Diary of Thomas Burton Esq: Volume 4, March - April 1659. Originally published by H Colburn, London, 1828.
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Friday, March 11, 1658–9.
Ordered, that Cole and Rodney's case (fn. 1) be heard this day sennight.
It was moved that Colonel Overton (fn. 2) being come to town, he might be called to the bar.
Sir Henry Vane. He is brought so weak with four years imprisonment, that he can scarce go over the floor. If you please, he may be called in on Monday. He is now a prisoner at your doors, by your commands.
Mr. Bodurda. I have something to offer which may seem to put you by your debate. If there be a question concerning three hundred that sit here, if there be withdrawing in the case of Major-general Packer, there is a member whose election was in question yesterday. His case is, that he was chosen a burgess, and was neither resident nor freeman. Counsel agreed the law to be so.
A learned counsel, Mr. Finch, (fn. 3) counsel for the member sitting, did press to be heard in this case, and would make it out.
This is but upon a private counsel's opinion, Mr. Finch, a person to be honoured. (fn. 4) I expected some great matter. This is no new case.
Colonel Morley. I have observed that all questions in former Parliaments have arose out of debate. Now, debate must arise out of questions. You ought to collect the sense. I wish I could hear arguments of legality and prudence.
Serjeant Maynard. I think every man that speaks in this House will not take it upon his oath that all he speaks in this House is law. The question offered is very proper and agreeable to the debate. If I be not satisfied in the right of it, I shall not give my vote for it.
Sir Henry Vane. You must be enlightened by the debate, before any question can arise; I would have the Petition and Advice considered. I have cast my eye upon it. I speak to the defect about the distribution.
They saw plainly that by breaking up the last Parliament there was a defect. If any distribution had been agreed on for Scotland, surely it would have been for England. The lawyers and judges durst not advise to choose according to any distribution since 42. If the Scotch and Irish be called by the late distribution, why not so for England?
They had a sure foundation to retire to, the law of the land, the old distribution. Then you will say, why did they not call another House? They could not call any but old Peers, and there was a bar before that which they durst not bite on, an act of Parliament. They set up another House de bene esse, and these members for Scotland and Ireland likewise, to see if you would swallow. They both sit on one foot.
They know their own imperfections: else you had heard from them before this. With England they durst not meddle upon another foot than the old law, (fn. 5) and you now sit upon that clear foot of law; and it is a great providence that you are now come together to debate these grounds.
Sir Walter Earle. I would clear what arises out of the Petition and Advice. His Highness is to rule according to the Petition and Advice in all things, (fn. 6) and in other things according to law. I would have it considered if this distribution be according to law.
Captain Baynes. Yesterday there was a general debate both of Scotch and Irish. You have now tied yourselves to debate upon Scotland only. None has spoken against the justness and reasonableness of their sitting in an English Parliament. The Act of Union agrees, that they shall have thirty members. I shall not now speak to Ireland. The case differs.
It is said, members have anciently been called from Scotland to sit here. It is offered you, that they can make their right out by law. If so, haply you will not think it fit that they should withdraw.
It may be both the ordinance for the union and the distribution are confirmed by Parliament. I suppose his Highness and his privy and learned council did advise about calling this Parliament. They had recourse to the laws of the land, for England.
I would not have us make a flaw in our whole foundation. We sit upon one foot, and they on another. I should be glad they could make it out by law, that they sit here rightfully; that they might not withdraw.
The question will not be, whether they shall sit here or no, but whether they shall sit, till they be brought in upon a legal foot of account. They had their votes in the Petition and Advice, which voted them out of this, so no great injury to them when by their own consent. I would have the record of the Petition and Advice before you, not a printed copy. Something may be put in as well as the article that is left out.
They plead the Act of Union, and that they ought thereby to have thirty members. If so, inquire whether they sit upon a legal foot. If that be not made out when you have heard them, they may then withdraw.
Mr. Lockyer. I hope you are satisfied it is no intrusion in those members. I shall not speak to the Declaration, nor to the act of the Long Parliament, (fn. 7) nor to the treaty about the union. I shall confine myself to the right of that nation. That they had a right, and have a right to sit here.
The 4th article (fn. 8) makes it out that the distribution shall be as agreed in Parliament. A bill of union was debated in a grand committee, and ready to be reported to this House. In that was a clause that thirty members should be for that nation. The House not having time to pass this, they did confirm the ordinance of union, wherein were provided thirty members for Scotland. Pursuant to this they had a possession last Parliament. I shall not say we have as good a right as England, (fn. 9) but we have a sufficient right.
Although the nation of Scotland have a right to send thirty members, yet no part of Scotland has a right to send any. That the distribution is not equal, is not consequent to any member in this House, unless he speak for a county or borough of that nation.
An assessment was laid upon Scotland by the last Parliament. You regard not the distribution, so you have your whole sum. If you have given us thirty members, you have your number. What have you to do more ?
Again: If the Parliament of England be obliged to give this nation a distribution, an equal distribution, if that nation be in possession of this distribution, as equal, it cannot be broken. If this be, bonâ fide, our possession, I say, then, you are obliged to give the nation this distribution.
I answer: there is a distribution according to law. I shall make it out upon the Petition and Advice;per the fourth and sixth articles. (fn. 10)
Whatsoever is not disposed, per Petition and Advice, must be according to law. It is confessed out of their own mouths, that it must be according to law. There was a law in being, before the Petition and Advice.
We have sat here three Parliaments upon that distribution; and have five years possession. By the law of our own na tion, and upon the Petition and Advice, we have right. Some gentlemen will say we have forfeited this. Let that be made out. Your and their enemies would gladly throw this bone between you and them. There is only the want of a bare formality.
Mr. Manley. It is the happiest day that ever we saw, to see them here. I shall never go on any thing that the law will not warrant. I would have a clear debate, that neither party be entangled. Let your question be, whether they have a right to sit or no.
Colonel Terrill. I doubt, not that worthy learned gentleman (fn. 11) spoke rationally. I heard not a word he said, but that they had a right to sit. I shall speak to that claim of right.
The writ is not grounded upon the Petition and Advice. It is a writ at large. The writ should have showed who should choose them. They might be chosen in London, or by votes or letters, (fn. 12) for aught appears.
14 Henry VI. (fn. 13) The King sent letters to the Sheriff to return such knights as he named. There was an Act of Parliament to confirm that, else all done that Parliament had been invalid, and the Sheriff punished besides.
5 Henry VI. (fn. 14) A statute was determined by the determining the Parliament. The dissolution of the last Parliament determined the article in toto. (fn. 15) His Highness being but one estate, could not restore it.
If we sit per the Petition and Advice, I agree with that learned Dr. Clarges; (fn. 16) they have a better foot than we, for their number is grounded on thirty. Our number is uncertain. It is a nemo scit, how a Parliament of England could sit on that foundation. Seeing they could not ground it on that, they had recourse to the law of England. We sit by that writ, and cannot sit by any other law.
I would have the record brought hither, of the Petition and Advice. A printed book is not enough. It may be mistaken. Observe, the word Highness in the fifth article, and word "successor" in the explanatory, carry it to perpetuity. In the name of God, let them carry it! but consider it well. It can never relate to the fifth article. Successor is a word of no signification in that place. (fn. 17) I have the form of the writ in my hand. It relates not a word to the Act of Parliament. That was not pursued. His Highness, having but a personal power, never pursued it. There was never any constitution of a Parliament according to this institution, of the Petition and Advice. If he never executed it, then it is impossible that his successor should do it.
I acknowledge Acts of Parliament ought to be construed as wills. (fn. 18) If it appear that his Highness called a Parliament upon the Petition and Advice, then the other House is the Parliament, and we are not; for we were not called by that Petition. If his successors may call, then may his heirs, and he may appoint his successor. I would have an Act of Parliament brought in to confirm their right.
Mr. Attorney-general. The first and, last part of what he spoke, concerned the Scotch members: the other part—you heard it.—I shall say nought to it. Much of this was said three weeks since, in the debate of the single person, (fn. 19) which is not now before you.
I am glad it is agreed by that gentleman, that the Petition, and Advice is a law. He has read upon it. As you are called hither, not as counsellors at law, but as counsellors of state, you must advise what is best and safest for the good of the whole, and not go upon quirks of law, and talk of England, and never come to Scotland.
As to arguments of prudence, if you dissolve this of Scotland, then is the Act of Pardon § gone, and the Act for settling Courts of Justice and Court Barons (fn. 21) there, is gone. Acts for Excise, and for taxes, and the Act of Union (fn. 22) also gone. If there were a formality wanting, whether is it not better to dispense with it, than to throw off a nation ?
Mr. Secretary. All Colonel Terrills arguments went against the other House, in answer to a learned Serjeant's speech. I shall not mention that now. I shall come as near the question as I can, where it pinches.
The Union, I perceive, is agreed on by all. The ordinance, in 54, to send thirty members from Scotland, was confirmed in 56. That Parliament, in 56, styled themselves knights, citizens, &c. of the Commonwealth of England, Scotland, and Ireland, &c.
This Parliament, of necessity, must consist of members sent from each nation. The means are made as suitable to the. Petition and Advice as could be. The Protector was bound to call a Parliament out of the three nations. He was guided by the Act of Union as to the number, and by former distributions as to the distribution. He found them in actual possession of it, two Parliaments before. He was sworn to maintain this right. He had broken his oath, and turned them out of this liberty, if he had not done this. Should his Highness put any doubt in this, his safest way was to send his writs according to foundations before laid. Else, in so great a case, he had seemed to rob them of their right. They are before you. Put the question to continue them.
I would have them united according to a foundation of law, that it might be unquestionable. Again, union gives not a right to send members. Wales sent no members, though they were united in 12 Edward I. till Henry VIII.
I make a question whether they think themselves well represented by persons chosen from hence, that never saw Scotland, but in a map. Is this for Union ? I question whether thirty members for them be enough.
I conceive there is no record before you of that Union. You should repeat the Ordinance (fn. 23) itself.
Serjeant Maynard. It argues such a thing in being, by saying it shall be in force. I cannot come and dispute this in Westminster-hall. If the Protector had done it out of design to out-vote you, he would have put more. (fn. 24) I would have no such thing spoken without evidence.
Serjeant Maynard. We cannot, in leagues and contracts between nations and nations, impose upon one another. It is jus gentium must; determine it. This Act of Union passes it out of our power to alter it. It is passed and confirmed by both nations.
I shall not, one way, nor other, dispute upon what foot you stand. Admit, if you should question this, whether may not they say, but a hundred members are reasonable for you. You call them a free people, and yet will let them neither have a Parliament at home, nor have liberty to sit here. You make laws to bind that nation. You cannot bind them, but by that Act of Union.
Either you had a power to make laws for that nation, or you had none. How, then, can the laws touching taxes and the like bound them, if they have no representatives? I understand not how this can be answered.
As God has united us by situation and by the law, why should we endeavour thus to break it ? Edward I had reduced a great part of that nation. He did not own them as a con quest, but claimed part of that nation as his own. He sent for Burgesses from thence to Parliament. (fn. 25)
If you turn them out, do you not then judge that the Act of Union is not a law? Can they take it otherwise ? Is it not a tacit admission, when you make laws, with them, to lay taxes on them ? You do, at least, admit them to be members with you.
Afternoon at half-past three.
Mr. Gewen. I honour the Scotch nation, but find no law, justice, nor right reason, why they should sit here. The argument for conveniency is no more to me than that for our fathers' polygamy, vitium temporis, non vitium hominis.
It is not for the honour of the English nation to have foreigners to come and have a power in the legislature. They are but provinces, at best. In justice, you ought not to admit any other to have an equal power with your own nation. I remember what an inconveniency it was to have so many bishops; so many votes for the king; so many votes to comply with the Chief Magistrate. Res loquitur.
I have not tasted of the waters of Meribah (fn. 26) to be conten tious, but hearing those reflections upon these nations, I cannot be silent.
Dr. Loftus went on, and said, that there were a sort of people in the Lords' House, formerly, that went ad nutum Regis, (fn. 27) there are sixty now that vote ad nutum protectoris.
Serjeant Wylde. I find those gentlemen sometimes cry up things done by the Long Parliament, when they make for their turn, and again reject them when they do not. It was the most famous memorable Parliament that ever was, since Magna Charta.
Serjeant Seys. In the books there are an infinite number of cases to show that the successor is always bound where the law is but personal. They that would advise that the word Highness does not bind, successors, may have their deserts, as well as he that advised Henry VIII. to avoid Magna Charta, because he was under age.
The divine, on the fast-day, (fn. 28) told us, if we were always planting a tree, it would never grow. My motion is, that they may continue, &c.
I am not satisfied with the Act of Union. What was objected is not so clearly answered. For the House to confirm a record, of which they have no transcript, is strange. If you were to confirm an indenture, you would have a transcript, and on record here with you.
I find not by the Petition and Advice that either his late or his present Highness has power to call Parliaments from the three nations. There is something in that paragraph rather that he shall not call them out of the three nations, but as often as the affair of the nation shall require, not nations. Laws of the land shall be observed, not laws of the lands. I confess, in the fourth paragraph, there is a kind of implication that the distribution be for England, Scotland, and Ireland. These are not of constitution, but those words are.
Commonwealth and kingdom are synonymous. I instance in Wales. The Parliament of England made laws for Wales, after it was incorporated, before they had any members. The like, when our kings had foreign dominions in France, Aquitaine, and now Jersey and Guernsey. They made laws for them here. I take Wales and Scotland to be all one.
If this Parliament should say they will lay a tax upon this nation in such manner as shall after be agreed on, the Parliament rises, re mfecta. There is no distribution agreed on. If it be in the Protector's power to distribute (fn. 29) as he pleases, he may lay it upon one country. They never had possession, since the Act of Union. Unless you admit them now, they never have had any possession. If the Protector had been successive and hereditary, I see not but the case might be otherwise.
As to the second objection, ab incommodo, from a breach of Union, there is no such matter. Does it vitiate any of your proceedings, more than admitting two members for Higham Ferrars? (fn. 30)
No doubt, the gentleman that last spoke, had well digested cases of precedent. I have not so good a memory as to mention them all; but if that worthy gentleman may please to remember that some of them have been long since answered, viz. that of Wales. Wales, it was told you, was made part of Engknd. It was hot the Commonwealth of England and Wales. This is the Commonwealth of England, Scotland, and Ireland. It was one part of the agreement with that nation, that there should be an Union. It is said, there was no Union till the last Parliament, and no possession till this Parliament. By that very admission, they have a possession. The precedent is not so dangerous. As to that of laying taxes, the case differs.
The honour and justice of a Parliament is engaged, that they shall have the fruit of what they now have a possession. It proposes an impossibility, that they should be shut out, till an Act of Parliament call them in. This is to set them aside. I would have the question put, that they shall be continued.
Mr. Knightky. Though I am not satisfied fully of their legal right, yet in their equitable right I am not against their admission. They have an article for their title. No indenture nor decree outs an equitable title.
Cui conceditur aliquid, omnia necessaria concedentur, was well moved by a learned gentleman of that country. (fn. 31) If I grant you twenty trees out of my wood, if I make you not a gate, you will make a gap. We must do like prudent men, not as counsel at the bar to plead, but to advise. It is no dishonour to them, that we have brought them into question. If you please, put the question for their continuance, I shall give my yea to it.
We are stopped by our oaths, and the Lord Protector is also, stopped by our Act of Union, and by our Act of Recognition. We cannot alter the Union. All the parts of the Commonwealth ought to contribute to the legislature.
Queen Elizabeth made way for it. (fn. 32) They always declared she kept her virginity purposely to bring forth such a happy first-born. (fn. 33) King James endeavoured. (fn. 34) This Union must be preserved by natural means, and not by force. This is the natural way to preserve them in our bosom, by that happy accession of them to our legislature.
As to the legal right. The Declarations, Act of Union, and Petition and Advice, have been so fully spoken to, both by members for that nation and our own nation, that I can add nought to that. What is objected against it is but as the Tweed, which a man may easily wade through.
It is agreed that Berwick is a part of Scotland; and we have members sitting here for Berwick. (fn. 35) Let us not do what our posterities may for ever repent. I should thus far consent that an act may be brought in, if it be but declaratory. My motion is to continue their sitting.
Mr. Scot. Which of us have said, (unless one,) that the Union is not desirable ? It is not so voluntary on their part. Are you not forced to maintain it with an army at 11,000l. per mensem? It is hearty, it seems, on one side. We sent our own commissioners to invite them to an Union.
They claim their title from Edward I. (fn. 36) Haply those were sent for from Scotland to treat, but none makes it out that it was to have part in the legislature. Edward the First's title and practice is no rule to you.
All the constitution of England, I perceive, is built upon intentions now. Another House, upon intention of another House, and his Highness must prosecute this intention. The like for the distribution of those members. What sit you for, if another must supply your laws by his own implication ? If you rise re infecta, whose fault is it ?
Possession and intention is all that the Chief Magistrate or the other House has. The like title is this now claimed. It was told you if this be not admitted, Major-generals will come, or you must fight for the other House after. (fn. 37)
I would have us give them a title irrefragable, a coalition, indeed, when it has had your sanction. Till then, they are not united to you. Till then, they are a wooden leg (fn. 38) tied to a natural body.
We use not those words expel, eject, or the like. This is like putting one in a bear's skin and then baiting him. (fn. 39) If I let another, man set dung upon my land, shall this carry away a title to my land. By this possession, all they have is but a single constitution by implication from this House, and by exemption of the single person. This may be done by declaring you need no concurrence of another House. If you please, you may take the concurrence of the Chief Magistrate.
Colonel Whetham. We can judge of none but by their submission, their protestation. I cannot look into their hearts. I know they desire union as much as may be. I would have these reflections spared. I have occasion to know their nature by an employment (fn. 40) too honourable for me, that his Highness has been pleased to give me there.
Sir John Lenthall. That nation has had as free a Parliament as ever we had, amongst themselves. (fn. 41) All their fault is submission to us and our laws. We may very well allow them a yea, and a no, in making laws for us. If you should shut them out; they go home and tell their neighbours. May not they, by the law of nature, take a power to call a Parliament of their own ? I speak as well for Ireland.
Mr. Ross. (Scottish.) It may be thought strange that I should speak in a matter of this nature. But that the nation is concerned, I should hold my peace. That which called me up is to supply what the worthy person in the corner omitted. (Mr. Scot.) It was said, that all our affection to England was shown in 40. I suppose we owned it in 43. I suppose those acts are not out of mind. It is said our affections to another nation, to France, have been more expansive.
We are not to judge hearts. We expected not this language when we came. I shall not mention the consequence, what may happen, upon the prudential account, after so long possession, if this right, which we legally possess by the Union, be denied.
We are called Pharisees and hypocrites. I am sure I find none of that language in the declaration of 43; (fn. 42) there is nought there but your dear brethren: I hope we have not lost that title by our union with you. It is excepted, that we send not natives but English. It is a good sign that we reap the fruit of our union, when we can trust one another.
We have an affection for this nation. You have won our affection, not by the dint of your swords; but that worthy person, General Monk, to his honour be it spoken, and those worthy officers amongst us, have won our affections. (fn. 43) We are not so senseless as not to know better what is for our good, than to bear a greater affection for another nation than this.
We are said (fn. 44) to know no more but yea and no. I confess I am not able to contribute much to your debate; but I hope we are more than ciphers.
One gentleman complimented with us, and told us, that of civility and modesty we. should withdraw. A noble knight in the corner (fn. 45) made us a rhetorical speech to that purpose. For my part, it is not the rhetoric of the one nor of the other that shall compliment me out of doors. I think myself at home when I am here.
This, confused noise held for an hour, and doctors differed on the orders of the House, whether a candle should be brought to the table. It was brought thither, and carried to the table, per Mr. Speaker's command, and then set in the midst of the floor.
Resolved, that this debate concerning the sitting of the members returned for Scotland, be adjourned until tomorrow morning at eight of the clock, and that the same be than proceeded in; and that nothing else do then intervene.