The Diary of Thomas Burton
23 June 1657

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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: 23 June 1657', Diary of Thomas Burton esq, volume 2: April 1657 - February 1658 (1828), pp. 270-283. URL: http://www.british-history.ac.uk/report.aspx?compid=36863 Date accessed: 24 April 2014. Add to my bookshelf


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Tuesday, June 23, 1657. (fn. 1)

Mayor Aston pressed very much to get in Lord Aberga veny's report, (fn. 2) according to former order, but it seems there were divers petitions, to cross it, and the House, fearing the trouble of it, laid it aside.

Lord Lambert. Mr. Collingwood, a prisoner, is at the door. I desire he may be called in.

Colonel Jones and Sir William Strickland seconded. Others called for the orders of the day.

After some debate, the prisoner was called in. At the bar, on his knees, he denied utterly the matter of fact. (fn. 3) He withdrew.

Mr. Fenwick stood up to excuse the business, and after some debate, he was discharged.

Mr. Highland and others offered only to suspend proceedings till next sessions, and to examine the business then by a Committee.

I had a petition in my hand on behalf of Sir Robert Collingwood, the father, but there was no need to present it; for the House were pleased to suspend the warrant till the second Thursday of next sessions, and then Sir Robert to appear. (fn. 4)

The Bill for the customs was read the third time. A proviso was offered about farming them and the Excise, which would advance the revenue 130,000l. per annum.

Mr. Burton. I move against the clause. You will destroy the revenue by it, and discontent the parties that pay it. I move to have a clause for merchants' convoys. (fn. 5)

The Master of the Rolls. I am against farming of your Excise and Customs. Though it may be that gentleman and I are not so well understood, yet he spoke a great deal of reason.

Lord Chief-Justice Glynn. I am against the proviso, and would rather have a Bill brought in on purpose for it. There may be conveniencies and inconveniencies.

Captain Baynes. If you intend a Bill, you must lay aside the proviso.

Sir Christopher Pack. The customs were never so well paid, nor with so much quiet, as when they were let out to farm. It was both more satisfaction to the merchants, and did advance the revenue.

The Lord Provost of Edinburgh offered a proviso, touching the small coal in Scotland, that it may pay but half customs.

The proviso was read the first time.

Major-General Disbrowe opened the reasonableness of the proviso, and said there was no more desired than was formerly.

Lord Chief-Justice Glynn. It is improper for any member to offer a proviso to a Money Bill without an order. The reason is, because nobody can bring in a Bill for money without an order.

Captain Lilburn. I move that the proviso be read the second time, for that I hope you will do the like for Newcastle. I have a proviso to that purpose.

Lord Strickland. This was fully debated at the Committee, and thrown out, upon this account, that they might make all the great coal. We have a proviso of the same nature for Newcastle.

Judge Lawrence. It is impossible to break the great coal into small, for then the coal will not cake; whereas Newcastle coal will cake though never so small. You always made a distinction, and therefore I hope you will also do it now.

Major-General Whalley. It is not, I hope, against the orders of the House, to offer a proviso in this case. You did yesterday abate 30s. per ton to the vintners in 3l. by a proviso. (fn. 6) There is nothing offered in it but what was formerly. It is only reasonable.

Lord Lambert. I move, for the same reasons, that the proviso may be read. It is very reasonable.

The proviso was read the second time accordingly.

Captain Lilburn moved, that the small coal might pay 3s. per ton, and for some other alterations in the proviso.

Lord Strickland. If you pass this proviso, you must never look for other than small coal to come from Scotland. I hope you will also consider Newcastle, for the pan-coal, which pays as much as the other coal, without any abatement.

Mr. Disbrowe. You may as rationally argue that I shall cut my doublet in pieces, the better to sell it in shreds. So well may the great coal be broken into small coal.

The question being put, that the proviso be part of the Bill, the House was divided.

Mr. Speaker declared for the Yeas.

Captain Lilburn for the Noes.

The Yeas going out, it was yielded by the Noes. (fn. 7)

Mr. Speaker was very unwilling to the question, and put it thus: So many as are of opinion that this proviso to take away half the customs upon small coal in Scotland, &c.

Post Meridiem.

Major-General Disbrowe. Your time of rising draws near. I desire to know, now, upon what foundation we are; how we shall know how to act ? His Highness is under the obligation of an oath to the former government, (fn. 8) and you have in your Petition and Advice declared, that his Highness shall take an oath. I would have some course taken in that, to absolve his Highness from his former oath; and that you declare to the people, in some solemn way, your alteration, and that an oath may also be prepared for the people to take, on the other hand; otherwise his Highness is in a pretty dangerous case. I would have a Committee appointed to consider of some way to propound to you of this nature.

Major-General Whalley, I shall not take up your time, but only stand up to second that motion, that a Committee be appointed.

Colonel Shapcott. There is more in that which you have done. People talk of your having brought the power from without doors. You have altered the constitution of the government. We are not all one man's children. It is more than stepping from Protector to Protector. I would have some solemnity, to show that the government takes its foundation by Act of Parliament. I mean not unction, and the like; but a solemn publication and proclamation of your Chief Magistrate, and that likewise an oath be prepared to oblige his Highness to the people, as well as we are bound to him.

Colonel White moved, that some course might be taken to settle the Council, in regard things are to be done by them when we are parted.

Colonel Sydenham. This is a new motion to me, so you will pardon me if I speak without premeditation. I am confident it is made with a good intention. As to that of an oath, this nation has had no great settlement by oaths. We ought to be tender in such cases. I had rather live under a magistrate that is under no oath. If it once begin, it will go through. Some, haply, will stick at nothing; others will be left behind. There will be a great discrimination.

Promissory oaths to me are not so safe. How often have governments been well thought on for a time, and afterwards pulled up. To swear to things that are so alterable! It is said they bind but to honest things; a Parliament may alter it. If it bind not as to that, I pray what does it bind to. I doubt it will prove a stumbling-block. I wish I may be a very false prophet, that you may not, find it a snare to the people of God. I wish it may be my single opinion. If you will have an oath, I would have it congruous to former oaths. I doubt it will otherwise be but to appoint a Committee to ensnare men, good men. I must bear my testimony against it.

Mr. Drake. It is agreed by all that God's vicegerent should take an oath, and it is as much agreed on the other side that the oath should be reciprocal.

I would have a Committee, not only to prepare the one but the other, and likewise the manner of publishing your settlement.

Sir Charles Wolseley. I should be as tender in point of oaths as any man. I am against introducing a promissory oath all the nation over. I shall only speak to what you have done. You have agreed of an oath, so that the motion against that is irregular. The oath is to be agreed upon by the Parliament and his Highness; and if the Parliament part, how can his Highness act upon the Petition and Advice containing a new government, and nothing to put him in a capacity to act upon it ?

I would have the oath as general as may be, to govern us by the laws. The motion cannot be denied. I take it for granted that my Lord is disobliged from his former oath; for if the new Instrument be of force, the other is null. Now as to that of the Council, their oath is also at an end. I wish this present motion had been made sooner. I would have a Committee appointed to this purpose, that every man may know where he is, and what is his duty.

Lord Lambert. That which, I think, is propounded to you is, that it be examined upon what foundation you are. Many things in the Petition and Advice are of great concernment, but this which is pitched upon is, in my opinion, none of the greatest, but the least. The fruits of oaths promissory have not been so much formerly, that they are now to be insisted upon. Suppose it have its ends, so as to crush or strain the conscience of those that have faithfully served you, and will still go on to serve you. If it should light upon a few such, I do not think it will either do you, or his Highness, or the nation, service. If any thing can be done that tends to oneness or unify, I would fain be at that Committee; but I think that which is moved may well stay now, and it is no best season for it.

Sir Richard Onslow. If ever a season, certainly now. The people abroad conceive that two governments are now a-foot; and his Highness may be obliged to either. This was always done upon a new settlement. All justices, judges, &c. are sworn, and why the Chief Magistrate should be disobliged, I know no reason. It is the greatest obligation the people can have. What the oath shall be is not now in debate; or whether it shall be general, to all, or to all persons in trust. But for that oath of his Highness, it must be done, because in your petition. I would have a Committee to prepare.

Mr. Highland. I doubt they are oaths that make the land mourn: what need of any more? His Highness was once sworn as Protector: he is no more, now. After a justice of peace is once sworn, be the commission never so often renewed, he shall swear no more, unless he have been put out. His Highness is not put out, or deposed. I find not that magisstrates in Scripture did often take oaths. His Highness is under as great an obligation as you can tie him to. Your best friends expect no oaths, though it be told you the people expect it. The learned judges attended at that time, and swore his Highness. (fn. 9) I know not what you swear him to more. It was their opinion, that they were upon a good foundation. I shall humbly move, no further oaths may be taken by my Lord Protector.

Major-General Jephson. I was loath to take down that gentleman, whose whole speech tended against both the Orders of the House, and an Act of Parliament. I shall not enter into the merits of the case; but it is expressly against what you have ordered. We ought to be tender in doing and undoing.

Lord Lambert stood up and moved, that he spoke not against an oath, but only against the timing of it; which he hoped he might speak to.

Captain Baynes. We ought to be tender in putting contrary oaths upon his Highness. He has already taken an oath to rule according to the laws; and is not your Petition and Advice now a law ? I wish you would not put any inconsistency upon what his Highness has sworn to, with this you now intend.

There are many things yet unpresented in the Petition, as the nomination of the other House, &c. If you will have any, this may stay as well as the other. It is not so seasonable now. The House is thin now, and next meeting may he as well.

Colonel Jones. I agree with that worthy gentleman, in being tender in putting inconsistent oaths upon his Highness; but I cannot agree about the time. Certainly, now is the best season; rather than to leave his Highness in a doubt that he is obliged by his former oath, and yet must take a new one; or that another government is a-foot, and the Chief Magistrate in suspense which to act by. I had rather, avowedly, go back to the former government.

Colonel Sydenham. We are under a great mistake; whence it comes, I know not. I only spoke to be tender of putting oaths upon his Highness. He is already obliged by an oath. There is never a word in that book, (fn. 10) to impose an oath upon Parliaments, or upon the people. I said, I had rather be under a magistrate that is under no oath, than have, by an oath, all the nation and people consequently drawn in. I may say, at any time, my cloak is mine; but I need not always swear it. His Highness and the Council, upon taking away the Engage ment, (fn. 11) published a declaration against all oaths. (fn. 12) It was a sad thing of that cavalier who denied a Parliament could do any thing. Answer: They could not make such an oath as he could not swallow.

Major-General Boteler. These things might well have been spoken at another time. Three things are insisted upon.

1. A congruity with former oaths. That is impossible.

2. The time of it. For my part, now I think is the only time. I think we are in an inter-regnum; but that my Lord cannot exercise government without this oath, I cannot tell.

3. For the matter of it. I cannot say those who have spoken to it have spoken unseasonably. I think this is the only time. That is my. opinion; and that it may be speedy, is my motion.

Lord Strickland. I would be sorry, that it should be so impossible as that gentleman moves, to make the oath congruous. I hope it will be so carefully penned as to absolve his Highness from that part which cannot be made congruous.

Major-General Boteler stood up and explained himself, as to the impossibility of the congruity: that if the governments differ, the nature of the oath must be also different.

Major Audley. This oath has stayed a month: it may well stay till next meeting.

Lord Whitlock. It is strange logic to say, because we have been a month under an inter-regnum, we must therefore be longer so. As to that of one oath serving for both, it is clear, though his Highness be sworn to act according to the laws, yet he is also bound to the old government; and this is clearly a new government, and so, consequently, requires a new oath. By the setting up a new government, he is disobliged from the former. It is but ad subjectum materiæ: otherwise it would be hardly authorized by most gentlemen here that have taken former oaths.

The Master of the Rolls. If I had not a near friend, and my heart, that prompt me to speak, I would speak plainly. I always thought that by the Petition and Advice, the Instrument was out of doors. To prevent all ugly suspicions and jealousies, I would have it quite pulled down, and declared so. Some persons will ask us, by what government we sit ? But, as to the time of this oath, I cannot think it is so fit. I look upon this as but an embrio, very imperfect yet. What shall his Highness be sworn to ? I would speak as if it were my own case. I should not take an oath till it were perfect.

As to that of his Highness being obliged by his former oath, it is clearly to be understood that he is discharged from it, really and clearly. As I shall answer it before God, I believe it, he is absolved from the tie by the former government; it being taken away. I cannot conceive, as the case stands now before you, but that either you must prepare an oath for his Highness, or a reciprocal oath.

Colonel Cox. My respect for his Highness makes me speak one word, why I think this is not a season to put this oath upon his Highness. He is under one already; and though it is true he was by that oath obliged to the government, yet he is now free as to that; and I think those that contrived the government were soonest weary of it. It looks like as if his Highness had betrayed his former trust, and you must now rebind him. Like two persons that are legally divorced, if they come together again, they must be married again. I grant it is the custom of all countries, upon change of government, to take an oath: but I think you are not at present prepared for it.

Sir William Strickland. Of late, we have had a very great weight of oaths upon us. We had an oath used to stand here, the Covenant; (fn. 13) I wish it had not been taken away. I would not have us to think of an oath without trembling. This is a thing not of such haste. Sudden doing may offend God; deliberation cannot. We are but a thin House: not having the number, I would have the greatest advice that may be in this matter. I am sorry I have taken up so much of your time. My motion is, that you would not think of it at this season.

Mr. Bampfield. It cannot be conceived that a person bound by a former oath is disobliged by taking another. If by setting up a new government, and without an oath he be disobliged from former oaths, what present need is there of it?

In all History that I have read, I never found that oaths have been any great tie upon the Chief Magistrate, not to reflect upon all. But if the persons were not bound by a principle of conscience, it will be hard to find that an oath bound. If you see that the tie of conscience will do without an oath, what need have you to impose it ? Whether such an oath as this may not weaken your hands ?

Probably, in the Council, some may scruple, and so elsewhere. If it keep but one good able man out of the Council, or the Parliament, the nation may have need of that one. Perhaps the desire of doing good may strain and force men to sin. I do not see but his Highness is bound sufficiently by his consent to the Petition and Advice, without an oath. For that it may be an occasion of evil, a weakening of your hands, I beseech you that you would not do it now.

Lord Lambert. Your question is complexed. It is of three parts. I desire they may be severally put.

Mr. Grove. I second that you would divide the question, for it is a very complicated question.

Others moved that in regard it is not binding, but only leaves it to the Committee to present their opinion, there is no further danger in it.

Mr. Speaker. I hope if you divide the question, every man will not take the liberty to speak to it over again.

The Master of the Rolls. They ought not to speak again.

The question being put upon the first part, as to preparing of an oath, the House was divided. The Yeas went forth, for though it was already by Act of Parliament declared that an oath should be taken, yet it was new to appoint a Committee to prepare that oath.

Teas 68. Major-General Disbrowe and Colonel Philip Jones, Tellers.

Noes 51. Colonel Sydenham and Colonel Sankey, Tellers.

Mr. Speaker declared for the Yeas.

Lord Lambert and Colonel Sydenham for the Noes.

The other two questions were put and passed, without any debate. (fn. 14)

A Committee was appointed for these purposes, to withdraw at the rising of the House.

Mr. Fenwick moved that the Bill for the borders (fn. 15) might be read now, which was short and would ask no debate.

Colonel Shapcott moved to read the Bill of Indemnity now, and that the other Bill might be read to-morrow.

Sir William Strickland and Mr. Vincent moved for a day for the Bill of Probate of Wills. (fn. 16)

It was again moved to read the Bill of Indemnity, (fn. 17) which was read accordingly; and, after some amendments and alterations, agreed to pass for a law.

Vide what was done more. (fn. 18) I went out.

Richard Stayner, captain of the Speaker's frigate, received the honour of knighthood at Whitehall, for his several good services at sea, &c. See the Diurnal. (fn. 19)

Footnotes

1 The first article in the business of this day, probably before the writer of the MS. entered the House, is thus described: " Ordered, that the Lord Strickland and Major-General Whalley, do represent it unto his Highness the Lord Protector, as the desire of the Parliament, that his Highness will be pleased to remove from Margarett's, Westminster, the present preacher, being a prisoner to the Upper Bench; and also, one Warmstree, who is employed as a lecturer there, being a notorious delinquent; and to appoint some person of eminent godliness and abilities to be public preacher there; which the Parliament doth apprehend to be a matter of very great concernment to the good of this place." Journals. Among " the Oxford writers," Wood mentions Thomas Warmestry, D. D. who was once "accounted a Puritan," and whose first publication was in 1641, " A Convocation Speech against Images, Altars, Crosses, the New Canons, and the Oath." In 1642, " he retired for security sake to the King at Oxford." After the Restoration, which he survived till 1665, he became Dean of Worcester. Athen. Oxon. (1692) ii. 250.
2 On a petition " to Alien the Reversion of certain Lands and Tenements for Payment of his Debts, and Advancement of his Brother and Sisters." See Feb. 25, and March 10,1656–7. Journals.
3 See supra, p. 220, note §. " Being come to the bar, and kneeling, the Speaker demanded of him whether he did say that there were none but the rascality now in power, who envied that gentlemen should enjoy their recreations ? He doth utterly deny that he spoke any such words." Journals.
4 " Resolved, that Sir Robert Collingwood have time to appear at the bar the second Thursday of the next meeting; and in the meantime, the warrant to the Serjeant-at-arms be suspended." Journals.
5 This was made " part of the Bill for the safeguard of the seas, the convoy of merchants' ships and goods, and the securing of trade," Journals.
6 On "the humble petition of the Masters, Wardens, and Company of Vintners, of the City of London and Westminster, " Resolved, that, instead of the sum of 'three pounds' per tun for the wine remaining in the vintners', wine-coopers', and retailers' hands, the sum of 'thirty shillings' be set upon the said wine." Journals.
7 " Resolved, that the rates of custom of the coal of Scotland, in this present Act contained, shall extend only to the great coal of Scotland, and that the small coal of that nation shall pay only half the custom of the great coal. " Another proviso was tendered, touching pan-coals of Newcastle, which passed in the negative." Ibid. A negative was passed on the tender of the following provisos, and may serve to show the spirit of rigid nationality, which now, and long after, prevailed in Parliament. "That, if any native of this Commonwealth, after entry of coals at Newcastle, for any home port, and not finding sale for the same, he, making entry in such home port, according to Newcastle measure, may transport the same to any foreign port. "That this Act, or any thing therein contained, shall not extend to prohibit the carriage of hides and tallow out of Ireland into England." Ibid.
8 The Instrument of Government, to which he was sworn, Dec. 16, 1653. See Parl. Hist. xx. 263.
9 "Many eminent statesmen," says Mr. Herport, " sensible of the abuses of oaths, allow that, under the most reasonable form, the duties implied in them are of such extent, as to render the performance of them extremely difficult. Whoever obtains an office, civil or military, must swear to so many particulars of various kinds, and confirm his oath with such imprecations on himself, as if it was on this oath, and not on the coercion of the laws, that the good behaviour of the subjects depended; and this is a mistake common to all governments." This able investigator of an important, and too little considered question, again remarks, that " the subjects of many oaths cannot, in their very nature, be rationally sworn to; not to mention, that inflicting a penalty on oaths tends to root out all sense of religion; it being certainly from religion alone that oaths should derive their whole sanction." See " An Essay on Truths of Importance to the Happiness of Mankind; wherein the doctrine of Oaths, as relative to religious and civil governments is impartially considered." By the late Rev. Mr. Herport, of the Canton of Berne. Translated from the German. (1768) pp. iii. 31.
10 It does not appear to what book this speaker referred; perhaps to a New Testament, lying on the table of the House, for the purpose of administering oaths. These were considered, long before the appearance of the Quakers, as inconsistent, at least in their frequent use, with the directions of the Christian legislator. Selden, on the authority of Sir John Cheke (De pronuno. Græcæ linguæ) relates of the celebrated physician, Linacre, who died in 1524, that, " a little before his death, reading this passage (Mat. v. 34.), for the first time, he threw away the book, with these words: ' We are not Christians, or the Gospel is wrong: we swear too much, or Christ forbids too much.'" See Herport's Essay, pp. 111, 112. Gen. Biog. Dict. (1784) viii. 254.
11 According to an Ordinance of the Long Parliament, December 11, 1649. It was in these words—" I do declare and promise, that I will be true and faithful to the Commonwealth of England, as the same is now established, without a King or House of Lords." Parl. Hist. xix. 212. In January, 1649, 50, it was enacted, that it be subscribed by " all men whatsoever, of the age of eighteen years or upwards." Ibid. p. 242. The reception of the Engagement appears to have been by no means general. Whitlock (Feb. 23, 1649, 50) reports the receipt of " letters, that the heads of houses, fellows, and graduates of the University, and the mayor, aldermen, and common council-men of Oxford, had all taken the Engagement; and all the officers both of the City and University." About the same time, there were " letters from Chester, of the ministers in that county bitterly exclaiming against the Engagement, and condemning all that take it to the pit of Hell. From Exeter, letters of the aversness of the citizens to the Engagement;" and " that all the magistrates, except two constables, refused to take it." Memorials, (1732) pp. 442. 444.
12 The Preamble to the Act for annulling the former Ordinance states, that "many general and promissory oaths and engagements, in former times imposed upon the people of this nation, have proved burdens and snares to tender consciences, and yet have been exacted under severe penalties, forfeitures, and losses." Parl. Hist. xx. 269.
13 "The Solemn League and Covenant" (See supra, p.214, note *.) had probably been set up, conspicuously, in the House.
14 "Resolved, that this Committee do offer to this House what they think fit for the solemnization and publication of his Highness's acceptance of the present Government, now established by authority of Parliament. "Resolved, that this Committee do also offer to the House what they think fit, touching the settlement of his Highness's council, and such other matters as they shall think necessary, in pursuance of the humble Petition and Advice, and of the additional Petition and Advice." Journals.
15 "For the better suppressing of theft upon the borders of England and Scotland." Ibid. In this Bill was a clause awarding 10l. to the " discoverer, on the conviction of any Moss-troopers, residing upon the borders of England or Scotland, or any Tories in Ireland.'' Ibid. See supra, p. 210, note †.
16 " Resolved, that the Bill for Wills and Administrations be read tomorrow morning." Journals.
17 See supra, p. 253.
18 The Bills passed " for punishing such persons as live at high rates," &c. (supra, p. 229.). Also, " for giving liberty to Christopher Hatton, &c. to erect buildings in Hatton Garden before 1660." See supra, p. 182. To this Bill was added a clause, enabling "Wm. Wheeler, Esquire, who is, by lease and contract, engaged to build certain houses in and upon his lands in Spital-fields, in the parish of Stepney, at any time before October 1,1660, to erect, new build, and finish, upon eight acres of the said fields, on part whereof divers houses and edifices are already built, and streets, and highways set out, several houses, buildings, and their appurtenances." Another clause enabled "the Mayor, Commonalty and Citizens of London, or any of their tenants, to build houses on that void place, commonly called, or known by the name of, Moorditch, or Towneditch, paying one year's value, within one month after the said houses or any of them are built." See Journals.
19 Mercurius Politicus, No. 367. See supra, p. 146, note *.