Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Tuesday, March 1,1658.
The House being acquainted that Mr. Serjeant Birkhead was fallen sick, and that by reason of his indisposition he could not for the present give his attendance on the House, and that Mr. Serjeant Middleton, who had formerly upon a like occasion supplied the place, if the House should so think fit was ready to give his attendance instead of Mr. Serjeant Birkhead, until his health should be recovered,—
Resolved, that Mr. Serjeant Middleton do supply the place of Serjeant-at-arms during the sick ness and indisposition of Mr. Serjeant Birkhead, and that Mr. Serjeant Middleton be called in to give his attendance on the House accordingly; and he was called in by the clerk assistant, and gave his attendance in the same place.
Resolved, that such of the members of this House, as are returned to serve for several places, for none of which places their elections have been as yet questioned, do make their elections respectively for what place they will choose to serve, by this day se'nnight; and if they shall not make their election by that day, that then the House do appoint for what place such members shall serve.
Resolved, that the sheriff of the county of Southampton, do deliver in the indenture remaining in his hands, concerning the election for Yarmouth, in the Isle of Wight, (wherein Mr. Sadler is concerned,) to be filed of Record there, to the clerk of the commonwealth in Chancery.
Dr. Stave being chosen for several sheriffdoms in Scotland, made his election for Thetford, in Norfolk, and waved his election for those sheriffdoms.
I came after prayers.
Serjeant Waller offered to report Mr. Streete's business from the Committee of Privileges, (fn. 1) being by order of Committee, upon motion of Colonel Blake, appointed this day to be reported.
But the House, supposing it would involve them in a debate, appointed it to be brought in on Friday morning; but no order was entered upon it. There was only taken the sense of the House.
It was moved, that to settle the constitution was of greater consequence than the business of any one member.
The order of the day was read, which was adjourned yesterday, touching the bounds and powers of another House.
Mr. Mussenden. I have learned at the University that the quid goes before the quuh. It will be hard for you to make a suit that will fit anybody. I would have the persons first debated. I therefore move that you declare what House you will have, before you consult what bounds you will give. You proceeded so with the single person. You voted not only a single person, but the single person, before you went to bound him.
Mr. Pedley. If you make not a settlement now, I fear the consequence, that good men in the nation will think you cannot settle them; they must look for it by forced means, from beyond the seas. (fn. 2)
There is another House, a House of Lords, which, it seems, is a litigated title.
There are three claims:—
1. Those honourable persons in possession. They claim by the Petition and Advice.
2. The ancient peerage. They claim by prescriptions from their ancestors to them and their heirs, and that they are only deforced. They did enjoy it, until they were expelled by those on the post. There are others who say they have forfeited, and that the right is in this House. They would put it wholly into your hands.
My desire is, that the title may be postponed, and that you would hold the scales indifferent, until the title of the two other Houses be tried between them, for the ancient right of the peerage. It is certain they are very ancient, but they have no title by prescription; therefore it may be interrupted.
The old Lords' title was so strongly argued yesterday, that if it had gone, he (fn. 3) had set you beside your chair. He said there, more ancient mention made of King and Lords, than of the Commons. The return of the Commons is as ancient as any return or records. A council was called on all occasions.
I must confess there is very ancient mention of the legislative power in the people, as well as the great men, and nobles, and King.
Henry III. A remonstrance mentions the Commonalty to join in the laws.
2 Richard II., mentions that the Commons shall be called as by the ancient laws.
I cannot comply with his prescription ; he must prescribe either in the thing or in the person. In the person he cannot, because their prescription is broken.
The Barons were not created Lords; but by reason of their tenures, they were called by writ.
Many Barons cannot claim that they hold by one knight's fee of the King.
Then they must claim by their persons. Can any lineally claim, since Henry III.?—They cannot.
That a Parliament consists of two Houses, is a constitution which I think is so fundamental that it cannot be taken away.
The Constitution still remains, though the persons be removed.
It is no new doctrine that the rights of particular persons may suffer for the public interest. Nobody will deny but in a public combustion, a common calamity, it is lawful to pull down fences or houses to prevent the spreading of fire; so, in a natural body, to cut off a hand or any member that is gangrened.
I suppose there was cause for taking these away; I shall not examine the merits of it; sin was the cause, whether public or of persons. It concerns us now to go on.
We find the Lords now taken away, by an Act of Parliament de facto. I shall speak to the de jure by and by. Then came the other House, and they say that what was taken from the old Lords' House was granted to them, as, by the Petition and Advice. You say you have not granted to them. They say, they are called. If you have granted it, it will not be proper for you to question it. You have granted it; and unless you will run yourself upon a rock, you will acknowledge they have some right, and not boggle at them at a distance. Perhaps if you will look upon them nearer, you would not take them for such bugbears and scarecrows as that you should so stand off. Not all the things done that Parliament, were without exceptions. It is true the Parliament was not so happy as to be free, but if you make a nullity of all done under a force, whither goes the tendency of that ? where will you end ? You may find, and, look back into all ages, you will find laws made under force. Who knows but the Great Charter was obtained by as great force (fn. 4) as any law. If Charles Stuart had a Parliament of his friends what could he do better for his service then to void all done since 42 ? Do not you by this take up their principles and make their ends ?
A question hath been preferred, whether those persons now called to sit in the other House be not the House intended by your vote. If you should lay aside this House by a question, see where you are. I could tell whether to give my yea or no, but I think it is a very dangerous rock if it pass in the negative. They are gone. Another rock is the right of the old lords. Then if you vote in the other Lords; if they will not come in, then you will of necessity come to a democracy and confusion.
Had you made your prescription for the Spiritual Lords, you might have made it far clearer. The Bishops and successors had a more ancient right by far, and can prescribe by better title. Yet for the Spiritual Lords there is not one word spoken; so that if you will drive on the argument upon the account of persons and estates, that those are so essential, the argument will go a great way.
Consider where you are. You are come from confusion. You are not guilty of taking them away, but you find others in possession, in peace, by your establishment.
I am not against calling in so many of the old Lords as are capable, but I am not for their being hereditary. I would have you, therefore, in the first place, to confirm your rule, and take those that are in possession, and let your vote be, that none shall sit hereafter without the approbation of both Houses, and I doubt not but you and those persons may agree of qualifications and bounds. It is better when your laws are kept under two locks. If you had no new laws for twenty years, it would be no damage to the nation.
My motion is, that this may be the matter of your debate: that those persons that shall hereafter be called to sit as members of the other House, shall be nominated by both Houses.
He meant, "approved," and so was corrected by the chair.
Colonel Gibbons. I shall begin with a fundamental, that which is an undeniable verity: it is righteousness exalteth a nation.; sin is a reproach to a people. If we desire the honour and safety of this nation, we ought to promote and establish the one, and suppress the other.
Government is either ecclesiastical or civil; that of the keys to the Church and the sword to the Chief Magistrate. When Peter meddled with the sword, it was bid him put it up : (fn. 5) so when Uzzah meddled with the keys. He pertained not to the ark. (fn. 6). If we had all kept in our spheres, this confusion had not been. (fn. 7)
The several sorts of government, are monarchy, democracy, &c. Corruptio optimi pessima. The three corruptions of government, as tyranny, oligarchy, anarchy, are not properly called government, but wens and exulcerations of them. As Augustus had three daughters, (fn. 8) which made him wish, utinam vixissem cœlebs, out periissem ortus; and so he called them his tres cancri et tres abscessi. (fn. 9) So say I of these three corruptions of government.
Our ancestors gave place to monarchy, as so should I, if we were fit for it. The ancient feudal government (fn. 10) did best suit with this nation, and it flourished many centuries; but such were our national and personal sins, that they brought a change and confusion among us. (fn. 11)
The change of government in this nation, was by the instrumentality of men. What their ends were, I can neither speak nor justify. We have seen the Lord's judgment denounced, "I will overturn," &c. put in execution. King, Lords, and Commons, have been all overturned. When God has a controversy with a nation, it is not the skill of man can prevent it.
Dies, hora, momentum, &c. as Casaubon says in Sir Walter Raleigh. When the Lord pleaseth, a day, an hour, a moment sufficeth to overturn governments which have had lasting and adamantine foundations. We are met together by the good hand of Providence. It is my desire that we should settle it in righteousness and judgment, &c.
Government is radically and fundamentally in the people, which is the form and frame of our present Government, to come to the point. I doubt I am tedious. I have given you experience that I can be.
Government must have for its adequate object, futurum possibile. The Commonwealth government did not stand. (fn. 12) I wish it might have continued a little longer, that we might have received the benefit as well as the burden of it. (fn. 13)
But we are now returning to the old foundation form. It was told you, the Protector is, to all intents and purposes, King. It may be told you, that this other House is a House of Lords, to all intents and purposes; and ere long, we shall be under the same oppressions, to all intents and purposes, as ever we were before. We must, therefore, be very circumspect in the materials of the other House. Let us, therefore, look to the integrals in this building.
It was told us, that building with old timber, if it be sound, is best. (fn. 14) I am of his mind. I confess I am not against building with old timber, so as it be sound; for in our country, we do not love to build with green timber, as being subject to warp, especially if it be placed near the sun.
I am a plain fellow: have g6t little but the gout by the service. But to the point. That I heard concerning two swords, (fn. 15) was well applied. It moved me very much. It is something absurd to walk with two swords. One is useful. I have seen. a sword and dagger worn together; but two swords! spectatum admissi risum teneatis? (fn. 16)
They are our children, it is said: the army I mean. It is fit, then, they should receive laws from us, and not lord it over us. Men of great place in the army are not fit to give laws in Parliament. I would have them men of honour and estates and interests.
My motion is, that such as are, or shall be summoned to serve and sit in the Other House, shall be such as shall be named and approved on by this House.
Mr. Morice. It is most proper to agree the persons before the bounds. First propound what Peers shall sit, before you determine with what powers they shall be invested. It is most consonant to reason. When you speak concerning the bounding of the House, I presume you mean it metonymically, for the persons sitting in the other House. The persons, therefore, must first be defined. No accidents but inherent in a subject. According to the definition of the persons, prudence will direct you to limit their bounds. But, Sir, I conceive you have not yet laid your foundation low enough to build this House. You have not yet digged into the rock.
I think it requisite that you should, in the first place, assert your own power to do it; for if you have no power to bound them, why should you meddle with it. We do but build a castle in the air, and spend time superfluous, to debate a cause that lies before us as coram non judice. If you be painting out a government, do it as Zeuxis did, who painted for eternity ; which you can never do, unless your ground-colours be well laid.
Therefore, 1. declare whether this House, the people's representative, have power to bound that other House;
2. Then declare the persons; not particularly I mean, but as to the constitution.
3. Qualify the persons, and then proceed to bound them.
His was a finely-timed speech, with rhetoric and story adorned, but I could not well hear him. If he spoke but for candles, the Poet must come in.
Mr. Hewley. I am one of those that would have gone upon the powers before the persons.
We cannot dispute the powers that flow from the entity, without disputing the entities; the accessories before the principal; yet in this case, we might have considered the powers.
But in regard the debate leads to examine the persons. Let us examine the rights.
The old Lords first, as to their rights as Barons, then as to their judicial powers. They have claimed an hereditary right. We must examine the reason.
I think ab initio non fait sic. A judicial office cannot in reason be granted to a man and his heirs. It requires skill and science. A man cannot be steward of a Court-Baron, to him and his heirs. If 'this be so, how can such a power be inherent that is the highest judicature ? Nemo nascitur artifex. Virtue is not derivative. Anima non fit ex traduce. (fn. 17) Further it is not safe. Salus populi suprema lex.
Whether it will be safe to. admit the sons of Cavaliers ? They have sucked in these principles with their milk. I am rather led by that which is in being.
I doubt this string is stretched too high, as to the right of the old Lords. It is a clear mistake, that the Lords' blood purchased the Great Charter. The Commons were in.
The other House is part of our sinews. We can do nothing without them. Let us take notice of those that are in the other House. All proceedings are stopped.
Let that be your question, whether the members now sitting shall be members of the other House ? I am not against calling in so many of the old Lords as are capable; but would not have the sons as yet. In time it may be more expedient. All that is lawful, is not expedient.
Colonel Briscoe. I conceive there is danger on both hands; botty as to old and new Lords. Suum cuique tribuere is just, but whether now convenient is the question.
I am not satisfied that it is prudent at present, to admit the ancient right. They will not only claim as coequal, but I doubt above you. The consequence may be dangerous.
For the other House now erected, make that the first matter of your debate. If it pass in the affirmative, it must be according to the Petition and Advice. Whether you can put bounds to them afterwards I doubt. It is most pruden tial in my opinion, to begin with the powers.—I know the quid before the quale is most rational. You have done that already; you have resolved there shall be another House. What the persons be, it is not so material. If they be fit persons, they will fit the powers.
1. It is your own order to proceed upon the bounds. We ought to be confined to that communis error facit jus, says the civil law. We only differ de modo procedendi. Here has been a great deal of time spent, I doubt I may say misspent.
2. If you make bounds, it may fit any persons; the law looks to no affection, to persons. Apply yourselves to the powers; and you may come to some result. The other way, I doubt, we shall never come to it. I would have it your question, that the members hereafter to sit in the other House shall be approved by this House.
Mr. Speaker. It has been often said that the persons is the special part of your bounds. The denomination of the persons is within your order, as being part of the bounds.
Colonel White. If you go to the denomination of persons, it will not do your work, or at least not do it well. It may be the persons that now are, may not be so fit to make up a good constitution in regard of their offices and places.
There are no constitutive words, of powers of the other House, in the Petition and Advice. They must either have power given them by that, or they have none.
That question is too comprehensive to pass, all those persons in the other House by the lump. First clear the foundation, and let your question be, whether by the other House, in your vote, shall be intended the other House mentioned in the Petition and Advice.
Mr. Sadler. I had no mind to trouble you, but that I perceive this silence; yet I am glad to perceive, on the other hand, that the debate is carried on so soberly.
Mr. Juxon took him down, and said no man ought to sit that was not duly returned.
Mr. Sadler. I am returned. I saw it. It was affixed to the writ by the Committee of Privileges.
This return was brought to the clerk of the crown. Some of his clerks demanded some monies for receipt of it. The party that carried it would pay none. Then the clerk began to examine if the writ was there, and, therefore, he could not receive the indenture without the writ. The sheriff demanded money. A gentleman standing by, that better knew the course of the times than I, gave him the money, and it was but half. It is more than I shall get by it. Another gentleman was returned in the writ, and because his money was wanting he would not return. I kept seven days out, before I came in. The other gentleman was chosen for another place. The Committee of Privileges ordered that they should annex the writ to the indenture, and then I thought the business had been done.
Mr. Speaker. This business was moved this morning. (fn. 18) He needed not make this long narrative.
Serjeant Maynard. This gentleman, upon his own showing, is not a member of the House, but only a member by his own averment. There is no return of the Sheriff.
This House is a Court of Record, and your judgment must be led by that. There was a case of one Mr. Poole, in the Long Parliament, chosen in the same manner, and till it was returned by the Sheriff he was thrown out, though a very worthy member.
It is clear he ought not to sit, (and he was called to withdraw,) for though you have made an order that the Clerk of the Crown shall receive the writ, yet till it be duly returned he cannot sit.
Mr. Reynolds. I move that one and all go out, the Scotch and Irish members. (fn. 19) I would not have us so strict in this case.
Mr. Sadler. The worthy Serjeant that knows law better than I do, does not know the law in this; for some boroughs may return without the Sheriff. The law differs and may differ.
Serjeant Maynard. I wonder this point should be put upon us as law, that any borough can return without the Sheriff. I know the law to be contrary as well as I know any point of Littleton, and I were a mad man if I should knowingly offer aught in this House for law, that is not so.
Mr. Solicitor-general. Mr. Sadler is clearly mistaken in that point of law.
Sir Henry Vane. I move not to put a question upon this gentleman's withdrawing, but leave it to his discretion to withdraw if he think fit.
He did withdraw.
Colonel Allured. Another person sat upon the same score for Swansea in Wales. I move that it be considered. (But it was waved.)
I move that the Clerk of the Crown come to the bar tomorrow morning to mend the return, that we may not want the gentleman's company. It was ordered accordingly, that the Clerk of the Crown do attend with the return of the Borough of Yarmouth, in the Isle of Wight, (fn. 20) and mend the same at the bar to-morrow morning.
Sir Henry Vane moved also to consider the return for new Boroughs, but nought was done in it.
The order of the day proceeded on.
Colonel Terrill seconded the motion of Colonel White, that the question might be whether that other House intended in the vote shall be the other House meant in the Petition and Advice.
Mr. Edgar moved that those that are called to sit in the other House, be members of that other House during this Parliament, but was laughed down.
Colonel Parsons moved to the same purpose that Colonel Terril moved.
Mr. Stephens. I find it as hard to bound our debate, as to bound another House. Those that sit in the other House by the Petition and Advice, I cannot say that they sit upon the foot of right, as called by the successor of the late Protector. Whether they were called to Parliament according to the explanation, (fn. 21) and whether this calling makes them for their lives only, I very much question.
If it do not express it so in the writ, I question they are only hoc vice. Besides the word successor being wanting, I make a little scruple because it says your Highness. It differs from a grant to the Chief Magistrate, the King, or Protector.
Our call hither may be by the Common law, and not upon the Petition and Advice.
When you sent propositions to the King, the other House agreed with you in it; they concurred with you, and you with them. (fn. 22)
I think it not amiss to have this previous vote, that those that shall sit in the other House, shall be approved by both Houses, and if you please you may pro hac vice, de bene esse allow the other House, by applying yourself to them by a vote.
Mr. Swinfen. There is most reason not to delay this business above all; for all your proceedings are at a stand till this be clear. But what is last moved, is far from doing your work. Will you put the approbation in two Houses of Parliament, before you agree who shall be this other House?
If your question be, that the persons now called to sit by writ, shall be members of the other House: this may also entangle you, for some haply will except against some of them that sit there, and then all shall be debated, severally.
The best and nearest an issue, will be to put whether this House now sitting, will transact with the other House now sitting, as a House of Parliament. This will take in all men's sense; for you must go upon the constitution. You have agreed two Houses, so that you are but a part of the constitution.
If this other House be called by writ only, and not according to the Petition and Advice, then they are the other House according to the old constitution. The only fault that fit persons, that ought rightfully to sit, and have been faithful to you, are left out. You must come to debate the constitution, to keep you out of the flood of confusion. (fn. 23)
Mr. Neville. You are not now about transacting with the other House; and therefore to move that we shall transact with them begs the question. You are upon a single vote, in order to preparing a Bill.
I hear it not yet answered that the Petition and Advice being personally addressed to his late Highness is personal; therefore the Protector that now is, is not obliged, nor indeed empowered to call another House; so that by what is offered, you will swallow the Petition and Advice at once.
That question of transacting with them, was the debate of many days, last Parliament, (fn. 24) and that lies unresolved yet, and it might have been better insisted upon, then.
Your proper question, and I pray hold us to it, is whether the House you intend shall be the other House mentioned in the Petition and Advice.
Mr. Knightley. I cannot give my vote to that question. If it go ip the negative, I know not where we are. If we give a negative upon them that are called by a writ, by the same power that we sit upon, and have unanimously owned by our vote, where are we?
If it go in the affirmative, I shall not know how to give my vote. As the constitution is now, as to the persons, I shall hardly give my vote, not that they have two swords, one of either side, (fn. 25) but that appeals should lie there, &c.
Let us rather apply to them de facto as they are in possession. (fn. 26)
Sir Henry Vane. The more I consider this, the more difficulty I meet with. I have my eye upon the Petition and Advice, and if you consider how things are left, upon the death of the late Protector, by that Petition and Advice, I am sure, unless you shut your eyes, you may see that you are the undoubted legislative power of the nation; even by that constitution by which you are called, and the Protectos himself proclaimed.
1. You know when the recognition was pressed, how much it was urged that the Protector should be made out to be so, according to the Petition and Advice; namely, by due nomination, (fn. 27) which hath never been done unto this day. That the declaration of his Highness appears not.
2. Admit that he was duly nominated himself; yet there is no power in that Petition and Advice for this Protector to nominate another House, and that power in him is defective, because it was singly given to the late Protector.
I would have you first examine, whether those now sitting have any foundation, as now called by that law; there will be no cause of complaint against you, by keeping to that rule.
I understand not that objection, that we are sinew-shrunk, and manacled, and cannot proceed; that we can effect nothing, unless we transact with these men. You have as much power to make a House of Lords with the concurrence of the Protector, as the last Parliament had.
I thought you would have gone to clear the rights and liberties of the people, and that to have passed between you and his Highness, without owning the other House.
Sir, we have as much power as those that made the Petition and Advice. It is but the using of the just power. We are wandering, and cannot find the door; so great and wilful blindness is upon us. It has pleased God to confound us in our debates, that we cannot, in a third, come to a question; because we wander from our constitution.
Cannot we dispatch the business of this Parliament, and leave the other House alone till next Parliament Why may it not be left till then? Keep but true to the things you have already. I know not how we are limited. Discourse abroad says, your vote is with them. How it comes, I know not.
It will be told you, that the House of Commons is unnecessary, and out of your ruins the Seventy (fn. 28) shall be built up. Consider clearly, whether this House now sitting, have any foundation, by this calling, to sit upon the Petition and Advice. If they have not, I think you are as fit to advise about calling them, as the council that called them.
Sir Walter Earle. That which is moved, is the way to bring you to confusion indeed. I would have you put the question, upon what the debate has been.
Colonel Terrill. I move that the question be, whether those that now sit, have any foundation to sit by the Petition and Advice.
Mr. Solicitor General. The very constitution of two Houses of Parliament gives the other House powers. I do clearly find, that it was not personal or temporary to set up this House, but clearly a constitution. And if it be a constitution, it will be clearly intended that his successor shall have it, more clear by many clauses in the Petition and Advice.
I was not at making the Petition and Advice, but the ground appears to me that the Parliament thought fit to have two Houses. When they were made another House, their power was constituted, and the other powers are only negative. As to trying men's lives, and meum and tuum, the constitution clearly gave them the power; (fn. 29) all men knew what it was.
The other House was clearly intended by the eighth paragraph; the Privy Council of his "Highness or successor" shall be "approved by both Houses of Parliament." (fn. 30) Is it probable they did not intend another House ?
The like by the oath both Houses shall take to be true to his Highness and successors. (fn. 31)
Also, they are actually in possession of this constitution, and called by writ; (fn. 32) then how can you transact without them?
And if this House claim all the power, why may not the other House vote out the power of this House, as well as this House vote out their power? If we lose this foundation, we must go to Major-generals, (fn. 33) and the Instrument of Government, (fn. 34) that had no foundation in Parliament I hope no man means that you must go to confusion and anarchy. It was never meant that we should be upon framing new constitutions every day.
I find them in possession, and think it best to comply with it, and if there be a mind to alter the constitution, which way can you do it, but by the other House? I therefore concur with Mr. Swinfen, that your proper question is, that you will transact with the other House of Parliament, or else you labour in vain.
Sir Arthur Haselrigge. No gentleman will say this Petition and Advice is a law like that of the Medes and Persians. Upon turning out the Long Parliament, the Protector said all power was devolved upon him, (fn. 35) having been trusted with the power of the sword: it was answered nobly, No; how was it ever in you ? how can it come to you ? you were but entrusted. It was yielded by all learned men, that the triple cord being cut asunder, all the power was in you, and it is in you now. The original power reverted to the people.
Afterwards, there was a little thingum (fn. 36) that called themselves a Parliament, that were dissolved; and some of them went to Whitehall, and delivered up their power to the Protector, but how could that be the power of the people, who were never trusted by them. Afterwards he was advised that that government which he intended, could never be set up by consent of the people; therefore he must assume it to himself.
Hereupon the Protector, with the advice of some whom he called to himself, makes a law without doors. The Instrument of Government, which was brought hither, he said of it, other foundation could no man lay, and that the Parliament and it were twins; that the elder brother. You see how that was broken, and perished like a gourd; nay, worse. I would not offend. It was made by the sword, and by the sword it must be maintained and not otherwise. That, therefore, perished, because it was not upon a good foundation.
After this came Major-generals. (fn. 37) I hope we need not fear coming to Major-generals again. Last of all, he set up a faction or a forced thing; (fn. 38) but, however, these gentlemen could not make any thing greater than themselves; they could set up nothing above the people; if they did, it was void, ipso facto.
The Petition and Advice may be altered by you if you find inconveniences in it. What confusion can we be in, so long as we have voted a single person. Why may not this noble person, with your advice, be able to keep all our enemies at home and abroad in peace. Fear not. I fear nothing but doing our duty. If there be such a power set up as we cannot touch, let us pull off our hats to them. But I shall move that this may be the subject of our debate, and let us be con vinced of it by law, right reason, and divinity, if there be any, because, if we go round and round thus, we shall be called Roundheads indeed.
If we thus spend our time, the nation will grow weary of us, and the Cavaliers may come in the Round, as we turn round. It will be told us, that salus populi (fn. 39) will make a fewer number more profitable.
Let us go and debate the Petition and Advice by clear law and reason. Understand what foot you go upon; else let us not sit at all. Let your question be to-morrow, whether those Peers (persons I should say, yet they call themselves Peers,) that now sit in the other House, have any foundation to sit by the Petition and Advice.
Sir John Lenthall. Our foundation is like the laws of Medes and Persians. (fn. 40) It is not prudence for us to rake into the proceedings of the former Parliaments. We are a free Parliament, and it is by the Petition and Advice that we have this freedom. We know how things were then. Before the Petition and Advice, there were no free Parliaments.
Shall we come hither to make a law this Parliament, that may make work for another Parliament to pull down ? What have we done, but looked into the laws of former Parliaments ?
I wonder to hear it moved, (fn. 41) that the other House may be let alone till next Parliament. That is the way to undo all you have done.
I see you cannot admit the old Lords without great inconveniency, though I confess my heart is along with it.
I understand no danger of our lives, liberties, nor limbs. The other House have exercised it in no age. A person sentenced by the King and House of Lords to lose his hand, the Judges in Westminster Hall would not execute it, because the Commons concurred not. The King of France got the people fettered by a law on their own consent, and never had Parliaments since. (fn. 42)
The privilege is very great that is offered, that the power of approving hereafter, shall be in this House. Make your question at present, that this House will transact with the other House.
Sir Thomas Wroth. If the Petition and Advice were as ancient as the Conquest, if we find any inconveniency in it, we may repeal, alter, or mend it. I would not have interest sway with us. If my brothers sat in this House, and had no right, I should be against it.
A noble knight has made himself famous in the world, for refusing to sit there. He shall have my vote to sit there.
If our liberties be forced from us, we have nought but prayers and tears; but let us not yield them, or betray our liberties. The Supreme Magistrate is a person highly worthy and honourable; but how those that are about him shall advise him, we shall hear hereafter.
Serjednt Maynard. If you come not to some conclusion, and admit the Petition and Advice, at least some vestigia of it, you will run round indeed. (fn. 43) A fearful precipice, is before you, of confusion. I perceive two great questions are raised about it:
1. Whether the Petition and Advice be a law.
2. Whether the persons be called to the other House pursuant to that law.
And unless the Petition and Advice be understood to be no law, the arguments they go upon are out of doors.
It is a dangerous thing to go upon the first point. The questioning of that, will overthrow all the proceedings of this Parliament. I wonder how any gentleman can, with sane conscience, produce two contradictory conclusions. One law good under a force, and not so another law, under a force. If you make the Petition and Advice no law, as to one particular, how can you make it good as to others ? You will overthrow abundance of things. The Dean and Chapter, and King's, and Queen's, and Prince's lands, were sold by that law, (fn. 44) and all your ministers' settlement established.
In effect, to make that no law, is to make it no Parliament. That will go even to your own constitution; or what may succeeding Parliaments say, if you make that precedent. Till you declare it no law, I shall understand it a law.
But it is a greater question, whether the persons now sitting be duly called according to that law. It is objected,
1. That because it is personal to the Protector, and goes not to the successors. It was learnedly argued by Colonel Tirrel. (fn. 45)
But under favour, it is very clear that, taking it for a law, the successor Protector has a power to call a Parliament according to that Advice.
Look into the preamble. It cites the mischiefs there intended to be remedied. The scope had more respect to provide for succession, than for the present.
As to the second objection, in the first article it is true that it is personal, and personally expressed, and it is impossible it should be otherwise; but in the second article "that your Highness will for the future be pleased to call Parliaments, (fn. 46) " if it be not understood of successors, it is a contradiction in itself. It must be meant of the constitution. It is clear there are to be two Houses in the very constitution, though not in the persons, and we are not upon the persons there, as Sir Henry Vane moved ; (fn. 47) but upon the constitution.
But then in several other clauses, the word "successor" is expressly named, and both Houses of Parliament, (fn. 48) which shows the intention of the Act, and the cause of nomination in the additional Act, is expressly your Highness and successors.
As to the Privy Council, none can be admitted without approbation of both Houses of Parliament, the like for supply of members in the time of your Highness and successors. How then can there possibly be a supply to a non ens?
Lastly, the very persons are to take an oath, before they sit in either House; before a Commission authorized by his Highness and successors.
This is the way to examine and expound an act of Parliament according to. the meaning of those who made it. A will is therefore compared to an Act of Parliament, because it is to be expounded according to the intent Let any man lay his hand upon his heart, and consider whether it was not clearly intended that the successor should call two Houses.
It is also objected, that there is no positive authority given by the Petition and Advice to those persons; but exceptio probat regulam. Whoever says that I shall not do, in that case, admits that I shall do, in another case. No man will understand the law to be otherwise. There is a general law, that they shall have their privileges. All things shall be done according to the laws and customs of the nation. Is not that clear, that they should take the customs for their rule ?
How many revolutions have we run through; first a little thing, (fn. 49) then another thing, then the Major-generals, then this; and what is this, a grant ? This is not a grant, but a restitution of what was interrupted by a little Parliament, and an Instrument of Government. It is a humble Advice and Petition, a qualified restitution, and nothing like a grant. That is very clear. Yet a grant to a King goes to his successors, as adjudged 2 Henry VII. though the word successor be not there. But how to compare a Protector with a King, I know not; yet the construction hath been in all Courts alike. If this doth not mean succession, what can it mean but confusion ? Though our laws be not like the laws of the Medes and Persians, (fn. 50) yet our foundations are, or ought to be, like their laws. If this be a law, then I may boldly say you cannot alter it by way of vote; nor make any law, but by their consent.
Consider what had fallen out, if this had not been. If no Protector had been named, who should have called the Parliament ? If all power were in the collective body, who shall call out this body? London, North, West, all claim to be the collective body. One says, I called. Another says, I called. If this was not meant that successor should call, what should become of us then ? Who should call ? What should they call ?
If it be, that by a law they are another House, then may they as well take you away, as you take them away. How ancient is the law for a House of Commons alone to make laws ? Not older than 48. No Englishman will claim to it.
Whither can we go, but into a collective body, and where do we go ? We suppose ourselves to be the representative, but how came we to be so ? Who brought us hither ? If it is not by writ, we shall rest no where. If we had been called for another purpose to this place, these walls had not made us a Parliament. The writ gives us a being to treat with the nobles, &c. (fn. 51) We come here by a Commission, and by wounding them, we wound ourselves through their sides. If this be a law, then the other House is a House by that law; then you cannot meddle with them.
I would have you make it your question, whether you will transact with this House. The same arguments are against the one House that are against another. I know not what to think of it. I doubt then we should have no House at all.
It is not prudent to dispute the right. If we vote in the old lords, then I shall not doubt that their sons will come in, and then where will your rights be ? There is no complaint from any of them. Will you restore them ex officio?
Lord Coke, no flatterer of prerogative, tells you plainly, it is no law that is not made by the three estates.
I conclude with Swinfen's motion. Let it be your debate that we will transact with those that sit in the other House.
Serjeant Wylde. I hope we all bring with us a principle of unity. The matters mostly insisted upon are,
1. The ancient right of the Lords.
2. The right of those by the Petition and Advice.
I cannot understand aught of the argument that is built upon the foundation of France, (fn. 52) nor aught of that kind.
I do not see but if you allow another House, you must in justice and right restore the old Lords. Quod jure fieri potest, id justum est.
We are to maintain the right and liberties of the people. We have been turned out of our freeholds.
Admit that some of the Lords have been nocent; with what reason, justice, or conscience, can you let the innocent suffer for that ? A Parliament is the firmament—. (fn. 53)
I see what wresting and screwing of laws there is in all cases. I beseech you let not the Petition and Advice he our rule. We are a free Parliament. They were not so. They have given away all that then hud been fought for, and redeemed. Why were your members kept out ? (fn. 54) Shall a number of men thus called together make laws to bind the whole nation.
The lands of monasteries were got by tricks in the time of Henry VIII. (fn. 55) There is nought so ordinary as for Parliaments to examine laws. I would have the Petition and Advice examined, and examined to the bottom, as to what you have given away. It is a proper work for this Parliament.
That Parliament was called to set up that power, as to which you know how it came in. I would not have us go to dispute about transacting with that other House till we have first examined their foundation. Consider whether there be such another House before you debate any more about transacting with them.
Sir John Northcole. It was minded you by my learned countryman, (fn. 56) that no law was rightly made, but by King, Lords, and Commons. I am sure this law was not made so. If you admit this for a law, you give away all the rights and liberties of the people at once; such a thing as never was done. How that law was made, I shall not examine. The Triennial Bill had taken care for calling Parliament, (fn. 57) if the Petition and Advice had not; or the lex naturœ directs us how Parliaments should be called.
In the Saxons' time, every May-day, the chief officer and great council were chosen. (fn. 58) All power, I do affirm, was de rivative from the people. After the Conquest, in Henry III.'s time, the Lords were not hereditary.
The first hereditary Lord was one Beaumont, in Henry VI.'s time. (fn. 59) If usage can make a right, they had it, but not for themselves, but for the good of the nation.
I would have this examined, whether it be for the good or destruction of the nation that this House now in being should stand. They ventured their lives, but not their fortunes. The other Lords did venture both, and that they should be excluded and these advanced, is not just nor reasonable. I would have you first put the question, whether the Petition and Advice be a law.
Mr. Bodurda. Unless you come to some resolution about transacting with them, you had as good do nought. What should we sit here for, if we will not transact with them ? Our proceeding is at an end. If we vote them down, they may vote us down; but if you vote that you will have no transactions, then you must go on some other way to settle the nation. I would have this debated to-morrow morning.
Captain Baynes. I move to let it be known why we must either transact with them, or our time is lost. I would have that gentleman explain.
Mr. Trevor. This is ho more than forty have moved, and the debate has run upon that. I desire it may be put whether you will transact with the other House, as was moved before. Let that be the matter of your debate to-morrow, and do not rise till you have a question.
Sir Henry Vane. It is hard to limit us to a time, that before we rise the question shall be put. If the Providence of God so order it that we cannot come to a question, let not us say we will have a question before the House rise. Let us not turn day into night, nor starve ourselves. The people are attending without, upon your committees, at great charge.
I was called out at one, upon occasion, to Sir T. S; so could not attend the debate upon which question should precede. It seems there was a hot debate till three, upon it, and with much ado brought to this result, as I find entered in the Journal, viz.
The question being propounded that it be the matter of the debate to-morrow morning, that this House will transact with the persons now sitting in the other House, as a House of Parliament.
The question was put, that the question be now put.
The House was divided.
The Noes went forth.
Noes 113. Sir Arthur Haslerigge and Mr. H. Neville, Tellers.
Yeas 177. Sir John Copplestone and Mr. James Herbert, Tellers.
So the question passed with the affirmative;
And the main question being put, it was
Resolved ut supra.
Ordered, that no other business do then intervene.
Resolved, that Colonel Crompton shall have leave to go into the country to attend his own occasions for a month.
The Committee of Privileges sat in the House, upon the business of Dartmouth, between Major Thompson and Mr. Burne—Serjeant Waller in the chair.
The difference lay between the Aldermen of the Borough and the Commonalty, which had most right to elect. Mr. Burne was chosen by the Commonalty, and it inclined upon the debate to his part. Quere, what was resolved upon it ?
The Committee I left sitting at 8, it being post night.