Tuesday, December 30, 1656.
A petition from Mr. Darnall, to have the arrears of 200l.
per annum paid, as established to him by order of Parliament in 1649. He had it paid till 1653; desires the same
may be continued.
Sir William Strickland, Colonel Purefoy, Mr. Robinson,
and The Master of the Rolls. Such an order was made. It
was done for his good service to you in this House, and settled out of the revenue.
Mr. Goodwin spoke to the same purpose.
Major-General Disbrowe. It is fit every man should be
encouraged for the service he does or hath done for you; but
if this 200l. per annum have been paid three years together,
and haply but a quarter of a year's service done? I would
have it continued while the service is, but not longer.
Lord Lambert was against confirming the establishment,
for the reasons aforesaid.
Resolved, that this 200l. per annum be confirmed upon Mr.
Darnall, and the arrears thereof.
Resolved, that it be recommended to his Highness the
Lord Protector. (fn. 1)
Mr. Attorney-General brought in a petition touching Lord
Fiennes and Mr. John Ashe, (fn. 2) for relief against bonds entered into by them for the public.
Resolved, that this petition be referred to a Committee.
Resolved, that it be committed to the Committee of the
Devizes. (fn. 3)
Resolved, that Mr. Attorney-General, Mr. Recorder, and
others, be added to the Committee.
Per The Master of the Rolls,
The petition of the Soap-boilers against the Patentees. He
affirmed it to be a great grievance and oppression.
Resolved, that it be read to-morrow morning.
Per Colonel Whetham and Lord Lambert,
An Act for confirmation of a Grant by his Highness,
of the Barony of Keniell, in Scotland, to General George
Monk. Read the second time.
It recites, that the grant is for his good service. A rent
of 4l. per annum, is reserved as a blanche ferme to his Highness. The lands were the late Duke of Hamilton's. (fn. 4)
Lord Cochrane, Lord Broghill, Dr. Clarges, Colonel Whetham, and the Attorney-General proposed, that this Bill should
Resolved, that it be referred to a Committee, to meet in
the lobby of the Lords' House to-morrow afternoon, at two.
Per Mr. Bond,
Resolved, that all that serve for Scotland be of this Committee.
Captain Baynes. The order of the day was, the Spanish
business. (fn. 5) I desire that, in order thereunto, the Bill for the
excise might be read.
Mr. Speaker. The order of the day is the debate upon
his Highness's letter.
Mr. Attorney-General. The House is too thin yet to take
up such a debate. Here is a short Bill for the maintenance
of ministers in the city of Bristol. I desire it may be read.
An Act for explaining a certain Act of Parliament for the
maintaining of ministers, and the more frequent preaching of
the Gospel in the city of Bristol, and for supplying the defects of the said Act. Read the first time.
Resolved, that this Bill be read the second time on Friday
Lord Fiennes presented a petition of the President and
Scholars of Corpus Christi College, in the University of Oxford, touching a right of presentation to a Benefice of Mesyhampton, in Wiltshire, and Merston Measie, in Gloucestershire. By an ordinance of Parliament, this Mesyhampton is
united to Merston Measie, whereby the College have lost their
right of presentation, and the presentation has fallen upon one
Mr. Genner, a late member of Parliament; desires it may be
Mr. Robinson. I am against referring the petition. If
there were a necessity of uniting these parishes, it is good,
for I know there is need in many counties to unite.
Mr. Croke. The College were never heard, when their
right was taken away. I desire it may be but examined, the
right of both parties, and then do in it what you please.
Alderman Foot. The least that can be done, is to refer it,
that both parties may be heard.
The Master of the Rolls. Mr. Genner has built a fair
church at Merston Measie. I would not have that pulled
down, nor the right of the College taken away; but that
maintenance may be provided for both.
Lord Whitlock and Sir William Strickland. There is all
the reason that may be, that the College should be preserved
in their right. They have no heirs, but must repair to you.
I desire this petition may be committed.
Resolved, that this petition be referred to a Committee, to
meet to-morrow in the Duchy chamber. To send for papers,
In naming the Committee, Colonel Whetham and Lord
Strickland named Major-General Howard, by the name of
Lord Howard; but the clerk writ him down Major-General
Major Porter brought in a Bill for Confirmation of
Claims, (fn. 6) and Mr. Speaker said he had waited a fortnight for
Major Brooke seconded, that it might be read.
Mr. Robinson. If you have nothing but private business,
I wish we may go home again. Let us do some public business. I dare say, more private Bills are brought in this Parliament, than in all the Long Parliament.
Mr. Speaker caused the order of the day to be read, about
Major Aston. The most necessary business is the debate
upon the letter, to preserve a right understanding between
his Highness and us, which ought not to be put off. I desire
that may be the first business, that no just cause of exception
may be against us, but that we may go on hand in hand in
Mr. Robinson. The order Of the day, is the Bill for the
excise, in order to monies for the Spanish war. If you have
no occasion for monies, let us know, that we may go home. I
believe it was the great reason of calling us hither, to carry
on that war.
Mr. Bond called for the Spanish business.
Mr. Highland stood up and made a long speech, how
much the lives, and liberties, and estates of the people of
England were concerned in our late judgment against Nayler.
Better we had never been born than have taken that liberty
to ourselves, to exercise such a power over the liberties of the
people. We had better deny ourselves, than let such a thing
Sir Thomas Wroth. This gentleman does, in plain terms,
arraign the proceedings of this House. I would have us
tender in entering upon such a debate. The business of the
Spanish war will not admit of a delay. They will not stay
till we be ready.
Sir John Reynolds. A short vote or resolve of this House,
never to draw this judgment against Nayler into precedent,
would haply give satisfaction for the present; and, in the
meantime, you would go on with the Spanish business.
Mr. Bond. To read the Bill is most for your service.
You will lose the benefit of the excise upon fruits. The
Spaniard will not stay till you be provided for him. I desire
you would go on with the Spanish business.
Sir Gilbert Pickering. It is a matter of great consequence,
and ought not to be put off. There is much of the interest
of the Instrument in it; I desire you would proceed upon it
Major-General Goffe. I doubt it will not give such satisfaction, to put off this debate. I presume his Highness does
expect an answer to his letter.
Lord Fleetwood. This is not a matter for slight, as some
take it for. It concerns the liberties of the people of England, and his Highness expects an account of it.
Major-General Whalley. I am not for putting off this debate. The House is full, and I perceive men are prepared to
speak to it. I hear some say they are ready.
Major-General Boteler and Major-General Packer. It
ought not to be put off, now that you have appointed this day.
I desire you would go on in it. It may be a means to preserve a right understanding; and what will be said abroad, if
you put it off.
Colonel Winter. You need not put a question to go on
with the debate. You have entered upon it already.
Captain Baynes. It is too late to read the excise Bill now.
It will take you till three o'clock. I desire you would go on
with the debate upon the letter.
Sir William Strickland. I desire you would go on with
the debate. I see no such difficulty, but that an answer may
be soon given to the letter. I hope it will easily appear that
our jurisdiction did extend to the sentence we have passed.
His Highness seems not to question it, only would know the
grounds and reasons whereupon we proceeded.
Mr. Speaker was offering a question to adjourn this debate
till Friday or Monday, but the business went on without a
question. And after altum silentium.
Major-General Disbrowe stood up and said, this is the
first time I have heard this letter read. It is but equity, if
his Highness be unsatisfied in any thing of our proceedings,
as relating to the Instrument, but we should satisfy him in
it; he being joined with us in securing the peace and safety
of the people. If there have been any error in our proceedings, we ought to rectify it Otherwise, it will remain as a
dangerous precedent, and any of our children, nay, his Highness's children, for they come to be under protection, may
afterwards be brought under the danger of such a precedent.
It is fit we should satisfy his Highness, and one another, in
I desire that a considerable number of the House might
be appointed as a Committee, to wait upon his Highness, to
understand his pleasure in it from time to time, to satisfy
him of the grounds and reasons of our judgment.
Lord Lisle. I was against taking up this debate, before
the sentence was executed upon Nayler. I would not that
such a person should be the subject of our debate. It is
clear that this House has a judicial power. Writs of error
lie here from the Upper Bench and Exchequer Chamber. I
am as clear that, in some cases, this House has not a judicial
power; as either, where there is a law in being, or there is no
law in being. No jurisdiction in treasons, at the common
law, and not within the statute 25th Edward III. This
must be done by King and Parliament, (i. e.) by Act of Parliament. The question now is, whether, originally, this
House has power to give a judgment judicially, no positive law
being in force against that offence. You must not confound
the legislative and judicial power together. It were best to
consult precedents in this case.
Mr. Robinson. This gentleman goes a little too far. He
ought to speak to the letter, and not to the extent of the jurisdiction of Parliament.
I appeal to that gentleman, if he have not given his vote
in many such like cases. Did not the Long Parliament, by
a vote, declare treason; that all that adhered to the king
were rebels and traitors? Was not there treason without
the king's consent ? I never heard he had given his consent
to declare that. The like case was, I appeal to you, in 1648,
when the Scots invaded this nation. Is not my Lord Protector's interest built upon this very foundation.
I would have us not part with our privileges. I hope his
Highness will not question it. It is neither for his service
nor ours to decline our jurisdiction. If you be not a judicatory, you are nothing. If the apprentices of London should
come and pull you out of your chair, shall not this House
punish them ?
It is not practicable nor good, neither, for a Parliament to
make laws and execute them themselves; yet they may do it,
if they please. These are Arcana Republicæ. What is
above the jurisdiction of a Parliament ? Will you refer it to
a multitude? I would not have a people know their own
strength. I would not have it put upon a Parliament to own
their strength. I hope it is a jurisdiction that will not be
questioned. If you must be restrained and circumscribed, it
were good it were known by whom. The less these matters
are meddled in, the better.
May not any ordinary court of justice proceed to pillory
and whipping. Was not this all the issue of divinity lectures
for twelve days together about this business. His Highness
and we, by God's blessing, may, if we agree in a unity, do
many things for the good of the people. If we go about to
dispute jurisdictions, I am equally tender on both sides. If
we fall once a quarrelling, and debating jurisdiction, haply
some things may be done by his Highness and the council,
that it would not be well taken, if we should go about to dispute the jurisdiction; some ordinances passed that are not so
clear. We must compare things with things.
If we begin this debate, and lay open our jurisdiction, we
may know when we begin, but not where we shall end.
Though this happen upon the account of this fellow, yet it
may extend to civil matters of the highest concernment. As
I would not restrain the power of Parliament, no more would
I question other jurisdictions. It may be the great hope of
your enemies to have this division amongst us. It hath
pleased God to bless us with a good and a tender supreme
magistrate; but there may a king arise in Egypt that knows
not Joseph. It is dangerous to lay open these jurisdictions.
The late king cited statutes, but you declared them inapplicable in the case of the commission of array. (fn. 7) Divers
other precedents may be found out, even in modern times.
I would have a Committee appointed to examine precedents,
and prepare an answer to the letter. I doubt not but he will
be satisfied with it, without further arguing jurisdictions on
either side. It is a dangerous thing to enter upon. I hope
we shall agree in unity.
Mr. Bampfield. I would have us lay this debate aside, for
I fear a debate of jurisdictions will be of no good consequence.
If we examine precedents, it will but fasten the debate.
Haply, something may, in this debate, be brought under examination on the other side. If it should be asked, by what
law the recognition was placed upon this door last Parliament, (fn. 8) by what law were decimations or the late monthly
tax laid, how would the council answer this ? I wish we
knew upon what bottom we are. I should humbly pray, that
before you settle your jurisdiction, you will settle your constitution. It was told you from the bar, by a noble lord, that
none that sit here may sit in the next Parliament. It is
very likely, while the council are judges of your members. (fn. 9)
It is a great trust, and I hope they will improve it to the
best advantage of the nation. If they should except against
all the members but Scotch and Irish members, sixty makes
a Parliament; and if haply, sixty should not be allowed of,
how then would there be a Parliament at all ? I desire this
may be first cleared, as to your constitution.
Lord Broghill. I was not at this debate; yet I reverence
your judgment, that we have done as a Parliament. I am
not for answering his Highnesses letter with another question,
as the last gentleman moved, but to answer it as to the matter.
Nor am I for the other way offered, to answer him by precedents done in the late king's time, in the differences between
the Parliament and him. He was then a declared enemy.
My Lord Protector is your declared friend, to whom, by your
constitution, you are united. I would have an answer prepared only from such precedents as were, when both constitutions were in peace and unity.
Colonel Sydenham. We live as Parliament men but for a
time, but we live as Englishmen always. I would not have
us be so tender of the privilege of Parliament, as to forget
the liberties of Englishmen. We ought to walk legibus, non
exemplis. Precedents are not to be followed at all times. The
Long Parliament had more need to resume their power than
I hope we have. Then was war, but we are now at peace.
I humbly lay it to the heart of every gentleman here, if the
case do not much differ. I appeal to every man here.
We are now under another constitution than formerly.
That objection is easily answered. If every county should
choose two members, and every borough their burgesses, as
formerly, should those thus chosen sit here as a Parliament,
though they take the oath of allegiance and supremacy ? But
to answer one question by another is neither logical nor just,
nor honourable to answer this letter so.
I grant this House has a judicial power, as to judge of
your own members, or to judge of appeals from inferior Courts,
for you are the supreme jurisdiction. But to send for men
up out of the country, and to judge them without a law,
what encroachment is this upon the liberties of the people!
My Lord Protector is under an oath, to maintain the laws,
and all the articles of the Government. Is not he then to look
so far to the good and safety of the people as to see that no
man be sentenced but by those laws, not without or against
them? What an intrenchment and incroachment may be
upon the people's safety, if we judge of things here by a positive power, without a law formerly made. Who can tell
what kind of Parliaments may succeed ? To try offences ex
post facto was never a (fn. 10) liberty neither in parliament, king, or
We have not a power here to do what we please. There
is something in the people which they always reserve to
themselves, as that of their trial per pares, &c. I speak of a
judgment beginning and ending here.
I offer not this to the end that the judgment might be receded from, but that the good and tender people of this nation
may be provided for, for the future, that it may not be drawn
into precedent, to the prejudice of the good people of the nation. To this purpose I would have a Committee to frame
such an answer, to give his Highness satisfaction that such a
thing shall not be drawn into precedent. I am not of opinion
that the constitution is the same as was the Long Parliament.
We are now upon another bottom and foundation than former
Parliaments were, much differing in substance and circumstances too.
Sir William Strickland. I doubt not but we shall be able
to make it out that we had a jurisdiction to do what we did. If
there be not a judicial power in Parliament, I know not what
principles are. I hope we have lost none of our privileges.
I never feared, till the Spanish enemy occasioned the questioning of our jurisdiction, (fn. 11) that it should have been disputed. I
am sorry to hear our privileges argued, or that it is urged that
his Highness is under such an oath as to enter upon such a dispute. We have holden up our hands to assert the privileges
of Parliament. I hope the one oath shall not clash with another. I like not to hear the liberty of the people opposed to
the privilege of Parliament; I understand not that kind of
argument: I never heard those opposed to one another before.
I hope it will not be offered, as I take it we have all the power that was in the House of Lords, now in this Parliament.
Surely we have lost nothing by having that power added to
us, nor are we less, by having the nation of Scotland united
to us. The essence of Parliament cannot be diminished by
any such alteration. I desire a Committee would prepare an
answer to present to his Highness, on this business.
Lord Whitlock. I am not for entering into dispute upon
your jurisdiction. No doubt but precedents are, in all ages,
of the judicial power of Parliaments. I know nothing in the
Instrument of Government, to restrain that jurisdiction. In
the case of Thorp, it was said he made the king forswear
himself, and therefore it was adjudged treason and the like.
Sometimes the House of Lords did it with the king, sometimes with the Commons, sometimes alone. I would have
these precedents as little made use of as may be. If there be
a defect of a law, let a law be made, that posterity may not be
surprised. But, to the answer of the letter, for I like not disputing jurisdictions, I desire you would appoint a committee to consider of a way to give an answer to his Highness's letter, and report their opinion.
Lord Strickland. I hope you will not ramble into former
precedents, nor fall to dispute jurisdictions. I doubt it will
take up too much of your time. To save your time, I would
have a Committee to sum up the grounds and reasons of your
proceedings, and present it to his Highness. If we have
done well, he will be satisfied with it; if not, he will propound some other way, to prevent the inconvenience for the
Mr. Trevor. Such an answer should be prepared, as that
we may both assert our own jurisdiction and give his Highness satisfaction too, and preserve a good understanding
amongst us. It may occasion a conference. I would have a
Committee appointed to prepare such a civil answer.
Mr. Nathaniel Bacon. Such an answer may easily be prepared, by the advice of a Committee. We are, in bur debates,
like the Tartars, who fight flying, and come to no fixed point
whereon to ground a debate. I doubt not but his Highness
will be satisfied, when you tell him how that, finding such a
horrid blasphemer, and a grand impostor and seducer, in the
nation, by power of Parliament you proceeded as you have
done to punish him.
Lord Chief Justice. I am sorry this debate happens, upon
such a subject. Nobody can deny but there is a judicial
power in Parliament, as well ad extra as ad intra. I find
nothing in the Instrument against it. Ad intra, by the very
law of nature; to preserve ourselves, our members, from all
violence and restraint, this being essential to your very being
and preservation of a Parliament. They have also a power
ad extra, in some cases. Lord Beaumont was fined for some
miscarriage in his coming before the Parliament. Sometimes
the three constitutions together have joined in a judgment;
sometimes the King and House of Lords together; sometimes
Lords and Commons together; sometimes the House of Lords
alone; in one case the House of Commons, but it was disputed. In Spencer's case, (fn. 12) they proceeded in a judicial way.
Trial by juries have been before them. Sometimes Parliaments have asserted their own judgments, sometimes have
receded from their judgments, sometimes succeeding Parliaments have repealed judgments of former Parliaments, as
where a Judge was hanged by judgment of the House of
Lords, which the next Parliament repealed.
In the case of Floyd, (fn. 13) for abusing the Queen of Bohemia,
the Commons alone adjudged him to ride backwards on horseback. It was questioned, but not vacated. If you wade into
precedents, you will find variety of judgments. Parliaments
in legislative power have authority without bounds, power
over the lives and liberties of the people; but the judicial
power is not boundless, for this is against the natural power
of a court of justice, this is a court of will and power. There
must be rules to all judicial power. It confounds the legislative and judicatory. You invert all the rules of proceeding
of all courts of justice, by this means. Here is no exception
against judge, witnesses, or jury; no disputing your authority.
We are now to consider the oath that his Highness is
under, to protect the lives and liberties of the people. But if
we proceed in this manner, judicially, against any man, as we
please, we divest him of that power, and take the sole power
of judging men, without law, or against law. It is true, such
things have been done by Parliaments alone, but never without great regret. Let us consider our constitution. We are
a Parliament of three nations: can any of us tell what was
the judicial power of a Parliament of Scotland, or of the Parliament of Ireland? I would have us to let the people know
that we are not met here to assert any jurisdiction of our own
above what we ought to have. It is said we may proceed to
a slight punishment, but not to life, or member, or estates, by
the judicial power. I cannot submit this in all cases, but
where we have a known law for it, I shall not advise to recede
from our judgment, but provide against it for the future;
for it may be of very dangerous consequence to Englishmen
to be ruled by a court of will. And, by the same account,
all we that sit here may be questioned in succeeding Parliaments for what we have done in this. I would have a Committee appointed, to consider of an answer to be given to his
Highness, to view former precedents, and report their opinions
to the House; and I doubt not but it will satisfy his Highness.
The Master of the Rolls. Consider our constitution first,
before we debate this business further. I take us to be upon
the same foundation and bottom that we were before. Parliaments, for all these alterations, are to be understood as
the same in essence. There is consuetudo parliamenti, three
things concurring to make a Parliament, three actions.
1. The writ of the supreme magistrate to call them.
2. The election of the people.
3. The coming of the members together. Then the laws
come to connect them together in a body; and this gives
them a threefold authority.
1. To inform; as to say, we suspect such a person of such
a crime, as a grand jury.
2. A judicial power, a power to judge; though, without
the House, you cannot judge but per pares. You have
made Acts in this, against that, (fn. 14) but I shall say nothing, &c.
But of the judicial power, it is clear that you have power to
judge any thing, though there be not a law for it in present
being. Surely it is otherwise with us, (fn. 15) that are the lawgivers to apply remedies as occasions offer themselves.
3. The legislative power, which that noble Lord has
spoken fully to: I shall need say nothing to that. If you consider yourselves as a new constitution, a new creation, I am
loth to speak to this: it is a nice point. I take this Parliament to be upon the same foundation. It only differs in
circumstances: it is not the adding or taking away your
members that does increase or lessen your jurisdiction. First
abbots, then bishops, then the House of Lords were taken
away, but the Parliament remains still. The Instrument
says nothing what kind of Parliament you shall be. You
have the consuetudines Parliamenti. I am confident it
was never in his Highness's purpose to make you a new
creation. If so, I know not where we are. A charter confirmed, makes it not a new-created charter. I shall not mention former precedents to you; for sometimes the King, sometimes the House of Lords, sometimes Commons, took this
judicial power upon them. Truth is, those that could catch
it had it. But in our modern precedents, things have been
otherwise established. The privilege of Parliament has been
asserted and sealed with the blood of many thousands.
I desire not to be misunderstood in what I say. I profess
I mean well in all I say, not to make the breach the wider.
I wish these jurisdictions had not been questioned on either
side. It is an ill omen. I hope his Highness would be satisfied, if you should but tell him what you have done by your
judicial power, and against whom.
Mr. Attorney-General. If I thought this were a sufficient
answer, for the good of the people, I should not be troublesome to you in it. It has been said, boni juris est ampliare
jurisdictionem. When the House of Peers were dissolved,
they were dissolved. The power was not reserved, but the
power ceased with the constitution.
I remember a case in the Long Parliament. It was Alderman Crooke's and the East India Company's case. The
House of Lords made an order to reverse a decree in Chancery; but this being done without the House of Commons,
thereupon we granted an Injunction to confirm the decree
It is said, we have a nation amongst us now, that was never
before. Know we what the judicial power of a Parliament
in Scotland was ? It is fit all people should know how you
are settled or constituted now. I believe it will be easy
enough to find a precedent, to justify any thing you shall desire to do; but I would not have us to pursue those precedents. It were better for Englishmen to be guided by certain rules, than by any precedents. If the laws be short, or
defective, let them be amended. But they that plead for the
liberty of Englishmen are no enemies to the privilege of Parliament, I hope. It is always best and safest for a Commonwealth to be governed by a known law, that they may know
when and what they transgress. I would have a Committee
appointed, to prepare an answer to his Highness's letter, and
to satisfy him what, and how, you have proceeded in this
business, with your carefulness not to draw it into precedent.
Lord Lambert. To appoint a Committee to prepare your
answer will not be for your service, till your sense be further
understood. It is a sure rule, salus populi is suprema lex.
A right understanding between his Highness and the Parliament is certainly the salus populi. I hope it will also be
thought suprema lex. The Council are, upon all occasions,
reflected upon. Some of us (fn. 16) wish that we might serve you
in any pther place, with greater hazard, of our lives. That
of the Recognition, (fn. 17) and those other things urged, come not
at all to this case. For that of keeping out the members, if
such course had not been taken, consider what a Parliament
you might have had. If a Parliament should be chosen according to the general spirit and temper of the nation, and
if there should not be a check upon such election, (fn. 18) those may
creep into this House, who may come to sit as our judges
for all we have done in this Parliament, or at any other time
or place. Having no rules to circumscribe Parliaments, the
power must be trusted in some person, and fittest in the supreme magistrate.
I cannot understand what is meant by this judicial power.
If it have the same boundless extent that the legislative
has, nobody can tell how far it may lead, if there be no negative upon it. I shall not bring it to the case of this fellow,
lest it may seem to plead too for for liberty of conscience.
But admit a Parliament in after-ages should be called, suit
able to the temper of the people, that should bring those to
your bar to be tried that have faithfully served you, arraigning your sequestrators or commissioners, or any that have
acted by your authority.
We cannot tell what kind of Parliaments other ages may
produce. We ought to take care to leave things certain, and
not expose the people's liberties to an arbitrary power. I
would have it referred to a Committee to consult former
records and precedents; but first, that you should direct
them in a way that may rather be a saving to the jurisdiction
of Parliament, and satisfaction to his Highness. But, in regard you are not yet ripe for a question, that you would
Mr. Robinson. We shall spend all our time in private
business. I desire you would go on to some public business,
or otherwise to adjourn for two or three months.
Resolved, that this debate be adjourned till Friday.
In the Duchy Chamber sat the Committee of Trade, but
we sat till after two; so few Committees.