Diary of Thomas Burton Esq: Volume 1, July 1653 - April 1657. Originally published by H Colburn, London, 1828.
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It was very much endeavoured by all the Court, whether to settle the power in the Lord Protector and the Council, by reason that many sudden emergencies might happen, and many sudden opportunities and advantages be given, which could not expect the calling of a Parliament, and being lost once, all the wisdom of the Parliament could not possibly recall it.
Besides, we could not but be upon great disadvantages with other princes, who, knowing the constitution of our nation to be thus, might offer us many affronts, and upon any design, be beforehand with us, as well knowing that we could not encounter them in a war without the calling of a Parliament.
Notwithstanding all which, it was alleged on the other side, that the power of war was in itself an ancient right of the Parliament, (fn. 1) that though kings in former times had, de facto, made war without advice of Parliament, yet there was no king since Henry III.'s time, but, at some time or other, did ask advice of Parliaments in that very point, and did call and summon their Parliaments to that very purpose. If, at any time, they did make war without the advice of Parliament, it was only at their own particular charge, and out of their own purse.
But, the power of making war, did necessarily employ the power of raising men, of raising of monies, and of making military martial laws, which, in the very making of them, are arbitrary, and in the execution, summary. In truth, it did comprise, in the account of it, a power over our estates, our persons, and our lives. And this was an undoubted right of Parliament, that no tax can be made, no man's person imprisoned, nor their lives exposed to arbitrary martial laws, but by consent of Parliament. Therefore, we could not give this power to the Lord Protector.
It was needless, and the objection frivolous, the case of any sudden affront. We were to have a standing force always in the nation, able to oppose the proudes enemy, and put him to a halt, until the Parliament could be called. In case any sudden opportunity should offer itself of advantage, it is not always necessary to lose it, because it cannot be as suddenly laid hold on; or if it be lost, it may possibly be redeemed, or at worst, if it must be infallibly lost:
2. At worst, it is but a present mischief, and such a mischief as possibly may not happen in an age; and if it should happen, better such a mischief, than an inconvenience, a continual standing inconvenience, of having an arbitrary power in the Protector and Council, to make a war; and by consequence to raise men, to raise money, and to do all those other arbitrary things before mentioned.
It will be more safe to the Lord Protector and his Council, to stand discharged of so dangerous a trust, for which they must be accountable to their utmost perils, in case the events of any war begun by them, should prove unfortunate. And certainly, it will be more formidable to any of our enemies, when they shall know it is not a few humorous persons that they are to engage with, but a whole nation they are to make war against. If any shall be so weak, or so audacious, as unworthily to affront us, no doubt but they may at leisure repent it, and we shall never want the courage nor the wisdom to chastise such temerity, and to make them pay amends for their pains.
Our wars will have much more reputation and fear, when it will be presumed that a whole nation will not consent to a war lightly, nor otherwise than rationally, and upon just grounds; and when they shall so engage, it will be heartily, effectually, and to purpose. Which considerations alone will make all foreign nations to be cautious and wary, how they provoke us.
Upon these; and other weighty reasons, after two full days' debate, it was brought to the question, and resolved, without one negative, that the power of making war, is in the Lord Protector and the Parliament, so as no war can be undertaken but by consent of Parliament.
Tuesday 3. Wednesday 4. The debate of these two days, was wholly upon the power of making peace; and at last it was brought to this resolution, that, sitting the Parliament, the power of making peace is in the Lord Protector and the Parliament; but in the intervals of Parliament, it shall be in the Lord Protector and the Council; with such limitations and restrictions, as the Parliament shall think fit.
Thursday 5. The Speaker was called to the Chair, and it was ordered that there be a Committee appointed, of the whole House, to consider of matters of religion; to sit twice in the week in the afternoons, and no other Committee to sit in the mean time; and that the Committee should advise of twelve or twenty names of ministers to be sent for, to advise of such matters of religion, as should be propounded to them from the House.
A report being made from the Committee of Privileges, that in regard there were many exceptions depending before them to several elections in Ireland, and the bringing over witnesses would be very chargeable and dilatory, therefore, it would please the House to order commissions to be sent over to Ireland, to examine the matter-of-fact upon oath, and to transmit the examinations to this Committee to proceed in judgment upon them. It was likewise moved in the House for Scotland.
It was argued and debated, that this House did never dispense with the examination of. witnesses, touching their own privileges, out of their own hands, but had the witnesses brought up, viva voce; that affidavits out of other courts were never admitted in such cases; that if a commission were granted, it. must be by especial Act of Parliament, it being a new thing and a new law, that not only a new commission, but the very form of the commission, must be by Act of Parliament; for the Commissioners of the Seal cannot set the seal unto any commission which is not warranted by law; nor to any new invented commission; that heretofore, some Lord Keepers had been brought into a premunire for the like thing.
But, the thing itself was held very dangerous; for if any members were returned out of Ireland, and should be here sitting in Parliament, and exceptions be brought in against his election, and a commission prayed to examine the matterof-fact in Ireland, either the member that is here sitting, must be forced to go over to Ireland to see the examination of the witnesses, and so the Parliament should lose a member, and upon the same terms they might lose all the members; or else, the party complaining shall have the sole examination of the witnesses, and the sole stating of the matter-of-fact; which when once stated, is more than half judged.
Therefore, upon the whole matter, the House would do nothing in it, but left the examination of witnesses, in their causes, to the same course and order as other examinations were always used, and to refer it back again to the Committee of Privileges.
A. petition of the Earl of Worcester (fn. 2), for some enlarge ment from the Tower, was likewise read. It was alleged that he was a Papist, a Papist in arms; that had been in arms in England, had headed a party in Ireland; had made a most dishonourable peace there; had done many other disservices, for which he was excepted from all mercy and pardon; his whole estate to be sold, and all such to be banished.
Yet he was an old man, had lain long in prison, and the small-pox was now in the same roof where he lay; and he had not, as was said, done any actions of hostility, but only as a soldier; and in that capacity had always shown civilities to the English prisoners and Protestants. It was, therefore, ordered that he should be bailed out of prison.
Sir Robert Pye being returned to serve in Parliament, was arrested in execution since his return, but before the sitting of the Parliament. Ordered, that the bailiffs and trader-sheriffs be sent for as delinquents.
It was agreed, that the privilege of Parliament did begin from the very day of the election. Therefore, he was to have forty days' preparation to come up, and continued forty days after the Parliament, to prepare for his return.
Friday 6. Saturday 7. Were wholly spent upon the distributions of the number of members to serve in future Parliaments. We agreed with the Instrument, in the whole number of four hundred, Jersey and Guernsey being left out, because not governed by our laws, but by municipal laws of their own; and we differed but little in the particular distributions.
The Ordinance concerning the regulating of the Chancery, which was lately set out by the Protector and his council, was committed by the Parliament to be considered of; there being some things, as affirmed, which were not practicable in it.
Tuesday 10. The House passed over all the rest of the articles, and came to the thirtieth article, which concerned the making of laws, by the Lord Protector and his Council, until the Parliament should be called, and to be binding until the Parliament should take order concerning the same.
Resolved, that all those Ordinances so made by the Lord Protector and his Council not before committed, and likewise all Acts and Ordinances made since 3d July, 1653, including all those Acts of the late little convention be referred to the examination of a Sub-Committee, to consider what were fit to be continued or repealed.
This day, likewise, a motion was made, in regard of the low prices of corn in the nation, (fn. 3) that licence be granted for the free transporting of it, without paying custom, and likewise that there be liberty for who please to engross it without the danger of the law. Which business was referred to a Committee, to draw up something to present to the House to that purpose.
The thirty-first article was likewise referred to a Committee, to consider what lands and revenues were yet unsold and undisposed of, and how they might be disposed of, for the payment of the public faith and other debts of the Commonwealth, and of settling the rest into a standing revenue for the use of the Protector.
Thursday 12. The Speaker being in the Chair, it was moved, in regard of the late disappointment of the Greenland fleet, and the great want of oil to carry on the trades of cloth and soap, that therefore, licence be given to fetch it out of Holland.
Resolved, that it be referred to a Committee, to call before them the Company of Greenland and Eastland merchants, and thereupon to consider, how in what manner there may be a present supply of whale oil for this nation; and how the trade of fishing for whales may be regulated for the advantage of the Commonwealth, and report their opinion.
That it be referred to the Committee, to whom the business for transportation of corn is referred; and they are to meet upon this business this afternoon, at two of the clock. (fn. 6)
The debate of this, did draw the late Act concerning trade (fn. 7) into consideration. After the whole forenoon's debate, by the country gentlemen against the citizens and late Parliament-men, who were in love with creatures of their own making, at length
Resolved, that there be a Grand Committee of the whole House for Trade, when the Act shall be taken into special consideration, and that they do sit in the House every Tuesday, in the afternoon. (fn. 8)
Monday 16. (fn. 11) The debate began upon the thirty-second article, whether the office of the Lord Protector should be elective or hereditary. After three whole days' debate, viz. Monday, Tuesday, and Wednesday, at length, about Wednesday, at five of the clock, it was
Resolved, that the office of the Lord Protector shall be elective, and not hereditary. (fn. 12)
Thursday 19. The other part of the thirty-second article, concerning the persons by whom the election shall he made, was taken into debate. After three other whole days, viz. Thursday, Friday, and Saturday, at length it was—
Resolved, that, upon the death of the Lord Protector, in the intervals of Parliament, another fit person shall be forthwith elected to succeed him, which election shall be by the Council, so constituted, and with such limitations and restrictions as the Parliament shall think fit.
The reasons given for the elective or hereditary succession, pro et con., were divers; but I was not there at the time of those debates. But the reasons given; why the election should be rather in the Parliament than in the Council, were also divers, some of which I will here remember.
For the Parliament.
1. It was asserted and so agreed, on all sides, that it was an original fundamental right, inherent in the Parliament, to choose their supreme officers. Something of authority was alleged, in all ages, even from Cæsar's time, downwards, how kings have been elected, or approved and confirmed by Parliaments.
4. It would be much more satisfactory to the people, and more safe for the Protector, to have his election by the Parliament, the stamp of whose authority upon him would make him more willingly accepted by the people, and, besides, he that shall be so chosen by the Parliament, the Parliament will be engaged to stand by him, and to support him upon all occasions, which obligation will not be so great, where the Protector shall be chosen only by the Council.
They are persons not known who they shall be, before they are chosen, and so can have no preoccupancies nor applications made unto them beforehand. And they are so many, as it would be a vain and impracticable thing to prepare or corrupt them, if any should never so much endeavour it.
6. The danger of introducing the line of Charles Stuart would, for the former reasons, be very great; because they are easy to be cajoled or corrupted to serve his interest, being but twenty-one at most; and nine of them being, by the present constitution, to make a Council; and five being the major-part of nine, it is but the making of five of the eminent persons of the Council, and Charles Stuart's business would be done.
It could not be doubted he would bid high for a Restoration. He would willingly part with two kingdoms for the third; and two such kingdoms would be a competent bait to satisfy the ambition of five counsellors, though never so chaste. And it is very possible that in three years, twelve of the Council may possibly die, and then, nine are the only Council left; of which nine, five will be the major-part, as before. But possibly, thirteen of the Council may die; and then no Protector can be chosen at all, for want of a Council.
7. All other inconveniences and objections that can be made against the election by the Parliament, and for the Council, are as broad as long, and will hold with as much strength against the Council as the Parliament.
8. It may seem not so fit in so great a trust, that the Council should choose, considering that the Council are not nominated by the Parliament, but approved only; and the trust of the election is agreed on all hands to be in the Parliament.
10. For the great objection of the army, that is agreed necessary, however, to be kept up to secure the new government against the old interest; and therefore, if the election were not thus, we could not expect the army should be disbanded.
11. The argument from an inconveniency of an interregnum, might easily be solved by putting the administration of the. government, or it, into the Council, during the vacancy; and for administration of justice, all commissions, both of judges and justices,may be continued by an Act of Parliament, notwithstanding the death of the Protector.
On the other side, the reasons and the arguments why the election should rather be in the Council than in the Parliament, even sitting the Parliament, were many and weighty; the most considerable whereof, so near as I can remember, were these which follow.
For the Council.
2. The great difficulty of calling and convening the Parliament, as it is especially now constituted, in regard of Scotland and Ireland, and the great prejudice which may happen before a Parliament can be called.
4. It must needs be long and difficult, before a Parliament can be thought to agree upon any one single person; their judgment being, in all probability, so different as they are like to be, and their affections as strong to persons of their several interests. Which must needs beget both extreme delays, and strifes, and discontents, when so many interests shall strive for it, and but one can have it.
5. In future times, when all parties are restored to freedom of elections, it may so happen, as we may have a Cavalier Parliament, which may, possibly, endanger the bringing in again of Charles Stuart or his family.
9. In case an election made by Parliament, should once be overborne, it will necessarily occasion the overbearing, if not the destruction even of Parliaments themselves. For he that shall come in, contrary to, and against the election of Parliament, will never have cause to be in love with Parliaments.
10. Parliaments are ever apt to be factious, and factions in Parliament are seldom but destructive wars; not so Councils, because they may be reconciled again by a Parliament. But who shall reconcile a Parliament ? especially when there is no check upon them. A Parliament may be arbiter or judge of others' differences, but who shall arbitrate theirs ?
13. As it is sooner, so it is easier done by a Council, and by a few than by many. It is not probable that a few persons, especially such whose interests, by long acquaintance and a joint employment in business, have united in understandings and affections, should differ so much, or more, than 400 persons drawn from several nations, strangers and unknown to one another, and coming wholly unprepared to such a business. Whereas, it cannot but be presumed that the Council upon any sickness or danger of the present Protector, have premeditated and advised beforehand, who shall be the succeeding Protector.
14. If the choice be in the Parliament, it was conceived that it could not but bring a great deal of danger, even to the life of the present Protector. For, when it shall be known that the next Parliament, or this present sitting, shall choose the Protector in case of death, some wicked or passionate person may attempt some violence upon the person of the Lord Protector, that so they may come to have a new one chosen by the Parliament, or rather that they may have none at all chosen, but leave the government in the Parliament alone, and so re-establish a Commonwealth.
15. It cannot be supposed but in Parliament many persons will, probably, be in nomination, and those in all likelihood of the most eminent in the whole nation. And, whereas it is most certain that but one only can have it, it will follow that all the rest that miss of it, must needs be disobliged by him that hath it. Which will occasion so many enemies, at least parties and factions, as will beget at last an immortal jealousy between them, and uneasiness to them both. He that is chosen will look upon them that stood in competition with him, as persons of as high interest in the affections of the Parliament as himself, and like to be his next successor, and they who have missed of it cannot but bear a regret in their minds, of the disappointment.
16. There may be rules given to a Council, concerning the election, rules by which they may be limited and restrained, or directed as the Parliament shall think fit, which rules the Council dare not break. But the Parliament cannot be limited or restrained, let the choice be of one never so wicked or unfit, or even of Charles Stuart himself.
Notwithstanding all these arguments, which seemed to prefer the election by the Council before that of the Parliament, it was by many concluded, especially those who were for the hereditary way, that even this way, which was conceived the best that could be contrived, was yet but ex malis minimum, of evils, to take that which seemed to have least evil in it.
Tuesday 24. The rest of the thirty-second article, concerning the manner of election and the qualifications, were referred to a Committee. The thirty-third article being formerly resolved, the thirty-fourth was debated, (fn. 13) and agreed, as it is in the article.
Accordingly, the Lord Deputy of Ireland, the Commissioners of the Seal, the Commissioners of the Treasury, and the Chief Justices, (being formerly nominated by the Lord Protector,) were this day approved in Parliament. (fn. 14)
Wednesday 85. Mr. Speaker kept the chair. It being formerly resolved that every Wednesday in the week the Speaker should keep the chair, to hear reports from Committees, and other business that should concern the public.
Accordingly, this day, the Reporter, Mr. Yorke, the Chairman of the Committee to whom the proceedings and powers of the Judges (fn. 15) at Salter's Hall were referred, (fn. 16) did make report of several exorbitant and arbitrary powers that they find in the Act and Ordinances for relief of creditors and poor prisoners. (fn. 17)
After a whole day's debate, it was at length resolved to be suspended, and a new Bill to be brought in with all speed, to afford just relief in the same cases. (fn. 18)
Thursday 26. The thirty-fifth Article of the government was taken into debate and voted, that the true Christian Religion contained in the Scripture, be held forth and recommended as the public profession of these nations, and that the present maintenance of ministers shall not be taken away nor impeached, until some provision, less subject to scruple and contention, be made for them. (fn. 19)
Friday 27, Saturday 28. Wholly spent upon the debate of the thirty-sixth Article. (fn. 20) The House being much divided, nothing was, either day, resolved, but adjourned over until Monday next.
Monday 30. The matter of the thirty-sixth, thirty-seventh, and thirty-eighth articles, concerning indemnity to all that cannot subscribe to the public profession, and toleration to tender consciences, was again in debate. Nothing being concluded upon, at length, after a whole day's debate, it was referred to a sub-committee (fn. 21) to draw up a question upon all the three articles, and to present it to the House upon Wednesday next for their debate. (fn. 22)
Tuesday 31. Several petitions were presented to the House. (fn. 23)