The Diary of Thomas Burton
22 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: 22 February 1658-9', Diary of Thomas Burton esq, volume 3: January - March 1659 (1828), pp. 403-435. URL: http://british-history.ac.uk/report.aspx?compid=36914 Date accessed: 27 August 2014.


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Tuesday, February, 22, 1658.

I came in late, so knew not what was before; I suppose only the orders of the day about bounding the other House. Divers persons had spoken to it.

I found Mr. Gewen speaking; and it seems his aim was at King, Lords, and Commons.

Colonel Gorges. The new Lords are fittest, and an honest cobbler better than one hundred old Lords. I would not have them hereditary.

Mr. Stephens. Since the last day's debate, I have met with this objection, that those that are for the old Lords are for the old line. I do not take the line to be fundamental. Nothing is fundamental but the will of God.

By the statute of 14th Elizabeth, (fn. 1) and by other statutes, it is clear, that the Crown may be limited in all things. The declaring of the line was always subject to the power and disposition of the Parliament; but it is new light to me, that ever one House did, or that one House had power to put down another. I should be very loth to hear such doctrine.

The ground why the Lords were always called to sit in Parliament was, because they had the greatest share in the kingdom; but it is not so now. Abbots, Priors, and Bishops, had one-third part of the kingdom, the Lords another; but now the Commons have obtained a larger interest in the land, and therefore they should have a greater share in the Government. I would not have the two Houses fall out among themselves. Let us tie ourselves to some reasonable rule.

Two Houses was the ancient foundation. Lords and Commons in all ages have had the Government, with the single person, and carried the power of Parliament.

Restore such old Lords as have not forfeited, and add some new ones. Their number is part of the power. I would have the number and the persons themselves, as the King was moved they might be, by approbation of this House. Their power the law will regulate.

But the great thing is the negative voice. A negative voice in them, generally, I think not fit; but all Acts are not of the same nature. There are public Acts and private. The private Acts may pass without them; but, if the House of Commons do declare any Act to be a public Act, if difference happens that cannot be reconciled by conference, then let both Houses, pro hac vice, sit and vote together.

I shall never give my consent to put that yoke upon ourselves of this other new House; where, I hear, there are some sit that have endeavoured to. make the greatest bleach upon our liberties that can be, When you have set up them, for aught I know they may pull you down. I may be made a slave by the sword, but I will never make myself a slave.

Some in that House have carried elections this Parliament, very strangely. (fn. 2) We know not what they may be led on to. Some have the long sword by their side, and perhaps may help to hew you down and pull your House over your ears.

Mr. Pedley. This nation has been a long time in a desperate distemper, and you ought to use as much reason, wisdom, and moderation in this, as may be. Consider the condition of the nation, what at present they are able to bear. The laws will well fall in with the frame that you propound; a monarchical government, by a single person and two Houses of Parliament. Look at your ancient records, Hen. IV., Hen. VI., Ed. IV., Rich. III.s time. You will find how that, in cases of necessity, the King and Commons together might have made a constitution suitable to the good of the people.

You have propounded that you will not let them appear abroad, till they be well dressed. I would have you make something the matter of your debate; as to limit the power. Begin first with this, that they shall not be hereditary.

Mr. Buller stood up and read his speech.

You have now set up another House. It is not in your power to limit another House. We are in another House. We cannot limit them. They are judges of their own members and privileges.

He was laughed down.

Sir Henry Vane. I move that the worthy gentleman be not interrupted, seeing he is pleased to bestow his pains among us.

Mr. Buller went on; but I know not, nor any body else, what he would be at; but that by our votes we had excluded our bounding them, and must ask them leave, whether they will be bounded or no.

Majer-general Kelsey. It hath been argued that you should have a House of Peers, and that is that House you are now a bounding of; and if it be so, you must ask them leave whether they will be bound or no. Whatever resolution you take up for bounding them, I can hardly believe they will consent to it. Yet, if they sit there by an ancient right of co-ordination, I am sure you cannot take any thing from them without their consent.

It is hard to limit men's power; they will rather strive to enlarge it. I have found by woful experience, that power is willing to enlarge itself, but never to be restrained. If they have a right still to sit, then the law which took them away is no law. If they be another House in being, if they have a legal right, your bounding is out of doors.

If the Long Parliament had no legal right to take away the House of Lords, then it must be granted they have a right of sitting. Otherwise they have no right, and surely that Parliament has as much power to take away them as well as the kingly government. (fn. 3)

I find that law of 14 Elizabeth can cut away a line. For merly I have heard the Long Robe insist upon it that no law is of force but what is made by the three estates. If the law was not good which took away the Lords, because the Lords did not give their consent, then the law which took away the king is not good, because it was made without the king's consent. It will then as naturally follow that Charles Stuart is as rightful king at this day as the Lords are rightful Lords. And if it be objected that Charles Stuart has forfeited his right, there are of that line (fn. 4) that have never forfeited it. So then there is no foundation for any thing that hath been done since. All hath been a mere usurpation of the House of Commons.

In doing this, we shall draw all the soldiers upon us, and all purchasers of public lands, and a great deal of confusion. And I do desire to see how this dilemma can be avoided, and where the difference is, that they could make a law, to one end good, but, through insufficiency, not to another. To begin upon such a foundation will inevitably shake yourselves.

I wonder how it can be urged that the House of Lords sit upon a legal right. Sir, the Long Parliament made many laws. Either they are of force or not. If they be, why do we dispute them ? If they be not laws, then the Petition and Advice is no law. The Petition and Advice is a thing I was never for; I never gave my vote in it, yet is it a law and in being, else, I am sure, the Scotch and Irish members cannot possibly have power to sit here. (fn. 5) I wonder any such person should argue so, seeing they sit only upon that foot.

Either the Petition and Advice hath power and authority in it, or it hath not. Consider that first, whether that be a law. I pray, let no member sit here that hath no right to sit. If Scotch and Irish members sit upon no right, it may afterwards reflect, to make void your law. I speak not against their right in equity to sit here, (fn. 6) but only by way of argument's sake.

If then, the Petition and Advice be a law, before you go any farther, you must consider of it as in being, and then think how to limit and bound the Other House; and then you must have their consent to the bounding of themselves. These you may limit and bound; but if you declare the old Lords' right, those you cannot limit. They will tell you, they have and know the bounds already, they sit upon as good a law as you do, and they will not be bounded by you.

Divide the lands of the nation into twelve parts. The Peers at this day have scarce a twelfth part, when they had two thirds; yet they must have a co-ordinate power with you. It was reason that they had a co-ordination. The same reason is not now. Many gentlemen now sit in this House of Commons, that have as good estates as any of those Lords. You shall find that forty-two of them have not forfeited. (fn. 7)

If you go this way, I doubt you will lay a foundation for Charles Stuart's coming over. The other Lords you need not fear. I would have in first place, what you mean by this Other House, else you shoot at rovers. It is a vain thing to bound them. You are bounding, and do not consider what it is you would bound: till then you run but a loose bound.

Therefore, let us debate what this other House is we intend. If it be a Lords' House, say so. If it be the other House now sitting, pray say so too.

Major Beake. Because the question is perplexed, something else ought to be previous. Let it be your question before you bound, whether the old House of Lords be in being, or whether this House now sitting have any evidence, or the Other House shall be the House of Lords.

Captain Hatsell. We talk of going step by step; but, if we vote in the old Lords' House, we do not only go by steps, but we make a pair of stairs for Charles Stuart to run up to the top, into the room of the single person.

I move, therefore, to bound in this House now sitting.

I would have it the first matter of your debate that the Other House shall not be hereditary.

Mr. Nathaniel Bacon. You are not now constituting of any House; but declaring limits and bounds of that Other House which you intend shall be parliamentary with this.

You cannot make any bounds fit for all persons. If you vote the persons first, you can never set their bounds, for they must vary, according to the persons. If you respect the persons in the House now, you are led into a wilderness. It may fit the persons now, and not fit them afterwards.

It has been propounded, as to the bounds, whether those that sit in the Other House shall sit there hereditarily, or by succession. I think fit to begin there. I would have you first declare what rights the old Lords did legally exercise. Examine those powers.

I would have it considered, that which is propounded, that it might not be hereditary. And, as to the first, I think the old Lords never sat there hereditarily. They never sat by birth, but according as they were called by the king's writ. They were sometimes called, and sometimes left out. No Lord could challenge a right to sit there, without a writ. It was never intended that children, fools, and madmen, should sit there. They were not called, for those that sat there were called to advise, and they could not advise that were not qualified for it. Is every man fit to advise a king ? the writ says "advise." It is against reason that unfit persons should be called. Therefore, there was no power or right to sit there by inheritance, but by election. It may be, they had it for life; it may be, not so long. Some were called one Parliament, and left out another.

I would have them to be elective, and to be no longer than for life, at the most. Therefore I shall propose, as the fittest bounder, that they may sit by election.

Mr. Hanmer. I move, that as many as are now called by his Highness may be approved on by this House, and that as many of old ones as are capable be called in, and approved likewise by this House.

Mr. Trevor. To the order of your proceedings.

You are pleased to order that the Parliament shall consist of two Houses. This day you have ordered to bound it The best rule to pursue is, what is for the safety and good of the people, which should be the rule of this debate.

There is a necessity of bounding those powers which have been formerly exercised, which did consist of two parts, the judicial and legislative, that our late revolutions have awakened us to care for. When our powers are agreed on, we shall best know to what persons to fit them.

We are to consider first, how far it is bounded, and then it is fit to consider what boundaries, in reference to the people's safety, should be given to them; and first begin with the judicial part.

Mr. Knightley. When a point is before us, we may discourse upon something. So long as we are in a wide field, and never a gap open, we shall ride round and round and never get out.

I second Mr. Trevor's motion to begin with the power of judicature in that House.

Colonel Thompson. That which is moved and seconded, is that they shall not be hereditary. Though I was not at taking away the House of Lords, yet I believe they are taken away.

You are told that they were formerly considerable, and had once the greatest interest It is now told you that most of their sand is run out into your glass. (fn. 8) The Lords' House is melted down into the Commons. If you set them over you as high as formerly, I doubt your sand may run into their glass.

But you are resolved of another House, and some would have it hereditary. I would have it first considered if they shall be hereditary; I am against that opinion; for they may be unfit, by poverty or want of bread; and, being judges, they may be corrupted. I would not have them to judge in any thing between commoner and commoner, or that concerns a commoner, until the cause be transmitted to them from hence, as in writs of error, &c. I have known judgments suddenly given in that House, against decrees in Chancery of sixteen years standing.

I would have the persons named by the Protector; and the approbation of this House to every single person that is named to sit in that House.

Mr. Jenkinson. I would begin with the judicial power. There is less danger in that than in the legislative. It is nearest to come to your end. But to begin with the hereditary is to begin with that which is not so dangerous.

I would have it referred to a Committee to consider and provide you somewhat that may bound them in that point.

Sir William Wheeler. I am against referring it to a Committee. It is too great a work to be done by any but by the House itself.

Lord Coke says, that any called to that House have a feesimple right to sit there. (fn. 9) Be he poor or weak, he may sit.

Therefore, first consider whether they shall be hereditary.

I am against their being hereditary. It will draw after it all inconveniences and dependences that formerly attended them. Three parts in four deserted in the last war. It is for the safety of the nation to declare they shall not be hereditary.

Make that your first question.

Sir John Lenthall. In the beginning of the debate, I was for opening the doors to such of the nobility as have been faithful to you, and all persons of the Other House that were capable. I am not convinced as yet of the contrary.

Their merits in ancient times were great. Great benefits we have had by the old Lords. Magna Charta was obtained by them, (fn. 10) in such a time when the Commons scarce durst ask such a thing from the King. The assistance they gave in the late wars, was likewise very memorable. I shall come now to what they obtained from the late King, whereof Magna Charta was but a counterpart.

If this House be not hereafter so well qualified as it ought to be, then will this screen (fn. 11) be of great use.

I am for another House; for suppose religion should be in question, and if the single person be alone, he must pass it. If men of strange religion should come in, and if there should not be a screen, our religion were gone. (fn. 12) Our laws may be also destroyed by the same rule. I move to examine the power they have by the Petition and Advice. Let the limitations there be the rule; or, if those be not restrictive enough, bound them farther.

Mr. Bodurda. To the order of proceeding.

I move to begin with the question, whether they shall be hereditary.

Mr. Cartwright. It is not proper to bound the Other House, until you say what it shall be.

I move to consider first, which of the Houses you will have, and then fit the powers and bounds. Your powers, haply, may not fit the old House of Lords. By the Petition and Advice, the Other House have no legislative power given them, and if you bound them upon that point, you will give them something they never had.

Mr. Attorney-general. I move to make it the ground of your debate, that they shall not be hereditary. The old Lords had clearly an hereditary honour, but hereditary right, as to session in Parliament, they had not, without being called by writ. (fn. 13) Formerly, they had no stinted number. Anciently, three Lords made a House, and the absentees sent their votes by proxies.

Mr. Young. I am sorry to trouble you; but you are well minded, first, to consider which of the Houses you will have, old or new.

I am perplexed how to give my vote. If old Lords, it may be, I shall give my vote that they may be hereditary, and have a negative. But if the new Lords, that are your creatures, I shall give them neither.

Sir Thomas Wroth. We are here come to make our condition better than it was before.

It was not so in Queen Elizabeth's time, that three made a House of Lords. Of late there was packing a House of Lords. They were the King's creatures. Let us go as far from the old constitution as we can. Take in some of them that are capable. Let us nourish the best flowers, and husband them for our best conveniency.

I would have the hereditary question go first, and then the judicial. I am against hereditary lordship, for the reason why his Highness refused king; (fn. 14) because he knew not what he that came after him should be, a wise man or a fool. I see plainly here is a great inclination to come round again. It is to bring in old Lords by degrees, and then, consequently, one who I hope my eyes shall never live to see here. (fn. 15)

It is fit we should have a kind of check upon us. Many laws passed, in the late Parliaments, very lame and imperfect.

On the other side, to have another House; that will be a dishonour to the nation. I shall scorn it as much as any man in the nation. If we have a House of mean people, we shall contemn and despise them.

A poor judge is dangerous. It is hard for a poor man to keep a good conscience in so high a place. A man has two hands, to take from whom will give most.

Put the hereditary part first to debate.

Mr. Bodurda offered the question, whether the persons called to that House shall transmit to their posterity an hereditary right of sitting in that House.

Colonel White. I move not to admit it that they now sit, for that is a granting the other question.

Mr. Jenkinson. I move that the question be, if they shall only have a right of sitting there for life.

Sir John Northcote. It is apparent the old Lords did not sit by an hereditary right. (fn. 16) You may go upon your old grounds and yet preserve that.

If you give them a negative, it will be clear that the single person shall have two negatives; for he shall have them his own. Put the question whether the other House shall consist of the ancient nobility that have not forfeited their rights.

Mr. Raleigh. It appears not to me but the old Lords had a right of sitting by inheritance. A letter was sent from the Lord Keeper to a Lord —— (fn. 17) that was called to the House of Lords, notwithstanding his writ, to forbear sitting; but he prayed judgment if for any letter he ought to forbear. It resolved he ought not, which proved it hereditary.

I would have it first put, if it shall be hereditary.

Mr. Knightley. A man may be worthy in one Parliament, and unworthy in another Parliament. I am not able to give a Yea or No to hereditary; but if you say that their claim is not hereditary, I can give my vote. Some, I believe, in the Other House would refuse hereditary, as they do a negative, if it should be given them.

Mr. Onslow. I am afraid we are in a wood. No wonder the nation is puzzled, when the wisdom of the nation is puzzled in this place. Once out of the way, we see how hard it is to get in again.

Whether do we debate here upon a supposal that we are boundless and without limits. I hope, while making limits for others, we make not ourselves boundless. If so, we shall leave them very little power. I know it was once esteemed our right to vindicate our own privileges, not to take away those of other men.

I shall not debate whether to have old or new peers. It is enough that we do something to bar the old lords of their rights. None of us are attornies or solicitors.

It is pressed, the King can do no wrong; I hope we shall not do wrong to any, much less to a whole body of a House of Peers, to take away their rights. You have a difficult work in hand. Put no question that will involve us in a wrong. We are with freedom ourselves.

We are called to consult with nobles and great men. We have had no complaints from them. They cannot properly complain to us. I suppose they complain to their own House if any such thing be. I know not why we should take notice of their privileges. You cannot create power. If any thing amiss in their power, why may they not join with you, as formerly Peers have done, to limit themselves ? Why may we not consider a House in being, and consult with them, in limiting and bounding their own persons and powers ?

Go on with your law, and then talk of limits and bounds. Leave it to the law to interpret their bounds.

Sir Lislebone Long. This House is not so bound up, but if any evil be in a constitution, this House certainly hath power to remedy it.

I cannot understand their arguments that say the Lords were not hereditary. Whether it be for the good of the people that it should be so, or not, may be a question. I find in some Parliaments a whole House called, and all left out the next Parliament; but this was in times of troubles and difference between York and Lancaster, when the nobles were abroad in the wars.

The case cited was the Earl of Bristol's, and by judgment of the House of Lords, he was admitted. (fn. 18)

Another was Lord de la Mare, disabled by Act of Parliament, and yet his son claimed it, and was admitted to his right. (fn. 19)

I can by no means apprehend that you should first define the Houses, and leave the powers to be determined by law This is a leaving of fuel for posterity. You must determine the powers. This may well come under this head, that the power shall not be hereditary.

It is fit what power they shall have should be stated here. They anciently claimed very large powers, and not all for the good of the people. They have judged of the lives of the Commoners and of property. It is not for your service that they should have that power, or that the bounds should be so uncertain.

Without declaring my own opinion in the case, make this your question; that a member sitting there shall not give his heir an hereditary right to sit here.

Where the old Peers were called, if there was no limitation in it, they could not sit otherwise than pro hac vice; but if a limitation were in the writ, then they might sit according to that limitation.

Colonel Terrill. I am of opinion that the old Lords sitting there, were not hereditary. They were called by writ as we are, and could not sit longer than Parliament lasted; but this happened where a patent was made to a Peer, and the heirs male, of his body. Therefore the lords that claimed, had a right, and whether that right were taken from them I shall spare to speak of it, till the debate come properly before you.

Sir George Booth. I shall be bold to second this question: to consider of the persons before you consider of the powers; for what is more natural.

Those Lords that have done you service shall be no Lords, and those that have done you no service shall be Lords. This is somewhat hard.

Colonel Mildmay. The debate of this was waved before, and you resolved to consider the powers first, and then the persons.

Mr. Manley. I hope you are so well founded, as to your own sitting here, that you want all the blemishes that former Parliaments have had.

Let us go on clear grounds, that every man's judgment and conscience may be satisfied. We find another House, and if his Highness had not called them, he had not done his duty. Unless you bring them to be a House of Peers, I see no power you have given that is affirmative, but only negative.

I would have you first assert their powers. I find them not in the Petition and Advice. The debate has admitted a right in this House to determine the powers. To follow the tract of the law will lead you into many inconveniences. The Petition and Advice is not large enough for you to debate upon.

Mr. Turner. I know no way to proceed in this, than as you did concerning the single person. The same must I say now.

If it be upon old Peers, then I question whether it be proper for you to bound them. If upon a new House, then it is proper to bound them.

But declare first, whether you are upon a constitution or a restitution. I doubt your vote looks back as well as forward. The word, be, goes a great way.

Sir Richard Temple. I would neither look at one House nor another; but would have it the matter of your debate what these persons shall be, under such bounds and limitations as you shall agree them; what the persons shall be that this House shall consist of, under such bounds, &c., as this House shall agree.

Colonel Cox. I have been always jealous of this other House. It was, first, in the last Parliament, that the Protector should nominate, and we approve; but the approbation slipped out, I know not how; which hath since made me think of the tale in Æsop of the Fox, who desired only to get in his head, and he would after bring in his body.

I am very well satisfied that there should be another House; but not with your question, that the persons should first be considered.

Sir Anthony Ashley Cooper. If you would have us all of one mind, your question must be as clear as may be. The first question ought to be, whether there be a right or no; for, where there is a right (in all the actions of a man's life), there is a duty; and then matter of convenience or inconvenience is out of doors. Two rights are offered to be in being; one of the old Lords, the other of the other House, or new Lords, who have already a vast power in their hands, and dangerous to the people. Some tell you the right of one House, some of another. I offer it to you that it is not fit, and if it may not be dangerous to prejudge or preclude either of their rights before you agree to the persons. If there be a right, then all their boundaries must be offered to them, whether they will pass them or not; and I have seldom found men in power to part with it upon easy terms. It is therefore necessary to be cleared, how far we are to deliberate and restrain them in this point.

Seeing great rights are claimed on both sides, let me be satisfied in that point, first, before I can give my vote. The consideration of the persons is most natural.

One while it is argued for right, pro and con, and persons differ; and then they fly off to conveniency.

Matter of right and of conveniency are two different things. Therefore, now take into consideration these two claims. Consider first, whether the old Lords or new Lords have a right or no, and then go on to bound them.

Colonel Birch. I was loth to interrupt any worthy gentleman, though I might have done it. They speak against your order; that you should first consider of the bounds.

I am still of the same mind, that you must proceed upon the bounds. The matter of right will come in upon the bounds.

I desire you to keep to your order; and lay it, whether those that sit in the other House, shall sit there by an hereditary right.

The question was a question propounded upon hereditary.

Mr. Swinfen. I shall speak to your question. Scarce any gentleman has spoken ad idem; because something is to be cleared first. The same reason that led you before must lead you now. There are two Houses in debate. It is, therefore, necessary to have a previous question, whether the Peers be excluded.

Those that da debate for old Lords, must say, hereditary; those that are for the other House, must say it is not. This must be cleared, else we cannot freely vote. I am for the old Peerage, and they were as hereditary.

I would have your question to be upon, who shall be members of the other House, and adjourn this debate, because it is late.

Mr. Godfrey. I hope, without expense of time, you may come to a question. I find the same difficulty upon you now as was the other day, when you debated about the two Houses. On one side the old peers, on the other, the other House, by the Petition and Advice.

Here are two rocks,

1. The asserting the ancient Peers.

2. The asserting of the other House.

You then found out a prudential way to avoid both those rocks, by neither excluding the one, nor asserting the other; and your vote seemed to satisfy the sense of the House.

I see the same tenderness now, by a side vote, to exclude the right of the old Peers, or assert the new, by the Petition and Advice. You may word your question, to be the subject of your debate, that it be a part of this bill to debate the persons sitting in the other House of Parliament, to have an hereditary interest and right to sit and vote. By this you neither exclude the right of any, nor assert the right of any Parliament.

Mr. Goodrick. I hope, before you make your hedges, you will set your stakes; that you will first declare whether the old Peers have a right to sit there that have not forfeited their right.

Mr. Speaker propounded that question, whether the ancient Peers that have not forfeited, have right to sit in the other House.

Sir Walter Earle. We are all bound to maintain their rights. If you lay that aside, you lay aside their inheritance. You bring them into a worse condition than the poorest cottager in England, if you take away what is their inheritance. That is your proper question. I question the validity of that vote that called them useless. (fn. 20)

Mr. Gott. They found the unsuitableness and inconveniency of a Commonwealth with the constitution of the people. Then they came to a single person and a Commonwealth; but neither of these were unius seculi. The ancient constitution we are again come to; a single person and two Houses of Parliament.

I do desire not to declare the persons now sitting in the other House, nor exclude the old Peers. Leave yourselves at large. A many great men are in the other House. I would have some nobles. Our writ is to consult with great men and nobles. There are some that have a good sword. I would have some there that have a good purse; and both together will make a good balance. Nature and necessity oblige us to determine upon the persons; what persons the other House shall consist of.

The question was propounded according to that motion.

Mr. Trevor. I am satisfied that the other question is not clear. I am not bound to put such a question. When in my conscience I am satisfied about the right, but not satisfied about the practice, the consequence will go very far against safety. I doubt if you let in that, that it will not be practicable.

If you please, adjourn the debate till Thursday.

Captain Hatsell. I am not ashamed to say, I am afraid, when I am afraid. If you let in this question, the consequence will be very dangerous. What hath the son of Lord Goring (fn. 21) or Lord Capel (fn. 22) done, to forfeit their right. If you admit a right, there is no keeping them out.

Mr. Knightley. If we be under a force, let us adjourn ourselves, and sit no longer. Here is plain threatening.

Mr. Turner. This is a plain threat. I am not afraid to do right. Let us go plainly to it. If it be their right, let us not be ashamed to give it them. I have no fear upon me at all.

Mr. Jones. I move to put the question as to the right of the ancient Lords.

Mr. Disbrowe. I move to adjourn. I am not free to give my vote upon this question of right, at present.

It seems the other party were at a loss, and prayed to adjourn the debate, and it was adjourned accordingly.

The House rose at one.

Afternoon at three.

The business of Mr. Streete and City of Worcester (fn. 23) was taken into debate.

Mr. Finch (fn. 24) was counsel for Mr. Streete, and Mr. Latham for Worcester. Mr. Streete and Mr. Finch sat together at the bar.

The petitions, on both sides, were read. The charge was for delinquency and common swearing. A great many persons were present.

Asserit A, negat. B, point blank contrary.

Serjeant Waller in the chair, demanded whether they would proceed upon the election, or against the person first.

Mr. Latham. We will proceed against the person first, and that, inasmuch as he was a member. We expect we shall prove it well. If he had only lived in the garrison, it had not been enough; but we shall prove him in arms, and if my in structions fail not, it is as pregnant proof as ever came before you.

Mr. Smith. I know Mr. Streete. When the city Was a garrison, I have seen him, ride with gentlemen, well mounted, with pistols and holster. This was in 45, when the garrison was for the King. I believe those gentlemen were of the King's party. I have seen him ride so, alone, to and out of the town. I never saw him walk or talk with any persons but those that were, and are disaffected. I think it was Sir William Russel (fn. 25) he was in company of.

Mr. Finch. Under what captain was you listed, and marched ?

He said he could not remember.

Do you not contribute to prosecute against Mr. Streete ?

He answered, We are all as one man, but confessed upon the matter, he doth bear part of the charge.

Mr. Knightley. Was this information ever given to Committees, or Major-generals, either upon decimation or sequestration?

Answer. I was never called nor moved to complain, nor ever did complain. I never heard of any complaint. If he had sate still, I believe he had never heard of it, but he was puffed up with ambition.

Mr. Finch. Were the horse and arms his own?

Answer. He was able to have such a horse his own.

Did he do any duty as other of the King's soldiers did ?

What number were there that he rid out with ?

Were any quarters allotted him?

Whether rid they rank and file?

Of what age was he when he rid with this company?

Answer. Much about twenty.

Mr. Latham. If he was but sixteen, it is enough to bring him under compass of sequestration: malitia supplebit ætatem.

Mr. Finch. Did you not yourself ride, and in arms, with the King?

Mr. Latham. It is not fit that he accuse himself.

Mr. Finch moved contra, that it was proper; for birds of a feather might know more.

Mr. Finch released the question.

Witness saw him but twice in all, once in company, and once alone.

John Butler. In the time of the King's garrison, I have seen him several times come on a good horse into the city, from his own house, with pistols, holsters, and sword. I was a prisoner. Several times, when the trumpet has sounded, I have seen him amongst their company in the street. I cannot justly remember time.

Thomas Eaton. I have seen Mr. Streete three miles from Worcester, in the month of June, about the middle of the war, before the great battle between Waller and Ashby. (fn. 26) There was a great sickness at the time. On a Lord's day, I saw Mr. Streete come to church as other officers did, with a sword. It trailed on the ground. Sir Gilbert Gerrard was governor. I have heard he had a house very near there. He and his sister were there. No soldiers were there at that time.

John Harthfoorth. When Worcester was a garrison for the King, my master sent me to the wall to clear my musket.

Mr. Streete, with several gentlemen, some of the King's officers, coming by, he said, he would see this soldier let off his musket. He threatened me, till I let off the musket.

I have several times seen him wear either sword, or rapier, most commonly. I cannot say he had then a rapier or sword.

Mr. Collins (a member) was produced to prove Mr. Streete was taken a prisoner by the Parliament, and exchanged for another prisoner.

It was moved that they might withdraw, but offered that the Colonel ought to be present to take examination. It was fit all should hear that they may know how to answer.

Mr. Collins. In May, 46, we were commanded to march under Colonel Morgan and Colonel Birch to Ombersley with all the forces in Worcester. In our way we met Mr. Streete, and other persons of the King's army, and took him prisoner. He was exchanged for a kinsman of mine. We could not have him released for two soldiers, but as soon as ever Mr. Streete was taken, on their own accord, they sent to exchange him, and my kinsman was released, and he released.

Mr. Finch being asked, if he did accept of the exchange, answered, he did not accept of the exchange, and insisted still he was not in arms. Mr. Collins was a Committee man, yet did never prosecute against him.

Mr. Streete. I was a prisoner under Colonel Morgan, but I could never accept of the exchange, for I always insisted upon my innocency; I have testimonials under the officer's hand.

Mr. Latham offered now to prove, that he kept company with cavaliers; but that was taken off presently as a thing not material. The counsel said they only offered that as a circumstance. It may be all the town was disaffected.

Richard Duce. In September, 57, I heard Mr. Streete swear, twice or thrice, by God, at his own house, without any provocation at all. I came to demand money of him for highway, as being overseer.

Thomas Duce, a minister. About December or November last, I heard him oftimes reiterate, by his faith and by his troth. There were by, Mr. Moore and his son.

Mr. Simon Moore, a minister. (fn. 27) Some civil carriage has been between Mr. Streete and me. Mr. Streete came to give me a visit, where, in civil discourse, it was ordinary with him to swear by his faith and by his troth.

I heard that Mr. Streete had a mind to stand. Some Christians intreated me to interpose with Mr. Streete to prevent it. I denied it, but being prevailed with, I sent to a special friend of Mr. Streete's to acquaint him that we wished he would not stand. I said, I fear he will do himself more harm than good. I heard one say he had been in arms. The man that first accused him was an honest godly man, Richard Hodgkins.

This Hodgkins told him all that I had said. That night Mr. Streete came to my house to give me thanks, as he said, for my civility. He told me he had never been in arms. Then he swore by his Maker that he would sue and undo that man that should give evidence against him.

Then he said he would steer by Mr. Collins's directions. He was in the next room, and I said it is well, you may meet; but as soon as he heard Mr. Collins was there, he went away in an anger and would not hear him.

Mr. Moore gave an account of himself, that he had been faithful from the beginning. He never prosecuted against him for swearing. That is an ill way for a minister to take. He has reproved him, and did not consent to his being chosen. He bears no part of the charge to prosecute.

Mr. Richard Moore. I have heard him often, since October last, usually swear by his faith and troth.

Mr. Latham. Though the law take off the punishment in point of time, yet I hope it will not take off the crime before you.

I shall offer nought at present to the election, but only rest it here for the present.

1. As to his delinquency.

2. As to his swearing.

Mr. Finch. This gentleman stands impeached of the highest crime that can be brought against any man in England.

The evidence ought to be very clear. We shall not need to support ourselves by the weakness of their evidence. Yet we shall not forgive it them.

I do not call Smith to an account for want of circumstance as to listing and quartering; but as to the time of 45, and Sir William Russel, I shall except his going to church with a long sword with his sister. I hope that will not stick with you.

When a man comes to demand a petty tax, I leave it to your discretion whether a lawyer and discreet person will swear himself out of double the tax.

If the words were at length, "By my faith and troth," it will amount no farther then bonâ fide, or in veritate. The angriest interpretation will not do it.

If, for this, a member should be thrown out, for such a slip of frailty, it would be an easy thing to draw many members to such a slip. I shall leave that to your wisdom.

I shall only answer what sticks most: the evidence of a member. He was called from the University, to manage the estate left him by his father, to this place, where we find him thus prosecuted. We grant he wore a sword, both in the town and out of town, but never employed it against the Parliament.

Going once out of this city, he light upon, or was rather light upon by some soldiers of the Parliament. He refused the exchange, and was constrained to live there.

He that dwells in Mesech, (fn. 28) must keep company with such; yet Mr. Moore was pleased sometimes to keep him company. I shall reserve my examination, as to matter of law, till afterwards.

He was but fourteen years old when the war began. I must crave Mr. Moore's pardon to reflect a little upon him, to disable his testimony. He was born in October 25.

Mr. Thomas Streete. About the year 41 or 42, he went to Oxford. He came from Oxford in 44, his father was dead before. His father and mother made him executor. He left Oxford, as I have been informed, because he would not take up arms there. I have inquired of two hundred that never heard he was a soldier.

Mr. Purdo. I never heard that ever he was in arms against the Parliament.

Mr. George Streete, his brother. I have seen money disposed of that my brother had given to the Parliament soldiers. He procured me a horse and furnished me with arms the year before the Scots came to Worcester, and said that he would assist me. He said, he would not come nigh that party that came to Worcester, and advised me not to come near them; for, he said, all that came to them would be proceeded against as traitors.

Another witness. I have known him from his cradle, and never knew him, nor heard of him, that he was in arms. I have been often in his company and never heard him swear an oath.

Mr. Moore preached Job 27 last verse, and declared that the people should clap their hands and hiss at them. They were gone out like the snuff of a candle. Another witness said the same that the other said of the minister, clap your hands, &c.

Mr. Finch. Take notice of this only; that he was always a person well affected to the present government. All our witnesses have been in arms for the Parliament.

Mr. Moore, after a long pause, of his own accord, explained that he did preach on that text.

I was inciting all persons to be faithful to their trust, else God would cast them out; but I named not the Parliament. There are some worthy persons in this assembly that heard me.

Richard Hodgkins. Mr. Streete sent me to Mr. Moore, who said, if Mr. Streete stand, I wish I had known two days since, before I was otherwise engaged. I would have engaged all my friends, but rather than be a hindrance to him, I will be out of town that day.

Mr.—— (fn. 29) . Mr. Streete sent me to Captain Collins. He said he would not appear against any townsman; but would take his horse and go out of town rather than hinder him, and for aught he understood, Captain Collins did well approve of his standing.

Mr. Finch produced the certificates; but Mr. Latham excepted that the House would not take that for evidence which would not be accepted in any court.

Mr. Finch. It is but a concurring testimony to what Captain Collins has said.

Mr. Latham. You will not accept of paper evidence against that, viva voce.

Mr. Knightley. The evidence you take here must either be viva voce, or upon record. I would not, for danger of the precedent, accept of paper certificates.

Mr. Finch. I am content to wave it. A petition of three hundred against a petition of thirty-five, so we have vox populi along with us.

The witnesses are angry, and partakers of the charge. I hope the testimony of one godly person will not carry all with you. We have offered you something to prove him to be an eager witness.

After Mr. Streete's being at Oxford, he retires to a garrison for safeguard of his estate.

A man then, (fn. 30) to save his sustenance and estate, may be found in evil company, and not be guilty.

How could a man demean himself more innocently. He joins his devotion with the ministers that were praying for you; comes with a sword, and therefore must be an enemy.

We cannot fear that a member heard by his peers, shall not be found innocent.

We cannot pray other than that we may be dismissed with costs, if you would discourage such as inform without cause; that it may not only be exemplary in our acquittal, but in our reparation.

Mr. Latham. This gentleman hath not only done the part of an advocate, but of an exquisite orator, (fn. 31) and, under his pardon, a judge too, to direct you what to do.

I hope you will not discourage persons that complain to you, for the advantage of the public.

We are before you, as the proper judges.

If they had matter, they would have laid aside their deviations. I submit it, if it be not as full a proof as can be.

True, by the Act of Oblivion, they are pardoned, but it is your law in being that does disenable; viz. the Petition and Advice, and an Act of the Long Parliament.

The proof is as full as can be expected, unless we should rake amongst those that have been your enemies.

We have proved him several times in arms.

An exchange is not usually offered for an adversary, but for such as they know to be a friend.

It is notoriously known that no man durst wear a sword in a garrison, but such as was a friend. He was seventeen years old at Edgehill fight, and twenty years, when at Worcester. He might at that age have done as great an offence, and been punished as highly as if double his age.

As to the discharging the musquet, if he had not been a friend to the garrison, he durst not have said so to a soldier.

The fact is plainly proved, to make him incapable.

For that of swearing. It is proved by godly men he had fair admonition volenti non fit injuria. He may blame himself.

The reflection upon the minister must needs be the height of envy and malice, and does not abate his testimony. The person for all the reflection may go home as clear as he came hither.

The evidence being thus summed up on both sides. The counsel, witnesses, and Mr. Streete withdrew.

Lieutenant-general Ludlow moved against what Mr. Onslow had moved that it may be, of what Mr. Moore had said in his sermon something might be true. This might have been forborne; such a reflection was ill said before strangers.

Sir Walter Earle. I never saw such disorder at a Committee.

Sir Arthur Haslerigge. I move that we proceed no further in this business, other than to report the matter of fact to the House. I wish the Chairman to read his notes, and any member to take his examination, and the state of the case being agreed to, report it so to the House.

He undertook to state it, but mistook in many things.

Mr. Goodrick and Mr. Knightley, and other good friends of Mr. Streete corrected him.

I came away at seven. Query—what became of the business? I suppose the Chairman will report the whole matter.

Mr. Bodurda moved for a Sub-Committee.

Footnotes

1 In 1571. "The iniquity of those times," says Camden, "and the love of the estates in England (which were then assembled at Westminster,) towards their Prince and country, extorted a law for preventing the practices of seditious persons." Among several clauses for the protection of the Queen, "it was enacted," evidently to counteract the pretensions of the captive Queen of Scots, "that if any man should affirm that any other hath a right to the Crown, or that the laws and statutes cannot limit and determine the right of the Crown and the succession thereof, every such person should be guilty of High Treason." History (1675), pp. 166, 167.
2 See "Lord Lambert," supra, p. 323.
3 See supra, p. 357, ad. fin. vol. ii. pp. 38, 279, 388, 430, 431, notes.
4 Probably meaning Henry Stuart, Duke of Gloucester.
5 See supra, p. 29, notes.
6 See supra, p. 346.
7 See the Peerage, supra, p. 362, vol. ii. p. 448, notes.
8 See supra, p. 404.
9 "As the barons' honour is inheritable," says Elsynge, "so their coming to Parliament hath ever been reckoned an essential point of inheritable honour, as given them by the king at their first creation." See "The Ancient Method and Manner of holding Parliaments in England," (1679,) p. 52. "As the King hath not used to omit any lord that hath been within the land (reotus in curia), and of full age, so none have used to come to Parliament, until he had received his writ of summons: but in such case he may send to the Lord Chancellor for his writ." Ibid. p. 59.
10 On "their merits," in this instance, see vol. i. p. 406, note.
11 See "Mr. Drake," supra, p. 349; "Baron Thorpe," vol. ii. p. 446.
12 Alas, for "our religion!" which thus suddenly "were gone," or which a vote of either House, or even an enactment by the three estates, could create or destroy. From "Some Traditional Memorials on the Reign of Elizabeth," it appears that the Queen, in her too-customary exercise of despotic authority, accommodated "the Parliament" to her purpose of imposing the religion which the crown chose to profess, on an ill-educated and acquiescing people, by "denying all farther debate," when she had erected her terminus. This was "so notorious to all," that "the doctrine professed most generally in England, bore in foreign nations the name of Parliament-faith." See "The Works of Francis Osborn," (1673,) p. 450. In 1721, there was an attempt to advance that idol of civil power, religious uniformity, by persecuting Antitrinitarians, under the specious disguise of "A Bill for the more effectual Suppression of Blasphemy and Profaneness." On this occasion, the Earl of Peterborough declared, "that though he was for a parliamentary King, yet he did not desire to have a parliamentary religion, or a parliamentary God." This Bill was introduced by a Dean of Windsor, Lord Willoughby de Broke, and supported by the Primate, Dr. Wake, and the Bishops of London, Winchester, and Lichfield; yet one was found on the Bench, a singular prelate, (like a Bathurst in our days,) who declared "that neither himself, nor, he hoped, any of that Bench would be executioners of such a law, which seemed to tend to the setting up of an Inquisition." This Prelate was the Bishop of Peterborough, Dr. White Kennet. To the honour of the Lords, the Bill was rejected "by 60 against 31." See Oldmixon's "History of England," (1735,) pp. 718, 719. "Make religion what you will," says Robert Robinson, "let it be speculation, let it be practice; make it faith, make it fancy; let it be reason, let it be passion; uniformity in it is not to be expected. Philosophy is a stranger to it, and Christianity disowns it." Arcana, (1774,) P. 23.
13 See supra, p. 411, note.
14 There were other sufficient reasons for this refusal. See vol. i. pp. 382–385, 420, note; ii. 116–119, 140, note. On this subject, the following remark, by Thomas Gordon, in 1723, may be worthy of quotation:— "Had Cromwell been declared king, I doubt not but his preachers would have found a revelation for it, and probably the coronation sermon would have abounded with texts that gave him the diadem. It would not have been the first nor the last time that the Bible has been made a great courtier, and Heaven the voucher of wickedness and falsehood." Cato's Letters, (1754,) iv. 275.
15 This hope was frustrated. Yet Sir Thomas Wroth was "entirely safe at the Restoration." See "Lives of the Regicides," (1798,) vol. ii. p.339.
16 See supra, pp. 409, 411, note.
17 "The Earl of Bristol." Goddard MS. p. 219. See vol. ii. p. 415.
18 See vol. ii. p. 415, note†.
19 This may be an incorrect account of the following:— "John de la Mare, of Garington, in the county of Oxford, had summons 28 to 33 Ed. I., but none of his descendants continued in the rank of Barons.' Extinct Peerage, (1769,) p. 192.
20 See vol. ii. p. 388, note.
21 "The King's party in Colchester," says Ludlow, "were forced to surrender on the 28th of August, 1648, upon articles. The Lord Goring and the Lord Capel were sent prisoners to London, and committed to the Tower, by an order of Parliament." Memoirs, (1698,) i. 264. After he had been condemned to death by the High Court of Justice, it "was carried by one vote," March 8, 1648–9, "that the Lord Goring should be reprieved. This one vote," says Whitlock, "was the Speaker, who carried the House, between equally divided, four-andtwenty of each part; and he said he did it, because he had formerly received some civilities from the Lord Goring, and his single vote now saved his life." Memorials, (1732,) p. 386.
22 He was beheaded March 9, (the day after it had been voted, "that the Lord Capel should not be reprieved;") dying "much after the manner of a stout Roman. He had no minister with him, nor showed any sense of death approaching, but carried himself all the time he was upon the scaffold, with that boldness and resolution as was to be admired." Ibid. pp. 387, 388. See Lord Clarendon's History, (1712,) iii. 272, 273. After an interesting description of Lord Capel, whose heroic resignation of life deserved a worthier object, Lord Clarendon immediately adds:—"So ended the year 1648, a year of reproach and infamy, above all years which had passed before it, in which the memory of all the transactions ought to be rased ought of all records;" as Burke once, when under the influence of his organ of destructiveness, erased France out of the map of Europe. Yet in this annus mirabilis, or execrabilis, as opinions may vary, there was one event, which the noble and diffuse historian has unaccountably compressed into a single short sentence, though most worthy to be rescued, by his usual elongation of a period, from the threatened general oblivion. "There was a woman at the Hague," says Lord Clarendon, "of the middling rank, who, being with child, with the horror of the mention of it," (the King's execution,) "fell into travail, and in it died." Ibid. pp. 273–275. In England, as appears from the following article of early intelligence, the execution of the sentence on King Charles, could be more calmly considered, as if executed on any other convicted criminal, in the exercise of rigorous public justice; while the right or policy of inflicting, on either prince or peasant, the punishment of death, of which there are such reasonable doubts, had been seldom or ever questioned:— "The 30th of January, 1648, was Charles, King of England, Scotland, France, and Ireland, put to death, by beheading, over against the Banquetting-House of Whitehall, the place where formerly King James had all the fencers of London encounter each other, in their school way, for content of the King of Denmark, who came out of his kingdom to visit him, the scaffold being made from the same window, and in the same manner, only larger." See "The Moderate Intelligencer, Jan. 25 to Feb. 1, 1648–9." No. 202. Bishop Horsley, 144 years after this execution, appears to have been horrified at the recollection of it, like King Charles's too sympathetic female contemporary "at the Hague." I well remember listening to his Lordship, in 1793, when he thus declaimed, amidst all "the pomp and circumstance" of his recent prelatical preferment; afterwards thus enforcing his holy abhorrence, from the press, by the printer's aid of a few imposing Capitals:— "But if any have Dared to avow the Wicked sentiment, that this day of national contrition, this rueful day of guilt and shame, 'is a Proud day for England, to be remembered as such by the latest posterity of freemen,' with such persons it is meet that we abjure all brotherhood. Their spot is not the spot of our family. They have no claim upon our brotherly affection. Upon our charity, they have indeed a claim. Miserable men! 'They are in the gall of bitterness and in the bond of iniquity.' It is our duty to pray God, if, perhaps, the thought of their heart may be forgiven them." See "A Sermon preached before the Lords Spiritual and Temporal, in the Abbey Church of St. Peter, Westminster, on Wednesday, January 30, 1793; being the Anniversary of the Martyrdom of King Charles the First. By Samuel Lord Bishop of St. David's." (1793,) p. 25. Among these "miserable men," who thus agreed with Mr. Fox, (supra, p. 110,) it was, I believe, Lord Keppel who had "Dared to avow the Wicked sentiment," in the terms alleged. Dr. Priestley, who had been the preacher's theological opponent in the Trinitarian controversy, and who pleasantly claimed to have made Dr. Horsley a Bishop, was thought by some to be intended. In his "Essay on the First Principles of Government," Dr. Priestley had, indeed, expressed an opinion that "such a transaction will appear an immortal honour to this country, whenever that superstition of the sacredness of kingly power shall be obliterated. Charles I.," he adds, "whatever he was in his private character, which is out of the question here, was certainly a very bad King of England. If he was misled by his education or his friends, he was, like any other criminal in the same circumstances, to be pitied, but by no means to be spared on that account," (Works, xxii. 25.) But poets have generally been foremost in the adulation of deceased princes, often a ready way to conciliate the favour of living royalty. Thus Tickell, as quoted by Dr. Harris, (Lives, ii. 488,) exclaims on this occasion, in a style of indignation, impious, or at least extravagant:— "Where then, just Heav'n, was thy unactive hand, Thy idle thunder, and thy ling'ring brand! Thy adamantine shield, thy angel wings, And the great genii of anointed kings! Treason and fraud shall thus the stars regard! And injur'd virtue meet this sad reward! So sad, none like can Time's old record tell, Though Pompey bled, and poor Darius fell. All names but one, too low,—that one too high: All parallels are wrongs or blasphemy." On this "too high" parallel, Young adventured, who was an early candidate for royal favour, and thus records, in declining age, his continued disappointment:— "When in his courtiers' ears I pour my plaint, They drink it, as the nectar of the great: They squeeze my hand, and bid me come to-morrow. Refusal! canst thou wear a fairer form?" In 1713, he published "The Last Day," with a dedication, grossly adulatory, to Queen Anne, though not too gross to receive the "Imprimatur Vice-Can. Oxon.," according to the censorship then in force. The poet, unawed by an appalling theme, which might be expected to inspire no words but those "of truth and soberness," introduces a compliment to the British Queen, by thus panegyrising her grandsire. Of the concluding lines, it is difficult to determine whether to admire most, the absurdity or the profaneness:— "But what is he, who midst the radiant bands Of spotless saints and laurell'd martyrs stands Conspicuous from afar ? Whose rays so bright Solicit, and attract the ravisht sight ? In whom I see two distant virtues joyn'd, A royal greatness and an humble mind. His lifted hands, his lofty neck surround, To hide the scarlet of a circling wound. The Almighty Judge bends forward from his throne Those scars to mark, and then regards his own." Yet after all the efforts of priests and poets to consecrate the death of Charles I., it appears, on the best authority, that James VIII. refused to recognize his grandfather's martyrdom. Lord Bolingbroke says, that when "the draught of a Declaration to be dispersed in Great Britain," was presented to "the Chevalier," in 1715, "he struck out these words, 'that blessed martyr who died for his people,' and would say nothing more than that 'he fell a sacrifice to rebellion.'" See "A Letter to Sir William Windham," (1753,) pp. 276, 282.
23 See supra, pp. 70, 253–256.
24 See vol. i. pp. 334, 352. This barrister, whose father was a Serjeant at Law, became, in 1660, a Baronet and Solicitor-general; in that capacity, zealously devoting himself to the vengeful purposes of the restored royal court. In the case of that conscientious, if mistaken patriot, Major-general Harrison, the first prisoner tried, Sir Heneage Finch, even urged the Bench not to indulge him with a day's reprieve, but immediately to pass the judgment of death. On the trial of Mr. Scot, too, and other regicides, before some of whom he was now about to plead, (respectfully, no doubt, for they were not yet become powerless prisoners,) the Solicitor-general appears to have occasionally emulated the manner of Sir Edward Coke, who, in his pleadings for the Crown, as Lord Bacon once plainly told him, was "wont to insult over misery, and to inveigh bitterly at the persons." The Crown lawyers have since, generally cultivated a suaviter in modo; content not to worry the prey of whose destruction they were secure. After representing in Parliament the University of Oxford, and attaining the office of Attorney-general, Sir Heneage Finch, on the disgrace of Shaftsbury, in 1673, was made Lord Keeper, created Baron Daventry, and soon after appointed Lord Chancellor. "He thought," says Bishop Burnet, "he was bound to justify the Court, in all debates in the House of Lords, which he did, with the vehemence of a pleader, rather than with the solemnity of a senator." Yet, "in his own court, he could resist the strongest application from the King himself, though he did it no where else." Own Times, (1724,) i. 365. On the Roman Catholic Lord Stafford being judicially sacrificed, in 1680, to a Protestant alarm, excited by a pretended Popish plot, Lord Nottingham, "when he gave judgment, committed," says Bishop Burnet, (Ibid, p. 492,) "one great indecency:" for he said, "who can doubt any longer that London was burnt by Papists, though there was not one word in the whole trial relating to that matter." Yet of more than "one great indecency" towards a state prisoner, when on his dreary progress to the gibbet or the block, a Solicitor-general, in 1660, who, since, for twenty years had been a favourite courtier in such a court, would be too easily capable. In 1681, Lord Daventry "was created Earl of Nottingham," according to Wood, "as a mark of the great satisfaction his Majesty had in the many faithful services which his Lordship had rendered the Crown." Athen. Oxon, (1692), ii. 538–540. The second Earl, who succeeded his father in 1682, was known in a walk of literature, where "Lords Temporal," are not often found. In 1719, he published "The Answer of the Earl of Nottingham to Mr. Whiston's letter to him, concerning the eternity of the Son of God and of the Holy Ghost." Lord Orford says that, "the University of Oxford, in full convocation, returned his Lordship solemn thanks. Mr. Whiston published a reply, which ended the controversy." See "R. & N. Authors," (1758,) ii. 125. Notwithstanding this favourable judgment of the University, the Earl appears to have scrupled to rely, exclusively, on the force of argument which he had brought to this controversy; especially against such a practised polemic as William Whiston. His Lordship discovered, indeed, too much "of the courage of a combatant," as Dr. Jortin remarks on another occasion, "who calls upon the constable to come and help him." Thus, in the "Postscript," disputing Mr. Whiston's "demand for an open toleration," he appeals to "the laws of the land," and regards "an indulgence" to his antagonist's opinions, as "in some measure establishing these iniquities by a law." The Earl had just before quoted with evident approbation "the advice of Mæcenas to Augustus, never to suffer any innovation in religion;" thus unwittingly justifying the Pagan persecutions of the Christian Church. Answer, (1721,) pp. 157, 159. See "Memoirs of the Life and Writings of Mr. William Whiston," (1753,) pp. 222, 223.
25 It appears from Rushworth, that Worcester surrendered to Colonel Whalley, July 22, 1646, when "Sir William Russel was excepted from the benefit of the Articles." Hist. Col. (1708,) vi. 17.
26 At Cropedy Bridge, June 29, 1644. See Rushworth, v. 336.
27 Dr. Calamy says, "he preached at the Cathedral. After Bartholomew Day, (1662,) through the fury and rage of the justices and people, he was forced to leave Worcester." Account, (1713,) ii. 768, 769.
28 Ps. cxx. 5. "Wo is me, that I sojourn in Mesech."
29 Blank in the MS.
30 It appears that the counsel had referred to several law-cases, but the report is too imperfect to be understood.
31 It is to be regretted, that this report has preserved nothing of the orator. He was "a person," says Wood, "of so eloquent and fluent speech, and of so great sapience, that he was usually styled the English Roscius, and the English Cicero." Athen. Oxon. (1692,) ii. 540. Bishop Burnet, on "Finch's character," says, "he was long much admired for his eloquence; but it was laboured and affected, and he saw it as much despised before he died." The Bishop adds: "he was too eloquent on the Bench, in the House of Lords, and in common conversation." Own Times, i. 365.