The Diary of Thomas Burton: 2 February 1657-8

Tuesday, February 2, 1657–8.

When I came in, Brown, the prisoner yesterday, was at the bar on his knees, receiving his sentence, which was to stand committed for one month to the Serjeant-at-arms.

Query from Journal, what further punishment. Query, also, what more was done that morning, (fn. 1) for I attended Mr. Clapham's business.

The order of the day was called for and read, and some had spoken while I was out; but when I came in I found

Mr. St. Nicholas moving strongly against the House of Lords, and in the very bowels of the whole Petition and Advice, launching throughout, and citing a great many authorities. I could take no particulars, having not got settled till he had done.

Sir Arthur Haslerigge moved strongly and passionately against this House of Lords; and said, "Well for Pymm, Stroud, and Hampden, my fellow-traitors, impeached by the King, they are dead; yet I am glad I am alive to say this at this day."

He made a long narrative, how Useless and pernicious the House of Lords was. The saint-like army, who were not mercenary, were sensible of those grievances. They willingly laid down their lives, and the army desired they might have a decent interment, (fn. 2) which was done accordingly. And shall we now rake them up, after they have so long laid in the grave? Will it not be infamous all the nation over ? Shall we be a grand jury again ? There is not a man in this House but has sworn against it. Why do we keep out the cavaliers ?

I beseech you, Mr. Speaker, let us go to old orders, and let a matter of this consequence be fairly debated in a Grand Committee. I beg it of you on my knees, that we may debate it first in a Grand Committee. I do it not to delay; but we may counsel one another. It is a matter of the highest concernment that ever was debated in a Parliament of England.

Colonel Lister. I second that motion. It is very rational that a matter of this weight should be thoroughly debated, and that we come to a right understanding of one another, with candour and ingenuity. What better expedient than soberly to debate it in a Grand Committee, which was never denied in this House.

He did wade a little into the merit of the business, as the rest had done; but concluded his motion, as he began, for a Grand Committee.

Major-General Boteler. Those two worthy persons have moved irregularly, especially the honourable person that spoke first. I doubt, when he comes to speak to the matter, he will speak to the proceedings; because, in speaking to the proceedings, he speaks to the matter.

The little worthy gentleman that spoke the other day, (I crave your pardon that I name him little), I think he said, de minimis non curat lex; he did divide this question into two heads. I shall answer thus.

The writ makes them a House of Lords, for they are pares inter se, as the old House of Lords were.

1st Objection. They have no other name (fn. 3) by the Petition and Advice.

Answer. When it was made, it was asked why so insignificant a name ? It was answered, leave it to his Highness to advise, about how they should be called, and you left it to him.

2nd Objection. They are not a balance, as the old Lords were, as to matter of estates.

Answer. What balance were the old Lords, in your assistance, against the Scots? I do not know when they were a balance but in the baron's wars. They were always a balance with the King, against the Commons.

These are the qualifications, religion, piety, and faithfulness to this Commonwealth. They are the best balance. Those persons have it. It is not estates will be the balance.

It is a burthen to them to be Lords, (if so you call them) and a great self-denial. They must live accordingly.

The great objection. The engagement. (fn. 4) We are all under it. I am under it; and if I cannot rationally be convinced that I am free, I will be against this. I am not for a King, and shall riot be.

They are mistaken that say these are the same with a House of Lords. It is quite another thing. We know they are another House. Most that is spoke against it, is against the thing itself. I hear it much talked on, that we shall come to an arbitrary power. I had rather be never a day in England.

You are under a settlement which does clearly distinguish this from that constitution of a House of Lords. (fn. 5)

Providence is not wholly to be attributed to nothing, and it is not only to make men great. As we are under these fractions, without a Parliament we cannot live. Two are better than one, and three better than two, still more safe. A threefold cord is not easily broken, as a noble lord said in his speech. (fn. 6)

If we break it ourselves, if we admit of perturbation of spirits,

1. We may burn the cord which none can break.

2. We may untwist it.

3. By tying knots or twitching it too far, it will not bear.

He that shall move to put any thing upon it, does stretch it. He aims to break it. We may cast ourselves upon that rock.

A House of Lords they are, and they will be so; and let us not strive against the stream, lest we spend so much of our own strength against ourselves, that we shall not be able to defeat our enemies. My motion is, that you would agree them to be a House of Lords.

Mr. Drake. We may bless God that our constitution is come again to a settlement. If God bless us not with spirits to close with it, we may say, sad will be the consequences. I wonder why worthy members should run upon mistakes, so as to question that this other House is clearly meant a House of Lords. I shall humbly offer my reasons.

1. It is done already. They are called by the old writ. (fn. 7)

2. Look upon the commission. It is for swearing the lords.

3. His Highness's letter to us, to the House of Commons: and his Highness owns them by that title, both in his speech and it is so entered upon your books.

4. Look upon your constitution at your last meeting, where you gave power to them, to do in all things as relates to the other House of Parliament, according to the laws of the nation. (No part of the Instrument.)

Creation and preservation are inseparable. If we created them so, shall we not preserve them so ? Why, is not his Highness sworn to it ?

6. It is a dangerous thing to question our constitution; for enter upon one part, and you invade all. To quarrel at foundations and principles is dangerous. For aught I know, (if we agree not,) but they may be the great council that shall rule us. My motion is, that you would call them a House of Lords.

Colonel Briscoe. I must needs acknowledge there is another House by your constitution. I cannot deny it. It is a House set up by you. The difference is only about the name.

This question depends upon another question, whether it is an Act of Revival? Then it must have all the privileges; but if it be a new constitution, why. not a new name?

1. The persons are new.

2. New qualifications not known before; a set number precisely, which was not before.

3. Another alteration imports a new constitution; no proxies.

4. No cause, civil or criminal, to be determined by commission.

Objection. It was infended to be such a House.

In every law there is a letter and a meaning, but it must be such as the letter will carry.

1. Not within the words: not of necessity. The House may be as serviceable under another title.

It is no question but the people have a greater liberty when they have no superintendant, whether, it be safer or no.

2. Objection. The words are insensible and uncertain words. If this law be defective, let it be amended by them that made it. If it be a real defect, it cannot be supplied by implication. If there be not words in a will to amount to such an intent, nothing can pass.

1. By the Act of Parliament we are not necessarily confined to that title.

2. The writ. I grant the writ anciently did create barons, and in the judgment of the law, he was so as well as if he had a patent.

You limit my Lord Protector, not to call such by the title of Lords, but by the title you call them. But, in the pursuance of your Act, the derivative power shall never exceed the primitive power. His Highness doth it instrumentally, and not jure prerogativo.

I wish that may be done that may be for the glory of God. We must judge upon the subject matter as judges in Westminster-hall. I do not see any thing defective; but the appellation is sufficient to distinguish them. Therefore, at the present, I am to concur in your question.

Mr. Trevor. Your messengers called them Lords: his Highness called them so: and now we must not call them so It is said your petition calls them not so. They are intended, and made a House of Lords.

I know names are but the distinction of things. The word "Commons" makes the word "other" a relative. It relates to somewhat of what we spoke on of late.

By the Advice, Parliaments are to be called. I would fain know what is meant by two Houses, unless they were.

There is no affirmative power given to the other House, but only negative, as no proxies, &c.; so does not imply a new foundation, but argues an old constitution.

In all other things the laws, statutes, and customs of the land shall be observed, saith the Petition and Advice.

This House looked upon our condition; upon what loose bottoms we had stood by new foundations.

As they are intended to be so, it is also much safer. We know what the House of Lords could do. We know not what this other House may do. It may claim to be the House of Commons, to open the people's purses at both ends. I shall not use that argument, that they call themselves so, and sent down to you by that title. I shall not offer that to you, that his Highness has called them so, and said they shall be so, and that they were the lost constitution.

(Query, if not so said of the Major-generals sometimes.)

1. Objection. They were shut out in 1648 by God's providence.

Others were shut out then, and he may observe it was his own case; God's providence had once shut him out. (fn. 8)

2. Objection. It is said, the Petition is well if we can let it alone.

It is said those worthy gentlemen, if they were alive, would have been disturbed to have heard this debate. (fn. 9) I will say no more. Those worthy persons were dead before ever that power was taken away. And when they (fn. 10) are settled, this is but a step. They will find no rest upon that bottom till they come, as near as may be, to that old constitution of King, Lords, and Commons.

Is not his Highness sworn to maintain equally the privi leges of both Houses. If this stand not, we fall; nay, the Protectorate too, for he stands only upon that bottom. We must have some new children of necessity brought forth, which, how pernicious it has been, to the laws and liberties of this nation, I leave you to judge. We must, of necessity, be so lost, unless we come to such a correspondence. It is that which must be and will be. My motion, therefore, is, that you return this answer to the Lords, that you will join with their lordships in an humble address to his Highness, for a day of public humiliation.

Major-General Haines. I find several senses even amongst the persons that were privy to the first debate upon this business; and you are not yet come to a question as to the ground.

I thought always, this "other House" was a bar to a House of Lords. If you alter this, you do as materially break in upon your government, as if you should alter the title of your supreme magistrate.

It has always been my fortune to maintain what other men bring forth. I sec, at the bottom, it must be King, Lords, and Commons.

This will call all the old peerage in, though they be drunkards. I am not against the nobility, and how safe this may be to have a bar upon all your laws.

It is but to make it run better than king, other House, and Commons. I speak not to oppose the title of lords, I quarrel not for names,—if I thought there were not an intention, to bring in the old peers.

2. Whether they shall have more power than you have limited in your Petition and Advice. I beg of you, before this vote, that there may be some previous votes to limit the power of these gentlemen, that we may be clear upon this. Whether a bar or not a bar of the old peers; whether legally, or equitably, they are shut out; they would claim. Let the long robe clear that to us, and how limited.

My motion is for some previous votes, as to the powers and bounds of this House. If you have so cautioned that, it is indifferent to me what you call them; as also that you intend not hereby a renewal of the old peerage; for surely it could never be the intention of your law to set them over you.

Major Beake. The question before you is a single question, and not perplexed; and if there appear any— (fn. 11) in the bowels of it, gentlemen may decline that; but to move for previous votes is irregular. I shall categorically give you my opinion.

As we have been tossed about, the rule to bring us to stability is to have recourse to the ancient constitution. I would not have that retorted upon me, "then bring in popery." The apostle recurs to the constitution, "that which I have received." (fn. 12) Our Saviour says of the corruptions of marriages, "it was not so from the beginning." (fn. 13)

I shall clear why they should be called lords.

1. They are a Lords' House, because they call themselves so. Consult their entries in their books, not complimentally but deliberately.

2. His Highness has sworn, and the obligation of an oath is strong.

3. A House of Lords, because, as I shall make it out, you intend them so. You do not express it but by periphrasis and circumlocution.

If you had desired his Highness to take the royal dignity, did you not intend them to be a House of Lords ? I did intend them and many more. You yourselves set up a title of King, to which nothing more relative than a House of Lords.

Was not the engagement (fn. 14) the very argument against this other House. The book is before you. Topics enow to deduce a rise.

1. From writs of summons to issue out in due form of law; then surely there must be in being such a form.

The long robe will sufficiently give you to know the operation of such a writ. They are, ipso facto, Lords. You will not destroy the force of a writ, without an Act of Parliament.

2. From the power. Were not you as proper judges in writs of error, four hundred as well as seventy ? In the multitude of counsellors is safety.

You looked upon them as assisted with judges, and civilians too, that might direct their judgments in such cases. The case is pretty clear.

Objection. Why not the old Lords ? If we recur to things, why not to persons.

All will be against forfeited persons.

His Highness has called some of them; (fn. 15) a vacancy is to be filled up with such persons as are capable of sitting; though not the forfeited. No brand of drunkenness.

By writs of summons, they, are, before sitting ex gratia, Lords; but after sitting, ex debito justitiœ.

A writ of summons denied to the Earl of Bristol, tertio Caroli, (fn. 16) did that make a nullity in the House of Lords ? No more now, if writs be denied to some.

2. Objection. They want estates. I hear none say so, and that which is the consequence, interest they want.

They fell in disproportion before as to estates and interest too. What interest had the old peerage more than these, as it fell out.

There are grown men. Consider, we have a great interest in this name.

The sword is there. Is not that also a good balance ? He that has a regiment of foot to command, in the army, he is as good a balance as any I know, and can do more than — (fn. 17)

The thing you have parted with already. It remains only to have a little packthread and paper to bind it up. There remains but a shadow: shall we contend for that ? I hope we shall have such compliance about privileges, when we have settled that question.

O, but the Engagement, some have not taken it. We have also taken a Covenant, I pray God that rise not up against us. It directly tended to the support of the other House.

2. This goes to throw your Lord Protector out of doors. Was it against a king, or against the thing; or against Lords, or the thing ? Strange argumentations as ever I heard.

An Act of Parliament against it. That is not against the thing. There is a replevin in law as well as in fact. Consider your limits of them; for you have stated and bounded them, God be blessed for it.

We do stand in as crazy time as the people of England were in at the end of the Barons' wars. That noble man found all the Barons direct traitors; a poor handful that only adhered to the king. What does the king ? He summonses gentlemen and knights just as now. You must make new ones when you cannot have the old ones. Your case is sure.

They that say set not up a king, a House of Lords, for God has poured contempt upon them;—let me retort upon them. God has also poured contempt upon a Commonwealth. Was there so much as one drop of blood when it went out; nay, I am confident, it did extinguish with the least noise that ever Commonwealth did. (fn. 18)

My motion is that you would correspond with the other House under the title of Lords.

Mr. Doddridge. Let us go with a alow foot. I am in love with the word settlement. This is an inveigling question, and carries a great deal with it. (It was intended). (fn. 19)

I hear it said they are a House of Lords, they will be, and shall be, and are sworn to be, a House of Lords. Let us go to the powers, otherwise I cannot tell how to give my vote.

I do move that we may be turned into a Grand Committee, that we may understand where we are, if it be but a day or two; and if it be found tedious, you may then take it up in the House, and that is my motion.

Mr. Solicitor. I doubt a Grand Committee will but spend your time. The powers are material. As to the tide, I do not think they are Lords, because his Highness called them so, &c.

But you have called them another House. You have surely settled them as a Parliament, with a legislative power. You have called yourselves, four times, Commons, in one paragraph. They must stand for something. I cannot agree them to be a House of Commons. Then what can they be but a House of Lords ? You acknowledge yourselves to be the Commons, and they the other House. You say that the calling of Parliaments shall be according to the laws and statutes of this realm. What law appoints another House ?

If they be a legislature, how can you pass laws without a correspondence ? We can do nothing. We may as well go home again, and then we leave our own constitution at a greater loose.

We have gone a good step in this Petition and Advice, that no kws shall be made, &c. but by Parliament. If only the difference be about the name, we must know by what name to correspond with them, and it is indifferent to me.

As to the objection, the Engagement: (fn. 20) it is in the power of a Parliament surely to alter government. I hold no Government jure divino.

For my part, I know not the difference of the name. We must, for our safety and peace, correspond with the other House. The Petition and Advice hinds us all yet. If we will have alterations in it, we must call them now by the title they are.

Sir Anthony Ashley Cooper. I move to be turned into a Grand Committee, for three or four days. There is a great deal more in it than appears. Admit Lords, and admit all. (fn. 21)

It is fit that laws should be plain for the people. We know what advantage the supreme magistrate and the other House always got by the learned's interpretation of them. (fn. 22)

Mr. Attorney-General. The long preamble against the House of Lords and the law itself, is only personal. If it had not been for a. House of Lords, we had not been a House of Commons. Prerogative had got far enough before. They purchased Magna Charta.

You say his Highness shall call Parliaments consisting of two Houses. If you rise without settlement, will you leave it wholly to him ? What power have we then reserved for ourselves ? None at all. There is now a door open to settle ourselves.

It was often told us in the Long Parliament, the sun grows high, and it is time to look about us, and prepare supplies against our evenings. We must of necessity come to a correspondence if we intend settlement They are Lords, called by writ.

I think you intended not to make seventy Barons at one time; but his Highness, who is the fountain of honour, may make them so. Some, I believe, refuse to be hereditary Lords; but as they are a body, and many of. them, as we cannot deny, are Lords already, I move that you call them so.

Mr. Chute. I did not think to have troubled you yet with any words of mine, unless monosyllables.

There remains with me many scruples.

1. From your question, what appellation? It is now varied. Whether we shall give the appellation, the Lords House?

There is a difference between the appellation of the Lords House, and the persons to whom we speak. We will not say, may it please your Lords House.

We call Lords the judges, when they meet with their brethren. Less worthy that you call Lords, the Lords Commissioners. His Highnesses eldest son, not improperly called Lord. So, by calling them so, you do not make them so. I hope we shall not be inveigled.

If you mean it Barons in fee, it much concerns the people. It concerns your justice to take away the titles and inheritances of the old Lords.

2. Can it consist with the foundation you are under, your Petition and Advice, upon which I cannot act till I have more trial of it. If you make them but peers for their lives, it is material.

There is nothing judicially before you as to this title. Could the judges say otherwise than they did ? Does it follow that we must shut up the doors of correspondency.

His Highness said in his speech, "My Lords and Gentlemen of both Houses of Parliament." Mark the ambiguity of that speech.

The message is of great piety; if not of necessity, yet of necessariness. Must not this make the way clear for concurrence P My motion is, that you return an answer as to the message, and not meddle with the title. Haply this will beget a conference between you, and it may be they will not have what you are about to give them. You may have a better season to debate this great matter.

Sir Arthur (fn. 23) cried, "Very exceedingly well moved."

Colonel Shapcott. This motion is against the Orders of the House. You are possessed of this debate, and look upon it as material, and to be first determined. After you have spent some days in the debate, now to give it over, and so many worthy gentlemen ready to speak! My motion is, that you adjourn the debate till to-morrow.

Mr. Weaver. I move for a Grand Committee for three or four days. It is fit that we have some satisfaction, that were not present at your former debates. It is a matter of great consequences. We that were excluded can only judge upon what we read in the printed papers; and I am sure there is not a word of a House of Lords there.

Mr. Bodurda. I move against a Grand Committee. It is but to destroy the business. I never knew other fruits of it. Certainly we may understand one another as well by once as often speaking. Besides, if any desire to speak twice, it will not be denied.

Sir Arthur Haslerigge. I ever observed, that fencing from a Grand Committee spent more time than giving way to it We are much beholden to that very learned man (fn. 24) that spoke near the post. I honoured him in my heart, and do much more now. I haye received great light from him, and hope for much more. If I had but light, did I know as much as any man here, you should surely hear of it; you should have it all, whatever I knew. The worthy gentleman that spoke a while ago, was at me the other day with a long sword; (fn. 25) and now he is at me with my bishops' lands. (fn. 26)

I thought not to have troubled you, but now I am up, I will tell you truly why I will not take the Bishops' seat; (fn. 27) because I know not how long after I shall keep the Bishops' lands. For no King no Bishop, no Bishop no King; (fn. 28) we know the rule. I like your company very well, gentlemen; and I do aspire no higher than to be a commoner of England. I had an estate left me, besides my own acquisition, that will maintain me like a gentleman. I desire no more.

This debate was waived, and the House rose at one.

I was at no Committees, it being post day.