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.
Monday, March 21, 1658–9.
Sir Anthony Ashley Cooper informed the House, that on Saturday last, in the afternoon, which was the first day they could be dispensed with from the service of the House, the Lord Fairfax, Dr. Bathurst, Mr. Weaver, and himself, in obedience to the command and order of the House, (fn. 1) went to visit Mr. Speaker, Chaloner Chute, at his house in the country; that they found him very much indisposed in his health, and very infirm and weak; that he was much troubled that he could not attend the service of the House; that it was a very great reviving and comfort to him, to find the House take him into their thoughts and care, and to send some of their members to visit him: for which he desired his most humble thanks might be presented to the House, and that they might be acquainted that he values their service higher than his own life, and that whensoever they shall command him he will wait on them; and did assure them, that as soon as ever his health will permit, and that by advice from his physicians he may do it with safety, he will return to the service of the House: and prayed, that, in the mean time, the House would continue their favour towards him and dispense with his service. (fn. 2)
If the Act of Union was not recited, it was no new law, but known; therefore, not so essential to be read or recited. It is very evident that it should have been thrice read; but you are masters of your own order. There is no recital in the Articuli super chartas, (fn. 3) nor in Magna Charta, so often confirmed. It is not therefore of such absolute necessity. It was his Highness's act, and in his lifetime he does execute this Union accordingly. He is best judge of the testament that makes it.
There was an agreement made by the representative of the people, the Long Parliament. If the change of the government did null or alter it, by the same reason the league with Sweden and Holland may be avoided. I was as much against confirming the laws in a bulk (fn. 4) as any man.
I move that the Scotch members continue to sit here, and that a Bill be brought in to confirm their right. That is agreed to be a very reconciling motion, and may heal all these heats and differences about it.
Mr. Speaker. You should agree of a question; else your debate will be endless. The question which I found upon your books was, concerning their continuance; but, if I were free to propound a question, I should propose it upon the right. I know the Chair can argue nought, but only collect a question.
Sir Arthur Haslerigge. If the Chair stand up to speak to the orders of the House, and do not speak to them, any member may take him down. It is an undoubted order of the House that the Chair may be taken down. We have heard you a great while.
I am persuaded, if an angel should come from Heaven, there would not one man's vote be altered in this debate; nay, though we should spin out a week longer. I agree that in justice it ought to be put in the legal right, and not to complicate it with equity and legality.
Mr. Secretary. I agree it to be your part to sum up the debate, and draw thence a question. I likewise agree that the question should be clear and not complicated; but I cannot agree that the question upon the legality is a clear question.
Some have gone upon the legal part, some upon the prudential, merely. Others have taken in both. If you put it upon the first, you exclude the two latter. Those that are not clear in point of law, they are excluded. But that of continuing to sit comprehends every man's vote, and is most ingenuous and clear. The debate has wholly gone upon that.
Mr. Attorney-general. The clear question is to continue to sit. That includes every man's vote. There, every man that has his reason, is included; for that of the non-legality is rather a reason than a question. If it be upon the legal, I am excluded as to any vote. You are a council as well as a court.
Mr. Hungerford. Your great debate has been upon the right, and now you are waving that, and putting it upon another question; which to me seems, that those gentlemen that move it are satisfied there is no right. If you pass it now, upon the continuance, the same will be pressed in the case of the Irish members, and so the right shall never come in question, as to Ireland.
It is as clear as the sun that shines, that they have no right. I grant, where the law gives aught it gives a means; but a means being once given, and then taken away, it is clear that both the means and end ceases.
Nought more becomes you than to inquire who execute a legislative power here with you. You excluded some. (fn. 5) If there be an error in the foundation, it cannot be mended. If it be of the first digestion, it is incurable.
Why should any sit here, to make a legal imposition upon the nation ? You are likely to lay great charge upon the nation, and how will that look abroad, that you suffer persons to sit here that have no right to sit here, and impose upon them.
They have sat here two Parliaments, but that was upon the Act of Distribution, which is now out of doors. Though they have sat here this Parliament, continual claim has been made. Never could it be made more seasonable than now, when you are passing a law to transact.
I hear much talk of an Union. Why we should applaud that we never saw, I know not. I believe some that applaud it, never saw it. If this of continuance be admitted in this case, the same will be imposed on us in point of Ireland.
I hope none will vote upon a prudential right, to give any one power to pass laws. The Long Robe, that are to defend the law, will never do it. You may vary the question as you please. That of legal right will be most for your honour and advantage. I move that to be your question.
Mr. Annesley. All the service that those two nations can do you, will not recompense the time you have spent about it. The question upon your books is to their continuance; and, whatever be said to the contrary, that will be your question. I shall not say aught to the legal right, nor how much I am satisfied of that, or of another right.
It was not the fault of Scotland, that there was not distribution. It was not likely for thirty to do it against four hundred, so that you cannot take advantage upon your own wrong. You promised it, and you ought to make it good.
That of taking away the old Peers by a piece of a Parliament, was as much against the strictness of the law, as this now in hand. I wonder to see those gentlemen that some time thought fit to vary from the strictness of law, do now, at this time, plead so zealously for the strictness of it, and that in a case which is impossible. I hope they will observe this strict rule hereafter. If his Highness had sent out writs as for the two last Parliaments, there had been no occasion of dispute now. He should deserve thanks for varying the form and coming so near the ancient form. This House has all along dispensed with Acts of Parliament, as in case of non-residency. Should you dispense upon prudentials in one case and not in another? If the Union were not for the interest of England, I should be the first to withdraw.
Two months time has been spent in debate, and no resolution. We lie under an impossibility to keep to the strict rules of the law at this time, but go back as far as we can. Those that sit in the other House, most of them, I believe, are not for a military power, but would have things settled upon a civil and legal foot. They have estates, and I am satisfied they desire not to set up the sword.
Mr. Drake. We go upon point of legality, prudence, equity, and continuance. We are now going back to the first, like as he that has learned three or four words of a language, goes back to the letters again.
Mr. Boscawen. I look upon the Act of Union as a national sin, if any ought to be. The Covenant, (fn. 6) every honest man ought to hold to that. That was the Union, indeed. Therefore, I cannot consent to the Act of Union, now pleaded. That war was not lawful, if it did not prosecute the ends of the Covenant. We were, by covenant, equally obliged to maintain the privileges of their Parliaments and of our own. If the conquest be not lawfully got, it cannot be lawfully kept. Restitution ought to be made. That Union was made but by the fag end of the Long Parliament, so had no legal foot. Those gentlemen made it for a Commonwealth. That makes me like it the worse.
Scotland will not think themselves obliged to keep that Union longer than till they can break it. Portugal lies upon the skirts of Spain, yet lies in the heart of it, (Altum risum) which kept it one hundred years, (fn. 7) yet did never gain by it.
I would have the question wholly waved; for if I were now to answer before the tribunal, I could not answer it to justify that war, or the breach of the Covenant; and to build upon the Union made by those Commonwealth-men, I cannot consent.
Mr. Trevor. I can offer you no new matter. Therefore, I thought not to trouble you. I shall not dispute the breach of the Covenant, or the lawfulness of that war. You find them united. I would rather have you make much of that Union, and strengthen it, rather than dispute it. To exclude them from a legislature is to reduce them to a perfect slavery.
If I had been conscious to myself that I had spoken, I should not have run the hazard to be called down. I am clearly satisfied to give my vote for the legal right. The Union was concluded by an authority which then carried all the face of authority in this nation. If we dissolve this contract, we open a door for dissolving all contracts. If there be any thing defective, the succeeding power is obliged to make it good. The public faith is obliged. It is prudent to be just, prudent to be honest, prudent to be safe. If, upon the whole, on the legality, the equity, prudence, or conveniency, or any of them, you will go, the proper question, and clearest, is to put it upon the continuing of their sitting.
Mr. Rigby. I have as great a desire that they should be united; but for them to sit here, upon the account of prudence or conveniency, to make laws when those that are most for them are not satisfied of the legality, I cannot consent, before we make a law for them to give them a right.
Colonel West. As not one native (fn. 8) may be here, then sixty are the quorum; and it may happen that it will be in their power to impose laws upon us.
Yourself propounded before you took the chair, a question, that they ought to sit, which was an expedient that I well liked. The legal right seems to be waved. And I believe those gentlemen that are for their sitting, are satisfied in it, that they have no right. I grant it is prudence to keep faith, and our words; but we must keep our words with God and men. We came here under a promise to preserve the rights and liberties of the people. There is not such a word in the Petition and Advice, that his Highness shall call a Parliament of England, Scotland, and Ireland. Nor is it in the explanation, nor can an explanation admit of any explanation. As to the argument, that Scotland is flesh of our flesh, and bone of our bone, therefore they must sit here: so our wives and children are. Must we, therefore, bring them to sit here? I am not against their sitting; but not till they have a law.
If the war had been with (fn. 9) Scotland, where had you been? They would have imposed magistracy upon you, and laws. It was the justest war that ever was begun. We were upon our defence. As to that of the commander, cited per Mr. Bulckley, (fn. 10) that never quartered in any House but where God was worshipped in purity, they always lie in the best quarters; but to go all over Scotland, he would be of another principle.
Sir Walter Earle. The former part of that gentleman's speech did contradict his middle part and his conclusion; for it went upon inconveniency to have any members; for if sixty be a quorum, and may none of them be natives, (fn. 11) that reaches to all expedients; and when you have made it a law, that objection lies still.
Colonel White. This question will not answer what you intend, upon your debate. It does not determine the law nor right. It leaves it still liable to a dispute. You leave out both prudential and legal right.
Mr. Speaker took him down. He spoke 9th March. (fn. 12)
Mr. Speaker took him down. He spoke 12th March. (fn. 13)
In order of nature, legal right must be considered before any prudential. Never was any precedent, that one member should be admitted, unless the legality of his sitting could be asserted; and if never allowed for one, why should we admit it for thirty? It is a lessening of our authority. If you will have your acts thoroughly received abroad, make them upon a legal foot.
I have constantly attended this question, and the legal right came always in. A learned person told you, that you could put no other question but that of the legal right. Let not a mistake in the papers of your predecessors mislead you from that which is the natural question.
Major Beake. Your papers stand in need of an index expurgatorius. I see the Chair is not infallible. I did not speak to this question; but I spoke not for myself, but that you would hear the gentleman at the bar, viz. Colonel White, who spoke to the legality, and concluded that that might be the question.
Colonel Terrill. The question is gravida facto, has been ten days in travail. It is a big-bellied question, perplexed and complicated. I would have the question go singly, either upon the legality, the prudence, or the equity of it. Go upon any of them. I am free to give my vote. First, begin with the legality, which is most natural and ingenuous.
Sir Henry Vane. Here are two questions before you; and every one is free that the question be put, whether either question shall be put. Why should we lose time? but put the question upon what is most natural, upon the legality, and whether that question shall be now put.
Mr. Grove. The first question that is seconded ought, in reason, to be first put. It is some men's judgment that, in order of nature, the legality ought to have preference. Others are of opinion that the other is the natural question. Pray put it. off your hands. We go on very slowly. Some gentlemen say here that the people take notice of our obstructions. We have great matters to despatch.
Mr. Neville. In the case of Major-general Overton, (fn. 14) when you voted his imprisonment illegal and unjust, prudence happily would have continued him in prison. Prudential right depends upon legality.
I move that the question be upon the right, and leave out the word "legal." A worthy and faithful person of that nation, Lord Swinton, (fn. 15) desired it that their legal right might be asserted.
Mr. Bayles. Some are for a legal right, others for a prudential. None will deny but that prudential is rational, and ratio est anima legis. Then, if it is prudent, it is a legal act of both. I would have the question be upon the continuance.
This is a general question. At York there was a court (fn. 16) that was mixed of law and equity, and when a point of law came in question, they had recourse to equity; and contra.
Mr. Reynell. You are free enough to offer a question out of the whole debate. The whole stress has been laid upon law. Prudence has but come in, by the by. The law of nations and nature, and all laws, have been urged for the defence of their right. Declare it upon any law, be it fundamental or what you will, I shall agree to it. This you told us would be the question that you would propound if you were free. (fn. 17) I suppose you are free, and it is the most natural add proper question.
You are not now proceeding in & judiciary way. Here is no party defending before you. If Scotland be one party, England shall be another, and Ireland a third; and then, which prevails, shall carry it.
Mr. Jenkinson. As to the order of the questions, I may compare it to an adjournment for a longer or a shorter time. The longest time should be first put; so this question, being the farther, as to the legal right; for, if they have a legal right, I can easilier give my vote for their continuance.
Lieutenant-general Ludlow. That gentleman in red moved contrary to what your sense is upon the whole debate. I move it be upon the legal right, lest we bring ourselves also to sit upon a prudential foot. I would have us all sit upon a legal foot.
Sir James Harrington. Justice should be our rule. When it is insisted upon by any member, that he is not satisfied unless the question of the legality be first put, we ought to satisfy one another. God judges amongst the gods. The question now offered gave your predecessor his death. (fn. 18) I move to have the question put upon the legality.
Sir John Northcote. I appeal, if there ought to be interlocutory discourses between members, as was between those two knights ? If you keep us not to order, we shall not only spend our time, but our strength in vain. I am sorry you are hindered from putting the question.
Mr. Scot. By your own judgment the legal right ought to be put, else you leave things liable still to exception, and the Chief Magistrate under a doubt, whether to call them in this manner or no. He knows not what to do. He is in a snare. So the Scotchmen, they know not what to do, unless you resolve where the right is. If you put the other question, I can give my vote neither way. If upon the prudent account, I may give my affirmative. If upon a legal, I must give my negative.
Sir Henry Vane. Your question is upon persons continuing to sit as members, before you have determined whether they are members or no. Whether they are capable or no, or there be any other disability upon them, they shall continue sitting this present Parliament. There is a question upon their right; so that the addition is not improperly offered.
Mr. Swinton. I know not how to answer my trust, if I shall not speak my thoughts. Something of advantage is put upon the question. If it were put upon the right, I should be loth to give my negative to it; but, as it is stated, I shall not know how to give my affirmative. I would, therefore, have it plain and clear.
Sir Thomas Willis, Ralph Delavall, Philip Howard, and Sir Christopher Wyvell, were against the question. Lord Swinton was withdrawn. (fn. 19)
Sir Arthur Haslerigge and Mr. Neville presently moved that the legality of the Irish members be first debated. It was to prevent precedency of the prudential part, as was in the case of Scotland, which had only primogeniture to plead for it.
It was endeavoured to justle out that motion with other matter, as to the last business, and that a bill be brought in to confirm the right of Scotland. The House sat till almost four, and adjourned the debate at large. (fn. 20)
It happened in the Council Chamber that some hot words passed from a member to Sir Arthur Haslerigge. He told him that all the laws made in the fag-end of the Long Parliament were not of force, and spoke very reproachfully of that Parliament; and told Sir Arthur Haslerigge that it was he that endeavoured to make himself and Sir Henry Vane the great Hogen Mogens, to rule the Commonwealth. The same expression as to those words, fag-end, happened to be said in the House. (fn. 21)
The member that ruffled Sir Arthur Haslerigge thus, was of no great quality. He took it heavily out, and wished he had been hanged up, and three or four more, and their posterity rooted up, rather than have acted so highly, and now come thus to be reproached. The great things of taking away kingship, House of Lords, war with Scotland and Ireland and Holland, and public sales were all in that time.
This was presently noised abroad, and very ill resented by the army. (fn. 22) I doubt it may breed ill blood; for every man that acted, begins to say, " What did I do in that fag-end of a Parliament, and how shall I be indemnified but by my sword ? We will not give the cause away."