Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
This free content was digitised by double rekeying. All rights reserved.
Wednesday, February 19, 1658–9.
Mr. Scawen reported from the Committee (fn. 1) for inspection into the accounts and revenue of the Commonwealth, that they should often have occasion to send to the Commanders-inChief, both in Ireland and Scotland, for the knowledge of the forces in pay under their commands, and to others, concerning the revenue of those nations. And that the Committee did therefore desire, that their dispatches in reference to these affairs, might be signed by Mr. Speaker.
Resolved accordingly. (fn. 2)
Serjeant Waller reported from the Committee of Privileges the business of Petersfield; and that it was the opinion of the Committee that the election was void; and prayed that a new writ might issue out.
Serjeant Maynard. A Committee ought not to bring in a report without the tota materia. Else, how shall the House know it. If the persons capable of electing were there, then there was notice. The principal point is, who have the right of electing. I pray that it be re-committed.
Mr. Goodrick. We conceived at the Committee that there was no due notice; there being eighty electors, and but thirty present. Therefore we judged the election void. I would, therefore, have no re-commitment.
Mr. Drake. We have not commission to meddle with the constitution from those that sent us here. It has pleased God to reduce the constitution of the nation to a single person and two Houses of Parliament, as it was before. It is our honour to look forward, and not to go back, that we may be builders and not destroyers. Our ancestors have sworn to maintain the constitution: it is mostly for the good of the nation, to have such a constitution.
2. It is for the good of ourselves. By putting a question upon them; we may have a question put upon ourselves. They (fn. 3) may be a screen between us and the people, as well as between us and the single person.
3. The two, Houses are good for the peace of the nation. The old Lords have still a right. It doth but sleep, and will at one time or another awake upon us. If we take away the rights of the peers, we may have a barons' war again. There are great attempts and endeavours of your enemies to agree. It behoves us to agree among ourselves.
Mr. Edgar. I find in precedents, formerly, that there was a power (to be tried by the peers in criminals, and, in civils, their bodies not to be attacked) so inseparable from the Lords' House, that no power could take it away. The engagement (fn. 4) but takes it away by implication. The Petition and Advice, they say, gives it a right, I cannot say as to the force of that. Divers boroughs had no representative then. This right of the House of Lords is not taken away by any legal power. Then if they be in possession, be it by what power it will, they are in, and ought to hold their right.
It will be very useful for the Commonwealth. They have had their education in arts and arms. They were the procurers of Magna Charta, (fn. 5) by the Barons' wars; and many counsellors are useful in making laws. There has been no forfeiture, no transferring of their power. If I were satisfied that the people sent us not here to do this; I conceive we came here to do right and justice, and to maintain the honour and birthright of that House. The wisdom and strength of the body should go together. It is a very dangerous thing to alter laws and customs. A proverb says, "Old laws and new meat are best for Englishmen."
I would have another House of Lords. Matter of honour and reverence is as much a right as any thing else. The old Lords have no voice in elections, (fn. 6) and it were hard for them to be barred from sitting in their own House, and from being serviceable here.
Mr. Young. I perceive the question is, whether two Houses or not ? The question is whether there be a Lords' House in being, and not whether this shall be one for the future. First determine whether the Other House be upper or no. It was told you not long since, that the Other House was down, by the Petition and Advice. He was never answered yet. Those insignificant mincing terms, Other House, do not at all agree with my judgment. I would have it a House of Lords. Therefore first agree whether the power of the Other House be determined by the Petition and Advice. No other law is of force for them.
Colonel Gibbons. This is a question of great concernment in the tendency of it; the setting up another power, with a jurisdiction in some cases concurrent with you, in some other, superlative, above you. Thus you will have two superintendants over you.
If there be, it must be upon the old foundation or upon a new constitution. The last Parliament cashiered the old foundation. The victorious Long Parliament, the dictators and legislators, they have laid them aside. (fn. 7) The House's Advice is no legal footing, as was moved learnedly by Colonel Terrill. (fn. 8) Therefore, if there be any in existence, it must be upon some new constitution, de facto; but whether de jure is the question.
In this Act, an Act of Constitution, it was declared that his Highness might summon another House. His Highness constituted another House. He had a power to constitute them; and the power is executed.
Mr. Knightley. Those gentlemen that stand at the bar, put me in mind of what I moved the other day, that none should have votes that would not take their places; so that if men will not take their places we must needs have another House.
I desire that the Act, 16 Caroli, on this case, be read. The dictators and legislators, it is said, did take that House away. The late army had no power to dissolve, much less to annihilate that House. Therefore, instead of two Houses, we shall have two houses in being; one by that statute which I would fain have answered, and you have another House in being by the Petition and Advice.
Via tuta est via recta. We were called to advise with the nobles, and we were indeed in the Lords' House, and there we found some sitting that call themselves Lords. We must consider what constitution we are upon; what we have, not what we shall have. We have a constitution by a single person, and a House of Lords, or Peers, which you will. I can consent to no other.
Another law, the statute for triennial Parliaments, is unrepealed, by which twelve peers ought to meet to summon Parliament. (fn. 9)
I am against building with rotten timber, but not against building with old timber if it be sound. Determine, first, whether you will have a House of Peers, and then, whether that House of Peers be taken away or no. I pray that the Act of Parliament, 16 Caroli, may be read.
Sir Arthur Haslerigge. I am glad to see these two Acts read. I move to explain whether the Petition and Advice have not made void these two Acts. I would be satisfied from the Long Robe. It is said the Petition and Advice has made two. Houses of Lords.
Mr. Attorney of the Duchy. I know not what those two Acts were read for, unless to take the Speaker out of his chair. Yet I do not think that the intent of those gentlemen was to take you out of your chair, and put in your predecessors.
By the same rule, Magna Charta may be called for, the restoration of the Lords, Spiritual and Temporal, the Recognition of King James, (fn. 10) &c. and I know not where you will end, till you recognize Charles Stuart for King.
Invalidity is endeavoured to be put upon the Petition and Advice, and upon many good Acts in the end of the Long Parliament; but a nullity upon them upon any pretence whatever, brings us to what, and where, we were.
The Lord Protector did not think fit to make every lump of gilded earth a Lord. He took another measure. Their valour and virtue were objects to him of their honour. (fn. 11)
The Barons anciently were the great bulwarks and defence of the liberties of the nation. How oft did they fight for Magna Charta. They did great service in old times, and so did those in the quarrel. There is a necessity for a House of Lords.
Mr. Belhel. I observe from that Act, (fn. 12) that we are the people's Parliament, and not any single person's. That is all that I shall move.
Mr. Manley. I differ from that gentleman. The Petition and Advice has made those laws of force. It is a question of fact that there is a House. You exclude the right. I would have the question comprehend both; whether there shall be another House or no.
It will come in debate whether it is proper to have another House. I shall speak to none of the laws that have been read. I think those laws are of force till you annul them. I think they (fn. 13) are restored by the Petition and Advice. I conceive clearly they are restored.
The Protector has the same power that any King of England had (fn. 14). He has power to create Barons by writ or patent. (fn. 15) I wish the old Lords, so many as are capable, had been called. His Highness went by another measure. Honour is the edge of valour; take this away, and you take away the edge.
Lords were ever since Parliaments were; only they sat together. (fn. 16) The 8th of Henry IV., they then sat asunder. Had there not been a House of Lords, then we had not been a House of Commons neither.
They always fought battles for our liberties. How often engaged against the King for the Parliament. Two worthies of them are never to be forgotten; one by land and another by sea. Essex (fn. 17) and Warwick. (fn. 18)
If you will have another House, they cannot be Commons. If any thing, they must be Lords. Commons against Commons cannot stand. Shall they dispose of your purse ? One hand is enough in a purse. If you have not a House of Lords already, I wish we may have a House of Lords.
Mr.— (fn. 19). I move to declare, whether, as to this point, the Petition and Advice be of force.
Mr. Nathaniel Bacon. This statement will not hold you long. De facto, King and Lords are taken away. There is something in the nature of a law on foot, which is the Petition and Advice. By that, another House is set up; whereas, before there was but one. It is not so much a new Constitution, as a reviving of the old with taking off the exorbitances.
I think it ought, from long continuance. It hath been so for many hundred years. Long usage hath so settled it, as Acts of Parliament cannot alter it. No Act of Parliament can take it away; nor can the single person be taken away without special authority.
This Government hath been interrupted, de facto, and put out of practice; but the right cannot be taken away. The people of England have a right to the single person and two Houses of Parliament, and it cannot be taken away without their consent.
We all aim at settlement. I hold life and estate by Magna Charta, thirty times confirmed. It is clear, that the ancient Constitution was a House of Lords. Ever since the fourth of William the Conqueror, you will find the nobles a House of Peers. How they came to forfeit that I know not; particular men may. The laws read are, without doubt, not repealed. I am clear that these laws are not repealed.
The latter end of the Long Parliament took them (fn. 20) away, and last Parliament restored another House. You have both laws before you. I was always against taking away the House of Peers; and that upon account of the covenant. I made that covenant with God, and not with the Scots. The act by which that House was taken away, was made by a kind of surprisal too.
I tell you truly, I am for the ancient Constitution by two Houses. Justice is always pictured with a pair of scales. The two Houses were so. Sometimes the Lords were too heavy, and sometimes the Commons were too heavy. No bills for monies did ever come from that House.
You ought to restore the ancient House of Lords, if one may be added to the other. I am bound by my covenant to maintain the privilege of Parliament. I think too, we must restore the House of Lords, as a point of policy and prudence. They may be a good screen on both sides; between the magistrate and the people. Let us build upon good and sound foundations.
Sir Henry Vane. Here has been a learned debate; but, by the question, I know not how to give my vote. If the Constitution be by the old right, I must go one way; if by another right, another way; but if both these might be taken away, then the question must be whether We shall have any or no.
If you say, the Constitution of Parliament consists upon the old laws read, I may give my yea. If upon the Petition and Advice, I may give my negative, I am Àxceedingly perplexed which way to give my vote. I would have the words "shall be."
I cannot assert the right, till it be debated whether the Other House be the House that ought to be. It is not proper, when both these are in debate, that we should admit either. I desire the word "doth" may be left out.
I hear nobody offer that it was part of the quarrel to have no House of Lords. They showed themselves for you, in a time of hardness. They did oppose your enemies. You could not have held out laws to the people, in that time, but by their ordinances. They were innocent, so let us not go away with that mistake that they were as nocent as the King.
Colonel Bennet. I look upon this question as that, which, at the long run, may cost us dear. There are different understandings in the matter of this question. Let us not be too hasty, but hear one another. Many arguments have been used for the right of hereditary peeragé to legislature. I have heard it learnedly argued that, not only by ancient usage but by the common law of the land still in force, the ancient peerage are restored, and now in being. I shall consent they may have had such a reasonable claim to offer, as other things of like nature have had, witness the Court of Wards, (fn. 21) and Star Chamber, (fn. 22) and Bishops. These had no natural right; but only a right by usage, which is no right.
I was for a single person, though, if the condition of the people were as receptive of a Commonwealth as it might be, I still have thought a Commonwealth better for us. I shall contend for a mediocrity.
I cannot like it, to have five hundred men set over us for them and their heirs to have a legislative over us and our heirs. I never understood the covenant in that sense as now used. I look upon that as exclusive of this family, and inclusive of Charles Stuart. I have no such opinion of any in this House. (fn. 23) I know not what may be.
I would fain have it agreed, if restoring the old peerage, or that way, be not inclusive of that and exclusive of the other. I do consider this power of legislature in a single person, and in another House, hereditary, and if it be possible for any man to apply his arguments taken from the statute of 16 Caroli, exclusive of Charles Stuart, I shall be glad to hear it.
If they who are for monarchy, will be content with the good things that are in it, we shall be content that all the good reason of monarchy and of another House may be converted to our use. Another House, for the castigation of debates, to prevent passion and too much precipitation, that will fully answer the reason of another House. But for the law of 16 Caroli, I conceive that clause of the Act, that they shall not cease to be, is improperly tendered. It is set aside,—
2. A greater power than the power that made that House, hath taken it away. I mean not any power on earth, but God himself. He hath let us know that it is he that planteth and plucketh up, and taketh away. I am of opinion that he hath taken it away by a long series of providences, and what God hath taken away, I shall never plant again. It was not taken away in a corner. They may have peace in themselves that did it. God hath dissolved that Parliament. That satisfies my conscience. I cannot plead that any jury determined it.
I am willing that two Houses should be, upon the reasons of utility; but I cannot consent to hereditary power in those that sat below our ancestors. I shall be willing to grant you my honours upon condition you will give us an hereditary legislature from such as our grandfathers sat by their sides and took pleasure in them.
1. I suppose he will have a retrospect to what other princes have done. Or suppose the single person should nominate five hundred peers, or more, to grow up over us and overtop us, such a numerous nobility will rather strengthen your hands than his; for, by experience, we found the numerous nobility of King James (fn. 24) was the destruction of his son. When King Charles began to multiply Lords, they struck in with you, and deserted the King; ergo, that will be a rock, a peg on the top of the Bill, which will direct him on that behalf. It may be you will limit the number.
Though, God in his providence hath taken away the nobility, yet what God doth providentially, he not always approves. That he did approve it, is not clear to me. To untie this knot, we may say he did not do it approvingly. I take the single person and the Commons as two scales, the House of Lords as the beam. Both scales are subject to factions and tyranny and extravagances. The beam is prudential. The power, for seven hundred years transmitted to them, they have as much right to it as the gentleman has to his cloak. Usage is a good right, if ancient. If nothing he right but what is natural, he has not right to his victuals, his meat and drink: so that there is but a tantum non to make it natural. It is so twisted with the constitution, that five hundred for one upon the poll, would be for a House of Lords. I never knew any Christian against the constitution, only against persons.
Laws went out here without their lustre, not so practical and useful. By no law of England can the Judges sit in the House of Commons. They must sit in the Lords' House, else we want their grave and sage advice. We have been tumbling ever since they were taken away. We have swornby the covenant to maintain the two Houses; and the Parliament might as well take away meum and tuum, as a House of Lords.
Mr. Jenkinson. Your question is not of conveniency or inconveniency, but of right. Then the other arguments will weigh nothing. I conceive it a great question, and fear whilst you vote them Lords, you vote yourselves slaves.
I find their names in all your laws, but by what right, it appears not to me. Some say the old Barons were by merit, (fn. 25) some by patent, but I conceive by neither. It was neither writ nor patent gave it to them, but their tenures and possessions gave it them. He that had so much in possession, or so many Knights' fees, was by law a Baron, and might challenge a right to sit in Parliament. (fn. 26)
There was a law in King Ethelbert's time, that if any person came to have good possessions by his tenure, he was to be a Lord, or Theyn, as it then was called. In the 11 Henry VII., the law was for Archbishops, &c. that hold of the King in capite. "Let them do service to the King, and be present at the King's courts." Mr. Selden understands it to be present in Parliament. This was by their tenure. No writ was then, but every man that had right might come. The first distinction between the Barons, majores et minores, was in the latter end of King John, as appears in Magna Charta. In the last year of that King, upon this statute, were several writs to distinguish them severally. The Barons, Majores were to be called separatim, and the Minores were to be called, generally. The Majores at last came to exclude the rest. The excluded for a time took it well, but out of their ashes came the Commons. These were first called in the time of Henry III. Even at that time the Commons began to grow upon the Lords, and all their glass is now run out. Almost all that power is in this House, the Commons having now whatever possessions and tenures made them considerable. (fn. 27) The Lords have no interest now, and signify no more than. you. How can you now make those men Lords, by any other reason than to make twelve pence to go for twenty shillings. You may vote them what you please, but should you say so, other people will value it, at the same value. If they be not Lords in the country, it will signify nothing. It is not your voting of them to sit in another House will make them so.
Serjeant Maynard. I would have the question look forward as much as may be, and as little backward as you can. If we look too much upon the point of right, it may bring us upon some rocks by pressing it too far. We must go that way which comes nearest settlement. The question before you will answer every man's sense, to debate after right or conveniency, or what he please. If you put it in the same way as you put the single person, that will do best.
A power to laugh is essential to a man, but he does not ab solutely consist of it: so, that may be essential to a Parliament that is not constitutive of a Parliament. By putting this question, you conclude that all Parliaments that were before or since the House of Lords, were no Parliaments.
I shall mind you what was done in the King's time. I would not have more given to this single person than was comprehended in the propositions at the Isle of Wight. (fn. 28) There was then a short Bill to bound the peerage, both as to number — (fn. 29) I would have you declare some additional clauses:—
Captain Baynes. It is most proper now to go to the negative voice. The objection is answered that was made, that we knew not how to dispose of the negative, till we knew whether you will have another House.
Mr. Bodurda. Surely you mean it shall not be another House of Commons; then you will have two hands in a purse. None here surely mean it a House of Ladies. (fn. 30) So surely it must be a House of Lords.
Colonel Birch. I look upon this agreement among us, to be the return of the prayers of the good people. I would have you now proceed to bound this House, before you talk of the persons, and take up this on Tuesday morning.
Sir Arthur Haslerigge and Sir Henry Vane took exceptions at it, and will move the House against it. (fn. 31)