The Diary of Thomas Burton: 23 April 1657

Thursday, April 23, 1657.

Out of the Journal book for this day.

A Bill enabling Hamlett Latham, and other persons therein named, to sell certain lands of the said Hamlett Latham, for payment of his debts, was this day read the first time, and upon the question, ordered to be read the second time on Monday morning next.

Ordered, that the Lords Commissioners of the Great Seal, the Lords, the Judges, and the Lawyers, members of this House, be sent for by the serjeant attending this House, to attend the service of this House.

The Lord Commissioner Whitlock, reported from the Committee to wait on his Highness the Lord Protector, according to an order of the ninth of this month, the proceedings of the said Committee therein; and the substance of his Highness's speech to them, on the 21st of this month; and two papers delivered to the Committee by his Highness: which the reporter read, and afterwards were read by the clerk. (fn. 1)

Colonel Jones moved, that the exceptions might be read in part, and that an explanatory Bill might be prepared upon the debate, which is usual.

Mr. Nathaniel Bacon. I move that you would approve of what your Committee has done. They may bear a reproach afterwards, as if they had not done their duty. I would that the House should be gratified by their faithfulness.

Mr. Bodurda. I second that motion. It is very fit that the Committee's faithfulness should be approved of.

Mr. Speaker moved, that the House would also approve of their words as well as their actions.

Colonel White. You are not ripe for such approving till you know what it is: the Committee being the major part of the House, what they agree to, must conclude us. So we approve we know not what.

Lord Whitlock. I hope your Committee has given you no such occasion to suspect their faithfulness: I told you I had no Report in writing, but only some note's for my own memory, and I hope you will approve it.

The question put to approve of the proceedings of the Committee in this business, there was one No.

Mr. Speaker said, it may be it was a mistake; I did not think there had been a No.

Mr. Bampfield moved, that the Speaker ought not to have reflected upon any member for giving his No. It was against the order of the House, and every man has freedom to give his No or Yea, without reprehension.

(It seems it was Mr. Bampfield's No, which made him seem more concerned.)

Mr. Speaker. I hope you will vindicate your chair. I did not mean, it was a mistake in any man giving his No, but that any man said there was a No, that was the mistake. I did not reflect. Besides, that gentleman ought not to have spoken, till the question was put again.

Mr. Drake. That exception needed not to have been taken, for there was no reflection, and the Speaker might rectify such a mistake.

Colonel Matthews. Any might give his No, without a mistake, and it ought not have been so said of any man.

Mr. Speaker put the question the second time, and so this heat ceased.

Resolved, that this House doth approve of the proceedings of the Committee in this business.

We were growing a little angry, and indeed, (as I understood it,) the Speaker was more to blame.

Colonel Jones said it was the first time that ever he heard a debate after the question was once put in the negative.

Altum silentium for a while.

Mr. Fowell seconded Mr. Bacon's motion to read the paper in parts, and so it was.

Mr. Secretary. It is not proper to debate any thing in the Petition, but to have an explanatory Bill.

Mr. Bacon. It is not proper to debate any part of the Instrument, but to do it by another Bill.

This was against Mr. Speaker's directions, who would have the article read, and see how it agrees with the paper now read. (fn. 2)

Colonel Chadwick moved that the words "signal testimony," were so general, that they had need to have explanation.

Mr. Speaker. That gentleman mistakes the question. It only relates to Scotland, and not to England, for the rules are stricter for England than Scotland.

Mr. Pedley. Read your votes, and see their coherence with the Instrument, and so order your way for an explanatory Bill.

Mr. Speaker was going to put the question to exclude all members for Scotland that have not borne arms for the Parliament or his Highness: but it was moved by

Colonel Jones, to add these words, " or have given signal testimony," &c.

Major-General Goffe. I move that if they have aided, advised, assisted, or abetted, before 48, they may be excluded: for that provision is made for England.

Colonel Sydenham. To call this addition of yours an explanatory Bill is not proper; for the Petition itself is not a Bill till his Highness consent. So I would have your amendments in the body of the Bill. It will not be honourable for the Parliament to amend a thing the very day that it has its birth; nay, before that which you amend has a being. It is more for the honour of the Parliament, and the thing too, to have the amendments part of your Bill, and not otherwise.

Mr. Bodurda. I think the explanatory for Scotland, relates only to their testimony since March 1648.

Mr. Disbrowe. Such as have altered their judgment, indeed, and are come over, you would not exclude them. That invasion was by vote of Parliament, and the whole nation was engaged. There were some also at Worcester. But such as are your friends, I would have them restored. Such as are your enemies (indeed) exclude them: to this purpose, refer it to a Committee to prepare a clause.

Dr. Clarges. If you exclude all, you will leave few that have not been engaged: some, even of them, have done you good service; and those that are your friends, indeed, I would not have you make enemies of them, nor yet take in those that are still your enemies.

Mr. Bond moved that it may be explained what is meant by signal testimony, and that the test may be the same for Scotland and Ireland as for England.

Sir William Strickland. Do not divide it. Your bearing arms, and giving signal testimony, let them go together; otherwise you leave them under a cloud that have otherwise done good service, though not in arms. I would not have them shut out, but a way open for them.

Captain Hatsel. You are not ripe for that question yet. This has not the efficacy of a Bill, it is but advice; and explanatory is not proper to advice. I would have those excluded that contributed, or aided any way, by money or otherwise, which were as bad as those that actually engaged in the invasion.

Lord Strickland. You will not capacitate Sir Marmaduke Langdale, (fn. 3) and those that came in with him, more than you will those of Scotland.

Mr. Speaker. This is a Scotch article, and relates not to England.

Resolved, that it is necessary to exclude all those Scottish men, and other persons, who invaded England under Duke Hamilton, except they have since borne arms for the Parliament, or his Highness the Lord Protector: or have otherwise given signal testimony of their good affection.

Colonel Jones. You may safely put the second question, to explain what shall be meant by "signal testimony," which your Committee may explain if they think the words be not full enough.

Mr. Disbrowe. The words "signal testimony" are so general, that they had need be explained, which may be referred to the Committee.

Major-General Disbrowe. It may be explained by your Committee, and it is indefinite to all, as well in England, Scotland, and Ireland.

Mr. Godfrey. Now you have inserted the word signal, it is fit you should explain, as it is more obscure, that all may avoid their own danger; otherwise neither the choosers nor the chosen, shall know whether they be out of danger; for it is extensive and indefinite to all, and the words testimony and signal, are both alike doubtful.

The Master of the Rolls. No doubt, while the Parliament are judges of what "signal testimony" is, it will be well enough understood; but the danger is, how the electors or elected shall know when they are free. Haply men may go as far in any thing you command them, and yet may fall short of what you may interpret to be "signal testimony." I like it very well that we shall not have that stop at the door, as his Highness is pleased to except against. I would have you refer it to a Committee to explain the words.

Mr. Thistlethwaite. The Parliament is the best inter preter of " signal testimony." I would not have it committed.

Sir William Strickland. I move that it may be explained, for the safety both of electors or elected, what shall be meant by the words; for signal is a note of some eminent service, which some men, haply, cannot challenge without breach of modesty. I would, by all means, have it certainly defined.

Colonel Stewart. I agree with those that would have the Parliament the only judges of "signal testimony;" yet would have it referred to a Committee, to bring in a clause to put a characteristical mark upon them.

Resolved, that it be referred to a Committee, to consider of some explanation to be made, touching "signal testimony," and to offer it to the House.

The second clause in the paper was read.

Colonel Philip Jones moved that the article for Ireland might be referred to the Committee to explain that also, which was resolved accordingly, and so the first part was over.

Resolved, that this clause be referred to the same Committee, to consider thereof; and, in case they find cause, to bring in an explanation to be made upon this clause.

The third clause in the said paper was read, that about the preachers.

Colonel Rouse. I move that you would distinguish between martial preachers, (that as they took it up, so they may lay it down,) and those that are obliged to preach.

The Master of the Rolls. We never intended to exclude the colonels that preach, but if they came into the church publicly to preach. That which you intend is, public lecturers, that undertake public preaching to their congregations; that undertaking that, they need no other employment: not that it might extend to those that preach to their families, and to their soldiers. You know who said, "Who is sufficient for these things," and, having that employment, they need no other.

Sir William Strickland. The intention was, for those that take the office upon them not to be sullied with temporal things. He has time little enough to study, so needs no other employment. It is true, in the Sabbatical sense, every exhortation or reproof of a master or officer, to his soldiers or servants, is preaching; but not as in this sense. It is meant the function and office of preaching. They were distinguished formerly by clergymen, I wish they were so distinguished still. "Public Preacher" is an officer, and he should not be dishonoured nor distracted with any other thing. If he have put his hand to the plough, let him not take it back again. I hope it will never be said here, that public preaching is not a function. I think, if all the rest of your Instrument be good, this is well enough expressed, without further explanation.

Major-General Goffe. It is not thought that it is intended to exclude the officers of the army by this, but the intent is, not to bar the Gospel liberty of freedom of speaking in the congregations, as certainly every member has that liberty. The Parliament having held forth the spiritual liberty, I move that you will explain it thus, that there may not be a dust arise afterwards against public preachers; but that it may only extend to such as have public maintenance, or have pastoral charges.

Mr. Speaker. If a man be a chaplain in a nobleman's house, or preaching in a congregation, you cannot call this public maintenance. This should be explained.

Colonel Philip Jones moved, that it might be such as have maintenance for preaching, and to leave out the word public. For it is certainly intended to deprive that man that has a designation to that work.

Mr. Godfrey. There may come under this designation, persons that have neither maintenance nor pastoral charge. I would have the word, congregational.

The question was put in the affirmative, to exclude all that have pastoral or congregational charge.

Mr. Highland. It is too large, to exclude all that have any congregational charge. If members of a congregation, in doing their duty, do speak in their turns, to the edification of the rest of the body, (sometimes the pastor may be sick or absent,) and if they be not parsons by way of office, you would not generally exclude them.

Mr. Bond. If you add the words pastors or teachers, you will comprehend all, and explain that article.

Major-General Goffe. It is too exclusive, to all that have congregational charges.

Colonel White. You intend not every person that exhorts publicly or privately from vice to virtue, but such only that have a special designation to that work. The word maintenance will supply all, seeing you have left out the word public.

Lord Strickland. If you put it pastors or teachers, you will exclude all Fellows of Colleges.

Resolved, that the words "public preachers," in the third paragraph of the fourth article, be explained thus; "such as have maintainance for preaching, or are pastors, or teachers of congregations."

The fourth clause in the paper, being read; about Committees for trying the members.

Colonel Philip Jones. Leave it out and impose a fine, and then you must take off your order to bring in a Bill for appointing the triers.

Lord Strickland. The fine will not serve the turn, for if there be no check, there may as many members come in as may outvote the rest, and the fines shall signify nothing. Again, your fine must be great, else it will not signify.

Colonel Cooper. A way must be taken for levying this fine, otherwise it will signify no more than the setting penalties upon persons that have new titles of honour, since the Seal went away.

Mr. Bond moved, that the fine might be 1000l. and that the former order for the triers might be taken off.

Mr. Bacon. Have a fine and triers too, according to your former order, and let the fine be 1000l.

Sir John Barkstead. Determine in your question what the fine shall be, and do not leave it a blank.

This motion was thought as young as the member, this being the first time that I saw him in the House, since the first day of the Parliament.

Mr. Godfrey. First take off your order for the Bill to be brought in for the triers: otherwise, you do not clearly lay it aside.

Mr. Speaker. The triers are to be by Act of Parliament: so that if no such act be made, you have the triers sure enough.

Mr. Bampfield. Triers are not well laid aside by a bare implication; unless you say that, instead of triers, you do impose this fine, or something to express it. There is a declaration that there shall be such, and you make no mention of your taking it off. So that the supreme magistrate may, by force of that, self-appoint, or, at least, claim of the Parliament to appoint, triers.

Mr. Trevor was glad to hear his Highness's resentment of that clause about the triers. He wants, therefore, to have it expressed that you do lay it aside. It is not sufficient to lay it aside by implication, but it should be declared to the public that your intention is to take off the triers, otherwise it will stand so declared in your Instrument, without any explanation.

Lord Strickland. Unless you give it to be tried by action of law, this fine will signify little.

Mr. Bacon. There are degrees of crimes, and it will be hard to impose the same fine for all offences. But let the fine be according to the quality of the crime charged.

Major-General Disbrowe. I move that you would make no distinction of the crimes, for the honour of your House, and that the fine exceed not 1000l. nor be under 500l.

Sir William Strickland. There needs no reference to the taking off the former order for the triers; it falls of itself. I desire that the fines imposed may be as is moved; viz. not above 1000l. nor under 500l.

Mr. Bodurda. It is a breach of the privilege of Parliament highly, to bind up their hands as to the fines; it being arbitrary: and you ought not to limit the Parliament.

Mr. Goodwill. It is not Parliamentary to set down the fine. It is a breach of the privilege of Parliament. Rather leave it to the discretion of the Parliament, which is more proper, and you may say so in your question.

Mr. Bond. This fine-setting is no breach of privilege; but only in terrorem to them that shall presume to come in, not being qualified.

Mr. Trevor. I move, that the sum may be certain, viz. 1000l., and not to limit the Parliament. This is but in terrorem.

Mr. Thistlethwaite. I would not have them punished twice for one offence; but let the other be clearly taken off, as to the order for the appointing of triers.

Mr. Fowell moved, that it might be inserted in the question thus, viz. instead of triers, that a fine be imposed of, &c.

But that seemed to Mr. Speaker to be another question, and so was laid aside till the other question passed.

Resolved, that the sum of 1000l. be imposed upon all persons unqualified, that sit in the House of Commons.

Sir William Strickland. I move, that you would not let the other House (fn. 4) sit free from a fine, if they be not qualified. I would have 2000l. upon every member of. that House, as you do 1000l. upon every one of us.

Colonel Phillip Jones. This is not before you, for the case is different. The members of the House of Commons are chosen by the people, and it is fit there should be rules to try such by, but those are not so. You know how they are to be named and chosen.

Mr. Godfrey. I move, that it may be expressed, that instead of appointing triers, the fine be imposed; for it is not so laid aside but the supreme magistrate may resume it. So I would have it explained as it has been moved.

Mr. Bacon. I doubt if you put this question, you alter some part of " the Petition and Advice," which is a business of great weight to be moved at this time of the day after twelve. I desire you would adjourn.

Mr. Secretary. If you make an order to withdraw your power from the Committee that were to bring in the Bill, you will do as much as is needful.

Mr. Speaker was going to put that question, to report something on the question, about taking off tryers.

Mr. Bacon moved, that the question might be put, whether the question shall be put or no.

Mr. Speaker. The Committee are not appointed, and so you can not properly withdraw any power, where no power was given.

Some cried " adjourn, adjourn."

Mr. Thistlethwaite. It is not proper to move to adjourn, after you have debated a business for an hour together. I desire the question may be put.

Colonel Philip Jones. There is no danger of putting it in the question, that, instead of tryers, a fine shall be imposed, &c., for I apprehend not that, by this debate, you ravel into any part of the Petition and Advice, nor can it be otherwise understood than explanatory.

Lord Broghill. It is not safe to ravel into any part of the Petition; and it is sufficient to lay it aside by an implicit vote. I know not how to offer an expedient, unless you shall give a supersedeas to your Committee, not to proceed further upon your former order.

Colonel Stewart. I think I shall offer an expedient in this business. Let your Committee bring in a Bill for tryers, according to your former order, and then lay the Bill aside.

This motion was not very wisely resented. It is like make work and mar work; below a Parliament.

Lord Whitlock. I doubt, if you loose that link, you give occasion further to ravel into debate upon the Petition: for you repeal that part of the paper which says, tryers shall be appointed. I would, therefore, have you lay it aside, by an implicit vote; and that, in my opinion, will be sufficient.

Mr. Bampfield. I move, that it may be expressed in the question, that instead of the tryers, the fine shall be imposed.

It is clear that both remains, unless you take it off, which cannot be done implicitly. I desire it may be explained.

Resolved, that a Bill be brought in for imposing a fine of 1,000l., upon every person who shall sit as a member of the House of Commons, in any future Parliament, being disabled by, or not qualified according to the qualifications in the humble Petition and Advice; and for their imprisonment until such fine be paid. (fn. 5)

Several members called to adjourn.

Colonel Philip Jones moved, that the House might sit tomorrow, both forenoon and afternoon. Others said it was time enough to move that to-morrow.

Resolved, that this debate be adjourned till to-morrow morning, eight of the clock, nothing to intervene, (fn. 6) and the House adjourned immediately.

I thought to have found a larger report in the journal, for the clerk took it.

I went to dine at the Mermaid with the Countess's Jury, who brought in another and a raging verdict against the poor tenants, at the Common Pleas bar, in affirmance of the private verdict they had given, the afternoon before, to Baron Atkins, which vexed Atkinson. Some of the Jury, as they say, were surprised into it, thinking that they were only to find the reasonableness of the fine, and not the seizure. It seems Dawes, the foreman, and two or three more, circumvented the rest. I think, by these three trials, we may bid adieu to Westminster— (fn. 7) juries at the bar. I was, in the afternoon, with my uncle, and got old Mr. Thwaites' affidavit about Mr. Blenkinsop's business and mine.