The Diary of Thomas Burton
22 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: 22 March 1658-9', Diary of Thomas Burton esq, volume 4: March - April 1659 (1828), pp. 223-235. URL: http://british-history.ac.uk/report.aspx?compid=36936 Date accessed: 01 September 2014.


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Tuesday, March 22, 1658–9.

I came late.

Mr. Boscawen was reporting from the Committee of Elections and Privileges. The case of Poole was clear against Colonel Fitz-James, and he withdrew.

Serjeant Waller presented the report for Colchester. Some moved against it, in regard it was long. It was to void the election of Maidston and Barrington, and to make good the election of Shawe and Johnson; but specially reported.

The Committee made no judgment in it; but the House finding an express judgment formerly in the case, made the election of Maidston and Barrington void, according to the sense of the Committee, and the other good.

A Petition was presented from Carnarvon, touching the undue election of Mr. Glyn and Mr. Williams.

A debate arose, whether the Petition should be received, in regard the time was elapsed; claims being to be made within a month.

Sir Henry Vane and Mr. Reynolds, and others. You are masters of your own orders, and may dispense with them.

Sir Jerome Sankey. It is fit to retain the petition. I doubt the malignants there were trumps. (He being some time employed in reducing those parts.)

Bodurda, Trevor, and Carter defended; but all will not save committing it.

Major Burton. I move to have the veil taken off. It was a work of darkness, and abhorred to come to the light.

Sir Henry Vane. Though there is a time limited at the assizes, for a man to put in his record; yet, if he do neglect, he loses not his cause, but may bring it on, the next assizes.

An argument on the other side was, that he might have been chosen in another place, if the Petition had come in, in time.

After an hour's debate about it, it was read, intituled "the Petition of Thomas Madrin, against the election of Mr. Glyn." It sets forth, that it was by a letter from a great person, by combination of the malignants, and that he is an infant under age. The poll was denied, and great disorder at the election.

Sir John Carter excepted against it, as being full of lies, and no hand to the Petition.

The gentleman that presented it said, one was ready at the door to sign it.

The order of the day was called for.

Mr. Weaver moved to refer the Petition to the Committee of Privileges; and it might be signed afterwards.

Mr. Disbrowe. I look upon all petitions unsigned as blank paper. It came in irregularly.

Colonel Allured. I move that the rest of the day be spent in reports from the Committee of privileges; in regard, as the Chair informed the House, the debate was not adjourned yesterday.

Major Burton. I move that Mr. Streete's report (fn. 1) be heard.

Sir Henry Vane. I move to put the business of the Irish members off your hands. I would fain hear what legal right they have.

Mr. Trevor moved to put it into a way of debate.

Colonel Clark. I move, in regard the day is spent, that, you would go on to receive the report touching Mr: Streete. It has laid a long time before the Committee.

Captain Baynes. I would not have you now go on with the debate about the Irish members; but would have you agreed of a question to be stated, whereon to ground your debate. I would have the question worded, before you rise, lest to-morrow be spent in it.

That about the legality and right was first moved.

Colonel Parsons. I move to deal no less kindly with the Irish than with the Scotch. They are all English. I would have the same question.

Mr. Broughton. I move that it be upon the continuance.

Serjeant Seys. I move that the question be upon their continuing or sitting. Amidst that debate of Scotland was squeezed out a question about their withdrawing.

Mr. Neville. I move to confine your debate to the legal; and go on to your point of prudence afterwards.

Mr. Annesley. Methinks you should have a little respect to Ireland, that they should, at least, have the same law with Scotland. They are your own flesh. I do not reflect upon Scotland, but Ireland, I hope, has something to say for their right; and though Scotland cost you fourteen days debate, this may haply be done before you rise.

Sir Anthony Ashley Cooper. You ought, in all reason, to go first upon the legality. It will be much clearer and distinct. Then go to the convenient part.

Mr. Disbrowe. I cannot understand why the House of Parliament should bind up their hands against all consideration of equity, and go barely upon the legal. If the same question be put for Ireland, that they shall continue to sit, will any reason judge that the Parliament would admit them to continue, if they had no right? It clearly implies the consideration of a right.

Consider the ingenuity, only to take one part and leave out another. Do you not, in all cases that come before you, consider as well the equitable as legal part ? Some think they have a legal right, others upon equity, yet all agree they shall continue to sit. Equity is as much justice as law, and will hold as well by God's laws, and man's laws, and all laws, as justice. I would have you not to tie up your hands from consideration of either, but consider the whole matter.

Mr. Speaker, out of the whole, offered a question, viz. whether the thirty members returned for Ireland have a right to sit and serve as members during this present Parliament.

Colonel White. I never heard the sense of the House gathered, before the debate. First, admit the debate upon the merit of the cause, and then collect the question.

Mr. Solicitor-general. It bars men of their reason in the debate, to propound a question before the debate be laid down.

Mr. Sadler. If there be a question that we may all agree on, there need no debate. It were for your service, if I could offer it. I differ from every motion that has been made. I am neither for adjourning, nor for stating a question; and yet I can agree to what has been said in this debate. I am against tedious debates. It is easy to propose what might take away the subject of the debate. As God has given me a body made up of contrary principles, so contrary motions are in my mind, hot and cold.

I should take it unkindly for you, if you should wave the right from the question, and have it in the debate.

I have read an epitaph, which I have often thought of in this debate. It was, "Wise and valiant dust, huddled up between fit and just." (fn. 2) So huddle up this between fit and just.

They that sat in the last Parliament had a right during the life of a great person; and if he had been alive, none durst have questioned it. I think, that life being gone, that they have a good title by law: Jus occupantis.

I am heartily glad to admit the Irish to a more equitable right than the Scotch, though the Scotch, haply, have a better possessory right than they. Seeing God, in his wisdom, hath determined this in an appeal to God in a battle, I look upon it as so coming into a Parliament House. The Irish are better Englishmen than I; I was against your question yesterday, because I thought it not honourable, but I shall now acquiesce. I heartily desire, for husbanding your time, you would even put the very same question. I hope there will need no debate. I was so unhappy to think the contrary with Mr. Disbrowe, that rather no right was implied.

We marvel you are perplexed in your debate when you are implexed in your results. My short motion is, without any more ado, to put the same question, and debate it not at all. But, if you come to spend days in it, and then wave just, and right, and fit, whether is this for your honour, or no. I think you may justly, for this time, make a standing rule, that a debate shall not last above two or three days; yet it is not your unhappiness that there are different principles. It agrees with the temperamentum and pondus justitiœ.

Mr. Speaker took him down.

Sir Henry Vane called him up again, and said, "None of us are wiser than God has made us."

Mr. Sadler went on and said; he was sorry to make use of that part of Scripture, "Hear some men gladly." Those that would enslave you, to hear them gladly. I am sorry that you have so much impatience to hear me. I would have you make a standing order, that this debate shall not hold you above ten days, if you will not make that your question, which I formerly propounded.

Mr. Higgons. I second that motion, that the question be the same.

Mr. Godfrey. I move, not to go so fast, to come to a question before you have had any liberty at all to debate the right. Till then, you will find that you will be but hindered in your debate. I would not have it appear on your books, that the question differs; if, upon the debate, it appears to be the same, or alike. I would that your proceedings be uniform, that the debate may be adjourned in general; that your debate shall be, touching the sitting of the members returned to serve for Ireland.

Mr. Scot. Though you see your former evils, yet you will shipwreck upon the same mischief. What variety of debate were we led into? You were pleased to say yesterday, that, but that you were tied up to the first question, yet you were free to propound another question. As to the right, ubi eadem ratio, eadem lex. No question but the Irish members have a natural right. They skin off your skin, and if once the legal right were over, the other right would be admitted in an hour's debate. Jure dato. that granted, the business is at an end, as to all future debate. For men to think to carry it by vote, and not by reason, is no good foundation for a right. To huddle up just and fit together. Do that which may justify you before the world. I would have the Parliament of England speak plain English, and not go by implication, that the Chief Magistrate may know what he has to do. Dark foundations leave things dangerous. If your militia and negative voice had not been upon such a foundation, laid in the dark, you had had no war. The same question will be revived next Parliament. I owe more honour to the Parliament of England, than to any single, or other person whatsoever. Let the Parliament be thanked for it, and not the single person.

Colonel Birch. It is against the order of the House to refleet upon your debates; to say. they are carried by votes, and not by reason. I think all your results are carried by reason. I would not have you proceed upon the legality, which is but one reason; not the tenth part of the reason. Let your debate be upon the sitting of the members. For the other part, I leave it to you.

Mr. Weaver. 1 did not reflect upon your results, but advised that they might be carried by reason, and not by vote; and so do I advise. For the other part of the motion, I would have you go upon the legal part. It was moved yesterday and to-day. You know what debate the word "concerning," cost you.

Mr. Attorney-general. If you engage yourselves in this debate, to carry it on thus in parts, I know not when you will end. I would have it go as general as may be. I expected some healing question from Mr. Sadler. We are brethren. I would have us (as was moved) agree together in unity. We all agree there is some lameness and defect in the law. Let it be amended. 1 would have all these debates ended in one Bill, that we may go on to the settlement of the Commonwealth; and would that you have the honour of it. If you admit it upon the legality, you go but upon one reason. I would have it go in the general.

Sir Henry Vane. If it be carried in the negative, that they have no right, I question whether any vote of yours can make them members. If they be not legally sent, you cannot make them legal. Let it be admitted that they have no right, and none will oppose bringing in a Bill.

Ireland was but a province. They had power then to have a Parliament, (fn. 3) and the royal assent came from hence. They are still in the state of a province, and you make them a power, not only to make laws for themselves, but for this nation; nay, to have a casting vote, for aught I know, in all your laws. Such a high breach of Parliament never was, like this of the Chief Magistrate imposing members upon you. It changes the very constitution of a Parliament of England. You make yourselves a General Council, and cease to be a Parliament. How, then, can you carry on the settlement intended? There will still be a worm at the root.

I would either have their right asserted, or ingenuously acknowledge they have no right. A bill will not do it till this be determined.

Mr. Trevor. I rise not to speak to the matter of the debate. Ireland is not now a province, as it was when it was conquered. They are all Englishmen there. (fn. 4) Will you have Scotland to impose laws upon Ireland, and they have no power in the legislature in themselves? I would have you go upon the debate in general, and not debate any particular.

Mr. Reynolds stood up.

Mr. Speaker took him down, and offered the question in general as to the sitting.

Mr. Reynolds. Seeing you are an English Parliament, let us speak plain English. It was told you, that the Chief Magistrate had a prerogative right to send for three hundred members from Scotland and Ireland. I say it is a fundamental right of an English Parliament not to be imposed on. I cannot consent to put it upon the sitting; but upon the legal right, I shall.

Lieutenant-general Ludlow. That gentleman is mistaken. If you adjourn generally, you are as much bound to put the question concerning the right as you were to put it upon the continuance; for this was first moved.

Mr. Jenkinson. The words, "legal right," are captious words, but that of right is a fair question, and takes in both law and equity. I would have you adjourn the debate touching the sitting.

Mr. Nathaniel Bacon. I move to debate upon the general, and not to go upon the right. How many questions will rise if you go by these steps. Every man will take a liberty to speak over again. I would advise it, together, in the same manner as formerly, in the case of Scotland.

Mr. Goodrick moved to put the debate generally.

Sir William D'Oyley. The House grows thin. I would have you adjourn the debate, and say no more.

Sir William Wheeler moved that it be adjourned upon their sitting.

Mr. Speaker offered it, as to their tight of sitting.

Colonel Allured and Colonel Mildmay moved that it be upon their right of sitting.

Mr. Gott. To adjourn it upon the sitting, does it not take in the debate upon the right ?

Mr. Broughton again moved, upon the right, which is clearest.

Mr. Godfrey moved, to adjourn generally concerning this sitting.

Mr. Neville. I would have you lay a foundation for your debate, (i.e.) Upon the right, and not hunt two or three hares at once.

Mr. Gewen. The right of the Scotch and Irish members was debated together a whole day. I move it may be upon the right of sitting.

Mr. Bodurda. I have not that faculty, (fn. 5) as Sir Henry Vane, to speak to the order, and go into the whole matter, and say whatever can be said to it. I would have the debate adjourned, generally, upon the sitting.

Sir Anthony Morgan. When you have framed your question as is propounded, you do, in a manner, resolve the business. Leave it rather, generally. The House is thin.

Mr. Hewley. I move that the words "right" and "sitting" be both left out, and to adjourn only about the Irish members.

Mr. Sadler. I am against the word "right." If, in the affirmative, it pass, you wrong the Scotch. If in the ne gative, then you wrong yourselves; that though they have no right you will admit them to sit, be it upon prudence or otherwise, it is not honourable for you.

I move to change your question quite; and instead of "concerning," insert "about," because it is the way about; and instead of "right" put in "wrong;" and so make it "about the wrong sitting of the Irish members."

He withdrew as soon as he had said it.

Mr. Speaker excepted, and said none ought to impose a ridiculous question upon the House.

Colonel White. Leave out the word "right." I know no right to sit in Parliament, but what is a legal right.

Mr. — (fn. 6) . I move that the question be, whether they have a legal right or no. I hope it will not be admitted to be in the power of the Chief Magistrate to impose members upon you, as he pleases.

Mr. Trevor stood up to speak.

Major Burton took him down, and said, we did not sit to hear one man speak six times.

He went on and spoke to the words of the question.

Major Ashton. You are, yourself, under favour, mistaken in the orders of the House. You can raise nought out of the former debate when Scotch and Irish went together, but what rises out of the debate to-day.

Mr. Speaker took him down, and said, he rose to speak to the order of the House.

Mr. Reynolds. You did very justly and truly state it. That which was first and second, and twentieth, was upon the legal right. You cannot but do the House that right as to put it upon the right, or, at least, whether it shall be put or no, and so let us rise.

Sir Henry Vane moved for the two words "legal right" to be in the question.

Mr. Hewley. I move to leave them out. The democratics of our age went upon another principle.

Mr. Ditton. I moved to adjourn the debate, in general, upon the sitting only.

Mr. Speaker. I must do right to both. If it pass in the negative as to the legal right of sitting, then I must put the next question upon the continuing to sit.

Mr. Fowell moved to adjourn it generally; viz. upon the Irish members.

Mr. Godfrey stood up again.

Colonel Terrill took him down, he having spoken thrice.

Major-general Kelsey. It is insisted upon, and you must put it upon the right.

Mr. Attorney-general. It is best to leave it generally; but, if insisted on, it must be put. I shall give my negative.

Mr. Annesley. I consent to put the addition. There will be no danger in it. I hope it will not pass, and that the House will also lay it aside, as in the case of Scotland.

Mr. Speaker stood up to propound the question. He looked most severely.

The question was propounded, whether those words, legal right, shall be added as part of this question, after the word "concerning."

The question was put if the words "legal right" shall be added to the question.

Mr. Speaker declared for the Noes.

Mr. Jennings, Jun. declared for the Yeas.

The Yeas went out, Mr. Wharton, Lord Fairfax, Colonel Hacker with them.

Yeas 95. Mr. Jenkinson and Colonel Mildmay, Tellers.

Noes 150. Sir Jerome Sankey and Colonel Cook, Tellers.

So it passed in the negative, and the debate was adjourned, concerning the sitting of the members returned for Ireland.

Mr. Speaker gave it as the orders of the House, that no members go out till the main question was put.

Mr. Trevor moved that the question be for the continuance.

Sir William Wheeler and others. You cannot alter the words of the question.

Mr. Attorney-general agreed that you could not alter the words of the question.

Sir Henry Vane. You have excluded a debate upon the legal right; but,

Mr. Speaker moved that he led the House into a mistake, for though they left the words out of the question, yet the right might be taken into debate, notwithstanding.

Upon the general sense of the House it was agreed that no words could be altered in the question; so the debate was adjourned thus, viz. concerning the sitting of the members returned for Ireland.

The House was but thin, rose at two. Sir Arthur Haslerigge was not at the House to-day. The Chair's severity was much noted. He answers almost every body. (fn. 7)

The Committee of Privileges sat first in the Star Chamber, then in the House.

Mr. Serjeant Waller was in the chair, on the business of Colonel Fielder. I could not, because of letters, tell the event. I could attend no other Committees.

Footnotes

1 See vol. iii. p. 435.
2 See supra, p. 156, ad fin.
3 "Ireland," says Mr. Molyneux, "cannot properly be said so to be conquered by Henry II. as to give the Parliament of England any jurisdiction over us." See "The Case of Ireland's being bound by Acts of Parliament in England," (1719,) p. 10.
4 "The great body of the present people of Ireland," says Mr. Molyneux, (in 1698,) "are the progeny of the English and Britons, that from time to time have come over into this kingdom; and there remains but a mere handful of the antient Irish at this day, I may say, not one in a thousand." Case of Ireland, p. 12.
5 See this Speaker's "faculty" of listening, Vol. iii. p. 136, note.
6 Blank in the MS.
7 "Mar. 22, 1658–9. Lord Fauconberg to H. Cromwell. "The debate concerning the Scotish members, came not to a result till last night. It was carried by many voyces, they should sit with the English next Parliament. The Irish, it is conceived, will be this day's work; but how many more, he must be a very wise man can tell. "It is confest by all, there never was a freer Parliament. If they settle us, the mouths of our bosome enemies will be stopped. 'Tis apparent, how hard they stickle to impeade all; but I hope God will disappoint all such councils." See "Thurloe State Papers," vii. 637. "Whitehall, March 22, 1658–9. Secretary Thurloe to H. Cromwell. "The Parliament hath made one step touchinge the Scotch and Irish members. The last night they voted, that the members returned from Scotland shall continue to sit in the present Parliament; and this morneinge wee entered upon the debate of the Irish members, and have proceeded so far as to vote, that it shall be noe part of the question, wheither they be legally returned. This difficulty grew upon this. Some would have the House goe upon the meere right and lawe in the determination of this question. Others would have it a mixt consideration, takeing in lawe, equity, and prudence: et si singula prosunt, juncta juvant. Soe that wee hope this of Ireland will have as good fortune as those of Scotland. "When this is over, wee shall then returne to our great question of transactinge with the other House. The greatest objection to it is the 1,300,000l., which cannot be lessened but by consent of the other House. And that they will never give their consent to, because it must take away their pay, most of the House beinge officers. But all is done that may be, to give satisfaction in that. It is a miracle of mercy, that wee are yet in peace, consideringe what the debates are, and what underhand workeinge there is, to disaffect the officers of the army; but, for aught I can perceive, they remeyne pretty staunch, though they are in great want of pay, for which noe provision is at all made, nor do I see that wee are likely to have any yet." Ibid. p. 636. "At the Council at Whitehall, Tuesday, March 22, 1658–9. "Whereas, his Highness and the Council have been informed, that divers ships of war in the river of Thames, and other ports of this nation, are preparing to be set forth under the command of divers persons, subjects of this Commonwealth, pretended to be imployed in the service of foreign Princes and States, without leave of his Highness or the Council, which may be prejudicial to this Commonwealth; "Ordered by his Highness the Lord Protector and the Council, that the Commissioners of the Customs be, and are hereby required and authorized to make enquiry after, and lay an embargo of all such ships in the river of Thames, or elsewhere, within the ports of this Commonwealth, until his Highness and the Council shall be satisfied concerning the service wherein such ships are intended to be employed, and give licence therein. Hen. Scobell, Clerk of the Council. Ibid. p. 638. "At the Council of Whitehall, Tuesday, 22d March, 1658–9. "Ordered, That it be offered to his Highness, as the advice Of the Council, to recommend, in the best manner, the common cause of the churches and Protestants in Poland, to the King of Sweden, that in any treaty of peace between him and the King of Poland, the said Protestants and their liberties, in their own country may be included and secured, and as good terms made for them as may become a Protestant Prince. Hen. Scobell, Clerk of the Council." Ibid.