Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Monday, February 28, 1658–9.
Mr. Speaker took the chair at nine.
Mr. Cooler prayed.
Out of the Journals.
Colonel Bennet reported from the Committee to whom the Petition of Mrs. Elizabeth Lilburne, widow, late wife of Mr. John Lilburne, (fn. 1) deceased, was referred, the proceedings of the late Parliament, in January 1651, concerning Lieutenant Colonel John Lilburne, deceased, entered in the Journalbook of that Parliament, which were read. (fn. 2)
He farther reported, that the 22nd January, 1658, it was moved by the Council, that his Highness, in respect of Mrs. Lilburne's poverty, would, by his pardon under the great seal, discharge the fine of 3000l. imposed on Lieutenantcolonel Lilburne, payable to his Highness and the Commonwealth. That Sir Arthur Haslerigge had, by deed under his hand and seal, released the 2000l. given to him; that Mr. Squib, by like writing under his hand and seal, had released the fine set to be paid to him; that Mr. Molyns had referred himself to the award of Colonel Okey and Colonel Bennet, as to the fine set to be paid to him; and that Mrs. Lilburne had likewise submitted to, and undertaken to perform their award; and also, to deliver such papers to Colonel Bennet as she had in her custody, relating to the matters for which the fines were imposed, to be burnt, without keeping any copies of them; that Mr. Winslowe, to whom a fine was likewise set to be paid, was since dead at Jamaica, without any heir, executor, or administrator in England; and that neither himself in his lifetime, nor any other since his death, had ever made any demand of it: that Mr. James Russell, to whom a fine was also set to be paid, was likewise dead, and that the fine set to be paid to him, was never demanded either in his lifetime, or since his death : that Mrs. Russell, his widow, had notice to attend the Committee, but neglected to do it, as not intending to have any benefit by that fine.
He reported also the opinion of the said Committee; That a Bill be brought in, and offered to the House, to repeal the Act of January 30, 1651–2, concerning Mr. Lilburne. (fn. 3)
He offered a Bill to that purpose; in regard Sir Arthur Haslerigge, Mr. Squib, and Mr. Molyns, who had fines given them by that act, had remitted them.
Mr. Knightley. I move to put off this business till some morning, then bring in a Bill.
Mr. Bacon. Before a Bill can be brought in, you must resolve to agree with the Committee.
Sir Arthur Haslerigge. I move that you would only declare that the Bill is void, in regard there was no prosecution upon it.
Mr. Raleigh. I move that the Bill be brought in. Mr. Winslowe and Mr. Russell, who had part of the fines, are dead, and no executors to be heard of. Winslowe died in Jamaica; yet, unless they were satisfied, you cannot repeal that part as to them.
Sir William Wheeler. You cannot absolutely take their rights away.
Mr. Onslow. Such hasty acts of Parliament deserve a repeal. There was no entry nor engrossing of it. If it appears to be an Act, then it will be worthy, your pains to repeal it.
Sir Walter Earle. You may give order to bring in a Bill to repeal that Act, and then may add what proviso you please, to save Mr. Winslowe's and Mr. Russell's rights, which is but reasonable.
Sir John Northcote. You allow it to be an Act, if you order an act to be brought in to repeal it. I doubt it was no Act. It wanted the formality of passing. I believe it was not ab initio an Act.
Mr. Knightley. I move that an Act be brought in for annulling the judgment and proceedings against John Lilburne, so by that means you do not allow it to be an Act.
Resolved, that a Bill be brought in for annulling the sentence and proceeding had in this House against Lieutenantcolonel John Lilburne, and that a Committee do prepare such a Bill for the House.
Mr. Knightley, Sir William Wheeler, Colonel Birch, Mr. Raleigh, Mr. Swinfen, Sir Anthony Cooper, Sir Walter Earle, Sir John Copplestone, and Mr. Edward Turner, are appointed to be a Committee: and they, or any four or more of them are to peruse the Journal-book of the House on every Saturday weekly, or oftener; and to inform the House (if there shall be cause) concerning the entries of the orders and proceedings of this House, whether the same be duly made and kept, or not.
The order of the day was read touching the bounds and powers of another House.
Altum Silentium, a pretty while.
Sir Arthur Haslerigge. I move that the Petition and Advice be read, as to the bounds and powers of the other House.
Sir Walter Earle propounded to take the perambulations, or bounds, mentioned in the honourable Petition and Advice.
Mr. Onslow. If you bound their powers according to law, I hope you will not forget to look into the good old laws, Magna Charta, and others; and not begin with the Petition and Advice, and conclude that a law, which is not yet determined to be a law.
Let us first debate whether the Petition and Advice be a law or no, before we take it for an Act.
Mr. Starkey. The chariot of our affairs moves slowly, because one wheel is yet wanting. Every thing invites you to a speedy resolution. I am neither for leaping over hedges and ditches, nor for so much retrospect as to look back upon the old peerage, nor to the right nor left-hand; but to look to the present establishment, the Petition and Advice that settled the other House, for the authority whereof I will say nothing.
I look upon it as the ark that has preserved us in the deluge of anarchy and confusion. I can comply with it, though haply I should not have had a hand in it. Allow it, at least, as a ladder for your building. Afford it a standing, until your fabric be finished.
I find another House embarked with you in this ark. They have honour given them by this Petition and Advice. I know not which is the elder brother. I never knew the House of Commons less honourable, because the House of Lords was right honourable. Do not take from them that patrimony, which their and your common ancestors hath given them. You cannot legitimate yourselves and deny them; you all claim from one common ancestor. We are twins. Why should we strive, therefore, being brethren. Let us not struggle in the womb, to destroy one another. Let us rather, like Harpocrates's twins, live and die together. Let us twist and unite. A three-fold cord is not easily broken. As they are our brethren, let us timely salute them, that so we may go hand in hand together, towards the finishing of a happy settlement.
Mr. Knight ley. You have a question before you, to bound, but the question is whether you can bound or no.
How should we bound this other House ? We go, like men of Gotham, to hedge in the cuckoo. Some talk of Magna Charta, and the Petition of Right, and some will have the Petition and Advice to stand in competition with them. I think the Petition and Advice does not set up a House of Lords.
I see you cannot meddle with a horn or a hoof of this other House. They begin to take it ill already, that you come not up to them, if fame be true. Talk here these twelve months, and then say you cannot bound. They do you service. Let us look to our own House, not the other. There is another House already. We are called by writ; the writ says, to consult with the great men and nobles. (fn. 4) I know not where they are ; but there are some, and I doubt all our labour without them, will signify nothing.
If we cannot have what we would have, let us have what we can get. Let us stand as we are, and they as they are: else we may sow much, but we cannot reap. Were we tenants in fee, we might say something; but we are but tenants at will, on one foot with them, and have less than they have.
I would have this debate laid aside, else we can do nothing. If you please, let these sit as they are; but let us make a drawbridge, and propound a Bill to take down their number, and for the future, let none be called thither, but such as shall be allowed by this House. If in future we should see any thing in that constitution defective, we may mend it. Declare for the present, as part of the Bill, that no member hereafter be called to that House, but by your approbation, and that no member be chosen out of this House thither, without your consent, and that is my humble motion.
Colonel Cox. I cannot concur with the gentleman that spoke first, (fn. 5) that told you of Magna Charta, and a House of Lords. The old House of Lords was taken away by Act of Parliament, which had reason, law, and authority; as good a law as that Act was to take away the single person. If we bring in old Lords, we bring in old lines. You set open the doors. If that House be not taken away, I know not what takes away the interest of the King. If he, which was the fountain of their honour, be laid aside, much more may they be, which do but derive from him.
We talk of the Barons' wars. I have seen the pedigrees of most of the nobility, and there are not above six or seven families left, that can pretend any title from those that were in the Barons' wars. (fn. 6)
If you please by an Act, with concurrence of his Highness, let those that have fought for, and with you, and have stood faithful, be restored, and have right to sit in the other House, not upon any old account, but to have originacy from this House, and none to come in, but by approbation from hence. I would also have a number of men that have been faithful, and ventured their lives, of good estates, that may be a balance ; I would have his Highness to present three, and you take one, and likewise you three, and he choose one.
When at the rising of the House, in that Parliament, a Committee was named, touching the explanation of the Petition and Advice, they meddled with this clause concerning the Lords' house, which was not committed to them. (fn. 7)
As to taking that clause, which put the approbation of the other House in the Protector, I then told the Speaker, I suspected that many of these gentlemen that brought in that clause, had a mind themselves to be called to that House, and feared they should be left out. (fn. 8) I since find many of them there, I shall not say but they are persons of worth. I would have us know the men, before we debate their powers.
Colonel Terril. I see we are upon a difficult point, and before we conclude this debate, we must speak plain English, and come to a right understanding.
There are two other Houses already in our eye, besides our own; the one in right, the other in fact; the one in forma pauperis, contending with the other, cum domino manorii; the right of the one suspended, not extinguished.
While God has given me a tongue I shall speak my mind. I shall not reflect upon those that are in possession.
It is the custom and usage of all nations under heaven, where there are nobles, princes, lords, and grandees, those are the persons that have been ever called to the highest councils, parliaments, diets, and assemblies. This must arise from something of natural right and reason; as being looked on, in all ages, to understand the state of affairs best.
I shall only speak of England. We have history beyond our own records. Look from Brute (fn. 9) to this age. Among Romans, Saxons, Danes, &c. the great men of the nation, the barons and nobles have been consulted with in all councils and assemblies, especially in Parliament. Until about 49 Henry III., the stile still run, the King and his nobles, the King and his barons. I cannot say the Commons were then /?/ce is taken of them until then. /?/ run in that tone, King, Lords, and Corn/?/ Magistrate is the same in construction of /?/ judges would never venture upon a law, /?/ of all three estates. If there were not /?/ ds in a law, they would never do any thing upon it. The Barons were never omitted in any law. The Commons are sometimes not named.
Who were they that stood up and asserted the liberties of the people? Stood they not up for Magna Charta, with King John and Henry III. (fn. 10) Did not they, in Richard II.'s time, contend and regain their lost liberties for the people ? To come to our own times, which we are too apt. to forget, when Parliaments were grown contemptible, and no man durst, under less than a capital offence, (fn. 11) mention a Parliament, to move the King to call one; we had then Lords, some twelve at least, yet living, that took courage even whilst the King was in the midst of an army ; they went with a paper in one hand, and their lives in the other, (fn. 12) to solicit the King to call Parliament. I know there were but a few hairs between life and death as to divers of them. I shall name one, the Earl of Manchester. Judgment had passed. He has lived to see their heads off their shoulders that would have, had his head off. (fn. 13)
The Barons were as stout and resolute for the rights of the people then as ever. Of all those twelve, eleven stood right to the cause. There was but one that left you. The Parliament always looked upon him as the best of them that adhered to the King.
There is a statute, 5 Richard II., which enacts, that if any of the Barons do not appear in the Parliament, they shall be amerced; and another, in 31 Henry VIII., that appoints how they shall be placed after their appearance. So that here is custom, prescription, common law, statute law, and reason, for them.
We have forgot, I doubt, what was done in our times. The statute of 16 Caroli, for Triennial Parliaments, (fn. 14) enacted that the Lords and Barons shall be called to Parliament. Here is nothing wanting for the establishing of any thing which we have made to supply our Solemn League and Covenant. So here are both civil and sacred obligations. Give me leave to put you in mind of a military one too, at Sionhouse. A noble person, (fn. 15) I believe, remembers it; it was a declaration sent up to the Lords by Sir Hardress Waller. (fn. 16) Their declaration was that the Army will support the Lords' House, and the words are "live and die with it." (fn. 17) All were protestations to preserve rights of Parliaments. (fn. 18) But, the right being theirs, they are now blown up by I know not what nor whom. The act for perpetuating the Parliament, saith that the Lords' House shall not be adjourned nor dissolved without their own consent in Parliament. (fn. 19) What is wanting to preserve them ?
I cannot wholly blame them, that took them away ; they had a government in their eye, which they could not set up till that House was taken away; a Commonwealth which they did not live to finish. And that House was then a block in their way, necessary, in order to that undertaking, to be removed. I shall not speak for nor against it. Possibly if that government had been finished, it might have been good for the people. All governments are alike by divine law.
But what is it which that Act saith or doth ? (here he recited the Act of 1648,) when a Parliament then consisted of two Houses, as well de jure as de facto. One says (fn. 20) it is enacted by Parliament, and yet one of the two Houses never consented to it. It was inconsistent for one House to say the other was useless. Might not the House of Lords have said the same of this House, the Commons. There was a contradiction in it. I say nothing of them that did it; they having another thing then to do.
The Lords were never called to any trial, never accused, nor impeached for any thing they had done; yet they must be laid aside. It was not the law of the Romans so to do.
I can mind you of nothing done by these Lords, but I shall tell you how, in the latter time of Henry VIII., there was a person whose name was (fn. 20) and is famous, one Cromwell, (fn. 21) who was attainted of treason by the Lords' House, and lost his life. He was condemned, though never brought to trial ; (fn. 22) a brand for ever upon that Parliament.
Sir, there is something of the hand of God in it, that one of that name (fn. 23) should have a hand in revenging of that blood which was so unjustly taken away, by setting aside that House which was so guilty of that illegal judgment. I suppose this House was not altogether innocent of the same Act, (fn. 24) for it hath been sensible to purpose of the same punishment, for it is well known how even this House also was dismembered and dissolved by the same person.
A late author says that a Grand Jury may as well vote down the Judges; the Commonalty of London vote down the Lord Mayor and Aldermen; nay, the judges in Westminsterhall vote down this House; as this House the Commons vote down the Lords. They were the superiors.
The King, indeed, was the fountain of the honour. They had their right to sit there only by grant from the King; either by patent, or Parliament-writ. But when this was done, the King himself could not recal it.
Quo ligamine quid ligatur, dissolvitur.
If a Parliament do it, I say then it was legal.
The House of Commons did, in 48, declare that the House of Lords being by necessity taken away, the protestations were to be dispensed with. I would have you declare that they are of force now.
I move to restore the old Lords to their ancient right, and I hope in time you will repeal that Act made against them; for two Houses being in our eye, we are obliged to set up that which hath most right. It is right that shall lead me, and will lead me through the world. When what I said before is unsaid, it may receive a reply. I shall say nothing against the other House in possession; and I presume they will not take it ill, that I spake for those that have a right by all laws in the world.
I therefore move to fix upon one of those two Houses before you go on to bound them.
Consider which shall be the House first, and then let us debate the powers. I would have the old peers restored.
Mr. Attorney-general. I shall not suppose whether Charles Stuart be at the bottom of this debate or not. But let us well consider whether Charles Stuart be well gone or no. If all the laws, constitutions, civil and sacred, which concern the Lords' House be yet in force, I am sure none are disabled, and that law which concerns Charles Stuart is not yet void. You must leave the Chief Magistrate to come in as he can, and the old Lords are in already. I know not how you can refuse any of them. Consider whether in prudence you can admit this. Peerage will necessarily bring in regality, high and great enough.
Admit this argument; and nought has been done since 48 that is good. All public lands, sales, &c. are gone.
I cannot say there is a custom or prescription for what we are now under. I hope none will, by a side wind, lay all things aside that have been done and settled since.
Let us speak plainly out. You need not bound them. Then each House will call their own members. You must not touch their members. As affairs are now, many of the ancient peerage are beyond sea.
I hear no man move directly for Charles Stuart; but it is all one to me if that be at the bottom of it. If you bring in one, I know who will bring in the other.
There are laws, and I hope they will pass, and be taken for laws till you declare otherwise. Else from 42 to 48, from thence to 52, from thence to 53, and from thence, hither,—all are void.
I shall speak for the safety of the nation. This other House now in being will be of great security to this nation.
This House, that sits here, is but in the nature of a servant at will, dissolvable, here to-day and another by to-morrow. You would have such a body as would be engaged with you clear through.
Now the other House, which in my judgment you should make and mould, I think you should take in such as have been faithful to you. I know not why the next Parliament may not be all, or most of them, the sons of Cavaliers, and if the other House be so too, where are you.
Therefore I offer it, as our security, to take first into consideration the House now in being, those persons that sit there; and then declare that for the future, none shall sit there but such as shall be approved by both Houses; not to dispute the right, but, as your present condition is, to build upon this House now in possession. Let us not now think what was'the ancient right; but what is best for the good and safety of the nation.
Colonel Terrill moved to explain himself.
Sir Walter Earle moved he might speak.
Colonel Terrill. I am not against those that are in possession, if his Highness and this House please; but that they may sit there only for the sakes of those that stood faithful to you. I would have us build upon that rock, the old foundation, and admit such of the old Peers as you shall think fit. This is that which I drove at.
Sir George Booth. I rise up to correct that mistake of Mr. Attorney-General, that if you admit these Lords that are capable, you break in upon all that has passed since 48.
We are obliged to Mr. Attorney-General, who tells us plainly that we are upon a new foundation; that he would have this House in being to be the other House. We must admit of that, and none other. If this be so, I pray, Sir, what becomes then of Magna Charta and the Petition of Right, which make Englishmen freemen, and not slaves. Must they either be fought over again or shamed, they hanging but upon the bare thread of this Petition and Advice, which is disputable.
I do not know how in justice you can lay that blemish upon those persons that have so eminently served you, to lay them aside. If the inconveniency be great to admit them, you may answer, "If there be danger on that side, there is as much danger on the other." My motion is, that those that have been faithful to you may be this House of Lords, not exclusive of others.
I know very few of the other.
I have heard that some of them have taken strange things upon them, at other times, as Major-generals, to meddle with difference of meum and tuum. (fn. 25) There hath been such persons in this nation, in military employments, that have told men that the law was in their breasts. If any such be in the other House, they will be fit to revive and put in execution that doctrine again.
There was a difference between two states of Italy. The Pope, as a common father, desired to reconcile the difference, and moved them to refer themselves to him, to compose the matter. They both refused his mediation. The Princes said to the Pope, "You have the spiritual sword; we have only the temporal sword. If we give you both, you will be too hard for us." I doubt this may prove so. If you will put the civil sword into the hands of those that have the military sword too, I think it cannot be safe for you.
Let these persons that have not forfeited (some aspersions upon them, I wish they had been spared,) let them be your foundation, and take what other in, you please.
Colonel Clark. I wish we may come well off. It is said the Petition of Right and Magna Charta are laid aside. He might as well have said you wanted one of the triple cords, (fn. 26) the King. I would have been glad to have heard his reasons for it. Then all other laws are laid aside. I would gladly hear his reason.
The best argument is that of right. He says it is fundamental in all nations, to call those nobles.
Every nation hath a power within themselves, to alter the government as they shall think fit.
If every nation have that right, so God does please to order the opportunities, and the powers, towards the alteration of constitutions. And be it right or wrong, if it be once done, I have nothing to say against it. One power outs and alters another. The plea of right is Out of doors. By God's disposal they are gone. Let us see our constitution explained in the Petition and Advice. The sole question is now, whether we shall reject this House in being and possession, and restore the old Lords.
We have beaten the bush, and not come plainly to the point. Seeing there is another House in the room of that House of Lords, why may not we have the same good of that House as of the other House of Lords ?
By law they stand, and if it be intended to remove them, it must be by Bill. You have declared the Parliament to consist of two Houses. Thus, another House is in being by your constitution. It is so clearly argued, that if it be denied, you must grub up all your constitution, and make an earthquake in the nation. I would fain hear it reasoned, that the constitution in possession is a nullity, and void.
The old Lords that did you service, were exceeding raw and few. The Earl of Manchester (fn. 27) is in now.
You have been pleased to vote another House. I think it is in as good hands as you can put it.
This House is a fluid body. God knows who you shall see here next Parliament; and unless the other House be faithful and fixed to your interest, I doubt the consequence. (fn. 28)
I would have the question put, that the House in being shall be the other House.
Mr. Jenkinson. I second that motion
Mr. Gewen. The Parliament shall consist of two Houses; but whether the ancient peerage, or the other House now sitting, shall make the constitution of the Parliament, is the question.
Those I conceive are not in, by law. The power was only given to the late Lord Protector, and not to his successor; and therefore, admitting it to be a law as to other things, to this it is not.
It was moved by Colonel Terrill, that any man would answer what he had formerly objected, that the other House was fallen for want of the word successors. If that be so, we need not stand upon it; not that I would.exclude those gentle men that are there. They that sit, may come in; but I would have them laid upon the old Lords, as their basis and foundation. It is just and right, and their inheritance, that those that are capable should be restored. But if you take upon you to make another House, you cannot make them coordinate, but subordinate, and as you set them up, you may pull them down.
God forbid but the public sales should be confirmed. That argument (fn. 29) may be answered.
As to bringing in Charles Stuart, the argument is against it. If you exclude these Lords, you put them upon joining with that interest: into councils for him, from great provocation. Diseases of the spirit are the worst diseases. Manet altâ mente repostum. (fn. 30)
This House will be (as our Saviour says (fn. 31) ), piecing an old garment. You are bound by your oath to maintain the rights and liberties of the people.
I think it is as much in your power to restore the old House, as it was in those that took them away. The arguments from the inconvenience seem nought with me.
If you please to declare, that of right the ancient peerage ought to be the other House, I mean those that have not forfeited ; and let his Highness add whom he pleases.
Declare that the ancient peerage ought to be the other House.
Mr. Fowell undertook to answer Colonel Terrill, touching the want of the word "successor."
Saving his favour, he is much out of the kw as to that. He instanced in a bishop, a parson, and the master of an hospital.
The case differs. Acts of Parliament must be interpreted by the law-makers. If the King grant aught, he is a corporation; and never dies, without the word successor. The oath is to be true to the Protector and his successors, and if it had not been expressed, he should call Parliament, notwithstanding the want of the word "successor."
The Act must be interpreted according to the meaning of it) which appears plainly in many paragraphs, to entitle the successor to the nomination of this other House. Besides, a grant heretofore made to the King, without successors, had been good to his successors.
The Protector is King of England, to all intents and purposes whatsoever. There is express authority in the point, in Penruddock's (fn. 32) case, who was adjudged a traitor within the statute of 25 Edw. III., for attempting the life of the Protector, because he had indeed the kingship, as if it had been against a Queen Regnant.
Since the Conquest we never had but one King:—the King never dies.
No power is given to the other House but negative, and, in all things else, to go according to the ancient usage. They are the old House, they have only changed the names. Though new members, they are the old House. I move that you would transact with them as another House of Parliament, and add the old Lords to the new House.
Sir Henry Vane. I shall not speak to the matter, but to the order of your proceeding. I cannot bear what is spoken. There is a law still in force, declaring it treason for any man to declare or proclaim any person to be King of England. (fn. 33) I desire that gentleman may explain.
Serjeant Maynard. He did not say he was King; but that he exercised the kingly power. If he do not, you must hang up all your judges in Westminster-hall.
Sir Thomas Wroth. He said, absolutely, the Protector was King of England. (fn. 34) If so, I pray you where is your Prince of Wales. If we find kings destructive to the nation, we may lay them aside. It is a formidable thing to speak of a King.
One maxim has undone the nation. The King can do no wrong, (he said no right). (fn. 35)
When it was told the King, that Ireland would be lost if he looked not to it; he answered, I shall go last: but it proved not so.
You are now not come to declare who the persons shall be, but how you will bound them.
Spend not your precious time, whether upon old or young lords, but debate the bounds. That is my motion.
Mr. Bacon. It was well propounded to leave the business as we find it, and go to bound them. If I thought that House would not fall upon that, I should be as willing as any man, that the old faithful nobility might be restored, if it could consist with the safety of this nation, and the interest of those noble persons.
If the Lords have a right, consider whether it is proper for us to judge their right, as members of that House. Can we do it, and will they accept it. I doubt they will not take it well from us. Should we be judges of it, I fear they will stumble at it. As the affairs stand now, I think their right is very much interrupted. If they come in by right of peerage, are they peers to his Highness ? Do they hold of him ? Are they peers to the rest of the House. Will they like that some of them have had writs, and have refused. (fn. 36) Things arc unhappily come to this. I fear that they are not peers to the present powers, and will not own a right from this Protector. Do they hold their baronies by this title ?
The new constitution is not the foundation of the rights and liberties of the people. We have our Magna Charta and Petition of Right now in being, by a better title. Yet our rights and liberties are but declared by them. They are by ancient usage and custom, though neither of them both had been.
There are two Houses in being you have declared, so what hinders but we may declare that those that are in the other House are the other House. It is to no end to debate of the old House. That debate will stop proceedings all the nation over, and will destroy all. Therefore, for peace and unity's sake, propound for the other House.
Mr. Stephens. I agree as to matter of unity.
Magna Charta was not. merely the purchase of the sword. It was confirmed often by Parliament. I would not have it taken away by the sword.
Dan Vincent, a good author, tells you in his History, that the Barons made; protestations to confirm and stand by Magna Charta. He cites the oath for obtaining it. The King was also sworn: but they, not content with that, another clause was added more binding, and he repeated this clause: et,si contra earn ibimus, tune liceat omnibus in regno nostro insurgere, et vim, &c. which gave great countenance to the late proceedings, in the war against the King.
For my part, I stand neither upon terms nor words. I did not hear that the word "King" was so formidable a word to the last Parliament ; (fn. 37) and I do conceive that the Protector and Chief Magistrate may declare titles, and names of government.
It is declared to be.law, and constantly practised, that he that is. Chief Magistrate may declare his successor, and, by all laws, it shall go to his successor.
I would have you careful that that House grow not so great as to swallow up your own House.
The question is now, whether of restitution or constitution? The Parliament to consist of two Houses, may relate to either. For my part I am against altering constitutions. I know the old Lords had an ancient fundamental right, and the words of the perpetuating Act (fn. 38) are that they should not be dissolved but by their own consent, nor by that neither, without an Act of Parliament.
The Petition and Advice does not take away the former Act. It may be a good law till you declare otherwise, but to say that we come hither upon that foot, I see not, for there are words in the Petition and Advice, that Parliaments shall be called according to the old law.
Your Petition and Advice says there shall be another House. It gives to this other House, a negative power, but no affirmative power is given them, neither by that, nor by the explanatory clauses. It only saith what they shall not do; but doth not tell them what they shall do.
I would have the old foundation restored, and those that are capable restored, and what others now in the House are thought fit to be called thither. I move that the old Lords be called in.
Mr. Chaloner. Where the law is silent, no man ought to speak. Divers are for the old faithful Lords. They did you great service in Magnet Charta. I understand not that so many of the old Lords are so deserving. As many were against it as for it, and few of the posterity now living, (fn. 39) or any of themselves twenty years after it.
If you tie us to the old foundation, then why not bring in archbishops, bishops, priors, and abbots. The clergy had a third part of the land, and were then a third estate. The Prior of St. John sat above all the Lords, because the clergy had the lands; but when Henry VIII. put down the clergy, the Commons then rose up, and grew great and rich. The bishops were then grown poor, and it was their baronies that supported them. I am not for one House to put out another. But if the Lords owned all the lands of the nation, as now the Commons almost do, I believe they would not suffer this House to sit here to give laws to them.
But that constitution, though it was very ancient, and then good, yet time hath defaced it, and it is now impossible to attain any good by it, because it differs so much from what it was.
In France, the clergy and nobility have most part of the lands, the Commons not a third part, unless it consist of monies and goods.
All governments fall into one another, as Aristotle says; nought so ordinary.
They talk of ancient constitutions. The constitution of Paul's Church was very noble and ancient, but where is it now ? If you go about to do any thing with it now, all the workmen in the world will tell you the fopndation is rotten. (fn. 40)
I would have no one sort of men to be hereditary judges of the nation, to them and their heirs for ever. I would have you make these to stand, and then debate whether you will add any to them. (fn. 41)
Captain Baynes. Make this your question, whether the House now in possession shall be that other House intended in the vote.
Mr. Speaker propounded a question to that purpose.
Mr. Attorney-general. I move that the question be, if they shall be hereditary.
Colonel White. Put it whether the persons now sitting in the Other House by the Petition and Advice, shall be that other House you intend.
Mr. Qnslow. The method of bounding the fens, is not to lay out money on bounding that which has no need. So I would have us do. Consider, whether by another House, expressed in the vote, you intend that other House by some said to be in possession.
Frame your question to this purpose, and take it up tomorrow morning.
Sir Thomas Wroth. First resolve that they shall not be hereditary.
Mr. Godfrey. I think it not a matter of that necessity as is urged, to debate the persons before the bounds. The best foundations are upon principles ab abstracto.
If you resolve upon the old peers, and go about to bound them, perhaps you intend that which you cannot do; and if you bound the other House now sitting, instead of bounding them you will perhaps add something to them.
There has been great debate whether to join the right hand to the left, or the left hand to the right. That is not the question; nor whether the. new House shall be a House of Lords. You can never make a bird-bolt of a pig's tail.
It will not be prudent to do any thing exclusive of the ancient Peers. The Petition and Advice does not do it; no powers nor qualifications exclusive of the old nobility. Therefore avoid that question, seeing you find nought in that law to do it. I would have no vote pass here in the negative, which should exclude the nobility.
A clause indeed, in general terms, that in all other things they shall be called according to the laws, is rather an affirmance than an exclusion of the old peerage. Therefore call not that into question, which is not now in question. You may very prudentially consider of bounds; though it be somewhat difficult to suit all persons, and to bound those who claim by ancient right. Make this the first bounding of that new House:—
That none shall sit in the other House, but such as shall be approved by both Houses. This is not prejudicial to the old Peers. They have consented to such a Bill in the Long Parliament. (fn. 42) I know not why it may not as well be offered now, as before. This boundary looks every way, as to either House, and it will greatly secure you of the interest of those that sit there.
Colonel Parsons. I perceive, whether they be old Lords or new. Lords, you intend to bound them ; but I would have the first question to be, whether it be the other House that you mean by your vote, the persons now in possession.
The reason why we have not all this while proceeded to the bounds before the persons, was because, until you knew what the other House should be, you could not tell what bounds to set them.
The other House you cannot bind, nor this, without their own consent.
I move, to consider whether the House now sitting, shall be the other House.
Mr. Bodurda. We are rather bounding the persons than the House. There is no positive power in the other House.
I move, that we go not upon negatives, as not so seasonable, but make this the subject of debate; whether it shall be part of the Bill to declare the other House of Parliament mentioned in your vote, to have a co-ordination with this House in the legislature, or how far they shall have this power: else time is but spent to consider what persons or what powers.
Mr. Hobart. I think you have the greatest business before you, that you will have, sitting this Parliament.
We all agree a boundary should be between this House and the Chief Magistrate.
Those gentlemen that are for a popular government, do say that the monarchy of England was the best settled government, the best limited monarchy in the world; and the House of Peers the best boundary between the supreme magistrate and the people. And if such a boundary could be now found, it would be best to submit to it. If, according to property, you could make a fit balance, they would not be against it; but they say, such a bound you cannot have. They would have a propounding, and a deliberative power, in making laws.
It is the best way to go on with your negative, and then conclude with your affirmative.
Our first care must be, how to find such another House as the old House of Peers was, which may be a sufficient bulwark for us. If it happen that they may be made a fit and proper boundary, then let them stand. But if that cannot be, then you must have a special care ; and it will be most proper to think of boundaries, that we may not trust them with too great powers. If it prove not like the walls between Tartary and China, I would have it well considered.
If you cannot make them such a bulwark as the ancient Peers, then take heed how you put the staff in their hands; that if it cannot beat us, it run not into our bands and hurt us.
I would have none there that have any office, nor let them have a negative in any thing, unless that the government shall not be altered, nor imposition upon consciences; and what other things gentlemen shall please to add.
It was moved, that this constitution might otherwise be the greatest tyranny that could be invented. A single person with an army. A negative voice, 130,000l. per annum, and a Council of officers, (fn. 43) a balance upon you. This should be well considered.
For this Petition and Advice, if Pope Alexander, C. Cæsar Borgia, and Machiavel, should all consent together, they could not lay a foundation for a more absolute tyranny. (fn. 44)
First debate the persons, and then the powers. I move to bound the negatives, before you assert the persons.
Mr. St. Nicholas. The debate hath been all about which should be the other House. Your stream hath all run that way.
I move that the question be, whether the bounds you are now about, and the House in our vote, shall be applied to the House now sitting in possession.
Mr. Turner. I move not to put the question first, for if we shall put that question, and it go in the negative, I fear we shall not have power to vote again. I know not what will become of us.
I would have the first question to be, if the old Peerage shall be the other House, and then you may add these persons that are now in possession.
Sir A. Haslerigge. To the orders of the House.
Here is no use nor place for such arguments. We expect law from the Long Robe, and not fear of the long sword.
We came up free, and I hope we shall go down free. Let us fear nothing here, but God and the neglect of our duty. If, at last, we be sent down as wise as we came up, there is no great harm in it.
Mr. Turner. Though I have never worn a long sword, as that gentleman, yet the Long Robe has as little fear as others. I did not express any fear, but I said if this vote passed in the negative, we should not know what to vote next.
Sir Arthur Haslerigge was satisfied with the explanation.
Mr. Bulkeley. That there is a law is most clear, how taken away I know not. I would be glad the question may not be exclusive of the one, nor positively inclusive of the other, yet I would not have them all brought into a sieve.
The way to give every man his vote, is to put that they shall be approved by this House; and then, if any person dislike the choice, they may give their objection. This will tend most to settlement to declare that the members to sit hereafter in the other House shall be approved of by both Houses.
Mr. Jenkinson. This is admitting them to be a House in being. I would have it run, that this House shall approve of them. For how can that House approve that is not in being.
Mr. Goodrick. I move that the question be for both Houses to approve, and that the word "hereafter" be added.
Mr. Steward. I move that the question be, that first, this House approve, and when another House is in being, then let them concur.
Mr. Knightley. I move that those that are in, be in; and that for the future we have this drawbridge. Else, as I said before, we destroy the constitution on which we ourselves sit.
Serjeant Maynard. We are not fully ripe yet for a question. We must determine something, else we shall always be debating, and never come to resolutions; or if to resolutions, never to practice. We must come to it first or last, to resolve whether the members now sitting shall be that other House we have voted. Of necessity and prudence we must come to that which, in our consciences, we think shall be the question. The appointing of what persons, is one of your greatest bounds; and then the number and qualifications, whether hereditary or no.
Make this the question, whether the persons called to sit in the other House, shall be members of that other House which you are now bounding.
Sir Henry Vane. You will only propound it, but not put it.
Mr. Trevor. I understand not very well that motion from the learned gentleman. I conceive another question more proper. It looks too exclusive of the right that is so much urged. I would rather have it by a concurrence with the other House, than by a vote here.
If you mean, the approbation of the present persons; that is as much as to say they are not in being; but I suppose you mean only those that shall hereafter be named, that they may be approved on by both Houses.
Colonel Bennet seconded Serjeant Maynard's motion.
Colonel Fielder seconded the other motion, that for the future they, might be approved.
Sir Henry Vane. That last motion is not ingenuous; for it is a granting by the lump all that are in possession to be approved on already by this House, and only gives us power to consider of members hereafter to be added.
The question upon the persons, is most proper and ingenuous ; and if that pass, you will think fit to send messengers to them for a concurrence. Let that be your question, and then it is most plain and ingenuous for every man to give his vote, and do what in your wisdom you shall think fit. It is not clear that there is any law in being for their sitting.
Sir Arthur Haslerigge. I second the question that the learned Serjeant moved, whether the House now in possession shall be that other House ? Let us go plainly and clearly to it.
Mr. Hewley. Sir Arthur Haslerigge is mistaken in the Serjeant's motion, for he moved that the question might be, if the persons now called to sit in the other House shall be members of that House.
Mr. Neville. That question will be more doubtful than the other. Put it clearly upon which of the Houses you will have. I can then give my vote; otherwise I cannot. I would not have us involved in a question. I must steal out, if your question be so perplexed.
Sir Walter Earle. That gentleman may withdraw if he cannot clearly give his vote to this question. I know very few of those persons of the other House. There is one that is gone. I should have been sorry to have given my vote that he should have been a member of that House that had so highly broken the privilege of Parliament. (fn. 45)
Mr. — moved for the old Peers.
Colonel Birch. I take our great end to be God's glory, and our own and the nation's peace and safety. I should not trouble you, if I thought at this time it would answer these ends, to call in the old Peers. I am of their minds that would neither meddle one way nor another, but leave it to time.
I think your other question is as dangerous, if it pass in the negative.
The proper question is, that for the future all should be approved by both Houses. Then are my fears removed; for the single person cannot impose.
It is best for the interest of this nation to take the other House as we find it. When I go into the country again, and tell them this was the cause why I came down so soon, (fn. 46) they will hardly be satisfied.
If I can read the Petition and Advice, they are in being, Declare that hereafter none shall be admitted but by approbation of both Houses, and that will satisfy me.
Lieutenant-general Ludlow. The gentleman contradicts himself. He says it is not time to dispute right.
Declare what in your judgment is right. I would not have you go to persons. It is most proper to put the question whether the old Peers or new shall be this other House; that will answer all objections, and if you please, let that be the matter of your debate to-morrow morning.
Resolved: that this debate be adjourned till to-morrow morning at eight of the clock.
And the House adjourned at one o'clock accordingly.
Resolved that Mr. Hunt, one of the members of this House, have leave to go into the country for ten days.
The grand Committee for Religion sate,
Mr. Bacon in the chair.
They proceeded a great way in debate upon the greater Catechism of the Assembly of Divines. (fn. 47)
The Committee for preparing a Bill for ejecting scandalous ministers, &c., (fn. 48) sat in the Inner Court of Wards, Mr. Hewley in the Chair.
They proceeded to debate the Bill, a good way, and adjourned till Wednesday at 3 o'clock.
The Grand Committee sat till candles were called for. (fn. 49)