The Diary of Thomas Burton: 21 April 1659

Thursday, April 21, 1659.

I came late, and found the business of the militia in debate.

It seems Dr. Petty had made his defence to the charge, and Sir Jerome Sankey his reply.

Dr. Petty did, first, in general, deny all the articles, and then, particularly made answer to every one of them; denying the charges in every one of them severally. He desired that he might have a charge brought in against him, in particulars, that he might be thereby enabled to vindicate himself, effectually.

Sir Jerome Sankey instanced in some certain particulars, which he supposed would make good the first, second, and third articles of the charge, (fn. 1) brought in by him against Dr. Petty.

He farther informed the House that, whereas Dr. Petty ought to have returned all original maps, field-plots, and field books relating to the lands in Ireland, and belonging to the office of the Surveyor-general in the Exchequer at Dublin, according to the Act of Parliament in this behalf, he had only returned transcripts of them, and keeps the originals himself, in his own hands.

Dr. Petty informed the House that the particulars in his hands were foul books and papers, out of which those he had returned were extracted; but that he should be ready to deliver them as the House should give direction.

Resolved, that this business concerning Dr. Petty be resumed, and be farther heard on this day se'nnight, and that Sir Jerome Sankey do then bring in a particular charge in writing against Dr. William Petty.

That it be referred to the Lord Lieutenant of Ireland, and the Council there, to take care that all, the original plots, fieldbooks, and books of reference relating to the lands in Ireland, in the hands or custody of Dr. William Petty, be, at the same time, certified here, and secured according to law. (fn. 2)

Major Beake had moved that the militia be declared to be in three estates, and that his Highness take care of it.

Mr. Annesley seconded that the militia be declared to be in the three estates.

Sir Arthur Haslerigge. It is fundamentally in the people, and ought to be debated in a Grand Committee.

Sir Henry Vane. This (fn. 3) is giving the quarrel that you had with the late king. (fn. 4) It is properly moved for a Grand Committee; and to appoint a day. If you will not do it in a Grand Committee, take it up to-morrow. The business of the legislative is not now in dispute; but the executive power.

Mr. Bayles. The two last gentlemen moved that which will bring you into a maze for ten days, till the nation and the House be about your ears.

I expected an answer to be given to the arguments for settling the militia, as it is moved; but I hear nothing of that.

Mr. Neville. The general, that is dead, (fn. 5) stood up in that place, and urged unanswerable reasons why the militia should not be in one single person. (fn. 6) If this had been then denied, we had not been here. I am against the present debate; but to put it for a Grand Committee. This is to make way for the Cavaliers.

Mr. Raleigh. He that has the sword will be Chief Magistrate. The safest way is, to pass this power into the Protector and the two Houses of Parliament. All Commissions in the country were from the Chief Magistrate.

Colonel White. Your question comprehends the whole matter. Do not leave this thing without settling it so as that it may not be liable to future exception.

All Commissions in the country were a mere usurpation of the Chief Magistrate; but were anciently granted in Parliament.

If you pass this question, I may say as a worthy gentleman in another case, you establish his Highness to all intents and purposes.

Mr. Higgons. There is a necessity of concluding this debate before you rise. Peace with France and Spain, say our letters, is ratified.

If you divide those two powers, general and protector, I shall deal faithfully with you, I had rather have him genera than Chief Magistrate. Doges of Genoa and Venice are Chief Magistrates, but have it but as a mere power. One cannot stir out of doors without leave. The other is for two years.

Lord Falkland. I am for a Grand Committee. I have heard of the Gordian knot. If we part with the sword, we can never loose the knot. It is all we have left, put it not out of your hands. (fn. 7)

Sir Walter Earle. The way to keep it, is to put it as is moved. Some others abroad (fn. 8) seem to arrogate the militia to themselves. It is time to look about us. I own the Petition and Advice.

Lord Lambert. There is much of that point in this question, whether we shall be Englishmen or not Englishmen. It is told you, it is not a putting it away but taking it in. It is a putting it out of your hands.

This House is a fluid body that is gone. So the other may be likewise gone; and then the single person has it.

Consider, first, how it shall be executed in the intervals; that where you leave it you may be sure to find it.

It is worthy taking into such consideration, that every man that is here may fully speak his mind in a Grand Committee. Turn not away, thus, the precious prerogatives of the people. The votes you have already passed, have gone a great way.

Mr. Knightley. Quibene distinguit, bene docet. You must distinguish the militia as an army, and as settled in the country gentry that had lives and fortunes to answer it. The Parliament raised the army. Lord Fairfax was general, then. He that is imperator may be dux, but to run suddenly on this, we may repent. It is said by a gentleman, he would choose him general before protector. Therefore, consider it better. Settle it not so, as to be forced next week to alter it. Consider it in a Grand Committee to-morrow.

Mr. Turner. The present time is yours: but whether tomorrow is yours, or no, is not known.

It is fit every man should say what he knows. It was our ancestors' prudence never to determine this question. It was not to be altered, but by Act of Parliament. The single person could not intermeddle, alone, to call any out of the county.

You may assert where your militia is now, but not where it shall be. The city, by a jury of twelve, have determined who shall be general. Another meeting at another place, will name you another.

It behoves you to determine this point; that his Highness may execute due authority this present Parliament. I would therefore have it quickly determined. I would have, therefore, every man to know what he speaks, and speak what he knows.

Mr. Trevor stood up to speak, but

Lord Lambert moved that Mr. Turner explain who he meant by the twelve that had agreed of a general, and wished he might name them.

Mr. Turner explained that twenty-five officers of the militia in the city met, and thirteen carried it against twelve.

Mr. Bayles explained to the same purpose. There was a petition to the Lord-General Fleetwood, and, with much ado, an address to his Highness that such a person be general.

Major-general Kelsey. It is fit that every man should speak what he knows. That gentleman, meaning Mr. Turner, speaks more than he knows.

Mr. Starkey. Seeing that gentleman knows it better, let him speak what he knows.

Mr. Lloyd. That is a mistake. What is done, is not done by the militia of the city. The case is sad, what is done. I heard, that no authority has been given to it, since the Protector's death. I have heard it often stirred, who shall give commissions. Some say the power is dead with the Protector. This can give none. If distraction come, who shall head us ? Let us not flatter ourselves. Consultations are held without: Some, in power, have the ammunition in their power. You have to-day, but are not sure of to-morrow. If you command me, I shall tell you what they have done. I would have a speedy course taken, for some to grant commissions.

Colonel Rigby. I hope the soldiery about town will not meddle in your affairs. This is a business of the greatest weight that ever came, or will come before you. Let it, therefore, be adjourned till to-morrow morning, and debated in a Grand Committee.

Lord Falkland. I would have the person named that was resulted by the jury in London; to be general, that he be made exemplary, lest you be a mock.

Mr. Annesley. Divers members of this House are of that militia. I would have them tell what they know. I doubt there is cause for some such jealousy; that we shall be imposed upon, as formerly, and divers taken out and a few sitting. (fn. 9) I would have you first resolve, that none shall impose upon you from without doors.

Mr. Biddulph. The militia of this city was never summoned, I am one, and had no notice. There were twentyseven of the militia met. There were thirteen for these papers that have been brought up, and twelve against them.

I am assured that neither the city, nor the militia of London, will intermeddle with any affairs of this House. It was cried, "name him."

Mr. Hewley. It is not enough to declare that you will not receive imposition from without doors. You must do somewhat else.

To have this militia every where, is to have it nowhere. Two suns cannot shine in one firmament. The longest sword will determine it. It is not fit to set the executive and the legislative power to quarrel with one another.

We give his Highness, by this vote, only authority, hac vice, to give commissions. We do not settle it upon him, absolutely.

Lord Falkland. While you are disputing about who shall be the general, you hear they are setting up another in the city. I would have him named, that if it be real, we may remedy it; if but a brag, learn it, that it may not fright us.

Mr. Solicitor-general. Your militia, nor negative voice, never was your quarrel. It was never disputed that it was in King, Lords, and Commons; but wise men have not meddled with it. That it was in the two Houses, without the single person, or contra, would never be granted. Wherever the legislative is, the militia is; but yours is the case of distribution, as who shall lead your army and grant commissions.

It is for your service to consider who, for the present peace and security, shall command your army; and whether this to be from the Protector and both Houses of Parliament, and to receive orders from all. This ought speedily to be done, and then consider the person.

I went out, and presently after the House was divided upon the question, whether the question be now put that this debate be adjourned till to-morrow morning.

It was carried in the negative by 152 to 115. Sir Arthur Haslerigge and Mr. Trenchard were Tellers for the yeas.

Sir Charles Coote and Major-general Browne were Tellers for the noes.

Resolved, that the matters now in debate be adjourned for an hour.

Resolved, that Sir William D'Oyly shall have leave to go into the country for a month, notwithstanding the calling of the House.

Thursday Afternoon, April 21, 1659.

Mr. Speaker took the Chair at three.

The Declaration for excluding the Cavaliers was read, and ordered to be ingrossed; and the consent of the other House to be desired.

There was a debate about the title of it; whether "the Parliament," or "both Houses of Parliament." Resolved the latter. (fn. 10)

The order of the day was read, touching the debate adjourned; but it mentioned not what the debate was. Query, if regular; but the clerk said the Speaker would not enter it otherwise. (fn. 11)

Mr. Serjeant Wylde made a long speech, against placing the militia in a single person; not much heard, and less regarded.

Lord Falkland. The militia to our ancestors has always been a secret of state; and they would never define where it was. To prevent the fire that will be kindled amongst the pretenders, who will all inforce their title the best they can, appoint commissioners to manage this business.

Sir Robert Goodwin. In determining this, you determine the whole business of this Commonwealth. To make this haste, swerves from all form of proceedings in former times. Other then in a Grand Committee this cannot be debated. We took an oath to conserve the liberties of the people; and to pass this suddenly !

Colonel Allured and Mr. Edgar were for a Grand Committee, and could not so forget the old cause as to put it out of our hands.

Mr. Drake. Endeavours have been, before we met, to wrest the militia out of the Protector's hands; now to wrest it out of yours, by a sort of men without doors. I would have it declared, that the power of disposing the militia is in the Protector and the two Houses of Parliament.

Mr. Stephens. It has been told you, while you are debating about it, others are wresting it out of your hands.

I apprehend it is not the question that you are going about, to settle the militia in the single person. That were more fit for a Committee. But it is far from that. There is the raising of the militia, and the executive power of the militia, which cannot be safer than in the Protector and the Parliament; for if it be not so, then it must be in some other.

If you please, declare that the power of executing of it shall be in such persons, and no other than such, as shall be approved by this House. I fetch my authority from the book of Edward the Confessor's time.

I shall give my vote that the militia be in the Protector and both Houses, to be executed by such persons as shall be approved of by this House. This does neither narrow our own power, nor exclude the other House.

Mr. Scot. This looks like Hezekiah's will, "put thy house in order, for thou shalt die and not live."

The Protector, "so named," is but de bene esse; and until you have bounded him, nothing is binding to the people. The case is, you are going to give the Chief Magistrate a negative in the militia, and so, his will be an executive power, both on the legislative and the militia. If he would lie down and wish, he could not wish more. I think you are not ripe for such a resolution.

If he want any money, or that the Excise and Customs stick by the way, he will be able, at any time, to inforce them. The last Parliament gave away 1,300,000l. per annum, and you give away the militia. To a son of Adam, a greater power than ever king had, you are giving away; the Trojan horse with more arms in it than ever were in that horse.

Lord Marquis Argyle. I hope the Parliament will be so wise as to give no more nor less than is necessary.

I was here in 46, in your service. The proposition that you agreed on was, that the King would grant the militia to be disposed of by both Houses, without him, for twenty years. I think the question was then about the executive power of the King singly, without the House, and that brought on the war.

If granted, put a very good salvo in your vote. If you vote the militia to be in the Protector and the Parliament, add "to be disposed of as you shall direct, as to the executive power;" and so you determine it, not where the executive is.

Sir Henry Vane. At that time the Scotch Commissioners did assert the right of the King in the militia; and if you please to read the Declaration, you will find upon what account that Declaration was published.

Mr. Starkey. I am against reading the Declaration. Men were then divided in their judgments, as well as in the field; therefore, I should hardly rest my judgment upon those things that were begotten out of controversy. I will not say, but I went along with it; yet I would not have such things for your rule now, lest it lead farther.

The first question about the militia was, that it was in the King, and that raised the difference; but we are not at that now. We are gaining and settling it in us, which is an advantage for the people; and it had saved a great deal of strife before, if this had been granted, that it is in the Protector and the two Houses of Parliament.

The Declaration was going to be read. It was long.

Mr. Godfrey. I move against reading it; as, by the same reason, you may read all Declarations, and what passed in the Long Parliament, and debate them, which will be endless.

The quarrel never was on the militia, but only on bringing delinquents to punishment. It was his duty by the law of God and man to assist in their punishment, which he neglected, and that was a great part of the quarrel.

Constantly, the legislature has been executed by the three estates. I do not know that it will be safe, nor possible, nor rational, to separate the militia from the legislature. If the legislature of the militia be in one single estate, then all is there. I am not able to reconcile this difficulty, that it is possible to separate the legislature of the militia from the legislature— (fn. 12)

All powers on earth are temptations; therefore, must no man be trusted with the power ? The three estates are not free from temptations. All is misrepresented in the debate. It is not once moved, that the power shall be in the single person. Farewell magistracy, and all rule and government! Men must therefore have no trust. This takes in pieces your whole form.

Any gentleman may recite the Declaration. If I quote an author, must I bring the book, and desire you to read it, if it be so ? Every man that lives under a law is supposed to be knowing of it.

I much fear you have not leisure, actually, in a Grand Committee, to determine this. If all be true that is said, while you are debating it, another without doors will get it. Strange pamphlets fly abroad directed to persons without, in a subordination, mentioning to live and die with him. These are high and dangerous things, and these are printed without your allowance. I am afraid of the consequence.

This calls for a speedy advice and resolution. When the balance comes between being, and well being, I must lay it more to heart. There is more need than I can understand and haply approach to, to put this off your hands, by putting the question.

Sir Walter Earle. First determine whether all Commissions are void by the death of the Protector; and then, consider where to place your militia.

Mr. St. Nicholas, and divers more, moved for a Grand Committee.

The Declaration (fn. 13) was read; and then another Declaration.

I went away at five, to Justice Lowther's funeral. Query, what was done ?

The House sat till six, and the other House till then; but I believe neither came to a question: only adjourned the debate till to-morrow morning. (fn. 14)

The Committee for Northern Ministers met, and adjourned till Saturday. (fn. 15)