Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Tuesday, February, 22, 1658.
Mr. Stephens. Since the last day's debate, I have met with this objection, that those that are for the old Lords are for the old line. I do not take the line to be fundamental. Nothing is fundamental but the will of God.
By the statute of 14th Elizabeth, (fn. 1) and by other statutes, it is clear, that the Crown may be limited in all things. The declaring of the line was always subject to the power and disposition of the Parliament; but it is new light to me, that ever one House did, or that one House had power to put down another. I should be very loth to hear such doctrine.
The ground why the Lords were always called to sit in Parliament was, because they had the greatest share in the kingdom; but it is not so now. Abbots, Priors, and Bishops, had one-third part of the kingdom, the Lords another; but now the Commons have obtained a larger interest in the land, and therefore they should have a greater share in the Government. I would not have the two Houses fall out among themselves. Let us tie ourselves to some reasonable rule.
Restore such old Lords as have not forfeited, and add some new ones. Their number is part of the power. I would have the number and the persons themselves, as the King was moved they might be, by approbation of this House. Their power the law will regulate.
But the great thing is the negative voice. A negative voice in them, generally, I think not fit; but all Acts are not of the same nature. There are public Acts and private. The private Acts may pass without them; but, if the House of Commons do declare any Act to be a public Act, if difference happens that cannot be reconciled by conference, then let both Houses, pro hac vice, sit and vote together.
I shall never give my consent to put that yoke upon ourselves of this other new House; where, I hear, there are some sit that have endeavoured to. make the greatest bleach upon our liberties that can be, When you have set up them, for aught I know they may pull you down. I may be made a slave by the sword, but I will never make myself a slave.
Some in that House have carried elections this Parliament, very strangely. (fn. 2) We know not what they may be led on to. Some have the long sword by their side, and perhaps may help to hew you down and pull your House over your ears.
Mr. Pedley. This nation has been a long time in a desperate distemper, and you ought to use as much reason, wisdom, and moderation in this, as may be. Consider the condition of the nation, what at present they are able to bear. The laws will well fall in with the frame that you propound; a monarchical government, by a single person and two Houses of Parliament. Look at your ancient records, Hen. IV., Hen. VI., Ed. IV., Rich. III.s time. You will find how that, in cases of necessity, the King and Commons together might have made a constitution suitable to the good of the people.
You have propounded that you will not let them appear abroad, till they be well dressed. I would have you make something the matter of your debate; as to limit the power. Begin first with this, that they shall not be hereditary.
Majer-general Kelsey. It hath been argued that you should have a House of Peers, and that is that House you are now a bounding of; and if it be so, you must ask them leave whether they will be bound or no. Whatever resolution you take up for bounding them, I can hardly believe they will consent to it. Yet, if they sit there by an ancient right of co-ordination, I am sure you cannot take any thing from them without their consent.
It is hard to limit men's power; they will rather strive to enlarge it. I have found by woful experience, that power is willing to enlarge itself, but never to be restrained. If they have a right still to sit, then the law which took them away is no law. If they be another House in being, if they have a legal right, your bounding is out of doors.
If the Long Parliament had no legal right to take away the House of Lords, then it must be granted they have a right of sitting. Otherwise they have no right, and surely that Parliament has as much power to take away them as well as the kingly government. (fn. 3)
I find that law of 14 Elizabeth can cut away a line. For merly I have heard the Long Robe insist upon it that no law is of force but what is made by the three estates. If the law was not good which took away the Lords, because the Lords did not give their consent, then the law which took away the king is not good, because it was made without the king's consent. It will then as naturally follow that Charles Stuart is as rightful king at this day as the Lords are rightful Lords. And if it be objected that Charles Stuart has forfeited his right, there are of that line (fn. 4) that have never forfeited it. So then there is no foundation for any thing that hath been done since. All hath been a mere usurpation of the House of Commons.
In doing this, we shall draw all the soldiers upon us, and all purchasers of public lands, and a great deal of confusion. And I do desire to see how this dilemma can be avoided, and where the difference is, that they could make a law, to one end good, but, through insufficiency, not to another. To begin upon such a foundation will inevitably shake yourselves.
I wonder how it can be urged that the House of Lords sit upon a legal right. Sir, the Long Parliament made many laws. Either they are of force or not. If they be, why do we dispute them ? If they be not laws, then the Petition and Advice is no law. The Petition and Advice is a thing I was never for; I never gave my vote in it, yet is it a law and in being, else, I am sure, the Scotch and Irish members cannot possibly have power to sit here. (fn. 5) I wonder any such person should argue so, seeing they sit only upon that foot.
Either the Petition and Advice hath power and authority in it, or it hath not. Consider that first, whether that be a law. I pray, let no member sit here that hath no right to sit. If Scotch and Irish members sit upon no right, it may afterwards reflect, to make void your law. I speak not against their right in equity to sit here, (fn. 6) but only by way of argument's sake.
If then, the Petition and Advice be a law, before you go any farther, you must consider of it as in being, and then think how to limit and bound the Other House; and then you must have their consent to the bounding of themselves. These you may limit and bound; but if you declare the old Lords' right, those you cannot limit. They will tell you, they have and know the bounds already, they sit upon as good a law as you do, and they will not be bounded by you.
Divide the lands of the nation into twelve parts. The Peers at this day have scarce a twelfth part, when they had two thirds; yet they must have a co-ordinate power with you. It was reason that they had a co-ordination. The same reason is not now. Many gentlemen now sit in this House of Commons, that have as good estates as any of those Lords. You shall find that forty-two of them have not forfeited. (fn. 7)
If you go this way, I doubt you will lay a foundation for Charles Stuart's coming over. The other Lords you need not fear. I would have in first place, what you mean by this Other House, else you shoot at rovers. It is a vain thing to bound them. You are bounding, and do not consider what it is you would bound: till then you run but a loose bound.
Major Beake. Because the question is perplexed, something else ought to be previous. Let it be your question before you bound, whether the old House of Lords be in being, or whether this House now sitting have any evidence, or the Other House shall be the House of Lords.
Captain Hatsell. We talk of going step by step; but, if we vote in the old Lords' House, we do not only go by steps, but we make a pair of stairs for Charles Stuart to run up to the top, into the room of the single person.
You cannot make any bounds fit for all persons. If you vote the persons first, you can never set their bounds, for they must vary, according to the persons. If you respect the persons in the House now, you are led into a wilderness. It may fit the persons now, and not fit them afterwards.
It has been propounded, as to the bounds, whether those that sit in the Other House shall sit there hereditarily, or by succession. I think fit to begin there. I would have you first declare what rights the old Lords did legally exercise. Examine those powers.
I would have it considered, that which is propounded, that it might not be hereditary. And, as to the first, I think the old Lords never sat there hereditarily. They never sat by birth, but according as they were called by the king's writ. They were sometimes called, and sometimes left out. No Lord could challenge a right to sit there, without a writ. It was never intended that children, fools, and madmen, should sit there. They were not called, for those that sat there were called to advise, and they could not advise that were not qualified for it. Is every man fit to advise a king ? the writ says "advise." It is against reason that unfit persons should be called. Therefore, there was no power or right to sit there by inheritance, but by election. It may be, they had it for life; it may be, not so long. Some were called one Parliament, and left out another.
You are pleased to order that the Parliament shall consist of two Houses. This day you have ordered to bound it The best rule to pursue is, what is for the safety and good of the people, which should be the rule of this debate.
There is a necessity of bounding those powers which have been formerly exercised, which did consist of two parts, the judicial and legislative, that our late revolutions have awakened us to care for. When our powers are agreed on, we shall best know to what persons to fit them.
You are told that they were formerly considerable, and had once the greatest interest It is now told you that most of their sand is run out into your glass. (fn. 8) The Lords' House is melted down into the Commons. If you set them over you as high as formerly, I doubt your sand may run into their glass.
But you are resolved of another House, and some would have it hereditary. I would have it first considered if they shall be hereditary; I am against that opinion; for they may be unfit, by poverty or want of bread; and, being judges, they may be corrupted. I would not have them to judge in any thing between commoner and commoner, or that concerns a commoner, until the cause be transmitted to them from hence, as in writs of error, &c. I have known judgments suddenly given in that House, against decrees in Chancery of sixteen years standing.
Mr. Jenkinson. I would begin with the judicial power. There is less danger in that than in the legislative. It is nearest to come to your end. But to begin with the hereditary is to begin with that which is not so dangerous.
Lord Coke says, that any called to that House have a feesimple right to sit there. (fn. 9) Be he poor or weak, he may sit.
I am against their being hereditary. It will draw after it all inconveniences and dependences that formerly attended them. Three parts in four deserted in the last war. It is for the safety of the nation to declare they shall not be hereditary.
Sir John Lenthall. In the beginning of the debate, I was for opening the doors to such of the nobility as have been faithful to you, and all persons of the Other House that were capable. I am not convinced as yet of the contrary.
Their merits in ancient times were great. Great benefits we have had by the old Lords. Magna Charta was obtained by them, (fn. 10) in such a time when the Commons scarce durst ask such a thing from the King. The assistance they gave in the late wars, was likewise very memorable. I shall come now to what they obtained from the late King, whereof Magna Charta was but a counterpart.
If this House be not hereafter so well qualified as it ought to be, then will this screen (fn. 11) be of great use.
I am for another House; for suppose religion should be in question, and if the single person be alone, he must pass it. If men of strange religion should come in, and if there should not be a screen, our religion were gone. (fn. 12) Our laws may be also destroyed by the same rule. I move to examine the power they have by the Petition and Advice. Let the limitations there be the rule; or, if those be not restrictive enough, bound them farther.
I move to consider first, which of the Houses you will have, and then fit the powers and bounds. Your powers, haply, may not fit the old House of Lords. By the Petition and Advice, the Other House have no legislative power given them, and if you bound them upon that point, you will give them something they never had.
Mr. Attorney-general. I move to make it the ground of your debate, that they shall not be hereditary. The old Lords had clearly an hereditary honour, but hereditary right, as to session in Parliament, they had not, without being called by writ. (fn. 13) Formerly, they had no stinted number. Anciently, three Lords made a House, and the absentees sent their votes by proxies.
I am perplexed how to give my vote. If old Lords, it may be, I shall give my vote that they may be hereditary, and have a negative. But if the new Lords, that are your creatures, I shall give them neither.
It was not so in Queen Elizabeth's time, that three made a House of Lords. Of late there was packing a House of Lords. They were the King's creatures. Let us go as far from the old constitution as we can. Take in some of them that are capable. Let us nourish the best flowers, and husband them for our best conveniency.
I would have the hereditary question go first, and then the judicial. I am against hereditary lordship, for the reason why his Highness refused king; (fn. 14) because he knew not what he that came after him should be, a wise man or a fool. I see plainly here is a great inclination to come round again. It is to bring in old Lords by degrees, and then, consequently, one who I hope my eyes shall never live to see here. (fn. 15)
On the other side, to have another House; that will be a dishonour to the nation. I shall scorn it as much as any man in the nation. If we have a House of mean people, we shall contemn and despise them.
Sir John Northcote. It is apparent the old Lords did not sit by an hereditary right. (fn. 16) You may go upon your old grounds and yet preserve that.
If you give them a negative, it will be clear that the single person shall have two negatives; for he shall have them his own. Put the question whether the other House shall consist of the ancient nobility that have not forfeited their rights.
Mr. Raleigh. It appears not to me but the old Lords had a right of sitting by inheritance. A letter was sent from the Lord Keeper to a Lord —— (fn. 17) that was called to the House of Lords, notwithstanding his writ, to forbear sitting; but he prayed judgment if for any letter he ought to forbear. It resolved he ought not, which proved it hereditary.
Mr. Knightley. A man may be worthy in one Parliament, and unworthy in another Parliament. I am not able to give a Yea or No to hereditary; but if you say that their claim is not hereditary, I can give my vote. Some, I believe, in the Other House would refuse hereditary, as they do a negative, if it should be given them.
Whether do we debate here upon a supposal that we are boundless and without limits. I hope, while making limits for others, we make not ourselves boundless. If so, we shall leave them very little power. I know it was once esteemed our right to vindicate our own privileges, not to take away those of other men.
It is pressed, the King can do no wrong; I hope we shall not do wrong to any, much less to a whole body of a House of Peers, to take away their rights. You have a difficult work in hand. Put no question that will involve us in a wrong. We are with freedom ourselves.
We are called to consult with nobles and great men. We have had no complaints from them. They cannot properly complain to us. I suppose they complain to their own House if any such thing be. I know not why we should take notice of their privileges. You cannot create power. If any thing amiss in their power, why may they not join with you, as formerly Peers have done, to limit themselves ? Why may we not consider a House in being, and consult with them, in limiting and bounding their own persons and powers ?
I cannot understand their arguments that say the Lords were not hereditary. Whether it be for the good of the people that it should be so, or not, may be a question. I find in some Parliaments a whole House called, and all left out the next Parliament; but this was in times of troubles and difference between York and Lancaster, when the nobles were abroad in the wars.
The case cited was the Earl of Bristol's, and by judgment of the House of Lords, he was admitted. (fn. 18)
Another was Lord de la Mare, disabled by Act of Parliament, and yet his son claimed it, and was admitted to his right. (fn. 19)
I can by no means apprehend that you should first define the Houses, and leave the powers to be determined by law This is a leaving of fuel for posterity. You must determine the powers. This may well come under this head, that the power shall not be hereditary.
It is fit what power they shall have should be stated here. They anciently claimed very large powers, and not all for the good of the people. They have judged of the lives of the Commoners and of property. It is not for your service that they should have that power, or that the bounds should be so uncertain.
Where the old Peers were called, if there was no limitation in it, they could not sit otherwise than pro hac vice; but if a limitation were in the writ, then they might sit according to that limitation.
Colonel Terrill. I am of opinion that the old Lords sitting there, were not hereditary. They were called by writ as we are, and could not sit longer than Parliament lasted; but this happened where a patent was made to a Peer, and the heirs male, of his body. Therefore the lords that claimed, had a right, and whether that right were taken from them I shall spare to speak of it, till the debate come properly before you.
Let us go on clear grounds, that every man's judgment and conscience may be satisfied. We find another House, and if his Highness had not called them, he had not done his duty. Unless you bring them to be a House of Peers, I see no power you have given that is affirmative, but only negative.
I would have you first assert their powers. I find them not in the Petition and Advice. The debate has admitted a right in this House to determine the powers. To follow the tract of the law will lead you into many inconveniences. The Petition and Advice is not large enough for you to debate upon.
Sir Richard Temple. I would neither look at one House nor another; but would have it the matter of your debate what these persons shall be, under such bounds and limitations as you shall agree them; what the persons shall be that this House shall consist of, under such bounds, &c., as this House shall agree.
Colonel Cox. I have been always jealous of this other House. It was, first, in the last Parliament, that the Protector should nominate, and we approve; but the approbation slipped out, I know not how; which hath since made me think of the tale in Æsop of the Fox, who desired only to get in his head, and he would after bring in his body.
Sir Anthony Ashley Cooper. If you would have us all of one mind, your question must be as clear as may be. The first question ought to be, whether there be a right or no; for, where there is a right (in all the actions of a man's life), there is a duty; and then matter of convenience or inconvenience is out of doors. Two rights are offered to be in being; one of the old Lords, the other of the other House, or new Lords, who have already a vast power in their hands, and dangerous to the people. Some tell you the right of one House, some of another. I offer it to you that it is not fit, and if it may not be dangerous to prejudge or preclude either of their rights before you agree to the persons. If there be a right, then all their boundaries must be offered to them, whether they will pass them or not; and I have seldom found men in power to part with it upon easy terms. It is therefore necessary to be cleared, how far we are to deliberate and restrain them in this point.
Matter of right and of conveniency are two different things. Therefore, now take into consideration these two claims. Consider first, whether the old Lords or new Lords have a right or no, and then go on to bound them.
Mr. Swinfen. I shall speak to your question. Scarce any gentleman has spoken ad idem; because something is to be cleared first. The same reason that led you before must lead you now. There are two Houses in debate. It is, therefore, necessary to have a previous question, whether the Peers be excluded.
Those that da debate for old Lords, must say, hereditary; those that are for the other House, must say it is not. This must be cleared, else we cannot freely vote. I am for the old Peerage, and they were as hereditary.
Mr. Godfrey. I hope, without expense of time, you may come to a question. I find the same difficulty upon you now as was the other day, when you debated about the two Houses. On one side the old peers, on the other, the other House, by the Petition and Advice.
I see the same tenderness now, by a side vote, to exclude the right of the old Peers, or assert the new, by the Petition and Advice. You may word your question, to be the subject of your debate, that it be a part of this bill to debate the persons sitting in the other House of Parliament, to have an hereditary interest and right to sit and vote. By this you neither exclude the right of any, nor assert the right of any Parliament.
Sir Walter Earle. We are all bound to maintain their rights. If you lay that aside, you lay aside their inheritance. You bring them into a worse condition than the poorest cottager in England, if you take away what is their inheritance. That is your proper question. I question the validity of that vote that called them useless. (fn. 20)
Mr. Gott. They found the unsuitableness and inconveniency of a Commonwealth with the constitution of the people. Then they came to a single person and a Commonwealth; but neither of these were unius seculi. The ancient constitution we are again come to; a single person and two Houses of Parliament.
I do desire not to declare the persons now sitting in the other House, nor exclude the old Peers. Leave yourselves at large. A many great men are in the other House. I would have some nobles. Our writ is to consult with great men and nobles. There are some that have a good sword. I would have some there that have a good purse; and both together will make a good balance. Nature and necessity oblige us to determine upon the persons; what persons the other House shall consist of.
Mr. Trevor. I am satisfied that the other question is not clear. I am not bound to put such a question. When in my conscience I am satisfied about the right, but not satisfied about the practice, the consequence will go very far against safety. I doubt if you let in that, that it will not be practicable.
Captain Hatsell. I am not ashamed to say, I am afraid, when I am afraid. If you let in this question, the consequence will be very dangerous. What hath the son of Lord Goring (fn. 21) or Lord Capel (fn. 22) done, to forfeit their right. If you admit a right, there is no keeping them out.
The business of Mr. Streete and City of Worcester (fn. 23) was taken into debate.
Mr. Finch (fn. 24) was counsel for Mr. Streete, and Mr. Latham for Worcester. Mr. Streete and Mr. Finch sat together at the bar.
Mr. Latham. We will proceed against the person first, and that, inasmuch as he was a member. We expect we shall prove it well. If he had only lived in the garrison, it had not been enough; but we shall prove him in arms, and if my in structions fail not, it is as pregnant proof as ever came before you.
Mr. Smith. I know Mr. Streete. When the city Was a garrison, I have seen him, ride with gentlemen, well mounted, with pistols and holster. This was in 45, when the garrison was for the King. I believe those gentlemen were of the King's party. I have seen him ride so, alone, to and out of the town. I never saw him walk or talk with any persons but those that were, and are disaffected. I think it was Sir William Russel (fn. 25) he was in company of.
John Butler. In the time of the King's garrison, I have seen him several times come on a good horse into the city, from his own house, with pistols, holsters, and sword. I was a prisoner. Several times, when the trumpet has sounded, I have seen him amongst their company in the street. I cannot justly remember time.
Thomas Eaton. I have seen Mr. Streete three miles from Worcester, in the month of June, about the middle of the war, before the great battle between Waller and Ashby. (fn. 26) There was a great sickness at the time. On a Lord's day, I saw Mr. Streete come to church as other officers did, with a sword. It trailed on the ground. Sir Gilbert Gerrard was governor. I have heard he had a house very near there. He and his sister were there. No soldiers were there at that time.
Mr. Collins. In May, 46, we were commanded to march under Colonel Morgan and Colonel Birch to Ombersley with all the forces in Worcester. In our way we met Mr. Streete, and other persons of the King's army, and took him prisoner. He was exchanged for a kinsman of mine. We could not have him released for two soldiers, but as soon as ever Mr. Streete was taken, on their own accord, they sent to exchange him, and my kinsman was released, and he released.
Mr. Finch being asked, if he did accept of the exchange, answered, he did not accept of the exchange, and insisted still he was not in arms. Mr. Collins was a Committee man, yet did never prosecute against him.
Mr. Latham offered now to prove, that he kept company with cavaliers; but that was taken off presently as a thing not material. The counsel said they only offered that as a circumstance. It may be all the town was disaffected.
Mr. Simon Moore, a minister. (fn. 27) Some civil carriage has been between Mr. Streete and me. Mr. Streete came to give me a visit, where, in civil discourse, it was ordinary with him to swear by his faith and by his troth.
I heard that Mr. Streete had a mind to stand. Some Christians intreated me to interpose with Mr. Streete to prevent it. I denied it, but being prevailed with, I sent to a special friend of Mr. Streete's to acquaint him that we wished he would not stand. I said, I fear he will do himself more harm than good. I heard one say he had been in arms. The man that first accused him was an honest godly man, Richard Hodgkins.
This Hodgkins told him all that I had said. That night Mr. Streete came to my house to give me thanks, as he said, for my civility. He told me he had never been in arms. Then he swore by his Maker that he would sue and undo that man that should give evidence against him.
Then he said he would steer by Mr. Collins's directions. He was in the next room, and I said it is well, you may meet; but as soon as he heard Mr. Collins was there, he went away in an anger and would not hear him.
Mr. Moore gave an account of himself, that he had been faithful from the beginning. He never prosecuted against him for swearing. That is an ill way for a minister to take. He has reproved him, and did not consent to his being chosen. He bears no part of the charge to prosecute.
I do not call Smith to an account for want of circumstance as to listing and quartering; but as to the time of 45, and Sir William Russel, I shall except his going to church with a long sword with his sister. I hope that will not stick with you.
I shall only answer what sticks most: the evidence of a member. He was called from the University, to manage the estate left him by his father, to this place, where we find him thus prosecuted. We grant he wore a sword, both in the town and out of town, but never employed it against the Parliament.
He that dwells in Mesech, (fn. 28) must keep company with such; yet Mr. Moore was pleased sometimes to keep him company. I shall reserve my examination, as to matter of law, till afterwards.
Mr. Thomas Streete. About the year 41 or 42, he went to Oxford. He came from Oxford in 44, his father was dead before. His father and mother made him executor. He left Oxford, as I have been informed, because he would not take up arms there. I have inquired of two hundred that never heard he was a soldier.
Mr. George Streete, his brother. I have seen money disposed of that my brother had given to the Parliament soldiers. He procured me a horse and furnished me with arms the year before the Scots came to Worcester, and said that he would assist me. He said, he would not come nigh that party that came to Worcester, and advised me not to come near them; for, he said, all that came to them would be proceeded against as traitors.
Mr. Moore preached Job 27 last verse, and declared that the people should clap their hands and hiss at them. They were gone out like the snuff of a candle. Another witness said the same that the other said of the minister, clap your hands, &c.
Richard Hodgkins. Mr. Streete sent me to Mr. Moore, who said, if Mr. Streete stand, I wish I had known two days since, before I was otherwise engaged. I would have engaged all my friends, but rather than be a hindrance to him, I will be out of town that day.
Mr.—— (fn. 29). Mr. Streete sent me to Captain Collins. He said he would not appear against any townsman; but would take his horse and go out of town rather than hinder him, and for aught he understood, Captain Collins did well approve of his standing.
A man then, (fn. 30) to save his sustenance and estate, may be found in evil company, and not be guilty.
Mr. Latham. This gentleman hath not only done the part of an advocate, but of an exquisite orator, (fn. 31) and, under his pardon, a judge too, to direct you what to do.
It is notoriously known that no man durst wear a sword in a garrison, but such as was a friend. He was seventeen years old at Edgehill fight, and twenty years, when at Worcester. He might at that age have done as great an offence, and been punished as highly as if double his age.
Lieutenant-general Ludlow moved against what Mr. Onslow had moved that it may be, of what Mr. Moore had said in his sermon something might be true. This might have been forborne; such a reflection was ill said before strangers.
Sir Arthur Haslerigge. I move that we proceed no further in this business, other than to report the matter of fact to the House. I wish the Chairman to read his notes, and any member to take his examination, and the state of the case being agreed to, report it so to the House.