Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Friday, February 11, 1658–9.
Mr. Speaker took the chair almost at nine.
Mr. Cooper prayed.
Dr. Burges's book (fn. 1) was delivered at the door, touching the sale of Bishop's lands.
Colonel Morley stood up and made his election for Sussex, and moved that a new writ may issue for the borough of Lewes.
Mr. Fugge made his election for Sussex.
Mr. Knightley moved the like for Higham Ferrers.
The order of the day was read, touching the debate adjourned yesterday.
Mr. Hoskins. I would not look back but with relenting, and never to come to it again. You now are looking forward.
(He stated the debate, which he interrupted with a long discourse, touching the orders of the House.)
If there had been any doubt who was Protector, after the death of his late Highness, we had been under no great inconvenience. I understand that many minds doubt it; but the reason I know not. I am not against the indorsement upon the back of the bond, (fn. 2) but not for the limitations, now. You are now upon a tide. You will not have foreign princes address to his Highness as Protector, under such limitations and qualifications. I would have the words of limitation left out.
Mr. Foxwist. If I had questioned his Highness being Protector, I had not been here. I have sworn to it, and hope I shall defend it. I suppose we are under three estates, a single person and two Houses of Parliament.
My motion is to leave out the limitations.
Mr. Reynolds. I am 1. Against the title. I cannot swallow the Bill. I understand not the word "recognition."
2. Against the words, "lawful successor."
The first argument is the Petition and Advice, it was done by force. The House was divided, upon the question, fifty three affirmative, fifty negative. (fn. 3) That to the manner of it. To the matter. The seventh. article looks very black: like the Trojan horse, an army in the belly. Where did you provide for an army ? You bind an army on the back. One of the estates are mostly officers; (fn. 4) and so we shall have an army entailed upon us, by having the revenue entailed.
The second argument is, that not to recognize will shake the sales, &c.
I answer, when a Parliament, under a force, doth a just and right thing, that matter will be trusted to a rightly constituted Parliament to confirm. Here was constituted per question, a buyer and a seller. I bought some lands myself, but was sent for. The contractors said, that if some of us did not break the ice, none would contract. There was an ordnance, of Lords and Commons, that if they did not contract presently, all should be lost. This was hard. I offered 500l. to take the bargain off my hands. I thought to have paid the whole sum in ready money, 8,000l. If I paid it in ready money, the officers would have the benefit of it. Then I bought bills at 95l. per cent. to sink the public debt, out of my service to the public. This was an unjust temporary law, made by a Parliament under a force, not well pursued.
An acre of land cannot pass without such a nomination as Westminster-hall and the law will allow of. It must be legaily proved.
We must have a recognition, and yet, no debt, no title, no interest appears. I would have it amended in the title, and instead of acknowledge, say declare, and establish that he is Protector.
Mr. Fowell took him down.
Mr. Reynolds stood up again, and said he should not be taken down.
Now, to the previous vote, whether it shall relate to the Acknowledgment of the single person only, or take the people's rights in with it.
In the beginning of the Long Parliament there were two Armies. We had passed an Act for raising money. All people were privileged to become security, till the money was raised. This appeared great fidelity to his Majesty, by pulling the thorns out of his feet which had gotten in. He laboured to seduce that Army. Young Lord Goring (fn. 5) came to the bar and said: "the Queen sent for me into the King's lodging, and asked me: 'are you concerned in that cabal ?' 'No,' said I. 'Then go, join with Jermyn and Piercy, and bring up the army against the Parliament.'"
In those debates men sat in the gallery, and as soon as ever they could get out, ran to the court, to tell tales and misrepresentations to the King, as soon as ever twelve o'clock came.
Misfortunes, too, came from our friends. Divines, (fn. 6) that we ourselves had called together, were the occasions of the first breach in this House.
The House set up the Presbyterian Government in great might (fn. 7) to please them. They excepted against the Act that it had not taken notice of their intrinsical power, that it was jure divino, from the apostles. For all this they preached up and down; and said we invaded the civil rights, and suffered heresies and blasphemies to increase. (fn. 8) We were blamed for all. You only sent a member or two to admonish and advise them.
The next unhandsomeness came from the apprentices. (fn. 9) There was a force upon the Parliament. Some went to the army, some stayed here. I went another way, but to my own house till the force was removed. An impeachment was brought in from the army, not from the army, but from a spirit in the army. Not so much as a relator allowed on those gentlemen's behalf that were excluded. They were forced to go out of the land to save themselves. Persons of honour they were. I could not in that time come near this House.
I had no hand in, nor heart for, trying the King. I scrupled it for divers reasons. 1. Because I feared the people should not have benefit by it, but that something should step up like it, through the iniquity of men. I was assured a thing like this was. near at hand, coming upon us.
I came to the town, and was importuned to come into the House. I thought I might do some good. To take off free quarter, and excise of ale and beer was no ill deed; and, seeing I must sit here, I would keep as much of the people's rights as I could in this House. I was very pressing for that Act to dissolve ourselves. I never desired any earthly thing with more earnestness, to see that Parliament fairly dissolved, and another provided to built up what — (fn. 10) The question being put to dissolve— (fn. 10) with a very loud Yea. This done, persons came to the door. (fn. 11) One came in and sweetly and kindly took your predecessor by the hand and led him out of the chair. I say, sweetly and gently. (fn. 12) This was never known abroad, how near the Parliament that conquered others were to conquering themselves.
It gave me some satisfaction that it was hoped we should know our crimes. (fn. 13) Some continued in and advanced, and made me believe they were free. I wish there were an act to oblivion all these things. I could give an act of free pardon to all.
There has been a large field since. What imprisonments, and impositions on men's persons and estates; monies raised; high courts of justice! The hereditary lords never presumed to raise money. Hard choice; you must either levy money against the law, or make free quarter.
Since the death of the late Protector we have better hopes. I never had confidence to serve you, since the Long Parliament. We ought now to take care that we suffer not these things over again.
Now to the previous vote. I would have all remember the oath. There was great wisdom, prudence, and integrity, in framing that oath; to ligament the single person and people together. I shall express my faithfulness to him by giving him the best council I can. I will attempt nothing against his government. I will not consent to such exorbitant powers as that others should attempt upon him. I have in this performed the first part of the oath.
As to the second part, the liberties of the people. Is there any better way than to keep the staff in their hands: the militia; with an appeal to the lords, on oath, and a judgment for the people. I will stand by that judgment, jacta est alea. I question if you will give that away again. If you give it by wholesale and beg it by retail, (fn. 14) it will not become the wisdom of the House. The negative voice would never be admitted. The formality of his denying a Bill: "The King will consider of it." (fn. 15) His oath awed him, he ought not, he durst not, deny a law. After you have passed this vote, he is, de facto, in possession, and then you are disturbed, and laws, and instructions for limitation are postponed till you meet here again.
I hear not one man against a single person: against the single person there is not one exception. Not any other man in this nation would pass so clearly. I have particular and personal reasons. I would venture my life rather than he should be in danger.
I have heard his late Highness with tears, (fn. 16) and knocking his breast in this House, say he would sheathe a sword in any man that should disobey an order of this House. We laid exceeding temptations upon him; impossible for a mortal man to bear. Lay them upon any man alive, and the same exorbitances will ensue. Can any rationally believe otherwise. It is the clear way to destroy him, to make his power exorbitant. I have heard great truths from every corner of this House here spoke of the Long Parliament, with a great deal of honour. Mr. Disbrowe, (fn. 17) I honour him for that, be his opinion what it will.
From another corner, those addresses brought an evil measure to measure the people's affections by: not for his Highnesse's service: full of flatteries. (fn. 18) One came to my hands, drawn by a young minister, pretending to contain the sense of the whole country; that they would stand up to defend the good old cause with all that sat in the Long Parliament, and "for defence of your Highness's person and government."
I am glad to see truth come out of corners. Truth seeks none. In evil times we see truth is driven into corners.
I never heard any thing laid to Overton's (fn. 19) charge, but dissatisfaction that he could not say black was white, and all one. Another truth from another corner: clearing the army from the King's blood, (fn. 20) that all authority is reverted to the fountain and original. It is my prayer that it may be there still: no family to be balanced with an interest of the people. A member (fn. 21) was sent out for saying so. This was in the beginning, but after, they saw its truth; and they, by a vote, adjudged what that gentleman said was true; else they would not have restored him. (fn. 22)
Since Providence has brought us to this pass, that this right is devolved upon the people, let the people have some compensation. As long as there is a righteous God in Heaven, he will do it in due time. I pray we may speak aboveboard, as Englishmen. I love a man that will speak his thoughts from his heart. I would have this previous vote to have no future tense in it. I would have this vote a comprehensive noose, an entire vote. I desire that the Chief Magistrate may not only be chief, but the favourite of the Commonwealth. Let the vote be like the oath. It has linked them together, accursed be he that parts them.
As you say what he shall have, say also what he shall not have.
1. Not to dispose of the militia.
2. What laws they make shall have no negative from him.
I am persuaded in my heart, these things would please him well; if not pressed from some without doors, as in the King's time. The more power we can get for you, the more power and place shall we have. This would have contented the former Chief Magistrate. The King would have been content but for his council. (fn. 23) A maiden magistrate has not offended. He is as little obnoxious to Parliaments as any man.
With what applause came in the King, and in three years he lost the-hearts of all his people by breaking Parliaments. He followed not the advice of Parliaments, but of his council. See the consequences. That will be the lot of all Chief Magistrates that will not esteem the love of their people, but are carried away by those that flatter for their own good.
This paper is not perfect. This House is not best at penning a question. Choose two or three to pen a question, to be the subject matter of the debate.
Mr. Fowell. Some of the Parliament-men are fitter for repertare than repetiare. I shall not tell you of the lands I bought. (fn. 24) I shall keep to the question.
We owe our peace, safety, happiness, and meeting here, to the power of nominating a successor. Else you had met many competitors.
It is objected that the Parliament was under force. (fn. 25) I answer, three hundred then sat in the House. Sixty were kept out and wrote a letter. They were persons of integrity. We did at last obtain it, that they might sit with us. There ought not to have been that reflection. There is a difference between force to some members and force upon a Parliament. If that make all laws void, that some of your members be absent, two or three Cavaliers may seize two or three of your members. What is done in Parliament, by another Parliament must be repealed. There was an Act, 31 Hen. VIII. to repeal an act of a former Parliament. You set up a court of wards; and purveyance, (fn. 26) and take away all the lands given to your soldiery by last Parliament.
I sat in the Long Parliament, and there was a force upon us. Three hundred (fn. 27) of us were hurried to prison. I will not say the Parliament were guilty; but they made an order to keep us out, and a Committee of Inquisition was appointed. I was examined, how I gave my vote. I said it was not parliamentary to discover how I gave my vote. I confessed I was against it. I did according to my conscience, and he is a knave that does not so. All public sales will be shaken.
The Petition and Advice is a law. His Highness is Protector by that Petition and Advice. If there be any defect in the Trojan horse, (fn. 28) let it be mended. This is to give satisfaction to your allies abroad, and safety at home, that we should never come under the tyranny of a Commonwealth. I would have bounds; that he shall rule according to law: but to limit him, as you say, the conclusion denies the premises. If you had picked the world for a prince. He has given no cause of jealousy. Shall we deny subjection where we have protection?
Mr. Knightley. I came to this House with an Act of Oblivion in my mouth. I would have no reflection, but would not have it so peremptorily asserted that the Petition and Advice was made in a free Parliament. It is said, this House is a Grand Jury. If the Petition and Advice were arraigned, I should say billa vera, and find, guilty. There is a difference between force by two or three Cavaliers and pikes at the doors. One hundred and fifty members were kept out. There is a great difference about three Latin words, quos populus elegerit. I hope we are offering a better title than he has. Are we not all come to own him here? The judges own him. You have a bill, (fn. 29) make it not a hatchet or an axe to make some of us shorter by the head. It was stumbled on well by a learned gentleman, the Petition of Right. I would have us petition and right rather.
That Richard, now Lord Protector, be the Chief Magistrate of these three nations, that he ought to govern by laws, and such laws as the people shall think fit to advise him by:—I would have such a question agreed on.
Captain Baynes. We are all agreed that his Highness shall be Protector, and if it had gone to a Committee, I think you "might have been at an end of your question before this.
The Bill brought in, makes the Government hereditary. It gives him an absolute power, and acknowledges him the rightful successor, which we know not, and are ignorant of. I hope he is nominated according to the Petition and Advice. Yet I would have a previous vote, that his right and title be made out. and that he have it from this House; such a question to which there may not be one negative.
The Petition and Advice, which is his foundation, wants a foundation itself. It was brought in irregularly, against the orders of the House, to alter the Government, by a gentleman that found it by the way as he came from Lord—. (fn. 30) It was read afterwards in parts, (there was no Committee), and passed in parts, and never read the third time; but engrossed and passed, and carried to the Protector, who did not accept it, because of the title of king.
The House did adhere. A Committee was appointed to convince his Highness to accept the title. His Highness brought in a paper; (fn. 31) if he was satisfied in that, he would not make a bargain to accept the title, but would do honest things. This brought forth a supplement to the Petition and Advice, and loose papers were afterwards presented to the Protector for his satisfaction; yet, the title being in, he rejected it. It was then moved in the House, that it might be amended with erasures, and the fifteenth article, where was a clause concerning the king, not presented. It was urged against it, that it could not be amended but by a new Bill. The fifteenth article unprinted, has the title of King still in it. Looser papers were engrossed, and passed in an additional Petition and Advice.
There are many other defects in the formality of passing that law. Therefore it is not good to look too far back, but to look forward, and to make him what he will be, not that he is, or is rightfully, but that we intend to make him. I desire that it may be your Act to make him Chief Magistrate, to give him a legal title to what he enjoys de facto. This must be a distinct clause of itself; not to depend upon the Bill.
I have heard much of his virtues and his deserts. I do honour him; but he cannot always live. It is an unhappiness oftentimes or the people to have a good Chief Magistrate. The love and indulgence of the people fail to guard that which after becomes a snare. Let us set the Government so, that the worst of men cannot hurt us. The worst kings have produced the best laws, and the worst have been made under the good. Though a good man's hands be tied, you may loose them when you please.
I am not willing, nor free to trust him with your militia. I speak plain. The army will be an overbalance. Settle the Government as you please, in Lords and Commons, &c., but the revenue constant, Excise and Customs perpetual: these powers are not fit to be put upon a free people. I shall speak to that in its proper place.
You have the purse, he the sword; but his sword may soon take your purse. I would have no more high Courts of Justice, Major-generals, or imprisoning men's persons, unless for a little time, till a Habeas Corpus.
I would have the militia the first question, or at least to go hand in hand with it. I hope you will not establish a negative. I suppose you will have a House of Lords, or a Senate. (fn. 32) I shall not oppose it, if such as may, intrinsically, be a balance on their own footing, without any dependance upon the single person, if you can find such; that the single person may have no negative upon the two houses. It might be well enough to petition for laws when the people's interest was small, but now when they have got all the interest and property of the Three Nations, there is no reason. When the King and Lords had two thirds of the property, the case was otherwise.
I move, that he may be Chief Magistrate, reserving the militia and negative voice. If these three particulars all go together, I shall consent. Otherwise I shall not consent to it. Let some gentleman withdraw, to pen a question to this purpose.
Mr. Steward. You ought to admit the Petition and Advice to be a law, else you strike up your own heels. You have no other foundation. I shall not ruminate, but look forward. I shall make it appear that the Parliament was absolutely free, and freer than the Long Parliament. I had as much dissatisfaction in keeping the members out, it was damnum absque injuria.
Two things are necessary; an election; and an approbation, if it be made a sine qua non, and fundamental to the election. If those gentlemen had not been kept out, they ought to have been restrained by their own judgment. It was essential, their approbation.
1. As to nonformality. You must not presume that if a Parliament wanted formality, the consequence would be dangerous.
2. As to the disposal of the militia. It is indifferently well ordered in the Petition and Advice. You may perfect it in any thing. As to danger in trusting the Chief Magistrate, it is not in the power of any man to prevent faults in all government. It is necessary, and puts us upon Providence to defend ourselves. I would not leave a negative, to oppress the people. Yet if he have no deliberative vote, (fn. 33) he is the most unfortunate man in the world. We may have Parliamentum indoctum or insanum. (fn. 34) The single Magistrate may have nothing left to defend himself or the people by. If you take consideration of all this, you will make yourself matter for two months' debate.
Major Beake. I was exceedingly glad that the two gentlemen did move and second so warily as to take in all the sense of the House. We have a substratum, out of which to form a question. The word "undoubted," exceedingly qualifies the nature of the question. The word "lawful," would have run to the modifications of his title, and answers all ends; for some say he is in de facto, others, de jure; but whether de jure or de facto, he is undoubtedly so. It is offered, for something to be added. You must put it to the question, whether that shall be part of the question. It was moved from the bar, "let the rights of the people go hand in hand." (fn. 35) The rights of the people are of precious concernment. I hope you will never bespot so precious a jewel. If all the world were paper, and sea, ink, they could not express liberty, what it is. Some liberty is licentiousness, as some prerogative is tyranny. I hope, in their proper places, you will bring these things into debate. You will never part with what is essential to preserve the people's rights; but if you, put off this question of settlement till all these things be agreed on, you will hear of things without doors. If you never pass the vote, till all things be settled, I am afraid you will never do it. Thus you will deny what you swore. Then the argument from out doors will be: you are undoing that which they thought well done. My motion is, to repeat the question without the limitations, that this House doth declare that his Highness is undoubted Lord Protector, or Supreme Magistrate of England, Scotland, and Ireland.
Mr. Scot. I acknowledge this person is Chief Magistrate; but the word "undoubted," is a doubt with me. The argument used against those that say fire does not burn, is, put your fingers in. Were not pikes at the door to keep us out? It was proved. I cannot admit that a free Parliament. The Petition and Advice was not pursued. If the nomination appear not to you, you cannot go upon that. The Parliament have suffered entails upon the crown; but this has been done before the Judges and Council, and publicly. This Government is but de bene esse. The kingdom of England was not always hereditary. Of twenty-five or twentysix Kings, fifteen or sixteen of them came in by the choice of the Parliament, and not by descent. Among the rest, King Stephen, Richard II., Edward I. The Parliament has always power to make or empower the Chief Magistrate, and they changed the Government as often as they thought it good for the people. As to the instance, the last King, I was at his coronation. (fn. 36) At every corner, every society was asked, will you have this person for your King? This implies a power of the people; though he was so, before, by succession. As to the oath made without doors, I find myself free here. You may remove the Chief Magistrate, and make whom you please so. In Henry VI. and Henry IV.'s time, the election was from the people.
A second authority is from the practice of God's own people, Deut. xvii. 14. "When thou shalt say, I will set a king over me." Samuel, as good a magistrate as ever was in the world, asked, "Whose ox or ass have I taken ?" (fn. 37) In his time the people would have a king. (fn. 38) The people chose him; though God specially designed him. (fn. 39) You have a people that have declared this honourable and very precious person, with the acclamations of towns and villages. If the whole body had done this in a collective aggregate body, met in any place, (fn. 40) you ought not to question it; but this is but from some parts, in their several scattered bodies. You refuse addresses of this kind.
I would have some persons to withdraw and word a question; though it would come better from another House, than from us, that are bargainers for the people. We must consider as well what a man he may be. A young lion's teeth and claws may grow. I speak not of him, God knows! Yet we are not to, trust too far. If we were assured that through his life he would not err, no man can tell who is to come after. Can you retrench that power you are making for perpetuity.
St. Austin and Pelagius were born both in a day. (fn. 41) The antidote and poison were both of an age. Make the provision for the safety of the peoples' liberties and your Magistrate's power and prerogative, contemporary. Let them be twins. Let them justify one another. Let not one precede the other. Who would you have the Protector thank for his power: the people, the army, the council ? (fn. 42) Let him own you for it. Amor et deliciæ populi Angliœ: let him be so, when made your creature, not ad extra. It is a human institution, only own him as your authority. The Parliament will be said to be either fools or madmen, that know not what is fit for them so well as another.
Why should we think ourselves more unfit to provide for ourselves, and for our own good than any other; if we be so, let us set up the Court of Wards (fn. 43) again, not for our children but for ourselves. Why may not we be as well intrusted as any single person ?
Who better judges than the heads of the tribes? Name a Committee to form a question that may take in both. You will dispatch more in an hour, than you have done in all this time.
Mr. Bayles. I would not have it thought that those gentlemen that do not speak, cannot speak. They reserve themselves for a yea or no. I move to have this question put singly.
Mr. —. Here it is not proved that the title is in you. There is some argument from Scripture: "not so from the beginning:" nobody chose Adam: Nimrod not chosen by the pèople: Moses not chosen by the people. They would hardly own him, so could not be imagined to choose him. To prove it by Scripture is hard, unless by those that mistake Esop's Fables for the Scripture. Did the people choose Samuel or Saul ? They were chosen in an extraordinary manner. Saul sends away his servants, brings no witnesses that he was chosen. He did do it by lot, which clears that the people had not the right of choice. David so. Our kings: those that know history, know they were kings before the Parliament declared them so, their top-stone. They never intended to change the Government, but it is said, through necessity and the King's stubbornness, they took him off. (fn. 44) All the rule of law being taken away, they came to a pretended rule of nature, that all government was in themselves: and found it out this way, that all power was in the people; (fn. 45) which you will not find in your books.
But, you will say, where shall the blood lie ? It was but the representation of some towns and places. The town that sent me hither had none; therefore they are clear of the blood. I admire any man should affirm such a presumption. He that made one, pulls down another. He that has ordained the end, has likewise ordained the means; breaking up this House. The power, de facto, was in them, I will not deny. What successes in those times ? A more advantageous peace might have been made with Holland. (fn. 46) They were terrible abroad, because terrible within. They raised terrible taxes within, (fn. 47) and had the power too; whether by the people's concurrence I shall not dispute.
The same hand of Providence has set him up. I think it a wonder that such a person, so without gall or guile, (fn. 48) should be. In these times it is strange, and shall we dispute this too ? He was Protector before we came. I would have it declared so, in the present tense, that he is. I would have that to be the question.
Colonel Terrill. The question seems to be, whether he is Protector, or whether we do make him so. First agree that, whether your constitution be other than by the foundation of the Petition and Advice.
If he be Protector, then we must acknowledge the Petition and Advice, that makes him so, to be a law. But admit it to be so, I think it is but in part permanent, in part temporary.
The second article, touching the two Houses, is a mere temporary personal power, during the Protector's life only. (fn. 49)
I appeal whether a grant to his Highness the Lord Protector, whether" it be of power, authority, or land, be other than temporary, personal, and during life only.
A grant to bodies politic, aggregate of many, whether it be of power or land, with the word, successors, passes into perpetuity. But such a grant to a sole corporation without the word successors, is temporary and dies with the person.
There is a difference between the case of the King and other sole corporations.
If a grant had been made to the King by name of King, without heirs and successors, it had gone to his heirs and successors as a perpetuity; because, in the eye of the law, he dies not, and there is no interregnum.
I do not say this, to abate any thing of his Highness's authority. Though I do not allow that he is empowered to call Parliaments by that authority, yet I acknowledge him in possession. He hath a possessionary right, which, I am sure, gives him power enough to call Parliaments.
Compare, then, his Highness to the King and to a sole corporation. Compared to the King, I acknowledge he hath the power and prerogative of a King.
But the question is, what capacity he takes. His capacity agrees in nothing with that of a King. All the lands that a King was seized of, he had them jure coronæ. Was the Protector so seized? No man will say so. Therefore, you see they differ in the access of the power.
So when the King departed with lands, those lands which he died seized of, and which he had by inheritance, descended to his heir in natural capacity; but those which he had jure coronæ went to the successor.
If the King hath a grant to him and his heirs, it goes to his successors; or, if it be to his successors, it goes to his heirs.
But in all those things the case of the Protector differs. One might have been the Protector's heir, and another his successor; the one hereditary, the other elective. If committed to him and his successors, it had gone to his heir. They differ in every thing in the nature of capacity. With other sole corporations he agrees in all things; but not in any thing with a King.
A grant to the Protector, without successors, is no more than a grant to a bishop. If land is committed to a bishop, it is but for life, without successors.
1. The very intendment of the act is, where any thing is intended to be placed upon his successor they are particularly named, and not the word successor left out. But where successors are not named, there it is only personal. As the first article, that your Highness shall have power to name (fn. 50) your successor cannot be intended for more than personally for himself.
2. There are words of personality and propriety in this very article to call Parliament. (fn. 51) It names not successors, so that it was never intended that he should have the same power that his father had. Observe the word "yourself," and "the people," most happy. It is verbum negativum pregnans, exclusive of any thing else. It was a great prudence to leave out the word. It could not be, that so many learned men could commit such a word. I commend them much that omitted this word, successors; for, otherwise, it would have subverted fundamentals: and therefore it was, as to that article, made but probationary, during the life of his Highness.
3. His Highness had authority to build two Houses, and built but one. Is that a perfect Act ?
Objection. But in one of the additional clauses of the Petition and Advice, there is the word "successors." (fn. 52)
If you refer to that fifth article, (fn. 53) in principle, there is nothing of grant, but a subsequent limitation. I hope it will be as much for me. The word "successors" crept in, but only to help the other as to approbation. It refers only to the approbation, not to the estate limited before. It granted him not a farther estate. I should not be so positive that we sit by that Petition and Advice. We trip up our own heels, indeed, if we sit by it, and admit of the Act. It is an argument for Scotch and Irish members.
The child (fn. 54) would have devoured the mother. It was a miracle that they that had power to make themselves what they did, did not make themselves what they would. I looked upon setting up that House to be a destroying of this. It was a providence of God, that that House should fall of itself. If this be so, I hope it will save your time in pulling down that which is fallen of itself, the other House. After fifty years study of the law, if I mistake, I must say with the cobbler, opus perdidi, if this be not law.
The question is not, whether he is Protector, but whether we shall make him such.
If we shall build upon a sandy ground and a dubious foundation, and detest that which is sound and fundamental, it will not be safe.
I agree the Petition and Advice to be a law as to calling Parliaments; but this part of the law is dead and buried with the Protector. It followed his Highness to his sepulchre. I shall not stir in the ashes. Let us build upon ourselves without any reference. If we take one part to build upon, we must build on another. All forced Parliaments are nought. We may build upon a good one. Let us not give away all, by admitting this previous vote. We are here for the people. Let us set up that Government that will stand. I perfectly remember that arms had never been taken up, but for the militia and negative voice. A Bill was sent to him thrice about passing the militia, and he would not. Then the House sent him word they would pass it without him. (fn. 55) Then he went to the North.
The law of nature is the law of God; I take it so. I was consenting to the business in that Parliament, but I had never any prick of conscience as yet.
We shall go about to make him Chief Magistrate, and know not in the mean time what that means, whether it comprehends the militia and negative voice, and all the prerogative. I am sure, Mr. Speaker, if the lion once saith that the foxes ears be horns, I know what will become of the fox.
I am confident his Highness would quickly make his choice rather to be built on us than on such a sandy foundation.
I doubt Ireland is no part of this Commonwealth. So it will not be safe for you to take that into your question.
I move that it be referred to a Committee to word the question, as was moved before.
Mr. Godfrey. You are out of the way, I doubt. State the question with the limitations; and the resolve for a previous vote, one a general clause, the other additional; a new question.
It is offered to you, that a Committee withdraw, and pen a question about the militia and negative voice. If they agree of a question, it leads into a large field. I know not what time will be spent before this be done.
I would have you pass the vote that his Highness be Protector; but the limitations ought naturally to precede. Make that your question, whether those words shall be part of your question.
Sir Henry Vane. The state of the business you were upon, was for a previous vote. I was once against it; but now it occurs to me that it may be useful to you.
The whole debate runs upon these two feet, that at the same time that you declare your judgments for his Highness, you would also assert the rights of the people. I believe you apprehend how dangerous it is to confess a title in being, that is not from yourselves, of your own giving; but by way of debt; for there is no obligation to acknowledge obedience to a title you do not set up. I would have it considered: that such a vote be prepared that both may go together, and that it may pass with more unanimity.
Mr. Young. I move to put the additional words, first, else you exclude us that are for the words additional; for if the other pass, we are not sure this shall pass. I would have us jointly agree what we have severally sworn to, but not to part the oath, that the people's liberties should also be cared for.
Mr. Speaker stated the question, reported the debate, and was going to put the question for the latter words.
Sir Anthony Ashley Cooper. You have the same state of things now before you, as you had in the Parliament of 54, our judgments differing. A recognition was then proposed. It was said, that it was not consistent with the care, wisdom, and gravity of this House, to pass the interest of the single person but with the interest of the people. At length a previous vote was agreed upon, that nothing in that should be of force, unless the whole did pass. That which is now proposed, is thought impracticable, but was not so then.
You are now upon a Petition and Advice, which is told you is a law, and if you say so, the judges will say so. Never was so absolute a Government. If the Florentine and he that sate in the great chair of the world, had all met together, they could not have made any thing so absolute. Is there not another House sitting, that claim a negative over you ? (fn. 56) When you have passed this, what is wanting ? Nothing but monies.
State the case. The Petition and Advice is necessary to stand: A Parliament is freely chosen, and we own it. We go home by some necessity of state. Then does not the Petition and Advice outlive us ? This may happen, and produce inconveniences to us, to the Protector, none. Is not this security to him, that he shall be put in the great magna charta ?
If the Petition and Advice by piece-meal comes to be confirmed, we may not feel the smart of the Petition and Advice in this man's time. It may happen in another's. It may not sound well in after ages, to have things so uncertain and liable to disputes. The laws left doubtful, we have not been faithful to his Highness.
I move to assert his authority together with the liberty of the people. This will be security and indemnity to all. Put the case, that you should vote him Chief Magistrate only, and then leave him to the ancient laws to expound what that means. Shall we not leave him to those ancient doubts and disputes which have cost us so much blood ?
Englishmen's minds are free, and better taught in their liberties now than ever. A Parliament cannot enslave the people. It may happen in after ages, that the people may claim their liberties over again. I would have the addition and the question go all together. We have left a bone of contention to posterity, I fear. We may rise before all be perfected, for some reason of state. It is not against the or ders of the House to put them together. I would have them put together. Let them go hand in hand.
Sir Arthur Haslerigge. What is propounded is exceeding short of what you will do. The general sense is, that all should go together; that is the main thing, the militia and negative voice. The words proposed are exceedingly short. We have found, though we have agreed in the mind, yet the Chairman could never so well collect it, as when a Committee was appointed to word a question. It would save time in the House if a Committee of eight or ten were to provide against to-morrow morning, a question for you.
Mr. Solicitor-general. The proper question is, whether you will have any addition at all. I cannot consent to any addition at this time. I would be as much for the liberty of the people as any man; but it is not for the honour of the nation to be disputing whether you will have a Protector or no. Those that are of opinion that all the power is in this House, do not acknowledge the Protector to be Chief Magistrate at all, not so much as de facto.
I hope we shall be all sensible of the liberties of the people; but there is a time for all things. The Petition and Advice may be debated afterward, as to the other House and the like; but never stay debating your Chief Magistrate. Put the question whether there shall be any additions at all; or put the question, if the question shall be put.
Mr. Neville. The word magistrate signifies to execute. I first moved you for the additional words. (fn. 57) I affirm it, this is the same quarrel that was in 1640. Inevitably a civil war must follow. If you give up the liberties of the people, you lay the foundation for it. Chief Magistracy continued three hundred years because the barons' interest supported it; but the Petition of Right not three months, because the King had not interest to support it. (fn. 58) I would have a Committee to pen the question against to-morrow.
Mr. Attorney-general. I move to propound a question, and let any gentleman speak to it.
Mr. Reynolds. That gentleman, in learnedly begging a question, begs the question. They will put that upon you, which you cannot do, which you may not do. It is impossible for any man to propound a question that will please all. Always a Committee has been appointed. If you pass this singly, I must give my negative to it; for I dare not trust it without any thing for the people. No Prince in Christendom would have so undoubted a title as this single person, if founded upon such an unanimous consent; joining his and the people's liberties together. I would have a Committee to pen the question.
Mr. Speaker. This is against your orders, that a Committee should be appointed.
Mr. Swinfen. Is it possible for a quarrel to be upon a word, a question, and you cannot agree how to propound it ? That which is not denied openly, is denied collaterally. To hinder this question you will not put it upon his being Protector, till you have provided all other laws, on a negative voice, militia, sales of lands. If you agree not of his being Protector, I would have the question put, whether the addition shall be part of the question ?
The question was propounded, first entire, and then apart.
Mr. Young. I move against the word "undoubted."
Sir Arthur Haslerigge. We must now, it seems, either speak, or for ever hold our peace. I hear your question. I am unfit for it at this time a-day; but I see I am put upon it to go on. I shall move that every man may have liberty to speak over again. This is a great building you are upon. We must consider what we were, what we are, and what we shall be.
Serjeant Maynard. He may not repeat the whole business, but only speak to the question.
Sir Arthur Haslerigge went on, and said he had spoke.
Captain Baynes and Mr. Neville moved to adjourn, or hear one another with patience.
Mr. Hoskins. One may speak to change a word in a question, but not to launch into the whole debate.
Sir John Northcote. A man must give his reason for changing it, else we shall go away as very unreasonable creatures. I know not whether, when we have given away all, they will keep us upon charity. If we do no more but recognize and raise money, I should wish to go beyond sea.
Mr. Redding. I move to adjourn; for our time is spent; and Sir Arthur is fresh. It is against the orders of the House. The wording of this question is very considerable.
Mr. Bodurda. I move to put the question without an addition.
Mr. Reynell. "Undoubted Protector," is more bottomless than the limitation. You give all away at a lump; swallow Petition and Advice and all power unlimited. I have great exceptions, and desire, on behalf of the people of England, of the nation, that I may be heard speak. I would have the militia and negative voice inserted.
Mr. Hungerford. It is the will of Government to govern at will. (fn. 59) The word "undoubted," gives him a title to all that is in the Petition and Advice. It is fit we should have the negative voice and militia inserted in this question.
He said, he had provided a question, which he read. It was to confer the office of Chief Magistrate and Lord Protector on his Highness, to rule according to such limitations, &c. as should be declared in the Bill; and that the militia should remain in the Commons, and that he should have no negative in passing laws.
Lord Lambert. The question is neatly and well penned; but it is much for any gentleman to sum up the sense of the House in a question; and it takes in only a part of what is now debated upon. I would have no reflection upon any person, as that any were for or against the Protector. We are all for this honourable person that is now in the power. Laying imputations upon one another, I would have forborne.
Mr. Knightley. No man ought to thrust in a question upon a debate. I would have such a question that we may agree upon without dividing. Upon a question, it looks strangely upon your books, that it was carried but by three, (fn. 60) and who were Tellers. I would have a Committee to withdraw.
Mr. Trevor. This question has had ill fortune. I would have it pass singly. I gave you my reasons. I cannot trouble you long, if I would. I would have you put the question if you will have any addition.
Sir Arthur Haslerigge. I would have our minds expressed in plain English words. I like not recognition, or according to laws. Let us have it in plainly, militia and negative voice.
He pressed Mr. Hungerford's question.
After an hour's debate what the question should be, the debate was adjourned till to-morrow morning. (fn. 61)
The House adjourned at two o'clock, accordingly.
The Grand Committee for Trade sat the first time: Mr. Scawen in the chair. They were in the business of wool and wool-sellers transporting, and appointed a sub Committee to enquire of that and other things, and adjourned before night.