Diary of Thomas Burton Esq: Volume 4, March - April 1659. Originally published by H Colburn, London, 1828.
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Saturday, March 5, 1658–9.
Prayers. (fn. 1)
Mr. Stephens. You have voted a Chief Magistrate, and worthily. You have said you will bound him. You have only mentioned negative voice and militia. This is a part, and a great part of the bounds. If his Highness have power to appoint another House, both as to numbers and persons, it is a great privilege. It is so far from bounding, that it will rather enlarge his power.
I conceive the persons that now sit in that House, do not sit by that law called the Petition and Advice. The explanation says, they "shall be respectively commanded," &c. (fn. 2)
1. The Petition and Advice will not enable him (fn. 3), and is not pursued; neither in truth is the writ grounded upon the Petition and Advice, but according to the common law. I move, therefore, to have the writ brought in.
The last Parliament, that very Parliament that made them, would not transact with them. (fn. 4) If they must be the members, why should not we approve them ? I think we are as full and as free a parliament as that, and we have as much right to approve.
I look upon the persons in the other House, as standing in a throng at a little door, through which they cannot enter. There they have stood three days, while we are thinking of an expedient how to bring them in. Whereas, if they had gone in one by one, all, or most of them, peradventure, might have been in before now.
I suppose it is not intended to exclude all, nor admit all. I shall never include all those, nor exclude all the other in a lump. (fn. 5) Why may we not then go to approve them one by one ? I am against that addition offered, viz. not excluding the rights of the old Peerage. I doubt that will exclude them in fact: I therefore move as before, that the old Act be repealed, and then they come to their rights of course; and I would have an Act brought in, that such of the old Lords as have demeaned themselves with honour and fidelity, for their long continuing so may be summoned to sit in that House.
Mr. Goodrick. I cannot let such a good motion die. My opinion goes along with it. I would have only this addition, "with the consent of his Highness," that being but reasonable; and that you begin at the end, and go through the list, to approve them.
Sir Arthur Haslerigge. I am a free-born Englishman. You may command me when you please to prison, but out of this House of Commons will I never go. I cannot be forced to sit in another House. I will never do it while I live. If you please to command me to fetch the writ, I will have it presently.
I would not have us wander up and down. My humble Petition and Advice to you is, that you would go with a Petition of grace to his Highness, to have the old Lords brought in. It is told you very well what fault there is in the Petition and Advice as to that point. Intreat his Highness to send some noble persons in there, to advise with you. Tell him your straits.
Mr. Gewen. I say there is no need of repealing that Act against the Lords. It is not to be thought of. It was never a law. Besides, how will you repeal it without the other estate ? They, now sitting, will never consent to pass it and destroy themselves. It is not an Act of Parliament. That Parliament died with the King, and so the Act is void of itself. Again, one House could not have power to destroy another; and therefore, without doubt, the old Peers have a right still in them. I know my twenty-four letters as well as the learnedest man.
The old Lords are not taken away. I therefore move that they be summoned. Let us do righteous things in righteousness. The persons sitting are honourable persons, but I should be loth to put them in another's right. Let the old Lords be settled upon the old foundation, and then you and his Highness add whom you please. I will except against none. Nemo lœsitur, nisi a seipso, is a true rule. It is said, the officers of the army are your army, under your pay. Shall then the single person make them a part of the legislature ? That is a disposition of them indeed!
I cannot agree the Petition and Advice to he a law, because made only by two estates. The single person and this House cannot make a law; besides, demittetur pars, relinquetur pars. There was but a piece of a House. We were not kept out by force, but by a vote. (fn. 6)
I hear prudentials much pressed upon us, why we should not call the old Peers; but I am not for prudence against righteousness. My understanding will never lead me to do any thing unjust. There was never any foundation lasted, that was not laid in righteousness. Fear hath had some influence. The serpent sees best out of the dove's head. There are two fears. The fear of man is a snare, but the fear of God is true understanding. I have no fears to do justice.
An addition is offered you, not to exclude the rights of the old Peers. That or any other addition may afterwards be made; but first put the question which lies before you, that you will transact with the persons, &c.
1. For a balance, and that is impossible now to be. No power in England can be a balance. There can be no support, no subsistence for it, but by force. That which made them a balance before, was their great power and interest in the nation. Then every lord of the manor was called. They represented their tenants. Thus the whole nation was truly represented by the Lords, and no need of a House of Commons.
The Commons will be apt to say, shall we have a vote stand between us and home ? The people will never return to them without force, or be subject long. We have known when the Lords refused to consent to a Bill, the Commons sent up a messenger to know the face of that Lord that refused it. Another time, this House sent them word, by Sir John Evelyn, (fn. 7) that if they would not pass an ordinance, they would pass it without them. (fn. 8) This will not be endured by the people, to have a sort of privileged persons to obstruct the passing their laws.
The Commons at present are much more considerable than at that time, and the Lords much less. Therefore, as to the balance of power, it will come to nothing. Heretofore the Lords' House paid this. There were so many blue coats in our father's remembrance, that sat in this House, as we could see no other colours there. Near twenty Parliament-men would wait upon one Lord, to know how they should demean themselves in the House of Commons. The Lords paid the Commons then, and we must now pay the Lords.
The King would have been glad to have had tonnage and poundage for ever. We are now having an excise for ever. (fn. 9) If this be at any time thought grievous, you can never lessen the charge nor grievance of the nation. You give them salaries to be your balance. For these persons, they depend upon the single person, and they are paid by the public revenue as well as the single person, so as you will have two negatives upon you, both in pay by that revenue, when you think to diminish it. If the King had stood in no need pf money from the people, we had had no Parliaments. The great Turk had been amongst us.
The second use of another House is to bar the sudden and precipitate passing of laws, for that, indeed, I would have the other House, either to consider of laws before or after they are considered by you; but I would have them chosen either by the people or by you, (fn. 10) so that they might rise or fall with you.
I shall move you, that you will not transact with those persons. There is much more to be said for the old peerage being neuters. They have no dependency. They are but as rich commoners now. They are no more. Let us have them rather than the other; as much more fit and indifferent.
Mr. Drake. We have every day divers questions. I desire you would hold us to the question. The argument of force is not of much force with me. If there has been any Parliament since 48, nay, since 42, which has not been under force, I shall be satisfied.
Paul and his fellow prisoners were not saved by the ship, but by the pieces of it. (fn. 11) If he had refused to be saved, unless he could have been saved by the whole ship, he must have perished. So we, if but saved by the pieces, must not refuse the means, nor fall out, with it.
They are a good balance. Their interest is deep enough. They that have engaged so much, and ventured their blood to be a balance against tyranny, cannot allow that any should tyrannize. To preserve their interest, is the best way to prevent confusion and destruction of the whole.
It is exceeding dangerous to restore the old Peers at one blow. When that is done, you have done with bounding. They will bound you. It is settlement I look after. By the same ground you may bring kingship, bishop, and all that. Nay, I know not but they, in conclusion, will put you out, if you put them in.
There is nought of constitutive power in the Petition and Advice. It is fit you should add some powers to them. I would have you constitute a House rather. It will make way to restore all the old Lords that are capable.
Determine whether this House shall be a constitutive or restitutive. Then you may mould a House, else they will bound you instead of your bounding them. This is the way to make this House serviceable, to the Commonwealth.
Mr. Annsley. I see it is growing so common to speak twice to a question, that I shall venture to speak again. I shall not speak of the right of old Lords. They have strength enough to stand of themselves. The House is so fully satisfied of the indispensable right of the Lords' House, as I think no vote will pass to exclude them, and there will be no need of restoring them. If you do not exclude them, they are good to be a balance between the Supreme Magistrate and the people, and to supervise and protect the laws.
That which is said of the interest of the Peers, that it has failed, is a great mistake. There are as great a number of Peers that have not forfeited, as were in the beginning of Queen Elizabeth's reign.
It was said the Commons will not bear them. We find the misery of that success. (fn. 12) I hope we shall never have that again. The multitude we represent are the great waters. We are yet under the miseries of that inundation. Perpetuating the excise, &c. was done by the House of Commons. (fn. 13) If there had been a screen, it may be, the liberties of the people had been better looked to.
If you please to go from addition to addition, else we shall never come to a resolution. I pray you let us go from point to point, if we can agree of aught. A fate hangs over us. We shall not know what to think of ourselves, as the people know not what to think of it.
It is objected, they are no House till "approved of by this House." The letter of the law is clear, "without approbation of this House," the words are exclusive enough. (fn. 14)
Many arguments have been used against transacting. It has been sharply urged upon us as to the persons, that the House consists of Major-generals that are taken out of the country, and set in a House of Parliament. (fn. 15) If it were so, they are taken from an unlimited power, to be circumscribed by a law. I fear not the persons, but their powers; but I am sure it will be our great unhappiness, if by the misfortune of this Parliament they should return to the (fn. 16) same power again.
But the strongest objection is; will you vote to transact with them before you bound them ? I know no bounds you can apply to them without consent, other than are put to them already. You cannot bound them farther till you transact. If you agree the powers, you must do it by a law. That must be by consent of both Houses, and your very carrying up a Bill to them is to transact. Why should we be unwilling to say what we actually do ? We cannot make laws without another House. Our own vote bars us.
I dread to think whither the revolutions of another war may carry us. I appeal to any man if aught can be settled but by a law, and that to pass two Houses. It is the most wise, just, and prudent way.
Lord Lambert. It is plainly and truly told you from the bar, that you must transact with this House. If this be the argument, there is no answering of it. You can make no laws without them. You cannot bound them. They already know their bounds.
If it be said you can neither bar nor bound, till you transact with them; if I might advise you, I would have some previous vote to assert your own privileges, and what is the right of this House. You may then easier assert the Protector's and the other House's rights.
Colonel Bennet. A good inclination appeared in the noble person that spoke last. He is willing that all things may be brought to a right end, as to the preserving the liberties of this House. He offered you some previous vote. As the people's temper or distemper is for no other way of settlement, but by a single person and another House, the question is, how we shall do this, and preserve and secure our own rights and liberties.
I shall conclude with that gentleman, if it be a duty that we must restore the old Peers, let us do it. The generality of the House stand obliged in conscience to the contrary. This point of prescription hath been so interrupted in all ages that it has no foot to stand upon as to that. Long after the Conquest, the great assemblies with the Prince, were but in one House. (fn. 17) The armory of the gentry did not descend hereditarily till after the Conquest. It became hereditary then, non sic ab initio.
This House is anciently the Parliament of England. The Peers have no such right. If it be not for the common good, no right can be pretended. The prelates (bishops, I cannot call them, it is a good name,) they had a right; the Court of Wards the like. They were jus sine jure. Hereditary, legislature has been destructive to the people of the nation.
If a posterity of ruined gentry and ruined nobility shall have it put in their hands to make a price of the Commons, and for a time have a party of the Commons to back them, it is as great a temptation as ever Achish, King of Gath, had.
There were hereditary officers in the nation; those were thought to be dangerous; hereditary sheriffwicks. Those arguments as to persons bind throughout; and bring Charles Stuart in manifestly, and with open face, not in at the back door.
There are not two in this House, I believe, against another House; but I am not absolved of that oath against a House of Lords. I believe others are so. Let us lay aside what cannot be taken up without peril, and take up that which may come to the best settlement for the present, and for our children. I am for a government with defects rather than for none at all.
Why may not some preliminary votes be made, to preserve our rights ? I cannot say the Petition and Advice is not a law. The law of nature bids us own the possessory power. Secure these things, let gentlemen propose them. I am for transacting.
Mr. Steward. I understand not how this right of restitution (fn. 18) comes before you. They do not complain to you. It is not judicially before you. Admit you be obliged to do them right, you must give them their ancient rights, else it will be no more than Naboth might have had for his vineyard, "a better vineyard." (fn. 19) If they submit to those bounds, they that were a co-ordinate power with you, are now a subordinate. The next House of Commons may bound them. They will not take it kindly from you. It is more for their service to transact with this House; saving the rights of the Peerage. By the constitution, his Highness is bound to call Parliaments of two Houses, according to the laws.
Captain Baynes. There is an inconsistency in your vote. If you vote them before you bound them, you cannot bound them afterwards. So it is, if you mean the old Lords. The like of the new Lords; for you cannot bound either, with out their consent. If you once admit this new House to be a House, you exclude the old Lords. Their number is up, within four or five. (fn. 20)
For the persons in possession, I should be much for them, if you could divide between them and their offices. The Government will then be solely in that House. It matters not what laws you make, or they consent to. If they have a mind to break in upon a paper law, they have a force to do it. If you go to balance a Government, if it be not equal in power, it matters not what the law be. If the militia be in another House, that House of Lords, you may be, or may bear the name of a House of Commons; but if you will not give them money, they will, in process of time, levy it without you. They will do it de facto, and better so than de jure. They have twenty-two or twenty-three regiments, divers garrisons, and the Tower of London.
If it be said, they have this power already, let us go transact. Admit they have it de facto, let us not give it them de jure. But I would have them come to this pass, either to recede from the other House, or from those employments, and their dependence upon the single person and the people's purse. And I would fain you would find a House of Lords that should signify the thing, and not barely the name, before you confirm the single person in his possessory right. I hear no other right made out yet. There may be another right. You are now about a constitution.
It is an easy matter to make names of Lords. It is estates that make men Lords and esteemed in the country. If you take old lords by the lump, they will want estates. You will find many gentlemen among yourselves that have Lords' estates; but this is not before you yet. But if you vote now to transact, all other things are but of doors.
You are told you can do nothing without them; but I think this House and the single person may transact without them, and have as much power as the last Parliament had, without them. You made them a House; but no power was then given them as to the legislative part: but they made it, themselves.
That Bill has not made them a House of Lords, unless going into that House made them Lords. It was not intended for them to be Lords. You denied that, the last parliament It was in consideration, whether they should have a negative or co-ordinate power with you; some negative as to the judicial power, but nought as to the legislative.
It is said to you, that by the Petition and Advice they are not another House. I would have had it examined whether they be another House. I was against the question, because I did not know what fruit you would have by it. Add the words to the question, "whether you will transact with them, &c. as they are now constituted."
You have already recognized a single person, and Parliament to consist of two Houses. This Parliament must either have new bounds or old bounds. We are neither upon restitution nor constitution, but transacting.
How can we legally determine this of ourselves, or how, unless we transact with them? Why should we walk out of our duties? By transacting, we may come to an understanding; but this way we shall never do it.
It is said, we admit them with all their infirmities. No such thing. We may complain of it, if it be a grievance, that old Lords are not there. May not we complain of right ? Are we here as we were in 49, when the King was taken away, or are we on another foundation? I think we are on another foundation. Let us go to them without grievances.
We thought in the Long Parliament we might restrain the inordinate power of the Chief Magistrate. That was the ground of our quarrel in the late war; but by this argument we cannot, and it seems we cannot bound these Lords' exorbitant powers. I am sorry to observe the argument.
It is said, (fn. 21) we must take care we bring not ourselves under Major-generals. I did not expect that argument in this place. I did fight against an exorbitant power in the King's hands, and I will fight against it again to the last drop of blood, if his Highness command me, whenever such power shall be set up, if it be to-morrow, and in whatever hands it be.
It is objected (fn. 22) that Lords Lieutenants heretofore sat in the other House.
That was introduced but in Queen Elizabeth's days, and was then complained of. Besides, they were great lovers of the people. The Lieutenants were persons of quality, and the Captains men of estates. The common soldiery were the yeomanry. None had any pay. These are mean people, and must be paid by you.
You bring yourselves into the old condition of slavery, if you go to establish those with this external power. If you establish them not by a law, if they be established in their power, you establish slavery perpetually upon the people. If the civil and military power be joined together there by a law, some of them that offered force to Parliaments, and disturbed us, are sitting there, what they have done they may do. Job would not take part with Absalom, (fn. 23) but he did with Adonijah.
I would have such an addition as may so bound them, that they may not enslave the people. (fn. 25)
If the old Lords be not taken away, then I have no right to sit here, by the writ of that person that summoned me; but by another person. The same argument makes the Duke of Gloucester King of England. (fn. 26) He has not forfeited. That argument is as broad as long. This House is like the heathen gods that were of a year-and-a-half's authority.
If a Parliament with the single person have constituted them— (fn. 27)
If I may say plainly, your passing-bell is a ringing. It is said, you must either return to Major-generals, or admit this Government; (fn. 28) and, farther, they are in, how will you get them out ? If so, you must fight them. You need not do it. If you say otherwise, the nation will not be really engaged or concerned in it.
What are you less than slaves, if you confirm them by the lump ? (fn. 29) What are you then? A House of Commons, a council of officers, and a single person, appointing them.
They are your servants, and it is improper to make them your masters. You cannot, of nineteen regiments take away one. They have them all. It is said, the soldiers are in arrears. The officers, I believe, are not so. I believe they are paid.
Are those fit to have a parliamentary authority, that will undertake to abet the single person to levy taxes without you ? We bind the girdle of war upon us in the times of peace, which you know was a curse elsewhere. Though some be men of estates there, yet the bulk are not such persons. I am rather for going upon qualifications than persons.
I deny their induction that say, I am neither for old nor new; but I am for such as may be serviceable to you. This is a kind of theomachy. God has fought against them, and we set them up. I may say of them, as was said of the Jewish ceremonies, first moribundi; now thus come to be mortiferi, to be noisome, like a broken tooth, useless, better to be pulled out.
You say you will bound, and you will not bound. It looks like quibbling. This is like swallowing your meat, and never drinking after it. As the people said to Samuel, (fn. 30) "Nay, but we will have a King over us," though they seemed to advise with Samuel. When of your constitution, they will be most fit for a balance, more your kinsmen, bone of your bone. But these words, trusty and well-beloved cousin—these, like judice meipso, teste meipso, (fn. 31) make them too near a kin to the Chief Magistrate.
I have a learned discourse of Mr. Bacon's (fn. 32) by me, which makes out that the rights are equal in the people. They prevailed not more jubendi but persuadendi.
The first addition that was moved was, that nought in the vote should exclude the rights of the old Peers that are faithful. I would have you put that question first, that it is not hereby intended to exclude the rights of the old Peers.
I would have you first consider whether you. will have that House or no, or upon what foundation they sit, and whether they shall be approved or no. That House mentioned in the Petition and Advice must relate to the last House, and not to this House.
The persons concerned must withdraw when any question is. How many here have a share in executing the laws of this nation. All justices of peace, I suppose, by that rule should not come hither. This, in my opinion, turns all the edge of the argument upon those that make it.
It is impossible that ever this House should have an original from the people. I cannot tell how to set the circle. Who can say all on this side Trent, Tweed, Tyne, shall set the bounds and circle, who shall choose? Who shall draw the line and circle. The original must be in the Chief Magistrate's writ.
Though I serve for a borough, yet I could wish we were upon a more equal constitution than by boroughs. Put the question when doors were opened last Parliament (fn. 33) that we had called in the old Lords. They would have said you are not the persons, that we will transact with you. You are not upon the old constitution; (fn. 34) two members for every borough, &c.
Then the parallel runs thus. Those persons that we are to transact with, we except against them, because they are not the same persons that were formerly. (fn. 35)
It was told you the sword may be melted in the scabbard, and the scabbard not burned; and that our result was one way, and our votes another. If the sword be melted with reason, I would not have us contend and fight with the scabbard. That is my motion.
Colonel White. I should join with that gentleman willingly, if his conclusion had not destroyed his premises. It is told you, that the ancient constitution of this, and the other House, was not from the people. I shall not look so far back.
We both build upon wrong premises, to speak plainly. While we palliate a wrong interest, we can never do things for the interest of the nation, whether upon an old or a new foundation. One of the three pillars is gone, as to the King, so it cannot be an old foundation. It was as good a foundation as ever the world had. I wish we had such a balance again, but that is gone. One of those pillars is destroyed, and I hope you are not returning to that again. No more to the old, now to the new.
1. They have either a foundation or none; if so, they have it by the Petition and Advice. I moved before, (fn. 36) to know by what words or terms they were constituted. If they are another House, this House was their father, and this House may order them, and bound them.
Seven Judges, five Privy Counsellors, fifteen Colonels, so many among those that make the seventy within five. (fn. 37) All have pay from the public. If these persons could be divorced from their interest, I could like well that they should be in that House.
The ancient nobility served without salary, and I believe many of them would not sit with such persons that have salaries. It is not safe for the nation, to have persons for profit and interest to sit there.
I shall humbly move you that, in relation to the people's rights and liberties, you would, by some previous vote, assert that the power does consist in the single person and this Parliament; and farther, that none that have salaries may sit there. This does not put the Judges off their woolsacks, which is their place.
I must differ. If they have not such estates, they are much more suitable. When they had great estates they did overbalance. If they have but an estate to keep them from a dependency upon employment by the Chief Magistrate, it is enough.
Hereditary right is a grievance. I think it is a qualification very suitable. (fn. 38) They must naturally serve the interest of Chief Magistrate to advance their posterity. That continues them still in a dependency upon him.
I have diligently attended the debate, and I find not, by ought that is said, that they have any foot in the Petition and Advice. They are called upon another foot. If he could by law have called them, he might have formed a writ; if there had been no such House in being. How, then, will the right of this peerage come before you? All the right in calling two Houses terminated with the single person.
You are now repairing breaches. This House and the Protector may as well join in calling the old Peers, as they might join in calling the other House. This may be done by way of address to his Highness. They are worthy persons upon the same account that you are. They have estates to support them. I would as soon trust the ingenuity of them in bounding as the other House, seeing that cannot be without their consent. They have also faithfully served you, as well as the persons how in the other House.
The first order was to bound them, and now we must have the question swallowed. Many of us are to speak to the matter of the question before there be additions. Much has been said for the right of the old lords, and a great deal to be said to the question. We have sat many Lord's days, (fn. 39) but no such need of it now.
Mr. Hungerford. As we must sanctify a day, so we must sanctify ourselves for a day. (fn. 40) I would, therefore, have you to adjourn till Monday.
Resolved that this debate be adjourned. (fn. 41)
The Committee sat late; I know not what other business passed. Nor could I attend any other Committee. (fn. 42)