Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Wednesday, March 2,1658–9.
Mr. Speaker took the chair at nine.
Prayers by Mr. Cooper.
Colonel Hatcher offered a Petition from the Freemen in Lincolnshire against the drainers, which was read, (fn. 1) and referred to a Committee to meet this afternoon.
Mr. Annesley. The Deputy-clerk of the Commonwealth in Chancery attends at the door, touching the mending the return of Mr. Sadler for the Borough of Yarmouth, in the Isle of Wight.
The Deputy-clerk was called in, and said he could not make a return, because the indenture came not to his hand till after the Parliament sat. He being withdrawn,
Sir Arthur Haslerigge. You may cause him to return it.
Mr. Bethel. The Act for Triennial Parliaments warrants the freeholders to return, in default of the sheriff.
Mr. Turner. The sheriff may return, he being the proper officer. It cannot be otherwise done.
Captain Baynes. I move that the Deputy-clerk stay at the door till the sheriff come: and it was ordered accordingly.
The order of the day was read at ten, touching the debate adjourned yesterday, whether this House will transact with the other House, as with another House of Parliament.
Mr. St. Nicholas. There are two reasons why you should not yet transact with them under the notion of another House.
1. Because you have not yet limited their powers. In all ordinary dealings between man and man, if several parties would trade together, they trade not till the covenants be perfected.
I am a plain countryman, and shall offer you what country experience tells us. If a man hath got young colts, he will make good chains before he useth them. If I be to put two or three young horses together, I fasten them well together, lest they run away. This other House is young and of high mettle. I think it necessary you should fetter and bound them, before you work with them. If you first vote to transact, and then carry up a Bill to bound them that they shall not be hereditary, they will say, you have voted us, and cannot now bound us.
2. Because they are not yet so declared, to be another House of Parliament. All the footing they have had hath been from the Petition and Advice.
Great reasons have been offered by Serjeant Maynard (fn. 2) why you should look upon that as a law, and why a successor has power to issue out warrants for summoning another House, according to that law, by comparing that law in several parts together.
But, admit that he had power; yet, under favour, if that person be not such a successor, within the meaning of that law, as is commissioned to issue out such writs, then I am sure they are not well issued, nor these men well called. They are not such another House.
That Act gives power to the late Lord Protector to nominate and declare a successor in his lifetime. Where is that done ? Where is the record ? (fn. 3) No authentic instrument has been brought before you to make that law. If he be a King to all intents and purposes, as is told you within these walls, (fn. 4) such a power could not pass away a title to three nations, but by matter of record. You have since declared his Highness to be Protector, and I do cheerfully join with it: but at that time, he had not power as such a successor, and he doth not judicially appear to you to be such a successor as was enabled to issue writs to this other House.
There was a case yesterday, and a piece of it this morning, Mr. Sadler's. You were satisfied he was a member, yet because it did not appear to you, judicially, that he was duly returned, you thought fit not to transact with him. As I may say, the Protector was not the successor, and they are not the other House of Parliament.
Colonel Terrill. We spoke in the bush before. We shall now speak plainly. We ought not to transact with them, for reasons before offered. Something before fell from me, (fn. 5) which hath been endeavoured to be answered. What was offered, produces three questions.
1. Whether the Petition and Advice be a law, and whether his Highness can call another House by virtue of that law?
2. Whether the successor by that law, be empowered to call another House ?
3. Whether he be empowered by the common-law, to call a House of Lords ?
I am sorry the first should come again into question. Somewhat was observed in the debate on his Highness's recognition. It was moved then, that the House might be. satisfied that it was a law. (fn. 6) That law was not dealt with as a law; the print differing from the original Act. A whole article was omitted, and the passing of it not Parliamentary. This hath not yet been answered.
I desire that the Journals and Rolls may be brought, to see if the formality of passing a law has been observed.
If it be an Act, and if the Protector's title be by the Petition and Advice, then there is a question, whether his Highness be brought in according to that law. I am sorry this should come into question to be now debated. That he is, we agree; we have voted it: but quo modo appears not. I thought he had two better titles than that, and that this Petition and Advice was the worst of three:—
1. His possessory right, which was sufficient title for him to call a parliament, and for us to submit to it.
2. The constitution of this House. I should be sorry it should be stirred. I suppose either of these to be best. This of the Petition and Advice is the worst of all.
As to the second question, whether, admitting it to be a law, his Highness be empowered to call the other House by virtue of that law.
The words, it is clear, are wanting; and the learned Serjeant's seeking for a meaning, by picking out the sense, (fn. 7) doth yield that the words will not bear it. Where then shall we find the meaning ? If you appeal to the makers of that law, some say it was set up in lieu, others say in bar of the House of Lords; so that we cannot find the meaning from the makers. We must then have recourse to the letter.
"That your Highness, &c."—that cannot imply a successor. I have said enough. He is a sole corporation, and the grant extends not to a successor. It was argued that he is King to all intents and purposes; yet that was meant of the power, not of the capacity. Highness signifies no more than for life. If a grant to his Highness by Parliament for term of life, and after name successors, this does not enlarge the grant, and it is all one as if the words had been expressed. Your Highness, during your life, is all one as if he had said a grant for life.
All I find in the preface relates only to "the succession in government;" only I find the word "settlement." (fn. 8) That cannot be applied to Parliament; for unless the old Lords were taken away to build another House upon it, it is rather to unsettle than settle, unless they had taken away the old House.
2. As to the words in the oaths. The word "successor" may be true, although there be no other House of Parliament. It doth not imply both Houses.
3. We have nought to do with disposing of the Army.
4. As to that of approving the council, where any mention is made of the two Houses it may stand reddendo singula singulis; it may be understood only of the two Houses during the life of the Protector, and not to his successors.
I am clearly satisfied that the word "successors" in all the subsequent clauses does not enlarge the estate in the premises, no more than if a grant of land be made to his Highness, and then that he and his successors shall have all the royalties.
Admit the honour of Windsor (fn. 9) were granted to his Highness, and that he and his successors shall have all the privileges ; his successors shall have all the privileges, but not the honour: it enlarges not the grant on the first article. It is agreed, as to the nominating successors, that it is only person al; that his Highness's successors shall not name his successor by virtue of that clause. If we grant this in the second article, we admit the first, that the same power is granted for his Highness's successors to name his successor. This might nominate, and the next, and so ad infinitum.
I omitted another answer. Those that his Highness named were members for last Parliament only, and not for this. The explanation reaches not this Parliament. They must be approved here.
As to the third argument. His Highness might have called them by the law.
He hath power to call another House by the Common Law, although he hath not power by the Petition and Advice, and if he had but called the old nobility, he had done his work.
If he had no right by the Petition and Advice, he comes in by his possessory title. He comes in under the law, but not paramount to the law.
Henry IV. Henry VI. Richard III.: They came in under that law.
If he came in so, under the law, I may admit all for laws till they be repealed. So then there is another bar in the way, a law in being to take away the Lords' House; so while that is of force by the Common Law, another House could not be called.
I have no prejudice against any person in that House, but I cannot agree we should yet transact with them. If you and his Highness please to approve them, to sit upon another foot, I shall not be against it. I move, therefore, not yet to transact.
Mr. Letchmere, Attorney of the Duchy. This question is well come in before you ; for which way soever you go, the wind would else have been in your face till you got over this question.
I cannot say how well the questions are stirred, but I shall answer them.
1. Whether the Petition and Advice be a law.
I think while so much pains are taken to answer it, it is an admittance that it is a law; though there is not much weight to be laid upon that.
2. Whether his now Highness be Chief Magistrate by that law.
This is the first time that ever any Prince in possession had his title questioned; or that the title of Chief Magistrate was doubted or considered in Parliament. Therefore this is a single precedent, unless that of 39 Henry VI. which had a miserable event. Richard of York put in his claim, (fn. 10) but it had no good endment. (fn. 11)
All Parliaments have rested well pleased with the possessor, and, being called by him, have gone on to make laws and never disputed the title.
The Parliaments then had more evidence of new titles than now they have.
Observe the passage of the two late queens, whose title depended upon the will or letters patents of their father. The Parliaments then so well admitted the title that they never disputed it, though both could not be legitimate. (fn. 12) Let us exercise our duty in conscience and prudence. But let us now to our business.
1. Consider how the House of Lords came to be taken away. Kingship was taken away first, and then Lords followed.
In that famous year, (48) that did produce many wonders, riot only the kingly office was taken away, but also chief magistracy in a single person. The House of Peers were the supporters of it, and so not consistent with a popular government. I admit that Parliament did prudently. I would have the memory of them famous to their last breath. (fn. 13)
What followed then? How were our liberties overrun. I will not say how the single person came to the government, nor of past Parliaments, save only the Parliament in 56. They looked upon their rights as in a bleeding condition. (fn. 14) They, in a fair way, did redeem the people's rights. It was a Petition of Right, (fn. 15) and brought the heads of our liberties above the water; so that though that Parliament did not fully recover all the rights, they went a great way, and deserve not those reflections.
(He ran over the Petition and Advice, wherein our rights and liberties were restored as by that Petition of Right.)
You had the fruits of it. Immediately the doors of Parliament flew open, (fn. 16) both in that Parliament and this free Parliament.
The Petition and Advice pretends not to perfection. It says only, it will prove some remedy. It does not totally, but in degrees, restore our liberties. In some places it may be amended.
We come now to the constitution of this law.
It is objected that the successor is not named in the second and third paragraph. The word "successor" is not in all other parts that concern the rights of the people, yet I hope none will say he is not bound by that.
There are a hundred Acts of Parliament wherein, the successor is not named, yet the successor in possession is always bound by them. Our books are full. Hill and Grange's case, with Plowden's Comment, does fully clear this point.
Now for that other House.
That those honourable persons that have been courageous and persons of fidelity are not restored, I He down under the objection. The Act that took them away, does not exclude them from being called to public council. (fn. 17) I hope they may in time be taken in.
The other House does now consist of persons that deserve as well from the English nation as ever any persons that sate there. It may be they may fall short in birth and pedigree. (fn. 18) The Romans always preferred virtue. (fn. 19) The time may come when those honourable persons amongst us that have deserved the like honour shall be translated from us. I speak not to be rid of them.
My motion is, that you would transact with the other House, and set both your doors open.
Mr. Bence. I am glad persons are so quick-sighted as to see many of the laws so far off. It does not appear to me why the persons that have deserved so well should be excluded from their right. Possession is eleven points of law. Those gentlemen that are in possession, you cannot get them out by force, but by a wile.
I would have this previous vote, that nothing in the vote shall prejudice the title of those honourable persons of the old House of Lords that have faithfully served you.
Colonel Morley. It is said, possession is eleven points of law. Now you would have a salvo for the rights of old Lords. I am against that. I doubt words will not do it. If you pass this, they have eleven points, and give them another, they have twelve. You are going to pass all by a lump.
It was told you (fn. 20) the French by sudden vote gave away all their liberties. Let not us do so rashly.
They are all officers, counsellors, judges, and chancellors. If any complaints shall be against them, you must complain of them to themselves.
It is said you have gained by the bargain, in putting down the Major-generals. You have mended the matter well, in giving them a power in your legislature.
Have not many of those persons been guilty of the remonstrances and forces upon Parliaments? May they not force their resolutions upon you by the same rule ? (fn. 21) I would have them bounded.
Major Beake. It is said the persons ought to be excepted against for their military capacity. I would have the sword less, if there were not need. In former Parliaments, Lord Marshals, Lord Admirals, and Lord Lieutenants of Counties, were always in that House.
In that they are there, therefore let us transact with them.
It was moved, that none would deal without a contract. (fn. 22) Can we contract before we transact ? Must not we declare our sense to them, and they to us, before we can transact ? If any exorbitant executive powers are in their hands, mutual correspondencies will take them away.
I will not say but there are men of will there, yet I doubt not but there are men of reason there. I doubt not but they will make common safety their end, as well as you will do. If it be your advice to a handful (fn. 23) sitting there, if you say it is for the good of the nation, they will not be against it.
It is objected that the Petition and Advice wanted the formalities of a law. (fn. 24)
The Parliament making a law, may dispense with the second or third reading. They are properer judges than any without doors. It may as well be said they are not a Parliament. It is told you, the meaning of the Act cannot be found out by inquiring of contrary opinions. The best way to judge is by comparing the parts.
Colonel White. I think you have a great and weighty business before you. You have all now before you. This transacting is the owning the persons, the powers, and all.
I shall not mention aught of the arguments about the Petition and Advice. It is learnedly argued both ways, it is clearly argued now, that those are a House of Peers. I would have the constitution examined, if it be well founded. If the Petition and Advice want words of constitution, make it so. I find not a word of constitution in it. It is said, it is implied. I have heard it said, that an Act of Parliament is lex loquens, and cannot be supplied by implication. You have already declared that you will have two Houses, but you have also declared that you will bound them; and I hope you will examine the persons.
All erroneous judgments have their appeal at last thither Admit an erroneous judgment, whither shall he have his recourse but thither, be it from Ireland or any benches. You appeal then from a Lord to a Lord, to the same person sit ting upon a form, as was sitting upon a bench. It was very rare that Judges were called to vote. Their Judges always sat on woolsacks.
For the law I doubt we shall be in a sad condition.
Also for military power.
The Colonels are now more than the Lord-lieutenants. If you give this army a negative upon you, put the case you make a law to disband all or part of your army. Power is a spreading plot against nature. One more to these ten Colonels, makes a quorum in that House. Thus the people of the nation may be destroyed by a power.
When you come to constitute powers for posterity, bound them as well as you can. I cannot at present give my consent to transact with them, till they be thus bounded.
Mr. Attorney-general. They that would make a settlement, and not upon this foundation of the Petition and Advice, cannot erect it upon foundations of righteousness and peace. For the person of the Chief Magistrate; if he is but possessionary Protector, he is then hereditary and not subject to any boundings. If you do not bound him, his good-nature will, without gall or guile, as is said.
But since the Chief Magistrate is elective, and this House electors, I wish the other House elective, and not hereditary; and so the Constitution will be homogeneal.
The Petition and Advice has been beaten so thin, nothing more can be said on it. I suppose there is a general inclination to conserve the Petition and Advice for a good law, even among those that speak against it, and the other House to be well constituted and well called. We are now arguing upon a moot point, as to the interpretation of this law. The Judges in Westminster-hall shall interpret. No one House can; it must be the two Houses.
I will either put in or leave out "your Highness," which the gentlemen please. It is said there must be two Houses. I would ask any man that wears a gown, who shall call them ? Undoubtedly the Chief Magistrate has power by law to do it. His Highness, in his lifetime, did execute that power. He did design and call the persons, which, as much as that requires, is personal still. Then come successors, in all other places, when it mentions supplies to that House. There was no need of successors in the other articles.
Now to the persons, civil and military men.
1. It is not entailed upon them, neither successors of the seal. I take the persons now in place to be thorough-paced. They have gone thoroughly with you.
I am very willing that those of the old Lords that have been faithful be taken in. My motion is that you will transact.
Mr. Annesley. If it be yielded that the Petition and Advice is a law, and without dispute, then there is an end of the debate; but that was never yet yielded. Many arguments against it are not answered. I am sorry we have forgot the beginning of the debate, when the current opinion was, if not to restore, yet not to prejudice the old Peers.
I doubt the expedient offered will not hinder the excluding of the old Lords. I think your time will be well spent to state this business clearly.
I have that to say which I was not willing to have done, if things had gone on in a moderate way. But, whatever is upon my spirit to say, I shall not fear to speak and I think it my duty not to forbear, whatever be the issue, and though I am satisfied I can never bring the sense of the House to mine, and was unwilling, but Mr. Attorney-general called me up. I shall revert to the beginning of the debate.
My many bonds and relations will not allow me to bar the rights of the old peerage. How far the Lords adventured themselves in the late war, how they assisted you in all your straits, how far they hazarded their lives in calling the late Parliament, you have been already informed. What laws, customs, and prescriptions, there are for them, to give them power to sit. What protestations, vows, covenants, solemn leagues, and declarations of Parliament, for the preservation of their privileges: (fn. 27) one, 17th of April, 46, ordered to be hung up in all churches, setting forth your obligation to maintain their rights! If now, after all this, they must be laid aside, being thus settled, without ever being heard, my soul shall have no share in such counsels and such a resolution. I know no law against them, but the law which I abhor to think of. We know under what impressions they were, that took them away. The law punisheth them for not coming thither; and yet they must not come. There are places assigned them by law, to sit in; and yet they must not sit. No law without consent of the Lords in Parliament is good, but void. Lord Coke is clear that no law is of force but what is made by the three estates.
An expedient hath been offered for them with a salvo, but that will not serve the turn, to say we give them a liberty to sit, or be admitted, and yet to put such shackles upon them as they cannot in honour sit. It is but nugatory thus to put the Petition and Advice upon them. If not, let us say the laws of God and man are of no force in that point.
It is objected against them,
1. That it is contrary to reason, that there should be an hereditary judicial power in them.
I wish such new reason may not proceed from our new lights. Practice and experience many hundred years, show the reasonableness of them.
2. It is objected that the Peers sat at first upon account of their ancient possessions, and their great proprieties and estates.
And have they not so still, or if they have not, what have they that sit there ? I could name five or six of the ancient Peers that are not disabled from sitting; that have estates and interests equivalent to buy out all that sit there now.
3. It is objected that they are considerable enough already. What security that their greatness may not be our danger ?
This is an argument not fit to be answered with less than 20,000 men.
4. It is objected that there is a House already in possession.
But to say they sit by a law, is begging the question. If that be so, the controversy is at an end. That objection was waved yesterday, and is now made again.
I am much troubled what to say in the whole. I can say I am plain-hearted and single-hearted. I am not for those prudential ways of weighing conveniency, to do bur duty. Something of the innocence of the dove, and a little simplicity of the gospel will better become this House, than all the politic prudence in the world.
But you may say you wonder what I drive at. Shall we meet and do nothing ? shall we leave all things in confusion, if we come not to settlement? I am sensible you are under straits every way; should this question pass as is proposed, all your work is done, but money. If this question should pass in the negative; then your next question may be, for the old nobility; the old other House. If that be carried in the negative too, then you. must either usurp the same power we have so much decried, and shamefully retract your vote for two Houses, or else do nought.
But what then shall we do ? For a week together, it hath puzzled the wisdom of this House. It is our duty to do things that may tend to a settlement. If we could avoid the owning of this House, without endangering our interest abroad, I would it were set aside. I hope the major part are not against the right of the old Peerage.
This vote going alone, is much more dangerous than if it go as part of that Bill, and it is fit that Bill should be the first thing that passes.
When things are in some measure stated, and this is passed, then the first transaction may be, to carry up your Bill to the persons now sitting.
There is a necessity to go on in business. You cannot do without transacting. It signifies no more than trafficking, trading, or bargaining, and the better bargain you make, the better for the people. Therefore, in order to the juncture of present affairs, I would make as good a bargain as I can.
As additions to that question, I shall offer,
That in respect of the present constitution or juncture of affairs, this House will transact with the persons called by writ, and now sitting in the other House; not intending hereby to exclude such of the ancient Peers who have been faithful to the Commonwealth, from their privileges of being summoned, and sitting members of that House.
Mr. Disbrowe. Stood up to speak to the question (fn. 28).
I being called out at twelve, could not stay to hear the end of the debate. Divers others, it seems, spoke to the question, and to the additions offered; but the House rose without a question, having sat till two, and adjourned the debate and the House till Friday morning.
Resolved, that all Committees shall sit, notwithstanding the adjournment.
Resolved, that Mr. Duckett have leave to go into the country for fourteen days.
Serjeant Maynard being chosen for Newtown and other Boroughs, made his election for Newtown, and new writs ordered to issue out for the other two places. (fn. 29)
The Committee of. Grievances sat, and heard several Petitions, and heard Counsel between Long and Edwards about the Roll's Office in Chancery, where Lady Jermine offered her title above them both; but hers was waved till the other was tried. It was held by divers, to be improper for the Committee to meddle with it, being depending and remediable at law, but it was notwithstanding retained: an ill precedent.