Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Tuesday, February 1, 1658–9.
Mr. Speaker took the chair at half an hour past eight.
Mr. Cooper (fn. 1) prayed.
Mr. Speaker acquainted the House with a message from the judges of the Common Bench, touching Henry Nevile's case against the sheriff, about an election last Parliament.
They desired me to take the record hither. I would not do it without your directions. It is a new case, primæ impressionis.
Mr. Gewen. I would have this debated in a full House, when the lawyers are present.
Sir Arthur Haslerigge. I love not to hear it, that there is a lameness in this House. I know no law-book for you to be directed by. It is not a case of such difficulty. Yourself is now the greatest man in England. I look upon you so, except what is to be excepted. I had almost forgot myself, but I am pretty right yet; if I can hold myself there.
I say I look upon you as the greatest man in England; the Speaker of the Parliament of England or Commons, what you will call it: I would give no offence. It is not fit for you to take a record from any inferior court: Your clerk is more proper than yourself to send for it. Make an order for the judge's clerk to bring it up. That is more proper and fit than to send your clerk.
Mr. Starkey. It seems there is causa difficultatis found by the judges in this case; and they desire your directions.
1. It concerns not any member or right of election, this present Parliament; so is no concern to you; it being of the last Parliament, now ended and determined.
2. It is not proper to bring the record hither. It should rather be brought to the Lords' House. I hope it is no offence for me to call it so here. I would not wade farther into this business, considering that it was of the last Parliament; but rather leave it to the judges to determine; or arrest judgment, as they please.
Mr. Knightley. The judges do hæsitare in limine. The judgment is passed: the jurors are judges. So it is said in the country. You are not taking it from them. I would have the proper officer to bring it before you, and then judge as you see cause.
Mr. Pedley. If it be a case of privilege of the House, then you may take it upon you; but if otherwise, it is proper for the Lords' House. The record cannot be brought out of the Court. It should be certified. In Sir John Le. Stallen's case, Edw. iii., they sent the clerk of the House to cause them to certify. Alius et plures issued out. The House heard the cause, and directed the judges to give judgment. Nobody complains to you.
Mr. Speaker. I only ask you whether I shall receive the transcript.
Sir Walter Earle. I am against bringing the record hither. The record was once required from the clerk of this House, but he fell down oh his knees (fn. 2) and besought the King that his life might rather be taken.
Mr. Manley. This is not an ordinary course of proceeding in a writ of error, but a special case wherein your directions are desired. I would have the record brought hither.
Mr. Steward. The rule delivered in the last Parliament from the chair, was, that the Lord Chief Justice should deliver a transcript, by his own hand, to this House.
Mr. Reynolds. I am against your taking it; but have a transcript brought by the Lord Chief Justice to be delivered at the table.
Mr. Croke. The Judges have done their duty in desiring your advice. This House has ever taken this upon them to declare a law. You have power of examining all the records, as in Cole and Rodney's case. (fn. 3) I move that the Chief Justice, at his bringing the record, may express the reasons of his hesitations and difficulties.
Sir Arthur Haslerigge called this a cunning motion.
Mr. Speaker offered to put the question upon himself.
Sir Arthur Haslerigge. I would not have it upon your books that any such question was propounded to the Speaker of the House of Commons, or to this House of Parliament. I will offend nobody yet.
Mr. Pedley. Sir Arthur Haslerigge offers rather an order than a question.
Colonel Cox. I would have it wholly laid aside.
Mr. Bodurda. You put limitations upon the Lords' House; so that they have no power on this case. I would have it adjourned to the Lords' House.
Mr. Turner. I expected not such a motion this morning, and would have it laid aside. When the sole legislative was in this House, it had been proper; but now, you are upon another footing of account.
Mr. Cartwright. I move that it be laid aside, and that the Judges in the Exchequer Chamber first have the hearing of it.
Mr. Edgar. I know not yet what the House of Lords is. I would have it laid aside at present.
Serjeant Seys. The Court declare, that it was usually, without writ of error, brought into the Parliament. It being primæ impressionis, there was a privilege in the case. They thought it fit that the case should be brought to this House, because of difficulty.
Mr. Chaloner. The Judges desire neither to deny nor to delay justice to any. I hope you will do neither. So I would have the transcript brought hither.
Serjeant Waller stood up without making three congees, and before a member, when he was speaking. The orders of the House called to.
Mr. Reynolds and Mr. Carew moved, that the orders be preserved, and that he do his congees.
Mr. Knightley moved, that he had done his duty.
Mr. Steward moved, whether to put the question or not.
Mr. Scot. I wonder to see you so careless of your privileges. Though it was of last Parliament, will you delay justice ? For whom do you sit ? Is it not for the people of England ? If the Judge be willing to bring the case hither, do not you obstruct it. Let the Lord Chief Justice bring the transcript, as was moved, to you, by those that had the honour and leave (fn. 4) to sit here in the last Parliament.
Lord Lambert. I incline rather to have it determined in the Exchequer Chamber, as was moved, but would have you not wholly lay it aside; but have a transcript of the record brought hither by the Lord Chief Justice.
Mr. Bodurda moved that the question be put, whether the question shall be put.
Captain Baynes moved for required, instead of desired.
Sir Arthur Haslerigge. It is well enough, and all one.
Mr. Turner. I move that the question be put now.
The question being put, it passed in the affirmative.
Resolved, on the main question, that the Chief Justice of the Common Bench be desired to bring hither the transcript of the record depending before them there in that Court, concerning Mr. Nevile and Mr. Strode, late Sheriff of the County of Berks; and that the Clerk give notice.
Serjeant Waller. Reported from the Committee of Privileges, that the return of Henry Nevile and Daniel Blagrave is a good return, and that the other return (fn. 5) be withdrawn.
It was called to him to go to the bar and make his legs; (fn. 6) for no report could be handed.
Mr. Hungerford. Moved that he might report in order.
Sir Arthur Haslerigge. The House is possessed of this report, though out of order.
Mr. Knightley. Something is left to the discretion of the Committee.
Mr. Hungerford. I could not know what would be reported, till he did report.
Mr. Bodurda, the like.
Sir Arthur Haslerigge. This was but contention. If we can have patience, all the reports may come in. I move that he come up with his three legs.
This he did accordingly, and delivered the report on the left side of the table.
Mr. Pedley. I move to know the reasons of the resolution of the Committee, for satisfaction of those that were not there.
Mr. Knightley. December is before January. (fn. 7) That is reason enough.
Sir Arthur Haslerigge. If I had not been at the Committee, I would also have moved to be satisfied of the reasons, ere I gave my vote.
He reported the whole reasons upon the debate. In the second election, there was no Mayor, no precept annexed, no votes. Force was used to turn out the Mayor, but he continued in his place still. There was but one negative in the Committee, and a full Committee in this business.
Resolved, to agree with the Committee. Nemine contradicente.
Serjeant Waller. The reason why I did report this first, was, because it brought in a member, which the other did not.
Captain Baynes moved to have the pretended Mayor taken up to be punished; else the consequence may be dangerous.
Mr. Knightley. They tossed the old Mayor like a dog in a blanket. I would have it referred to the Committee to find out some way to punish that Mayor and other Mayors. If this be allowed, your House will be thin enough and certainly break up Parliaments. They promise themselves indemnity.
Mr. Nicholl and Mr. Turner moved, that the Mayor be punished. The remedy at law is for the Mayor, but there is no remedy for you at law.
Sir Arthur Haslerigge. I agree to it; though I thought not to have troubled you. The chest was broken open and one of the seals taken out, and a great many outrages. I would have this Mayor sent for as a delinquent. Members on such accounts, have been kept out seven years. This Mayor has relinquished his place of Mayor, and sits now as an Alderman. I would have him sent for.
Mr. Grove. There is no contempt in the Mayor to you. Only the difference arises about the right of election of a Mayor. I would have you proceed no farther.
Mr. Bulkeley. I am sorry that your time should be spent about such matters. The Mayor was no wilful transgressor. He was clearly chosen fourteen days before the precept. I would not have him come under such a lash. He was voted Mayor and sworn. They claim that they may turn him out when they please, upon any misdemeanour. They contemn him so that be comes not so often to the bench. The election by him might be clear. The Mayor is an honest good man.
Mr. Goodwin. I would not have him sent for as a delinquent, but have it referred to a Committee; this and all business of this nature, to make some precedent in this case.
Mr. Bodurda. I would have you lay this aside, lest upon farther examination, you find it fit to undo what you have done, which will not be for your honour.
Serjeant Waller reported, that a double return is in Oxfordshire, between Lord Falkland (fn. 8) and Sir Francis Norris, and that the Sheriff being returned a member, (fn. 9) your Committee desires that the Sheriff may be required to attend your Committee.
The House proceeded on the report touching Lord Falkland; and it was moved that the Sheriff, viz. Unton Croke, might attend the Committee; but Sir Arthur Haslerigge excepted against the word attend the Committee. The report is mistaken, it should have been the House.
Henry Nevile came into the House at ten o'clock.
Mr. Croke. (fn. 10) The Sheriff last week was ill of a fever; I hear he is somewhat better. I had a letter. He will be here next week. It proved to be a doubtful case; no malice nor design in it. The best counsel were at a stand in it. He will have his deputy and all witnesses in it ready by Thursday.
If it please God to give him strength, he will attend you. Send it back to your Committee. I desire all the favour and tenderness that may be.
Mr. Knightley. I move, for favour, and not to have it postponed; but refer it back to your Committee, and appoint a day.
Lord Lambert. I move not to have it so—when he has strength; but put it on, three weeks, if he have strength.
Mr. Hungerford moved for a shorter day.
Sir Arthur Haslerigge. It seems Lord Falkland is a de linquent. (fn. 11) Give the devil his due. Admit him, and then cast him out tacitly.
Sir John Lenthall. You cannot order the Sheriff to be well. I move that the under Sheriff attend in the interim.
Sir Arthur Haslerigge. The under Sheriff cannot be answerable for all. How will you have information, if the High Sheriff be. sick ? You cannot judicially send for the under Sheriff. I would have you declare; if the High Sheriff cannot, then the Under Sheriff shall attend.
Serjeant Maynard. A. double return is undoubtedly a misdemeanour in the Sheriff. Give the Sheriff a day, that if he be well, he may attend; otherwise, dispense with it. Your Committee may proceed without either Sheriff or Mayors; for there they appear but as witnesses.
Resolved, that Unton Croke, Esq. Sheriff of the County of Oxford, be enjoined to attend the Committee of Privileges and Elections, on or before Saturday next. And if, by reason of his sickness, he be not able to attend the Committee by or before that time, that his Under-Sheriff do then or in the meantime attend the said Committee, to give an account to the said Committee, concerning the said double return.
Mr. Secretary. You have spent some time about the forms of your House. It is now time to mind other things.
It pleased God to put an end to his Highness's days. Sad things were expected by that stroke. God has given that blessing of a son, in his stead, who has the hearts of the people, testifying his undoubted right of succession. This can be looked upon as no other thing than the hand of God, so putting down the late King's family. He raises the power out of the dust. It is his prerogative royal.
It is not unbecoming this House to recognize this mercy; to acknowledge his now Highness to be the undoubted successor. In Queen Elizabeth and King James's reign, there were such recognitions.
Another thing; I hear great endeavours abroad to beget divisions and troubles amongst us; some contriving abroad to make addresses to this House to change the Government. To prevent which, let the nation know we are all of a mind in the Government; all agreed in the foundation: that those that offer to pull out any pin of this building, may see their discouragement, that they have their question with the Chief Magistrate and this Parliament.
I have a short Bill for a recognition to this purpose.
This he brought to the table. (fn. 12)
Sir Arthur Haslerigge. I am sorry I have a cold, so that all cannot hear me.
This is not seasonably offered now. The more I hear of dangers and fears abroad, the more have we need to take care at home, within these walls. We need not fear, any thing that the people shall here represent for their good. Any thing brought to us, if bad, punish them that bring it. You have many things to do, and have done but one thing. The next is a Committee of Grievances; the next, Religion.
Wonderful things were taken away by that victorious Parliament. Addresses to the King were nine times refused; then they took the King away. We were a glorious Parliament for pulling down. I hope this will be glorious for setting up. I hope all will agree, that whatever we pulled down, was good and necessary to be pulled down. We turned out nocent and innocent, as unnecessary, unprofitable, and unfit. These are great works to do. My head begins to be a little hot. Let us see what was done since we went out. He that is gone promised us an account. The army are our children; they came from us. We are bound to provide for them. We have one that is our prince, princeps, our chief. I never knew any guile or gall in him. I honour the person. I will say no more.
Let us not read a Bill of this consideration till after the fast; that we may not be put out of our right way, a Committee of Grievances. We never pulled down, but by prayer and humiliation; let us not build without them. Let us see our materials. Have we glorious foundations in our buildings ? Let us name our Committee of Grievances, first. (fn. 13)
Mr. Trevor. I would not have a delay put upon such a Bill. The first weapon is a delay. The honourable person has better reason to know your danger. It ought not to go from you till it is read. Read it now, and appoint the second reading after the fast.
Mr. Drake. There was a general fast before. We have an inclination. God has observed the intercession of his servants. If there must be any thing brought into the House to know us, where we are, if any thing, this foundation. A Committee of Grievances should have done first! Not so ingenious.
It is a greater honour to be good at building up, than at pulling down, as he said of the Long Parliament.
We have Parliamentary grounds, precedents, and reasons. We are sworn to it, we but say what we have sworn before.
Mr. St. Nicholas. You are upon a point of government, upon that which is grounded upon a late act, the power of nomination. There are many things previous to this matter. I can read the Act, how that has been observed. It may concern him that is at the head. First, seek God.
Mr. Scot. You anticipate, if you now fall upon this Bill. I suppose you will not fish before the net. It is irregular to resolve first, and then inquire. I am not prepared to speak, as those that haply know of it. I was so tender yesterday as to put off the Scots' members debate. I should not have been free to have gone that length, had I thought of this. I profess myself to be a weathercock of reason. I would have them confirmed by Act of Union. There is much matter about the distribution, order, and manner of their coming in to be considered.
First, model your legislatures; one hundred kept out the last Parliament for want of integrity to the Instrument of Government, whereof they became guilty themselves in the Petition and Advice carried but by three suffrages. I would have that settled first. (fn. 14)
Colonel Birch. I was one of those that was not acquainted with the Bill now offered. I waited for reasons against it. I went home, rejoicing that the members of Scotland and Ireland were received hither so unanimously. I take it for granted they are admitted into oneness with us. I look upon it as a return of the nations. I can by no means admit us to a breach. (fn. 15) If it should be heard abroad that though but for a day this Bill was laid aside! I would not have it laid aside for an hour. I am readier to pour out tears than words.
Mr. Weaver. Mr. Scot moved not against the union. There is no foundation of law for the distribution of the members. I hope we shall all in due time agree to this Bill. Suspend it two or three days till the fast be over; but first consider to corroborate those gentlemen that have not yet a legal authority; to prevent laying it in your dish hereafter that threescore are not authorized.
Mr. Solicitor-General. I expected no debate in this business. Is this any more than we are sworn to at the doors ? From Henry IV. and all downwards there was ever a recognition at the entrance of all Parliaments.
Mr. Salway. I move the question, whether this question shall be put.
Mr. Knightley. This Bill comes in by surprise. I am sorry it did come in; but, seeing that it is so, I would not have a question put upon it.
A Bill was brought down from the Lords' House about the Queen's jointure. There was no negative upon it, but it was read twice that day.
I had not been here if I had not thought his Highness to be Chief Magistrate. I am sorry to hear such pulling down repeated here.
The Bill was read accordingly.
Mr. Attorney-General. I move to have it read a second time to-morrow. (fn. 16)
Mr. Kinghtley. I am for Monday se'nnight, at the calling of the House. I would not have the business cool, but that we may gather heat for it.
Mr. Chaloner. I find, by no law, that the members of Scotland and Ireland should sit here. I have no disaffection to them. The gentlemen have done you no wrong in tendering their service here. If they have not power let us give them power.
The fault is in your Commissioners of the Seal. Let them be punished. I would have Monday se'nnight for the second reading.
Mr. Attorney of the Duchy. I would have no coldness— no hesitation in this business. I would have it read a second time to-morrow.
Sir Arthur Haslerigge. That gentleman may well move for the second reading. He may know it. I do not. It is a matter of great weight. I would have a convenient time, that we may serve posterity in this generation.
It is fit every one should have a copy of it, (I have known it denied,) if you will bring in a Bill of this nature before a Committee of Religion be brought in, or grievances.
I understand the grounds formerly gone upon. There never was such a number of gentlemen so freely chosen. I move that Monday se'nnight be appointed for the second time, and that we have copies.
Mr. — (a young man) stood up, and told a story of Cain and Abel, and made a speech; nobody knew to what purpose.
Mr. Steward. We are doing no more all of us now than we have every one of us done. I cannot blame those that desire time; for they that must have argument had need have time to seek it.
Sir Arthur Haslerigge. It is a. reflection; for he knows not whether I seek arguments for or against it.
Sir William Wheeler. I move to read it the second time to-morrow. This has been in all times since Henry I. Copies ought to be given. It was done in the Long Parliament; yet the Clerk cannot without your order.
Captain Baynes. 1 am not against the Bill, if nothing else be in the belly of it.
It determines the negative voice and the other House. To set up a House that has not so much interest as two knights! You have disputed this with blood and treasure, and leave it now, you will never come to it again. You will either bring the Government to your property, or your property to the Government. I had rather give a third part of what I have than leave things so dubious. The balance will be too great for the people; and if the army turn mercenary, farewell property.
Mr. Bodurda. That gentleman moved improperly to speak to any particulars of a Bill at the first reading. I desire to-morrow may be the second reading, rather than Monday se'nnight, because, as a worthy person, Sir Arthur Haslerigge, said, Monday is before Monday se'nnight.
Mr. Trevor. I wish Captain Baynes's motion could take effect, that we stand in no need of an army. I hope he has always been so careful of the charge of the nation as he seems to be now.
Mr. Starkey. I would have no delay. We reflect upon ourselves; on the oath we have taken at the doors.
Mr. Manley. The last Bill of Recognition was read the second time, the same day. I would have no delay; and, because I see such an unanimous consent, I have a Bill in my pocket for enabling the Scotch and Irish members.
Sir Arthur Haslerigge stood up to speak to the order of proceeding, and launched into the merits.
Serjeant Maynard took him down.
Mr. Turner moved for a middle day.
Mr. Reynell. If there were but a bare recognition like that at the door, I should not say a word. The honourable person that presented the Bill, said he would have things so settled, that he that touched a pin of the building might have a sense of the displeasure of this House and the Protector. (fn. 17) Therefore time is needful. I move for Monday se'nnight.
Lord Lambert. I like the thing, but not the haste. I would have something go hand in hand with it, touching your own privileges and the people's rights. A business of this nature may well be referred to a Grand Committee. I thought you would have appointed your Grand Committees, first those of trade, religion, and grievances. It is seasonably offered, but it is not for your service to be tod hasty. I desire that we may all study moderation.
It was ordered to be read on Monday next, (fn. 18) without a question. The House rose at one.
The Committee of Privileges sat in the Star-Chamber, and some members being crowded, it was moved and resolved, to adjourn to the House. Mr. Serjeant Waller had the chair. The business of double returns between Luke Robinson and Colonel Lilburn, against Mr. Philip Howard and Mr. Marwood, was debated, and the Committee inclined for the latter. This day fortnight was appointed for a full hearing.