The Diary of Thomas Burton: 29 April 1657

Wednesday, April 29,1657.

The House resumed the debate, adjourned yesterday, according to former order. (fn. 1)

Mr. Godfrey moved that the mace might be sent for the judges and the members; which was done accordingly.

Mr. Bond. If the judges would meet at six o'clock in the morning they might do all the business in those three hours, and attend the House at nine. Public business is to be preferred before private. The judges never used to slight the Parliament so much.

Colonel Ireland moved that the ordinances for reviving the jurisdiction of the Duchy Court of the County Palatine of Lancaster be continued. It was accordingly

Resolved, that an Ordinance (February 28,1654) for reviving the jurisdiction of the County Palatine of Lancaster, and for holding Assize there, be continued as aforesaid.

Resolved, that one Ordinance (June 21, 1654) intituled an Ordinance appointing who shall be Justices of Assize for the County Palatine of Lancaster, be continued as aforesaid.

Resolved, that an Ordinance intituled an Ordinance for reviving the Court of the Duchy of Lancaster, be continued as aforesaid. (fn. 2)

Lord Eure, Lord Lambert, and Colonel Sydenham came into the House, and Judge Swinton came in yesterday.

Mr. Disbrowe reported from the Committee touching the ordinance for confiscations and donations in Scotland.

A proviso was made that the wives and children who are required to make releases by that ordinance shall have six months' time to make release of their claims.

Mr. Disbrowe also reported from the Committee touching several donatives in Ireland, and so provided that this extend not to make void the order of Parliament touching donatives to Sir Christopher Coote, the relict of Sir Simon Harcourt and others, and concerning officers in Ireland.

The Report, yesterday made, was read, and the first debate was about continuing the Ordinance.

Lord Lambert made a long speech on the behalf of the creditors of those persons whose estates are forfeited there. He said addresses had been made to his Highness, who seemed willing to do something in it. He also moved concerning two donatives upon the Lord Lauderdale's estate, and that the whole might be referred to a Committee; else all these debts and the relief of wives and children will all fall to the ground, and the estate will not be able to bear it, if they go this way to work.

Mr. Disbrowe. If these be not confirmed, all will fall to the ground indeed. It is a question when the House will have time to pass a Bill. The poor people will be wholly remediless.

Sir Richard Onslow. I move that it may be recommitted, and that Lord Lambert may be added, and to bring it in within an hour, and unless you relate also to the order, you discontent a whole nation, and undo a great many.

Lord Cochrane. If you confirm this ordinance without relating to the order, you cut off all the creditors at one blow; and undo a great many poor families. We have lain out of our monies for seven years, and if you do this, we shall never be satisfied. I would have the donatives first satisfied, and the donors to keep possession till then, and that out of the rest the debts may be paid.

This clause was recommitted, and Lord Lambert and Lord Cochrane added to the Committee. They withdrew immediately.

That part of the Report for Ireland was read.

Mr. Trevor. By this you confirm the estates of your enemies, who were adventurers, as Sir Gilbert Gerrard; and this is depending before the Council.

Lord Whitlock. Without this clause you will invalidate all your former ordinances and settlements upon this account.

There was a great debate about, the right of Serjeant Dendy against the adventurers; the adventurers would stand to law, and Serjeant Dendy appeals to the Parliament. The matter has been depending before a Committee many months, and it hangs here. The parties complained of are members, and claim their privileges of answering in their seats and not before a Committee. However it is fit the petitioner should be heard, be the complaint just or unjust.

It is not proper now to move it to you; I shall take it in its time. I have waited an opportunity three months.

The Master of the Rolls. It is very just that all those settlements should be confirmed. Harcourt died in the service. He was a gallant man, and for Serjeant Dendy's you may say it shall be no prejudice.

Mr. Hampden. I move that Mr. Trevor may be heard again, and that you would leave Serjeant Dendy's right to stand upon its own foot.

Mr. Bodurda. I move that you would confirm the grants and not the estates, for I hope you will not lay your hands upon any thing that is in controversy.

Major Aston. There is no need of the proviso. I desire it may be laid aside, and leave Serjeant Dendy's title as it is.

The Master of the Rolls. I move to sever the question, and leave out the general clause, which takes in all that have been faithful.

Mr. Godfrey offered another proviso.

Mr. Speaker. It is not proper, till the other proviso has had your sense upon it.

The proviso was referred to a Committee, to take all the orders into consideration.

Mr. Pedley offered the ordinance for the better support of the Universities in Scotland, which was omitted in the Report; and it was voted to be continued.

Mr. Speaker proceeded to put those acts of the little Parliament (fn. 3) particularly to the question.

Mr. Thistlethwaite moved that the Act for Marriages (fn. 4) might be but temporary, for six months.

Major-General Disbrowe moved that it might pass as the rest do, and not leave this at a loose, lest we be without any way.

The Master of the Rolls. There are other ways for marriages; one in the Long Parliament, which certainly was of equal authority with a vote of the Little Parliament. Now people marry three ways. I desire it may be but for six months.

Mr. Rouse and Lord Howard moved that it might be indefinite as to point of time; lest it be left loose, and no form at all, and desired it might be directed to a Committee to bring in their Bill for both.

Lord Chief-Justice Glynn. I move that it may be but temporary, for six months. It is all penned; you may, if you please, leave it indefinite. The Act you have prepared will not be so speedily brought in.

A gentleman being asked how many wives he had had, he said he had had seven wives, but he had been ten times married, viz. three times married to his last wife. This was Sir Gervase Clifton.

Lord Whitlock. I move that it may be continued indefinite, lest you leave it loose, and invalidate what has been done in pursuance of that act.

Mr. Bamgfield. I move that the time of its continuance may not be above six months, or that it may be laid aside. It was made but in a nugation of the ministers, and there is another form in force in the Directory, (fn. 5) which is of equal, if not better authority.

Colonel Jones. For those reasons against it, I am for the indefinite continuance of it; because it is inconvenient and absurd. It will hasten your other Bill.

Mr. Attorney for the Duchy. It is the first time that ever I heard an argument for the continuance of. any law drawn from the absurdity or inconvenience of it. There are great inconveniences in the Act, and there is a Bill ready prepared which will rectify it. I desire you would not continue it above six months. It is strange that which has no legislation in itself (fn. 6) should be the foundation of a legitimation to all the families of the nation.

Lord Strickland. If you take away this form, I doubt you will leave none. The Common Prayer way is taken away by Act of Parliament. (fn. 7) It is doubted by some whether the Directory way be not dispensed with by the Ordinance. It were well if a man could marry that way, that he might have his wife by a Directory, and govern her so.

Mr. Speaker. It ought to be considered whether you will continue it at all; for if you give it the stamp of your authority, you confirm it, and the inconvenience, will be great to many families in England. You make void all the marriages otherwise made, by one express clause in this. (fn. 8)

Colonel Holland. You ought not to be a Directory to this House. It might come better from another than myself; but such as this ought not to be. It has not been usual in Parliament. This will work indeed for the lawyers.

Mr. Speaker stood up and vindicated himself, and said, I did but inform, as amicus curiœ, but if you will make void all the marriages of England, you may if you please.

Mr. Bond. I agree with your opinion. I would not have it continued for a moment. I have been talked to, sufficiently, for confirming laws by a lump. There are other forms provided. I desire this may be laid aside.

The Master of the Rolls and Colonel White stood up together. Mr. Speaker called to the Master of the Rolls, but Colonel White hotly insisted upon it, to have his privilege, as a member, to be heard, for the Master of the Rolls had spoke This bred a little heat and debate in the House, and Colonel White would be, and was heard, to speak accordingly.

Colonel White. I would not shake the foundation of mar riages. By casting a dislike upon this, you will bastardize a great many families, and make work enough for the lawyers. If you take away this form before you provide another in the room of it, you leave all at a loose.

Mr. Fowell. I am against continuing it at all; for it is not one marriage in one hundred that is made pursuant to this Act, and you will bastardize families indeed.

The question was put to agree with the Committee.

Mr. Speaker declared for the Yeas.

Mr. Thistlethwaite excepted. So the House was divided.

Yeas went out. It was equal in the number, 69 and 69.

The Speaker stood up and reported, and said, I am a yea, a no, I should say. This caused an alternate laughter all the House over, and some said he was gone. (fn. 9)

Lord Chief-Justice Glynn and Mr. Thistlethwaite stood up, and said the Speaker might rectify his mistake at any time before the order was entered. Precedents are full in the case.

Mr. Speaker stood up, and explained his mistake, that his meaning was he was a no.

Mr. Drake. There is another gentleman that was also mistaken in giving his vote.

Mr. Cary stood up, and said he was mistaken in his vote, for he thought the noes had been ordered to have gone out.

This bred a great debate, whether the privilege of the one member, to rectify his mistake, might not as well be granted as the other.

Colonel Jones doubted not but the privilege was equal to one member as to another. He desired, notwithstanding, seeing the providence of God has so ordered it, that, though he was against, it might be passed by.

Colonel White and Major-General Kelsey. Either take you at your word, or divide again, the privileges of the members being equal.

Mr. Thistlethwaite. Once quit your orders, and you lose all. If you give way to divide again, you put it in the power of any member hereafter, to stand up and say he is mistaken. If a man be of that conscience, as such men may be, it may prove of dangerous consequence.

Lord Chief-Justice Glynn. I agree the precedent to be dangerous, to divide again. By that rule any vote may be recalled.

Mr. Attorney-General. This way is of most dangerous consequence.

Major-General Disbrowe. I believe your heart was indeed against it; but we are rather to look upon the providence of God in it, in directing your tongue to give that determination.

Lord Strickland. I would not have you surprised in your vote. It is certain the other gentleman cannot recall his vote, but you may recall yours. The precedent is ordinary. In the Long Parliament, the Tellers were mistaken in their report, and were rectified by those that sat within. At least eight or nine were over reckoned, and it was recalled before the order was entered.

The Lord Chief-Justice and Mr. Attorney-General agreed that the case was well cited.

So, not withstanding all the heat, it was resolved negatively.

Major-General Kelsey and Major-General Disbrowe moved, that it might be continued for five or six years.

Mr. Westlake. The first debate was upon six months' continuance.

Lord Chief-Justice. First it was moved for six months; for they may as well move for five hundred years, as for five. There is a Bill ready to pass, to this purpose, which surely may be done in six months' time.

Sir John Reynolds offered an expedient, that it might be continued till the first sessions of the next Parliament.

Major-General Goffe moved, that it might continue for five years.

Lord Fiennes. The time is indifferent to me; but I would have that clause left out, which makes all other marriages void.

Colonel Stewart. I second that motion, to leave out that clause; for there is another way of marriage provided, which is still of force, viz. by the Directory.

Major-General Goffe. This will leave the nation under two or three ways, and is, in effect, to null this which you are going to confirm.

Colonel Jones. I am neither for the one nor for the other. It will not be for the honour of the Parliament to have the nation under two or three forms, and it will but entangle the ignorant, and quite null what you are going to confirm. I desire it may be put for six months.

Captain Hatsel moved that it might be put for five years.

Mr. Godfrey moved that it might be for six months.

Mr. Bond. I am for taking away the clause. I have known the most knowing and eminent persons in the nation married the other way. They would never submit to this law.

Mr. Attorney-General. I do not know any precedent for it, that ever there was a law made to make marriages void. The parties that stole marriages, or the like, were otherwise punished. Wise men thought before, that the authority would fall of itself, and so the law will fall; but now you confirm it. You make it a law, which was never de jure a law before, and so lay a foundation for suits all England over.

Lord Broghill. If you confirm this, which was never looked upon as a law, you punish those who, in asserting the rights of the people to make laws, would never submit to this, and you encourage those who would observe no other, because they were by another authority than the people usually intrust.

Lord Whitlock. There is a necessity that you should leave out that clause, though you continue it but for a day; for the time of the continuance of it is not material.

Major-General Disbrowe. I am indifferent whether you continue it or not, if you take out that clause.

Mr. Bodurda. I have given my consent to seventy-five laws (fn. 10) since yesterday at this time of the day; but, if you continue this Act hut for a moment, you must take out the clause.

Sir Richard Onslow. I doubt you are going to run upon a greater rock; for, by taking away this clause, you confirm all marriages made by ministers, though without consent of parents.

Mr. Speaker put the question whether this clause should be part of the question; Yea and No was given, and the question was mistaken, as some thought, which was very intricate, and the Speaker was at a loss to explain his meaning. And he was called to declare, which led us into a confused debate.

Colonel Cooper questioned the Speaker for pinning our votes upon his meaning.

Lord Whitlock offered another question thus, "That this ordinance might be confirmed without this clause."

Sir Charles Wolseley. You can put no other question till the House divide upon this. The question was rightly put, for those that were Noes would have the clause left out, and be no part of the question. Those that were Yeas would have it stand; and if men were mistaken in their Yeas or Noes they may help it upon the division.

Mr. Bampfield. I conceive the question was rightly put, as it has been moved before; and, therefore, would have you to declare that the House may be divided, which will decide the controversy.

Colonel Jones. Those two gentlemen are mistaken; and yet the question was rightly put; only gentlemen were mistaken in their Yeas and Noes.

The question was read with the word "except" in it, which was not in the former question.

Major Burton. After a quarter of an hour's debate you have made it as you would have it. I gave my No to the question, but it is altered since.

The House was going to divide, and was in a great confusion.

Lord Whitlock. It does not become the gravity of this House to be in this confusion. It is a matter of high consequence; but, in my opinion, you cannot divide, for that men were mistaken in their votes. Besides, many members are gone out, and then you cannot divide.

Mr. Attorney-General and Mr. Godfrey. You cannot divide now, for divers members are gone up, (fn. 11) and some come down, and you cannot do it.

Lord Lambert. None are gone out, and the only way to decide it is to divide; for though men be mistaken in giving their vote, yet I may, at any time, before the dividing, recall my mistake.

A great debate, whether the House should be divided, or a new question upon it.

Mr. Bond. We have usually, upon such a mistake, made a new question.

Lord Broghill offered it thus, That this clause shall stand as part of this Act. Let that be the question.

The question was put as Lord Broghill offered it.

A new question put, and the old waved.

Mr. Speaker declared for the Noes.

Mr. Tymbes excepted for the Yeas, but yielded it afterwards. So it was resolved (fn. 12)

General Montague moved to adjourn for two hours.

Sir John Reynolds. I move that you would adjourn for two hours. I know not how soon I may be called away, (fn. 13) and I would fain see an end of it before I go. I moved it not only for my particular good, but for the public.

This was seconded by two or three more. So it was resolved to adjourn till four o'clock.

Post Meridiem, at Five.

Sir Richard Onslow offered a proviso to the Act for mar riages, touching making all marriages void, when the woman, under twenty-one, shall have married without consent of parents or guardians; but, after an hour's debate, it was thrown out by the question, whereupon the House was divided. (fn. 14)

Mr. Godfrey and Colonel Stewart moved that this proviso might take place for the future.

Mr. Bond, and the sense of the House, being against it, it was laid aside.

Mr. Disbrowe reported from the Committee appointed, this morning, to pen a proviso touching the confiscation and donatives in Scotland, and preservation of the rights of creditors, which was read.

Mr. Bond moved to have it "wife or wives," for a wife cannot do without another with her.

Mr. Swinton moved, that the Countess of Lauderdale may have no benefit of the 600l. per annum, given to her by that order, unless within six months she release her jointure.

That estate was much encumbered with debts.

Mr. Downing explained for him, and seconded that motion.

The Ordinance with these provisos being passed,

Mr. Swinton offered a proviso, that nothing in that Ordi nance shall be understood to impeach the Articles made by the Commander-in-Chief, with any of the persons therein named, which have been confirmed by his Highness and the Council.

Lord Broghill. I second that motion. It was very fit that you should confirm the articles of war, and you are safe enough in this proviso; for you ratify none but such as his Highness and the Council have approved.

It was passed accordingly.

Mr. Sxinton offered another proviso for the pardon of Callender and Cranstone.

Lord Tweedale and Lord Broghill seconded that motion. His Highness hath showed much favour to one of them, viz. to Cranstone, and he hath done good service in Sweden.

Mr. Secretary. I doubt that Cranstone hath not done such good service as is moved. It is true, he raised some men in Scotland for the king of Sweden, (fn. 15) but I hear they are since gone to Middleton, (fn. 16) whether by his consent or no, I cannot yet say.

Lord Howard. There are but two persons presented to you for pardon in this case, and you are told how they have done good service. If there be but two hard cases offered to you, you may very well pass it.

But it was laid aside;

The Master of the Rolls offered another proviso, but it was not read.

Colonel Jones took him down, and said by this vote we shall never have done. There may be so many provisos brought to every ordinance that passed yesterday, and this was passed then.

Major-General Disbrowe. I moved that you would explain from what time the Act of Marriages shall commence; for it seems it is expired: for it is six months since the Parliament began, and those six months, are to begin then, unless you express the time when those months shall commence.

It was resolved to. begin at 29th of April, accordingly.

Lord Lambert. I move that, seeing you will not pass the former proviso, for restoring those two honourable persons, Lords Callender and Cranstone, you would order a Bill to be brought in.

It was referred to Lord Broghill, Lambert, Swinton, Howard, Tweedale, and others, to bring in a Bill to that purpose.

Mr. Godfrey offered a proviso, or that it might be inserted in that Act to remit all fines, that by his Highness or his Council, have been ordered to be remitted.

This motion was waved, as the other was, for haste's sake.

Mr. Speaker went oh upon the remaining part of the reports, and passed them all without debate, till it came to that about the Ordinances for the Excise and Customs.

Mr. Disbrowe moved, that the order and declaration touching the Excise and Customs in Scotland, might be confirmed.

Mr. Bampfield. There are laws ready prepared both for the Excise and Customs, which will supply all those that, you are going to confirm at a lump. Certainly there are very grievous clauses in those laws. This is like King James making knights, where, in a room full of men, women, and children, he declared them all to be knights.

Captain Lilburn. I am sorry to see all those laws brought in to be confirmed at a lump, which are so grievous to the nation. If you will not lay this aside, I desire you would, leave out those words, &c. (fn. 17)

Colonel Philip Jones. Though there may be grievous clauses in those Ordinances, yet free quarter, and your seamen coming amongst you, (fn. 18) is more grievous. You are no further from providing other laws to supply them, though you do confirm the former.

Mr. Godfrey. It may not be convenient, rebus sic stantibus, wholly to take them away, but they may be continued for three years. Though it is likely that this must raise the greatest part of your revenue, yet such occasion may be, that you may diminish or increase the duty of excise, or you may alter the way of bringing it in. Haply you may do it by the exchequer way. I shall, therefore, move that it may be temporary, and not made perpetual; which would never have been thought proper in Parliament, to move to perpetuate a charge upon the people.

Yet, notwithstanding all this, it passed without further debate.

Major-General Disbrowe (fn. 19) excepted against the vote of the Committee, touching the right of the commoners to the forests, that it was too large, and that the soldiers have been long enough without their arrears.

Colonel White was of this opinion.

Yet it was passed to agree with the Committee, and the Committee was appointed to bring in a Bill to preserve the right of the commoners, &C. (fn. 20)

Colonel Jones offered a clause in parchment, to confirm a donative of 100l. per annum, given to one Mr. Valentine, in a clause of the Little Parliament.

Major-General Kelsey, Sir Richard Onslow, and divers others, moved that the clause might be read.

Mr. Thistlethwaite and Mr. Pedley. Bring in a Bill, which is as effectual. Otherwise business will break in upon you.

Colonel Jones. I think that, if you make a vote to continue it, and order a Bill to be brought in to that purpose, it will be as effectual as if you had read this.

The clause was read by the clerk:

Mr. Lister. The party that brings in the clause ought always to read it.

Resolved, that the Committee last named do bring in a Bill to this purpose.

Mr. Speaker. All is done but a clause and a half. I wish to know if you would go on.

Mr. Godfrey and Major-General Disbrowe. You should adjourn. It cannot be known what debate this may bring on.

After a little debate, the debate and the House were adjourned at past seven. (fn. 22)