Monday October 2. The debate concerning the power of
making war and peace, being this morning taken up, the
question was put, concerning the power of making war only.
It was very much endeavoured by all the Court, whether
to settle the power in the Lord Protector and the Council, by
reason that many sudden emergencies might happen, and
many sudden opportunities and advantages be given, which
could not expect the calling of a Parliament, and being lost
once, all the wisdom of the Parliament could not possibly recall it.
Besides, we could not but be upon great disadvantages with
other princes, who, knowing the constitution of our nation to
be thus, might offer us many affronts, and upon any design,
be beforehand with us, as well knowing that we could not
encounter them in a war without the calling of a Parliament.
Notwithstanding all which, it was alleged on the other
side, that the power of war was in itself an ancient right of
the Parliament, (fn. 1) that though kings in former times had, de
facto, made war without advice of Parliament, yet there was
no king since Henry III.'s time, but, at some time or other,
did ask advice of Parliaments in that very point, and did call
and summon their Parliaments to that very purpose. If, at
any time, they did make war without the advice of Parliament, it was only at their own particular charge, and out of
their own purse.
But, the power of making war, did necessarily employ the
power of raising men, of raising of monies, and of making military martial laws, which, in the very making of them, are
arbitrary, and in the execution, summary. In truth, it did
comprise, in the account of it, a power over our estates, our
persons, and our lives. And this was an undoubted right of
Parliament, that no tax can be made, no man's person imprisoned, nor their lives exposed to arbitrary martial laws,
but by consent of Parliament. Therefore, we could not give
this power to the Lord Protector.
It was needless, and the objection frivolous, the case of any
sudden affront. We were to have a standing force always in
the nation, able to oppose the proudes enemy, and put him
to a halt, until the Parliament could be called. In case any
sudden opportunity should offer itself of advantage, it is not
always necessary to lose it, because it cannot be as suddenly
laid hold on; or if it be lost, it may possibly be redeemed, or
at worst, if it must be infallibly lost:
1. That opportunity, in wisdom, is to be suspected, which
cannot stay for sound advice to be put in execution, but must
be enterprised rashly, or without deliberation.
2. At worst, it is but a present mischief, and such a mischief as possibly may not happen in an age; and if it should
happen, better such a mischief, than an inconvenience, a continual standing inconvenience, of having an arbitrary power
in the Protector and Council, to make a war; and by consequence to raise men, to raise money, and to do all those other
arbitrary things before mentioned.
It will be more safe to the Lord Protector and his Council,
to stand discharged of so dangerous a trust, for which they
must be accountable to their utmost perils, in case the events
of any war begun by them, should prove unfortunate. And
certainly, it will be more formidable to any of our enemies,
when they shall know it is not a few humorous persons that
they are to engage with, but a whole nation they are to make
war against. If any shall be so weak, or so audacious, as unworthily to affront us, no doubt but they may at leisure repent it, and we shall never want the courage nor the wisdom
to chastise such temerity, and to make them pay amends for
Our wars will have much more reputation and fear, when
it will be presumed that a whole nation will not consent to a
war lightly, nor otherwise than rationally, and upon just
grounds; and when they shall so engage, it will be heartily,
effectually, and to purpose. Which considerations alone will
make all foreign nations to be cautious and wary, how they
Upon these; and other weighty reasons, after two full days'
debate, it was brought to the question, and resolved, without
one negative, that the power of making war, is in the Lord
Protector and the Parliament, so as no war can be undertaken
but by consent of Parliament.
Tuesday 3. Wednesday 4. The debate of these two days,
was wholly upon the power of making peace; and at last it
was brought to this resolution, that, sitting the Parliament,
the power of making peace is in the Lord Protector and the
Parliament; but in the intervals of Parliament, it shall be in
the Lord Protector and the Council; with such limitations
and restrictions, as the Parliament shall think fit.
Thursday 5. The Speaker was called to the Chair, and it
was ordered that there be a Committee appointed, of the
whole House, to consider of matters of religion; to sit twice
in the week in the afternoons, and no other Committee to sit
in the mean time; and that the Committee should advise of
twelve or twenty names of ministers to be sent for, to advise
of such matters of religion, as should be propounded to them
from the House.
A report being made from the Committee of Privileges,
that in regard there were many exceptions depending before
them to several elections in Ireland, and the bringing over
witnesses would be very chargeable and dilatory, therefore, it
would please the House to order commissions to be sent over
to Ireland, to examine the matter-of-fact upon oath, and
to transmit the examinations to this Committee to proceed in
judgment upon them. It was likewise moved in the House
It was argued and debated, that this House did never
dispense with the examination of. witnesses, touching their
own privileges, out of their own hands, but had the witnesses
brought up, viva voce; that affidavits out of other courts
were never admitted in such cases; that if a commission
were granted, it. must be by especial Act of Parliament, it
being a new thing and a new law, that not only a new commission, but the very form of the commission, must be by Act
of Parliament; for the Commissioners of the Seal cannot set
the seal unto any commission which is not warranted by law;
nor to any new invented commission; that heretofore, some
Lord Keepers had been brought into a premunire for the
But, the thing itself was held very dangerous; for if any
members were returned out of Ireland, and should be here
sitting in Parliament, and exceptions be brought in against
his election, and a commission prayed to examine the matterof-fact in Ireland, either the member that is here sitting,
must be forced to go over to Ireland to see the examination
of the witnesses, and so the Parliament should lose a member,
and upon the same terms they might lose all the members;
or else, the party complaining shall have the sole examination
of the witnesses, and the sole stating of the matter-of-fact;
which when once stated, is more than half judged.
Therefore, upon the whole matter, the House would do
nothing in it, but left the examination of witnesses, in their
causes, to the same course and order as other examinations
were always used, and to refer it back again to the Committee
A. petition of the Earl of Worcester (fn. 2) , for some enlarge
ment from the Tower, was likewise read. It was alleged
that he was a Papist, a Papist in arms; that had been
in arms in England, had headed a party in Ireland; had
made a most dishonourable peace there; had done many
other disservices, for which he was excepted from all mercy
and pardon; his whole estate to be sold, and all such to
Yet he was an old man, had lain long in prison, and
the small-pox was now in the same roof where he lay; and he
had not, as was said, done any actions of hostility, but only as
a soldier; and in that capacity had always shown civilities to
the English prisoners and Protestants. It was, therefore,
ordered that he should be bailed out of prison.
Sir Robert Pye being returned to serve in Parliament, was
arrested in execution since his return, but before the sitting
of the Parliament. Ordered, that the bailiffs and trader-sheriffs
be sent for as delinquents.
It was agreed, that the privilege of Parliament did begin
from the very day of the election. Therefore, he was to
have forty days' preparation to come up, and continued forty
days after the Parliament, to prepare for his return.
Friday 6. Saturday 7. Were wholly spent upon the distributions of the number of members to serve in future Parliaments. We agreed with the Instrument, in the whole
number of four hundred, Jersey and Guernsey being left out,
because not governed by our laws, but by municipal laws of
their own; and we differed but little in the particular distributions.
The Ordinance concerning the regulating of the Chancery,
which was lately set out by the Protector and his council,
was committed by the Parliament to be considered of; there
being some things, as affirmed, which were not practicable
Monday 9. It was ordered that all the articles concerning
Government, relating to the election of members to the Parliament, shall be referred to a Committee, to consider of them.
Tuesday 10. The House passed over all the rest of the
articles, and came to the thirtieth article, which concerned the
making of laws, by the Lord Protector and his Council, until
the Parliament should be called, and to be binding until the
Parliament should take order concerning the same.
Resolved, that all those Ordinances so made by the Lord
Protector and his Council not before committed, and likewise
all Acts and Ordinances made since 3d July, 1653, including
all those Acts of the late little convention be referred to the
examination of a Sub-Committee, to consider what were fit
to be continued or repealed.
This day, likewise, a motion was made, in regard of the
low prices of corn in the nation, (fn. 3) that licence be granted for
the free transporting of it, without paying custom, and likewise that there be liberty for who please to engross it without
the danger of the law. Which business was referred to a
Committee, to draw up something to present to the House to
The thirty-first article was likewise referred to a Committee,
to consider what lands and revenues were yet unsold and undisposed of, and how they might be disposed of, for the payment of the public faith and other debts of the Commonwealth,
and of settling the rest into a standing revenue for the use of
Wednesday 11. Fast-day; kept in the House by three
preachers, (fn. 4) from nine of the clock in the forenoon, until four
in the afternoon. (fn. 5)
Thursday 12. The Speaker being in the Chair, it was
moved, in regard of the late disappointment of the Greenland
fleet, and the great want of oil to carry on the trades of
cloth and soap, that therefore, licence be given to fetch it out
Resolved, that it be referred to a Committee, to call
before them the Company of Greenland and Eastland merchants, and thereupon to consider, how in what manner there
may be a present supply of whale oil for this nation; and how
the trade of fishing for whales may be regulated for the
advantage of the Commonwealth, and report their opinion.
That it be referred to the Committee, to whom the business
for transportation of corn is referred; and they are to meet
upon this business this afternoon, at two of the clock. (fn. 6)
The debate of this, did draw the late Act concerning
trade (fn. 7) into consideration. After the whole forenoon's debate, by the country gentlemen against the citizens and late
Parliament-men, who were in love with creatures of their own
making, at length
Resolved, that there be a Grand Committee of the whole
House for Trade, when the Act shall be taken into special
consideration, and that they do sit in the House every Tuesday, in the afternoon. (fn. 8)
Friday 13. The thirty-first article (fn. 9) was referred to a
Committee. (fn. 10)
Saturday 14. Adjourned; and I took physic that day,
and two days after.
Monday 16. (fn. 11) The debate began upon the thirty-second
article, whether the office of the Lord Protector should be
elective or hereditary. After three whole days' debate, viz.
Monday, Tuesday, and Wednesday, at length, about Wednesday, at five of the clock, it was
Resolved, that the office of the Lord Protector shall be
elective, and not hereditary. (fn. 12)
Thursday 19. The other part of the thirty-second article,
concerning the persons by whom the election shall he made,
was taken into debate. After three other whole days, viz.
Thursday, Friday, and Saturday, at length it was—
Resolved, that, upon the death of the Lord Protector, in
the intervals of Parliament, another fit person shall be forthwith elected to succeed him, which election shall be by the
Council, so constituted, and with such limitations and restrictions as the Parliament shall think fit.
Monday 23. It was debated whether the elections shall
be, in case the Lord Protector should die during the continuance of the Parliament.
Resolved, that in such case, the election shall be in the
Parliament and not in the Council.
The reasons given for the elective or hereditary succession,
pro et con., were divers; but I was not there at the time of
those debates. But the reasons given; why the election
should be rather in the Parliament than in the Council, were
also divers, some of which I will here remember.
For the Parliament.
1. It was asserted and so agreed, on all sides, that it was
an original fundamental right, inherent in the Parliament, to
choose their supreme officers. Something of authority was
alleged, in all ages, even from Cæsar's time, downwards,
how kings have been elected, or approved and confirmed by
2. It would be thought a great diminution and disparagement to the Parliament, not to choose the Supreme Magistrate.
3. The original rights of the people, being intrusted with
the Parliament, they cannot depute or delegate that trust to
another, therefore not to the Council.
4. It would be much more satisfactory to the people, and
more safe for the Protector, to have his election by the Parliament, the stamp of whose authority upon him would make
him more willingly accepted by the people, and, besides, he
that shall be so chosen by the Parliament, the Parliament
will be engaged to stand by him, and to support him upon
all occasions, which obligation will not be so great, where the
Protector shall be chosen only by the Council.
5. Besides, it was objected, that to have this in the Council
only, would be too strong, and too great a temptation upon
A few may choose sooner, but a multitude were like to
choose safer, for in a multitude of counsellors there is wisdom.
A few will be easier cajoled or corrupted than a great many.
If the election be in the Council, they are persons certain and known, who may be prepared and courted in
elections, to serve particular interests, which cannot be supposed in a Parliament.
They are persons not known who they shall be, before they
are chosen, and so can have no preoccupancies nor applications made unto them beforehand. And they are so many,
as it would be a vain and impracticable thing to prepare
or corrupt them, if any should never so much endeavour it.
6. The danger of introducing the line of Charles Stuart
would, for the former reasons, be very great; because they
are easy to be cajoled or corrupted to serve his interest, being
but twenty-one at most; and nine of them being, by the
present constitution, to make a Council; and five being the
major-part of nine, it is but the making of five of the
eminent persons of the Council, and Charles Stuart's business
would be done.
It could not be doubted he would bid high for a Restoration. He would willingly part with two kingdoms for
the third; and two such kingdoms would be a competent bait
to satisfy the ambition of five counsellors, though never so
chaste. And it is very possible that in three years, twelve of
the Council may possibly die, and then, nine are the only
Council left; of which nine, five will be the major-part, as
before. But possibly, thirteen of the Council may die;
and then no Protector can be chosen at all, for want of a
7. All other inconveniences and objections that can be
made against the election by the Parliament, and for the
Council, are as broad as long, and will hold with as much
strength against the Council as the Parliament.
8. It may seem not so fit in so great a trust, that the
Council should choose, considering that the Council are not
nominated by the Parliament, but approved only; and the
trust of the election is agreed on all hands to be in the
9. As it is now resolved the Protector is to choose the
Council; and if the Council choose the Protector too, it may
seem not altogether so equitable and convenient to reason.
10. For the great objection of the army, that is agreed
necessary, however, to be kept up to secure the new government against the old interest; and therefore, if the election
were not thus, we could not expect the army should be
11. The argument from an inconveniency of an interregnum, might easily be solved by putting the administration
of the. government, or it, into the Council, during the
vacancy; and for administration of justice, all commissions,
both of judges and justices,may be continued by an Act of
Parliament, notwithstanding the death of the Protector.
These were the most general arguments which were used
by those who argued to have the election in the Parliament,
and the answers to such objections as were made against it.
On the other side, the reasons and the arguments why the
election should rather be in the Council than in the Parliament, even sitting the Parliament, were many and weighty;
the most considerable whereof, so near as I can remember,
were these which follow.
For the Council.
1. The great danger there would be in so long an interregnum, as must needs be, if the election be placed in the
2. The great difficulty of calling and convening the Parliament, as it is especially now constituted, in regard of Scotland and Ireland, and the great prejudice which may happen
before a Parliament can be called.
3. When a Parliament is called, and no single person in
being to be a check upon them, they may then perpetuate
themselves and vote a new government; or, at least, take all
4. It must needs be long and difficult, before a Parliament
can be thought to agree upon any one single person; their
judgment being, in all probability, so different as they are
like to be, and their affections as strong to persons of their
several interests. Which must needs beget both extreme
delays, and strifes, and discontents, when so many interests
shall strive for it, and but one can have it.
5. In future times, when all parties are restored to freedom
of elections, it may so happen, as we may have a Cavalier
Parliament, which may, possibly, endanger the bringing
in again of Charles Stuart or his family.
6. To prevent which, and to provide that elections be well
regulated, it will be necessary to keep up a constant and
considerable army, which will prove as considerable a charge.
7. If an army must be kept up, there will be as great a
fear, that the army will, if not engross, yet always oversway
and overawe the election.
8. A Parliament will be easier violated by force than a
9. In case an election made by Parliament, should once be
overborne, it will necessarily occasion the overbearing, if not
the destruction even of Parliaments themselves. For he that
shall come in, contrary to, and against the election of Parliament, will never have cause to be in love with Parliaments.
10. Parliaments are ever apt to be factious, and factions in
Parliament are seldom but destructive wars; not so Councils,
because they may be reconciled again by a Parliament. But
who shall reconcile a Parliament ? especially when there is no
check upon them. A Parliament may be arbiter or judge of
others' differences, but who shall arbitrate theirs ?
11. When Parliaments meddle in personal things, they
ever jangle and differ, and therefore, the wisdom of Parliaments hath ever avoided it as much as may be.
12. Seeking to bring too much, especially personal business
to the Parliament, will be the destruction of it.
13. As it is sooner, so it is easier done by a Council, and
by a few than by many. It is not probable that a few
persons, especially such whose interests, by long acquaintance
and a joint employment in business, have united in understandings and affections, should differ so much, or more, than
400 persons drawn from several nations, strangers and unknown to one another, and coming wholly unprepared to such
a business. Whereas, it cannot but be presumed that the
Council upon any sickness or danger of the present Protector,
have premeditated and advised beforehand, who shall be the
14. If the choice be in the Parliament, it was conceived
that it could not but bring a great deal of danger, even to
the life of the present Protector. For, when it shall be
known that the next Parliament, or this present sitting, shall
choose the Protector in case of death, some wicked or
passionate person may attempt some violence upon the person
of the Lord Protector, that so they may come to have a new
one chosen by the Parliament, or rather that they may have
none at all chosen, but leave the government in the Parliament alone, and so re-establish a Commonwealth.
15. It cannot be supposed but in Parliament many persons
will, probably, be in nomination, and those in all likelihood of
the most eminent in the whole nation. And, whereas it is
most certain that but one only can have it, it will follow that
all the rest that miss of it, must needs be disobliged by him
that hath it. Which will occasion so many enemies, at least
parties and factions, as will beget at last an immortal jealousy
between them, and uneasiness to them both. He that is
chosen will look upon them that stood in competition with
him, as persons of as high interest in the affections of the
Parliament as himself, and like to be his next successor, and
they who have missed of it cannot but bear a regret in their
minds, of the disappointment.
16. There may be rules given to a Council, concerning the
election, rules by which they may be limited and restrained,
or directed as the Parliament shall think fit, which rules the
Council dare not break. But the Parliament cannot be
limited or restrained, let the choice be of one never so wicked
or unfit, or even of Charles Stuart himself.
Notwithstanding all these arguments, which seemed to prefer the election by the Council before that of the Parliament,
it was by many concluded, especially those who were for the
hereditary way, that even this way, which was conceived the
best that could be contrived, was yet but ex malis minimum,
of evils, to take that which seemed to have least evil in it.
But the reasons for the Parliament, especially sitting the
Parliament, did preponderate, and it was so voted accordingly.
Tuesday 24. The rest of the thirty-second article, concerning the manner of election and the qualifications, were referred to a Committee. The thirty-third article being formerly resolved, the thirty-fourth was debated, (fn. 13) and agreed,
as it is in the article.
Accordingly, the Lord Deputy of Ireland, the Commissioners of the Seal, the Commissioners of the Treasury, and
the Chief Justices, (being formerly nominated by the Lord
Protector,) were this day approved in Parliament. (fn. 14)
Wednesday 85. Mr. Speaker kept the chair. It being
formerly resolved that every Wednesday in the week the
Speaker should keep the chair, to hear reports from Committees, and other business that should concern the public.
Accordingly, this day, the Reporter, Mr. Yorke, the Chairman of the Committee to whom the proceedings and powers
of the Judges (fn. 15) at Salter's Hall were referred, (fn. 16) did make
report of several exorbitant and arbitrary powers that they
find in the Act and Ordinances for relief of creditors and
poor prisoners. (fn. 17)
After a whole day's debate, it was at length resolved to be
suspended, and a new Bill to be brought in with all speed, to
afford just relief in the same cases. (fn. 18)
Thursday 26. The thirty-fifth Article of the government
was taken into debate and voted, that the true Christian Religion contained in the Scripture, be held forth and recommended as the public profession of these nations, and that
the present maintenance of ministers shall not be taken away
nor impeached, until some provision, less subject to scruple
and contention, be made for them. (fn. 19)
Friday 27, Saturday 28. Wholly spent upon the debate
of the thirty-sixth Article. (fn. 20) The House being much divided,
nothing was, either day, resolved, but adjourned over until
Monday 30. The matter of the thirty-sixth, thirty-seventh,
and thirty-eighth articles, concerning indemnity to all that
cannot subscribe to the public profession, and toleration to
tender consciences, was again in debate. Nothing being concluded upon, at length, after a whole day's debate, it was
referred to a sub-committee (fn. 21) to draw up a question upon all
the three articles, and to present it to the House upon Wednesday next for their debate. (fn. 22)
Tuesday 31. Several petitions were presented to the
House. (fn. 23)