The Diary of Thomas Burton
18 February 1658-9

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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: 18 February 1658-9', Diary of Thomas Burton esq, volume 3: January - March 1659 (1828), pp. 326-347. URL: http://www.british-history.ac.uk/report.aspx?compid=36911 Date accessed: 28 July 2014.


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Friday, February, 18, 1658.

Mr. Speaker took the chair at nine o'clock.

Mr. Cooper prayed.

Sir Arthur Haslerigge. The justice of the nation is abused by putting off the assizes. Justice should not be delayed on any pretence. I move that it be debated tomorrow, and inquired where the stop is, and that the persons concerned do attend. There is neither war, sickness, nor any special occasion for it. It was carried so closely; sometimes put off, and sometimes not, but now it is put off.

It seems Sir Arthur Haslerigge let somewhat fall, viz.

"He that we intend to be our Protector."

Serjeant Maynard took him up.

That gentleman may not say any thing in this. He is Protector, and I hope we intend him no other. It may be that gentleman would be quit of that ill counsel which he speaks on, in case the Assizes should hold. He ought to give an account of his words. Nothing is so ordinary as to put off assizes in Parliament time.

Serjeant Maynard was highly moved.

Mr. Attorney-general seconded him, that it was not of such necessity to have assizes as was moved.

Mr. Fowell. People are busy at plough and hedging, so cannot attend assizes.

Sir Henry Vane. I second Sir Arthur Haslerigge. A delay of justice is of great consequence to the nation.

Mr. Swinfen. Nothing should put out the order of the day.

So the other debate departed, (fn. 1) and the order of the day was read.

Mr. St. Nicholas. There is as much reason to bind up an Aristides as a Dionysius. Your vote intends a bound. It is universal, the whole power; and nothing greater than the power of making law. You have not made him a Lycurgus, absolute. It is not properly incident to that office to have a negative. You have not made him king; but if so, anciently, kings of this nation had not a negative, (fn. 2) only power to deliberate on ordinances.

It is a happiness to bring the Chief Magistrate as near to be like God as may be. (fn. 3) With this, you make him the greatest prince in the world. If a good man, he will be satisfied with it; if not, it is too much.

If he have a negative, what signifies your sitting here? When you have done all you can to make good laws, and he refuse, all your pains and hopes are lost. It is not probable that this House will, in civil concerns, make any law destructive to. themselves.

To answer Serjeant Maynard's objections:— (fn. 4)

1. It is not wisdom to keep treasure but under three keys. If he commit his treasure to other persons, I am apt to believe he will keep the keys himself.

2. It is necessary for the Other House to have a negative.

I have read that kings were bound by the laws made by the representative, though he were absent.

If a person of that House should slip into treason or felony, who should be his peers to try him ? That learned man, if he were a Judge, would say he should be tried by honest men in the country.

3. If a law should be imposed to intrench upon men's consciences.

I answer. Suppose the major part should propose a law for the liberty of men's consciences, or to take away a law that intrenches on that, and the single person or another House have a negative, where are we then ? I hope we are in that light, that persons oppressive of men's consciences will not be chosen. I had rather trust my liberty among seven times seventy in this House, than with seventy (fn. 5) in another.

My motion is, that the question on the negative voice may precede; and that the Chief Magistrate may not have a negative, nor your laws that you have prepared, be hung up for the want of consent, by a Chief Magistrate.

Mr. Swinfen. You are not ripe for your debate till you concur in your own constitution. You must concur in that which is naturally before.

Let us deal plainly with one another. No governments in themselves are good or evil. We have not debated whether we will have a Republic. Let us plainly debate it, and not be drawn off by indirect votes.

You have voted a single person, suppose without a negative voice, and the militia.

The single person has no being but what you may put an end to when you please. What need you then debate where the negative shall be ?

In order of nature it is reasonable to know the thing before the power. First, you vote Committees, and then powers. Those that would have a single person and another House, must not lose their votes.

We are not chosen a House according to law, (it is said) but a representative chosen and in full power to frame any government. To have a negative in the single person, were to reduce us to the power of a single person, for he will be able to have a negative as to his own preservation. Therefore I would have the Lords' House first settled.

Mr. Knightley. Is the Other House the Chief Magistrate ? How came we to talk of them ? There is another place in the Bill about the Other House. I only speak to the order of your proceedings, and would have us hold to the order in the vote.

Mr. Onslow. I am not for debating of new forms, but for stating that we live under. Keep to the order of the House, to debate first the negative voice; which is no new thing, no stranger to our laws; and when we come to talk of a House of Peers, I doubt not but if we make that House, we shall give it that just power that the ancient laws give.

Mr. Attorney-general. I cannot give my vote in this case, till you agree whether you will have two Houses, and first, whether you will have it a Republic. Let us know where the legislative power is, before you say such a person shall have no negative. Let us be dear in this. If there be a negative voice elsewhere, perhaps I shall agree the Chief Magistrate shall have none.

Sir Arthur Haslerigge. Well may I change my opinion, when those learned persons change theirs so often. It is easy to misconstrue the debates of this House if we be not sparing one with the other. It is very trivial to move any thing concerning government or the Lords' House, upon the vote before us. The question is, whether the Chief Magistrate shall have a negative. Let us go plainly to it, and consider how to bound the power of the Supreme Magistrate in reference to the good of this nation, that he may not prejudice that; and whether it be for the good of the people that the single person should have a negative voice. I am glad to hear the name of Commonwealth is not so odious. When this House shall have made his Highness Chief Magistrate, I would not have us diverted by another question.

Captain Baynes. Reading the order yesterday would reconcile all.

It was read, and it was touching the negative voice, to be proceeded in.

Mr. Swinfen. That order was not made till after you were out of the chair. (fn. 6) I would not have us surprised.

Sir Henry Vane. If you ingenuously reason on that which is in your vote, it is clear you must proceed with the order of it, about the negative voice. The Lords' House doth not concern the bounding of the single person, the liberties of the people, or any thing in that vote.

Serjeant Maynard. That vote doth not bind you up as to the order of it. In your vote it is not agreed which part should go forward. Suppose you should order the negative, to whom or what will you apply it; whether to the person or the matter ? I desire you will propound, whether a negative shall be now propounded.

It is most proper to concur in the Other House first. I mean not this House of Lords, or any other House. It will be a disadvantage, to those that are against a negative to have this question put.

Mr. Neville. It is all one. You will either have the Lords' House, or none. If you will have none, then you can have no negative. If you have one, how can that, the House of Lords, be a boundary to the kingly power ? You have no such House of Peers now, which hath an interest answerable to be able to do it. Here will be a negative upon you, and the Chief Magistrate shall have the power of that. There is no intent to cheat. Whenever a House of Peers comes to be debated, it will not be found that a House of Peers shall be of that use now as formerly. We are upon alterations, and no thought now is to be taken of what was done by John of Gaunt, and such fellows: The Lords much outweighed before, and now the Commons and the people outweigh; and your King, not long since, before the Parliament, did oversway. So you build upon an ill foundation if you aim at the old way. You cannot build up that which God and nature have destroyed. We are upon an equal balance, which puts out Turkish government (fn. 7) and peerage. Laws are made to preserve things that are, not things that are destroyed. You are invested with all legal power. If you will say, all power is in the sword, that is one thing; if in the people, that is another. But it is in the people, in you, in consent. You have laid a good foundation, a single person. It now concerns you to build upon that, and to bound him, that he may lay claim to no more power than now you give him. You are in a good way. Go on.

Mr. Attorney of the Duchy. Make that the question, that the supreme legislative power is only in the Commons of England, Scotland, and Ireland, assembled in Parliament. I am free and clear to debate; but if you apply it singly, it can never come to a clear resolution. Make that the question, and we will singly enter upon the debate of it.

Sir Henry Vane. I did, and do think, that you have the sole power to bind the people. The single person joining with you, binds the thing faster, but he hath no power to deny laws to the people. Therefore the question ought to be, whether the single person ought not to be excluded from any power of a negative voice in making laws for the good of the people. (fn. 8)

Mr. Reynolds. I understand that you and your clerk are reflected upon, as for mispenning your order. The order is clear. The negative voice is expressly within the words of yesterday's order. There is nothing for bounding the Lords. Our business is to bound the Chief Magistrate. The Lords are quiet. (fn. 9) We trouble not them, nor do they trouble us. I pray those gentlemen will not prophecy. (fn. 10) We desired the Lords to concur with us in bounding the King in the negative voice. (fn. 11) I know not but we may go up to these Lords, and desire their concurrence that the Chief Magistrate shall not have a negative voice. Let not the Lords' House trouble you. Let it not be a stumbling block in your way. If the Lords' House will not trust us, why should we trust them ?

Mr. Raleigh. I am not free to give a vote till this stumbling block, this House of Lords, be removed out of the way. If you admit the legislature is here, I shall know how to give my vote. I humbly conceive the other debate is very proper.

Mr. Goodrick. The order was mistaken and penned after you were out of the chair. How the negative voice comes in, I know not.

Mr. Speaker. You all agree in one thing, only differ about the manner. The bounding the Chief Magistrate was thought by all, the first thing in order in the great vote, and it was the sense of the House to debate upon the negative voice. It is true, the legislative power was spoken of as concerning it previously, by some, but the negative voice was insisted upon as touching laws made by this House alone, or by this House and another, or elsewhere. This was the sum of the debate. It all tends to the same thing.

Sir Henry Vane. The consideration by you is only of laws passed by you, and you must hold us to the negative voice.

You must not leave the chair till the question be read. It is of dangerous consequence for two or three to direct the sense of the House, when you are out of the chair. No member can direct the sense of the House. The clerk ought not to take it.

I move that it is properly before you to debate the negative voice.

Mr. Trevor. There was no order to debate the negative voice; or, if any order was made, it was after you were up.

There is a necessity to debate what the negative shall be upon. If I thought the laws should come but from one House, I might perhaps conceive it fit to give the single person a power to support himself, more than if I thought they should refer to two Houses; so that it is natural to look at these two considerations. Determine this first, as it is most proper and natural for you. I have no interest that is divided from the whole. I speak not to direct you; but that you may go naturally to the business before you.

Lord Lambert. This which is offered you, is no part of your debate. I cannot but wonder we should have any scruple in going ingenuously on with the things before us. How came the other House to be concerned in any of the particulars of the great vote ? Doth it limit the Chief Magistrate ? It is so far from that, as it is rather a further strengthening and enlarging than a bounding of his power, as having a dependence upon him, and nothing to oblige to the least public interest, but their own goodness.

By your appointment agree the Government. Then appoint officers, appoint servants; for you have a House. I am apt to think we may all agree in that thing afterwards.

But I see not the delay of this work of bounding as the putting off an evil day. Therefore it is high time to fall to it; and to know where the power is. It concerns the rights and liberties of the people; and most of all the privileges of Parliament, at least of this House. The Commonwealth, I perceive, must not be named without a brand. I hope it is no ill word.

I am apt to suspect the swelling of the power of the single person. I fear it may get too high. I know the last Protector was not willing to use all that power that was put upon him. I would very gladly see what you will do for the people. I would have you go on to debate the negative voice.

Mr. Attorney-general. The order yesterday was no order, because the question was never put. However, this House is master of its own orders. I move to put the question, whether the power of the legislature be singly in this House, or the single person ought to have a negative; or the other, whether you will have another House. Let the question nakedly come, that every man may know what to give his vote to.

Sir Arthur Haslerigge. This is an exceeding catching question. But that is not the question; but what power the single person shall have; and, if we make laws for own good, whether the single person ought to do us any hurt in that.

The sole legislative is here. I am of that opinion, that we would give a legislative power, to the good of the people, but not to do us any mischief; that he may ingratiate into the people; that, if his Highness consent, we may humbly thank his Majesty.— "The King can do no wrong."

If this question go on, we surprise ourselves. It is not intended but the Chief Magistrate should have part of the legislature.

Serjeant Maynard. I would be content the question should go, that he should not have a negative upon all laws that are for the good of the people: whether, when the House of Commons only shall propound bills to the Protector, he shall have power to deny them?—make that your question.

Mr. Onslow. We have recognized a Protector. I would have us recognize a Parliament. I had rather change an order than that any gentleman's vote should be debarred. They have declared themselves; so it is not improper to state that Government that must have to do with this single person. I shall willingly go on to debate of what is the Parliament of England.

Sir Anthony Ashley Cooper. The bounding the single person is the most proper thing in debate, and I apprehended we had now been upon the Chief Magistrate's limitations. It is objected, that men cannot vote unless they know whether there shall be another House. That objection is made as if we were constituting a new Commonwealth. If that should be, then unless you know what power your single person shall have, how will you declare the power of the other House, for this will still lay in your way ? I have not heard that debated yet, whether we are upon the footing of the Petition and Advice, or on a new foundation, or on the old Constitution. I think we are yet to be supposed to be upon the foot of the old constitution, unless something appears to the contrary. Therefore, I would not have us surprised in a vote. We may by this, put a limitation upon this that we mean not of; and instead of bounding the Supreme Magistrate, be rather bounding the liberty of Parliaments.

Captain Baynes. I would not have the legislative power in any one constitution, but in two; and they both to be representatives of the people. (fn. 12) When the House of Lords was in a co-ordination of power with you, they did near upon represent half the property of the nation. The Bishop of Durham of old represented a whole county. There are now no members at all for that place. (fn. 13)

The Lords represented at least in old time, two thirds of the rest, who having so great a propriety in the nation, it was all justice and reason they should have a co-ordination in the Government.

It is my judgment to have two Houses. And if we can find out such persons as have such proprieties as may balance this House by property, in any considerable measure, it is fit we should have them; but if there be none such, I would have another House, indeed, that there may be a propounding and an enacting power, but to be chosen either by the people or by some other way: for there never was any Commonwealth, but there was one body to propound laws, and another to enact.

I shall offer you a question, to be the ground of this debate. Whether there shall be a negative voice upon the people represented in Parliament, in making of laws for their own good, without naming any House ?

Mr. Scot. Many questions are offered, and some press for preference. You will find a complication of questions wherever you begin. It is equally ensnaring to me to give a negative before I know he shall be Chief Magistrate, as well as before you have another House. We must either go ascendendo or descendendo. In the order of nature this seems first: that, having recognized his Highness as Chief Magistrate, we should agree what power he should have. Then, if a House of Peers, say what shall their power be: and out of both these may result our power. It is my opinion that the people should have no final negative voice upon them.

The Romans, after Romulus's death, desired a king, omnes regem poterunt; because they knew not what liberty was. (fn. 14) They were an outlawed people. I would plainly have no negative upon the people, otherwise than deliberative demurrative, &c. (fn. 15)

I know not upon what foot we are: We are not King, Lords and Commons, we lost that about 44 or 45, before we lost our virginity.

We are not upon the Petition and Advice. All do not sit here upon that. So we are only upon the foundation of the people.

Mr. Hewley. Upon what foot do we hang? If it be not on the Petition and Advice, I know not how we came here. By the order of nature we should know the constitutive part, before we agree on the emanations and power from this. We make the Chief Magistrate less than a shadow if he have not a negative. If there be but one House, I shall say the Chief Magistrate shall have a negative. If two estates, haply no negative. Of necessity, and naturally, you must proceed upon the other House.

Colonel Morley. I see this bounding is a tender point. We are loth to come at it. We are now putting a negative upon ourselves, instead of bounding the Chief Magistrate, and now are setting up another House. So that, when both those are set up, we shall have a negative upon neither.

Mr. Swinfen. I would have the question put, whether the Chief Magistrate shall have a negative upon such laws as shall be presented unto him from Parliament; a secure question, without naming this or either House.

Colonel White. Before we have laid the foundation, we are come to the superstructure. A question is proposed, which would be very comprehensive of the matter, to take into consideration whether the legislative is or is not fundamentally in this House ? Till you assert where the legislature is, it will not be so fit to think where to dispose of it, or how. Till then, the conveniency or inconveniency of disposing of it will not be known by you. Whence came the Other House, but from this House? It was not of itself, nor came out of the clouds.

Sir Henry Vane. Whilst you are saying that you are taking into consideration the negative, you allow him an affirmative voice. Yet we sit here intrusted with preserving the rights of the people. If we be of opinion that the single person should have the negative voice, let us own it, and declare it, and not take it in by a side-wind. If the people think they are not competent judges of what is good for them, let us say so plainly, and let that be the debate.

Sir John Lenthall. The order yesterday was made without consent of the House. This is the most intricate question that ever came within these walls; for we are not of our own foundation. The people have not conceived that this is the Parliament. For those persons that say this is the Parliament, may as well say the Other House is the Parliament.

Till we go to the right constitution, we shall never know where we are. There never was any constitution but under four persons; the King, Lords Spiritual, Temporal, and Commons. As I shall not go so high as to vote a King, so I shall not go so low as to believe and acknowledge that all power is in this House. What extravagances have been, from supposing all power was here! The country sent us here to consult de arduis regni, with the King and his nobles. See upon what grounds you stand. If you conclude yourself a Parliament without another House, then go on that debate; and if we be the only Parliament, vote that.

Mr. Reynolds. It ill becomes that gentleman to reflect upon the Long Parliament. I doubt he forgets who sat in that Parliament from beginning to end, that his father sat in the chair all the time. (fn. 16) This looks just like the beginning of the Long Parliament, when speeches with such reflections used to come from under the gallery.

I appeal, if instead of bounding the Chief Magistrate, we are not about bounding ourselves. If we pass the Lords with a negative voice, then we bound ourselves again. So that some gentlemen are content, if we but bind, it is well enough. We are so loth to come at the point. A great Chancellor, when counsel would with art go from the point, used to say, they play with the point; and that he thought the plague was in the priest. (fn. 17) I hope there is no plague in this. I would have you therefore plainly to debate if the the Chief Magistrate shall have a negative voice.

Mr. Manley. I move, like wise builders, to examine the constitution. I would have the Other House first debated, because you know not where to apply it. If you intend really to go to a Commonwealth, debate it. To say, we have the whole power, what is that but a Commonwealth ?

The question is only for precedency of one that is doubtful, or of the other that is clear. What is meant by Chief Magistrate and also by bounding ? This last is not meant to take all away that is in the Chief Magistrate by right; but only those excrescences and suckers which grow from that tree, from which this nation hath received good fruits.

The Other House doth lie in our way, if the legislative be here, we need go no further.

Mr. Chaloner. I move to debate whether the Chief Magistrate shall have a negative upon what this House shall declare, as the Parliament of England.

Mr. Bodurda. By that motion there is more uncertainty. I know not what you mean shall be the Parliament of England. Is not setting bounds a bounding ourselves, as well as bounding him ? The more you give him, the less you have yourselves. The Other House is most natural to go first upon. It is impossible for any man to give his vote clearly till you explicate the terms that must come first or last. The Other House is the balance; it tells minutes between the two estates. The most natural question is for the Other House.

Mr. Croke. There are weighty reasons on both hands. You were pleased to vote the single person, which has general acclamation. Then you proceeded to bound the single person. That the Other House is any part of bounding is not apparent to me. Nothing we do now does exclude that debate of the Other House. In the Bill, the question of the two Houses will have its place. We may debate upon this negative properly without touching the Other House. There is uncertainty in what is propounded. First consider, what is fit to bound the Chief Magistrate in, and then dispute the Other House.

Mr. Turner. This question of precedence has spent this day, and may extend two or three days longer. I would have it put, if you will adhere to the words of the order, which, it seems, is arraigned.

Mr. Knightley. Because that order is so arraigned, which is not parliamentary, let us go upon the former order, which was to bound the single person.

Mr. Starkey. I move that the constitution be first debated.

Mr. Hungerford. I apprehend not such difficulty for gentlemen to give their votes. Nothing is to be binding, till the whole be passed. None then can be bound by their votes.

Mr. Speaker. You have been debating a negative in general. Make your question, if the Supreme Magistrate shall have a negative upon laws presented to him by Parliament. Then you will be engaged in another debate, what shall be the Parliament ?

Mr. Attorney-general. Make any plain question, and I will consent to it; so that none may be surprised. I cannot give my vote upon such uncertainty.

Mr. Turner. Put the question whether this House will proceed upon the negative voice, before you have resolved the constitution of Parliament.

Mr. Onslow. I second that motion. It will be most reconcileable.

Colonel Bennet. I must look upon that order as binding, till you take it off. It is not parliamentary to arraign your orders. You arraign the whole journal, your whole records.

Mr. Raleigh. I shall not dispute that order. It is a constant course of Parliament to appoint a Committee every Saturday night, to overlook your orders. You are going to bound your Chief Magistrate. Will not you know the bounders, as well as the bounded ? Will you bound him to he knows not what, and you know not what ? If it shall appear that the legislative is in this House, I shall agree the Chief Magistrate a negative. If in two Houses, I shall never give my vote that then the Chief Magistrate shall have a negative: so that it is clear my vote is out of doors till you clear this.

Mr. Steward. I second what Mr. Turner and those gentlemen have before moved.

Sir Henry Vane. I insist still to adhere to your orders of yesterday.

Mr. Swinfen. If you affirm that order, you cannot proceed; because your terms are not explained. It is plain you will bind votes both ways.

Mr. Jenkinson. I second the motion. You may satisfy all by a plain question; whether the sole legislative be in this House ? Or put the question; whether there shall be any negative at all in this House ?

Sir Arthur Haslerigge. By the orders of the House we must have this question. It is strange to me how this other House comes in, when you are bounding the Chief Magistrate. Must we now debate it, as a privilege ? We have tried it with our swords. Let us not lay new foundations for a civil war.

He was taken down by Colonel Cox, and Colonel Morley moved him on again.

He then went on to beat the old point, that the negative voice first be gone upon, according to the orders.

Mr. Stephens. I am very spare of speaking, for sure that petition is true. I cannot make sense of it, that the Chief Magistrate shall have a negative, and you say not to what persons and things. It will come properly under another House, if you agree on another House. Let the numbers and qualifications be agreed on afterwards.

Serjeant Maynard. All I desire is to settle your question without ambiguity. Put it that his Highness shall have a negative upon Bills presented by this House. Let that be the question.

Mr. Neville. The inconveniences are equal, on both sides. I doubt, by dividing the question, this great question will be out of doors. The King's oath was that he would confirm the laws, quas vulgus elegerit. (fn. 18) Those that will have another House, why should they distrust their own strength ? The question is clear enough, and by it every man may have his free vote.

Mr. Bampfield. If you put the question that the Chief Magistrate shall have a negative on laws made by Parlia ment, then you still bring in debate what is meant by the Parliament. I take this to be the order; that the order leads you directly to debate whether you will have another House. It is touching the negative voice generally. That must be understood of the other House. You cannot go one step till that be determined. If you do adhere to your order, it leaves it indefinitely still. It is proper to your question to consider whether you will have another House.

Colonel Matthews. I see not why we should lay aside this order. It is most natural to proceed upon this. In the beginning of the Long Parliament this was one of the great questions, and then there was a House of Lords. I see no man's opinion tied up. The Parliament in 54, disputed this long. (fn. 19) Then there was no Other House.

I would not have the Chief Magistrate to be denied a negative as to all. He should have a negative, as not to— (fn. 20) the government. I beseech you go on with your order.

Serjeant Seys. It is most proper to debate first, whether you will have another House: first, of the way of making laws, before whether he shall have a negative or no. Some previous debate is necessary.

Sir John Northcote. I never knew this House claim a constitutive power, but a declarative power. The question was then, not whether they should take away a privilege from the King of making laws, but that he should not refuse good laws. Our consistency ought not to be denied. We are three estates. I wonder how the power that we claim now, comes to us; either by usage, constitution, or conquest. We must not keep that by the sword, which we have got by the sword. In a peaceable time, I hope such sharp arguments shall not be used.

Mr. Disbrowe. I never knew it denied to make a question clear, when any-gentleman excepted, and said they could not give their votes if it passed so. When there was a House of Lords, the negative voice might be debated with the King in clear terms; but now it is not clear that you are (fn. 21) —. You are not under that constitution. If you say that there is another House, or not another House, till that be determined, I cannot give my vote clearly. There are, fairly, some things, wherein, if there were never so many negatives, you would not deny the single person a negative. As, if the Government should all be pulled up by this House, shall he be bound to consent to that ?

Mr. Gott. Every negative contains an affirmative. I cannot be satisfied to give my vote, till I know what shallbe the affirmative; or till I know, whether two negatives or one are upon me, which is a great difference. Two and one differ and quite alter the debate. Put your question thus: whether, in consequence of the negative voice, you will first take into consideration the Other House. Or, put the question, whether to put it or no. This you must come to at last.

Mr. Speaker was going to put the question.

Sir Henry Vane stood up, and gave his reason against taking first into consideration the Other House.

It was offered, that the militia and negative voice be included in the vote of your Chief Magistrate. Then it was answered, that the previous vote provided that nothing should be binding. It was then allowed the reason. Why is that reason denied now ? That Parliament that made the other House, surely had the legislative ? They must either own that the legislative power was in that House; else nothing passed to them. If it stand not on that Constitution, then it must stand on the old Constitution.

I shall clear it, that we are going to settle that which is fallacious. It will strip you at one time, and at one breath. You make void all your former expressions, which to me is as clear as day. If they can do none of those things till they have set up a co-ordinate power, then you can pass nothing here, but must have their concurrence. Pass this, and you will have that brought in upon you from the Other House, that will confirm the single person in all things that concern him, and so your own liberties are left at loose. If you have a mind to do aught for the people, do it clearly. Pronounce your judgment, that the Chief Magistrate shall have no negative upon the people assembled in Parliament. Do this, else I shall take it for granted that you will have no fruit of your debate, and that you intend nothing for the people.

Mr. Onslow. I did not think to have heard it pressed that it was any part of the quarrel to take away a House of Peers. I hope, in due time, we shall return where we were. We are now creating a Government out of the ruins of the people. We must take it for granted that our Government is destroyed; but that we build. I know no difference between our constitution now and before, but in the name of the single person. I would have us give no more than we gave the King. I know no reason why we should grow so wanton as to give less to this person.

Captain Baynes took exception against the word "wanton," but was decried.

Mr. Bulkeley. It needed not explanation. I think Sir Henry Vane has said something that stands in need of explanation; not a slip in passing. I agree, the ground of your war was not to take away the single person or the House of Lords. When another House is stated, it will, I believe, be found exceedingly needful. Are you afraid that your laws shall be perfect ? I wish all the Judges might perfect them, not with a negative power. I more dislike the word Commonwealth than I did in the morning. If you admit this, you may as well lay him aside. If he be not major singulis, he will not be able to suppress and allay factions, which you will see will break out. I am against advancing the single person beyond bounds as much as any man; but to make him insignificant (fn. 22) —. I do not think that any of those gentlemen that came irregularly into the Government (fn. 23) , can think that we are upon the same footing still. Because there is a willingness to condescend, let us not go further off. Let us debate this. It comes orderly before you; is genuine to your question. It was never denied to any member, if it was not plain. If nothing but this, it were enough to gain my assent. A liberty will be left to these gentlemen afterwards, to except against any part, because of the previous vote. It is but reasonable, and genuine, and natural.

Lieutenant-general Ludlow. It is plain that there is catching in this question. Sadden not the hearts of the people by putting in bounds upon the people. The Representative of the people of England cannot be called a faction. I desire to debate the Members of Scotland and Ireland, (fn. 24) first, before you put any more upon us. We sit by the Petition and Advice, as I take it.

The question being propounded, that this House shall proceed to determine the power of the negative voice in the Chief Magistrate, in the passing of laws before the constitution of the Parliament as to the two Houses be first resolved on,

Mr. Speaker declared for the Noes.

Sir Arthur Haslerigge for the Yeas.

The House was divided. The Yeas went forth, contra Sir Henry Vane's opinion.

Yeas 86. Mr. Brewster and Colonel White, Tellers.

Noes 217. Sir John Coppleston and Mr. Francis St. John, Tellers.

Lord Fairfax, Sir Christopher Wyvill, and Colonel Neville divided with the Yeas.

Mr. Bodurda moved for leave for Mr. John and Mr. James Ashe to go into the country for ten days, to attend Mr. John Ashe's (fn. 25) corpse. Leave was given.

Sir Henry Vane and Sir Arthur Haslerigge moved to take up the debate to-morrow upon the militia; but it was called down, as improperly moved, and cried, not ingenuous.

Serjeant Maynard. I see nothing that is disingenuous.

Mr. Trevor. The reasons are the same as to the other. You must first determine your constitution, before you dispose of your power.

Sir Richard Temple. I move to proceed upon the Other House as most proper.

Mr. Weaver. Sixty persons sit amongst you, (fn. 26) that have no vote in your legislature. Any sixty persons that walk in Westminster Hall may as well sit. I would have that your first consideration, lest it be told it you afterward, when you would not hear of it.

They have no right at all to sit, by law. Not but that I would have them qualified.

Sir John Lenthall. Though they cannot sit by the law of the land, yet it is fit, on this great work of settling the nation, that we should have them here.

Colonel Matthews. I am against that.

Colonel White. I have no faith to convert any body by my motion. I only stand up to move that Mr. Neville's business be heard to-morrow.

Mr. Starkey and Mr. Attorney-general moved against it, now you are contending for breath.

Mr. Scot. I doubt that those that are for Ireland and Scotland are in a prœmunire.

Resolved that to-morrow sevennight be appointed to hear counsel on both sides, in the case between Mr. Neville and Mr. Strowde, late Sheriff of the county of Berks.

Resolved, that the House do take into consideration the constitution of the Parliament as to the two Houses to-morrow morning, and that nothing else do then intervene.

The House rose at past two.

The Committee of Trade sat, but I was not there. (fn. 27)

Footnotes

1 "Complaints were made," says Mr. Bethel, "that the assizes, without precedent, were put off, to the common wrong of the whole nation; and therefore, to the end that the people might receive no prejudice by the sitting of the Parliament (as the courtiers were suspected to design, to the end to make them out of love with Parliaments,) it was desired that the Pretender might be moved to command the carrying on of the assizes; but the courtiers being resolved not to lose so considerable a part of their strength as the lawyers, they would have the whole nation to suffer in the want of justice, rather than they would want one of their members." Brief Narrative, p. 340.
2 See supra, p. 319, note †.
3 See supra, p. 320.
4 See supra, p. 322.
5 See vol. ii. p. 17, note.
6 See supra, p. 325.
7 See on "a Turkish power," supra, p. 288.
8 Thus Richmond and Sidney. See vol. ii. p, 453, note.
9 See supra, p. 152, ad. fin. For the only record I have discovered of any activity in the "Other House, see vol. ii. p. 439, note*. "Barwick to Hyde. Feb. 16, 1658–9. Those they call Lords meet and adjourn, and consult about making a catechism, and make speeches against plays and the Common Prayer-Book. But all men's eyes are upon the Commons: for it is clearly foreseen the Petition and Advice will not support the Other House, and thereupon the Commons look upon it as a personal privilege of the last Protector." See "Thurloe State Papers," vii. 615.
10 Referring probably to Serjeant Maynard's suppositions, supra, p. 322.
11 By concurring in the Declaration. See supra, p. 319, note*.
12 See the United States, vol. ii. p. 460, note.
13 In 1653, there had been one member for Durham, and in 1654, and 1656, two for the county and one for the city. Richard, in convening this Parliament, had reverted to the old distribution of elective franchise. "This county or bishoprick, having anciently a petty king or palatine of its own, who called a parliament of his own barons, was therefore looked upon as an exempt jurisdiction, and was either not permitted, or did not claim the privilege of sending any members to Parliament." Since "a special Act," in 1673, there have been two members for the county, and one for the City of Durham. See Willis's Notitia Parliamentaria in Magna Britannia (1720), i. 636.
14 "In variis voluntatibus," says Livy, "regnari tamen omnes volebant, libertatis dulcedine nondum experta." Hist. lib. i. cap. xvii. (1749), i. 24. (Amidst their various opinions, all desired a regal Government, not having yet proved the sweets of liberty.)
15 See supra, p. 321.
16 See vol. ii. p. 29, note.
17 Referring, probably, to the directions, Lev. xiii., for discovering the plague of leprosy, by application to the priest.
18 See supra, p. 319, note*.
19 Bee vol. ii. p. 395, note. It was resolved, Nov. 10, 1654, according to Whitlock, "that if the Protector consent not to bills presented to him, within twenty days, they shall pass as laws without his consent." Memorials, (1732), p. 608. See Parl. Hist. (1763), xx. 378, 379. On 1656, see vol. i. p. 20, note. There was a provision, in 1654, "that such Bills contain nothing in them contrary to such matters wherein the Parliament shall think fit to give a negative to the Lord Protector." On the division there were, "Noes 85. Sir Charles Broghill and Sir Charles Wolseley, Tellers. "Yeas 109. Sir Richard Onslow and Colonel John Birch, Tellers." Journals.
20 Blank in the MS.
21 Blank in the MS.
22 Blank in the MS.
23 Perhaps, referring to those who sat without taking the oath to the Protector. See supra, p. 68, note.
24 "Chosen," says Mr. Bethel, "by the Pretender's interest." Brief Narrative, p. 343.
25 "Mr. Ashe the elder." See supra, p. 241, vol. i. p. 362.
26 The Scotch and Irish members. See supra, pp. 28, 29, 31.
27 The following reference to some late parliamentary discussions, is in a letter dated "Holyhead, 18th Feb., 1658–9." Addressed "to Lord Henry Cromwell, Lord-Lieutenant of Ireland," from "the Earl of Thomond," then on his way to London:— "Mr. Mabbott tells me heere nothing hut of a vintner, which, not elected, sat as a member, but not for Scotland or Ireland; soe that my Lord President Coote, nor others at Dublin, need not suspect being welcomed into the House. The speech of confident Haslerigge, against the recognition, was found fit only for lawghter in the House." See "Thurloe State Papers," vii. 618. "Henry, Earl of Thomond," according to Mr. Noble, became "allied to the Protectoral House of Cromwell, by the marriage in 1660, of Sarah, daughter of Sir Francis Russel, Bart., and widow of General Reynolds, whose large dower made her no inconsiderable fortune to him. Though he had submitted to bear offices under the Cromwells, yet he professed all loyalty towards the royal brothers, Charles II. and James II., to both of whom he was one of the Lords of their most honourable Privy Council in Ireland. His Lordship died in 1691, aged 72." House of Cromwell, (1787) ii. pp. 427, 428. Ludlow, relating the exertions of the Parliament, in 1641, to suppress the Irish Rebellion, says: "The Lord Forbes, a Scotsman, was sent with a party into Munster, where he greatly annoyed the enemy; and being furnished with some ships, sailed up the Shannon, and secured several places upon that river, particularly Bonratte, the residence of the Earl of Thomond. The Earl, unwilling to oppose the English interest, and no less to make the rebels his enemies, chose to withdraw himself into England, and to leave his house to the soldiers, where (though he pretended he had no money to lend them to supply their wants) they found two thousand pounds buried in the walls, which they made use of for the payment of their forces." Memoirs, i. 20, 21.