Diary of Thomas Burton Esq: Volume 2, April 1657 - February 1658. Originally published by H Colburn, London, 1828.
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Thursday, April 30, 1657.
I came not in till the House was sat.
Mr. Grove moved, touching a clause about Exmoor, in Devonshire.
Mr. Bampfield, Major-General Disbrowe, and others, held this an hour's debate, and at last it was referred to a Committee.
Major-General Disbrowe moved that a Committee might be appointed to bring in a Bill to regulate the Chancery.
Sir Thomas Wroth seconded that motion.
It was referred to a Committee to consider of a regulation, and to bring in a Bill to that purpose, if they see cause, and the Committee are to meet to-morrow afternoon, in the Speaker's Chamber, and all that come to have voices.
Colonel Ireland moved to have the Act made in the little Parliament, for settling 500l. per annum, upon the Earl of Derby confirmed. (fn. 1)
Major Brooke. This noble family is in the most distressed condition of any family in England, and if you do not confirm this they must go a-begging.
Lord Strickland gave a very fair character of the young Earl, and seconded the motion.
Mr. Fowell. There is another Bill depending on the behalf of this Earl, but it is nothing to this. I desire you would confirm it.
Lord Broghill. Both justice and charity call to you for a confirmation of this Act, for the poor gentleman has suffered sufficiently; and that only for his father's offence, and no crime of his own that ever I heard.
The Master of the Rolls. I move that you will confirm it, for the family is very distressed, and for the relief of the lady who came from beyond seas, and was of an honourable family.
Major-General Disbrowe and Mr. Secretary moved, that it might be so worded as that there might be no doubt nor question upon the confirmation; and, therefore, that it might be expressed to be in full force, and effectual in law to all intents and purposes, which was done according as follows:—
"Whereas, since the 20th of April, 1653, (fn. 2) in the great emergencies and necessities of these nations, divers acts and Ordinances have been made, without the consent of the people assembled in Parliament, which is not according to the fundamental laws of these nations and the rights of the people, and is not, for the future, to be drawn into precedent. Yet, the actings thereupon tending to the settlement of the estates of several persons and families, and the peace and quiet of these nations, it is thought fit and necessary, until further order be taken in Parliament, to confirm and continue these acts and ordinances following:—
Resolved, that one act, intituled an Act for settling lands, late of James Earl of Derby, of the yearly value of 500l. upon Charles Earl of Derby, and his heirs, do continue and stand in force, until other order taken by the Parliament.
Resolved, that all and every, the Acts and Ordinances before mentioned, according to the true meaning of them, with the amendments, alterations, and additions aforesaid, in pursuance of the resolutions before-mentioned, and according to the respective limitations of time before expressed, and no otherwise, nor in any other manner, be continued and stand in force, and be effectual in law.
Alderman Foot moved to confirm the Ordinance for the Hackney Coaches, (fn. 3) but nobody seconded it; and unless a motion be seconded, the Speaker is to take no notice of it.
It was agreed upon his motion, and that of others, that notwithstanding the repealing and making void all other Acts and Ordinances, acts done or to be done since the 20th of April 1653, till the 1st of June, 1657, upon any of those Acts or Ordinances shall be good and valid.
Mr. Godfrey. It is very hard to ratify all the Acts done upon those acts and ordinances which you now make void, without so much as looking into them or mentioning the titles of them. Haply many of them are in their rules unreasonable or injurious, so I cannot, in conscience, confirm or ratify them; but for common peace sake I would have all persons that have acted upon them to be free from actions and molestation. And because these are not before you I have no reason in judgment to pass my confirmation upon them. Haply, if they were before me, I should be further from confirming them.
Colonel Jones. This was considered by your Committee, and every individual Act and Ordinance examined, and the titles, as well printed as unprinted. Some Acts, as that for the highways and sequestrations, indemnity will not reach, unless the Act or Ordinance itself be confirmed.
Mr. Nathaniel Bacon and Mr. Hoskins moved some exceptions to this clause, but it was moved and the clause passed as amended.
Resolved, that all other Acts and Ordinances, and every branch, and clause therein, not confirmed as aforesaid, made or passed after the 20th of April, 1653, before the 17th of September 1656, (fn. 4) be declared to be, from and after the 1st day of June 1657, null and void; and that all Acts done, or to be done, before the said 1st day of June 1657, by virtue of them, or any of them, be ratified and confirmed to all intents and purposes.
Lord Broghill offered an order of the Lord Protector and the council, dated the 11th day of May, 1654, upon the petition of Algernon Earl of Northumberland, Thomas Lord Coventry, Philip Earl of Pembroke, heir, and William Earl of Salisbury, and others, the executors of Philip Earl of Pembroke and Montgomery, deceased, touching a debt, for which bonds were given to Mr. Flyer and others, who entered bond for 50,000l. borrowed of the city for the public service, in the beginning of the Long Parliament, &c. which was read.
It seems this order was to stop proceedings at law against those lords.
Alderman Foot. I hope you will not stop proceedings at law for a just debt, unless you provide another way to satisfy it. I desire it may be referred to a Committee to consider of a way of satisfaction.
Lord Broghill. I agree with that motion, to refer it to a Committee; but would have proceedings at law stopped in the mean time.
Lord Strickland. The city had opportunity enough to reimburse themselves, but they thought the lords were security good enough. Those lords have all done you good service, and it is pity they should suffer for their good-will for the public.
Sir Christopher Pack. The city had; always rather have monies than any man's security. There were other ways to drain the treasuries, so that, without detriment to the public service, they could never pay themselves.
The Master of the Rolls. We had always such confidence in the city, that we thought we could not better trust pur monies in any place than with them, so we made them treasurers and receivers. They had all we had. Those noble Lords did freely enter into this engagement, when we were in great distress, and for no benefit to themselves; but for the public. I desire it may be referred to a Committee, and that, the Lords may be free from actions in the mean time.
Mr. Lloyd. Consider how in justice you can do this, to stop proceedings at law upon a just debt. You may as well say they shall never pay it. If you intend so, you may so express it. The money was lent to this House.
Mr. Bond. It is against. common justice that the lords should suffer in it; for what they did so freely for the public. It is fit the city should be satisfied; and had the Long Parliament sat till now, they had done something in it.
Sir Richard Onslow and Colonel Jones. It is reasonable on both sides, both that the monies should be paid, and that the persons should be indemnified.
Alderman Foot. I know the Committee will do nothing in it, unless you find out some way to satisfy it.
Mr. Hoskins. It is reasonable both that the city should be satisfied, and that the parties should be protected; I, therefore, would have it referred to a Committee.
Sir Thomas Wroth. The city has been the very support of the nation, and they have all the monies; the countryman has but pieces of land. They have lent you great sums, and have lost nothing by it, I hope. I would not have them despond; but hope the Parliament will, in due time, satisfy it.
Mr. Goodwin. I would not trouble you, if I thought you were going to do what would satisfy the city. The Parliament have been seven or eight years in taking order about this debt. I would have a certain time for the Committee to make a report, and that the persons bound in the bond might, in the mean time, be protected, and no longer. Otherwise this may lye seven years more before the Committee.
Sir Thomas Wroth. I cannot sit silent and hear so much reason moved. I desire a day may be assigned to bring in the report, and that the Lords may be indemnified in the mean time.
Mr. Peckham. I move that the city be indemnified for the debt, and likewise that the Lords be indemnified, and that it be referred to a Committee; but I am against assigning a certain time; for, if you be not at leisure to receive the report at that instant of time, the lords shall be laid in prison.
Mr. Godfrey and Mr. Bampfield moved that the report and the protection may be limited to a certain time.
Mr. Thistlethwaite. This is the way to hold the debate all day; first to consider the power of a Committee, before you appoint it, is not parliamentary.
Colonel White. I would have the security taken of the Lords. It is against propriety to take that away, till you have provided other security. It is much of it orphan money. (fn. 5)
Sir Christopher Pack. There are but few that serve for the City; (fn. 6) but I hope you will take care that they may have justice, in the satisfaction of their just debts.
Ordered, that this business be referred unto a Committee, to examine the business and report their opinion to the House, as well for the indemnifying the persons engaged, as how the remainder of the said debt may be satisfied; and, in the mean time, that all prosecution at law, against the persons bound in the bonds for the said debt, or either of them, and against all and every, their heirs, executors, and administrators be stayed, viz. to Sir Christopher Pack, and forty-one more.
This Committee are to meet on Tuesday next, in the afternoon, at two of the clock, in the Inner Court of Wards; and that they bring in their report to the House, within fourteen days, then after: with power to send for persons, papers, witnesses, and records.
The question being propounded, that, touching the Acts and Ordinances made from the 1st of April, 1642, until the 20th of April, 1653, this answer be tendered to his Highness,—that this House doth conceive no need of any declaration or confirmation, the same being valid in themselves, and ought to be accepted and taken. (fn. 7)
Lord Broghill. I offer some amendments to the clause: as, in the beginning of it, there is insecurity to the persons concerned; and the question is, whether by your saying you confirm them, you do not shake the foundation of them ? and of whatever you have done yourselves, because not done by the three estates, and as to that of declaring the undoubted right of law-making in the people.
Mr. Grave. I have as great an opinion of the Long Parliament as any man, especially till violence was offered to them, (fn. 8) but they were not infallible. They were the representatives of the people, but many of them were kept out, and others brought in, not by the people. (fn. 9) Some things they did, such as giving 1,000l. a year, and 500l. to one another; and the High Court of Justice I cannot give my consent to, and I think a great many here will not. Divers suffered by that court, whose death I would be 10th to have a finger in. I mean not of the king. We have been passing laws by retail, I would not have us now pass them by wholesale. We have passed above sixty. I desire they may be left upon their own authority, which is not questioned in Westminster Hall.
Sir William Strickland. Those Acts and Ordinances of the Long Parliament, had strength of authority enough of themselves, and by your going about to confirm them, you rather shake them. So I would have the clause wholly laid aside, and would give a general answer to his Highness, that you find them so valid that they need no confirmation.
Colonel Jones. I doubt, now that it is before you, how you can pass it over. I desire it may be referred to a Committee to prepare some amendments to the clause, as was first moved.
Mr. Trevor. I would rather have a declaration that the laws are good and of force, than to confirm them; for that argues a weakness in them.
Lord Strickland. I move that you would leave them to stand upon their own authority. There needs no staff to help those to go that can go without it. I would have you rise now, and leave it as it is.
Major-General Disbrowe. There is more necessity of putting a clear and undoubtful sanction upon these laws than upon any other. This is the very foundation of your settlement. Though Westminster Hall question them not now, we know not what they may do, and that were very disingenuous for you to permit. This will not only quiet men's estates but their minds too; and by denying a confirmation to them, you overthrow the settlement upon which you are. I do therefore move, that your confirmation of these may be as firm and effectual as can be devised, which will both quiet your own and the nation's settlement.
Lord Howard. I doubt some will think a declaration too short, others will think a confirmation too large. It will be but loss of time to refer it to a Committee, for if you cannot agree to it yourselves, how then can a Committee ?
Colonel White. It is most material to confirm these of any; for they were the foundation of the cause and quarrel, and the foot upon which we all stand. Therefore, in order to our own settlement, and the security, of those that have acted by them; you ought to confirm them.
Mr. Godfrey. It is impossible for your Committee to word it so well as to give you satisfaction. How can they agree about the words, when you cannot agree about the thing ? I had rather leave it quite out, for you cannot caution it so but there will be objections on one side or other, and the laws are not at all strengthened by any sanction upon them, if they be not laws: if they be laws, there needs no confirmation.
By the same rules that those acts may be questioned hereafter, may your own acts and all your settlements be shaken; there are but two arguments against that authority:—
1. Is it according to the constitution, because not by three estates?
2. The barring out of the members, (fn. 10) i. e. the non-freedom of Parliaments.
Those laws cannot be hereafter questioned but upon those two accounts, and may not the same be objected against the authority that confirms them, yourselves I mean, and so overthrow your whole settlement? There is no reason for this satisfaction; your confirmation can do no good at all. If to satisfy yourselves you do it, I suppose you are satisfied already. If to satisfy others, there is as much satisfaction given to them as you can give them. They that are not satisfied by the former authority are not satisfied by yours; for the same objection, both as to the constitution and the members, lies equally against both.
Sir Charles Woheley. Since his Highness makes it one of his scruples, I would move that some general answer may be thought on, that you conceive those laws are of force already, and need no confirmation. It will make such an earthquake in the nation as never was.
Mr. Bond. I was against the clause, but now you are possessed of it, I would have you lay no blemish upon the Long Parliament; for certainly their authority was equivalent with yours. I would have it recommitted, to the end something may be done in it.
Sir John Reynolds. I would have it recommitted, that the answer might be short, in general terms, viz. that they are laws, and you conceive they ought to be so esteemed. Otherwise you do not only shake men's estates, and make men in that way undersell one another, but shake men's minds, and all settlements, nay the very settlement and foundation upon which you stand.
Mr. Secretary. I apprehend no such difficulty of an answer. I am of opinion that the laws made in that Parliament are as valid as need be, without any confirmation; but seeing it is before you, and if you should pass it over, there may be several constructions made of it abroad, and we are to satisfy men's fears as well as their reasons, there is an honourable person now speaking to you, viz. Sir Charles Wolseley, who offered you something. I hope the question will be well worded; some general answer. I doubt not it will give his Highness and all people satisfaction. I cannot word it to you, but as it was moved.
Colonel Jones offered a clause to this purpose, that nothing herein should be construed to confirm any thing that is contrary to the humble Petition and Advice.
Mr. Bampfield. We all agree that till violence was offered to the Parliament (fn. 11) the laws ought to be confirmed; but for what was done since, I cannot in conscience consent to some of them,—as what was done in Pellam's plot, and the putting to death a minister, (fn. 12) and several lords, that were condemned by that high court. By one breath, besides, you say that a king and House of Lords shall be taken away, and by the same breath you set them up. I think there is no need of such confirmation, but would rather leave them as they are.
Lord Whitlock. I know no difference between the authority of that Parliament at one time or at another, and I think the shorter your clause is the bettor. It is well offered to you with two or three words addition, so as the matter of them be not contrary to the Petition and Advice.
Mr. Speaker added the words.
Mr. Bodurda and Lord Strickland. The words were left out because they give place to dispute. It will be said this or that is contrary to the Petition and Advice.
Sir Richard Onslow. You must have these words in, otherwise you will set a-foot that law, and say those laws ought to be accepted and taken of force, which will overthrow your whole settlement.
Mr. Fowell. Unless you put in those words, you make and unmake at the same time, and erect that law again, which is against setting up a single person.
Mr. Bacon. I would have the words kept in, otherwise you throw down the whole foundation of your settlement.
Sir Charles Wolseley. I move, that the words may be omitted here, and that a clause may be brought in, after you have done all, to repeal all laws contrary to the Petition and Advice.
Sir William Strickland. I move that the words may be omitted, for it will raise more scruples.
Mr. Godfrey. I would have the whole clause left out, or at least those words, which will but raise scruples and doubts, and do you no service at all.
Mr. Highland. If you put in those words, you take away half the laws you are going to confirm, and I doubt you will leave out the best of them; as all those laws that were made in the name of the Commonwealth, and that for cutting off the King's head.
Colonel Jones offered a proviso; provided that nothing herein shall be construed to extend to confirm any tiling contrary to the Petition and Advice.
Colonel Mathews. Either leave out the clause, or else take further time to consider of it. Let us look back upon ourselves and our cause, and be careful how we invalidate any of those laws. It is a business of vast consequence.
Mr. Bampfield offered a clause, to say that you do not think that any of them ought to be questioned or invalidated.
Sir Richard Onslow. I doubt you may do too much as well as too little; for if you say all laws contrary to the Petition and Advice shall not be confirmed, every law not made by the three estates is void, and then your settlement is out of doors.
The question being put, that these words, "wherein as to the matter of them, they are not contrary to the humble Petition and Advice," be part of the question,
Mr. Speaker declared for the Yeas.
Major Burton excepted; and the House was divided.
The Yeas went forth.
Yeas 50. Lord Howard and Colonel Jones, Tellers.
Noes 61. Major Burton and Mr. Noel, Tellers.
So it passed in the negative.
And the main question being put, it was
Resolved, that touching the Acts and Ordinances made from the 1st of April, 1642, until the 20th of April 1653; this answer be tendered unto his Highness; that this House doth conceive no need of any Declaration or Confirmation; the same being valid in themselves, and ought to be accepted and taken. (fn. 13)
Major-General Disbrowe. I move, that the proviso (fn. 14) may be read; for I doubt you have pulled up your settlement at one blow.
Mr. Secretary. I second that motion; for without this proviso, your vote is quite opposite to your Petition and Advice. And if his Highness should ask what becomes of those laws that are against the Petition and Advice, you must answer, they are of force; and where are you then ?
Sir John Thorowgood. We that have acted upon the High Court of Justice business, are in great danger if this proviso should pass. I desire you will lay it aside, and adjourn.
Mr. Highland and Mr. Moody. You have laid aside the substance of this proviso, and it is against the orders of the House to bring it in again.
Mr. Disbrowe stood up and said the Noes had it when the main question was put, but it was too late.
Mr. Bampfield. I think there needs no proviso; for the Petition and Advice itself repeals all that is contrary to it.
Mr. Trevor. Neither another clause, nor a proviso, is proper in this case; but those words are of necessity to be added here in this place. Otherwise, you quite contradict your Petition and Advice, and you will not set up laws, one to fight against another.
Colonel Mathews. Of all places and times, it is not fit now to offer those words, seeing you have just now thrown this out. For that objection, that a single person is contrary to those laws, I do affirm it is not; for a Protector has been owned by a Parliament, and that Act does not lay hold of any that have acted under that power. I desire you would adjourn and go to dinner.
Major-General Whalley. I shall eat my dinner with a very ill stomach, if you leave it without a proviso; for all that have acted under a single person, have you declared traitors, by making valid all laws in the Long Parliament; amongst the rest, that about setting up the single person.
Lord Whitlock. I should be sorry any gentleman here, should be a traitor for a minute. You have declared, by this vote, that that Act against setting up a single person, is clearly of force. Though the Petition and Advice be against it, and has provided against it, yet this being made since, it seems to repeal your Petition and Advice. Here is a flat contradiction in itself, and one law fights against another.
Lord Strickland. We have acted under a single person these three years, and not been reputed traitors, and it is strange we should be so now. As to that of order of times, it signifies nothing, for all votes in Parliament are of one date.
Sir Charles Wolseley. The laws of the Long Parliament are of more force than they were two hours since. It is expressly against the Petition and Advice, the vote that you have now made; and unless you pass this proviso, you destroy your whole two month's work.
Lord Broghill. Unless you pass this proviso, you pull down what you would build up, and you build up what you would pull down. The case is different now than what it was in the morning. You have declared that all Ordinances and laws that you have not confirmed, shall be void. So that, in effect, you destroyed the Government, which was the only fence you had against that Act against government by a single person.
Sir Richard Onslow. There is a necessity of this proviso now. I was against it before, because I was against the whole clause; for I would not have had those at all meddled with. You expressly set up laws to fight against one another.
Sir William Strickland moved, that you would only repeal that Act which makes it treason to set up a single person and let the rest stand; fur the proviso may invalidate the whole.
Major-General Gaffe. Far be it from any here to be so disingenuous as to surprise men in any vote; but I think there is no such danger to destroy the Petition and Advice, though you admit this proviso, for it repeals the former Act, as soon as it passes.
Mr. Fowell. To repeal that Act about the single person is not sufficient: there are other laws which the Petition and Advice lays low, as that about perpetuating the Long Parliament. By this vote we have established them, and turned ourselves out of doors.
Mr. Tymbes was of another opinion.
Mr. Waller. You unmake what you would make. By what misfortune this comes about, I know not; but since this could not be strangled before, I hope it shall not be strangled now. I know not what you mean, by settling what the Long Parliament did; but I am sure you unsettle the settlement yourselves have made, and go to my Lord Protector for his consent to that which you declare to be treason, both for yourselves and him, to offer or accept it. I desire that you would receive this proviso, otherwise you destroy all you have done.
(It was a pretty, witty speech, but I have wronged him in it.)
Colonel White. I move that you would adjourn; for there may be inconvenience in the proviso. There cannot be much in omitting it. For my part, I was for the confirmation of all those laws.
The question being put upon the proviso, it was
Resolved, that this proviso be added; "provided that this be not construed to extend to the confirming of the matter of any Act or Ordinance of Parliament, which is contrary to the humble Petition and Advice, presented to his Highness, by the Parliament." (fn. 15)
Then, without any debate at all, it was Resolved, that nothing in this Report be binding, or of force, before the humble Petition and Advice be consented unto by his Highness. (fn. 16)
Colonel Jones moved, that a Committee might collect all the resolves, and attend his Highness with them, and know when the House shall wait upon him for his positive answer to the Petition and Advice.
Sir Charles Wolseley and divers others seconded that motion.
Sir John Reynolds moved, that the whole House might attend his Highness with these resolves; but it was
Resolved, that the same Committee, who did formerly attend the Lord Protector, touching the humble Petition and Advice, do attend his Highness with the several resolves of Parliament touching the matter; and do desire his Highness to appoint a time when the House may attend his Highness for his positive resolution and answer to that humble Petition and Advice.
Ordered, that this Committee do meet this afternoon, at four of the clock, in the Speaker's chamber. (fn. 17)
Lord Broghill offered a report from the Committee for the confirmation of some orders of the Long Parliament, touching the soldiery.
Lord Howard seconded the motion.
But it was too late to receive it then, and it was
Resolved, that the report touching some orders of the Long Parliament be made by Lord Broghill to-morrow morning. (fn. 18)
The House was adjourned till to-morrow morning at eight, and sat till eight o'clock and past (fn. 19).