Wednesday, March 2,1658–9.
Mr. Speaker took the chair at nine.
Prayers by Mr. Cooper.
Colonel Hatcher offered a Petition from the Freemen in
Lincolnshire against the drainers, which was read, (fn. 1) and referred to a Committee to meet this afternoon.
Mr. Annesley. The Deputy-clerk of the Commonwealth in
Chancery attends at the door, touching the mending the return of Mr. Sadler for the Borough of Yarmouth, in the Isle
The Deputy-clerk was called in, and said he could not
make a return, because the indenture came not to his hand
till after the Parliament sat. He being withdrawn,
Sir Arthur Haslerigge. You may cause him to return it.
Mr. Bethel. The Act for Triennial Parliaments warrants
the freeholders to return, in default of the sheriff.
Mr. Turner. The sheriff may return, he being the proper
officer. It cannot be otherwise done.
Captain Baynes. I move that the Deputy-clerk stay at
the door till the sheriff come: and it was ordered accordingly.
The order of the day was read at ten, touching the debate
adjourned yesterday, whether this House will transact with
the other House, as with another House of Parliament.
Mr. St. Nicholas. There are two reasons why you should
not yet transact with them under the notion of another
1. Because you have not yet limited their powers. In all
ordinary dealings between man and man, if several parties
would trade together, they trade not till the covenants be
I am a plain countryman, and shall offer you what country experience tells us. If a man hath got young colts, he
will make good chains before he useth them. If I be to put
two or three young horses together, I fasten them well together, lest they run away. This other House is young and of
high mettle. I think it necessary you should fetter and
bound them, before you work with them. If you first vote
to transact, and then carry up a Bill to bound them that they
shall not be hereditary, they will say, you have voted us, and
cannot now bound us.
2. Because they are not yet so declared, to be another
House of Parliament. All the footing they have had hath
been from the Petition and Advice.
Great reasons have been offered by Serjeant Maynard (fn. 2) why
you should look upon that as a law, and why a successor has
power to issue out warrants for summoning another House,
according to that law, by comparing that law in several parts
But, admit that he had power; yet, under favour, if that
person be not such a successor, within the meaning of that
law, as is commissioned to issue out such writs, then I am
sure they are not well issued, nor these men well called.
They are not such another House.
That Act gives power to the late Lord Protector to nominate and declare a successor in his lifetime. Where is that
done ? Where is the record ? (fn. 3) No authentic instrument has
been brought before you to make that law. If he be a King
to all intents and purposes, as is told you within these walls, (fn. 4)
such a power could not pass away a title to three nations, but
by matter of record. You have since declared his Highness
to be Protector, and I do cheerfully join with it: but at that
time, he had not power as such a successor, and he doth not
judicially appear to you to be such a successor as was enabled
to issue writs to this other House.
There was a case yesterday, and a piece of it this morning, Mr. Sadler's. You were satisfied he was a member,
yet because it did not appear to you, judicially, that he was
duly returned, you thought fit not to transact with him. As
I may say, the Protector was not the successor, and they are
not the other House of Parliament.
Colonel Terrill. We spoke in the bush before. We shall
now speak plainly. We ought not to transact with them, for
reasons before offered. Something before fell from me, (fn. 5) which
hath been endeavoured to be answered. What was offered,
produces three questions.
1. Whether the Petition and Advice be a law, and whether his Highness can call another House by virtue of that
2. Whether the successor by that law, be empowered to
call another House ?
3. Whether he be empowered by the common-law, to call a
House of Lords ?
I am sorry the first should come again into question.
Somewhat was observed in the debate on his Highness's recognition. It was moved then, that the House might be.
satisfied that it was a law. (fn. 6) That law was not dealt with
as a law; the print differing from the original Act. A
whole article was omitted, and the passing of it not Parliamentary. This hath not yet been answered.
I desire that the Journals and Rolls may be brought, to
see if the formality of passing a law has been observed.
If it be an Act, and if the Protector's title be by the Petition and Advice, then there is a question, whether his Highness be brought in according to that law. I am sorry this
should come into question to be now debated. That he is,
we agree; we have voted it: but quo modo appears not. I
thought he had two better titles than that, and that this
Petition and Advice was the worst of three:—
1. His possessory right, which was sufficient title for him
to call a parliament, and for us to submit to it.
2. The constitution of this House. I should be sorry it
should be stirred. I suppose either of these to be best. This
of the Petition and Advice is the worst of all.
As to the second question, whether, admitting it to be a
law, his Highness be empowered to call the other House by
virtue of that law.
The words, it is clear, are wanting; and the learned Serjeant's seeking for a meaning, by picking out the sense, (fn. 7) doth
yield that the words will not bear it. Where then shall we find
the meaning ? If you appeal to the makers of that law, some
say it was set up in lieu, others say in bar of the House of
Lords; so that we cannot find the meaning from the makers.
We must then have recourse to the letter.
"That your Highness, &c."—that cannot imply a successor.
I have said enough. He is a sole corporation, and the grant
extends not to a successor. It was argued that he is King
to all intents and purposes; yet that was meant of the power,
not of the capacity. Highness signifies no more than for life.
If a grant to his Highness by Parliament for term of life,
and after name successors, this does not enlarge the grant,
and it is all one as if the words had been expressed. Your
Highness, during your life, is all one as if he had said a grant
All I find in the preface relates only to "the succession in
government;" only I find the word "settlement." (fn. 8) That
cannot be applied to Parliament; for unless the old Lords
were taken away to build another House upon it, it is rather
to unsettle than settle, unless they had taken away the old
2. As to the words in the oaths. The word "successor"
may be true, although there be no other House of Parliament.
It doth not imply both Houses.
3. We have nought to do with disposing of the Army.
4. As to that of approving the council, where any mention
is made of the two Houses it may stand reddendo singula singulis; it may be understood only of the two Houses during
the life of the Protector, and not to his successors.
I am clearly satisfied that the word "successors" in all the
subsequent clauses does not enlarge the estate in the premises,
no more than if a grant of land be made to his Highness, and
then that he and his successors shall have all the royalties.
Admit the honour of Windsor (fn. 9) were granted to his Highness, and that he and his successors shall have all the privileges ; his successors shall have all the privileges, but not the
honour: it enlarges not the grant on the first article. It is
agreed, as to the nominating successors, that it is only person
al; that his Highness's successors shall not name his successor by virtue of that clause. If we grant this in the second
article, we admit the first, that the same power is granted for
his Highness's successors to name his successor. This might
nominate, and the next, and so ad infinitum.
I omitted another answer. Those that his Highness named
were members for last Parliament only, and not for this.
The explanation reaches not this Parliament. They must
be approved here.
As to the third argument. His Highness might have
called them by the law.
He hath power to call another House by the Common Law,
although he hath not power by the Petition and Advice, and
if he had but called the old nobility, he had done his work.
If he had no right by the Petition and Advice, he comes
in by his possessory title. He comes in under the law, but
not paramount to the law.
Henry IV. Henry VI. Richard III.: They came in under
If he came in so, under the law, I may admit all for laws
till they be repealed. So then there is another bar in the
way, a law in being to take away the Lords' House; so while
that is of force by the Common Law, another House could not
I have no prejudice against any person in that House,
but I cannot agree we should yet transact with them. If
you and his Highness please to approve them, to sit upon
another foot, I shall not be against it. I move, therefore,
not yet to transact.
Mr. Letchmere, Attorney of the Duchy. This question is
well come in before you ; for which way soever you go, the
wind would else have been in your face till you got over this
I cannot say how well the questions are stirred, but I shall
1. Whether the Petition and Advice be a law.
I think while so much pains are taken to answer it, it is an
admittance that it is a law; though there is not much weight
to be laid upon that.
2. Whether his now Highness be Chief Magistrate by that
This is the first time that ever any Prince in possession
had his title questioned; or that the title of Chief Magistrate
was doubted or considered in Parliament. Therefore this is
a single precedent, unless that of 39 Henry VI. which had a
miserable event. Richard of York put in his claim, (fn. 10) but it
had no good endment. (fn. 11)
All Parliaments have rested well pleased with the possessor,
and, being called by him, have gone on to make laws and
never disputed the title.
The Parliaments then had more evidence of new titles than
now they have.
Observe the passage of the two late queens, whose title depended upon the will or letters patents of their father. The
Parliaments then so well admitted the title that they never
disputed it, though both could not be legitimate. (fn. 12)
Let us exercise our duty in conscience and prudence.
But let us now to our business.
1. Consider how the House of Lords came to be taken away.
Kingship was taken away first, and then Lords followed.
In that famous year, (48) that did produce many wonders,
riot only the kingly office was taken away, but also chief
magistracy in a single person. The House of Peers were the
supporters of it, and so not consistent with a popular government. I admit that Parliament did prudently. I would
have the memory of them famous to their last breath. (fn. 13)
What followed then? How were our liberties overrun.
I will not say how the single person came to the government,
nor of past Parliaments, save only the Parliament in 56.
They looked upon their rights as in a bleeding condition. (fn. 14)
They, in a fair way, did redeem the people's rights. It was
a Petition of Right, (fn. 15) and brought the heads of our liberties
above the water; so that though that Parliament did not
fully recover all the rights, they went a great way, and deserve not those reflections.
(He ran over the Petition and Advice, wherein our rights
and liberties were restored as by that Petition of Right.)
You had the fruits of it. Immediately the doors of
Parliament flew open, (fn. 16) both in that Parliament and this free
The Petition and Advice pretends not to perfection. It
says only, it will prove some remedy. It does not totally,
but in degrees, restore our liberties. In some places it may
We come now to the constitution of this law.
It is objected that the successor is not named in the second
and third paragraph. The word "successor" is not in all
other parts that concern the rights of the people, yet I hope
none will say he is not bound by that.
There are a hundred Acts of Parliament wherein, the successor is not named, yet the successor in possession is always
bound by them. Our books are full. Hill and Grange's
case, with Plowden's Comment, does fully clear this point.
Now for that other House.
That those honourable persons that have been courageous
and persons of fidelity are not restored, I He down under the
objection. The Act that took them away, does not exclude
them from being called to public council. (fn. 17) I hope they may
in time be taken in.
The other House does now consist of persons that deserve
as well from the English nation as ever any persons that sate
there. It may be they may fall short in birth and pedigree. (fn. 18)
The Romans always preferred virtue. (fn. 19) The time may come
when those honourable persons amongst us that have deserved
the like honour shall be translated from us. I speak not to
be rid of them.
My motion is, that you would transact with the other
House, and set both your doors open.
Mr. Bence. I am glad persons are so quick-sighted as to
see many of the laws so far off. It does not appear to me
why the persons that have deserved so well should be excluded from their right. Possession is eleven points of law.
Those gentlemen that are in possession, you cannot get them
out by force, but by a wile.
I would have this previous vote, that nothing in the vote
shall prejudice the title of those honourable persons of the
old House of Lords that have faithfully served you.
Colonel Morley. It is said, possession is eleven points of
law. Now you would have a salvo for the rights of old Lords.
I am against that. I doubt words will not do it. If you pass
this, they have eleven points, and give them another, they
have twelve. You are going to pass all by a lump.
It was told you (fn. 20) the French by sudden vote gave away
all their liberties. Let not us do so rashly.
They are all officers, counsellors, judges, and chancellors.
If any complaints shall be against them, you must complain
of them to themselves.
It is said you have gained by the bargain, in putting down
the Major-generals. You have mended the matter well, in
giving them a power in your legislature.
Have not many of those persons been guilty of the remonstrances and forces upon Parliaments? May they not force
their resolutions upon you by the same rule ? (fn. 21) I would have
Major Beake. It is said the persons ought to be excepted
against for their military capacity. I would have the sword
less, if there were not need. In former Parliaments, Lord
Marshals, Lord Admirals, and Lord Lieutenants of Counties,
were always in that House.
In that they are there, therefore let us transact with them.
It was moved, that none would deal without a contract. (fn. 22)
Can we contract before we transact ? Must not we declare our
sense to them, and they to us, before we can transact ? If
any exorbitant executive powers are in their hands, mutual
correspondencies will take them away.
I will not say but there are men of will there, yet I doubt
not but there are men of reason there. I doubt not but they
will make common safety their end, as well as you will
do. If it be your advice to a handful (fn. 23) sitting there, if
you say it is for the good of the nation, they will not be
It is objected that the Petition and Advice wanted the formalities of a law. (fn. 24)
The Parliament making a law, may dispense with the second or third reading. They are properer judges than any
without doors. It may as well be said they are not a Parliament. It is told you, the meaning of the Act cannot be
found out by inquiring of contrary opinions. The best way
to judge is by comparing the parts.
Colonel White. I think you have a great and weighty business before you. You have all now before you. This
transacting is the owning the persons, the powers, and all.
I shall not mention aught of the arguments about the Petition and Advice. It is learnedly argued both ways, it is
clearly argued now, that those are a House of Peers. I would
have the constitution examined, if it be well founded. If the
Petition and Advice want words of constitution, make it so.
I find not a word of constitution in it. It is said, it is implied. I have heard it said, that an Act of Parliament is
lex loquens, and cannot be supplied by implication. You
have already declared that you will have two Houses, but
you have also declared that you will bound them; and I hope
you will examine the persons.
All erroneous judgments have their appeal at last thither
Admit an erroneous judgment, whither shall he have his recourse but thither, be it from Ireland or any benches. You
appeal then from a Lord to a Lord, to the same person sit
ting upon a form, as was sitting upon a bench. It was very
rare that Judges were called to vote. Their Judges always
sat on woolsacks.
Three Lords Chancellors, (fn. 25) two Chief Justices are there;
and you may have one Chief Baron there, (fn. 26) as deserving well
as any of them.
For the law I doubt we shall be in a sad condition.
Also for military power.
The Colonels are now more than the Lord-lieutenants. If
you give this army a negative upon you, put the case you
make a law to disband all or part of your army. Power is a
spreading plot against nature. One more to these ten Colonels, makes a quorum in that House. Thus the people of the
nation may be destroyed by a power.
When you come to constitute powers for posterity, bound
them as well as you can. I cannot at present give my consent to transact with them, till they be thus bounded.
Mr. Attorney-general. They that would make a settlement, and not upon this foundation of the Petition and Advice, cannot erect it upon foundations of righteousness and
peace. For the person of the Chief Magistrate; if he is
but possessionary Protector, he is then hereditary and not
subject to any boundings. If you do not bound him, his
good-nature will, without gall or guile, as is said.
But since the Chief Magistrate is elective, and this House
electors, I wish the other House elective, and not hereditary;
and so the Constitution will be homogeneal.
The Petition and Advice has been beaten so thin, nothing
more can be said on it. I suppose there is a general inclination to conserve the Petition and Advice for a good law, even
among those that speak against it, and the other House to be
well constituted and well called. We are now arguing upon
a moot point, as to the interpretation of this law. The Judges
in Westminster-hall shall interpret. No one House can; it
must be the two Houses.
I will either put in or leave out "your Highness," which
the gentlemen please. It is said there must be two Houses.
I would ask any man that wears a gown, who shall call them ?
Undoubtedly the Chief Magistrate has power by law to do it.
His Highness, in his lifetime, did execute that power. He did
design and call the persons, which, as much as that requires,
is personal still. Then come successors, in all other places,
when it mentions supplies to that House. There was no
need of successors in the other articles.
Now to the persons, civil and military men.
1. It is not entailed upon them, neither successors of the
seal. I take the persons now in place to be thorough-paced.
They have gone thoroughly with you.
I am very willing that those of the old Lords that have
been faithful be taken in. My motion is that you will
Mr. Annesley. If it be yielded that the Petition and Advice is a law, and without dispute, then there is an end of the
debate; but that was never yet yielded. Many arguments
against it are not answered. I am sorry we have forgot the
beginning of the debate, when the current opinion was, if not
to restore, yet not to prejudice the old Peers.
I doubt the expedient offered will not hinder the excluding of the old Lords. I think your time will be well spent
to state this business clearly.
I have that to say which I was not willing to have done, if
things had gone on in a moderate way. But, whatever is upon
my spirit to say, I shall not fear to speak and I think it my
duty not to forbear, whatever be the issue, and though I am
satisfied I can never bring the sense of the House to mine, and
was unwilling, but Mr. Attorney-general called me up. I
shall revert to the beginning of the debate.
My many bonds and relations will not allow me to bar the
rights of the old peerage. How far the Lords adventured
themselves in the late war, how they assisted you in all your
straits, how far they hazarded their lives in calling the late
Parliament, you have been already informed. What laws,
customs, and prescriptions, there are for them, to give them
power to sit. What protestations, vows, covenants, solemn
leagues, and declarations of Parliament, for the preservation of their privileges: (fn. 27) one, 17th of April, 46, ordered to be
hung up in all churches, setting forth your obligation to
maintain their rights! If now, after all this, they must be laid
aside, being thus settled, without ever being heard, my soul
shall have no share in such counsels and such a resolution.
I know no law against them, but the law which I abhor to
think of. We know under what impressions they were, that
took them away. The law punisheth them for not coming
thither; and yet they must not come. There are places assigned them by law, to sit in; and yet they must not sit. No
law without consent of the Lords in Parliament is good, but
void. Lord Coke is clear that no law is of force but what is
made by the three estates.
An expedient hath been offered for them with a salvo, but
that will not serve the turn, to say we give them a liberty to
sit, or be admitted, and yet to put such shackles upon them
as they cannot in honour sit. It is but nugatory thus to put
the Petition and Advice upon them. If not, let us say the
laws of God and man are of no force in that point.
It is objected against them,
1. That it is contrary to reason, that there should be an
hereditary judicial power in them.
I wish such new reason may not proceed from our new
lights. Practice and experience many hundred years, show
the reasonableness of them.
2. It is objected that the Peers sat at first upon account
of their ancient possessions, and their great proprieties and
And have they not so still, or if they have not, what have
they that sit there ? I could name five or six of the ancient
Peers that are not disabled from sitting; that have estates
and interests equivalent to buy out all that sit there now.
3. It is objected that they are considerable enough already. What security that their greatness may not be our
This is an argument not fit to be answered with less than
4. It is objected that there is a House already in possession.
But to say they sit by a law, is begging the question. If
that be so, the controversy is at an end. That objection was
waved yesterday, and is now made again.
I am much troubled what to say in the whole. I can say
I am plain-hearted and single-hearted. I am not for those
prudential ways of weighing conveniency, to do bur duty.
Something of the innocence of the dove, and a little simplicity of the gospel will better become this House, than all the
politic prudence in the world.
But you may say you wonder what I drive at. Shall we
meet and do nothing ? shall we leave all things in confusion,
if we come not to settlement? I am sensible you are under
straits every way; should this question pass as is proposed,
all your work is done, but money. If this question should
pass in the negative; then your next question may be, for the
old nobility; the old other House. If that be carried in the
negative too, then you. must either usurp the same power
we have so much decried, and shamefully retract your vote
for two Houses, or else do nought.
But what then shall we do ? For a week together, it hath
puzzled the wisdom of this House. It is our duty to do
things that may tend to a settlement. If we could avoid the
owning of this House, without endangering our interest
abroad, I would it were set aside. I hope the major part
are not against the right of the old Peerage.
This vote going alone, is much more dangerous than if it
go as part of that Bill, and it is fit that Bill should be the first
thing that passes.
When things are in some measure stated, and this is passed,
then the first transaction may be, to carry up your Bill to
the persons now sitting.
There is a necessity to go on in business. You cannot do
without transacting. It signifies no more than trafficking,
trading, or bargaining, and the better bargain you make, the
better for the people. Therefore, in order to the juncture of
present affairs, I would make as good a bargain as I can.
As additions to that question, I shall offer,
That in respect of the present constitution or juncture of
affairs, this House will transact with the persons called by
writ, and now sitting in the other House; not intending hereby to exclude such of the ancient Peers who have been faithful to the Commonwealth, from their privileges of being summoned, and sitting members of that House.
Mr. Disbrowe. Stood up to speak to the question (fn. 28) .
I being called out at twelve, could not stay to hear the end
of the debate. Divers others, it seems, spoke to the question,
and to the additions offered; but the House rose without a
question, having sat till two, and adjourned the debate and the
House till Friday morning.
Resolved, that all Committees shall sit, notwithstanding
Resolved, that Mr. Duckett have leave to go into the
country for fourteen days.
Serjeant Maynard being chosen for Newtown and other
Boroughs, made his election for Newtown, and new writs ordered to issue out for the other two places. (fn. 29)
The Committee of. Grievances sat, and heard several Petitions, and heard Counsel between Long and Edwards about
the Roll's Office in Chancery, where Lady Jermine offered her
title above them both; but hers was waved till the other was
tried. It was held by divers, to be improper for the Committee to meddle with it, being depending and remediable at
law, but it was notwithstanding retained: an ill precedent.