Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Thursday, February 17, 1658–9.
Sir Arthur Haslerigge. I move, that this being the first letter from his Highness, it stay till the House be full. I farther move to know if the establishment of the Army be brought in, and a list of the officers, that we may know who are our protectors. It seems this is not done. It is not within these gentlemen's survey, but the Muster-Master General's. Dr. Stene (fn. 1) is Commissary of those Musters.
I heard it said yesterday, that an officer said in the head of his regiment, that his Highness and the other House were desirous that the army might have their pay, but the Commons were against it. I wish our young Prince may have good and wise counsel about him, not to advise him to a breach of the privilege of Parliament. I doubt this is laid at our doors. Have we not hastened this ?
Was there need of this letter ? The Lord deliver us from such evil counsellors as King Charles had about him, in the beginning of the Long Parliament. One ran to court, the other went with the vote, as soon as ever it passed. (fn. 2) We have looked upon this as a high thing for a member of this House to go to dinner at court; but we are all in now; say they. A word is enough to the wise. For an innocent Prince to be misled, I am heartily sorry for it. There was no need of this letter. I pray. God deliver him and us from evil counsellors.
Mr. Secretary. This letter was well intended, and not to direct you. If any evil counsellers be, let them be known I am, for my part, here ready to answer any charge. It is an easy thing to charge in general terms. I was never a soldier, but shall have the courage to withstand any charge. His Highness thought fit to give you this account, and lay it fairly by you, that you should use your prudence in it. There was no breach of privilege intended, nor I hope any done. It is fit you should understand the emergencies of your affairs.
Sir Walter Earle. I observe no great pressing nor requiring in the letter, only it seems to take notice of your debates, which ought not to be done. One Tirrell was highly censured by this House for carrying things out of doors. But it is no more than has ever been done, to acquaint the House of Commons. It is no new thing, but was always represented this way.
Mr. Knightley. In the beginning of the Long Parliament, the King did a high breach of privilege upon this House. (fn. 3) What is past, the single person or any other may take notice of; but of the debates he ought not. Mr. Kirton brought a message from court of this nature, but had a warning given him never to do the like again. I wish this had not come, and desire it may not be again.
Colonel White. It is not happy for a Commonwealth to have daily breaches upon their privileges; but I find not by this letter, that you are broke in upon. The letter takes no notice of your debates. It is but his duty, he being Chief Magistrate, to advertise you of your charge and preparation. I would have the letter laid aside, and Mr. Secretary to take notice of it; that nothing may hereafter come from the court of this nature, to distaste the House.
Sir John Northcote. This was no breach of privilege, to bring in this letter from the Chief Magistrate. He ought to acquaint you of the danger; but I cannot but take notice of what was said by the said officer in the head of his regiment. (fn. 4) This may be of dangerous consequence to loose the Army. Those that have no money would pay, but those that have the purse stop it and will not. King's servants have been turned out of the House and sent to the Tower, for telling things out of the House. I would have gentlemen that know not this, haply to take notice of it. If the dangers are real, why not a Parliament called sooner ? Why, methinks, our dangers are not so great.
Mr. Solicitor-general. If sending a letter by the Chief Magistrate be a breach of privilege, it were well it were known. I have read over the letter, and find no such things in it. It is fit the physician should know the state of your body; but to desire no such letter should come again, is to stop the intercourse between you and your Chief Magistrate.
Sir John Carter. I am no accountant, nor have meddled with money, nor am in any way concerned. As a soldier, I have fought and bled for you. If I be a fit member of the House, I suppose I am a fit. member of a Committee.
Sir Arthur Haslerigge. I found myself unfit for accounts, and did not know that that gentleman was fit for them; so I gave my negative. I ask his pardon for it, and am sorry that he should take exceptions.
Mr. Middleton, Colonel Birch, Sir John Carter, Sir Henry Vane, Major-general Brown, (fn. 5) Lord Lambert, Mr. Godfrey, Colonel Thompson, Mr. Scot, and Mr. Jackson.
Colonel Birch. I move to give your Committee general power, and then they need not come to you for particular powers; only to inspect your forces by sea and land, and to inquire of the revenue of the three nations, and how your charge may be defrayed for the future, and to send for persons, papers, and records.
Resolved, that these papers and accounts, delivered in from the Commissioners of the Revenue, the Committee of the Army, and the Commissioners of the Admiralty and Navy be referred to this Committee; and this Committee, or any five of them are to consider of the number and strength of the armies and forces by land, and the number and strength of the navy forces by sea, and how all the said forces by land and sea are at present disposed of. And this Committee are to meet to-morrow at two, and so de die in uiem, in the Treasury Chamber. (fn. 6)
Captain Buynes. It is enough to deliver in a list of the commanding officers, and the number of the soldiers under their respective commands; and, further, that your Committee inquire how to retrench the charge of bringing in your money.
These words were ordered to be added accordingly. (fn. 7)
Mr. Scot. It is fit you should know the state of your affairs, with your allies and enemies. There is a time of year when kings go out to war. Therefore, whether you are in a good consistency and right understanding between you and the Chief Magistrate, or not, your meaning, I suppose, is not to leave the making of peace or war in the single person's hands. (fn. 8) You mean to place it elsewhere. It is, therefore, fit to inquire who are your friends and enemies. I would have a short day appointed to inquire of all this.
Colonel Birch. I move that all persons under pay attend your Committee to assist them. I have known a chairman in such cases spend 40l. from his own purse, in sending for declarations, ordinances, and papers, for the service of the Committee.
Mr. Neville. I would have you take into speedy consideration the war with Spain. (fn. 9) There are many reports that the enemy would seek you in peace, if your sense were understood that you would admit it.
There is a general decay of trade, that money will not be had for this business. No money has come for two or three years. I could tell you of one thousand particular decays of trade, by want of the Spanish trade.
Mr. Secretary. I move to revive a motion I made in the morning, for which these gentlemen have moved. For the state of your affairs in general, you are at peace with all the world; but as to that state of Spain, which was made known to you before, and you may have the estate of it again, when you please, some part of this affair cannot stay the disposal of your Committee. Fart of your fleet must be disposed of. Your enemies are at work. It will be your interest to know how the Sound is disposed of. In Europe, Poles and Danes and Dutch combined; the Swede only on his own legs. (fn. 10) The consequence is of weight to you, how far you will engage. The counsels are before you. You may be informed of all, when you please. There is no engagement as yet. The charge of the fleet, next year, will amount to a million. (fn. 11) I would have a short day appointed to inquire of this.
Sir Walter Earle. I move whether you will take into consideration the business of the Petition of Right, Magna Charta, &c. as was moved formerly. (fn. 12)
Sir Henry Vane. I move to take things in order as they lie before you. First begin with bounding the power of the Chief Magistrate, how far you will have him have the militia and the negative voice; and how he may not protect delinquents by a power against justice, or be himself not accountable.
There was a great person in the army, that said rather than the militia and negative voice should go from the Chief Magistrate, he would fight it over again, and begin next morning. This is a bounding of our power.
Let us proceed upon this vote. I am glad I have it in my hands. It is of three parts. I take the matter as it lies in the vote, and would have us first go upon the negative voice. I would have light from the gentlemen of the Long Robe. I know not whether Protector or King be the greater man. I hope we shall learn in the debate. There was a maxim in the law that the King could do no wrong. It was received and swallowed by me that the King was so bounded that he could hot act in his own person, neither could any personal actions be brought against him. No action would lie against him, as against a justice of peace or constable; because he never acted but in his public capacity. A constable was less bounded in his personal capacity than the King, who could not imprison nor act any thing in his own person.
It is true we had a thing called prerogative. A great person, heretofore, was committed for saying he desired to know where that monster called prerogative was, and he would, gladly, know, what that monster could do. It was the Earl of Oxford. (fn. 13) It was answered, he should know what prerogative could do; and to declare it more demonstratively, it was told him that it could commit him to the Tower.
Now, if that maxim in law be still true, and this Protector be not greater than the King, then I am sure he can have no negative voice, for by that he might be able to do much wrong. If the Chief Magistrate deny any law, it is a wrong to the people. This was debated with the late King. The King denied his assent to what the House of Lords and Commons had made touching the militia, and would not consent to alter the Lieutenants. We persisted, and did it without him; (fn. 14) some of the gentlemen of the Long Robe's opinion then much concurring, that the negative voice was in the people. Therefore I would have that to be the first boundary: only state it now in order to the debate.
Sir Henry Vane. I would have the nature of the thing opened a little, that is to be the occasion of the farther debate. I shall offer you my thoughts preparatively. You are now bounding the Chief Magistrate.
The office of Chief Magistrate hath something in it essential, and which must be inviolably kept for him for the necessary preservation of the good of the whole, and the administration of justice; and something superfluous, and very chargeable. (fn. 15) Such as are;—
1. A thing called kingly power, which implies the whole affair of monarchy and prerogative, which are great occasions of vain expenses and waste, all the nation over. Lay aside this state of kingly power, and keep your Chief Magistrate. (fn. 16)
2. The power of the Chief Magistrate as to the negative voice. The denying it to the Chief Magistrate as by the law of the nation now set up by you, is fit and requisite. When all these things are in our power, must we dispute it over again between the people and the Chief Magistrate ?
The Chief Magistrate pretends to a power, not only of executing laws, but to enact laws; whereas it is the right of all to bind themselves, and to make those laws by which they are to be ruled. If corporations or any society of men have a right to make bye-laws, surely much more hath this House, which is the representative of the body of the nation. If the interest of the whole nation should lie at one man's door; it were worse than in the meanest corporation; especially to serve a single person, or the interest of a few courtiers or flatterers.
Thus it should be, that he should not deny what you find to be for your good. This our laws have declared that the single person ought to grant: Leges quas vulgus elegerit. (fn. 17) It was urged by Lord Fiennes, who drew the Declaration, that it was undeniable that the King should not deny laws. (fn. 18)
This, therefore, is of so great concernment, agreeable to the law of nature and constitution of the nation. It was before, though, if it were not, it is now in your power. Great weight was laid upon it in all propositions of peace, and so much weight depends upon it, as in the proportion of restraining or binding of power it ought to be a principal ingredient. The Chief Magistrate may do well without it.
On the other side, I would have him possess all things needful to his acting for the people; all the power to draw in the public spirits of the nation to a public interest, but not power to do them or you any hurt. This is to make him more like God himself, who can do none. Flatterers will tell him otherwise; but they that wish his safety and honour, will agree that he shall have power to do every thing that is good, and nothing that is hurtful. It is therefore necessary so to bind him as he may grow up with the public interest.
Colonel Birch. Bounding the Chief Magistrate is a necessary work and fit to be gone upon; but my weakness is such that I cannot agree this to be the first subject of your debate; or I should not trouble you. I cannot give my vote to this, or concur otherwise, till something else be done first; until it be agreed whether there be another House or not; for if there be, I would have the militia and negative voice disposed one way; if not, another way. I leave it before you, whether you ought not first to debate this, before you do any thing in order to the bounding the Chief Magistrate. I humbly submit it.
Mr. Neville. I think the last proposition, whether you will have another House, not material now; but when the whole Petition and Advice comes in debate, another House perhaps may then be thought convenient; but it is not ne cessary you should take the old way into consideration. You may have another House, and not a negative voice. You are not going to build upon the old constitution. The Other House may be such a House as is only preparatory to this, as, among popular assemblies in other commonwealths, there was an assembly to propound laws, and another to enact them, and a single person to put all in execution. Commonwealth was a good title, but grubbed up by the title of Chief Magistrate.
The negative voice will not at all touch the Other House. It is presumed we are going to something else, though what are men ? Therefore it is not fit to debate whether it shall be in the power of any person or persons to strangle the debates and pains of this House.
Mr. Onslow. I would have no jangling motions in stating the matter of your debate. The Other House will come on best when you come to debate upon the rights and privileges of Parliament. I would have you proceed upon the negative voice in the first place, and adjourn till to-morrow.
Mr. Starkey. The end of the Other House is for a negative voice, else they are useless. I conceive the co-ordination of the powers, of great use and advantage to the people; and therefore it is most fit and necessary to take into consideration first, the Other House. For if you shall deny a negative to the Lords, you may, by the same arguments, deny it to the Chief Magistrate.
Captain Baynes. The Other House is not yet before you; but as to the power of the Chief Magistrate, formerly so boundless: what power a single person shall have in the legislature, which is proposed as the first bounding. For my part, I think no man can tell how to set bounds to the single person, no more than to hedge in a cuckoo. Therefore I think it most fit to deliberate and agree what power the Chief Magistrate shall have, and not what he shall not have. Let it be so stated in your Bill, arid that he shall have no more.
Mr. Sadler. All the bounds that ever I have heard of, for the Chief Magistrate, are but negatives. Exceptions do but strengthen a rule. Exceptio probat regulam, in non exceptis. You plainly confirm him in all other power. I would have him so bounded by the Bill as to give him an affirmative power, and let him have no more. But that which is most necessary is, to be satisfied whether the Chief Magistrate has power to dissolve you. Inquire that first.
Mr. Trevor. I am not for an affirmative power. You may bound your Chief Magistrate by negatives well enough. I am glad there is that care taken to bound the Chief Magistrate, but understand not well what you mean by bounding him affirmatively; unless he were to take his power now. Your first debate I conceive should be, wherein you will bound him. I wish we may do it so as he shall not be able to do any harm; but then it will be questionable whether he shall be able to do you any good.
Serjeant Maynard. Declare not the powers till you declare the persons. How we can circumscribe the power before we consider the parts of the Government, I know not. We are intrusted for the people, not for the nobility. True, but by whom, if the sole power of making laws be in this House ? Besides, you wholly exclude what is essential to a Chief Magistrate. You represent not him. Whether are we intrusted by the nobility, whether by the Chief Magistrate ? Our ancestors, that is the Commons, did not think it fit to put this jewel into our chest. A man that has a treasure, had rather have it kept under three keys than one.
Many differences are in religion and in our civil concerns. Suppose, in process of time, it should so fall out, that the major part of this House should agree to do some strange act, so as to lay some imposition upon conscience, or the like; or suppose they should be of contrary opinion to us as to Papists, or some other thing; and one party be pulling another out of the House, would you have the Chief Magistrate consent to their law, and confirm that without more to do ? You swear the Chief Magistrate to do that which is just. If you offer me that which is not just, I am bound by my oath to deny it. He means to approve laws that shall be just, but if that be propounded which shall not be conceived to be just, shall he be necessitated to confirm that?
Lord Lambert. The negative voice is the most material. I know not what was meant by the Serjeant's question, Who represented the Lords ? If he meant those sitting at the other end of the House, they are sufficiently represented here, both as they were electors, some of them in person, and many of them by their letters (fn. 19) to several places.
Assert the negative voice to be here, and you go a great way in your business. Some say it is here, some say not. Some would say but part is here, and would have it divided. Agree this, and all other points are centered here. The best of all your fabric is to correspond with your interest here, and to assert it. It is a matter of great weight; but I would have you adjourn for the present, and take it up to-morrow.
The clerk entered the order thus, viz.: "That the debate concerning the negative voice, be proceeded in to-morrow morning at nine of the clock; and that nothing else do then intervene:" but it, was not till after Mr. Speaker left the chair, which was not justifiable.
Resolved there, that a minor is no good elector. (fn. 20)
The principal question was, whether the freeholders that were no inhabitants had votes in the election. Resolved the contrary, and that the bailiff not being a freeholder and inhabitant, had no vote; only by his office was to return.
The Committee sat till ten most assiduously. (fn. 21)