering upon such a debate. The business of the Spanish war will not admit of a delay. They will not stay till we be ready.
Sir John Reynolds. A short vote or resolve of this House, never to draw this judgment against Nayler into precedent, would haply give satisfaction for the present; and, in the meantime, you would go on with the Spanish business.
Mr. Bond. To read the Bill is most for your service. You will lose the benefit of the excise upon fruits. The Spaniard will not stay till you be provided for him. I desire you would go on with the Spanish business.
Major-General Boteler and Major-General Packer. It ought not to be put off, now that you have appointed this day. I desire you would go on in it. It may be a means to preserve a right understanding; and what will be said abroad, if you put it off.
Sir William Strickland. I desire you would go on with the debate. I see no such difficulty, but that an answer may be soon given to the letter. I hope it will easily appear that our jurisdiction did extend to the sentence we have passed. His Highness seems not to question it, only would know the grounds and reasons whereupon we proceeded.
Major-General Disbrowe stood up and said, this is the first time I have heard this letter read. It is but equity, if his Highness be unsatisfied in any thing of our proceedings, as relating to the Instrument, but we should satisfy him in it; he being joined with us in securing the peace and safety of the people. If there have been any error in our proceedings, we ought to rectify it Otherwise, it will remain as a dangerous precedent, and any of our children, nay, his Highness's children, for they come to be under protection, may afterwards be brought under the danger of such a precedent. It is fit we should satisfy his Highness, and one another, in this thing.
I desire that a considerable number of the House might be appointed as a Committee, to wait upon his Highness, to understand his pleasure in it from time to time, to satisfy him of the grounds and reasons of our judgment.
Lord Lisle. I was against taking up this debate, before the sentence was executed upon Nayler. I would not that such a person should be the subject of our debate. It is clear that this House has a judicial power. Writs of error lie here from the Upper Bench and Exchequer Chamber. I am as clear that, in some cases, this House has not a judicial power; as either, where there is a law in being, or there is no law in being. No jurisdiction in treasons, at the common law, and not within the statute 25th Edward III. This must be done by King and Parliament, (i. e.) by Act of Parliament. The question now is, whether, originally, this House has power to give a judgment judicially, no positive law being in force against that offence. You must not confound the legislative and judicial power together. It were best to consult precedents in this case.
I appeal to that gentleman, if he have not given his vote in many such like cases. Did not the Long Parliament, by a vote, declare treason; that all that adhered to the king were rebels and traitors? Was not there treason without the king's consent ? I never heard he had given his consent to declare that. The like case was, I appeal to you, in 1648, when the Scots invaded this nation. Is not my Lord Protector's interest built upon this very foundation.
I would have us not part with our privileges. I hope his Highness will not question it. It is neither for his service nor ours to decline our jurisdiction. If you be not a judicatory, you are nothing. If the apprentices of London should come and pull you out of your chair, shall not this House punish them ?
It is not practicable nor good, neither, for a Parliament to make laws and execute them themselves; yet they may do it, if they please. These are Arcana Republicæ. What is above the jurisdiction of a Parliament ? Will you refer it to a multitude? I would not have a people know their own strength. I would not have it put upon a Parliament to own their strength. I hope it is a jurisdiction that will not be questioned. If you must be restrained and circumscribed, it were good it were known by whom. The less these matters are meddled in, the better.
May not any ordinary court of justice proceed to pillory and whipping. Was not this all the issue of divinity lectures for twelve days together about this business. His Highness and we, by God's blessing, may, if we agree in a unity, do many things for the good of the people. If we go about to dispute jurisdictions, I am equally tender on both sides. If we fall once a quarrelling, and debating jurisdiction, haply some things may be done by his Highness and the council, that it would not be well taken, if we should go about to dispute the jurisdiction; some ordinances passed that are not so clear. We must compare things with things.
If we begin this debate, and lay open our jurisdiction, we may know when we begin, but not where we shall end. Though this happen upon the account of this fellow, yet it may extend to civil matters of the highest concernment. As I would not restrain the power of Parliament, no more would I question other jurisdictions. It may be the great hope of your enemies to have this division amongst us. It hath pleased God to bless us with a good and a tender supreme magistrate; but there may a king arise in Egypt that knows not Joseph. It is dangerous to lay open these jurisdictions.
The late king cited statutes, but you declared them inapplicable in the case of the commission of array. (fn. 7) Divers other precedents may be found out, even in modern times. I would have a Committee appointed to examine precedents, and prepare an answer to the letter. I doubt not but he will be satisfied with it, without further arguing jurisdictions on either side. It is a dangerous thing to enter upon. I hope we shall agree in unity.
Mr. Bampfield. I would have us lay this debate aside, for I fear a debate of jurisdictions will be of no good consequence. If we examine precedents, it will but fasten the debate. Haply, something may, in this debate, be brought under examination on the other side. If it should be asked, by what law the recognition was placed upon this door last Parliament, (fn. 8) by what law were decimations or the late monthly tax laid, how would the council answer this ? I wish we knew upon what bottom we are. I should humbly pray, that before you settle your jurisdiction, you will settle your constitution. It was told you from the bar, by a noble lord, that none that sit here may sit in the next Parliament. It is very likely, while the council are judges of your members. (fn. 9) It is a great trust, and I hope they will improve it to the best advantage of the nation. If they should except against all the members but Scotch and Irish members, sixty makes a Parliament; and if haply, sixty should not be allowed of, how then would there be a Parliament at all ? I desire this may be first cleared, as to your constitution.
Lord Broghill. I was not at this debate; yet I reverence your judgment, that we have done as a Parliament. I am not for answering his Highnesses letter with another question, as the last gentleman moved, but to answer it as to the matter. Nor am I for the other way offered, to answer him by precedents done in the late king's time, in the differences between the Parliament and him. He was then a declared enemy. My Lord Protector is your declared friend, to whom, by your constitution, you are united. I would have an answer prepared only from such precedents as were, when both constitutions were in peace and unity.
Colonel Sydenham. We live as Parliament men but for a time, but we live as Englishmen always. I would not have us be so tender of the privilege of Parliament, as to forget the liberties of Englishmen. We ought to walk legibus, non exemplis. Precedents are not to be followed at all times. The Long Parliament had more need to resume their power than I hope we have. Then was war, but we are now at peace. I humbly lay it to the heart of every gentleman here, if the case do not much differ. I appeal to every man here.
We are now under another constitution than formerly. That objection is easily answered. If every county should choose two members, and every borough their burgesses, as formerly, should those thus chosen sit here as a Parliament, though they take the oath of allegiance and supremacy ? But to answer one question by another is neither logical nor just, nor honourable to answer this letter so.
I grant this House has a judicial power, as to judge of your own members, or to judge of appeals from inferior Courts, for you are the supreme jurisdiction. But to send for men up out of the country, and to judge them without a law, what encroachment is this upon the liberties of the people!
My Lord Protector is under an oath, to maintain the laws, and all the articles of the Government. Is not he then to look so far to the good and safety of the people as to see that no man be sentenced but by those laws, not without or against them? What an intrenchment and incroachment may be upon the people's safety, if we judge of things here by a positive power, without a law formerly made. Who can tell what kind of Parliaments may succeed ? To try offences ex post facto was never a (fn. 10) liberty neither in parliament, king, or protector.
We have not a power here to do what we please. There is something in the people which they always reserve to themselves, as that of their trial per pares, &c. I speak of a judgment beginning and ending here.
I offer not this to the end that the judgment might be receded from, but that the good and tender people of this nation may be provided for, for the future, that it may not be drawn into precedent, to the prejudice of the good people of the nation. To this purpose I would have a Committee to frame such an answer, to give his Highness satisfaction that such a thing shall not be drawn into precedent. I am not of opinion that the constitution is the same as was the Long Parliament. We are now upon another bottom and foundation than former Parliaments were, much differing in substance and circumstances too.
Sir William Strickland. I doubt not but we shall be able to make it out that we had a jurisdiction to do what we did. If there be not a judicial power in Parliament, I know not what principles are. I hope we have lost none of our privileges. I never feared, till the Spanish enemy occasioned the questioning of our jurisdiction, (fn. 11) that it should have been disputed. I am sorry to hear our privileges argued, or that it is urged that his Highness is under such an oath as to enter upon such a dispute. We have holden up our hands to assert the privileges of Parliament. I hope the one oath shall not clash with another. I like not to hear the liberty of the people opposed to the privilege of Parliament; I understand not that kind of argument: I never heard those opposed to one another before. I hope it will not be offered, as I take it we have all the power that was in the House of Lords, now in this Parliament. Surely we have lost nothing by having that power added to us, nor are we less, by having the nation of Scotland united to us. The essence of Parliament cannot be diminished by any such alteration. I desire a Committee would prepare an answer to present to his Highness, on this business.
Lord Whitlock. I am not for entering into dispute upon your jurisdiction. No doubt but precedents are, in all ages, of the judicial power of Parliaments. I know nothing in the Instrument of Government, to restrain that jurisdiction. In the case of Thorp, it was said he made the king forswear himself, and therefore it was adjudged treason and the like. Sometimes the House of Lords did it with the king, sometimes with the Commons, sometimes alone. I would have these precedents as little made use of as may be. If there be a defect of a law, let a law be made, that posterity may not be surprised. But, to the answer of the letter, for I like not disputing jurisdictions, I desire you would appoint a committee to consider of a way to give an answer to his Highness's letter, and report their opinion.
Lord Strickland. I hope you will not ramble into former precedents, nor fall to dispute jurisdictions. I doubt it will take up too much of your time. To save your time, I would have a Committee to sum up the grounds and reasons of your proceedings, and present it to his Highness. If we have done well, he will be satisfied with it; if not, he will propound some other way, to prevent the inconvenience for the future.
Mr. Trevor. Such an answer should be prepared, as that we may both assert our own jurisdiction and give his Highness satisfaction too, and preserve a good understanding amongst us. It may occasion a conference. I would have a Committee appointed to prepare such a civil answer.
Mr. Nathaniel Bacon. Such an answer may easily be prepared, by the advice of a Committee. We are, in bur debates, like the Tartars, who fight flying, and come to no fixed point whereon to ground a debate. I doubt not but his Highness will be satisfied, when you tell him how that, finding such a horrid blasphemer, and a grand impostor and seducer, in the nation, by power of Parliament you proceeded as you have done to punish him.
Lord Chief Justice. I am sorry this debate happens, upon such a subject. Nobody can deny but there is a judicial power in Parliament, as well ad extra as ad intra. I find nothing in the Instrument against it. Ad intra, by the very law of nature; to preserve ourselves, our members, from all violence and restraint, this being essential to your very being and preservation of a Parliament. They have also a power ad extra, in some cases. Lord Beaumont was fined for some miscarriage in his coming before the Parliament. Sometimes the three constitutions together have joined in a judgment; sometimes the King and House of Lords together; sometimes Lords and Commons together; sometimes the House of Lords alone; in one case the House of Commons, but it was disputed. In Spencer's case, (fn. 12) they proceeded in a judicial way. Trial by juries have been before them. Sometimes Parliaments have asserted their own judgments, sometimes have receded from their judgments, sometimes succeeding Parliaments have repealed judgments of former Parliaments, as where a Judge was hanged by judgment of the House of Lords, which the next Parliament repealed.
In the case of Floyd, (fn. 13) for abusing the Queen of Bohemia, the Commons alone adjudged him to ride backwards on horseback. It was questioned, but not vacated. If you wade into precedents, you will find variety of judgments. Parliaments in legislative power have authority without bounds, power over the lives and liberties of the people; but the judicial power is not boundless, for this is against the natural power of a court of justice, this is a court of will and power. There must be rules to all judicial power. It confounds the legislative and judicatory. You invert all the rules of proceeding of all courts of justice, by this means. Here is no exception against judge, witnesses, or jury; no disputing your authority.
We are now to consider the oath that his Highness is under, to protect the lives and liberties of the people. But if we proceed in this manner, judicially, against any man, as we please, we divest him of that power, and take the sole power of judging men, without law, or against law. It is true, such things have been done by Parliaments alone, but never without great regret. Let us consider our constitution. We are a Parliament of three nations: can any of us tell what was the judicial power of a Parliament of Scotland, or of the Parliament of Ireland? I would have us to let the people know that we are not met here to assert any jurisdiction of our own above what we ought to have. It is said we may proceed to a slight punishment, but not to life, or member, or estates, by the judicial power. I cannot submit this in all cases, but where we have a known law for it, I shall not advise to recede from our judgment, but provide against it for the future; for it may be of very dangerous consequence to Englishmen to be ruled by a court of will. And, by the same account, all we that sit here may be questioned in succeeding Parliaments for what we have done in this. I would have a Committee appointed, to consider of an answer to be given to his Highness, to view former precedents, and report their opinions to the House; and I doubt not but it will satisfy his Highness.
The Master of the Rolls. Consider our constitution first, before we debate this business further. I take us to be upon the same foundation and bottom that we were before. Parliaments, for all these alterations, are to be understood as the same in essence. There is consuetudo parliamenti, three things concurring to make a Parliament, three actions.
2. A judicial power, a power to judge; though, without the House, you cannot judge but per pares. You have made Acts in this, against that, (fn. 14) but I shall say nothing, &c. But of the judicial power, it is clear that you have power to judge any thing, though there be not a law for it in present being. Surely it is otherwise with us, (fn. 15) that are the lawgivers to apply remedies as occasions offer themselves.
3. The legislative power, which that noble Lord has spoken fully to: I shall need say nothing to that. If you consider yourselves as a new constitution, a new creation, I am loth to speak to this: it is a nice point. I take this Parliament to be upon the same foundation. It only differs in circumstances: it is not the adding or taking away your members that does increase or lessen your jurisdiction. First abbots, then bishops, then the House of Lords were taken away, but the Parliament remains still. The Instrument says nothing what kind of Parliament you shall be. You have the consuetudines Parliamenti. I am confident it was never in his Highness's purpose to make you a new creation. If so, I know not where we are. A charter confirmed, makes it not a new-created charter. I shall not mention former precedents to you; for sometimes the King, sometimes the House of Lords, sometimes Commons, took this judicial power upon them. Truth is, those that could catch it had it. But in our modern precedents, things have been otherwise established. The privilege of Parliament has been asserted and sealed with the blood of many thousands.
I desire not to be misunderstood in what I say. I profess I mean well in all I say, not to make the breach the wider. I wish these jurisdictions had not been questioned on either side. It is an ill omen. I hope his Highness would be satisfied, if you should but tell him what you have done by your judicial power, and against whom.
Mr. Attorney-General. If I thought this were a sufficient answer, for the good of the people, I should not be troublesome to you in it. It has been said, boni juris est ampliare jurisdictionem. When the House of Peers were dissolved, they were dissolved. The power was not reserved, but the power ceased with the constitution.
I remember a case in the Long Parliament. It was Alderman Crooke's and the East India Company's case. The House of Lords made an order to reverse a decree in Chancery; but this being done without the House of Commons, thereupon we granted an Injunction to confirm the decree It is said, we have a nation amongst us now, that was never before. Know we what the judicial power of a Parliament in Scotland was ? It is fit all people should know how you are settled or constituted now. I believe it will be easy enough to find a precedent, to justify any thing you shall desire to do; but I would not have us to pursue those precedents. It were better for Englishmen to be guided by certain rules, than by any precedents. If the laws be short, or defective, let them be amended. But they that plead for the liberty of Englishmen are no enemies to the privilege of Parliament, I hope. It is always best and safest for a Commonwealth to be governed by a known law, that they may know when and what they transgress. I would have a Committee appointed, to prepare an answer to his Highness's letter, and to satisfy him what, and how, you have proceeded in this business, with your carefulness not to draw it into precedent.
Lord Lambert. To appoint a Committee to prepare your answer will not be for your service, till your sense be further understood. It is a sure rule, salus populi is suprema lex. A right understanding between his Highness and the Parliament is certainly the salus populi. I hope it will also be thought suprema lex. The Council are, upon all occasions, reflected upon. Some of us (fn. 16) wish that we might serve you in any pther place, with greater hazard, of our lives. That of the Recognition, (fn. 17) and those other things urged, come not at all to this case. For that of keeping out the members, if such course had not been taken, consider what a Parliament you might have had. If a Parliament should be chosen according to the general spirit and temper of the nation, and if there should not be a check upon such election, (fn. 18) those may creep into this House, who may come to sit as our judges for all we have done in this Parliament, or at any other time or place. Having no rules to circumscribe Parliaments, the power must be trusted in some person, and fittest in the supreme magistrate.
I cannot understand what is meant by this judicial power. If it have the same boundless extent that the legislative has, nobody can tell how far it may lead, if there be no negative upon it. I shall not bring it to the case of this fellow, lest it may seem to plead too for for liberty of conscience. But admit a Parliament in after-ages should be called, suit able to the temper of the people, that should bring those to your bar to be tried that have faithfully served you, arraigning your sequestrators or commissioners, or any that have acted by your authority.
We cannot tell what kind of Parliaments other ages may produce. We ought to take care to leave things certain, and not expose the people's liberties to an arbitrary power. I would have it referred to a Committee to consult former records and precedents; but first, that you should direct them in a way that may rather be a saving to the jurisdiction of Parliament, and satisfaction to his Highness. But, in regard you are not yet ripe for a question, that you would adjourn.