The Diary of Thomas Burton
19 March 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 March 1658-9', Diary of Thomas Burton esq, volume 4: March - April 1659 (1828), pp. 193-202. URL: http://british-history.ac.uk/report.aspx?compid=36934 Date accessed: 02 August 2014.


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Saturday, March 19, 1658–9.

Prayers per Mr. Cooper, at nine.

Mr. Speaker being sat, leave was moved and granted to Mr. James Herbert to go into the country for a fortnight.

Mr. Speaker gave notice to the House of the great disorder last night, upon the division of the House.

Colonel Birch. I never knew, when the House was divided, and the doors shut, that it was yielded. But I desire healing, as much as any man.

Sir Henry Vane. I have known it often yielded on the same account.

Mr. Speaker differed, and reported the manner of the disorder.

It seems, Sir Henry Vane had moved, which Mr. Speaker took notice of, as to the vote passed last night, that seeing we had made them judges in their own case, he chose rather to divide upon the main question, than upon a formality.

Mr. Speaker offered a question as to their continuing to sit for this present Parliament.

Sir Henry Vane. The other question is the proper question, as to the legality of their sitting.

Mr. Solicitor-general. I move for the question for continuing; which is the proper question, in point of precedence.

Mr. Weaver. The first question was for ejecting, the next read was for continuing; but I appeal if the substance of the debate was upon the legal part.

Sir Walter Earle. I move that our prudence be exercised, as well as our legal right.

Mr. Broughton. I move that what is done here be not only justum but juste. Let us do valiantly for our cities and our children, as Joab a valiant man did. (fn. 1) As every man must answer for what he does, let us be clear. It is one thing to give a vote at random; another thing according to conscience. Let that be done, and what the Lord pleases be done. Let us do righteous acts, that the sun of righteousness may shine upon us. Prudence comes in upon reason; but judgment comes in on clearer grounds. Do that which may hear well, and be satisfactory abroad.

Colonel White. You are not only a court, but a council, to counsel what is for the good of the nation.

I move that, instead of putting a question, you appoint a Committee to bring in a Bill to supply all defects, and ascertain the number and distribution. This may be done, without prejudice to you or them, and may lay a good foundation for future ages to build upon.

Mr. Turner. I am in no way satisfied with the words of the question. It has gone upon the legal and prudential right. If you put it upon the legal, you shall have my negative. If upon the prudential, you shall have my affirmative. But you have a good expedient offered to you 1 Henry V.

It was offered that a great many of your members sit upon a prudential right, as in the case of non-residency. (fn. 2) Time was, when Parliaments were burthensome. They had wages (fn. 3) and divers privileges allotted them. The reason of making of the statute was, because men were not willing; and as many in those times were imposed upon, find if they were willing, then there was no more made of it.

I move to put the question upon the legal right, or else take the expedient.

Mr. Swinfen. I am of opinion that the prudential right is very inconsistent. It is hard to affirm a law upon prudence. The debate has gone upon the legality; only prudentially has been made use of, as to the distribution. That has a very great colour of law. It is a moot point.

If you be not a Parliament of the Commonwealth of England, Scotland, and Ireland, you are not a Parliament at all. My motion is, that the question be put upon the legality of their sitting.

Sir Arthur Haslerigge. I hope every man may have liberty to speak to this question over again. I was never less fit, in my head, to speak.

Either these gentlemen sit by law, or they are imposed upon us, contrary to the Commons' right of the Commonwealth of England. The Solicitor-general told you (fn. 4) he looked upon the union made in the remaining part of the Long Parliament, as no law; but the Act of Council made it.

An Instrument of Government then was set up, said to be beyond our Magna Charta, and that it would not be altered. Other foundations could not man lay. This alters, the distribution.

The Protector had his foundation of power to distribute, by this Instrument. It turned over the fundamental laws of sitting in this House, and brought in two nations to sit here, that never sat before.

This Instrument came not in before Lords and Commons. It came in, nobody can tell how, and how it went out, no man knows, whether out of window or door. I hope all foundations of that kind will perish like the gourd. (fn. 5) The Act confirms one hundred and twelve Acts and Ordinances of that Council, and nought at all read but the titles. The Act was never so much as read. (fn. 6)

All laws are grounded on right reason, and men may judge by right reason when they read them. All laws confirmed in former Parliaments, were read here. There is no record here. Mr. Scobell was made Clerk of the Council, and so our Acts and their Acts had all one signature, Henry Scobell. A fine strain of wit, to mingle these things with your records, foist, I will not say!

Things do so strangely, that nought can preserve us, but an Act of Oblivion. Every Parliament must have an Act of Oblivion.

I wonder to see long-robe men so diametrically differ in point of law. It may be, some are under more oaths than one. In former times, an Attorney-general was not to be a member of this House, because bound by another oath, to maintain the single person's interest. Others, haply, may be under the like obligation; persons that are conscientious. This difference confounds me.

These two nations will not surely accept this as a clear title of this Union; but they will say this will serve, hac vice, for this turn. I would speak it in Latin, not to give offence.

The Petition and Advice, it seems, is our Magna, Charta, on which we must all go. The intention of this Petition and Advice was set above all the laws of the nation; so that we are to be governed two ways; 1. By the Petition and Advice. 2. By all laws not contrary thereunto. Privileges of Parliament are to be maintained. Then comes the clause for distribution. If that had been provided for, then had the Act of Union, and all towards that, been out of doors. We must not shut our eyes at noonday.

It is absolutely void by the Petition and Advice. It was told in this House that this Petition and Advice was instead of Magna Charta.

We are here brought, undoubtedly upon the same foundation, as clear as any Parliament was called these many hundred years.

If other things be not as they were, it is not our faults. We are as we were. If any Peers committed treason, they forfeited their privilege. The King declared all of us traitors. We declared the like of those that followed him, and disabled them from all trust. It is a dishonour to us to own any foundation but the ancient, upon which foot we are now.

The Act of Oblivion provides well enough for the qualifications. That law disables them from all trust. I stand amazed. I was going to speak a word that I doubt is not parliamentary. I am called to go on. It is parliamentary. You shall have it. Who durst do it, send out such writs ? The Lords Commissioners (fn. 7) did not do it. I say, who durst do it against law? No writ must be altered; and must a writ be made to bring in members from another nation ? To make knights was, never known, instance the case of Durham. (fn. 8)

As to the prudential part, when privilege is in question it ought not to have a place. I never knew it urged at a Committee of Privileges to bring any man in for prudence sake, but for right only. Do not you think we live in a knowing age, in perilous times, still destroying and pulling down ? Is it not because we are not upon a sound foundation, but upon a wrong foundation ? But ten words make this an Act of Union. You are upon a good foundation, and may make sound and good work, if you please.

It is a fundamental law that there shall be a Parliament at least every year. (fn. 9) The Triennial Bill provides for a Parliament every year. You will laugh at me, but it did provide so, that if the king did not call Parliaments once a year; the people might once in three years, in spite of the King. (fn. 10) He could refuse no part of a law. I know not who advised these writs to be sent out. Surely his private council, if not his Privy Council, did ill advise this: Any of us would be loth to buy land on such a foundation as an Act of Council, the great Council, of his Highness, who at present has but a possessory right. It were fit for us to deal plainly with him, and know who advised him to send out these writs. But you will say it is not yet seasonable, till an Act of Oblivion be first brought. I shall be as much for it as any, with some limitations.

Mr. Grove. The question we are upon, clearly appears to me, to be, whether we shall break the Union with our brethren of Scotland. But it is said, we will make the Union stronger. This is like cutting out a piece of my cloak, and telling me they will put it in stronger than ever.

The argument of out-voting us, will lie sixty years hence as well as now. If we be unanimous, they cannot unite us. But some were so ingenuous, as to say it could not be practicable, till we were reduced to a Commonwealth, as we were when the Union was first made. If they be cast out, I shall never live to see a bill passed to bring them in again.

In the Long Parliament, arguments of prudence were made use of. They have, in my opinion, a clear legal right. There is a want of formality in our election as well as theirs. Let us pass by one another.

Those are arguments ab honesto. There is also an argument ab utilitate. It is better than to have Parliaments amongst themselves. The effect of those Parliaments was ever to vote armies into England. Their last Parliament had that effect. There is a third argument, À jucundo. Union is most desirable with brethren Protestants; nay, Protestants of the best profession in the world. This is supersuperlative. How pleasant a thing it is for brethren to dwell together in unity ! (fn. 11)

Make it your question that they may continue.

Sir John Northcote. I am sorry to hear we had no other consideration in the Long Parliament than prudence. I think it was a legal right we went upon; 33 Ed. I. members were sent for from Scotland, (fn. 12) and this was by their consent. It does not appear, that in this Union the nation did consent.

Their not withdrawing implies that they shall sit. I would have you make an explanation as you did in the Petition and Advice. Therefore, have a bill brought in to explain that clause as to the distribution. By this means you will bind up all in a bond of union.

Colonel Birch. The not withdrawing does not imply their right of sitting.

Yet how durst the Chief Magistrate do otherwise than send out the writs, being Protector of England, Scotland, and Ireland. Would you have had him left out Scotland and Ireland? Had he then discharged his duty, being intrusted with the executive power ?

To question the legality thus narrowly, we are setting up a ladder, for others that come after to climb over our heads. It questions all since 42. It has been told you by learned persons, that nought was of force that was done after the King taken away. Where is the letter of law ?

I find not the letter of the law, to warrant us to be a Parliament of England, Scotland, and Ireland. My heart is full of this.

I am one of those that would have your building strengthened; but not to pull down a house, and put myself in the rain till another be built.

It was told you of the work of a carver and a plasterer: one works by subtraction, the other by addition. It has been our practice to pull down, not to build up.

It is said we have not their hearts. It is not for our service to say so. They helped us in our straits.

If nought else but a confession of faith to be agreed on, pursuant to what we lifted up our hands for, I could not let slip the union. It is not for the interest of Jesus Christ.

Niceties in law are fitter for Westminster-Hall than here; but that which we are to look at is the interest of Jesus Christ, and of those that we represent.

It was and is the interest of the Jesuits, (fn. 13) and of our enemies, to make this division. It would rejoice them, and make our friends go away with sad hearts.

This is the way, directly, rather to increase than lessen our charge in Scotland and Ireland. Let us not root up foundations. Put the question whether they shall continue sitting.

Mr. Sadler. That gentleman spoke with so much reason in some things, that I cannot without regret differ from him. He did assert they had a right beyond ours. Then, I wonder why his conclusion should be otherwise, to bring the right in question. I wonder that results go contrary to men's debates.

If that of brotherly union, urged by Mr. Grove, (fn. 14) had taken in the subsequent words about Aaron's ointment: if you had been to make them a church, this argument had been strong.

The Scotch members waved all arguments of equity and prudence; because circumstance of time may alter it. You dare not put it upon the matter of right and law. They have plainly told you it was right and law they sat upon. As it was the question in the primitive church, not whether the persons shall be justified, but whether they shall be justified by the law; if not justified by law, any member may stand up every day, and say they shall not sit afterwards, because of circumstance of time. Though equitable and prudent yesterday, yet not so to-day. There are great essential transactions now on foot.

Nullum numen abest, si sit prudentia, said a heathen. (fn. 15) Our and your great head, Christ Jesus, came upon the law. When a man has once put himself upon a law, though he have a pardon in his pocket, it is too late to offer it, when he has pleaded another plea. It was wisely agreed, by those, to urge law. It has been said they sat upon a natural, political, and legal foot. I would have it plain English law; I hope that is Scotch law, and law of nations. They place the centre of the compass upon the Petition and Advice. I think it is the best act that ever was made; a plain, honest, good law. They saw the Commonwealth expiring, and therefore made its will; so that it is rather a new testament than a law. They disposed of its estate. It is plain they intended it to be no binding law, but only a bare declaration, supposing things to come. It is founded, not only on an opinion of the then Lord Protector. Other wills begin to give their souls to him that made them. This does not give it to him that made them, but rather somewhat else. I can find nought else in it. I have talked with some of both Houses, and they understand it but to be conditional.

Suppose the Petition and Advice and Act of Union to be laws, their number, thirty, will you stand to that ? Are there not more than thirty called ? But, you will say, to the other House some are called. I desire but that to be granted. Why might not all be called to the other House ? I think they might be better there. They say plainly they may not withdraw. What is this, but to give them a negative ? The main that is said on that side is, that the Chief Magistrate may send writs, and he did so in Edward I.'s time. I could speak of this till you were all weary. Altum risum.

It is fitter for you to rise, than to put you into a daily debate about the equity and prudence of it. I shall not be against bringing in an Act.

I shall conclude. They are not to be justified by the law, but by faith. (fn. 16)

Mr. Disbrowe. I except against the words, "Aaron's garments and his beard," (fn. 17) and the word "New Testament." I would not have Scripture used but argumentatively. I would not have Scripture made to laugh at.

Sir Anthony Morgan moved to adjourn for an hour.

Mr. Speaker excepted against the same words: would not have Scripture abused. As namely, about Aaron's beard and his garments, and the New Testament, and Paul and Onesimus, and to part for a while to have us come together for ever. (fn. 18)

Serjeant Maynard. You are not so near a question as was thought. I therefore move to adjourn till Monday.

The question was put, whether the question for adjourning till Monday be now put.

Mr. Speaker declared for the Yeas.

Colonel Fielder for the Noes.

The House was divided. The Noes went out.

Yeas, 158. Sir George Booth and Mr. Chute, Tellers.

Noes, 115. Mr. Trevor and Mr. Annesley, Tellers.

So it passed with the affirmative.

The main question being put; it was

Resolved, that this debate be adjourned until Monday morning, at eight of the clock, and that nothing do then intervene.

The House adjourned accordingly at one o'clock.

The Committee of Privileges sat in the House.

Serjeant Waller in the chair.

Counsel were heard on both sides, in the case of Reading, where the difference lay between the right of election by the Mayor and Aldermen on one party, against the commonalty; but it was made to appear by several records, down from Edward I., and never questioned till 1640, that the election of Mr. Neville and Mr. Blagrav'e (fn. 19) was clear. But, to settle the title of the Commonalty, for the future, the Committee had dismissed the Petition, of course.

It passed nemine contradicente.

The Committee for Ministers in Wales, (fn. 20) sat in the Exchequer chamber.

Serjeant Seys in the chair.

Sir Arthur Haslerigge would fain have complimented him out of it, in regard of a petition presented to the Committee reflecting upon him a little, but it was but upon a mistake; and I believe he will keep the chair.

Footnotes

1 1 Chron. xix. 13.
2 See supra, pp. 176, ad fin. 178.
3 See vol. iii. p. 499, note. It has been said that Andrew Marvell, member for Hull in this Parliament, and again in 1660 and 1661, was the last member who received wages.
4 See supra, p. 181.
5 Probably of Jonah.
6 See vol. ii. pp. 38–45, 248.
7 Of the great seal.
8 See supra, p. 180, vol. iii. p. 335, note †.
9 See vol. i. p. 403, ad fin.
10 See vol. iii. p. 516, note *.
11 Ps. cxzxiii. i.
12 See "Mr. Scot," supra, p. 136.
13 See on "Jesuitical principles," vol. i. p. 110, note.
14 supra, p. 198.
15 Juvenal.
16 Alluding to Rom. iii. 28.
17 supra, p. 200.
18 Ibid. p. 190.
19 See vol. iii. p. 21.
20 See vol. iii. pp. 83, 84, 500, ad fin.