The Diary of Thomas Burton
17 March 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: 17 March 1658-9', Diary of Thomas Burton esq, volume 4: March - April 1659 (1828), pp. 163-174. URL: http://www.british-history.ac.uk/report.aspx?compid=36932 Date accessed: 31 October 2014.


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Thursday, March 17, 1658–9.

I came late. It seems that several members being double chosen, did make their elections for which place they would serve, and new writs were ordered to be issued out accordingly. Query, per Diurnal, if ought else was done. (fn. 1)

The order of the day was read, touching admitting the right of the members for Scotland to sit.

I know not who had spoken to it, but I suppose it was but newly entered upon; and a gentleman told me, the gentleman that was speaking was the first that had spoken to that business.

Mr. Goodrick I found speaking in defence of the right of Scotch members.

The business now before you, is the greatest that ever was these five hundred years. As to recognizing his Highness, will you leave out Scotland ? It is not just to bind them by any laws you make, if you exclude them here.

Prudence may dispense with a law. The Romans made it death to scale the walls of Rome; yet a citizen did it, and was justified and rewarded, it being for the safety of that city. (He cited the thirty-third chapter, the last chapter of the last Parliament. (fn. 2) )

God has united. A curse belongs to them that separate. They were in possession last Parliament, pursuant to an agreement. I am more zealous in it because of my oath.

Mr. Weaver. I shall use no argument pro or con. The great argument is, that the Chief Magistrate having summoned members, it gives them a right. Admit this, and you pull up the people's liberties by the root. The sense of the House has exploded that.

Another reason offered to amuse the House is, that you break your Union. The Act of Union is not legal. The consequence may be dangerous, unless we should settle their right. There was one hundred and three at passing this law, fifty against it, and fifty-three for it, (fn. 3) as I hear. You have not so much as a record of that Union before you. There is no record of it.

It is said they have a possessory right. If they actually have, then any that come among you to see fashions, till they be discovered, may plead a right. Mr. King might have done so. Mr. Jones pleaded he had sat in one or two Parliaments; yet that did not admit him a right. (fn. 4) You made your claim the first day, when you entered on your book, a salvo for the rights and liberties of the people. The last Parliament, above one hundred and sixteen that had right to sit were cut off. (fn. 5) The Instrument of Government could not give them a right. In the Parliament, 1654, two hundred went out upon setting the bar, (i. e.) the recognition at the door. (fn. 6) There is not a word, in the Petition and Advice, to call members for Scotland. It only relates to a distribution to be agreed on, which was not done.

Again, the distribution relates to both Houses, and it appears not that all the thirty were to sit here.

I am glad to hear of any argument that brings over their affection. General Monk deserves the thanks of this House for it. I doubt, if you do not confirm their right, the Union will not last long. I believe no Englishman will say they have a legal right.

I would have that to be your question, and when it is passing, I hope they will be so ingenuous as to withdraw, for the honour of the nation. It will be for good example. If they will not withdraw, they must be commanded.

Mr. Fowell. I hope you will not leave the question you have before you, that the members for Scotland shall continue. I am clear they ought to continue. They have a right, as it has been fully argued. There is nought in the Petition and Advice to invalidate it. If that go for a doctrine, that none ought to sit here but by Act of Parliament, above half your members must turn out. Those that serve for boroughs have only a right per charter. Unless you will allow them a Parliament of their own, you must let them sit here, to have their grievances heard.

The Act of Union is much more perfect than the Act of 27 Henry VIII. for Wales. (fn. 7) That names no counties, nor how they shall be chosen. Affirmative laws repeal no former laws. You exclude them from their greatest privilege. As to making laws, you cannot make a law without them. You must come to a new contract and agreement with them. This is jus gentium, that must rule it.

Parliaments can do miracles; (fn. 8) make infants of full age, make bastards legitimate, and aliens free born. Why may you not do so in this ? If you wave these thirty votes, all that you have done this Parliament is void, and then you are melted into a Commonwealth again, or worse, if aught can be worse.

They surprised not us in the Union. We sent Commissioners to them. Consider the case of the Gibeonites. I doubt the curse of Saul's children, (fn. 9) if we break this league.

Colonel White. I would have the Union to be upon such sound good grounds as that after ages may not except. The interest is very considerable. That goes far, as to argument of prudence; but as to law, there is no foundation.

There is no distribution to guide the election. They may as well be chosen all by one town, as in the way they are. They have no foundation at all; neither by Petition and Advice, nor any other law. I hope, on their own ingenuity, they will withdraw.

Mr. Cartwright. It is so much for your honour and advantage to have the Scotch fetch their laws at your doors, that if it can be made out, either by law or prudence, it ought to be admitted.

I shall wave the Petition and Advice, but insist upon it that the Act of Union gives them a right. The law never leaves a right, without a way to come by it.

The distribution was made before the two Houses were in being; so that it must be intended of this House only. Chester was a distinct principality of itself, and did not depend upon England. Scotland is now part of England, as to the purpose of Parliament, and laws of Parliament.

Reason, authority, laws, and practice are for it. There is no inconvenience in increasing them. Lex non presumitur iniquo, so that the Chief Magistrate may pack a Parliament. That must not be presumed.

The King called all the members of the Lords' House, which was more dangerous.

Hubbard's Reports, and Cook, 12 Report, says: "All that the King by his writ summons to Parliament, must come, or be amerced." It is agreed, that the King might call whom he pleased to the Parliament of England. If so, he might do the same for Scotland, there being no disagreement as to future, but only as to past.

Consider whether you be a Parliament. You are either a Parliament of England, Scotland, and Ireland, or you are no Parliament. Your Act of Union says you shall have thirty. If you want those thirty, you are not a Parliament.

It is for your honour to have them fetch their laws here; for your advantage to have the command of that nation. I therefore move, that the question be, that they continue in the House, and a Bill be prepared to confirm their right.

Mr. Grove and Mr. Bodurda moved to adjourn.

The House adjourned, at twelve, till two o'clock.

In the Afternoon.

Mr. Starkey. I cannot admit the Scotch members to have a right in law; but in prudence I admit it.

Mr. St. Nicholas. Arguments of prudence ought not to justle out law. If a man and woman cohabit together, admit there be a piece of a contract in it, and they have lived happily, though unhandsomely together, whether will it be prudence to let them live on in that manner upon the foot of that piece of a contract, rather than first to confirm and strengthen it, and then let them live together ?

I hope, if they should be sent home, they would rather blame the defect of the law, than say that they were turned out of doors.

I have two motions: that they have no legal right; and that a Bill be forthwith brought in to confirm their election.

Mr. Gewen. I move that they withdraw, while the debate is in hand.

Mr. Disbrowe. Consider the Union, and the solemnity of it. It cannot be broken by one party; it being against the law of nature, of God, and men, and the law of nations. You have had much benefit by the Union. Scotland would never consent, in reason, to an Union, if their Parliaments were to be regulated by the common-law of England, which they did not know. If this Parliament had done it, they would never have questioned it. If another power did a good thing, why should we reject it ? If the Act of Union be no law, then it is in vain to debate.

As to the great objection, that they have cut the throat of the Union by a subsequent clause in the Petition and Advice,

I answer; then England is in the same condition. But it will be said, England had the common-law to have recourse to. So had Scotland a statute law, to have recourse to, which says, they shall have thirty members. The same Parliament made both.

But it is said, the distribution is not agreed on.

If there be any precedency in order of time, as to laws made in the same Parliament, this Act of Union has the precedency of the members coming to the last Parliament. That law was really executed according to this distribution. Nobody excepting, it stands good and effectual as a law; so that they have a capacity upon equitable, legal, prudent, and just accounts.

If there be a law, it must surely be of force till you repeal it. If they did deliver up that power by the Petition and Advice, to whom did they deliver it? Was it not to a Parliament of the Commonwealth of England, Scotland, and Ireland ? You may cast them out, but you cannot bring them in again without their consent. There must be a call of the people from thence, to consent to such union.

They have not gained by union. They have found their taxes heavy, and have consented to lay 9l. per ton on wine, (fn. 10) for which they paid before but 50s.

If we part now, God knows when ever we shall meet again. It will be said they will not meddle with a people given to change.

A three-fold cord will all snap at one blow, the consent of Parliament, of his Highness, of the people.

A difference between union and uniting, was put the other day. I thought there had been" nought in it, but I find it otherwise. You may make laws for union, but you cannot unite their hearts. They are united to you. They submit unto all things. A man may ride all Scotland over with a switch in his hand and 100l. in his pocket, (fn. 11) which he could not have done these five hundred years.

It is said we must be always pulling down. Admit we want the formality of a top stone, nay, if it were, of a foundation-stone, shall we pull down all the building. If it were upon a personal account, I should be ashamed not to withdraw; but, as it is national, nay, for three nations that we sit, to withdraw, or to persuade us by arguments of ingenuity and modesty when duty comes in, I must trample all under feet. I cannot, I dare not, I may not, I must not, withdraw. If it were upon a personal account that you commanded me to go out, I should make you four legs instead of three. (fn. 12) When the Parliament has voted it I will withdraw. We shall, I suppose, all withdraw. I pressed not to be elected as some haply that hear me now. I did not ride post for it.

If you turn out a whole nation, I know not how you can bring them in again, or make laws to bind them, or make an Union without a new treaty, which none of us have power to make.

Consider the arguments upon a prudential, political, equitable, and legal account, and the Lord direct you.

Dr. Loftus. I cannot consent, upon account, of withdrawing.

Our right to sit here is founded on the Petition and Advice. We have had free admittance hither. The right of possession is before the law of nations, and it is a rule that we shall continue, till our right be determined.

It is not agreeable to our trust to withdraw. It will dissatisfy the well affected of that nation. It will encourage your enemies to insurrection. Better may thirty be taken from England than can thirty from Scotland or Ireland, for that takes away the constitutive part, the other takes away but the integral parts, without which the whole may consist.

Sir Henry Vane. I move to the order of your proceedings, or rather to the order of the House. If you please, peruse the writ, which attends at your door. It will determine this, and will end all this debate. There are omitted in the writ, Scotland and Ireland. England is in. I shall read you the words, if you please.

Mr. Reynolds. I move, not to read any paper, but to see the record.

Mr. Goodrick. You yourself urged that a thing was left out of the writ, viz. Ecclesia Anglicana.

Mr. Knightley. The words were omitted, because the bishops are now left out.

Lord Falkland. Let the writs be called in. If there be any flaw, let it be known.

Lord Lambert and Colonel Allured seconded.

Dr. Clarges. I move that Sir Henry Vane be heard to matter-of-fact. It may be, it will be granted, that there is such a defect as is represented.

Mr. Bodurda seconded it.

You will also collate not only the writs for Scotland, but for England, &c. You will send also for all in former Parliaments, and by that time you may be fit to adjourn for the long vacation.

Colonel Birch. I observe, that whatever will draw out the debate, has been moved. I observed, when it came first in, it was clearly upon another account than now is pressed. Such a thing was never done in Parliament, to cut the question in two, to divide between the parts of the question.

It seems, the Clerk attends, by whose orders I know not, but seeing he is here, put the question, and put it off your hands.

Mr. Neville. The Clerk of the Commonwealth is here by your order. It was your sense that he should attend, de die in diem.

Sir Anthony Ashley Cooper. I move that the writ be called in.

Mr. Trevor and Mr. Solicitor-general moved to call him in, without putting any question, but would rather Sir Henry Vane had urged his argument, and if he had truly represented it, there needed no perusal of the writs.

Sir Henry Vane. There were three sorts of writs, for England, Scotland, and Ireland; viz. for Parliament, 54; Parliament 56, and this Parliament.

Mr. Turner. I have seen the writs. In the writ for England, are inserted these words, viz. "According to the laws and statutes in that case made and provided;" and that line is omitted in the writs for Ireland and Scotland. Therefore, by law, they sit upon no foundation.

Sir Henry Vane reported, as Mr. Turner had observed.

Major Ashton. I perceive the Clerk had no order to bring them. I wonder at the confidence of that gentleman, to do it of his own accord. I should have expected a sharp reproof, if I had done it. This is but to lengthen the debate. Lay them aside at present.

Mr. Wharton moved something about bringing in the writs.

Mr. Speaker. I move that the word "assuming," and other words of heat be forborne.

Colonel Terrill. Those are Records of Parliament, and any member may cause them to be brought hither. They are here, and I desire you would read them.

Mr. Lockyer. I understand not how the legality or illegality of your writs for England, can concern Scotland or Ireland. I move that you would go to the question before you, as to the legal rights of the members for Scotland.

Sir Henry Vane. I hope that gentleman is convinced. I am not so confident, as he is pleased to say. The writs are before you. If any member desire to speak to them, he may. I shall give my advice, when I see my time; though I have little encouragement to speak, seeing I am thought to be so confident.

Sir Anthony Morgan. If any member desire the reading of them, let them rather be read, than spend your time in debating it.

Mr. Godfrey. Unless it be opened, to what purpose will you read them ? I would not have them read.

Mr. Manley. It may next be moved to read the indentures; and if the writ relate to the laws and statutes, the whole statute-book may be desired to be read.

Colonel Okey. Read them, for all men's satisfaction.

Colonel Morley. We have an English proverb, "none so blind as those that will not see." We shut our eyes before the light.

Sir Walter Earle. I move that the writs be read. (fn. 13)

Three of the original writs issued for the election of members to serve in the Parliament holden in 1654; namely, the writs directed to the Sheriff of the County of Caermarthen, the Sheriff of the Sheriffdom of Forfarr, and the Sheriff of the cities of Waterford and Clonmell, were read, all âgreeing in terminis.

The original writ, dated July 10, 1656, issued for the election of members to serve in the Parliament held 17th of September, 1656, and directed to the Sheriff of the County of Glamorgan, was also read.

Three other original writs, dated December 9,1658, issued for the election of members to serve in the present Parliament, January 27, 1658; namely, the writs directed to the Sheriff of the County of Berks, to the Sheriff of the Sheriffdom of Rosse, and to the Sheriff of the Counties of Cavan, Fermannagh, and Monaghan, were likewise read.

The writ for Scotland was, "for our Parliament at Westminster in England, for choosing one knight," omitting the words, "according to the form of the statutes, in that case made and provided."

The writ for Ireland was also for choosing one knight, agreeing in terminis with that for Scotland. They were all signed Lenthall.

The writs being read, the question was called for, and altum silentium a pretty while.

Lieutenant-general Ludlow. The writs for 54 and 56 are all one, and founded upon a government. That Parliament was founded for England upon the statute. Scotland and Ireland pretend not to a statute.

The Scotch are here by an arbitrary power; but by no law. You have not yet owned two Houses; nought is to bind, till the whole be passed.

I would not have you swallow the illegality, under a notion of prudence; that nation was very serviceable to us in 40 and 43. I would lay my heart under their feet. I cannot tell whether they are yet fit to be taken into your councils, till they be reconciled to —. (fn. 14) They thought to have imposed a family upon you, which you thought it a duty to remove. You made them the seat of war.

It is our point of time to except against their sitting here. The vote in hand gives up our negative voice and militia, and all, all our quarrel, and makes way for that family coming in, which they cannot but have an affection for. I am not against taking them into union; but not at this time.

First debate the legality, and then admit the prudential.

Mr. Francis Bacon. Parliamentum and testumentum have one signification.

(He made a speech, and daubed on, former colours.)

If those that are left in, must make laws for those that are put out, it mainly concerns the liberties of the people of England to know well who are put out.

If ever the people of England had cause to rejoice at aught done in that Parliament, where the members were turned out, (fn. 15) it was never known, till of late. (fn. 16)

I conclude that they have a legal right to sit.

Mr. Broughton. We must not dp ourselves wrong to do another right. I cannot call that prudence.

The Protector might have called one hundred as well as thirty by that argument, if he had pleased. They put it to a venture. If it was discovered, it was discovered. A blot is no blot till it be hit.

I move that they withdraw.

Mr. Speaker. If you please not to sit in the dark, you had best speak of it in the light. You know the confusion before.

Sir William Wheeler moved to adjourn till to-morrow.

Footnotes

1 Nothing else appears on the Journals.
2 See vol. ii. p. 309; Scobell, pt. ii. 515.
3 See vol. ii. p. 119.
4 See vol. iii. pp. 77, 233.
5 See vol i. p. 262, note ‡.
6 See vol. i. p. 273, note †.
7 1536. See Parl. Hist. (1762,) iii. 112.
8 See voj. iii. p. 101 †.
9 2 Sam. xxi. 9.
10 See vol. ii. p. 202; Journals, vii. 454, 514.
11 Yet it was related, in 1698, on no mean authority, that "in Scotland, in all times," there had been "about 100,000 vagabonds, who Jived without any subjection to the laws," by "begging from door to door," or by "robbery." See "The Political Works of Andrew Fletcher, of Saltoun," (1749,) p. 100. For a happy contrast, in later times, see Mr. Whitbread's speech on the Poor-Laws, (Feb. 19, 1807,) p. 31.
12 See vol. iii. p. 21, note‡.
13 "The House being informed that the Clerk of the Commonwealth in Chancery, was without, at the door, and that, by direction given him, at the desire of some of the members of this House, he had brought with him some of the original writs issued for the election of members to serve, as well in the Parliament holden in 1654 and in 1656, as in this present Parliament. By command of the House, "The writs were sent for, and the Clerk went from the table, and brought them into the House." Journals.
14 Blank, probably, a commonwealth.
15 Referring, probably, to the exclusion of the Presbyterian-royalists from the Long Parliament, in 1648.
16 When this Speaker, and his brother, became "Masters of the Requests to his Highness, 500l. per annum, each," as they had been to the late Protector. Parl. Hist. xxi. 15, 265.