The Diary of Thomas Burton
19 February 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: 19 February 1658-9', Diary of Thomas Burton esq, volume 3: January - March 1659 (1828), pp. 347-369. URL: http://british-history.ac.uk/report.aspx?compid=36912 Date accessed: 20 April 2014. Add to my bookshelf


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Wednesday, February 19, 1658–9.

Mr. Scawen reported from the Committee (fn. 1) for inspection into the accounts and revenue of the Commonwealth, that they should often have occasion to send to the Commanders-inChief, both in Ireland and Scotland, for the knowledge of the forces in pay under their commands, and to others, concerning the revenue of those nations. And that the Committee did therefore desire, that their dispatches in reference to these affairs, might be signed by Mr. Speaker.

Resolved accordingly. (fn. 2)

Serjeant Waller reported from the Committee of Privileges the business of Petersfield; and that it was the opinion of the Committee that the election was void; and prayed that a new writ might issue out.

Sir Henry Vane and Mr. Knightley moved, that it be re-committed; for that the Chairman ought to report the state of the whole business, as it stood by the Committee.

Serjeant Maynard seconded the motion.

It seems the election was too hasty. No proper notice was given to the electors; for the electors had notice at nine, and the election was at ten.

Sir Arthur Haslerigge. It was no good election, for want of time.

Sir Walter Earle. Recommit it, that it be examined at the Committee, who are the proper electors.

The opinion of the Committee was, that the election was void for want of due notice.

Mr. Jenkinson. The whole matter was included in the question and evidence, as to both cases.

Serjeant Maynard. A Committee ought not to bring in a report without the tota materia. Else, how shall the House know it. If the persons capable of electing were there, then there was notice. The principal point is, who have the right of electing. I pray that it be re-committed.

Mr. Goodrick. We conceived at the Committee that there was no due notice; there being eighty electors, and but thirty present. Therefore we judged the election void. I would, therefore, have no re-commitment.

Mr. Scot. I am of opinion, that the fault was not in the want of notice, but upon the merits of the election.

Resolved, that the case concerning Petersfield be re-committed.

The order of the day was read, upon the debate of the Other House.

Mr. Drake. We have not commission to meddle with the constitution from those that sent us here. It has pleased God to reduce the constitution of the nation to a single person and two Houses of Parliament, as it was before. It is our honour to look forward, and not to go back, that we may be builders and not destroyers. Our ancestors have sworn to maintain the constitution: it is mostly for the good of the nation, to have such a constitution.

1. It is good for our laws to be often read over.

2. It is for the good of ourselves. By putting a question upon them; we may have a question put upon ourselves. They (fn. 3) may be a screen between us and the people, as well as between us and the single person.

3. The two, Houses are good for the peace of the nation. The old Lords have still a right. It doth but sleep, and will at one time or another awake upon us. If we take away the rights of the peers, we may have a barons' war again. There are great attempts and endeavours of your enemies to agree. It behoves us to agree among ourselves.

4. A separation is endeavoured between the martial and civil powers. We had need to strengthen the hand of the civil power.

My motion is, that you declare it your opinion that there shall be two Houses of Parliament.

Mr. Edgar. I find in precedents, formerly, that there was a power (to be tried by the peers in criminals, and, in civils, their bodies not to be attacked) so inseparable from the Lords' House, that no power could take it away. The engagement (fn. 4) but takes it away by implication. The Petition and Advice, they say, gives it a right, I cannot say as to the force of that. Divers boroughs had no representative then. This right of the House of Lords is not taken away by any legal power. Then if they be in possession, be it by what power it will, they are in, and ought to hold their right.

It will be very useful for the Commonwealth. They have had their education in arts and arms. They were the procurers of Magna Charta, (fn. 5) by the Barons' wars; and many counsellors are useful in making laws. There has been no forfeiture, no transferring of their power. If I were satisfied that the people sent us not here to do this; I conceive we came here to do right and justice, and to maintain the honour and birthright of that House. The wisdom and strength of the body should go together. It is a very dangerous thing to alter laws and customs. A proverb says, "Old laws and new meat are best for Englishmen."

I would have another House of Lords. Matter of honour and reverence is as much a right as any thing else. The old Lords have no voice in elections, (fn. 6) and it were hard for them to be barred from sitting in their own House, and from being serviceable here.

Mr. Young. I perceive the question is, whether two Houses or not ? The question is whether there be a Lords' House in being, and not whether this shall be one for the future. First determine whether the Other House be upper or no. It was told you not long since, that the Other House was down, by the Petition and Advice. He was never answered yet. Those insignificant mincing terms, Other House, do not at all agree with my judgment. I would have it a House of Lords. Therefore first agree whether the power of the Other House be determined by the Petition and Advice. No other law is of force for them.

Serjeant Wroth. Whether there be two Houses, depends upon the validity of the Petition and Advice. A Parliament not free, and yet the acts are binding. Otherwise, it would strike at that act.

Colonel Gibbons. This is a question of great concernment in the tendency of it; the setting up another power, with a jurisdiction in some cases concurrent with you, in some other, superlative, above you. Thus you will have two superintendants over you.

You are therefore to consider,

1. Whether there be another House or not.

2. Whether there shall be, or not.

If there be, it must be upon the old foundation or upon a new constitution. The last Parliament cashiered the old foundation. The victorious Long Parliament, the dictators and legislators, they have laid them aside. (fn. 7) The House's Advice is no legal footing, as was moved learnedly by Colonel Terrill. (fn. 8) Therefore, if there be any in existence, it must be upon some new constitution, de facto; but whether de jure is the question.

First examine whether you have another House, and then, rebus sic stantibus, rebus sic cadentibus.

Colonel Terrill. It cannot be de jure in the Protector; it being but personal in the other Protector, and executed by him, and dead and buried with him.

Serjeant Waller undertook to answer Colonel Terrill.

All his cases are at common law: none upon Acts of Parliament, which are to have a reasonable construction. There was a plain intention in the law for him and his successors.

In this Act, an Act of Constitution, it was declared that his Highness might summon another House. His Highness constituted another House. He had a power to constitute them; and the power is executed.

Mr. Knightley. Those gentlemen that stand at the bar, put me in mind of what I moved the other day, that none should have votes that would not take their places; so that if men will not take their places we must needs have another House.

I desire that the Act, 16 Caroli, on this case, be read. The dictators and legislators, it is said, did take that House away. The late army had no power to dissolve, much less to annihilate that House. Therefore, instead of two Houses, we shall have two houses in being; one by that statute which I would fain have answered, and you have another House in being by the Petition and Advice.

Via tuta est via recta. We were called to advise with the nobles, and we were indeed in the Lords' House, and there we found some sitting that call themselves Lords. We must consider what constitution we are upon; what we have, not what we shall have. We have a constitution by a single person, and a House of Lords, or Peers, which you will. I can consent to no other.

I move, therefore, that you declare the House of Peers to be the other House.

Mr. Goodrick. In that very law, 16 Caroli, there was a clause that the House of Peers should not be prorogued, adjourned, or dissolved, without their own consent.

Another law, the statute for triennial Parliaments, is unrepealed, by which twelve peers ought to meet to summon Parliament. (fn. 9)

I am against building with rotten timber, but not against building with old timber if it be sound. Determine, first, whether you will have a House of Peers, and then, whether that House of Peers be taken away or no. I pray that the Act of Parliament, 16 Caroli, may be read.

That Act was read accordingly. It was, that neither House should be adjourned, prorogued, or dissolved, without their consent and own orders.

The Act for Triennial Parliaments was also read, and it was that twelve peers might issue writs for Parliaments under pain of loss of places and preferment, and punishment by succeeding Parliaments.

Sir Arthur Haslerigge. I am glad to see these two Acts read. I move to explain whether the Petition and Advice have not made void these two Acts. I would be satisfied from the Long Robe. It is said the Petition and Advice has made two. Houses of Lords.

Mr. Attorney of the Duchy. I know not what those two Acts were read for, unless to take the Speaker out of his chair. Yet I do not think that the intent of those gentlemen was to take you out of your chair, and put in your predecessors.

By the same rule, Magna Charta may be called for, the restoration of the Lords, Spiritual and Temporal, the Recognition of King James, (fn. 10) &c. and I know not where you will end, till you recognize Charles Stuart for King.

Invalidity is endeavoured to be put upon the Petition and Advice, and upon many good Acts in the end of the Long Parliament; but a nullity upon them upon any pretence whatever, brings us to what, and where, we were.

The House's Petition is a good law. I hope we shall not look so far back; but go on. I hope we shall have no more such Acts called for.

Mr. Fowell. The acts made in the latter end of the Long Parliament and the Petition and Advice, are both good laws until repealed.

The Lord Protector did not think fit to make every lump of gilded earth a Lord. He took another measure. Their valour and virtue were objects to him of their honour. (fn. 11)

The Barons anciently were the great bulwarks and defence of the liberties of the nation. How oft did they fight for Magna Charta. They did great service in old times, and so did those in the quarrel. There is a necessity for a House of Lords.

Mr. Belhel. I observe from that Act, (fn. 12) that we are the people's Parliament, and not any single person's. That is all that I shall move.

Mr. Manley. I differ from that gentleman. The Petition and Advice has made those laws of force. It is a question of fact that there is a House. You exclude the right. I would have the question comprehend both; whether there shall be another House or no.

It will come in debate whether it is proper to have another House. I shall speak to none of the laws that have been read. I think those laws are of force till you annul them. I think they (fn. 13) are restored by the Petition and Advice. I conceive clearly they are restored.

The Protector has the same power that any King of England had (fn. 14) . He has power to create Barons by writ or patent. (fn. 15) I wish the old Lords, so many as are capable, had been called. His Highness went by another measure. Honour is the edge of valour; take this away, and you take away the edge.

Lords were ever since Parliaments were; only they sat together. (fn. 16) The 8th of Henry IV., they then sat asunder. Had there not been a House of Lords, then we had not been a House of Commons neither.

They always fought battles for our liberties. How often engaged against the King for the Parliament. Two worthies of them are never to be forgotten; one by land and another by sea. Essex (fn. 17) and Warwick. (fn. 18)

If you will have another House, they cannot be Commons. If any thing, they must be Lords. Commons against Commons cannot stand. Shall they dispose of your purse ? One hand is enough in a purse. If you have not a House of Lords already, I wish we may have a House of Lords.

Mr.— (fn. 19) . I move to declare, whether, as to this point, the Petition and Advice be of force.

Mr. Nathaniel Bacon. This statement will not hold you long. De facto, King and Lords are taken away. There is something in the nature of a law on foot, which is the Petition and Advice. By that, another House is set up; whereas, before there was but one. It is not so much a new Constitution, as a reviving of the old with taking off the exorbitances.

You are not yet come to the manner of the House; but the question is, whether the Constitution of the Parliament of England ought to be by two Houses ?

I think it ought, from long continuance. It hath been so for many hundred years. Long usage hath so settled it, as Acts of Parliament cannot alter it. No Act of Parliament can take it away; nor can the single person be taken away without special authority.

This Government hath been interrupted, de facto, and put out of practice; but the right cannot be taken away. The people of England have a right to the single person and two Houses of Parliament, and it cannot be taken away without their consent.

I would not now consider what it shall be, but whether the Constitution shall be in two Houses or no.

Mr. Stephens. The state of the question is well moved to you by the gentleman that spoke last. It is clear that the Constitution was by two Houses.

We all aim at settlement. I hold life and estate by Magna Charta, thirty times confirmed. It is clear, that the ancient Constitution was a House of Lords. Ever since the fourth of William the Conqueror, you will find the nobles a House of Peers. How they came to forfeit that I know not; particular men may. The laws read are, without doubt, not repealed. I am clear that these laws are not repealed.

The latter end of the Long Parliament took them (fn. 20) away, and last Parliament restored another House. You have both laws before you. I was always against taking away the House of Peers; and that upon account of the covenant. I made that covenant with God, and not with the Scots. The act by which that House was taken away, was made by a kind of surprisal too.

I tell you truly, I am for the ancient Constitution by two Houses. Justice is always pictured with a pair of scales. The two Houses were so. Sometimes the Lords were too heavy, and sometimes the Commons were too heavy. No bills for monies did ever come from that House.

You ought to restore the ancient House of Lords, if one may be added to the other. I am bound by my covenant to maintain the privilege of Parliament. I think too, we must restore the House of Lords, as a point of policy and prudence. They may be a good screen on both sides; between the magistrate and the people. Let us build upon good and sound foundations.

The question being put in the affirmative, that the Constitution of Parliament doth and ought to consist of two Houses,—

Sir Henry Vane. Here has been a learned debate; but, by the question, I know not how to give my vote. If the Constitution be by the old right, I must go one way; if by another right, another way; but if both these might be taken away, then the question must be whether We shall have any or no.

If you say, the Constitution of Parliament consists upon the old laws read, I may give my yea. If upon the Petition and Advice, I may give my negative, I am Àxceedingly perplexed which way to give my vote. I would have the words "shall be."

Mr. Bulkeley. The question, gives a man latitude enough to give his vote, whether he will have it upon one footing or another.

The question was again put in the affirmative.

Sir Henry Vane moved an addition, "As the state of affairs have been since the war," but it was decried.

Mr. Godfrey. The question is complexed of matter-offact and matter-of-right. They are different, therefore move it singly, that it ought.

I cannot assert the right, till it be debated whether the Other House be the House that ought to be. It is not proper, when both these are in debate, that we should admit either. I desire the word "doth" may be left out.

Colonel Matthews seconded the motion.

Mr. Trevor. The word "doth" left out, leaves out a great many of our senses. It is a word which may relate either to the old or new Constitution.

Serjeant Maynard. You ought in justice to condescend, if any person be unsatisfied. The word does not stick with me. Leave out the word "doth," however, to satisfy all persons.

I hear nobody offer that it was part of the quarrel to have no House of Lords. They showed themselves for you, in a time of hardness. They did oppose your enemies. You could not have held out laws to the people, in that time, but by their ordinances. They were innocent, so let us not go away with that mistake that they were as nocent as the King.

Put the question upon the word "ought," and leave out the word "doth."

Colonel Bennet. I look upon this question as that, which, at the long run, may cost us dear. There are different understandings in the matter of this question. Let us not be too hasty, but hear one another. Many arguments have been used for the right of hereditary peeragé to legislature. I have heard it learnedly argued that, not only by ancient usage but by the common law of the land still in force, the ancient peerage are restored, and now in being. I shall consent they may have had such a reasonable claim to offer, as other things of like nature have had, witness the Court of Wards, (fn. 21) and Star Chamber, (fn. 22) and Bishops. These had no natural right; but only a right by usage, which is no right.

I was for a single person, though, if the condition of the people were as receptive of a Commonwealth as it might be, I still have thought a Commonwealth better for us. I shall contend for a mediocrity.

I cannot like it, to have five hundred men set over us for them and their heirs to have a legislative over us and our heirs. I never understood the covenant in that sense as now used. I look upon that as exclusive of this family, and inclusive of Charles Stuart. I have no such opinion of any in this House. (fn. 23) I know not what may be.

I would fain have it agreed, if restoring the old peerage, or that way, be not inclusive of that and exclusive of the other. I do consider this power of legislature in a single person, and in another House, hereditary, and if it be possible for any man to apply his arguments taken from the statute of 16 Caroli, exclusive of Charles Stuart, I shall be glad to hear it.

If they who are for monarchy, will be content with the good things that are in it, we shall be content that all the good reason of monarchy and of another House may be converted to our use. Another House, for the castigation of debates, to prevent passion and too much precipitation, that will fully answer the reason of another House. But for the law of 16 Caroli, I conceive that clause of the Act, that they shall not cease to be, is improperly tendered. It is set aside,—

1. By the calling of another free Parliament, by virtue of a new election and constitution.

2. A greater power than the power that made that House, hath taken it away. I mean not any power on earth, but God himself. He hath let us know that it is he that planteth and plucketh up, and taketh away. I am of opinion that he hath taken it away by a long series of providences, and what God hath taken away, I shall never plant again. It was not taken away in a corner. They may have peace in themselves that did it. God hath dissolved that Parliament. That satisfies my conscience. I cannot plead that any jury determined it.

I am willing that two Houses should be, upon the reasons of utility; but I cannot consent to hereditary power in those that sat below our ancestors. I shall be willing to grant you my honours upon condition you will give us an hereditary legislature from such as our grandfathers sat by their sides and took pleasure in them.

Mr. Higgons. I am glad to see this done, that we may plead for our ancient constitution, that we were born to. This House was set up long, ages before ever a House of Commons was.

No good Christian can argue from events. Because Constantinople is taken from the Christians, ergo they must not endeavour to recover it.

I would have the question put, that there ought to be two Houses of Parliament.

Major Beake. As to the first argument, destructive to the single person, because the single person may call five hundred, and set them over you: yet you have no cause to fear this new nobility.

1. I suppose he will have a retrospect to what other princes have done. Or suppose the single person should nominate five hundred peers, or more, to grow up over us and overtop us, such a numerous nobility will rather strengthen your hands than his; for, by experience, we found the numerous nobility of King James (fn. 24) was the destruction of his son. When King Charles began to multiply Lords, they struck in with you, and deserted the King; ergo, that will be a rock, a peg on the top of the Bill, which will direct him on that behalf. It may be you will limit the number.

As to the second argument, a greater power hath taken it away. Then let every man's mouth be stopped. Let no man attempt to set up a Commonwealth.

Though, God in his providence hath taken away the nobility, yet what God doth providentially, he not always approves. That he did approve it, is not clear to me. To untie this knot, we may say he did not do it approvingly. I take the single person and the Commons as two scales, the House of Lords as the beam. Both scales are subject to factions and tyranny and extravagances. The beam is prudential. The power, for seven hundred years transmitted to them, they have as much right to it as the gentleman has to his cloak. Usage is a good right, if ancient. If nothing he right but what is natural, he has not right to his victuals, his meat and drink: so that there is but a tantum non to make it natural. It is so twisted with the constitution, that five hundred for one upon the poll, would be for a House of Lords. I never knew any Christian against the constitution, only against persons.

Laws went out here without their lustre, not so practical and useful. By no law of England can the Judges sit in the House of Commons. They must sit in the Lords' House, else we want their grave and sage advice. We have been tumbling ever since they were taken away. We have swornby the covenant to maintain the two Houses; and the Parliament might as well take away meum and tuum, as a House of Lords.

Mr. Jenkinson. Your question is not of conveniency or inconveniency, but of right. Then the other arguments will weigh nothing. I conceive it a great question, and fear whilst you vote them Lords, you vote yourselves slaves.

I find their names in all your laws, but by what right, it appears not to me. Some say the old Barons were by merit, (fn. 25) some by patent, but I conceive by neither. It was neither writ nor patent gave it to them, but their tenures and possessions gave it them. He that had so much in possession, or so many Knights' fees, was by law a Baron, and might challenge a right to sit in Parliament. (fn. 26)

There was a law in King Ethelbert's time, that if any person came to have good possessions by his tenure, he was to be a Lord, or Theyn, as it then was called. In the 11 Henry VII., the law was for Archbishops, &c. that hold of the King in capite. "Let them do service to the King, and be present at the King's courts." Mr. Selden understands it to be present in Parliament. This was by their tenure. No writ was then, but every man that had right might come. The first distinction between the Barons, majores et minores, was in the latter end of King John, as appears in Magna Charta. In the last year of that King, upon this statute, were several writs to distinguish them severally. The Barons, Majores were to be called separatim, and the Minores were to be called, generally. The Majores at last came to exclude the rest. The excluded for a time took it well, but out of their ashes came the Commons. These were first called in the time of Henry III. Even at that time the Commons began to grow upon the Lords, and all their glass is now run out. Almost all that power is in this House, the Commons having now whatever possessions and tenures made them considerable. (fn. 27) The Lords have no interest now, and signify no more than. you. How can you now make those men Lords, by any other reason than to make twelve pence to go for twenty shillings. You may vote them what you please, but should you say so, other people will value it, at the same value. If they be not Lords in the country, it will signify nothing. It is not your voting of them to sit in another House will make them so.

If you will have another House; limit them. Let it be part of the Bill, that this House doth declare that there shall be two Houses; and then you may limit them, as you have done the single person.

Serjeant Maynard. I would have the question look forward as much as may be, and as little backward as you can. If we look too much upon the point of right, it may bring us upon some rocks by pressing it too far. We must go that way which comes nearest settlement. The question before you will answer every man's sense, to debate after right or conveniency, or what he please. If you put it in the same way as you put the single person, that will do best.

The question was put in the affirmative, that it be part of this Bill to declare the Parliament to consist of two Houses.

Colonel Matthews. I move to consider whether you do not destroy yourselves by this question.

The question was put both in the affirmative and negative.

Mr. Sadler stood up, and it was agreed that he stood up before the negative, and so he went on.

A power to laugh is essential to a man, but he does not ab solutely consist of it: so, that may be essential to a Parliament that is not constitutive of a Parliament. By putting this question, you conclude that all Parliaments that were before or since the House of Lords, were no Parliaments.

Say whether for hereafter, or whether convenient to have another House. It may be, I can give my vote. I would have the question plain.

Resolved, upon the question, that it shall be part of this Bill to declare the Parliament to consist of two Houses.

Mr. Onslow. I would now have you take care to bound this House, as well as you intend to bound the Chief Magistrate.

I shall mind you what was done in the King's time. I would not have more given to this single person than was comprehended in the propositions at the Isle of Wight. (fn. 28) There was then a short Bill to bound the peerage, both as to number — (fn. 29) I would have you declare some additional clauses:—

That all peerages made after the great seal was taken away, be void, and that no Peers be afterwards made but such as shall be by judgment of both Houses.

He offered a Bill, it was but ten lines.

Major-general Kelsey. It is improperly moved to bound them till you have determined that they are a House of Peers.

Sir Arthur Haslerigge. It was not improperly moved by the honourable person that offered the Bill.

Sir Henry Vane. You have not voted them peers. It is moved that they are the King's men. Then let them come after the King. First bound him, and then bound them.

Mr. Godfrey. The paper is not improperly offered. It may well be taken into consideration.

Mr. Attorney-general. I would have bounding this House first taken up, because it is easier to bound the Chief Magistrate than to bound them.

Mr. Bulkeley. I second that motion.

Captain Baynes. It is most proper now to go to the negative voice. The objection is answered that was made, that we knew not how to dispose of the negative, till we knew whether you will have another House.

I would have it referred to a Committee, to consider of a way how you will qualify and bound this Other House, and that you now proceed to bound the single person.

Mr. Bodurda. Surely you mean it shall not be another House of Commons; then you will have two hands in a purse. None here surely mean it a House of Ladies. (fn. 30) So surely it must be a House of Lords.

I would have you debate the powers and qualifications tomorrow.

Mr. Reynolds. Those that were anciently of that Other House, the old Lords, ought to sit here; and I hope you mean it so, that they shall not be excluded.

Colonel Birch. I look upon this agreement among us, to be the return of the prayers of the good people. I would have you now proceed to bound this House, before you talk of the persons, and take up this on Tuesday morning.

Mr. Goodrick. It is first most proper to give them a name, as you did your Chief Magistrate, and then dispute their powers.

Mr. Solicitor-general. It is fit to set bounds first, and then to qualify the persons.

Sir Henry Vane. There must be the thing before there can be bounds.

He took exception against Colonel Birch's notion, that the returns of our prayers are, to bound the people by setting a House of Peers over them. Observe that.

Mr. Stephens. It is most natural to set the bounds first.

Captain Baynes. If you call the old Lords, it is not in your power to bound them without their consent. If another House by you is to be constituted, then the case is different.

Mr. Neville. It is clear that the bounding of Peers is like that which was said of the King: it is like hedging the cuckoo.

The question was put in the affirmative, that the House will proceed, on Tuesday morning, to the bounding of the other House of Parliament.

Mr. Turner moved to change the word "bound," for "power."

Captain Whalley moved that the word "bound" may stand.

Mr. Trevor moved that both words be in, viz. "bound the powers."

Mr. Bodurda. I move only to consider the bounds and powers of the other House.

Mr. Bampfield. It is not yet determined by you that you will have another House under that title; else you admit the Petition and Advice. Make your question the bounding of the two Houses.

Sir Henry Vane. I see, now, we are for bounding every thing but the single person. Whatever you may agree upon, they must consent to it, if you set them up.

Mr. Bulkeley. Put it, the bounding of another House.

Mr. Goodrick. Let it be thus, that you will take into consideration the powers of each House.

But it was decried.

Mr. Onslow. There may be as much reason for bounding the House of Commons. We have seen how all have exceeded their bounds. I would have the question, upon bounding both Houses.

Major-general Kelsey. First declare what that House shall be.

Colonel White. If you bound them not before, you will find them boundless.

Mr. Trevor. I doubt you are going to set up another House; that is three Houses. Put it, to limit the power of the other House.

Resolved, that the bounds of the powers of another House, in relation to the former vote, shall be taken into consideration, the first business, on Tuesday morning next, and nothing to intervene.

Resolved, that Sir Henry Lee have leave to go into the country for a week.

Resolved, that Sir Henry Vane be added to the Committee of Privileges.

The House rose at almost two o'clock.

The Committee of Privileges sat till almost eight, in the House, upon the business of Walton, Serjeant Waller in the chair.

Counsel and witnesses were heard on both sides: yet they did not finally determine the business; but adjourned the debate of it till Thursday at two.

Resolved, at that Committee, that one that claims right to be an elector, cannot be a witness to prove another in the same predicament, to be a fit elector.

Sir Arthur Haslerigge and Sir Henry Vane took exceptions at it, and will move the House against it. (fn. 31)

Footnotes

1 See supra p. 312, 313.
2 See Journals.
3 The Other House.
4 See vol. ii. p. 279, note*.
5 See vol. i. p. 406, note *.
6 See supra, p. 126.
7 See vol. ii. p. 388, note.
8 See supra, p. 223.
9 See vol. ii. p. 427. This Act, which was repealed in 1664, provides that, in case of neglect by the Chancellor to issue writs, "The peers of this realm shall meet in the Old Palace of Westminster, and they, or any twelve or more of them, shall issue out writs in the usual form in the name of the King's Majesty, to the several sheriffs, &c." See Scobell's Acts, (1658,) p. 2.
10 In 1603–4, the first Act passed in his reign. The Parliament "recognize and acknowlege that immediately upon the dissolution and decease of Elizabeth, late queen of England, the imperial crown of the realm of England, did, by inherent birthright, and undoubted succession, descend and come unto his most excellent Majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm." See Parl. Hist. (1763), v. 53–55. "This was complaisance indeed," says Dr. Harris, "and this, together with their ascribing to him, in the same 'the rarest gifts of mind and body,' and acknowledging 'his great wisdom, knowledge, experience, and dexterity,' could hardly help rivetting in his mind his absurd opinions, and high self-estimation." Lives, (1814), i. 214, 215. "Jaques n'avoit pas demandé cela," says Rapin; "au contraire, selon toutes les apparences, en repetant plusieurs fois dans son Discours, qu'il étoit Roi indubitable par sa naissance, il vouloit faire entendre qu'il n'avoit pas besoin de la confirmation du Farlement." Histoire, (1725), vii. 33.
11 See the late Protector's choice of Lords, vol. ii. p. 468.
12 The Petition and Advice.
13 The Lords.
14 Mr. Bethel, to whom this speaker, "one of the Long Robe," (see supra, p. 247,) appears to he replying, denounces "the disingenuity of the court-party, being made up of household servants, officers, suitors for offices, lawyers (the corrupt part of whose trade cannot be maintained but by a corrupt government), Scotch and Irish members." He then represents "such as were most open" as "confessing plainly, that they were so far from bounding the Chief Magistrate, that they desired to give him as much power as any King or Prince of England ever had." Brief Narrative, pp. 343, 344.
15 The power of conferring titular distinction, Burke's "Cheap Defence of Nations," appears to have been assumed as inherent in the executive. It was not assigned to the Chief Magistrate by any of the projects of government during the Protectorate; and Oliver was very sparing in the use of this prerogative, for the creation of peers. He was indeed rather liberal in the bestowment of baronetcy and knighthood, and Richard and Henry each dubbed two almost-ephemeral knights, but Oliver created only two viscounts and one baron. "Charles Howard, of Gilsland, in Cumberland," (see vol. ii. p. 415, note*,) according to Mr. Noble, was "created Baron Gilsland, and Lord Viscount Howard of Morpeth, July 20, 1657." Oh the fall of the Protectorate and the Commonwealth, Lord Howard soon found another creator, and advanced a grade in the peerage, being "created, by King Charles II., Earl of Carlisle," probably in acknowledgment of some meritorious secret services during the royal exile. "Edmund Dunch of little Wittenham, in Berkshire," was "created Baron Burnell, by his cousin the Protector, April 20, 1658." On Richard's resignation, he "retired from the public scene," prompted by a peer's very natural "dislike to an absolute republic," and by another motive as natural, "the jealousy the Commonwealth-party entertained of him." When "he perceived the restoration of monarchy likely to take place, he again took an active part, and was chosen one of the Committee of Safety, in 1659. This procured a good reception for himself and his family from King Charles II. Probably he had some expectation of a new patent for his nobility, but he died a private gentleman in 1678." House of Cromwell (1787), i. 439–448, ii. 162. Mr. Noble has ornamented his second volume with "a fac-simile," of Baron Burnell's "original patent of peerage," discovered by "the late Lord Dacre," among "the writings in Sir Henry Oxendon's Evidence Room." The following is the preamble: "Oliver, by the Grace of God, Lord Protector of the Commonwealth of England, Scotland, and Ireland, the dominions and territories thereunto belonging, to all and singuler Dukes, Marquesses, Earls, Viscounts, Barons, Knights; Provosts, Ffreemen, and all our Officers, Ministers, and Subjects whatsover, to whom these our letters shall come, greeting. Amongst other the prerogatives which adorne the Imperiall Crowne of these Nations, none is of greater excellency or doth more amplifie our favours, then to be the ffountaine of honor, and those who, being of antient descents, have ample patrimonies for their sup portation, and have deserved of us and the publique, to assume to titles of honor and dignity, for a reward to them and an encouragement to others. Therefore," &c. Whitlock, notices, "Aug. 21, 1658. A Bill signed by his Highness, for a patent to make me a Viscount, and in Secretary Thurloe's hand to be passed; but I did not think it convenient for me." Memorials, (1732), p. 674. Such was the sober judgment of this learned lawyer, and such the short story of the third and last creation of a Protectoral peerage, only a few days before "the ffountaine of honor," for ever ceased to flow.
16 See vol. ii. p. 349, note †.
17 See ibid, pp. 448–450, note ‡.
18 See vol. ii. pp. 311, 315, ad fin. 450, notes*. He had been appointed by the Parliament in 1642, to be admiral of the fleet; recommended to them, as Mr. Godwin remarks, by "his known alienation from the Court, the flexibility of his temper, and his singular aptness for gaining the affections of men, especially in the ordinary and middle classes of society, added to his eminent talents and abundant wealth." Commonwealth, (1824), i. 192. The Earl, however, did not decline to act under Cromwell; and, till his decease in 1658, a few months before the death of the Protector, appears to have been ranked among the most favourite courtiers of Whitehall. "Cromwell seemed," says Lord Clarendon, "to be much afflicted at the death of his friend, the Earl of Warwick, with whom he had a fast friendship; though neither their humours nor their natures were like. And the heir of that House, who had married his youngest daughter, died about the same time: so that all his relation to or confidence in that family was at an end; the other branches of it abhorring his alliance." History, (1712), iii. 647.
19 Blank in the MS.
20 The Lords. See vol. ii. p. 388, 430 note *.
21 See Sir Arthur Haslerigge, vol. ii. p. 437 and note. See also "Of the Court of Wards and Liveries," Sir T. Smith's "Commonwealth of England," b. iii. ch. v. (1633,) pp. 232–242.
22 "There is," says Sir Thomas Smith, "a court, of the which, that I can understand, there is not the like in any other countrey. In the terme time, the Lord Chancellour, and the Lords, and other of the Privie Councell, so many as will, and other Lords and Barons, which bee in the towne, and the Judges of England, specially the two Chief Judges, from 9 of the clocke, till it be 11, doe sit in a place which is called the Starre Chamber, either because it is full of windowes, or because, at the first, all the roofe thereof was decked with images or starres gilded. "The punishment most usuall, is imprisonment, pillory, a fine, and many times both fine and imprisonment. The matters belonging most commonly, are by statutes:—as is taken away of maids within age, against parents' or guardians' will; all notable forgeries, counterfeiting letters or privie tokens; slandering of nobles, and seditious newes; all notable riots and unlawful assemblies; all notable deceits and all kind of cousenage, &c." See ibid, b. iii. ch. iv. pp. 223–231. "This Court," says Rushworth, "is taken little notice of, either in the Reports or other books of law. In the ancient Year-books, it is called, Camera Stellata, not because the Court is adorned with stars, but for that it is the great court. It was a glorious sight, upon a star-day, when the Knights of the Garter appeared with their stars on their garments, and the Judges in their scarlet; and in that posture they have sat from nine in the morning till five in the afternoon. And it was usual for those that came to be auditors, to be there by three o'clock in the morning, to get convenient place and standing. "Archbishop Whitgift constantly was for maintaining Magna Charta, that none ought to be fined, but salvo contenemento, and commonly in his sentence mitigated the acrimony of those that spake before him, and the slavish punishment of whipping was not heard of among them. But when this Court came to be delighted with blood, and nothing would satisfy some clergymen but cropt ears, slit noses, branded faces, whipt backs, gagged mouths, dungeons, banishment to remote islands, eternal separation from wife and children; then began the English nation to lay to heart their slavish condition, if this Court continued in its greatness." Hist. Col. (1706,) ii. 348, 350. This Court was abolished by an Act passed July 5, 1641. See ibid, iii. 112, 115; Parl. Hist. ix. 440–444. "The Parliament," says Ludlow, "proceeded to correct the abuses that had been introduced in the preceding years. Whereupon, the Star-Chamber, the High, Commission Court, the Court of Honour, with some others, were taken away; and the power of the Council Table restrained." Memoirs, i. 13.
23 Yet see L. G. Ludlow, supra, p. 145.
24 At his accession in 1603, they amounted to 77. On the accession of his son in 1625, they had increased to 97, consisting of I Duke, 1 Marquis, 37 Earls, 11 Viscounts, and 47 Barons. See Parl. Hist. v. 9–11, vi. 410, 41. See also vol. ii. p. 448, note *.
25 Dr. Knox, while he is ably exposing the courtly theories of Burke, and especially his description of "what he calls a true natural aristocracy," says:— "Most of the titles of nobility, and other civil distinctions were taken from war; as a marquis, a duke, a count, a baron, a landgrave, a knight, an esquire. The inventors of arts, the improvers of life, those who have mitigated evil and augmented the good allotted to men in this world, were not thought worthy of any titular distinctions. The reason is, indeed, sufficiently obvious., Titles were originally bestowed by despotic kings, who required and rewarded no other merit but that which supported them by violence in their arbitrary rule. "That the best and ablest men should govern the worst and weakest, is reasonable: and this is the aristocracy appointed by God and nature; But what do we mean when we say the best and ablest men ? Do we mean men of the best families; that is, men in whose families richer and titles have long been conspicuous ? By the ablest men, do we mean men who possess the greatest power, by undue influence, in borough and county elections, though the exertion of that power be strictly forbidden by the law and constitution ? Or do we mean men of honest, upright, and benevolent hearts; of vigorous, well-informed, well-exercised understandings ? Certainly the latter sort, which forms the aristocracy established by God and nature. This is gold: the king's head stamped upon it, may make it a guinea. The other is only copper; and though the same impression may be made upon it at the mint, it is still intrinsically worth no more than a halfpenny." Spirit of Despotism, S. xxv. (1794,) pp. 204–206. "I have sometimes," (says Lord Bolingbroke, as quoted by Dr. Knox) "represented to myself the vulgar, who are accidentally distinguished by the title of king and subject, of lord and vassal, of nobleman and peasant; and the few, who are distinguished by nature so essentially from the herd of mankind, that, (figure apart) they seem to be of another species. The former loiter or trifle away their whole time; and their presence or their absence would be equally unperceived, if caprice or accident did not raise them often to stations wherein their stupidity and their vices make them a public misfortune. The latter come into the world, or at least continue in it after the effects of surprise and inexperience are over, like men who are sent on more important errands." Ibid, p. 210.
26 See vol. ii. p. 446, note †.
27 See supra, p. 88, note §.
28 See vol. ii. p. 21, ad fin. Godwin's Commonwealth (1826), ii. 474. "The propositions," says Perrenchief, "that were sent to be treated, were the same which had before been offered to the king at Hampton Court. The Commissioners were five of the Lords' House, and twelve of the Commoners, and with them some of their Presbyterian ministers, who were to press importunately for their church-government, to elude the king's arguments for Episcopacy, and," adds the courtly Episcopalian, "only to impose, not to dispute their own." See "The Life of Charles I.," (1666), pp. 178, 179.
29 Blank in the MS. See vol. ii; p. 453.
30 Perhaps a pleasantry designed for Mr. Neville, who was, probably, now in the House. He had published, in 1647, a satirical pamphlet, entitled, "The Parliament of Ladies, or Divers Remarkable Passages of Ladies in Spring Garden, in Parliament assembled." This was presently followed by "The Ladies, a Second Time assembled in Parliament. A Continuation of the Parliament of Ladies," supposed to be "written by the same hand." See "Some Account of H. Neville," prefixed to Plato Redivivus, (1763), p. 5.
31 "General Monk to Secretary Thurloe.—My Lord; I have received your letter, dated the 17th instant. I am glad to hear, that the affairs of parliament succeed so well, though but slowly; I am sorry some officers of the army should trouble themselves with things they have nothing to do withall; but you need not doubt for the officers here. I hope we shall give you no trouble no way, but be satisfied with what his Highness and the Parliament shall settle. For news here we have none. All things are quiet and well."—See "Thurloe State Papers," vii. 623.