Diary of Thomas Burton Esq: Volume 1, July 1653 - April 1657. Originally published by H Colburn, London, 1828.
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Saturday, December 6, 1656.
An Act for the Forest of Deane (fn. 1) read the second time.
Resolved, that it be committed to the same Committee. (fn. 2)
The House resumed the debate upon the report made yesterday, touching James Nayler, and, after debate, he was sent for and heard at the bar of the House. So far in the Diurnal. (fn. 3)
Mr. Floyd. I would have you make a court for the trial of Nayler, that you may keep your legislative power, and proceed judicially. It is not only malum prohibitum, but malum in se. It is against the law of God, of nature, and nations too: Though the bishops be taken away, the law against blasphemy is not taken away. I would have a particular court erected to hear and determine.
Lord Strickland. It is a hard case that we should have no law in force to try this gentleman, but you must have recourse to your legislative power. This House never took up that power but upon extraordinary occasions, with a protestando not to draw it into precedent. If there were a law to try him without, others are better judicatories in such cases; but to condemn him first, and then try him, as was offered to you, is very hard.
The eyes of all the nation are upon you for this issue. The world abroad says it is liberty of conscience has brought this fellow before you. I am of the same opinion. I am as much for liberty of conscience as any man, but when one runs into these extravagancies I think he exceeds that liberty.
To the order of your proceedings. First, call the party hither and read the charge, and ask him, guilty or not guilty, and thereupon order your proceeding, before you prepare a bill; for I would have him have all the fair way of trial that may be. It concerns his life.
Mr. Bodurda. I am sorry it should fall to my lot to put you to the question. For my speaking, I rise not to trouble you with long speeches. I find the House divided: some would have him called to the bar; others tried at law. I offer an expedient.
Major-General Disbrowe. I shall offer an expedient, though haply foolishly: that this fellow may be banished; for life is precious, and you have matter enough, already, to ground such a sentence upon.
Major Audley. I move that his Highness's advice may be desired in it, and yet, in the mean time, that you would provide a law against such blasphemy for the future, and proceed when you have thus advised.
Mr. Church. I desire he may be called to the bar, as often moved. That you would set apart one of these three days, which you have left, to seek God in this business; for if we be not tender in God's honour, he will not honour us. We ought to be zealous in this business as in Achan's case. (fn. 4)
Mr. Highland. It would make any tremble to hear, these horrid things, and to think what this fellow's profession was, and what it is now. To deny God, or to make himself equal with God. We ought to vindicate God's honour, if his name be upon us, but we must honour him as well in the order and justness of our proceedings; not to judge before you hear. All judges are tender in this. You have heard no witness against this man. Let him have a fair trial. I am against his banishment; for you must send him to some of your plantations, and there he will infect more: the like consequence will be if you imprison him. I would have him brought to the bar, and let him hear the charge against him read. Haply he will confess as much as you will desire of him. If he be guilty of these things, let him not longer infect the nation.
Mr. Bampfield. The calling him to the bar, is but a mean to delay the business. The great argument is, that you are not to credit what you have from others' eyes or ears. You believe your Committees' Report in all other matters, that concern the lives, liberties, and estates of three nations. Nay, without the report of a Committee, you have, at one breath, concluded that all the men that have been cut off in the Spanish war, were justly cut off, and that shall be cut off in that service; for you have, without further examination, agreed the Spanish war to be undertaken upon just grounds, and you will pursue it. (fn. 5) The like has been formerly done, in votes that have cut off the lives of 100,000 persons without any examination. You ought to credit the Committee then, certainly, in a matter of lesser nature, though I would have you tender in this business. You see by the eyes of your Committee, and what they do is the act of this House, I am sure, in other cases.
As to that of the want of an oath: We did charge them, in the most solemn manner that we could possibly devise, that they would be careful in what they said, what was the concernment, before whom, in whose presence. We had no power to administer an oath.
But it does not only depend upon these affirmations of the witnesses; but upon Nayler's own confession. There lies the main stress. It was foul enough before, but the ugliness of it, upon his examination, and his carriage at the Committee did more appear than before. It did more than fasten the information, which was but historical to the matter.
He confessed that the woman said these words and expressions, which Mr. Piggott, by Providence, came to the Committee and informed; " Rise up, my love, my dove, my fairest one, why stayest thou amongst the pots;" only he denied the woman's kissing his hand. (fn. 6)
If you bring him to the bar, upon what will you proceed ? If you take his answer in parts, then you must debate the parts. If to the whole, he may, with the Archbishop, desire time to answer to it; (fn. 7) so you shall know where you begin, but where you will end I know not, if you take this course. The first question ought to be, as it was first moved, whether this offence be blasphemy, or no.
Colonel Sydenham. I should be sorry to spend your time in this business, but I cannot advise you to go a greater pace than ought to be. I know nothing of the shortness of your time, this gentleman, haply, knows more of it. (fn. 8)
I have met with no argument to convince me that we should agree with the Committee before you hear the party. I would not have such a thing drawn into precedent. 1. It may be any man's case, hereafter, to be accused for an offence, and from the bare Report of a Committee, to have the sentence of death passed upon him without further hearing. This gentleman told you now, what a full Committee there was at this examination, and yesterday he told you how hard it was to get a Committee together.
4. It is said you agree with the Committee in matters of great consequence that concern life and liberty, &c. but you do not undertake to be the executioner. For that of the Spanish war, it differs certainly from this case: we do not draw the blood upon us, for they are and were our enemies.
Mr. Ashe, the elder.—You ought first to declare him guilty of such a crime: then draw up the Bill of Attainder against him, and then call him to the bar. But your previous question is to agree with the Committee.
Mr. Croke. Under favour, this gentleman, though an old (fn. 9) Parliament-man, is mistaken in the manner of your proceedings. It is against the orders of the House to speak again today, for at this rate I know not where. you will, end.
We are most of us, as private, persons, satisfied with the matter of fact, wherein the worthy reporter has taken a great deal of pains, in the faithful report of it. Every man, I hope, that professes the name of Christ, will bear his testimony against this blasphemy.
But, by all rules of law and justice, you ought first to call him to the bar; haply he may deny matter of fact, haply matter of law. He may say it is not blasphemy, I would have him called to the bar.
Sir Gilbert Pickering. I move that it may be respited till Monday. It is now twelve, (fn. 10) and it will take your time so long that you will be forced to sit as long as you did yesterday, which will not agree with many men's healths that are here.
I am for the first. The objection, it seems, lies against the truth of the Report. Certainly greater solemnity could not be at a Committee than was at this Committee; almost 150 there. You have given greater credit to a Committee in matters of property and liberty, instanced in the bills for sale, &c.
A matter of the like nature cannot possibly fall before you, as private persons. I presume few of us but do believe that the confession was, re vera, true, and it is fixed in every man's breast. Those that argue from the greatness of the punishment, look further than I can divine.
I suppose none can tell what his sentence shall be till the offence be agreed on. If you want a law, who can supply it, as in the case of a Strafford, but a Parliament. Shall punctilios and modalities and forms, bind and tie up a Parliament? We are not thus strait-laced; arguments from consequences are not good in these cases; when the nature of the thing ties us punctually to perform it.
Every man is satisfied that this ought highly to be taken notice of. You are no more bound to precedents than in Stratford's case. You may create a form when you please. It is a notorious reflection upon the Committee, to give them absolutely the lie.
Captain Baynes. However others look upon Nayler, I look upon him as a man, an Englishman. I would have him so tried as to bring in a bill of attainder against him, or leave him to the law. It is below you to honour him with a trial here; but if it must be otherwise, let him be called to the bar, and proceed judicially against him, lest the precedent be of dangerous and ill consequence to other persons, whose lot it may be, in other cases.
Mr. Bedford. When, in the long Parliament, you did by a law confiscate men's estates and lives and liberty, both in England and Ireland, had you any more, nay so much, evidence as in this case, though, I presume, justly too. For my part, as a private person, I am sufficiently convinced of the matter of fact. Yet, to the end we might be unanimous in this thing, I desire he may be called to the bar and heard: but although he should deny it, I dare affirm it. He did speak blasphemy in my hearing, which is sufficient to conclude my judgment.
Sir William Strickland. I have taken an oath to stand for the liberty of Parliament. I always understood a Report from a Committee to be good evidence against an offender. I would not have this passed without clearing the honour of Parliament. With this salvo for your honour and liberty, for general satisfaction call him to the bar, that all the world may know you do him more liberty than you needed. I would have your proceedings justified as much as may be, and him left inexcusable.
Colonel Briscoe. Qui per alium per se is the case of your Committee, and if you agree with the Committee, what needs further examination ?. I always understood a Report to be evidence, else you reject what is your liberty, as I have heard, though not so well acquainted with the orders of the house, that frustra fit per plura quod fieri potest per pauciora. My opinion is clear that the question is to agree with the Committee.
Mr. Lister. That no more time may be spent, call him to the bar. For my part, I am not satisfied with the Report in all particulars. I desired at the Committee, in the close of the business, that he might be heard again, to see whether the notes that the gentleman had taken did agree with Nayler's sense or no. So I desired he might be called, but was overruled.
Mr. Downing. I wonder what the word "forthwith" means, if it may be taken away by a subsequent vote. It is to no purpose to make laws or orders, if the word "forthwith" cannot be understood. I think it looks more like immediately than like Monday morning; else I understand nothing.
James Nayler being brought to the bar, refused to kneel or to put off his hat. The House agreed beforehand that they would not insist upon his kneeling, being informed that he would not do it, and that he might not say that was any part of his crime. They would not give him that advantage; but commanded the serjeant to take off his hat.
Mr. Speaker asked him of his name and country as in the Report, whereunto he answered after the old way of canting; (fn. 11) confessed all but that passage about Mrs. Roper. "It might be," said he, "she kissed me. It was our manner; but when I found their extravagancies I left them. All that knew me, in the army and elsewhere, will say I was never guilty of lewdness; or so reputed. I abhor filthiness. See if any can accuse."
The clerk read the charge to him in parts, which he, upon the matter and in effect, confessed, what was in the Report, saying, "I do not much mind what is behind; I believe the Committee, many of them, will not wrong me;" or, "I stand to what they testify;" or the like expressions he used; "It is likely I said so;" "I cannot say against it," &c.
A. I cannot deny what I said at the Committee. But the Speaker, desirous to help him, here said, " Mind what you say; are you the judge, have you no fellow-judges." Then he answered " No;" saying again," I hope you have so much justice and charity as not to wrest my words;
Mr. Speaker. A sign is not only set up to direct the (fn. 12) —:— to his own, but to direct others.
A. I know no other sign. There may be other signs in some parts of the nation; but I am set up as a sign to this nation, to bear witness of his coming. You have been a long time under dark forms, neglecting the power of godliness, as bishops. It was the desire, of my soul, all along, and the longing expectation of many godly men engaged with you, that this nation should be redeemed from such forms. God hath done it for you, and hath put his sword in the hands of those from whom it cannot be wrested. That sword cannot be broken, unless you break it yourselves, by disobeying the voice, the call, and rejecting the sign set up amongst you to convince them that Christ is come.
A. It is well for those that can witness him long since come in the flesh. It is but of late he is come to me; but I say he is again come in the flesh, and he is daily manifested in the flesh; though none can bear it.
I am one that daily prays that magistracy may be established in this nation. I do not, nor dare affront authority. I do it not to set up idolatry, but to obey the will of my Father, which I dare not deny. I was set up as a sign to summon this nation, and to convince them of Christ's coming. The fullness of Christ's coming is not yet, but he is come now.
After a great deal more said to this purpose, which I could not take, he withdrew; and the Speaker desired if he had omitted any thing, he would inform him, or if any desired any more questions might be asked him.
Sir Gilbert Pickering offered another question (being unsatisfied) about what his hope was in Christ's merits, and how he prayed to that Christ that died at Jerusalem. Whereupon Nayler was called in again, and answered pretty orthodoxly to those questions, and gave an account of his faith in God and Christ, &c.
Major-General Skippon. Was against calling him in, or asking any more questions, saying, He hath confessed enough to vindicate the Committee, who deserve thanks, for they have been very faithful and painful in the business. It now lies with us, (being fully possessed of the matter-of-fact) not to suffer the honour of God and the truths of the Gospel, to be thus trampled upon. We shall see what judgments will come upon us. God now looks what you will do. Indeed, my heart trembles at those things remarkable, which will follow your remissness herein. I am afraid there will nothing come of this business, and then sin and judgment lie at your doors. These Quakers, (fn. 13) Ranters, (fn. 14) Levellers, (fn. 15) Socinians, and all sorts, bolster themselves under thirty-seven and thirty-eight of Government, (fn. 16) which, at one breath, repeals all the acts and ordinances against them.
I heard the supreme magistrate say, " It was never his intention to indulge such things;" yet we see the issue of this liberty of conscience. It sits hard upon my conscience; and I choose rather to venture my discretion, than betray conscience by my silence. If this be liberty, God deliver me from such liberty. It is to evil, not to good, that this liberty extends. Good Sir; discharge your duty to God in this thing, and put the question to agree with the Committee.
Colonel Briscoe. It is very clear that he does assume the peculiar attributes of Christ, though he does it with a distinction of visible and invisible; an evasion obvious to every sophister. But, in the thing, I am very ready to give my vote to agree with the Committee,
Mr. Butler. It lies much upon your hands to vindicate share of public interest.—See Whitlock, p. 385, Parl. Hist. xix. 121—123. the honour of God. This fellow has not only committed blasphemy himself; but, I fear me, he caused-many others to commit blasphemy.
The time of discovering this business works much with me; that such an indignity to Christ should be done, sitting a Parliament that professes so highly to the inteiest of Jesus Christ. Do we not undertake his cause, to manage it against Spain, where his name is blasphemed, and shall we suffer him to be blasphemed at home ?
Sir William Strickland. Nothing has been reported from the Committee, but is, to a grain, agreed by the party's own confession at the bar. I hope you will approve of the way of the proceedings of the Committee, and adjourn the rest till Monday. You have now hell groaning under expectation of this issue, what you will do in this business. I would have us put on courage; and let not the enemies of God have the upper hand, to have liberty to blaspheme his name. It is the cause of God, and ought not to be slighted.
Colonel Sydenham. Adjourn till Monday morning; Nobody has been James. Nayler's advocate: but this business ought to be fully debated, whether it is blasphemy. Some will say it is but an error, &c. If you put the question to agree with the Committee, you exclude their votes that would weigh the matter of fact; and haply some may demur to the matter in point of law; some, in matter of fact; so that, in my opinion, you are not ripe for such a question, to agree with the Committee. Again, there are many circumstances and things, of small consequence in respect of the main; will you, in the gross, agree all this to be blasphemy ?
Mr. Downing. You are judge and jury. You have heard the prisoner at the bar, and will you leave the business in the midst, after issue joined ? Can I charge my memory till Monday with what is fresh in my memory now ? Have you not the evidence plain before you, and how can you leave off in the midst of an examination ? Are not juries kept without meat and drink; yea, carried from cart to cart, county to county, till they agree in lesser matters, (fn. 17) and shall we break off in this ?
Mr. Speaker. I remember what a gentleman in another Parliament said of the result of our long debates, that it was but as the verdict of a starved jury. It will not be so with us, for many members have dined, though others fast.
Mr. Bedford. You should put the question, whether by the evidence you have heard, James Nayler is guilty of horrid blasphemy, and not delay the business further; for it is high time to proceed in a matter of this nature.
Major-General Goffe. I am of opinion with Nayler in one thing, that he is set up as a sign. He has fulfilled a scripture, that false Christs should arise, "to deceive, if it were possible, the very elect." It ought to be a warning to us, to know how we stand. The Scripture is fulfilled saying, "Lo! here, lo! there is Christ; but do not believe them."
Major-General Disbrowe. I believe that James Nayler is guilty of blasphemy, (fn. 18) but I shall not hinder your question to agree with the Committee in the Report.
Major Audley. It is a gross mistake to agree with the Report in gross. I cannot agree to this; but rather to proceed upon your own knowledge. What you have heard with your own ears from him, may be the ground of your proceeding now; or otherwise to examine it in parts.
This debate held till almost four, which spoiled the sitting of all Committees; (fn. 19) I question whether it has not left them all, sine die, unless some met only to adjourn. I went to look after Committees after five, but found none, only Sir Gilbert Pickering very serious with the clerk in the lobby, copying but Nayler's charge, to be better prepared against Monday.