Memorials of the English affairs, or, An historical account of what passed from the beginning of the reign of King Charles the First, to King Charles the Second his happy restauration containing the publick transactions, civil and military : together with the private consultations and secrets of the cabinet.

November, 1649.

The Princes continuance at Jersy, was by his Councel held not fit to be much longer, upon these Reasons.

(1) Because there was a considerable Fleet of the Parliaments come already to Portsmouth with store of Provisions; and it was necessary to pre∣vent * 1.1 the danger that might fall upon them in case those Ships should make an attempt upon the Island: which that they would do, was the more probable, because there were already men landed in Jersy.

(2) That if they should lye under that hazard, they knew not where to expect Relief, except all * 1.2 other Services should be neglected, and Prince Rupert and Montross called hither; which would be the ruine of their Designs.

(3) That their removal would give great Sa∣tisfaction to the Kingdom of Scotland, and be an Encouragement to their Friends in Eng∣land.

(4) That thereby they should be the more free from Hazards and Dangers, both as to them∣selves, and others, that should make addresses to them.

The Councel of State in England had good In∣telligence of all the Transactions of the Prince, * 1.3 and of his Councel; which they procured by their Mony, whereof some of the Prince his Servants were needy, and would betray their Master for it.

The times were licentious, and men took strange Liberty, to calumniate all in Authority, and to clamour if they had not what themselves thought fit, respecting themselves, and their pri∣vate. Interest, and Concerns, much more than the Rules of Right, and Justice, and the Law it self.

When the King of Portugal could neither by Force nor Intreaties, be perswaded to cast off Prince Rupert out of his Protection, the English Admirals resolved with patience to awaite his coming out, and a long time they kept him in there, till at last, want of Provisions made them retire, and give the Prince room.

Who immediately steered from thence to Ma∣laga, * 1.4 but in the Voyage perplexed with extraor∣dinary Storms, he lost his Brother Maurice, who in the Vice Admiral was never since heard of.

Himself being again followed by the Parlia∣ments Generals lost all his Ships but two, which his Pursuers looking upon as inconsiderable, and * 1.5 not worthy their time, and pains to hunt after, returned; and left him Sea room to come with them into France.

The Parliament fearing least now the Scots King should joyn Interest with the Scots (which was now generally talked of) they had good In∣telligence of all proceedings in that Business, and provided for a Storm from thence.

They endeavoured to prevent all trouble which might happen in England, by quartering their Army up and down in the several Counties, to be ready to attend all Motions, and to defend themselves from an Invasion of the Scots, they or∣dered some Force to lie constantly upon their Borders.

Cromwel proceeded prosperously in his Affairs in Ireland, took in many considerable Places, and * 1.6 Countries there, and gave a constant account of all his proceedings to the Parliament and Coun∣cel of State, and in all his Letters, gives Glory to God, to whom 'tis only due.

The Parliament, and the Councel of State by * 1.7 their Order, was busy in making Provisions, and Supplies of Men, and Mony for the Service of Ire∣land; which caused their business to proceed the more happily, and willinglyon the Souldiers part, who, without Money are without Discipline, and commonly without good Success.

In the Parliament were many Debates about Reformation of things, according to the late Pe∣titions, * 1.8 and amongst the rest of particulars, there was a great Peek against the Lawyers. Insomuch as it was again said, as it had been formerly, That it was not fit for Lawyer's who were Members

of Parliament, (if any Lawyers▪ ought to be of the Parliament) to plead, or practise as Lawyers, during the time that they sate as Members of the Parlia∣ment, which gave Occasion to one of the Members, of that Profession, to speak as followeth.

Mr. Speaker.

I was unwilling again to have troubled you upon this Argument, had I not been again called up, by the mistakes of the worthy Gentleman that spake last, to give you a true account of those Matters; and to vin∣dicate the Honour of that Profession, whereof I am an unworthy Member.

The Gentleman was pleased to intimate, That Lawyers were heretofore excluded from being Members of Parliament, but, I suppose, he had not much studyed the Records of that Matter, and there∣fore related the Discourses of others by hearsay on∣ly.

But for his Conviction, and for the satisfaction of others, I shall acquaint you with the clear passages of what he aimed at, as, I suppose, and as I find them upon Record, which are much more authentick, than some (perhaps) Table talk or Discourses at Ran∣dom.

The Statute 23. E. 3. called the Members of Par∣liament, the learned Men, whereof many were learn∣ed in the Laws, and therefore supposed to have had that Title. But shortly after this, the great Men de∣generating in the Old Age of the same King, into se∣veral Fastions.

And being much offended with those, who were learned in the Laws, because they hindred their Op∣pressions by pleading the Right of Law on the behalf of their Clients. 46. E. 3. petitioned, That

Nul home de ley pursuont busoignes, en le Court∣le * 1.9 Roy, ne Viscount pour le temps que il est Vis∣count, soient retournez ne accepteze Chivaliers des Countees. That no man of Law, following Business in the Kings Courts, nor Sheriff be re∣turned, or accepted Knights of Shires.

To this the King Answers.

Voet le Roy que Chivaliers et Serjeants des Meaux Vaues du paijs soint retournees desore Chi∣valters en Parlements, ep qu'ls soint esteus in pleni Counte.

The King willeth that Knights and Serjeants (that is, Esquires) of the best rank in the Coun∣ty be from henceforth returned to be Knights in Parliament, and that they be chosen in full Coun∣ty.

After this Ordinance, and pursuant to it, a Clause was inserted into the Writ for choosing Members for * 1.10 the House of Commons 5. H. 4. to this ef∣fect.

Nolumus autem quod tu, seu aliquis alius Vice∣comes Regni nostri, sive aliquis alius homo ad Le∣gem, aliqualiter sit electus.

We will not that you, or any other Sheriff of our Kingdom, or any other Man of Law, by any meanes be chosen.

According to this Ordinance and Clause of No∣lumus, the Sheriffs have been since excluded from sit∣ting in Parliament as Members, during the time of their Shrivalty, the Debate of which point was had, and full of Learning, in a former Parliament, in the Case of a very learned and worthy Person, Sir Ed∣ward Cook, whom most of us knew.

He being made Sheriff of Bucks, upon displeasure against him, was chosen Knight of the Shire for Bucks, and sate in Parliament; and I had the Ho∣nour then to be a young Parliament Man, in the se∣cond Year of the late King.

The Objections against him were the constant usage, not to permit Sheriffs to sit as Parliament Men, their Oath to reside in their Counties, the custody whereof was committed to them and that their Office was but Annual, and so the disability was but for that time on∣ly.

But for a man to be disabled from being a Parlia∣ment Man, in regard of his being a Lawyer, is to disable him during his Life; or his continuance in his Profession, by which he gaines his livelyhood, and they are not publick Officers, oblieged to another at∣tendance on the publick Affairs, as the Sheriffs are.

Yet 'tis true, that in this Parliament which was held 6 H. 4. All Lawyers were excluded, and none of them returned to serve in this Parliament, and perhaps, from some general Discourse hereof by others, the worthy Gentleman is pleased with confidence to vent his Doctrine and Motion.

But in case he did read, and understand the Re∣cords of this Ordinance, and of the Clause of Nolu∣mus, yet, I suppose, he never looked into the ground of this Business, nor into that which followed thereup∣on, wherein I shall hope to satisfy him, and so as to alter his Opinion.

King Henry the fourth, being in great want of Money, Summon'd that Parliament, and caused to be inserted in the Writ, this Clause of Nolumus, to ex∣clude the Lawyers, because he doubted that they would oppose the excessive Demands, which he was to make to the Parliament.

Thomas Walsingham sayeth. * 1.11

That all the Lawyers being excluded, the De∣mands of the King were by this meanes obtained, and by this Parliament was granted an unusual Tax, and to the People

Tricabilis et valde gravis.

A Tax full of Trouble and very grievous: where∣of (the Historian sayeth) he would have set down the manner, h••d not the Grantors and Authors of the * 1.12 same desired to be concealed for ever to Posteri∣ty by causing the Papers and Records thereof to be burned.

Mr. Speaker. This is the precedent intimated by the worthy Gentleman, and this was the Occasion and Issue of that Precedent, the like whereof I presume is not wished by him.

Walsingham Styles that Parliament in the Mar∣gent.

Parliamentum Indoctorum.

The Parliament of unlearned Men.

Speed in his History, sayeth, That this Parliament was called the lack learning Parliament, either for the unlearnedness of the Persons, or for their Ma∣lice unto Learning.

But God hath blest this Nation with such an Age of learned men at this present, that former times knew not, and we must acknowledge that though the House should lack all their Members who are Law∣yers, yet the rest are of so great Abilities, that there would be no lack of Learning.

Yet, Sir, I am sure that the Addition of those many learned Gentlemen of our Profession, hath been, and will be some help in your Affairs, and will not be despised by any prudent Men.

The worthy Gentleman was pleased is••ghtly to call them Gownmen who had not undergone the dan∣gers and hardships that martial men had done. And truely it might less become the Gentleman that said it, than others to make that Observation, if it had been so.

The antient Romans were Souldiers though Gownmen; nor doth that Gown abate either a mans Courage, or his Wisdom, or render him less ca∣pable

of using a Sword, when the Laws are silent, or you command it.

You all know this to be true by the great Services performed by Lieutenant General Jones, and Commissary Ireton, and many of the Members, and other Lawyers, who putting off their Gowns when you required it, have served you stoutly, and successfully as Souldiers, and undergone almost as many, and as great Dangers, and Hardships as the Gentleman, who so much undervalues all of them.

But we are now speaking of their Right to be cho∣sen, and to sit as Members of the Parliament; which doubtless is as much, and the same with all other, the Commoners of England.

The Historian last mentioned sayeth, That the Commons of England who have liberty in the choice of their Knights and Burgesses, would not be debar∣red thereof by the Ordinance of E. 3. nor by the Clause of Nolumus inserted in the Writ by H. 4. But have made a constant choice of some of them, to sewe for them in all Parliaments.

The L. Cook 4. Instit. p. 48. holds, That the Ordinance 46. E. 3. by the general Words of 5. R. 2. Stat. 2. C. 4. and 7. H. 4. C. 15. was re∣pealed.

However, we read not of any Parliament (ex∣cept that unhappy one 6. H. 4.) in which the Law∣yers were excluded: and after not a few considerable Services both Civil and Military performed by some of them for you, it was somewhat an ungrate∣ful Motion now to have excluded them.

We may lay aside the Clause of Nolumus, least other Clauses of Nolumus, which we find in the Writs of Summons, do come as near home to others. Sometime Clauses were inserted in the Writs for Election of Commoners, to this purpose.

Nolumus autem quod aliquis de Retinentia Do∣mini nostri Regis aliqualiter sit electus.

We will not that any of the Retinue of our Lord the King, in any wise be chosen.

Though, Sir, I acknowledge that worthy Gentle-man, and many others who have been the Kings Ser∣vants, and Courtiers, have been very faithful to you, and done you acceptable Services, and so, some of them have done in former Parliaments, and I hope you all do think so. Yet the undervaluing of our Profession to be Members of Parliament, hath less strength coming from such Gentlemen, than from others, because, of them, some from abroad will be apt to say (though scandalously) That Court∣ers and Kings Servants used to sit in Parliament rather to promote their Masters ends, than their Countries Rights; but such Objections are now out of Doors.

The like Passage with this we are now debating, is related in the Roman Story, when the Law Cincia was made, whereby it was provided, That for plead∣ing of Causes, no man should take either Money or Gift, and this Law was endeavoured upon the like-Grounds, to be set on Foot presently after the Death of Tiberius Caesar.

But when some alleadged, That this would cause the want of Councellors, and Advocates, whereby the Poor would be oppressed by the Rich and Mighty.

That Eloquence did not come by chance, or gratis, without Study and Labour. That the care of a mans own Family was neglected, whil'st he attended other Mens Affaires. That some maintained their Life by War, some by tilling the Earth, yet no man laboured in those Callings, or to attain Knowledge; but for the Comodity arising thereby.

That the meanest of the People endeavoured what they could to better their Estates, and that if the Reward of Studies should be taken away, Studies also would decay, as having neither Glo∣ry nor Honour.

Ʋpon these reasons, the Senate thought it not just, and I hope this Senate will be of the same Judgment, to take away the Honorarium of Advocates, but li∣mited the same to 1000 Sesterces, which some com∣pute to about 781. of our Money.

Neither (sayeth Tacitus Aunal l. 11. did that Law continue, or gaine compliance to it. Neither do I think that such a Law amongst us, would be to any Effect, or have any Compliance to it.

But I hope this honourable English Senate, and that worthy Gentleman, a Member of it, will be sa∣tisfyed with the Reasons given in the Roman Se∣nate (who were very Wise Men) and not trouble themselves about such new Laws, which will be in∣effectual, prejudicial to many, and good to none.

But the Gentleman Objected, and it is much ur∣ged in these times against the Profession of the Law, and the Professors of it, that they are the Occasi∣on of multiplicity of Suits, and of delayes in them; and therefore, after the Example of some Forraign Countries, not to be permitted.

I have observed to you before, that those in Power have most reason to be displeased with this Professi∣on; as a Bridle to their Power: but that the Pro∣fession occasions multiplicity of Suits, is as impro∣bable, as any other of his Reasons, or his Argu∣ments.

Mr. Speaker, the reason of the multiplicity of Suits, and Law Causes amongst us, is the greatness of our Trade, which causeth a multitude of Con∣tracts, and those occasion a multitude of Law-Suits.

In those Countries mentioned by that worthy Gentleman, there is not one of his Profession, one Merchant, nor one Contract, for a hundred in Eng∣land; that is the Cause, that they have so few Law-Suits, and we so many.

And give me leave Sir, to tell him that in the Netherlands, and Countries where there is much Trade, there are proportionably as many Law Suits, as there are in England.

Another Ground of what I affirm, is that in For∣raign Countries, every Mans Estate is disposed of by their Law, after a certain Rule, and Proportion, which the Possessor cannot either by Conveyance, or by his Testament afterwards alter.

As when one dyes, his Estate is thus divided by the Law, his Wife hath a part set out for her, the Eldest Son hath a double Portion, and all the other Sons have equal Portions, and every two Daughters have as much as one Son of the whole Estate of their Father thus divided by the Law.

Whereas with us every Possessor of an Estate, hath Power to dispose of it by his Deed, or by his Will, as he pleases, which must necessarily occasion the more Differences, and Suits at Law, upon Constructions of those Deeds, and Wills, and Contests of Parties claiming, than where the Known Law gives a cer∣tain Rule, and Distribution of Estates, which none can alter.

Another Ground of what I say, is the Freedom of our Nation, where every one hath equal Right and Title to his Estate, and there is as full a Propriety to the meanest, as to the greatest Person, which causeth our Countrymen to insist upon their Right, and Pri∣viledges, and to contest for them with the greatest Men, or the Prince himself, if right of Law be on their Side.

This occasions many more Law Suits than do arise in those Countries where the Boors and Peasants

do wholly depend upon the Will of their Lords, to whom they are Slaves, and dare not dispute any Mat∣ter of Right with him; but tamely submit unto their Lords good, or bad pleasure.

And though in some of those Northern Countries, they have no Councellors at Law, as a publick Pre∣fession, because the smallness of their Law Business will not maintain them, and the great Lords are oft∣times there Parties and Judges themselves.

Yet in Germany, France, Spain, and other Countries, the Doctors, and Professors of the Laws are in great Numbers, and Credit, and gain vast Estates, though by small Fees, yet often taken, and long continuing. Whereof, particularly in France, there are many Precedents.

And if we look so far as the times of the antient Romans, and Graecians, their Lawyers will be found numerous, and of Esteem among them, and when their Common-Wealth enjoyed the greatest Freedom, this Profession was in highest Reputati∣on.

Sir, The worthy Gentleman was pleased to menti∣on one thing with some weight, that Lawyers were permitted to Councel, and to plead for Men, in Mat∣ters touching their Estates, and Liberties, but in the greatest Matters of all others, concerning a Mans Life and Posterity, Lawyers were not permitted to plead for their Clients.

I confess I cannot answer this Objection, that for a trespass of 6 d. value, a man my have a Councellor at Law to plead for him, but where his Life and Posterity are concerned, he is not admitted this Privi∣ledge, and help of Lawyers.

A Law to reform this, I think would be just, and give right to People.

What is sayed in defence, or excuse of this Custom is That the Judges are of Councel for the Prisoners, and are to see that they shall have no wrong. And are they not to take the same Care of all Causes that shall be tryed before them?

To that part of the Gentlemans Motion, that Law∣yers being Members of the House, should, during that time, forbear their Practise, and pleading, I shall on∣ly give this Answer.

That in the Act which he may be pleased to bring in for this purpose, it may likewise be inserted, that Mer∣chants shall forbear their trading, Physitians from visiting their Patients, and Country Gentlemen shall forbear to sell their Corn, and Wool, whil'st they sit as Members of this House; which hath the same reason, as to debar Lawyers from their Pract∣ise.

But I doubt, Sir, I have held you too long, my Profession, and the Subject matter of the Debate will plead in my excuse, and I hope Sir, that by your Pru∣dence, such Motions as these will be less frequent among us.

Notes

• * 1.1

  Reasons.
• * 1.2

  Novemb.
• * 1.3

  Intelli∣gence.
• * 1.4

  Prince Maurice.
• * 1.5

  Prince ••••pert.
• * 1.6

  Cromwel.
• * 1.7

  Parlia∣ment.
• * 1.8

  Lawyers.
• * 1.9

  Rot. Parl. N. 13.
• * 1.10

  Rot. parl. Rot. parl. 2. N. 4. dorse.
• * 1.11

  Hist. Eng. Anno 1404. p. 37.
• * 1.12

  Ypodi••∣ma Neu∣striae a•••• 1404.