Diary of Thomas Burton Esq: Volume 4, March - April 1659. Originally published by H Colburn, London, 1828.
This free content was digitised by double rekeying. All rights reserved.
Friday, March 18, 1668–9.
Mr. Chaloner was saying, that if Moses, the greatest lawgiver, had been to read upon this law, he might have gone to Mount Sinai— (fn. 1). He concluded that the members should withdraw. Mr. Nathaniel Bacon had spoken before, and Captain Baynes said he had spoken, but Mr. Speaker vindicated him, for he had not spoken.
Sir Thomas Stanley. As to the withdrawing, it is urged on one side that on necessity they ought not to withdraw; others, on a formality, that they should withdraw; so that formality ought to give way to necessity.
He said a great deal in defence of the necessity of not withdrawing; and happened to say that the gentleman that moved for their withdrawing, (fn. 2) was, he hoped, by this time convinced of his ignorance.
Sir Arthur Haslerigge was content to wave it, and pressed that they might withdraw, after they had been heard all they could say. None ought to sit in this House but on a legal foot. They had none; but till they were withdrawn divers were not free to speak.
Lord Lambert. I always wished a firm union; but this is not the way. That which sticks most with me is, that they are not here on a foot of law. If it be the opinion of the House, no doubt but they will, and must withdraw. The argument runs thus: if you be not united to Scotland, you cannot be united. (fn. 3) I understand not this; you are a Parliament on a clear foundation of law. They that did confirm the Act of Union (fn. 4) were no Parliament. It was a rule that the King could not be deceived in his grant. You confirm a patent, and if you confirm that which was no law, the confirmation is void. The Parliament know nought of that law. They never knew aught of it but the title, and copies may differ.
The distribution is such a formality, that if it be not in this House, whosoever shall be thought fit to be brought within these walls may be brought in. There is as much difficulty and danger in this, to leave it to the Chief Magistrate, as may be. It utterly overthrows the privileges of this House.
If it was a Parliament that confirmed it, whether was it well done. A copy was but at best brought in, and that by a single person, (fn. 5) without any directions of this House.
I appeal to themselves, upon principles of reason and prudence, if their liberties be not as much concerned as ours, for them to go out. If there be no law, there is no room for prudence. You ought so to clear your foundations, that other ages may say it was done by a free representation of the three nations. It is the undoubted right of this nation, that none sit here as members, but those that are called in ac cording to the laws of this Commonwealth, and by the consent of this House.
Two questions are before you, both as to right, and to withdrawing. You are a Parliament of England, Scotland, and Ireland. If I had understood that you had been only a Parliament for England, I should have been the first that would have moved their withdrawing; but I find the case otherwise.
The sense of the House cannot be known, but by a vote. In my opinion, the sense of the House is, that they shall not withdraw. If they withdraw, they must withdraw to Edinburgh, till there be a reunion, and that cannot be done, till in another way. I hear none say they are strangers, but as Scotchmen. If they be strangers, let them withdraw.
There is but only an excrementitious part wanting, as hair, or nails, or such a like formality. All the exception is the want of the formality of distribution. That is fully answered by the Long Robe.
There is much difference between no legal right, and not a full legal right. I cannot say a clear legal right is made out to you. Admit a defect be in formality, yet eguitas sequitur legem, in my opinion, though it is said there is no room for prudence, because there is no law. You may dispense with it, as to the strictness of it. Packer's case (fn. 6) was before the Committee of Privileges. If that had come before you, as it was moved, then all that sit on that foot of non-freedom or non-residency, must have withdrawn, while that was in debate.
But they will say, it has been overruled in Parliament. Have not they sat here by judgment of right ? An equitable right is clear to them by the Agreement and the Union. You had not then reduced half Scotland. It conduced more to peace and conquest than your sword did; brought down your highlands to your lowlands; and now you are able with a small handful to maintain your ground. The Protector and Council, by the power or practice they then had, I may say their power, did carry on this union, in the intervals of Parliament, even to a distribution. I wish they had never done things more blameable. This was confirmed by Parliament.
You have two nations in one continent. If you are united you cannot so easily be conquered. If France and Spain should unite, would not you be stronger to defend yourselves ? If you shake them off, will not France be glad to unite with them, and restore them to their ancient privileges, which were very great ? If you do de novo treat with them, you must treat with them as a conquered nation. Will not this look like betraying them? Never lose the reputation of the English nation, which has never been yet tainted.
They are a nation that have the greatest face of religion of any Protestant nation in the world. I would not have any take offence at it. If it be but called a form, I wish we were arrived at that. It is a good sign that the power of godliness is also there. Where I see a profession; I leave God to judge the heart. I was never there; but a gentleman told me, not one church where the word of God is not taught, &c. (query, query.)
You are very insignificant without them. What could England do, before you were united? When they were a spear in your side, you could not stir any way but they were in upon you. If you exclude them, you can have no return this Parliament of members from thence. Your army are in arrears. (fn. 7) You cannot lay taxes on them, without them. All the burthen will lie upon England.
Instead of their withdrawing, declare their right. Otherwise, five parts of six must withdraw upon any petition brought in against a single person upon the account of nonresidency, (fn. 8) which I would fain have answered.
Sir Henry Vane. This gentleman's discourse about the Union has called me up. I shall represent the true state of that Union. Admitting the premises agreed by the whole House, I shall deny the conclusion that it is right, convenient, or possible to admit them to a right, either in law or fact, to sit here.
Those that you sent to treat, (fn. 9) had their great aim to settlement and peace, and to lay aside all animosities. The difference arose about imposing a king upon us. We conquered them, and gave them the fruit of our conquest in making them free denizens with us.
It is the interest of this nation to own and countenance that union. None of my arguments shall weaken it. The Ordinance for Union (fn. 10) relates to this declaration. It was thus brought back again by your members from Scotland; that there should be one Parliament, by successive representatives. This is your Union, and, when opened, none will deny it. To the completing of this, accordingly, Commissioners attended the Parliament. We agreed then, the number to be thirtyfive to represent Scotland. The Parliament accepted the result from ours and their Commissioners. A bill was prepared (fn. 11) to pass, if that Parliament had not been broken up. In that respect, the public faith of the nation was much concerned to promote it. He that will deny it, departs from the very cause we have managed.
It is to be confessed, the Union was perfected in the time of last Parliament. It only wanted the last hand, which should have changed the constitution of Parliament. There was no foundation in law in the Long Parliament to receive them from Scotland or Ireland, till we had settled our own constitution. The Committees that came from Scotland did not sit here, but only treated with your Committee.
You must vary your own constitution as well to make you fit to receive them, as for them to come, and therefore I moved that the writs be read. It was the true meaning of the Petition and Advice to distribute it so, by reducing their own number, to give place for Scotland and Ireland: This the Long Parliament were about to do, to reduce themselves from five hundred to four hundred. (fn. 12) This was not done, that Parliament. I told you the reason. But this was done by the providence of God, by the Instrument of Government, a new constitution, which reduced our own constitution suitable to that for Scotland and Ireland, and accordingly the Parliaments in 54 and 56 sat. This was reserved to be done by the Petition and Advice; but prevented also by the providence of God. It was left to no person to declare it but singly, as that Parliament should declare. That was left unperfected. (fn. 13)
It is one thing for us to be united and incorporated; another thing to be equally represented in. Parliament by a right constitution. There is a great difference. As soon as you are a representative of that Commonwealth, then must the thirty be called and not before.
There being a failure in the Petition and Advice, as to the distribution, they were fain to have recourse to the commonlaw and the old statutes. There being no Act of Parliament for another distribution, they were forced to call you as we left it in 1648.
Now the single question is, whether, by the Act of Union, any right was created to any one shire or borough of Scotland. If they send them, you cannot receive them, without overturning your own foundation.
You being thus called, upon the old bottom, when no law was afoot to call Scotland or Ireland, your Commission is clear. Otherwise, they were brought hither upon you, that if you will see it, you may; if you will not, you may let it pass.
2. That there is no possibility of receiving them, till you agree, by Act of Parliament, on the distribution, and other things. To say the Chief Magistrate may do it, is expressly against the Petition and Advice. He cannot do it, it being neither in law, state, nor in the Commission.
Durham had as much a possessory right: (fn. 14) why was not his oath broken as well in that as in this ? Haply he knew more what the people of Durham would say, when it was applied to.
Honestly and uprightly make it your first business to settle your own constitution. It is said, you go slowly on. Whose is the fault ? If no new commission had been sent out, you might have gone on to have done a great deal of good. This is an imposing upon you.
I would have this to be your first business. To lay foundations. Obstructions in the fountain are dangerous; that body cannot live. There is no remedy, but to do that by law, which cannot possibly be done without it. The single person may as well send one hundred as thirty, and all for one place, and so rule your debates as he pleases. This is the highest breach that can be. Where are you, or posterity, upon the account of prudence ? You see how the state of your affairs is abroad: how the Swede is, since your mighty debate. France and Spain are very likely speedily to agree. (fn. 15)
It is an ill time for any man to assume to rule without a Parliament. In this juncture of time, I believe the Protector does not know the state of this business. If any counsel him to the contrary, it will fall heavy upon them. I hope you will not call it an excrementitious formality: (fn. 16) that is the very essence and being of your privilege.
Put the question, whether they have by law a right to sit, and that they may withdraw. If they do not, it is against the law of nature and nations to deny it. If they have no right by law to sit, none will insist upon it that they ought to continue.
Mr. Solicitor-general. To ground aught upon what the Long Parliament did, none will insist, as any foundation. It was not perfect. That was indeed a ground for an union, which I must call an Act of Union. By that, thirty were to come and sit in every successive Parliament.
A great objection is, that there is no legal distribution. I lay no stress upon that. The Petition and Advice is affirmed, and does neither add nor diminish from the precedent law, unless there were negative words. Nought so clear; for if it alter it for Scotland, it alters it also for England. I think it goes to neither.
The writ for England is the same as has been since Henry IV.'s time. 7th Henry IV. there was a complaint that knights of the shire were not duly chosen. Therefore, that Jaw was made to remedy that inconveniency. Before 31 Edward II. there were no such words as secundum formam statutorum. But as to the power of consulting.
I must deny that none can sit here without consent of this House. I never heard it disputed by any, but the King might send a writ to any borough. More sit here upon that new erection, since Richard I.'s time, than those that sit for Scotland and Ireland. Examine if Sir Henry Vane sit not for such a borough. (fn. 17)
Calais sent, I know no Act of Parliament for it, 1 Edward VI., and in Queen Mary's time. I have the writs and indentures here. Calais was lost after that time. (fn. 18) The same writ went for Wales that did for England. There was no new writ. No more needs for Scotland.
We have admitted the distribution for two Parliaments, de facto and justly. It were hard to turn them out. Quod omnes tangit, ab omnibus debet approbare. You will tax them, and yet not take in their consent. It is more just for us to let them sit, till there be a law, than to put them out, till that formality be perfected. That is the only question before you. I cannot advise it to be well for you. The Petition and Advice knows not how it can be a Parliament of England, Scotland, and Ireland, if you have no Scotch and Irish here. If you turn them out, you can make no law to make them sit here. You break the union, and then must you come to a new union.
It was never yet said that they were a conquered nation. If they were so, it is not just to break your treaty with them. You promised it to them, to take them into your bosoms and make them one with you. The Romans never did well till they did so. Because the Kings of France and Spain are like to agree, and Sweden in an ill condition, I understand not why we should now break. It is more for bur interest now to unite than ever.
The question will be now, whether you will turn them out, not for admitting them, for they are admitted. The debate was brought in against the orders of the House; but I shall not now dispute of that.
Put the question, not upon their right. You have called thirty. You have made a building, haply three stories high, but the house is not well divided. Will you, for want of division, pull down the whole building ?
As to the argument, that the Act of Union is no good law; this argument makes way for Charles Stuart. (fn. 19) Your judges have judged upon it. This argument will confound all that has been done.
Before 2 Henry V. Acts of Parliament were not thrice read, but it went by way of petition. The King then took what part he pleased. Then comes that law, and says the King shall take all or none. When a law is on your rolls, can any man except against it for a formality ?
Afternoon, at half-past Three.
Serjeant Wylde went on, and concluded that they ought to withdraw. It seems, in the time of the Long Parliament, he was always left speaking, and members went to dinner, and found him speaking when they came again.
Mr. Drake. The point of withdrawing is a matter of greater consequence than to be decided upon a bare motion, on account of modesty. (fn. 20) It is not personal, but national. It is hard for them to withdraw. It will be a dangerous case to us. We stand in our own right, if we reject the Union; and coming to Parliament is the greatest ratification that may be.
You see, by Sir Henry Vane, (fn. 21) what was the ground of the Union; a foundation for a Commonwealth. I hope you will consider it well.
Mr. Lockyer, the younger. I grant that those ought not to sit within these doors who have no right; but I will invert the proposition. If they have a right, then they ought to sit, which is dear they have. Their right is so clear, that nought can be clearer. I shall so far vindicate my modesty, as to declare that I am not free to withdraw.
Mr. Ross. Call your members for England out of the Chambers. I hope there is no need of calling any of the members for Scotland. I believe none of them had the ingenuity to withdraw. (fn. 22)
He made a long narrative of the original transacting of the Union; observed, that a difference was made between making men citizens and. giving them suffrages; and said something of assisting Charles Stuart.
By the Declaration, a right of suffrage is given to that nation. It was their intention, as soon as ever they could make it practicable. The Parliament of England surely intended to make it good. The Ordinance and Act of Union did it. The power then in being held it out. We were not bound to observe the law. of England, but the law of nations. The Protector and his Council was then the power in being. Shall a foreign nation require that, when they transact with you ?
I understand not that ever the law of England was the law of Scotland, so that our distribution should be ruled by the law of England. Therefore, the rule must be, the transactions between the nations; the public faith of the nation held forth.
There is a great difference between the proportions that they had before, and what they have now; yet this is the proportion they are content with. There is no complaint The best way to save the nation of England is to keep your faith. I would have your question to be, that they have a right, and that they ought to continue. As for withdrawing, I hope it is not expected.
If you should be about to distribute an assessment upon a county or a nation, must all the members that serve for that county or nation withdraw ? If any argument prevail with me, it shall because you desire it; and, it may be, when the question is put, I may be in the next room.
The manner of this Union has been fully related to you. I was at the drawing of that declaration. The Union of that nation was then calculated for a Commonwealth, and not for a Monarchy. England was then, by the blessing of God, governed by its own representatives. (fn. 23)
As to the point of right. If they had right, and if writs had not been sent, they might have demanded it at your doors. Yet, if Edinburgh had come and demanded that right, you would not have granted it.
As to prudence. It is dangerous, at this time of day, to endow the Chief Magistrate with such a power to issue out writs to what place he pleases, to send whom they please, when you know not how you will bound him and limit him.
It cannot be prejudicial to that nation not to send members. It is much charge to them. They have a law which cannot be applicable to our laws. They must not have Englishmen imposed upon them by letters (fn. 24) to enslave them and us too. None can be chosen there (fn. 25) but of their own sheriffdom. It is absolutely to enslave and reduce them to a province. You are not ripe at this time to admit them; and though I differ from that gentleman in the means, I shall agree with him in the end, that the question be, whether, as things now stand, they have a legal right to sit here ?
Sir Anthony Ashley Cooper. None have spoken to the legality of the Petition and Advice. It was demanded, but had no positive answer. All that have spoken to it, have fallen off, upon consequences. It was under force. If. a law under force must bind, actum est de lege.
They are persons very fit to be united to us; of the same religion; the same continent. They have been faithful and assisting to you. I am as much for the freedom of that nation as any man; but he that wishes his son well, does not give him his land till he come out of his guardian's hands. The case of Wales is famous. Did you admit them to a legislature at first?
I am as much for the Union as any man, and when they are united, I would have them have as fair a legislature as may be. They either come now on the account of their own interest, or upon the interest of the Chief Magistrate.
Mr. Morrice. Union is a precious term, and Pliny tells us, it came up from the sea, and was begotten from Heaven. But as we must not make a burnt offering, so let us not make a peace offering by robbery. (fn. 26) Let us not, in building another's city, pull down our own. The Romans did never give jus civitatis, but to those that were naturalized by a long experienced union. I would have them naturalized. As Paul said of Onesimus, that they may depart for a season that we may receive them for ever. (fn. 27)
The question is not whether they shall be members, but whether those now sent sit upon a legal foot. I can never agree that to be law which is dissonant to reason. If we be not judged, here, of reason, we sit here without reason.
One gentleman moved that there might not be one word of law in the question. He well knew they had no law to sit. Prudence becomes a judge, but prudence is not the law. By that rule you will bring in all prudent men, if law be not the judge. (fn. 28)
I doubt you will hear, ere long, that this distribution is too small. As one seeing a small army said, they were too many to come as ambassadors, but too few as an army; so this number is too great for a conquered nation, and too small for an united nation.
Cæsar and Bibulus were consuls. (fn. 29) It will be like the Athenian subsidies. They say it is but the Parliament of England, Scotland, and Ireland, consisting of Englishmen. It was the great policy of the Pope to include the western and eastern patriarchs in his convention, who never saw it. He only gave them the name of it.
Thirty of the senate at once did invade the purple robe. (fn. 30) If you go about either manu forti or multitudine, to make them one in your family, it will not be long till they turn you out. It is fit they should withdraw, unless it can be made out, either by the law of God, man, or nature, or nations, that a man ought to be judge in his own case. Cambyses once uncased a corrupt judge, and made a cushion of his skin for his son to sit on. (fn. 31)
Major Ashton. By the order of nature, the first question debated ought to be put. That is to the right. This will make the elder brother subscribe to the younger. If you will do it, I desire to be heard.
Sir Arthur Haslerigge. This gentleman, being concerned, (fn. 32) ought to speak; but for any member to defend his not withdrawing, after he has been heard, I never knew it.
He cited the case of Malton, where a burgess was denied audience in his own behalf. (fn. 33)
There was a great debate whether Mr. Sadler should be heard. Some affirmed, he stood up between the negative and the affirmative. Others affirmed, that he stood up, but sat down again, with his hat on, before the negative was put.
Sir Henry Vane moved for only two candles. (fn. 34)