Diary of Thomas Burton Esq: Volume 4, March - April 1659. Originally published by H Colburn, London, 1828.
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Wednesday, March 9, 1658–9.
Mr. Fowell said that in the case of Sir Thomas Widdrington, another was chosen while he was in the chair; but that case differed. It was upon his desire. (fn. 1)
Mr. Speaker. I desire to be discharged. I am sorry I should retard your business one half hour. (fn. 2)
Mr. Knightley. I am of the wrong Robe; this is more like a weed than a garment that I have. I have worn a gown at the University and the Inns of Court, but never had the honour. (fn. 3)
I make it my humble motion that you would not put that burthen upon one of so short a robe and so short a measure. He that made that chair made it with strong arms, knowing the weight of it. I have both infirmity of mind and body to make me incapable.
Mr. Speaker, by leave of the House, left the chair, and went home to his own House, (fn. 4) very ill.
Ordered, that in respect of Mr. Speaker's indisposition of body, and at his earnest request, Sir Lislebone Long be desired to take the chair in his absence, occasioned by his said indisposition of health, until he shall recover his health, and no longer. (fn. 5)
Mr. Scot. I move to adjourn till to-morrow, else to hear me speak to the question upon which the House was in debate before, about the Scotch and Irish members. I hope those gentlemen will.be sensible of their inconveniency by intruding into our legislature.
The claim of this question was made the first day, (fn. 8) and has been often claimed upon several occasions.
I am of opinion that Scotland and Ireland should be repre sented, nor do I except against the distribution. I would have Jamaica (fn. 9) represented, and all the parts of England equally represented, better than now. (fn. 10) We are little beholden to the last Parliament, to leave us to such an unequal election and distribution.
First you would have a single person bounded; and then let go the bounds. (fn. 11) The like of another House; thus gaining from bough to bough, till they be out of the distance of our recovery.
We are not to compliment now, when the life and liberty of the nation is at stake. Paul thought, when his life lay at stake, he might lawfully make a division in the council by saying he was a Pharisee. (fn. 12)
We all say the Protector is Chief Magistrate in exercitio, possession, and occupancy. It is not owned that he is in by the Petition and Advice. It appears not so to you. You have the best title, being in possession, and you may give him the best title that ever King of England had.
Because there is an intimation in the Petition and Advice to summon members for Scotland and Ireland, therefore it is said, they must be called to sit here. By the same rule, there was an intimation to have a House of Lords, therefore a Lords' House was called. Therefore it is a good Lords' House, and therefore those gentlemen are good members, by the same rule.
I cannot understand that the law should be by any such intendment. Again:—I would have none to serve either for England, Scotland, or Ireland, but natives; not but that they can speak the language. I say not otherwise.
My motion therefore is, that those gentlemen may withdraw till this question about the other House be passed; and then I shall as freely as any man give my vote to declare their right of sitting with us. (fn. 13)
Sir Arthur Haslerigge. Nought is so proper in the midst of any debate. I appeal to you, now you are in the chair. If I see but one man in this House that ought not to sit, it is a fundamental order to examine that person's fitness before you do any thing.
Consider the case of King (fn. 14) and Mr. Sadler. (fn. 15) This is the same case. If this be not to the order of the House, then the House is without order, which cannot be. Is it fit that those that have no right nor foundation should legify amongst us ? As was moved before, by the same rule that sixty are brought in now, three hundred may be brought in next time.
Colonel Fielder took him down, but it was not admitted; for he did speak to the orders of the House, and he began with it, and would conclude to the orders of the House. He cited the case of the five members. (fn. 16)
Mr. Trevor. It is a constant order of the House, that no new matter should come in, in the midst of a debate. It is utterly unseasonably moved. I beseech you, go on to the question that is before you.
Sir Richard Temple. Last night I gave you my reason why this was not irregular, by a precedent frequently exercised here. (fn. 17) If any gentleman come in between affirmative and negative, any gentleman may move that he withdraw. This is as to a rightful member; a fortiori, he that is no member, or his being a member disputable. Any thing offered you concerning your privilege, is never unseasonable.
There are divers gentlemen that sit here that have no right to sit. Formerly it was waved, because we were unanimous in our debate, and but a few of those members yet come over. (fn. 18) The best authority they have is but by implication. If the affirmative were put, you might, even before the negative were put, fall into debate of your privilege, it being a fundamental order. Besides, another question, touching your being called to the chair, has intervened, so that any man is free to make any new motion.
There are six boroughs in Northamptonshire that have no right to send members: viz. Wellingborough, Kettering, &c. I would have these persons, to have a right to sit here, or else to have Parliaments of their own. I will reflect upon none. Many persons that sit here for those places are very worthy and have done great service. I shall deliver no opinion in this case, but the debate is proper before you.
Colonel Cromwell. Mr. Scot has reflected upon them as rubbish; ballast, &c. (fn. 19)
The debate was improperly moved. Some exception lies against persons that now sit here. Besides. those members, one I see in my eye (fn. 20) that has no right to sit. Again, divers have not taken the oath. (fn. 21) I would have this debate waved, and the question put.
Mr. St. Nicholas. I am but a learner of your orders; yet I take it to be according to a constant order that this debate comes properly before you. Did you not, in the case of Mr. Jones, (fn. 22) declare that a case of privilege should be preferred before any other debate.
I move to do justa, juste. Many exceptions have been made against laws passed in this House. Let us have no more. The claim was made before; (fn. 23) I would have you now proceed upon it, being properly before you. If you please, I would have a bill brought in to declare their rights.
Colonel Birch. If this question had not been moved before, it had been otherwise. This was made when you were in debate of the single person; and then it was waved, when the question was not half put. For the very cause that was moved in the case of Paul, (fn. 24) he thought it prudence to raise a quarrel in the council; this comes in bare-faced as a quarrel. I hope he (fn. 25) does not compare this council to that council.
Colonel White. I am glad this debate comes before you. I wish it had not come unseasonably, but I am sure it is now seasonably before you. If you admit them to sit, it is destructive to the very foundation of this House. If they sit, neither by that common law nor custom, how can they sit ? It destroys your being.
If this vote be carried, and the consequence prove bad, or prove it good, it will be said it was done, coram non judice, by persons that had no right to sit. I would have you, before you put any other question, put this question, whether the members for Ireland and Scotland have any right to sit here.
Many sit here to whom we may say, as the king said to him not having his wedding garment on. (fn. 26)
Admit it, ex hypothesi, to be a law, yet if the distribution— (fn. 27)
Serjeant Maynard. My learned countryman has made you a fine posy this morning. I grant inseparable is insuperable: but how this is applicable to Scotland and Ireland, if you exclude them, I understand not.
I am one of those that are very tender to affirm the Petition and Advice for a law, but I say it is as much a law as any that have been made of late. It is a Parliament must determine this. Judges upon their oaths, and Justices of Peace upon their oaths, act upon these laws. You come hither upon that law. I know no honest man can, otherwise, without future hazard, act upon any of these laws.
Anciently, kings sent to Scotland to send burgesses hither. (fn. 28) Whether they sat or no, I know not. So from Calais and Anglesea. Both Houses sat together. (fn. 29) The Chief Magistrate might call who he pleased. In the 33 Edward I. he called from Ireland.
You outed forty monopolizers. (fn. 30) Many things have been done. Divers persons have turned out members in a strange way. I shall not stir up; but press unity. I have not said all that I might say. I cannot tell what they say of us abroad. (fn. 31) We have put ourselves into such a condition, that we know not which way to go. I know not to what misery and misfortune we are going.
Lord Lambert. That which the Serjeant did boldly affirm was, that the Petition and Advice was as much a law as any law of late. I doubt this argument goes a great way to restore Charles Stuart. The Petition and Advice is a felo de se, as to this very point.
I grant it is not proper to interpose in a debate between two questions; but, in a matter of this nature, I hope it is not unseasonable. As to that argument, that all that is done already is void if you exclude those; it is no such matter.
If any member be cast out, being unduly returned, surely that law is a law, though made while he was here. If a report come in a Committee, you will receive that report without asking whether such persons that were of the Committee were present at it.
This differs from that case, which is moved by Mr. Bodurda. (fn. 32) This is not about persons, whether Thomas or Robert, but whether such a borough shall send members. You had one borough sent two members that had right but to send one.
Mr. Solicitor-general. This question is not likely soon to be determined, and you may as well determine all reports from your Committee of Privileges. (fn. 33) If I knew that that Committee had voted a member out, that sits now, or two or three more that have no right, if I knew this, I may interpose in any of your debates, and say this must be determined, in regard it concerns your privilege, and all other business must stand. Is this ingenuous ?
Admisso uno absurdo, mille sequuntur. You are come to that, then, that either we must be slaves or freemen. There were two sorts of villains. He that confessed himself a villain, it was entailed upon his heirs. We have been slaves to our servants. Let us not be slaves by our own records.
Whenever writs went to those places, (fn. 34) it was only to consult of things concerning that nation, and no otherwise. Shall we make ourselves slaves by the votes of those that have no right to sit with us.
There was never any order of the House in this case. This is primœ impressionis. A number of persons, sixty, sit amongst us, that have no right. Six or seven carry a cause now. It concerns us to look about us. I must say, under favour of that Serjeant, (fn. 35) that the Petition and Advice is not law. Bring in the Record, and see.
We sit not by that. (fn. 36) Our writ is as it was anciently. If otherwise, we could no more question them than they us.
We have voted two Houses. (fn. 37) It is a plain implication that it was not a House before, but of our constitution. If this business be not now seasonable, it is never seasonable. It is said we are in confusion if we do it. I am sure we are confounded if we do it not.
I beseech you on behalf of all the people of England that you would not pass this. Not that I am against their sitting, but not without a law. Take it into debate how they may sit by a law. In the mean time I desire those persons may be so ingenuous as to withdraw, while our own freedoms are in debate.
Mr. Swinfen. I like not that reflection about being Serjeant. He might be Serjeant to —. (fn. 38) He well deserves it.
That gentleman not long since did determine that the Lord Protector, by right, had no power to call this Parliament. (fn. 39) If you be no Parliament, I know not that there is any civil power. Then the army does enslave us.
This case is no more than that of those that sit upon an undue election. All that is done, while they are here, is effectual. It differs from the case of a stranger. Sitting by writ, they are members, de facto, till the contrary be adjudged.
This objection was never offered before in all this debate, Since they were admitted all along to the debate, why should they now be excluded ? You never cause any to withdraw, till their cases be determined.
Mr. Hobart. We have the worst fortune that ever Parliament had. First, about bounding the single person; then about bounding the other House. Now it is denied that you are judges of your own members. To clear this, as to your own foundation, is the most material. It was never told you that the Petition and Advice was a law.
It is told (fn. 40) you that writs were sent for Ireland, but tbat was never but in cases of their own to consult. That case of Edward I. was so. England was always jealous to incorporate with any.
When King James came to the crown rightfully, by joining both Houses, he moved for an union of both nations, but the Parliament were jealous then. The King was apprehensive of their jealousy, and moved that the Commons in both places might be called. They came, and what did they do, but consider to repeal laws that had provided towards an union ? (fn. 41)
It is a standing order of the House, that if any member come in between affirmative and negative, he must withdraw. Divers returns for Ireland are not made. You are not so near a question as is moved to you. I think it is very regular to proceed upon the matter now in debate.
It arises thus to me. As your question was, last Parliament, whether you would keep out so many members (fn. 42) as that those that were in, might make the Petition and Advice; now, the question is, whether you shall take in so many as are not members that may confirm it; or for you to transact with those persons here that have no foundation, to transact with persons that have no law to be another House. By this means you have subverted your own foundation. Your wisdom will be concerned in it, to part with a prize in your hands that you know not how to manage. Again, it must be considered that they should withdraw, while this debate is afoot. Otherwise, they will hang upon you perpetually as a negative. As you lay your foundation, so will the weight of it be. You will look for peace and have none.
A greater imposition never was by a single person upon a Parliament, to put sixty votes upon you. By this means, it shall be brought upon you insensibly, to vote by Scotch and Irish members, to enforce all your votes hereafter.
Sir John Northcote. I move to adjourn. I know what sad fate attended one night's debates. I wish it may not be our fate. There has been nought but breaking orders of the House these four days. I would have the debate adjourned at large.
Colonel Cromwell. I move, not only to take this into debate, about the Scotch and Irish members, but also to determine about those that sit, and have not taken the oath. (fn. 43)
Sir Arthur Haslerigge. I would have this debate ended before we rise. We are upon the unum necessarium. When I went to dinner, you were upon this debate, and have been three hours upon it. Whoever say that they (fn. 44) are upon a right foot, are surely not of the Long Robe, nor ancient Parliament men.
I am not bound always to look you in the face like children, to see if you have a penny in your forehead. The gentleman that cried, "Speak to the Chair," is behind me. We are now upon a new foot; we have a new Speaker. A new debate is now come in; so that we cannot return to the old debate. If you please to adjourn, I shall not take any advantage, though I am well provided for it.
Colonel Mildmay. I would not have any question put, till the members (fn. 45) be withdrawn.
Captain Whalley. By that rule, if two or three members stand up, and charge half the House, then must they all withdraw. I would have it first determined, what shall be the matter of your debate. The proper question is about the other House.
Colonel Birch. You are now upon another debate, whether you will put any question at all. If you thus rise without a question, you are where you were in the morning. You are now doing that which was never done in Parliament before; but, before you rise, put this question, what shall be your debate to-morrow.
Mr. Hewley. This is a division from part of the question, like the division of the harlot's child. (fn. 46) This is not the unum necessarium, thus to divide and dismember a question.
Mr. Young. I move that the members withdraw. The last Parliament, the House adjudged the case in the ab sence of the persons, above one hundred that were kept out. (fn. 47)
Sir Henry Vane. Of necessity you must first come to that question, whether they shall withdraw: else you break all orders. They will never suffer themselves to be brought to the question. They will keep off all questions.
Mr. Knightley. In the call of your House, I told you one borough sent two members that had right but to send one. The modesty of those gentlemen was such that both withdrew. I hope these gentlemen will in modesty withdraw. They may be at the debate, but they must of necessity withdraw before the question.
Sir Anthony Athley Cooper. They ought to withdraw. (He cited Mr. Danvers' case. (fn. 48)) If they may have a vote in this case, it will be in their power to keep this vote off themselves all the Parliament. They are most worthy persons; but let us consider the consequence.
Colonel Cox. These members were never questioned when they sat upon the Instrument of Government, (fn. 49) Then they came again upon the Petition and Advice, and sat, and were never questioned. They have sat now upon the Petition and Advice. I would have this debate waved.
Sir Arthur Haslerigge. We sat upon another foot before. (fn. 50) The Protector is sworn to call Parliaments according to law. Here is a law for an English Parliament; but none for Scotland nor Ireland.
I desire to carry my eyes in my head, and in carrying on my duty to have an eye to my danger. We have been broken often, and may be hereafter: You are a free, a full Parliament. Look not back. Let all nations, soldiers and others, know by your declaration, that it shall be high treason and confiscation to attempt any thing upon the person of your Chief Magistrate. It may conduce to your quiet, be very much for your service, in justly carrying on the debate.
This was done in January 41, when the Committee of Parliament adjourned to Grocers' Hall. (fn. 51)
Sir Arthur Haslerigge. I like this vote very well. I have exceeding fidelity to his person. If we stick together, if we were turned out naked, we should deal with all the world. That it may be high treason also to dissolve this House. I am ready to give my affirmative to both. I hope the question was well digested before it was offered. If we two unite, and the representative of the people, who can balk us ? This will secure your fears.
Mr. Sadler. This last motion is not seasonable. It is the greatest compliance to fear to express your fears. I have heard it said, that but for distempers in the body it would be immortal. It is not your vote that will secure you. It must be wisdom and justice that must secure. More Babylon is within us than without us, by falling upon petty babbling things.
The case now in hand does vastly differ from my case (fn. 52) or any particular case. I should not have stirred the question; but now it is stirred, it concerns you. I think there is much more for their sitting here than has been said; but the question now is, whether this question be offered regularly.
The very words of the question would have put you on this debate. This House, it is not complete. If a gentleman has shut the gallery door upon six score of your members, you are not a House then. The same argument if six score were brought in, and thus were added two Houses together.
When your question was put, divers were withdrawn. I asked them why. They ingenuously said, why should they give their votes, in a matter of this consequence ? If you should leave it to their prudence, I believe they would withdraw. My reason is, that I believe they knew all the laws of nature and man were against being judges and parties. It is clear they ought to be at the debate to say all they can for themselves and the nation, but not to be here at the question.