Diary of Thomas Burton Esq: Volume 2, April 1657 - February 1658. Originally published by H Colburn, London, 1828.
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Wednesday, June 24, 1657.
Lord Chief-Justice Glynn reported from the Committee appointed to withdraw yesterday about the oath of his Highness and the Council. It was in relation to an oath of his Highness and the Council, and members of Parliament, and the solemnity of investing his Highness.
1. That your Highness will be pleased, according to the usage, (fn. 1) to take an oath in the form ensuing:—
"I do promise, in the presence of God, that to the utmost of my power I will endeavour, as Chief Magistrate of these three nations, the preservation of the just rights and privileges of the people thereof, and to govern according to law, &c. (fn. 2) The like for his successors.
4. That your Highness will, before next meeting, issue out your summons for members to serve in the other House, and that the persons so summoned are hereby declared to be the other House, and to have all the privileges in the Petition and Advice expressed.
5. Westminster-hall to be prepared suitable to such a solemnity, a chair of state on the high end, seats for members and Lord Mayor and Aldermen; the Speaker to demand the assent of the people, and then to administer the oath, and deliver his Highness a sword, by way of investiture:
Major-General Disbrowe. The oath is full enough without it. To put in such a clause about the Protestant religion will but be a snare, in regard of the great disputes about what shall be the Protestant religion.
Major Audley moved a further addition, viz. "And according to the humble Petition and Advice," which, though it be now a law, yet we cannot tell but another Parliament may think as slightly of our laws as that of the little Parliament, (fn. 3) who thought themselves to be the legislative; yet now you confirm their laws.
Mr. Godfrey. There is something wanting in the oath, and that is drawn from the inducement, viz. the custom of the Chief Magistrates to take an oath; if you refer to that usage, and leave out the most material part, which was the ground of the quarrel, and upon which all turns;
I shall not state the question, negative, or no negative, by law. It is certain it is upon conscience to confirm those good and wholesome laws that shall be tendered him by the people. Queen Elizabeth refused to confirm a law for establishing Popery, for that was not good nor wholesome; so no breach of her oath by refusal.
All the blood that has been spent has been about this, and wherein his Highness himself engaged, viz. and to confirm these good and wholesome laws that the people in Parliament shall present unto him. This I would have added.
2. To put this long controverted point out of question, the negative voice. To me, I profess, I look upon it that the legislature is, where the negative voice is. I know not what a Parliament signifies else.
It will be said that monies were always the chief consideration. Now you have parted with that by settling a perpetual revenue; and unless you insert this in your oath, I know not how you shall come to your consideration. Late experience tells us how, for a circumstance, the Chief Magistrate may reject any law.
Lord Chief-Justice Glynn moved, that this was debated when the Petition and Advice was debated. This was never the quarrel stated nor determined. It will be hard to prove that the Long Parliament ever denied the King the negative voice. As to that of the privilege of Parliament, it is comprehended under the word laws.
Resolved, the oath so amended. (fn. 4)
Mr. Bampfield. I offer some other amendments to the oath, as was agreed on in last Parliament; that the Council may not be under an oath not to reveal secrets to the Parliament in some cases. We remember Lord Strafford's case. (fn. 5)
Captain Baynes. The Council are the trustees of the people. I would have a clause added that they shall likewise be faithful to the people; for that no provision is made in that oath for their rights. We have good cause to suspect that we shall not always have good Chief Magistrates.
Lord Whitlock. It is not fit to put such a stress upon the office of a Privy Counsellor. They are accountable for their actions, in Parliament. They have not any power of legislature. This will put a low esteem upon Parliaments, and set up a jurisdiction you intend not. I like not that word "consent." Lay it rather upon the word " advise."
Colonel Shapcott. I am against the word " consent." In Parliament as a Court of Justice, though some dissent, yet the minor part have their consent included: otherwise their constitution is destroyed. On one side, the word " consent" gives too much power; on the other side, it is too straight for the reasons asserted.
Sir Richard Onslow moved, that the word may stand. It differs from that of a Parliament, every Privy Counsellor represents himself. And there may be an entry in a book, who consents, and who dissents.
Mr. Secretary. I except against the word " disadvantage," which is very comprehensive, as also against the word " interest:" These are not legal terms, and nobody can tell how far those words may reach.
Lord Strickland. If those words " lawful liberty" be in, you debar the Secretary from taking any man up upon suspicion; for if he must discover the reason of securing such person, then he discovers the plot before he fully know it.
Colonel Sydenham. I am against all oaths, (fn. 6) because there are snares in them; much more, against additions to oaths: for more words, more sins. But if you will do any thing, it must be moved by a member.
Colonel Rouse. I see your oaths grow, and it seems men's consciences must grow to them. I would not have you go according to the rule of that dead carcase, the last Parliament; who, by your own acknowledgment, did make an oath for the Council, that they would not have taken themselves, on purpose to lay them aside; tying us to perform such directions as the Parliament should hereafter give, (fn. 7) which was more than a Jew or Turk would impose.
Sir John Thorowgood moved some additions in relation to property and liberty, &c.; but it was laid aside, and the oath was resolved. (fn. 8)
Mr. Bampfield moved the addition of a clause, that the affirmative and negative of every member of the Council shall be entered by the Council; but this being held improper to be offered now, it was waved, and they went on with the Report.
Mr. Grove. I shall not speak against the matter of the oath; but I am against any oath at all in this case. Your Committee had no such order. I desire you will lay it aside. Oaths are but snares; times are changeable, and a multiplicity of oaths draw but on to sin. It will but keep out the conscientious, and let in those that make no scruple of any oath. Haply, some may be kept, both out of this place and the Council, by imposing this oath.
Colonel Shapcott. You have admitted this Report, and you must proceed upon it. As to the matter of an oath in this case, do we not in every action between party and party, swear men to do justly; and may not the people demand it of you, to take an oath to do justice in this greater trust whereunto you are called ? And here is no more in this oath than what was contained in the Recognition, (fn. 9) whereunto most members here have already subscribed.
Mr. Drake. You are the fountain of justice; whence all the springs of justice flow to the nations. His Highness is under an oath, and you have bound up the Council by an oath. For you, the Parliament, which are the great legislature, to go free, is strange; and you cannot ingenuously bind one and not another.
Major-General Goffe. It will be disingenuous to think that his Highness and the Council should be under an oath, and your members free. The oath is tenderly penned, and I hope it is no more than ought in reason to be done. Your Committee did debate whether it was within their order, and they found it pursuant to the Petition and Advice.
Mr. Godfrey. I must insist upon it, before I speak any thing to the merit of the business, that this Report comes not properly in, and ought not to be received. This is, I think, hard measure, not being pursuant to the Petition and Advice: so I would have it laid aside.
Lord Chief-Justice Glynn. Your Committee had as much power to bring in this oath as that for the Council. As to the oath of itself, it is not indifferent that his Highness should take an oath, and we take none. It is no more than, formerly, members have taken in all Parliaments. Is it not more fit now, to impose an oath to distinguish between persons of several judgment ? May not the children of Cavaliers, that are of a contrary opinion, creep into this House, who are not within the penalty, and yet will be bound up by the oath ?
2. It has a tendency to impose an oath upon the whole nation; and you do in effect lay an oath upon the people of England; the collective body of England. I did foresee this would bring it upon every individual.
4. As to that, that oaths have been taken, there is such a vast parenthesis, a sea of blood betwixt, that it needs not be urged what was done formerly. You are not bound to take that chain up, upon yourselves, upon the people, upon posterity. It is like that of the ceremonial law. A servant may go out free if he will. If he will not go out, bore his ear to the post. (fn. 10)
6. You have said you would have Parliament free; and will you now lay a force upon you ? I had rather soldiers stood at the door, than my conscience to keep me out. It is worse than a file of musketeers. Who will you keep out ? those that are faithful to you and your good intentions. They that can tumble down nations and kingdoms, none more ready to take it; none less ready to keep it. You will make it a straight-way for good men, and a broad-way for bad.
Mr. Trevor. I shall not dispute how this Report comes before you, nor speak to the matter of an oath. Certainly, in all civil powers and governments, oaths are very useful and necessary. The greater the trust is, the greater the obligation. Does not every petty constable take an oath ? Have you not resolved, that the Council and his Highness shall take an oath.? I would be free from ties as to man, and strictly tied as to God. There is no other way to take off other ties. I would have the Parliament to take the oath, and to keep it too.
There can be nothing in an oath but to lay a stronger obligation and assurance from him that I trust, that I employ; as Abraham swore his servant. But that we that trust should take an oath: we are only trusted, by our Indentures, and trusted as by way of executors. It seems unuseful, incongruous and unreasonable, that a people that are not trusted with any thing, should be under any obligation to perform a trust to themselves.
It has been no long parenthesis. (fn. 11) I had rather have an oath made here than without doors; and whilst we make our own oath, there is no danger.
I understand not that argument that we are the collective body of the nation; and therefore all the nation takes it, in our taking of it. (fn. 12) I think it is for the freedom of Parliament, that an oath should be imposed.
I could instance to you where Parliaments have given away their liberty and their religion to the lusts of a king; (fn. 13) and it is fit there should be an oath to bind men in such cases.
Lord Fiennes. In your Petition and Advice you bind his Highness to call Parliaments according to the law, and by the law, members of Parliament ought to take an oath. Is it reasonable that he should be bound, and we free ?
He that has a conscience that he cannot take this oath, he is not fit to sit here; for he must either have a prejudice against his Highness or the liberties or freedom of the people. I do wonder any should scruple what is his duty in this case to do.
4. You are making new matter every day. I wish it had been made more early, when all your members—. (fn. 14) For a matter of this weight to come within these doors, when you are going out of doors!
5. It is against the Declaration to take away the Engagement. (fn. 15) It is said there, that oaths and Engagements are generally found to be snares. That Engagement showed as far as this.
Therefore, for the inconsistencies of it with that Declaration, unless principles vary, and are but per hic hoc, it will strangely refute that principle. I could wish, for the honour of that Declaration, and for the honour of the Parliament, that you would not impose an oath at this time.
9. As to the judgment of what shall be faithfulness. It is not fair that you should interpret it. It must be to the sense of him by whom it is made, ad sensum imponentis, and that may prove a snare, or ad sensum impositi, and that makes way for equivocation. I shall not judge but a man may, with a safe conscience, refuse this oath.
Major-General Disbrowe. I think this oath both just and reasonable. My principle is for settlement, and I hope it is in your Petition and Advice provided for. If I intended, when we come again, to throw up all that we have done, and lay the legislation open again to the people, let us go with open force. It would be more ingenuous to tell his Highness we have set him up, and will pull him down again. If I would have all this, I would have us left without any tie. This is not ingenuous to bind one and let free another.
If a man may speak his heart and thoughts to that oath before you, the swearing to these two things that are so contrary, you set up one to fight against another. Some will think that his Highness has too much power; others, that the people have too much. You will set up these two things, that will be perpetually quarrelling; I mean arguing. I hope some of us shall never see quarrelling about it.
Lord Whitlock. There is a great weight in what this noble lord offers; but his argument reaches to all oaths whatsoever: for if a man's conscience do equally oblige with or without an oath, then what need more scruple at it ? If. it must be without an oath, then all oaths of justices of peace, and the like, are useless.
True, if it light with bad consciences, it may be a snare; with good men it cannot. If the words of the oath carry not a snare, the oath draws none. Oaths were very frequent in all ages, and members of Parliament always took an oath. The allegiance was general, the supremacy particular.
There is no such thing appears, and it is no argument. The universality is not before you now. I should make a great difference. Are not the members of Parliament the greatest judges in England? Every man is bound by honour and honesty. Is it a less obligation to be under an oath ?
The debate was resumed upon the report, and first proceeded upon the form of the oath for the members, which, with alterations, according to the first part of the oath for his Highness about defending the protestant religion, was agreed.
Major-General Goffe. I wonder to hear the gentleman that moved it insist so much upon having that of privileges put in the oath. Methinks he should not be so strict. It is probable, if we were sworn to maintain our privileges so strictly, we should not suffer some to sit, against those privileges.
Amendments were offered to the oath, as to the penning of it; for it was so penned as that none could sit in Parliament till all had taken the oath. The oath, thus amended, passed. (fn. 16)
The Lord Deputy. It was properly moved, that it was contrary to the Petition and Advice; yet it is fit that, at your next meeting, you should have a trial of that other House, and see how your constitution will stand. Your time is short; that you cannot approve them now. I shall move that the approbation and nomination may be in his Highness.
Colonel Matthews and Mr. Bampfield. This is expressly against the Petition and Advice, and against the order of Reference, and is such a trust as is not to be transferred. It is a considerable part of the privilege of the Commons. Have we not gone too far already ?
Resolved, the first part of the clause, as to the summons. (fn. 17)
Colonel Shapcott. I think that, till you have the other House, you are not upon your right constitution. I wish we might put somewhat of a real confidence in his Highness. Divers members will come in, upon the account of right, such as have not forfeited. Whereas, men shall be tossed up and down here, and their lives ripped up. You may consider how you are constituted. You have created, and you are created, you know not how.
Colonel Sydenham. I can better agree with the gentleman's conclusion than his premises; that we should question how we came together, how created. We must stay till some lawful power come to confirm us. The second argument is against tumbling men up and down. I would have such a tumbling; and I thought you would have had such persons as would look about them, and abide tumbling and a trial. If you mean the old Lords, you had as good, indeed, rake in a kennel as tumble some of them up and down.
If such a foundation be laid, as that the old Lords shall be admitted upon the account of birth-right or privileges, I shall very much fear, what I did at first, a returning to another line. I could very well consent that his Highness should choose them: but, upon the account that the worthy gentleman moved, I fear the consequence.
Colonel Cox. It is no dishonour for the persons to be approved of here; and, but that I know the persons that brought in the Report to be persons of honour, I should suspect that they themselves hope to be named, and fear disapprobation here. I would have the approbation where you have placed it.
Major-General Disbrowe. The gentleman was much mistaken in what he said. He did not speak of any birth-right that members had, to be of the other House; but he said that some might so challenge, in regard they have not forfeited.
I have seen the experience of it, that the choosing of a Committee, by a balloting here, did so divide the House into parties, that they were never united again: I doubt this may be the consequence. Now, if we have the same confidence in his Highness that formerly we had, that he will do things for the good of the nation, we need not fear to leave it to him, seeing we have put him upon qualifications.
Major Audley. I was against the House of Lords, and also against the power of approbation in this House; but I am somewhat stirred up by what I heard from a worthy gentleman as to hereditary lords. I am not for such a choice, nor for any of those that went to Oxford. (fn. 18) But if you will have some of the old Lords, I would have this addition to the qualification, that they may sign some such Recognition as this:—
Major Morgan. We should take measure of these lords by ourselves, who would have all ripped up from the beginning. I am diffident of my own ability to approve, and have confidence in his Highness's fitness for it: so that I can freely place it in his Highness.
Mr. Bampfield. This is most essentially the privilege of this House. It is in your Petition and Advice already, and how you can now part with it I cannot well tell. I would have this addition to your question, that the persons being so met shall be approved by this House.
This is a great business. Let us a little consider our duty, and who we act for. Are we grown so low ? Shall we put a yoke and bridle upon ourselves, and have no cognizance of it ? Have we not parted with such a sum as was never parted with in Parliament ? and are we now parting with our power further ? I beseech you that it may be considered.
Lord Fiennes. You are now to consider, if you may attain your end without putting your approbation here, if it will not do as well to omit it. Why shall we insist upon it ? Formerly, those persons were called by writ; and to put this approbation upon them may seem to lessen that power that you intend them in the constitution.
Resolved, the second part of the clause thus amended. (fn. 19)
Major-General Disbrowe. I doubt to-morrow will be too quick. I would have a matter of this solemnity done with respectful deliberation, and not expensively. Any of the courts will serve. I would have it done on Friday; and first have an honest man to preach and pray.
Major-General Goffe. I move that a Committee wait upon his Highness with the oath and your votes this night, and then you may know how to proceed, and when the House shall wait upon him to pass some Bills; and that the same Committee that brought in the Report might attend his Highness.
Mr. Bodurda. I move that the solemnity may not be in the Chancery Court, because there was lately another government settled there, which had not such. It will not be so hard to prepare the other place.
Part of the Report was left out; that the Speaker shall show his Highness to the people, and make acclamation. (fn. 20)
You are making his Highness a great prince, a King indeed, so far as he is Protector. Ceremonies signify much of the substance in such cases, as a shell preserves the kernel, or a casket a jewel. I would have him endowed with a robe of honour.
Lord Lambert. There are other solemnities and ensigns of power, as a sceptre and the like. A sword is an emblem of justice. The ceremony of the sword was laid aside without a question. (fn. 21)
The Lord Deputy moved, that the Bill of Attainder (fn. 22) might be read to-morrow morning, the first business.
A letter from his Highness, to reinforce his former letter about James's and the Westmoreland regiment, (fn. 23) was read; but it being late, past nine, it was adjourned by candle-light ill to-morrow.