The Diary of Thomas Burton: 7 March 1658-9

Monday, March 7,1658–9.

I came late.

Serjeant Waller reported from the Committee of Privileges, touching Malton, that the election of Mr. Howard and Mr. Marwood was good, and of Mr. Robinson and Major-general Lilburne not so. (fn. 1)

Serjeant Maynard, Sir Walter Earle, Mr. Knightley and Sir Lislebone Long, moved to agree with the Committee.

Lieutenant-general Ludlow and Colonel Alured moved against it.

Colonel White. If you agree with the Committee, I move that it be with a saving to the right of New Malton.

Serjeant Maynard, I cannot allow that contradiction in your vote.

Sir Arthur Haslerigge. For your justice sake, recommit it; because you denied witnesses of New Malton, and admitted Old.

It matters not to me who come here. If the country choose them, let them sit. I have but troubled myself too much before in this kind. I shall never do so again. I have contended to bring in honest men, and when they have been here, they have not proved as I expected. I. will never come at that Committee again.

Mr. Hewley moved to agree with the Committee.

Mr. Knightley. The witnesses of New Malton ought not to be excluded. They speak not in their own cause, but for the people's cause. We serve now for three nations.

Mr. Neville. There is a Petition in some person's hands touching this business. They make it out that their right was in the time of Henry VI. The like case is in Windsor. The writ goes to Windsor in general, yet New Windsor chooses always, and not Old. I would have it recommitted.

Serjeant Seys. I move to clear that right of excluding the witnesses. The party admitted on the other side appeared to be interested in both places. He swore against his own right. Again, this was laid aside, and they agreed to insist upon another issue, and upon that point of usage did the Committee judge. Nought appeared to the Committee, that New Malton had a distinct right; I move that the Committee have duly reported it.

Sir Anthony Ashley Cooper. I was not satisfied with the excluding the witnesses; only they said this was not matter of fact, but matter of right. This to me is as much as to say in what is not material, they shall be admitted, but in what is material, not. I move that it be recommitted.

Mr. Manley. The witnesses were justly excluded; for though they got not a piece of land by it, yet they got what may be a greater advantage, a privilege to send members here. In all courts wherever I came, if the witness is to gain or lose by it, he is always excluded.

Sir Lislebone Long. I wish this report had not come in. I would have it off your hands. This business of the excluding the witnesses is not now in dispute. The Counsel on both sides did agree upon an issue here at the bar, and there was no complaint at all of want of evidence; and the Committee went upon this very point. It appeared plainly, that the Lord's Bailiff was the Bailiff for the borough, and sworn by the Lord.

If you please to create yourself the trouble to recommit it, I shall not be against it, but I know not to what purpose.

Captain Baynes. By the common course of the country, if a man speak of Malton, it is meant New Malton; and if of Old Malton, he says Old Malton.

In this case the clear failure was by excluding the witnesses. The Petition which was spoken of is in my hands. I have it here. It is from the inhabitants of New Malton. Whether will you hear it, or refer it to be tried at the assizes ?

Mr. Danby. This did not pass upon a single testimony as is alleged. There was also my own testimony, upon my own knowledge. The right of the two towns was never disputed till now. A fellow, one Arey, got himself made Bailiff, but four days before the election, not duly sworn nor chosen, and never questioned till now. I was witness of divers elections.

Mr. Weaver. If you would do justice to both parties, you must hear both. It is but just, the Petition should be heard. It was never denied in the Long Parliament, or any Parliament, no, not in this, but in this one case. If you please, open your doors, that the five or six witnesses that were excluded, may be heard out. I would have it recommitted, that you cut not off a right at once, which none of your predecessors ever did.

Sir John Lenthall. I did attend the Committee, and in my opinion, the witnesses were well excluded; for if they did not swear themselves into an advantage, they swore themselves into the greatest privilege that can be. I would have you agree with the Committee.

Mr. Jennings. I move to recommit it, for it was not clear in my opinion.

Sir Richard Temple. I am sorry this has spent your time. I do not see what fruit you will have by recommitting it, unless to spend as much more of your time. Surely Old Malton was before New Malton.

Captain Hatsell. It is no wonder to me that this takes up your time. I always thought it would; for I reckoned it, a very hard case, that the witnesses should be excluded. It is not for your honour that the witnesses should go into the country, and say they could not be heard, but were excluded by a vote. I would have it recommitted.

Mr. Turner. We asked the Counsel to what purpose they would apply these witnesses, and they answered ingenuously, it was to prove a right for themselves. Divers New Malton men that lived in London, were admitted. The case was very clear to me that Malton in genere had right to choose.

Colonel Clarke. The reason offered for excluding, is no reason to me. All witnesses have, in all other cases, been admitted, till this case. I move to recommit it.

Colonel Okey. I was no more satisfied with the vote, than I am now with the report. I sat up so late at that vote, that I was not able to attend in five days.

Mr. Goodrick. I move to agree with the Committee.

Mr. Trevor. The case was thus; whether the parties should be witnesses. I attended the Committee, and it was the honestest vote that ever passed.

Mr. Reynolds. There has been a thousand as honest votes as this, and there may be a thousand more after this.

I was not satisfied with it. The witnesses did not swear themselves any advantage; rather a trouble, if we should take our wages. (fn. 2)

Put the case, that none but servants be at making their master's will. Though they be legatees, their testimony shall be taken. I would have you do it the same right that you did in the cases of Dartmouth and Petersfield. (fn. 3)

Serjeant Waller. The cases of Dartmouth and Petersfield differ from this. He that spoke last, mistakes the law. A legatee cannot be a witness for his own legacy. First, his legacy must be paid, and then, his testimony admitted.

Mr. Steward. I hope what is law in Westminster Hall will be also admitted here. The case of the legatee is clearly answered. I shall not mention it again. I would not have the Long Robe reflected on for giving their judgment so in point of law. (It seems Okey had reflected.)

Lord Lambert made a large narrative of the business, and concluded to the favour of Luke Robinson, and to recommit it, upon the whole matter. He spoke for an hour.

Mr. Bodurda moved against the recommitment.

Mr. Hewley moved for Mr. Steward to speak.

Mr. Knightley said, it was never denied.

Mr. Steward. Lord Lambert has misinformed you; for the evidence was, that in 45, Old Malton and New Malton did both choose.

Mr. Grove. This has cost you more time, than New Malton and Old Malton are worth. You have already spent three days about it, and now another day. I know, am sure, the Western men were all well satisfied with the debate. Some Northern men were not satisfied.

The question was put to agree with the Committee.

Mr. Speaker declared for the Yeas.

Captain Baynes declared for the Noes.

The House was divided.

The Yeas went out, against reason, but Mr. Knightley, Sir Walter Earle, and Mr. Speaker ruled it.

Yeas 173. Sir Richard Temple and Mr. Bayles, Tellers.

Noes 142. Colonel Allured and Captain Baynes, Tellers.

So it was resolved to agree with the Committee, &c. (fn. 4)

Mr. Howard came in presently, and sat.

Mr. Knightley. When you were divided, there were strangers among you, and not only so, but parties themselves there. The room ought to be cleared.

It was past eleven before this business ended.

The order of the day was read.

Colonel Rigby. The state of the quarrel between us and the King, was the negative voice (fn. 5) and the militia. (fn. 6)

He was taken down. It was said, he did speak to this business two days ago.

Lord Lambert. I move, though he have spoken, that he have leave.

Mr. Trevor. I move that he be not heard, unless he have new matter.

Colonel Rigby. Salus populi sways with me, and is my principle. I shall not be against the Judges, or the officers sitting there, but not to give all things away at a lump.

After you have passed this vote, you cannot then bound them. Consensus tollit errorem. I would have you go about to bound them, before you pass this vote.

Mr. Speaker repeated the matter of the debate, and said, that which is most insisted upon is, that this vote should not exclude the right of persons of the old peerage that have been faithful from sitting, if they be duly summoned by writ.

Mr. Chaloner. I doubt this House has some infirmity that they dare not show themselves. I fear they are troubled with King's evil. They have all the legal military power there. (fn. 7)

This is a catching question, and I never knew such questions thrive. It was always, at last, discovered.

A Judge Rolles, (fn. 8) learned and honest as any, was shuffled out of his place by the Lord Protector, and another put in his place. Three worthy lawyers were sent to the Tower. It cost them 50l. a piece for pleading a client's cause. (fn. 9) One Portman was imprisoned two or three years without cause. (fn. 10) Several persons were taken out of their beds and carried none knows whither. (fn. 11) If any of these things happen in intervals, (fn. 12) who shall call them to account?

If you vote to transact, they say, no. Where are you then ? You are lawgivers. You must presume all men are bad. If all men were good, there would need no laws. The greatest faults that ever Kings had, they could not limit their greatness. No tribunal could call them to account. Can any be higher than Lord Chief Justices, and Lord Keepers. How shall the subject have justice? Privy Counsellors are in salary now. This was never known before, in any King's reign. We had no pay in the Long Parliament. If we should go about to lessen the army, we cannot do it without their consent. It is likely they will not be their own executioners.

Consider what is this third estate. Are they Earls? What are they ? You agree not where you will meet, (fn. 13) and whether your five hundred persons of estates here shall go up and stand bare before those that receive pensions and salaries from you. This is dishonourable. If they commit treason, felony, &c. who shall try them ? They will claim the same privilege. (fn. 14)

The old Lords had no office, not so much as a Justice of Peace's place. Those are otherwise. They act in all offices in the country, and come here to have the highest legislative. I cannot agree to transact with these persons as Lords.

Mr. Swinfen. I shall answer objections against the constitution, as it now stands. It is said, there are there officers of the army commanding eighteen regiments. I answer those that formerly sat there had such strength as then the nation had, Lord Admirals, Lord Lieutenants, (fn. 15) and in a time when the militia was not so to be asserted in this House as now.

If they be in or out of the House, that objection will lie. Still they have the same influence, wherever they are.

Admit they were in this House; for you will not utterly exclude them from the legislature. The original motion for money is in this House. Then they may do you more harm, for if their interest and will be so great, it will work more here.

Admit them to be out of both Houses. Their force, influence, will, and interest, will still work.

But admit they be in that House, they will be known, if twelve or thirteen stand out against your resolutions.

As to the second objection, the Privy Counsellors and Lord Keepers and Lords of the Star-Chamber were always in that House, so that those arguments go against all Houses.

As to the interest of the old Peers. That is a great objection. I would have it well weighed. I shall consider it, either as to the present calling them, or to the not excluding them.

I could give good reason why restoring them is for the good and safety of the nation; but I see your sense is against it. Some are for no House, others for this House. Few consider the old constitution. If you will not restore them, will you then exclude them out. of the legislature ? They have faithfully and thoroughly served you. (fn. 16) Their interest is so great, that it is not for the service of the nation to leave them out. Let us, in our counsel, take heed how we distrust so great an interest, lest, if ever they should come into their power again, they may turn us out by requital.

But, to the inconveniences if you do not transact The evils on that hand are far greater. If you cast them off, you are then the legislature. I say not but the army will bear, that you sit to levy money. If you do not, they will come to free quarter, and levy it themselves.

By denying this House, and not declaring another House, you vote, by a negative, all power in yourselves. If we do that, let us do it by an affirmative.

If you rise and make no law, then must come raising money, and, I doubt, making laws, by that military power which we cannot be without, till the nation can be constituted on its own balance and symmetry. If we go back again, we lose this civil foot, our free election here, and to have a negative upon the legislature, and that no money can be levied without our consent, nor the single person rule but according to the laws. I doubt you will lose all. Let us have that we can have, if we cannot have more.

My motion is, to put the question for the addition, not to exclude the rights of the old Peers that have been faithful.

Sir Anthony Ashley Cooper. That is not the greatest objection, that those persons are officers in the army; but it lies not so strong against them in this House as in that House.

As to the old Lords, it is the way to destroy their rights which you take to preserve them.

Is not this the very case, as was remarked by Serjeant Maynard, of Malton ? Agree with the Committee, saving the right of New Malton.

This is a saving that destroys the right. You bar their claim utterly by this, whereas you know not but their claim may come in more clearly. You make them and their interest your everlasting enemies.

A few new men, but in the room of old men, (fn. 17) what will the nation say ? Let us consider what we can say to posterity. The remaining part of that famous Long Parliament would, in the issue, have rendered their designs famous. (fn. 18)

Your laws and liberties are all gone. Two negatives are in one hand. An army is in your legislature, and 1,300,000l. per annum for ever. (fn. 19)

To say that a law made under force shall be a good law, and binding in reason, is against all reason. (fn. 20) That about the Bill of Sales (fn. 21) is but argumentum ad hominem.

If our neighbours say we look well, that will not satisfy. We must examine if we be well. I have sat sixteen years here, ventured my life, (fn. 22) and bought lands, and my friends and interest have done so. I always hoped, whenever you came to settlement, you would confirm all those sales.

True, a possessory title of Chief Magistrate was never questioned in Parliament, (fn. 23) but this is upon another foot, the Petition and Advice. How are you satisfied of that claim ? Is there that done that will pass 40l. per annum, and yet are passing three nations (fn. 24) into the hands of some few persons to them and their heirs for ever ?

If there be a necessity upon us now, where will the necessity be afterwards? Where will be our posterity? You might have had as good a government three hundred years ago.

What are you at present but a House of Parliament and a single person ? Is there any such difference than when the Parliament was in 54 ? You must either transact, it is said, with them, or you must not transact at all. There is no such need. Are we bound to this or that other House ? We are not bound. It may be, they will sit without us. I had rather they did so, and raised money, than that we should so bind ourselves as to be but bailiffs and servants to them.

It is but a shoeing-horn to tell us the right of the old Lords is preserved by this.

I cannot consent to transact, because it is against the right of others, the rights of this House, and the rights of the nation.

If you think you have no need of bounds nor approving, pass your question singly, and then I am sure you are bound for ever. If you will put it, put it singly. It shall have my negative.

Mr. Solicitor-general. These new Lords are bounded already; what more bounds would you put upon them ? For their judicial power, they cannot meddle with meum and tuum, nor appeals and errors. This was a great privilege never denied to the House of Lords. Now they cannot meddle with any thing but what comes from this House. They cannot vote by proxies.

Admit they be not bounded, how will you bound them ? either you must bound them exclusive of themselves, and this House then shall wholly do it; or else, they must concur.

Are we under government, or under none at all ? If under none, we are a miserable, unhappy people. If we be in a republic and popular government, then we may make a law exclusively without them. Certainly we must either transact with them, or with the Protector without them, or alone, or not at all.

It is said, we may transact, as we did in 54, with the single person. (fn. 25) By what law or foundation shall we transact? If you say you will transact with him alone, he may refuse to transact with you alone. He is under an oath, to rule by the Petition and Advice, and in all other things according to law. He is bound to two Houses of Parliament, and cannot transact but with them both.

If you can make a law to bound them, exclusive of them, you may also make a law to exclude them. What, then, will be the consequence ? If you go on to say no law since 48 is binding, I doubt you will go back to 42, and what mischief that may be, I leave it to you to judge.

My advice is, to build upon that foundation, the Petition and Advice, which has in many things well provided for your rights. I had no hand in keeping out the members. I was not here at making the Petition and Advice.

But either you have a government now in being, or you have none. Those gentlemen that will not transact, must say the Petition and Advice is not a law, or that we are a legislature of ourselves.

My motion is, that you would transact.

Colonel Birch, Colonel Fielder, Mr. Reynolds, Lord Lambert and Serjeant Maynard, moved to adjourn for an hour.

Sir Thomas Wroth moved to adjourn till to-morrow.

Sir Arthur Haslerigge. Adjourn till to-morrow. We have attended six hours.

Sir Lislebone Long. I have observed, we never come to a vote in the morning; put it off your hands one way or other.

Serjeant Wylde. I move against sitting in the afternoon. This council is a grave council and sober, and ought not to do things in the dark. A matter of this weight ought to be debated in the forenoon.

Divers others moved pro, and divers contra; but at last, it was

Resolved, that this debate be adjourned until three of the clock in the afternoon.

The House was adjourned accordingly at one.

Monday, March 7,1658–9.

In the Afternoon.

The Speaker took the chair at half an hour past three. The House resumed, and proceeded in the debate.

Mr. Mussenden. You are in a track, and cannot go back or forwards; I could have wished the rights of the old Peers might have been saved. There is a necessity that you should transact.

I doubt our condition is like that of the Romans, non ferri possimus. We can neither endure the disease, nor the remedy. I will not, I hope, I cannot, say Hannibal is ad mænia, ad portas. Yet you have enemies that would not think it any sin to be drunk with your blood. There must be festinum remedium. Nought but to transact with the other House, is so proper a remedy.

I confess quod precibus emptum est, charum est. You do not give away by wholesale. You cannot give it away. It is radically and inseparably in you. You may trust it. A power of revocation is essentially in you. There is no danger of trusting these persons. Pardon me, if I have too much charity for them. Those persons cannot betray this trust. They have not only been a screen, (fn. 26) but a strong wall. They have gone through wet and dry, hot and cold, fire and water; they have not been green timber that will warp against the sun, as was moved, (fn. 27) Admit it to be Qui color albus, &c.

I doubt not but you may recal that trust, when it is abused. The people will stand by you. It is not in the power of those Colonels that sit there, to change the hearts and hands of the people against you.

Mr. Speaker, observe it. There is a great deal in this question. It is not only to transact with them as members of another House, but as another House of Parliament, exclusive of all others, it is clear.

Mr. Bulkeley. I was some days since to seek what to resolve in this great debate, and I am so yet. The arguments pro and con have great weight.

The consequences, if this vote be carried in the negative; they are more to me than a bugbear. They are real fears.

There are other fears grounded upon the Petition and Advice. They are bounded and limited already, both as to negative and affirmative power. We have also one great fruit by the Petition and Advice, in that case of succession, (fn. 28) else we had been in blood by the several pretenders. It is placed now in a most deserving person.

But a greater power is given to that House, by the Petition and Advice, than ever the old Peers had, in the business of money, which none have touched yet. I could leap over the rest, but this passed, I doubt it will never be recovered in any age.

I thought, till this debate, it had not been a law, but only intentional. I took it in the grammatical sense. I have consulted with some of the Long Robe, who tell me, if we once transact, we cannot alter a tittle of this Petition and Advice, without their concurrence.

This House never did so downright give away their privilege. All the advantage that this House ever had, was that they had their grievances redressed, when they gave money. This is so large a supply as never was, 1,300,000l. (fn. 29)

If the Parliament in 54 could have got over this, you had never been troubled with this settlement. It had been done to your hands so well, and properly bounded, as may be an advantage to you in this debate. This would not then be submitted to, else that Parliament had not been dissolved. This being altered, I must give my negative to whatever passes as to this question. This does so stick with me, that I cannot yet get off it, though I shall ever submit to your resolution.

I make a difference between settling this to perpetuity, and giving double the sum upon an emergency. I would not have us, after all our wars and debates and declarations, to give all away at once. Unless I be satisfied in that, I cannot do what I thought prudentially to have done. I shall sit still, till this be answered, and then submit.

Mr. Gott. All I have to do is to weigh the arguments on both sides, and state them as well as I can.

Without you come to transact, you can make no laws. He that is not a man cannot act as a man, and that which is not a Parliament cannot act as a Parliament. I would have every gentleman lay his hand on his heart, and seriously consider, before he give his vote to this. If we can act nought as a Parliament, let us go home. The Parliament split upon this very rock. When we go home what satisfaction will it be to them that sent us; what satisfaction to our consciences. We can make no settlement without this vote. We leave the nation to an arbitrary government. Any government is better than no government, and any civil better than a military government.

This is the House in being. There is no other House in being. Who shall we then transact with ? We are not, as the last Parliament was. Have not we voted ourselves not a Parliament of ourselves? If there be any way to have another House (fn. 30), let us know it. If not, then let us transact with them that are in greater weight in this question than most gentlemen in this House are aware of.

That of money is a very grand objection, and other objections are grand. But consider whether our transacting do make those inconveniences. They were made before; or, if we do not transact, how shall we ever remedy them ? That is the probable way to remedy them. It is all the way we have now left. It may be, they will part with their power. If I had been of that Parliament, I should rather have parted, with my blood than have granted them that.

Another objection is, that hereby we confirm the Petition and Advice. Nought less do we ourselves, who sit by the Petition and Advice. For my part, I think we do not. The distribution was never agreed on. If they had not intended to alter that distribution, they would have left it to law. I came in upon the old constitution. I was glad to see the writ, to consult with the great men and nobles. (fn. 31) Constitution and foundation remain still, though Scotch and Irish are here and new boroughs.

The single person, by law, may make new boroughs. I shall make it out There are precedents that Lords have been called to Parliament out of Scotland and Ireland.

We are now going into civil settlement Shall we go back into blood and confusion again ? In our times, we have seen soldiers, lieutenants there; Canterburys and Straffords there, but by the civil settlement we have been able to deal with them.

Is recognizing the Protector a going back to the old line ? This is a little objection that has walked up and down, as not worthy of an answer. Is the calling of this Parliament going back to that line ?

I am as little pleased with these Lords as any man; yet we are but one leg, and cannot go, but hop up and down without them. Though they be not to our content, I have seen a man walk very well with a wooden leg.

I can say as much for the old Lords as any man has said. Yet we are not obliged in conscience to insist upon their right, though we are bound to do nought against their right. Transact signifies no more than to act with them. This is but a concession de presenti; a word of diminution rather. The salvo offered upon our books remaining will be enough to discharge us, after that we have saved their rights.

I would have the addition put first, that all things in time may be settled in a fair and satisfactory way.

Serjeant Wylde. To transact with this other House is, as it were, the lapwing to drive you away from your nest. It admits them to be another House of Parliament.

I cannot understand these arguments of necessity. There is a difference between an act and an ordinance. An ordinance is but of one House; an act of both Houses.

Henry VIII. got an Act of Parliament to cut a man's head off without an answer. (fn. 32)

I put a great difference between the latter end of the Long Parliament and the last. There was a root. This was but lignum. We sit upon a remitter, a title paramount, the Petition and Advice. That Parliament was not called according to law. We sit upon a foot of law.

Si ex sicco ligno, you build a house, (fn. 33) I shall give my negative.

Colonel Morley. If I repeat aught that worthy person has said, I hope you will pardon me, for I did not hear a word of it. I stand up to answer my learned countryman. (fn. 34) His arguments were from prudence, conveniency, safety, and law.

I shall answer him to the point of law. I conceive they sit not by the Petition and Advice. If that Parliament could alter the Petition and Advice, as it did without the other, then may we also alter it. It was passed in May, and they came in June, and make these explanations. (fn. 35)

To the arguments of prudence he has not given a word of answer in that threadbare necessity.

I should say something to "a shoeing horn." (fn. 36) That is for the heel, not for the head. It is rather a gilded pill, and must be sent down in syrups and sweetmeats. All the gilding and syrups shall not make me pass it.

Mr. Morrice. This will not vitiate persons, but your nature and your posterity. It will be like original sin.

This other House I do not look upon it as a disease in number but in species. I look upon it as one of the new buildings that ought to come under composition, (fn. 37) The foundation is not well laid. Architects will tell you, if the foundation be not good, it will not stand; and if it be so, it will be a perpetual nuisance.

At the peace of Sparta, the messengers said, how long will this peace last, for ever? The answer was, according to the conditions you give us.

The former reason of your transacting is, that they are another House of Parliament. If I should tell you my reasons against it, it is a yoke too heavy for a free nation to bear.

The Chief Magistrate may fill this House when he pleases, all at once if he pleases; and let it out to whom he pleases. He will be to blame if he put not such oracles and judges there, that will say, œquum Cœsaris.

He will have two negatives upon you. They will be but his echo. It was not so from the beginning. Persons anciently there, were persons of interest, that would be a bulwark and not to live upon you. Will you take the whole heap into the sack without any fanning.

I except against the constitution. I am against setting up our servants to be our masters for ever. To let a river out, and not bound it in what channel it shall run ! Will any of you bring in a tenant into your house before you condition with him ? All your overtures will be but as casting counters, to be reckoned according to the places they will put them in.

I cannot consent to transact with that House, till you bound them.

I shall say to you as was said to a young prince that was going to a charge; remember your ancestors, remember your posterity.

Mr. Knightley. I was fond of this question; now I am convinced to change my mind. It is prudence, as the word is now, not weakness, that puts me upon it. Fiat justitia et ruat cœlum. We come to speak for our country. It may be a sad day, go which way it will.

It was told you by a good physician what were the diseases of that House. (fn. 38) The issue may be dangerous, which way soever it go. I had rather the House were agreed upon it if the question be put. Our great fear should be the fear of God.

I shall conclude with what was said, "Remember posterity."

Colonel Birch. You are upon a constitution and a restitution; there is a great difference between finding and making a Protector; between finding and making another House. The old right so much spoken of, will not answer to this constitution you are upon. I am, therefore, for that addition, that they shall not be excluded, when duly summoned.

I shall now come to the question before you, about transacting, as my memory will give me leave, being much shortened in your service. First, as to the persons; then, as to the purse.

Anciently, the Barons by tenure were of great use, but being now melted down, they are not so useful. All the use now of that House, is to have an inspection. If all laws that had passed since 48, had been inspected, it would have been much for your service. It is said (fn. 39) they have no interest! I answer, if the laws be bad, it is well they have a check any where; if good, the less interest they have, the less can they check them.

If I were to choose them, who they should be, I should say the army should be there. There are not above twelve there. The uppermost are always most envied.

It is said, you are going to confirm such a Petition and Advice, as the three great tyrants, as was said were together, could not frame the like. (fn. 40)

I think it is no such matter.

In the Parliament of 54, we had provided an Instrument; it was then said to us, of the Instrument of Government, "other foundation could no man lay." It was said to be our Magna Charta. It was smoothly couched, and drawn by a cunning pencil. Raising money was to be by the Protector and Council. Another clause was specious enough; all laws to be laws in three weeks, (fn. 41) but then nought must be contrary to the Instrument of Government. The money then required from the Parliament was 2,400,000l, we would have consented to 1,300,000l per annum, but it was refused.

Our Parliaments could not be free by the Instrument; there is not a word in the Petition and Advice that the Protector shall have a negative. Were it no more, but for this freedom of Parliament, I should be in love with the Petition and Advice. This revenue of 2,400,000l. was not to be altered without consent of Protector and Parliament. This article in the Petition and Advice says only, you are willing to settle 1,300,000l per annum. I find nought in the Petition and Advice to settle it; so that we are not bound by it an hour longer than we think fit.

I wonder to hear those gentlemen that pleaded for this Instrument of Government, plead now, as such great patriots, for the liberties of the people of England.

I like our old cause to be, not what we said it was, that were engaged in it, but what those that engaged us said. I ventured as far as any man:

1. To bring delinquents to punishment.

2 To have the military in the hands that we approved of.

3. The Council to be by us approved of.

4. Our estates not to be taken, nor persons imprisoned, without our consents; but the negative voice was never our case. (fn. 42) Thus far I went, and no farther.

I appeal if there be not more of this case provided for in the Petition and Advice, than ever was held forth yet; I mean, since our distractions.

1. The Council to be approved by us. I make much of this.

2. Those that are now called to this House, indeed, cannot be approved by us; but no other can be approved without us, that are called in afterwards. This is also dear to me; I find not a negative in this Petition and Advice. Send it up to the other House, and you may have it mended.

I never had any office nor any of my relations. I have no courtship, but I am glad to take hold of any settlement. I dread the consequence, if this should pass in the negative. You will certainly miss of your end. They that are not so well-pieced, this negative may make them gird their swords closer about them. (Some said he should not have said so).

By the same hands that you pull down this House, you pull down the single person. He that was last could well sit in the saddle, in all changes. I doubt whether it will be so now. If we miss this settlement that we are now under, we shall never come to it again. This civil settlement we must rest upon a force, and I cannot see but when we have put down one single person, it is but to set up another; and the pulling down these will put it into the hands of those that will never be quiet till their bellies be full.

Sir Arthur Haslerigge. These words of force cannot be endured.

The time was when I was not afraid in this House of greater force than I offered. I have had freedom to speak here formerly.

The interest of religion has not been yet spoken of. Put the ship once again to sea, and when it will come to harbour again I know not. Because we cannot have quiet upon this cockling sea, let us have patience. Those arguments to me are no more than he that puts me out of one House in a storm and shows me not another. We cannot give them one bond, but we add to them. If any difference happen about it afterwards, who must mend it? Must not this House that made it? It is not like the Instrument of Government. None knew the father of it.

The great charge of the accounts cannot be defrayed without settlement. You have your heart upon the pillar, this great pillar of civil settlement. If none in it but Philistines, it were not such a matter.

Lord Lambert moved to vindicate himself, and took exceptions at reflections.

I was always for the liberties of the people, and was either for putting water to quench fire, or to putting banks to water to prevent inundation.

The Instrument is buried in its grave. I would not have it raked into. I wish such language to be spared hereafter. I wonder much to see Colonel Birch so changed.

Sir William Wheeler. I move for candles, and also that humming be forborne, which is not parliamentary, nor ever used but at orations and in schools.

Sir Walter Earle and Mr. Hungerford moved that the doors be shut.

Sir John Northcote. I am sorry to see night-work. I never knew good come of it.

Resolved that candles be brought into the House.

Resolved that the door be kept shut from any of the members going out.

Mr. Hungerford. While you are debating to transact with them without, I doubt some of them are transacting with some of us, that will never let us rest till we come at where we were; rolling from one thing to another till you come at this.

I know not but it had been much more for your service and honour, and for his Highness's safety, to have restored those that have been faithful to you, I mean the ancient Peers.

It has been told you how weak the foundation is you are going upon. I cannot consent to transact with that other House. It is taken away by a law, and not restored by a law. It can be no House of Lords. Never was House of Lords named and approved by that House and his Highness, so it is no House at all.

Those feints, which come nearest the shape of man, are most ugly and dangerous. They that were content to be your equals here, do now contend to be your superiors. You are putting a yoke upon the people's necks such as never was before.

It is the expectation of the country to dissolve part of the army. How, then, can you dissolve them, if you give them this power ? God will take our cause into his own hands, and revenge it.

You are now upon a settled foundation. It is not your wisdom to build on a broken staff.

Men that have transgressed the privileges of this House, that have been guilty of so high crime against the House, are not only ready to justify, but to do the like again.

The salvo is an ignominy and disgrace, like a slap with a fox tail. It is below the gravity of this House to do it.

I would have you first bound them. As the Petition and Advice was made by you and him, you and he may bound them.

I had rather the question were spoiled in the bounding, than that we and posterity, by a question, should be destroyed, by giving them a boundless power.

I had rather make my grave here than be buried when I come into the country.

I had rather go down and do nought, than do what is so destructive.

It will be called your wisdom, not delay. I am afraid, if you pass it thus, it will be your destruction.

It is not in my power to turn gentlemen's thoughts now, but if you will put the question, I will give my loudest negative.

Sir Jerome Sankey. I am sorry to hear arguments of force so much used. I cannot call them but arguments of fraud. It is throwing dirt in your faces and in your army.

Sir George Booth. There are three questions, safety, usefulness, and honour.

As to safety. Consider whether they are upon an equal and even foot with you. You are not upon even ground.

I doubt you have but only your breath left. It signifies nought to me whether you bound them before, or after. It will be but a bauble to play withal. A sword cannot be bounded.

As to their usefulness. They are said to be a screen. (fn. 43)

They must then be considerable in property or relations. If those persons be so, I appeal.

Many have no freehold but their salaries, if you will put that among your tenures.

Their relations are not useful. They are gallant in their persons, but thin in relations.

Res ipsa loquitur. Some noble and meriting. It were but a very few.

Put what, vizard you will upon it, I shall know the face, what face it is.

How honourable it will be; res ipsa loquitur.

I confess the old Peers are not so useful as to interest; but they certainly are better as to interest, than these.

Mr. Higgons. No man is so much their humble servant to the old Lords as I am; but it is not a seasonable time now.

I would have this question put, to transact with this House.

Mr. Francis Bacon. By ancient law, two Houses make a Parliament. The Petition and Advice says two Houses make a Parliament. Your vote says so. It is suited to your being, to transact; to your well-being to transact speedily.

A House of Commons never meddled with the other House; with the Privy Council they have.

Of twenty-five kings since William the Conqueror, fifteen had no colour of title. They sent out writs to whom they pleased. If, when Richard II. was deposed, Henry IV. had called his enemies, where had his title been ?

If we go about to bound them, we shall not do it till Michaelmas, nor approve them till this time twelvemonth. By the same rule, they might go to approve us. As many differences will come between these two Houses, as was between the two great Houses, (fn. 44) if we do not agree.

If we carry these to his Highness, he is bound, by his oath, to send them to the other House. If we intend a settlement, let us not stand off. We destroy ourselves. I confess I have great fears.

Mr. Reynell. The Parliament, sixteen years ago, were interpreting and construing themselves out of bounds of prerogative, and now we are construing ourselves into bounds.

This House was never wanting in allegiance and all submission in addresses. The Long Parliament, in 42, always applied to the King by supplication, till they were highly mortified.

It was offered by a gentleman, that he would spend his blood rather than have passed it. I hope it will be otherwise said, if any do consent to confirm (fn. 45) it.

My motion is, to put the question nakedly, without any addition, and I shall not be loth to give my affirmative.

Mr. Weaver. This House sits not upon the Petition and Advice. The word trans signifies beyond. It is beyond expectation of all good men, that you should pull down one House of Lords and set up another. It is beyond my understanding to know what you mean.

I have seen the writ; they are called Lords. (fn. 46) None, these five weeks, have moved you to return to a Commonwealth.

His Highness has not acquainted us that he has called those persons. It appears not judicially before you.

Gross exceptions are against many that sit there; but I am not against another House, for you to constitute. I think it may not be unserviceable to you.

Many of the council, such as have laid taxes upon the people, are unfit for sitting in Parliament.

The officers are generally good; but divers are not fit to sit there.

A little gentleman in London shall never have my consent to sit there.

I have better hopes of his Highness.

If it pass in the negative, as I hope it will, I would willingly have another House, and give them a consultative in some things, and in other things a negative, necessary in some cases.

It was affirmed for law, and I believe is so, that if you vote them another House, they and their children are Barons to all intents and purposes. (fn. 47)

It was pressed upon the old Lords to consent to a Bill (fn. 48) to vote Duke Hamilton and his adherents, traitors. They doffed us off as long as they could, and then locked up their doors for a fortnight.

Expect like obstructions in all necessary laws. Pass that question as it is, and I will give my negative to it. I shall then propound my grounds for another House. You can never bound these without their consent.

Sir Walter Earle. Make this addition, when they shall be approved on by this House; if the fifth article be so, as is moved. (fn. 49)

Mr. Stedman. I shall not now speak to the matter. I only speak to change the word sitting, for summoned.

Lieutenant-general Ludlow. Once pass this, and you cannot meddle with the Petition and Advice at all.

This House is not a proper balance. (fn. 50)

I move you would not transact with them. They are persons to serve that interest.

Those gentlemen have been guilty of all the breaches upon the liberties of the people. If I am alone, I would bear my witness against them. If you or they set themselves up above God, God will blast them.

Mr. Turner. I have sat here in three Parliaments, and we have still been upon foundation work.

There are two competitors before you. Prynne's Authority for the Lord's House, (fn. 51) and Selden's Privileges, (fn. 52) make their rights fully out. You must be judges and counsellors both, in this case. It is said you may be too righteous. (fn. 53) I understand not that; you must do right.

In the time of Ahasuerus, the Jews were reported to be dangerous and useless. A writing, a decree was published. Mordecai brought this writing to the Queen. She said, she might not go into the King. Yea, you must do it, said he. (fn. 54)

Who knows but we are summoned to this place, to do this great work ? The parallel is strong in my opinion. Qui non impedit, cum potest, jubet.

You have a gracious single person; you have owned him with a great deal of duty. He will be advised by you.

Pari ratione, whatever the old Lords claimed, these may claim it.

The objection about the boroughs (fn. 55) is very material.

We do not use to graft a stock in a scion, but a scion into a stock.

Mr. Secretary. This is a very great question, and a deciding question. I am not worthy to trouble you in it.

The addition of bounding and approving, contradicts your question. It is thus no House at all, till you do approve.

Those that complain of the disingenuity of the question brought it in themselves.

If you have been misled into it, blame the gentleman that moved it (fn. 56).

I do see, by, the variety of opinions among us, that it is dangerous to go off from foundations. If this question go in the negative, in whose opinion must we rest ? It will be best to keep our bottom and centre. I speak of the foundation of the three estates by the Petition and Advice.

If all power was in the people, the last Parliament were their undoubted representatives. They thought this most suitable, honourable, and prudent.

But it is said they did nought but what this House may alter. Your predecessors delivered up their power to his Highness. What they have given to the two estates, they cannot take it back again; it is against reason.

It is necessary to be so, for the good of the people. If this House should have nought to do, but to dispute principles and foundations, what should we fall into ? Either into anarchy, or absolute tyranny, by the grasping of one single person, or two or three that have more wit and boldness than the rest.

Those of the old Peers are not excluded by the Petition and Advice. Divers are called, others may be I shall not be against that addition.

They have not complained yet. All that you need do is, not to exclude them.

If this pass in the negative, all the power is voted into this House. Is it likely that then the right of the old Lords should spring out of this House ?

If that (fn. 57) was no law, then is the law of indemnity (fn. 58) out of doors, and divers other laws.

But it is said this law is weakened by the Protector's death. The establishment of this House was not a temporary thing. It will not be made out, it cannot. It is a constitution, well, enough in being and well enough in power.

Another objection is, that the Lord Protector is not his Highnesses successor.

Those gentlemen are overruled by their own vote. The addition extends not to his Highness; but as to his limits, so that he is in, undoubtedly, by that right; and if he were but de facto, he might duly call them.

I take both to be laws, that law for taking away the Lords, and this law, a repeal pro tanto.

The great stress has been laid upon the persons. Judges, soldiers, and pensioners are there.

It is a bad way of arguing from, the persons to the constitution. This way of arguing might have been, so long as the Popish Lords were there. They could not transact. The like for the Bishops.

For the persons, I doubt not but in after times they will be as useful for settlement and posterity as any. It is not fit to reflect upon them for what they have done in extreme necessity. Few, in other places, but have acted upon such necessity. That argument takes them not only out of that House, but out of their commands.

If this pass in the negative, you must make it good. As I said before, the power comes into this House. You must lay aside your officers, and change your militia. You must lay aside his Highness, for he cannot transact with you, without the other House. He is sworn. You will be just where you were in 48, You declare all that in the lump.

I cannot advise that this should pass in the negative. I doubt the consequence.

Sir Henry Vane. I am very sorry to trouble you so late. Could I satisfy myself with these grounds that have been offered, I should not trouble you.

If you pass in the negative, all the power is here. If the contrary, I dare say then, all the power is gone hence.

I conceive, in passing this in the negative, you do bring all power into this House, but not in that way of a Commonwealth. (fn. 59)

When the power of King or House of Lords is melted down into this House, it is in the people, by the law of nature and reason. Death and tract of time may melt it and bring it down, but this shall never die. Where is then the anarchy, the sneaking oligarchy ?

The representative body never dies, whoever die. Provision is made for it. By the law of the land, they could have come together if there had been no Protector de facto, but you are ever thus.

You have voted a Protector de facto, and put it in a way of a Bill to put it de jure, and I hear no arguments now against it.

The question is not now, whether the Petition and Advice shall be a law, but whether it shall be so far as it is argued to be a law. Or whether it be not a lame law, to bring in King. Lords, and Commons insensibly.

It was told you, by Mr. Attorney, of the Duchy, that this was a restitution. (fn. 60)

It is not told you how the power came into the hands of your old servants that turned you out of doors. (fn. 61)

As to the Petition and Advice, they declared here that it was made elsewhere; (fn. 62) and they gave you no more than they thought fit; a mere show.

A new family; one Peer in the room of another, and here's face about again.

Consider the fate of that King. I wonder to hear arguments of force used. (fn. 63)

If you pass this you pass all. The question is as catching as that of the French King. (fn. 64) When I consider how comprehensive this question is, I wonder how it should be thought to pass in the affirmative.

1. You admit this House to be a rightful House, upon the same rightful foot with yourself. You admit them to be fit and meet persons, and that this is for the good of the people.

2. You set up a means to perpetuate an arbitrary power over you, to lay yourselves aside, and make you for ever useless, I may say, odious for ever.

You settle 130,000l. per annum, such as never was done. (fn. 65) You have granted the excise and customs for ever, (fn. 66) and farmed in such a way as to make the people cry out their governors are very unnatural. The people would never part with customs. You can relieve no grievances.

Formerly you might have gone alone. Possession you see how far it goes.

The sore is, they are afraid that you should go alone to his Highness and complain of his sneaking counsellors.

God is almighty.

Will not you trust him with the consequences ? He that has unsettled a monarchy of so many descents, in peaceable times, and brought you to the top of your liberties, though he drive you back for a while into the wilderness, he will bring you back. He is a wiser workman than to reject his own work.

Go you on to advise with his Highness. Advise him, in his tender years, of the maladministration. I know no hinderance but you may transact with his Highness alone, and agree of another House in the best way for the good of the nation.

Mr. Godfrey. We have been told, (fn. 67) remember your ancestors. Our ancestors, till 48, never knew that this trust was in you; nor is it by legal commission, unless you say: cedo occupanti.

Your legal commission gives you no power to consult, exclusive of the single person, or the nobles and great men. Your commission is to consult, consent, and determine. I dare not, I may not, as a case of conscience go beyond it.

I could not consent to this Petition and Advice, because my trust was against it. I was not then called to consult with them; now I am.

As I must not betray, so I must assume, a trust. It is equally to me a case of conscience.

I cannot therefore say I can do nought, because I am not made Omnipotent. I can advise, press, and reason, as far as I can. If this fail, I am discharged.

I must needs say, I am satisfied to consent to the question. I would have the addition put first.

Serjeant Maynard. I should not trouble you at this time of night, but that, in conscience, the principles of the pro and con cannot properly consist.

Those that say all power is melted down here, are quite contrary to those that would have the old Lords.

Do the old Lords complain ? I do not think they would take it, and it, is pot possible to be done with safety. By going about to save their rights, we may lose our own at this time.

The word 'transact' is a plain rough word.

The question is, which is minùs malum? not what is pejùs bonum.

Being upon that law with them, you must with them transact, else you discharge not your trust. I shall not dispute what.

If it be no law, and you go to the Protector to pass a law to lay them aside,—this is plainly to declare himself no Protector. Both have one foundation. There is but one way for him to be Protector, and you say he is not that way. Then he is no way.

That was a witty motion by Mr. Hungerford (fn. 68). I will not suppose such are unworthy, from the army having the power in the other House; yet what has been done, may be done.

There is necessity of transacting. Pay must be had for your army.

Laws are to be made against tryers at Whitehall, which have done more than the Pope or the Bishops ever did, to take away men's advowsons. (fn. 69)

Church laws must be settled.

Laws must be made against Quakers, Ranters, &c. (fn. 70)

What is aimed at, but cœdamus hœredem et nostra erit hœreditas. (fn. 71)

It is better for me to suffer the greatest misery, than to suffer all power to be devolved into a Parliament. We should take a sword that God never put into our hands.

We are a ship without hull, mast, or anchor, if we pass by this House, if his Highness will not transact. That business of money sticks most with me. It has almost run me aground.

The Petition and Advice settles it not; but the excise and customs are settled to perpetuity. (fn. 72) It only says you are willing to settle; that settles it not. There was a witty fulmitiation from the corner, but no proof. (I think he means Sir Henry Vane.)

It is said we fought for this negative voice. I dare be bold say it, upon my life and soul it was so far from being fought for, that it was not so much as spoken of in this House till 42. (fn. 73)

They pray the King's consent for a guard; he denied. Then they did it by ordinance without him, and would not have his consent. There went declarations on both sides. The sword was never taken up against the negative voice. It was never denied to the King.

Put the question with the salvo, for the rights of the old Lords.

Leave was asked for Sir Thomas Willis, Colonel Purefoy, and Sir Walter Earle, being sick, to go out, and they had leave accordingly. Leave given to Mr. Knightley to go out.

Mr. Sadler moved to the business, but had rather adjourn till to-morrow, and went to speak abundance of matter almost an hour, and would have spoken yet, if he had not been taken down by

Sir Ashley Cooper and others, who prayed to shorten the debate, or else to adjourn.

Leave was given to Colonel Gibbons to go out.

It was moved to adjourn till Wednesday morning, and the question being put,

Mr. Speaker declared for the Yeas.

Mr. Hampden declared for the Noes.

The Yeas went out; divers members sat that were for adjourning.

Yeas 185. Lord Lambert and Sir William Doyle, Tellers.

Noes188. Mr. Bulkeley and Mr. Hampden, Tellers.

So it passed in the negative.

Mr. Knightley. I was going home, with your leave, and one met me and said: "If this vote pass in the negative, you shall be dissolved to-morrow." I was going through Scotland Yard, (fn. 74) and the soldiers stayed me. I told them, I was a Parliament-man, and I perceive they look already with a strange face upon us. Their officer expostulated the business with me. I argued with them my privilege, and they were very earnest on me. The officer's name was one Shafto. They begin to look with an ill face upon us. Eo nomine, that I was a Parliament-man, made them expostulate it the more.

Sir Henry Vane. I move to adjourn. For that cause, that it seems one member was stopped in going out, we may see if soldiers do stop us all to-morrow, as we come in.

Mr. Young. If you will put the question for repealing the Act for abolishing the Lords, or for restoring them, you shall have my heart and vote to it; but I am not for this insignificant addition. It is but to trepan men. I think it is as good a word, for aught I know, as transact.

Sir Arthur Haslerigge. I have not spoken to the matter yet. Altum risum. I confess men have reason to laugh, when I say I have not spoken to the matter; for I never speak to the matter.

Mr. Bampfield. I move a few words of reconciliation to be added. When the Bill is passed the House, this House will transact, &c., and then you may, in this Bill, provide for all the liberties of the people.

Mr. Jenkinson. I second this motion. There is weight in it. This is like going to sound with your weapons in your hands.

Mr. Neville. If you will have any addition, I desire that this may be it, which was debated two days; that you will transact, &c., when you have bounded and approved them.

This crowding in of several perplexed additions made the House weary of the debate, and they adjourned at one, till Tuesday at one.