Diary of Thomas Burton Esq: Volume 2, April 1657 - February 1658. Originally published by H Colburn, London, 1828.
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Tuesday, April 28, 1657.
The mace being returned, the reporter went on, and there were acts and ordinances, printed and unprinted, public and private, with a preamble and several other clauses, as the opinion of this Committee, to be added. One was, that nothing in this report should be binding till his Highness have consented to the Petition and Advice.
Sir Thomas Wroth. I am against confirming laws in this blind way by the lump. This is the way to have laws ever here, after made by the chief magistrate, to enslave. I would have freedom of debate upon the matter and substance of them, or at least upon some of the most material. This is like the way of Scotland, where Committees (fn. 1) prepare laws before the Parliament sit.
Major-General Disbrowe. I would fain understand what is meant by laws. I think, where the supreme power and authority is, there is the legislature; and what was done by them are as good laws, as any that have been done by us. All that the Long Parliament did is as contrary to the laws, upon this account, as what is done by his Highness and the Council, and by that rule what is done by us, is as far from the rule.
It reflects upon the Long Parliament by the bock-hand. To any thing done for the peace and safety of the nation, why should such a preamble be, which seems to invalidate all that follows? So I desire the preamble may be laid aside.
Lord Whitlock. The preamble, I think, is drawn with a great deal of moderation, without any reflection upon them that were prompted to make any good laws for the nation. But I cannot admit those laws to be equivalent; nor other supreme power but the single person and a Parliament.
The civil law, indeed, gives Rex habet tres superiores, Deum, legem, et curiam; an act 2 Hen. V. (fn. 2) expressed that the power of making laws is in the people only, and none to be binding but what the commonalty assent to, and there provided that no other law-making be drawn into precedent.
It is true many laws have been made by the three estates (fn. 3) in the absence or infancy of a prince. Yet, though these were done in the time of the custos regni, yet still the grounds and footsteps of all those laws were the people assembled in Parliament, a certain number still of the people together.
I can by no means admit of voluntas, pro lege. That any ought to be binding as laws, but by consent of the people, was never admitted in Parliament, or that the authorities are equal. Let there be no word of reproach in the preamble, upon any person that, in those exigencies, has undertaken for the good and safety of the nation, but only some few words to vindicate that ancient and undoubted right of the people in law-making.
Resolved, that the House doth agree with the Committee in this preamble. (fn. 4)
It is not Parliamentary to take these, as the Church of Rome does, implicitly, upon supposition that they are good, or rational. It is against prudence, and against parliamentary prudence. Either it is complete, and that is cui nihil deest, the preamble says they are not, for they are voidable.
The Earl of Leicester's case, where the customs of London were voidable only, the confirmation did make it good; but if they had been void, the confirmation would not do it, for confirmation is but firmum facere, only to supply the defect. A bene conjunctis, ad mala divisa, non valet argumentum. This is a thing that has its inception without doors, and comes hither for perfection: had they come in by several bills, I should have (fn. 5)
2. Confirmation of them here will be an acquiescence in it, and be rather a means to prevent making good laws. The Assembly of Divines did not so much condemn the common prayer itself, as the people's acquiescence in it, and seeking for no other way; and these laws may be made better and more complete. There is no such absolute necessity to confirm them. If it had been so, surely in six or seven months sitting here, they would have been brought here, ere this, for a confirmation.
Not one in 500 that have acted upon them will be questioned. I had rather have pains taken to make new laws, than lay such a dangerous precedent, which though precedents be not laws, yet they are rules. The chief magistrate, hereafter, may be apt to think he has power of making laws; and what prejudice that will be to the rights of the people, or to the rights of the Parliament, I leave it. I desire that the report may not be agreed with.
The Master of the Rolls. You are out of your way now; if you go to debate every particular, I know not how in twelve months you will end. We are going to settlement, and for us to go and shake the foundation of the estates of those gallant men that have kept us in quiet and safety! However critical spirits may say of us, it cannot be denied but we are a certain number here assembled by the election of the people, &c.
It may be of dangerous consequence, if the supreme magistrate should be a Papist, or a fifth Monarchist. He might change but six names of the approvers, and turn out all the godly ministers in the nation.
Mr. Godfrey. This is, in effect, a confirming of it to perpetuity; for it is a question, after once you have set your stamp upon them, whether ever you shall get your single person to alter. This being of the highest moment, matter of religion, likely to have its great effect from the persons that shall exercise it, the supply of them being to be without doors, if any act be made probationary, or ought to be temporary, certainly this ought. My motion is, that it may continue for three years, and no longer, unless the Parliament take further orders.
Mr. Bond. To put the question that has been first read, and ordered, will very well agree with the orders of the House. It is very long to put it three years; but, if you please to put it so, I shall agree; but, to make it perpetual, may be very dangerous, for a popish prince may come in, and we should, in making laws, always suppose that the executioners will be the worst. Again, it is very inconvenient to draw men up from the remotest parts of the nation.
Mr. Secretary. The most natural question is, to put it to agree with the Committee. I would not have this ordinance singled out for a particular dislike, which is so good an ordinance, whereby the nation has received so much good. As to the inconveniencies of men coming hither, the same argument may as strongly be urged, as to bringing down laws into every county, which will not be allowed.
Mr. Bodurda. I am much distracted in considering the great good the nation has had by this ordinance, and the great danger that may be in making it perpetual. I think there is no dislike put upon it, by making it probationary. Either the single person must be trusted before the Parliament, or else the Parliament must be trusted. Now if you make it probationary till the end of the sessions of the next Parliament, you trust in the Parliament. If you make it unlimited, you trust the single person only, and not the Parliament. I desire it may continue till the end of the sessions of the next Parliament.
Mr. Trevor. I am not satisfied by any reason I have heard, why this should stand probationary, though I have my exceptions. I think those words "till further orders be taken," are not only words of course, but that the Parliament will not only take it into consideration in respect of the defects of the authority, but of the wants in the thing itself.
Major-General Goffe cited his Highnesses speech, where he says, if God will bless him for any thing he has done, it will be for this ordinance. He laid great stress upon that. Several clamours are against it, and books writ; but look into it, and it will appear that the greatest exception is this, great caution and tenderness. Superstitious and profane persons may clamour.
Colonel Briscoe. If others have reasons to except against it for the remoteness, surely we that serve for the North have more. As to that argument about the Courts of Justice, the case differs. Justice is to be preferred, but religion before all. It will take, haply, a year's revenue to attend here, and the livings and persons are very poor. I desire it may be probationary for three years.
Mr. Drake. All interests are satisfied by this way of approbation, as well Independents as Presbyterians. And for men to say, because it is of consequence, therefore make it but probationary, is to me an argument to make it perpetual. Here is not only the interest of the persons to be approved, but of the parishioners for the good of their souls. I desire the question may be to agree with the Committee.
Sir Richard Onslow. I cannot agree with their opinion that say the executive power of this is in the single person. In former times we knew where it was. As to that of the Parliament taking further order, it is to me as nothing. It is a matter of great consequence, indeed, and I cannot agree to make it perpetual; but that it may be continued for three years, and that, in the mean time, a Bill may be brought in, that those that are approvers may pass the approbation of this House.
Mr. Bacon. I cannot agree to make this but probationary. That which now reaches to Heaven, may in time go as low as Hell. (fn. 6) The Inquisition was an institution to a good purpose; (fn. 7) the High Commission, (fn. 8) &c., and we see what becomes of them. I shall agree to make it for three years, or for his Highnesses life, if you please.
Mr. Bampfield. I agree with the design of it, but incline to have it probationary; Men may decay in their integrity, they may fail, and so the persons and the things ought but to be probationary. It comes all to one, whether you make it perpetual, or till the Parliament takes further order, for if you make it perpetual, you cannot exclude the Parliament from altering that.
The persons will be more wary, if established by a law. They will keep stricter to rules. They have no rules at all to judge by. It lies wholly in their breasts. They are not tied to any rules, either as to principles or practice.
If the magistrate prove profane or superstitious, the approvers will be like him, and so the persons approved. This is, in effect, by this ordinance, to put it in the power of the supreme magistrate to root out the Gospel. If there be any fly in the pot, (fn. 9) any fault in the thing itself, it may make any man's negative against the whole. The single person has power to put in or put out. That of " sitting of the Parliament," signifies little in such cases. There will be no recourse to Parliament. All will be filled up in the intervals. The Parliament shall never hear it.
This gives it entirely into the hands of the chief magistrate. It cannot be safe for posterity to make it perpetual. He may put such a principle upon them to act by, and encourage them to go on, and warrant them that they shall not be discouraged, he having a clear negative. I speak it not to reflect or reproach the thing, the design. Something may be amended in it. So I would very willingly and freely go about it; to do something in it presently, and that in the mean time it may continue for three years.
Lord Broghill. Since the great doubt is that they shall always be supplied by the supreme magistrate, and the council, in the intervals; to help and to secure this I would have this added, that such as are appointed in the intervals of Parliament, may be afterwards approved in Parliament; and this may be done by proviso, as I conceive properly. I look upon this stamp that you are now going to put upon these laws as a Bill at the last reading, where any person may offer a proviso. This scruple being over, no doubt but good men will be put in, I dare say it; for the design itself is good.
Mr. Thistlethwaite. I look upon this proviso as a mere shadow. Approbation, in this House, after another has nominated, signifies nothing at all, if the chief magistrate have a negative; so that those that would have it probationary are not answered by this proviso. And, if you put it either with or without the proviso, I shall give my negative.
Major-General Disbrowe. We ought to trust the providence of God in this as well as in other things. We cannot hedge out providence. There is such good experience of it. I would trust it still with the providence of God. The Parliament are likely to have the appointing of the council, and certainly they will be as good as can be made by them, and the single person is to do nothing but by advice of the council.
Resolved, that this House doth agree with the Committee, as to the ordinance (March 20, 1653) appointing commissioners for approbation of public preachers, with this proviso, "Provided that the commissioners to be hereafter named in the intervals of Parliament, shall be afterwards approved by Parliament." (fn. 10)
Mr. Bodurda. To discharge my conscience in this place, I shall be bold to offer another proviso; that if any man find himself aggrieved, he may have the benefit of the law, as formerly in the like cases.
Mr. Bodurda. What a mischief it may be to put in the perpetual power of the breasts of such persons to judge of men's inheritances, and give no remedy in case men be aggrieved. I think it not fit to deprive men of their birthright, that men's inheritances should be destroyed when the laws will relieve them. I think the law in such cases provided a quare impedit. (fn. 11)
Sir John Reynolds. This is the way to pluck up the whole design by the roots, which is so good a tree, as the fruits have sufficiently proved it. I would not have you overthrow your whole cause: there are none of those that were at Oxford, (fn. 12) or have been turned out, but may claim it as their inheritances, and have that writ (fn. 13) lie; and then your whole foundation falls.
There are no rules for those persons to judge by; nor do I know how you can prescribe them such a rule. Magistratus indicat hominem. You cannot tell what men may be, when they come to exercise an arbitrary power. If they come to fail in their integrity, if you make such a caution, you cannot be at a loss how to remove them. My motion is, that they may be removed from time to time, as there shall be cause.
The question being put, for agreeing with the Committee, touching an ordinance appointing a Committee of the adventurers for lands in Ireland, for determining the differences among the said adventurers; it passed in the negative. (fn. 14)
I came not in till the debate was resumed, and found them in debate, touching the ordinance for uniting of Scotland. (fn. 15)
I cannot remember who was speaking, but they were but newly begun. It was about four o'clock, I missed Captain Lilburn and Lord Strickland, who should both have spoken to the business of the manufacture of salt at Shields. (fn. 16)
Mr. Speaker. None being here that serve for Newcastle or Durham, I have thought fit to mind you of a paper which a young man gave me at the door, touching the salt-makers at Shields, who are undone, in that manufacture, if you pass this before you have a report from the Grand Committee, where the petition of the salt-makers of Shields is depending. I desire you will not be too hasty in it. I see not a noble gentleman (fn. 17) here that serves for Newcastle.
Mr. Disbrowe. The Scotch salt is made at higher rates than at Shields, in respect of firing. Those in the west of Scotland make salt with wood, and those at Shields make it with the worst of their coals, and it will be made put, when you desire to be satisfied in it.
In the debate upon the jurisdiction of the Court of Admiralty, " June 2, 1654. An ordinance of explanation, touching the jurisdiction of the Court of Admiralty." (fn. 18)
Mr. Westlake moved, that the ordinance might be read, that we might know what we confirm. This was only in favore cathedrœ. (fn. 19)
Sir John Hobart. I am as much to have the streams cleansed as any man, but doubt that purging by this means is rather to corrupt them. I know, and have good cause to know it, that the commissioners in the county (fn. 20) for which I serve, have acted very rigorously, and it was scandal enough to be a minister with those commissioners. They have turned out twenty-five in my county. I desire it may be but probationary for six months.
After a short debate, the question being put, that the House doth agree with the Committee, touching an ordinance for the ejection of scandalous, ignorant, and insufficient ministers and schoolmasters; the House was divided. The yeas went forth.
So it passed in the negative. (fn. 21)
Captain Hatsell. It is so good a law, that ought not to be discouraged; but seeing you have thought fit to put your dislike upon it, I hope you will not leave it without a time. Though a great many profane loose persons have been turned out upon it; yet are they not all purged yet. Some counties have done nothing upon it. I desire you would put it for continuing three years.
Mr. Disbrowe moved, for that very reason, that it might not be put for so short a time, lest this Parliament should rise suddenly, or be obstructed by other business, or that you should dissolve yourselves this summer time.
Resolved, that the ordinances for the ejection of scanda lous, ignorant, and insufficient ministers and schoolmasters, be continued for three years, unless the Parliament take further order therein in the mean time. (fn. 22)
Colonel Jones and Major Brook moved, that a Bill might be brought in forthwith for supply of the defects of this ordinance, and that there might be provision made this Parliament, lest it be left at a loose, the time running out.
Mr. Bodurda and others. This is not proper in the midst of a report. I hope not only in this, but in other ordinances that you have confirmed, you will take care, before you rise, to supply acts, where you have them prepared by Committees.
The rest of the ordinances (fn. 23) went off cleverly, without any debate, till they came to the ordinance for paying judges' salaries out of the public treasury.
The Master of the Rolls. I may best speak to this of any man; for I never had salary in all my life. By the ancient law, the judges were paid out of the customs. (fn. 24)
Colonel Hewitson gave his yea in his own ordinance, (fn. 25) which caused a laughter: the rest went on cleverly.
Mr. Bampfield excepted against the Bill for naturalizing Joachim Hayne, (fn. 26) which was against the nature of the right he pleads to have, by being naturalized; and desired he might be put in some of the Bills for naturalization.
The Master of the Rolls. I move that the ordinance may be confirmed. He is now in your service in Scotland, and he can buy no land (fn. 27) unless he be naturalized. So it was confirmed, &c.
Colonel Shapcott excepted against confirming the ordinancefor the Almshouse at Windsor. (fn. 28) It concerns his county, and many thousand souls there.
This is robbing the soul to clothe the body. Thus many poor parishes in our county, Devonshire, are spoiled in this nature, and all goes to maintain those thirteen gentlemen. Great allowance to officers. A steward 80l. per annum, sexton, verger, &c. 20l. apiece.
Lord Whitlock. It is fit those ministers should have maintenance, but not to take other men's rights to do it. It is their ancient right, before this ordinance. They are persons that have faithfully served you; none else are capable. Their salary does no more but maintain the poor knights (fn. 29) and officers. I have seen their accounts, and what remains at any time, it is accounted for to the public use. There are three godly ministers maintained out of it.
Colonel Jones. I hope this House will never divert any thing that is given to a pious use. You have had a fair state of the case by this honourable person. It is acknowledged, on the other hand, that the pedigree is as ancient as Henry VIII. There is a liberal allowance for ministers' maintenance elsewhere. I hope you will not take it from this.
The additional ordinance for approbation of preachers (fn. 30) being unprinted,
Colonel Philip Jones. There was nothing in it but the addition of Mr. Bond, Rowe, and two more Commissioners, at Westminster; and another clause, that they should not approve of delinquent ministers, till they were first approved by the Council. So it passed, &c.
Sir Richard Onslow. If you consider this ordinance, you must also consider an order of the Council, which restores the owners, upon payment of the general fine of 40,000l. You will not take both their fines and their lands.
Resolved, that it be referred to a Committee, to consider of the ordinance, intituled an Ordinance for settling the estates of several persons in Scotland, in trustees, to the uses herein expressed upon the debate now in the House; and also touching the donatives given to several persons in Ireland by the Parliament; and report something therein to the House for their consideration, viz. to Lord Broghill, Mr. Secretary Thurlow, Colonel Cooper, Colonel Jones, Mr. Disbrowe, Colonel Blackwell, Colonel Zanchy, Major-general Whalley, Colonel Hewson, the Master of the Rolls, Major-general Groffe, Sir Richard Onslow, to meet to-morrow at seven of the clock, and report the same to the House to-morrow morning. (fn. 31)
Mr. Bond. The Committee laid this ordinance aside, as inconvenient, in regard the visitors undertake to make laws against the fundamental laws. If any Fellow shall enter himself in the Inns of Court, he shall be suspended ipso facto; yet they will admit the civilians and physicians to practise, till they be doctors, and keep their fellowships.
The Master of the Rolls. I would have it put for three months; but what time soever you give, you invade my Lord Protector's right, who only has the power of visiting; and, the truth is, they have undertaken to make laws to the purpose that is moved to you.
Major-General Disbrowe. I move that it may have so far of your approbation, as to continue at least for six months. Whatever reproach may be cast upon it, it has been a great means to regulate the University, and to purge loose and profane persons, &c.
Sir Richard Onslow. I move that you would not continue it above three months at most, for there has been strange irregularity upon it. The Masters do not challenge a negative voice, in terminis, yet they call it a necessary voice: so that, though all the scholars agreed about the choice of a Fellow, unless the master allow it, all is void.
Resolved, that the debate upon this Report be adjourned till to-morrow morning, eight of the clock. (fn. 32)