The Diary of Thomas Burton: 22 January 1657-8

Pages 336-344

Diary of Thomas Burton Esq: Volume 2, April 1657 - February 1658. Originally published by H Colburn, London, 1828.

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Friday, January 22,1657–8.

An Act for uniting the parish churches in Huntingdon, and for the better maintenance of ministers there. Read the first time.

Mr. Pedley moved, and it was

Ordered, that it be read the second time on Tuesday morning next.

Mr. Turner reported from the Committee about the clerk's oath, in regard they could not come to the Journal Books, to find whether there was an oath, or no, formerly taken.

Resolved, that Mr. Scobell be sent to, to deliver the records and writing belonging to this House to Mr. Smythe, the clerk of this House, and that they be kept in the room over this House.

Resolved, to agree with this Committee, nemine contradicente.

Mr. Lechmere moved, if the words " writings and records" were comprehensive enough; and it was agreed that writings were so.

Mr. Francis Bacon moved to know who should sign this order, whether the Speaker, or clerk-assistant, or Mr. Smythe; and agreed Mr. Smythe.

Mr. Turner moved that these words be added: " and that he be required to deliver the same accordingly."

Resolved accordingly. (fn. 1)

Major-General Haines reported amendments to the Bill for dividing the parish and vicarage of Hornchurch and Havering, in Essex.

Resolved, to agree with the Committee.

Several of the amendments moved were to leave out letters, as s, where congregations were named. There congregation was inserted.

Mr. Bond moved for a second reading of the Bill touching marriages, and the registering thereof; and concerning births and burials; (fn. 2) which was read accordingly.

Mr. Harvey moved for some amendments about the appointing registers.

Sir Lislebone Long. I move for the commitment of the Bill. It is not yet so perfect as it ought to be.

1. Blanks to be filled up.

2. No proviso made for confirmation of former marriages. It is not in the affirmative, but in the negative.

3. You have not deputed any persons to declare the marriage null and void. There is no remedy, at this day, to examine the validity or invalidity of marriages.

4. I would have the power attributed to more justices than one. It should rather be done in sessions.

Serjeant Maynard. I shall not trouble you long. The law lies very loose as to things that are naturally essential to marriages, as to pre-contracts and dissolving of marriages.

A case upon the former Act. A man has two lawful wives by the last confirmation of the Act. I would not have the registering wholly trusted with the parish; but rather once a year sent over to the sessions, in some standing-place to remain.

There was a case where, by rasing of a register book, a lawful marriage was vitiated, and a bad marriage ratified. It is of great necessity to prove descents and the like, which is the foundation of property, &c. and not fit to be trusted in a loose hand. I would also have a penalty annexed to persons that should so unlawfully marry.

Captain Baynes moved, that in places that are within no parishes, they may also appoint registers.

Mr. Maidstone. There is no provision of what age the parties to be married shall be. (fn. 3)

Major-General Haines. There is no provision for the time of choosing registers, in case they die or be removed, and that the registers may not be mean, poor fellows.

Resolved, that it be committed, and all the long robe to be of the Committee; to meet this afternoon in the Speaker's Chamber.

Major Burton moved, that the Bill for Probate of Wills may be read.

Resolved, that it be read on Monday se'nnight.

Mr. Fowell moved, that the Bill against the non-residence of masters, provosts, presidents, wardens, and heads of colleges and halls, in the Universities, (fn. 4) be read the second time; which was read accordingly.

Major Audley. I move that the Bill be committed. I have two exceptions:—

1. Against the preamble, as against all preambles in Bills. A good law may stand of itself. This, in a rhetorical phrase, reflects upon the masters of Houses, and says the halls are turned into counting-houses, &c.

2. The masters of Trinity and King's Colleges have liberty, by your Bill, to be non-residents, because of visiting Eton College and Westminster School. I move that they be limited to forty days, or the like.

Sir Lislebone Long. I move that the Bill rather be rejected, because it talks so much of non-residents. I thought you would have inquired how they are maintained, and how fellows are chosen; whether upon the old foundation.

If you give liberty for the masters of Trinity College, and King's College, to be non-resident, the dean of Christ-church is bound to attend as well as they. Many worthy persons in the city, that are masters of colleges, do more good by their non-residence.

Mr. Bedford. I move for consideration of their maintenance, rather, as it was moved by the worthy person that spoke last, by whom I was prevented.

Resolved, that it be committed, to meet this afternoon in the Duchy Chamber.

Mr. Speaker. The serjeant told me there were messengers at the door that desired to speak with you. The serjeant was called to report, and said there were two judges at the door, with a message from the Lords.

Mr. Darley, Mr. St. Nicholas, Mr. Mildmay, and Mr. Scot, moved, not to receive any such message from them, as Lords. They were not privy to your resolutions in this case. (fn. 5) They are at last but a swarm from you. You have resolved they shall be another House, but not Lords. By this it looks like children, that because they can pronounce A, they must say also B, which haply you will not like so well. Take time to debate the manner of your addresses to the other House, and of theirs to you.

Alderman Gibbes. I may say, with others that moved before me, that I am a stranger to former transactions of this House. (fn. 6) I do exceedingly desire a settlement of all things with as much unanimity as may be, in order to those religious expressions of his Highness in his speech. (fn. 7) I would have a conference between those of the other House and us, to under stand our foundation. I am in love with old foundations of Parliaments, but not to bring it in this way. I would have some day appointed to debate this business.

Colonel Matthews. I breathe as much after a settlement of this nation as any man; but the present business before you is of that concernment, that you will not enter upon this debate without consideration. If you please, it may be the day after the fast.

Major-General Haines moved, to have the messengers called in, to know whether from the Lords. It may be the message will be from the other House. First hear them, and then debate their business.

The question being put, if they shall be called in,

Mr. Mildmay moved, to divide the House for the Noes.

Mr. Speaker and Serjeant Maynard. To divide the House without a reason, is without all reason. He ought to lay his hand on his breast, and say, on his conscience or judgment, he is not satisfied. So it was agreed, and the judges were called in: viz. Judge Wyndham (fn. 8) and Baron Hill. (fn. 9) They made three congees, and came close to the table; and then the Speaker put off his hat.

The message they were desired by the Lords to deliver, was that this House would join with them in an humble address to his Highness, for a day of public humiliation throughout the whole three nations.

They retired by three congees, and the Speaker put on his hat when they were at the bar.

Mr. Speaker questioned if they ought not to have left their papers.

It was agreed otherwise.

Mr. Speaker. The order was, if you were not ready with a return, that you would say you will return an answer by messengers of your own.

Mr. Lister. I move that you will return an answer by messengers of your own; and, in the mean time, debate whether you will concur in that title. You have not yet called them Lords.

Mr. Scot. I second that motion, that you would both consider of their message and the place from whence it comes.

Major Audley moved, that you will not keep the judges at the door, but tell them you will return an answer by messengers of your own.

Colonel Matthews. You cannot safely return that answer; for that is to agree them to be what they are not yet. Shall we swear one day to maintain the privileges of this House, and then violate them ? There have Acts been made (fn. 10) to abolish such a House. It ought to be considered, if it come from such persons that we have not power to transact withal. I would have you adjourn the debate. I hope those that desire this consideration would as fain have a settlement as any man. For us, that are weak and poor spirits, I would have us consider first. Haply, others are prepared.

Major-General Haines. It can be no surprise to the House to send such a message as is moved. I perceive those judges must wait till we return an answer; and that is no fit place in which to stay them.

Mr. Harvey. We cannot allow of a message from such an authority as a House of Lords. I am one of the post nati. (fn. 11) I find three rubs upon me why I cannot consent to call them by that title:—

1. The Engagement. (fn. 12)

2. The oath lately taken.

3. The Act of Parliament to abolish them.

I should freely concur, if it were a message from the other House. I would have this debated before you return any answer.

Major-General Kelsey. I would not have you stumble at the threshold: it will give your enemies advantage. It may appear, upon the debate, that you will not call them by that title, and in your message tell them so.

Sir Thomas Style. I may be ashamed to open my mouth, having so little experience, (fn. 13) but that the importance of affairs, and my conscience, binds me to speak. I conceive there is no such entity in nature as Lords. I would have you consider, whether you will send such a message as you would have done if they were a House of Lords.

Colonel Rouse. 1 move that you speak not of returning a message at all; but that you will consider of the message to you.

Captain Baynes. For you to send such a message, is implicitly to consent that there is such a power in co-ordination with you. I wish you would take time to consider how they call themselves "Lords." Haply, my Lord Protector does not allow them that title. I would have you call them in, and say that you will consider of the message, deferring an answer.

Major-General Boteler. The great consideration that moves me to stand up is, the waiting of the judges. I would not have your enemies, that wait for your breach, to find you stumble at the first. It will be no surprise upon you; you may debate the title after.

Mr. Rennell. I would not have this brought upon us by steps: I observed it from yourself that the message was a trial whether they were a House of Lords. The same gentleman that moved for calling the judges in, because they should not stay, would now have the answer be returned to them, because they should be gone.

I cannot see how you can give any answer, because you have it not from the other House; you have it from Lords. Why not as well from peers, from barons, from gentlemen? haply not from gentlemen, pardon me if I call them so.

The ancient peers thought it a breach of their privileges to introduce so many new barons. This is like the little convention, who also called themselves a Parliament. Here are very wise men, whose help, I presume, you used formerly, that, when you are possessed of the debate, will contribute their help. I desire you would adjourn your debate; it being the very foundation of all, and ought to be well considered. Now is your oath at the door, in a trial.

Mr. Highland. I move to adjourn the debate for reasons before you.

Mr. Darley. I move for making this return, that you will take the message into consideration: and not speak of sending by your own messengers.

Alderman Gibbes seconded that motion, to leave out the latter part.

Sir Lislebone Long. I move for the whole question. If you do not think fit that they should be called a Lords' House, he is not worthy to sit in this House who will not tell them with courage, that you think not fit to call them a Lords' House.

Colonel Matthews. I cannot allow any return at all to this message. I have heard from old Parliament men that the judges have waited a fortnight for a return, in less matters than this. Let us not tread upon our privileges upon a matter of this weight.

Mr. Scot. I move, that as they have asserted their title of Lords, so you would assert yours, and say, that you will return an answer to the other House.

Colonel Mildmay. Though you do style them the other House, yet you do thereby acknowledge them to be the same that call themselves Lords.

Mr. Bodurda and Sir Thomas Style moved to leave out the words "the other House," else those are precluded that would have another title.

The question being put upon the whole question,

Mr. Speaker declared for the Yeas.

Colonel Rouse divided the House for the Noes, who went out.

Yeas 75. Mr. Berkeley and Mr. Young, Tellers.

Noes 51. Sir Thomas Style and Colonel Mildmay, Tellers.

Colonel Matthews insisted that the Yeas ought to go out, because it was a new business, and said, "We are not satisfied."

Mr. Speaker said he ought not to say "We." He knew what became of gentlemen for saying so.

The judges were called in, and this return was sent back by them; that we will return an answer by messengers of our own.

It was expected to be moved, for another day, to resume this debate, but it was waved.

On the hint of Mr. Speaker and Captain Lilburne,

Serjeant Maynard moved, that Lord Craven's business be taken up to-morrow, according to former order. (fn. 14)

At two, the House rose, having ordered that business for to-morrow.

The Committee for the Bill for Marriages (fn. 15) sate in the Speaker's chamber, this afternoon; Mr. Nichols (Anabaptist) had the chair.


  • 1. See Journals and infra, p. 348.
  • 2. See supra, p. 38, note †.
  • 3. See the ages determined in 1653, supra, p. 38, note †.
  • 4. This Bill was only in progress, on the dissolution of the Parliament.
  • 5. Naming them " the other House." See supra, p. 301, note.
  • 6. See supra, p. 333.
  • 7. The Protector having said, " I well remember I did a little touch upon the 85th Psalm, when I spake unto you in the beginning of this Parliament," proceeds to apply to his purpose some passages in that Psalm; assuming, with a somewhat fond nationality, not peculiar to his time, that the country he governed was specially " God's land." See supra, p. 324, 325.
  • 8. Hugh, " the eighth son of Sir Edward Wyndham, of Orchard and of Felbridge, Knt." He was made a Serjeant in 1654, and was now one of the Judges of the Common Bench. On the Restoration, he was again made a Serjeant, and a Judge in 1670. He died in 1684, aged 83. See Noble's Cromwell, i. 432–438.
  • 9. Roger Hill, " of a very ancient family in Somerset," made a Serjeant by the Protector in 1655. " The Restored Commonwealth in 1659 made him a Judge of the Upper Bench." Ibid. pp. 433, 434, 438.
  • 10. Feb. 6, 1648–9. See vol. i. p. 276, note *.
  • 11. Perhaps not in Parliament till after the abolition of that House.
  • 12. See supra, p. 279, note *.
  • 13. Being but lately admitted. See supra, p. 333. note †.
  • 14. See supra, p. 125,158.
  • 15. See supra, p. 74, note †.