The Diary of Thomas Burton
7 January 1656-7

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History of Parliament Trust

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John Towill Rutt (editor)

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1828

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'The Diary of Thomas Burton: 7 January 1656-7', Diary of Thomas Burton esq, volume 1: July 1653 - April 1657 (1828), pp. 310-321. URL: http://www.british-history.ac.uk/report.aspx?compid=36767 Date accessed: 21 August 2014.


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Wednesday, January 7, 1656–7.

An Act for the better observation of the Lord's day, read the first time.

Per Colonel Rouse.

Resolved, that this Act be read the second time upon Wednesday next.

An Act for continuing and assessing of a tax for paying and maintaining of the militia forces, in England and Wales, for the security and preservation of the peace of the Commonwealth. Read the first time.

Per Mr. Speaker.

The order for bringing in the Bill was read first.

Mr. Bodurda. This was not the Bill intended to be brought in by the order. But Mr. Speaker directed it to be read first, and then any might speak against the Bill that pleased.

Lord Claypoole. This being the first time that this Bill is read, it must either be spoken to be read the second time, or rejected.

If I thought it were for your service, I should not speak against it. The Bill consists of two parts:

1. Decimations, and the continuance of them.

2. Indemnity to such persons as have acted in it.

For the first, I cannot see how it can stand, unless you violate your articles and the Act of Oblivion. For, by the Bill, you punish men wholly for an offence before committed. It lies altogether upon retrospection. ' It will be hard to convict men upon this Bill, and you will not surely lay this tax upon men till conviction. It ought to be considered, whether you will entail this upon their posterity; whether the children shall be punished for the father's offence. I like the second part of it, that is, indemnity; but I hope that will be provided for in another Bill. I did but only start this debate, and leave it to others who are better able to speak to it. My opinion is, upon the whole matter, that this Bill ought to be rejected, and that is my humble motion.

Captain Baynes. I cannot be for the rejecting of this Bill, but that you would first give it a second reading, and, after a full debate, upon it, you may then do as you think fit.

You have not a day at present to appoint the second reading upon. To-morrow is your excise-bill day, and Friday the fast; and haply the Bill may hold you all next week. I desire it may be read the second time upon Friday sennight.

Lord Broghill. We ought in this to observe the royal law, "Do as ye would be done by." This is such a Bill as was never brought into a Parliament, therefore we ought to be more wary how we proceed. It ought to have a serious debate. I shall not plead any thing for that party upon whom you are going to lay the tax; but I do not see how this Bill can be for your honour or service to pass it; and that upon five considerations, which I shall humbly premise:

1. This party, upon whom we lay this tax, will be condemned unheard. They have none to represent them in Parliament, though I hope we all represent justice.

2. They are our enemies that we lay it upon.

3. It is a tax laid upon them to ease ourselves, and in this we ought to be very tender for our honour's sake.

4. There is no appeal for them. Your judgment is conclusive.

5. If I may mention, that we undertake the judgment upon us, of those things that are passed upon other men's enquiry and proceedings.

These five things being premised, I shall offer to you something as to the Bill itself, to be considered how it may stand with honour and honesty to pass it, as well as how it may stand with safety and utility. Justice and honesty ought to be the grounds of all law, and not only profit and safety. Those are good considerations, and ought to be provided for, but still by just and lawful means. I would not have us give our enemies that advantage, as to do this injustice to them. They will have a fair plea. We shall, by this law, arm them more than they can arm themselves. Their estates only are punished in the Bill, as, appears by the blank, which is another exception.

I never heard, in any time, that any persons were condemned, till convicted by a jury.

I believe that party are as bad as can be, but let us not be wicked also. It is Christ's rule, "Judge not according to appearances, but according to the thing itself." I had rather ten thousand guilty persons should escape unpunished, than one innocent person be punished. If they be guilty in their own hearts, let us not undertake to punish that. God's prerogative will do it, which will awe them more than all your militia, and arm us better than all our forces. Thus far, to consider it in point of justice, now in point of prudence.

How is it probable that we should gain that party by punishment, when we could not by grace. Surely this will harden them. I wish this do not make them a corporation, and make men of estates and no estates all alike desperate.

It was the care of the Long Parliament to lay aside all distinction of names.

It is said, there was necessity for it, but this is no safe, rule, and ought not to be the rule for laws-making especially. Let us consider the case of Saul and the Gibeonites, for breaking the league with them.

For the second part of it It is fit those persons that acted in it should be indemnified. They are honest men, and did it out of zeal, choosing, rather to trust a Parliament to judge of the justness or necessities of their undertakings, for the public peace and safety, than their enemies; the insurrection happening just upon the rising of the late Parliament, and what was done was in the interval of Parliament, and in emergency, and mere necessity, for self-preservation.

I am, in my judgment, against the Bill; but there is good matter in it, as the indemnity. I should have that done before we rise. (Major-General Lilburn, underhand, said he scorned to accept that indemnity, he would venture his indemnity.) Upon the whole, I desire this Bill may be laid aside.

Mr. Robinson. I desire this Bill may have a second reading. I think we have observed the royal law which that noble Lord speaks of We have been tender of that party What tenders of friendship have we laid at their doors? How have they answered it ? no compliance. It is told you, our justice with them will be our best militia. I think we do them but justice in this, and no more than they would do with us. They had such persons as represented them in Parliament, till they ran away to Oxford. That was not our fault. They were represented when they came up to Goldsmiths' Hall.

That rule of Christ is not a good rule for us. We must judge by appearances in cases of our own safety and preservation. We must not live securely and supinely upon miracles. I never trusted in a Cavalier. They are a. false people. They distinguish themselves. I would have you to distinguish them. Let us preserve ourselves as long as we can. The law of nature obliges us to it. If they will unite and make themselves a corporation, let us unite and fortify ourselves against them. The Commissioners that acted id it, they are beholden to that lord that would indemnify such as have acted in the preservation of him and others from having their throats cut. It is well he will, forgive such as have preserved him. Neither of the lords that spoke, have spoken against the Bill. One calls it a decimation. He does not know what part shall be paid, whether more or less. I remember not any such word in the Bill. It is a blank. They say, there is good matter in the Bill. I think it has a tendency to the public peace and quiet, and that it is equal, to lay the burthen whither the burthen comes from. I desire this Bill may have a second reading.

Mr. Drake. Notwithstanding what that gentleman said, I am of opinion with those that spoke before, that there is enough in the Bill to reject it. I plead for none of them, for I believe, if they should prevail, I should be as deeply concerned as any man in point of suffering; but let their purposes be never so wicked against us, let us proceed justly against them. Let us not fortify them by their having a plea of injustice against us. It has been truly said, our justice will be our best militia.

1. This bill is against the common rule of justice, to punish all for the offence of one man. The compact was with the whole party, and if any of them have violated it since, let them be punished; but let not the innocent be punished with the nocent.

2. It is against the rule of common safety. It lays us a dangerous precedent. It may fall out upon any party, upon the presbyterians, or any other party. If one of them transgress a law in after-ages, all the party shall lie under the guilt. This is most dangerous.

3. This is against the peace of the nation. I looked upon the Act of Oblivion as the best expedient to procure our peace, and quiet the spirits of our enemies; and by this means we shall stir them up again and strengthen their hands against us, by compelling some to be our enemies that never intended to be so, but to live peaceably at home.

4. Consider the honour of the Parliament. Let us not alter the land-marks of our fathers. Our ancestors never thought fit, upon any emergency whatsoever, to violate their Acts of Oblivion. I would not have us to begin. My humble motion is, that this Bill may be laid aside.

Mr. Trevor. I cannot consent to the second reading of this Bill. It is against common justice, nay all justice, to punish all men for the offence of one, the innocent and nocent. The public faith of this nation is violated, if it be a punishment for what was done before the Act of Oblivion. If for what has been done since, they ought to have the trial of such persons as were restored to their liberties and properties: I am sure of it, those that were restored to their properties, at least. This makes a fair set to endanger the whole, for if they have forfeited the pardon, they have forfeited all. This is strange justice, a plain violation of it. God's justice, upon his parley with Abraham, was otherwise. For ten righteous persons he would have spared a whole city.

I am not ashamed to plead for my enemies, where justice and the faith of the nation plead for them. What do we by this, but incorporate them against us, and put such a character of distinction upon them, that they will never be reconciled. We do but harden and strengthen them against us, and oblige them to a perpetual enmity. You provoke and unite your enemies, and divide yourselves, and necessitate new arms and charges, and raise new dangers. You provoke them, by taking away a tenth part from them, and leave them the nine parts to be revenged. I like not this middle way of policy, neither to oblige nor destroy. It leaves things doubtful, and puts men into a constant danger to be undone. To forgive our enemies is God's rule, and it is the only way to make them our friends.

Another argument to me, against this Bill, not spoken of, is the consequences of it: a new militia, raised with a tendency to divide this Commonwealth into provinces; a power too great to be bound within any law; in plain terms, to cantonize the nation, and prostitute our laws and civil peace, to a power that never was set up in any nation without dangerous consequences. From the time of Charles VII. in France, the date of their slaveries began. They expelled their enemies, but since that time, no old laws, no Parliaments, have been, which they had as free as any people before. I have discharged my conscience, in telling you how much I dread the consequence of it. I am against giving this Bill another reading.

Major-General Disbrowe. This little Bill has bred a great debate, and has had a great many severe words and terms given to it. I would that we go to the merits of the business. The interest of all honest men is concerned in it; all those that have faithfully served this interest. I was very much for the Act of Oblivion, and it was very hardly passed this House. I was weary of war, and thought this might have begot an union amongst us. I wish we might all have lived as Englishmen, but I see no hopes of it. All the favour in completing the Act of Oblivion, and all other favours done, what good has it wrought upon them ?

I believe no man has come under a decimation, but such as have either acted or spoken bitterly against the Government, and for their young king, and drank his health. Many have escaped that have done such things. I hope they shall come under decimation. This is but the issues of their hearts. Out of the abundance of the heart the mouth speaks. How can you better distinguish them ? Tell me one man that discovered any part of the plot; but when we came to seek any houses for them, they were ready to excuse them and conceal them, upon the rising at Salisbury. It is plain they have gone contrary to the Act of Oblivion. That was to the end, that all men's spirits might be quieted. If God had not wonderfully done it, in preventing them, they would themselves have made good the Act of Oblivion. I think it is too light a tax, a decimation; I would have it higher.

It is quarrelled against, that the militia forces are raised. I wish that there were no need of it; but, in regard there is a necessity for it, it is just they that occasion it, should bear the charge.

It is questioned, because my Lord Protector raised them, or that the honestest men in the country are put into the service.

It was blows, not fair words, that settled, and must settle, the peace of England. Haply, you may find them speaking good words. Let us consider what they would do by us, if they had the power.

But the great exception is, the cantonizing of the nation by settling forces in every county. How was the former, old militia, in the late king's time, settled; 10,000 armed men in one place, under the lieutenants, and some in other places. Is there more danger now than before ?

There have not been two or three months together, but new plots were still abroad, and within these two or three months: which of them has come and told you, such a plot was laid, and such a plot ? For the indemnity, we are much beholden to those gentlemen that would give it us. It is our swords must indemnify us. It is that must procure our safety. I think we can make it out, all England over, that not one man was decimated, but who had acted or spoken against the present Government.

There is not such a word as decimated in the Bill. I would have it a medium, and take it off, as you see occasion. What need had we of an armed man in all the nation, but for them, except in port towns ? If we speak against thisBill, we quarrel with our own safety, and I believe none will be against it, that are for the true old interest of the nation. I value the satisfying one hundred of such as have gone with us in the honest way, more than ten thousand of your enemies. Our friends are obliged by seeing us make this difference. I desire this Bill may have a second reading. I hope, for all these exceptions to it, that it may be made a good Bill.

Lord Whitlock. I desire, for your healths' sake, and because it is late, that you would adjourn; but if not, I desire to say something to this Bill. He sat down and rose again.

It pleased that honourable person to say that none that were for the honest interest of the nation, would speak against this Bill. I hope, with submission, we may differ in opinion, and not lie under such a suspicion. We have served from the beginning. (fn. 1) I take not the question to be, whether we should take care to preserve ourselves against the common enemy or no ? I believe they may be still plotting. They are an industrious people. I hope we shall be as industrious in providing for our safety. The question is, whether this Bill shall be retained; and we ought to consider how it stands with our faith.

We find several Acts of Oblivion, one in King John's time, under his seal, called Charta de Securitate. The persons par doned broke out again, but none punished but such as broke out actually.

The like was an Act of Oblivion in Henry III., where the persons disinherited, fled to the Isle of Ely, and divers went to them; yet the Act of Oblivion was duly observed. Only they were punished that fled from it. The whole party was not punished.

So in Edward I., where Lieutenants were settled in the nature of Major-Generals, but I hear nothing of them further: what became of the constitution ?

I shall not mention to you those things that were done of the like nature in Edward II. and Richard II., where the Lieutenants began to be high, and to assume supreme jurisdiction, &c.

I never find that any Act of Oblivion was broken. If this Act of Oblivion was duly obtained, (as I remember it was) it ought to be observed duly, as other former Acts of Oblivion have been kept, in all ages inviolably. If you shake that Act, you shake all foundations. All public sales, and all Acts that the Long Parliament made, are shaken, and laid flat, and what the consequences of that may be, I dread to consider. I hope the wisdom of Parliament will find some other expedient for preservation of the public peace, than by this means. I cannot call it an extraordinary tax. I hope the Bill calls it not so. If it do, the Bill is mistaken. It was only monies raised upon your enemies, upon an urgent necessity, for preservation of the peace. I think what the Major-Generals and the Commissioners did, they did not at all violate the Act of Oblivion; but, if this Bill be admitted here, where it comes for your sanction to confirm these Acts, the Act of Oblivion is repealed, as to that part. I shall not say any thing against what they have done, but to call it a tax. It is against the Instrument of Government, and the fundamental laws, to lay any tax, but in Parliament, by free consent. That argument of punishing the innocent with the nocent, weighs very much with me. Instance in the Articles of Oxford, where one Article is, "That no man shall be punished for the offence of another."

1. He excepts against the words aided and abetted, which, if naturally extended, may reach all whose lands have paid assessments to the late king's party.

2. That it confirms the tax under the name of a tax, which ought not to he named so.

What those honourable persons did in order to your safety, it is fit they should be indemnified. They must be so, for they have done you faithful service in it. But, to pass this Bill, to shake the Act of Parliament, I cannot think it for your service. You ought to consider whether you will continue the militia as it is settled. Haply, to have sixty in a county, you may discontent others that have faithfully served you, that they are not all taken in. How soon did we send out 12,000 men against our enemies at Worcester; and yet had no militia in every county; and why may there not be such an expedient now found out to take off this charge, or otherwise to provide maintenance for this militia, in another way than by breaking our faith ? I cannot conceive this Bill is for your honour or service. I desire that it may be laid aside.

Lord Lambert. This gentleman that spoke last, did a little mistake him that spoke before, in that he said none that were faithful to the true interest of the nation, would speak against this Bill. He was mistaken. It was but only his judgment and opinion.

I wish any man could propound an expedient to be secure against your common enemies, by another way than as the militia is settled. The quarrel is now between light and darkness; not who shall rule, but whether we shall live, or be preserved, or no Good words will not do with the Cavaliers. I wish we be not too careless. I shall not speak much to this business how. It is of great weight. I only stood up first, to speak to the orders of the House. But now I am up, I desire it may be referred to a Grand Committee to be debated to-morrow, where I doubt not but satisfaction to the full may be given in this matter to one another. We are not at the bottom of it yet. I desire it may have a free debate; every man to speak his conscience.

Lord Fleetwood. I rise up to move you to adjourn this debate till to-morrow, and nothing to intervene. I conceive it not so proper to refer a Bill to a Grand Committee upon first reading.

Mr. Ashe the elder. I rise up to second the motion of the honourable person that spoke last, that you would adjourn the debate till to-morrow. It is expressly against the orders of the House, to move to refer it to a Grand Committee.

The Master of the Rolls. Though a Bill cannot be referred to a Grand Committee upon the first reading, yet I am of the noble Lord's opinion that moved it, that the debate may be referred to a Grand Committee. I desire it may be so, and that to-morrow may be appointed for the day.

Lord Strickland. This is the first time that ever I heard of a debate to be referred to a Grand Committee. I desire the debate may be adjourned till to-morrow.

Mr. Robinson. Under favour, I think it is not against the orders of the House, to move to have a debate referred to a Grand Committee. In the Long Parliament, my Lord St. John brought in some propositions, and offered them to the House, who thereupon referred them to a Grand Committee; and I have also known it in other cases.

Resolved, that this debate be adjourned till to-morrow morning, and nothing to intervene.

Captain Baynes stood up to move something. I think it was to have a day for reading the Bill for Yorkshire cloths, but the Speaker left, the chair immediately at past twelve.

There was a pretty full House, and a very mettled and serious debate for the time, and will be, before all be done; for one might perceive, by many men's countenances, that they stood full charged for speaking to the business.

Sir John Reynolds had numbered the House, and said at rising, there were 220 at the least, besides tobacconists.

Few Committees sat this afternoon; but I was in the office taking some Journals out.

In the Speaker's chamber sat the Committee for highways. Colonel Coker had the chair. In the inner painted chamber, the Committee for Gloucester Hospital was expected. The Committee of weavers sat below. Colonel Fitz James, and divers others, were talking about the decimations, and said, it was the distinguishing character of those that were against this Bill, that they were for hereditary rank. He was say. ing, how he had made Colonel Rouse believe that William Hampden, Mr. Throgmorton, and himself, being at dinner at Whitehall, were sent in for to his Highness and knighted; and that at the same time, Major-General Howard was to be made Baron of Naworth, and Sir John Reynolds, Baron of — There is something in it, for they say Major. General Howard's patent is ingrossed.

There was a murder committed in this street last night, by one Douglas, a madman, at the George Inn. ' He struck the gentleman, one Mr. Bond, a solicitor, on the breast, &c. He went home, and said he was so beaten he could not live. He died presently after, and, being rich, was this day buried in state.

Footnotes

1 The following acknowledgment of this Speaker's public services had just occurred. "Whitehall, January 6.—His Highness conferred the honour of knighthood upon Colonel James Whitelock, eldest son of the right honourable Lord Whitlock; both father and son having merited much of the Commonwealth, by many eminent services." Pub, Intel. No, 65.