Diary of Thomas Burton Esq: Volume 1, July 1653 - April 1657. Originally published by H Colburn, London, 1828.
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Tuesday, December 9, 1656.
Mr. Robinson. I would have this Bill committed with special directions. You have had more bills of this nature before you this Parliament, than ever came here in that time. I would have the tenants in remainder, and the trustees, to have notice of this Bill, that all parties may be heard before the Committee; yet, lest you cut out other men's estates, haply most of the debts may be paid, or there may be a broken title, &c.
Major-General Howard, stood up and offered a petition; I conceive it was the tenants of Westminster's petition. But Mr. Speaker took him down, saying, "Mr. Stanley speaks to the order of the day; I must hear him first. "Mr. Speaker read the petition to himself.
Mr. Speaker. I doubt this Bill is too short, for you to give power hereby to let leases for twenty-one years, or three lives; but they are not restrained, for they may take what fines they please, and reserve what rent they think fit. This is but a renewing of the grievance complained of.
Major-General Packer. The master of the Hospital has as good a right to be master as any man has to his lands, and you only change hands, and put the same power into the hands of others, to take fines and reserved rents, at pleasure.
Mr. Stanley. This master was settled in the Long Parliament, and instead of reforming, he goes his own track, and for 40l. land per annum, he has reserved but 3l. per annum. The whole is 12 or 1300l. per annum; so that, if speedy course be not taken in it, the revenue will be wholly lost.
Colonel White. There are no such abuses in the master as are complained of. He is more out of purse than he has got. He desires but to have the Hospital regulated, with a saving to his Highness's rights, and the master's own right, which is not past 40l. per annum. He took for one fine, 60l., another 40s., another 18l. Yet, notwithstanding the tendency of this Bill, both to take away his Highness's right and the master's, I am content that it should be committed, and all parties heard.
Mr. Solicitor-General. I doubt this Bill will not do the regulation you intend. This is but the changing of hands; for it seems they have power to let leases, as before. It seems the poor have no more but the old rent in the time of Henry VIII. I would not have it go the wrong way. You take away his Highness's right, in disposing of the master's place, and give it to the town of Leicester.
Mr. Cary. You have many Committees. I would have you not to appoint any new ones; but, if I may offer you one Committee, I desire it may be referred to the Committee for the Universities. But Mr. Speaker said it was against the orders of the House to name a Committee, till it was first agreed to commit it.
Major Audley. It is truly said, that since popery was abolished, charity has left the land; and what is the reason but the changing of the foundation. Where they are merely superstitions, I would have them reformed, but not taken away. I conceive this is but a changing of hands, as has been often offered to you. I shall conclude with what Mr. Fuller says of Grantham steeple, "Those that except against it, let them mend it."
Mr. Robinson. I am against committing the petition, for it is against the Bill, and would have it reduced to the old course. I would have the master made exemplary, for betraying his trust, in reducing rent of 40l. per annum, to 3l. He is a non-resident, which is not allowed in our generation, as it was in Henry VIII. and Queen Elizabeth's time.
Major-General Whalley. You have another bill, more generally concerning hospitals: I desire it may be referred to the same Committee. But Sir Gilbert Pickering took him down by the orders of the House, and Mr. Speaker ruled it.
Mr. (fn. 3) brought in another long petition from Cheshire, to the same purpose; desired that they might be read.
Mr. Robinson. I would not have you make any use of these petitions, or admit them upon your records as evidence. It is collateral matter, and ought not to be any direction to you, either to aggravate or extenuate the offence. These petitions may be offered more properly after.
Major-General Howard. True, there is nothing in this petition relating particularly to James Nayler. I would not offer any thing that might aggravate the offence. For my part, I said something to express that I was not so severe as haply others are, especially in matter of punishment.
Mr. Nathaniel Bacon and Colonel Shapcot. I hope you will not rest here, but proceed to further judgment; lest it be said abroad, you have declared an offence, and have not a law to bring the offender to justice. I would have it referred to the same Committee to bring in a Bill of Attainder, with a blank for the punishment. I was sorry to hear it said in this House, that there was not such a thing as blasphemy. (fn. 4)
If you bring a precedent to this purpose, you must set it upon the rack. To take away a man's life by a subsequent law, it is of dangerous consequence. I fear there is something in the bottom of such a motion which scarcely agrees with the rule of the Gospel. To take away his life I am not satisfied, but am for some other secure way of punishment.
If Nayler be a blasphemer, all the generation of them (fn. 5) are so, and he and all the rest must undergo the same punishment. The opinions they hold, do border so near a glorious truth, that I cannot pass my judgment that it is blasphemy. I shall choose rather to live in another nation, than where a man shall be condemned for an offence done, by a subsequent law. I am against the Bill of Attainder.
Judge Smith. I have as tender a conscience as any man to tender consciences, and I am also as tender of the honour of God. How tender are we of our own privileges! not an arrest upon a footman but severely punished, as done to us; I doubt we shall be but too tender in this business.
What are we called in other nations, but the great nursery of blasphemies and heresies; and what win they say, now we have passed a vote against a horrid blasphemer, and we are at stand what to do with him. But we are afraid of a precedent. For my part, I am not afraid of this precedent; I am sorry there is occasion for it; but it were without precedent if we let it pass unpunished.
Was not the king (fn. 6) justly condemned by the legislative power for tyranny, treason, and oppression. It was a just sentence. The like for the Earl of Strafford and the Arch bishop of Canterbury, the Bishop of Rochester's cook, (fn. 7) and Hackett, &c. Six or seven were condemned and hanged at Tyburn, for speaking against the Book of Common Prayer, (fn. 7) a slenderer offence than this.
Our laws make it death for robbing a man, though he take but 12d. from him. Burglary by night, though nothing be taken away, is death. Yet we make nothing of robbing God of his glory. My motion is, that a Bill of Attainder may be brought in; and, if you have no other punishment, that you would fill up the blank with the old way of punishment, that he may be stoned to death.
Lord Strickland. I do agree with your vote, that he is guilty of blasphemy; but, I hope, when you come to prepare your Bill, you will not put in the word blasphemy; for it is a reproach of a man as well as against God.
The text of the Israelitish woman was that she blasphemed. The original is, "She cursed God." It is a word of a general acceptation. I would not have it in your Bill generally, but as blasphemy against God, with a blank for the punishment. I would have his offences summed up, as his taking adoration, &c. in the preamble.
In the Earl of Strafford's case, counsel was heard on both sides, and he was attainted of treason. The Archbishop of Canterbury's case was upon the same ground. Hackett was proceeded against as a rebel. Some proceedings were by the bishops against heretics, but I never knew any law for it in England. I speak it not to extenuate this wicked wretch's offence, nor to lessen the power of Parliament; but I conceive it very proper, for the consideration of a Parliament, to beware of a precedent of this nature to posterity. There may be a Bill for banishment; for, by the law, no Englishman ought to be banished but by Act of Parliament. Nor can you properly pass any sentence upon him but you must do it by Bill. I am not satisfied in your judicial way of proceeding. I would have every Englishman be careful in this case. It has been our happiness to be governed by a known law. The Earl of Strafford's case is particularly excepted, not to be drawn into precedent.
I cannot say but we have laws enough to reach this offender, if the gentlemen of the long robe would direct us. Where most power of the Gospel, most prodigies of heresies and opinions; which will happen always, unless you restrain the reading of the Scriptures.
Heresies are like leaden pipes under ground. They run on still, though we do not see them, in a commonwealth where they are restrained. Where liberty is, they will discover themselves, and come to punishment. There is no such need of drawing you out to such punishment as death. Restrain him, rather, to some country or place; banish him, &c. This House is a living law, but make as little use of the legislative power as you can. It is a dangerous precedent to posterity. It is against the Instrument of Government to proceed to further punishment upon this business. Confine him, banish him, or do what you will.
Major-General Jephson. I wonder such a doctrine should be broached in this House, that it is against the liberty of the people to have recourse to the legislative power. I think rather, the contrary. The case of the Earl of Strafford only limits the judges not to proceed upon that law; but surely the gentlemen are mistaken, who say the Parliament is restrained thereby. I know no such clause in that Bill. Doubtless you may resume that power when you please. I would, to choose, leave a precedent in this case, to posterity. There is no danger at all in it.
I hope God will stir up your zeal in a matter that so eminently concerns the cause of God. We ought to vindicate his honour. For my part, I am clearly satisfied that, upon the whole matter, this person deserves to die.
I went with Mr. Disbrowe to dine with cousin Highmore and the company of cloth-workers, in London, and the reading their brief of eleven sheets (fn. 9) kept me till night, so that I was not at the beginning of this debate. But Major Brooke told me some part of it.
It seems there had been strong endeavours to qualify and lessen the crime. Captain Baynes used the argument to spare him thus: "Nayler prophesied of his death; let us make him a liar by saving his life." Major Brooke answered: "By this rule the murderer, and felon, and robber, may say they prophesied their death. Will you, therefore, spare them ? You will have a good many prophets upon this account." Sir Gilbert Pickering had been speaking a good while, to lessen the offence, and was at it when I came in. He concluded for some lesser punishment than death, to be inflicted, as whipping.
The legislative power of Parliament is great, but not so as to be taken up upon this occasion. I am afraid of an ill precedent. As I would have us bear our witness against this crime, yet I would have us do justice in a just way. We may not, by the legislative power, do what we please, call that an offence which is not. We have also a Master in heaven, to whom we must give an account.
Major Beake made a long speech to prove it to be blasphemy. It was dark, and I could not take it; but his conclusion was, that he conceived it was a fit punishment to cut out his tongue, and cut off his right hand, and then turn him beyond seas, and let him go with the mark of a blasphemer.
Lord President made a long speech to extenuate the offence, and concluded for a moderate punishment, as whipping and imprisonment. Mutilation was as bad as death. He made an apology, that he had nothing to say for Nayler; he had no favour for him more than upon account of tenderness. He called him an erring person.
Sir Richard Onslow. I am fully satisfied that the offence is blasphemy, and deserves to be punished as blasphemy; but would have a blank brought in for the punishment, in the Bill of Attainder. Make the punishment what you will, you must have recourse to the legislative power. Your judgment must be ex post facto, if you pass any sentence at all in it.
Lord Fiennes made a long speech, to extenuate the offence. Hath not heard the party, nor any thing of the business, yet submits to your vote. Cannot agree to punish it by death, or mutilation of any members. Would have him put into Bridewell and whipped, and so humbled into a conviction, and that, in the meantime, the person and the charge might be sent to his Highness, for his satisfaction in the matter; and this sentence to pass upon him by Bill of Attainder.
Colonel Mathews. It has been firsted, seconded, and thirded. I desire the first question may be put, about bringing in a Bill of Attainder. I shall reserve my judgment, wherein I shall haply be very moderate respecting the crime.
Lord-Chief-Justice. As this is without precedent, I would have us very tender in what we do in this business. I am altogether unsatisfied in passing sentence of death upon him; but some lesser punishment, as pillory, whipping at the places where the offence was committed, and to be debarred all society, &c.; and this by a judicial way, which I question whether it be solely in the Parliament, or in them and his Highness, as affairs stand now.
Mr. Bampfield made a very large and handsome speech in answer to what Lord President, Lord Fiennes, and Lord Chief Justice, and the rest of the merciful men had said; such as they were scarce able to reply to. He proved it, that it was the mind of God to punish this offence with death, and he could not pass his judgment otherwise.
The magistrate is custos tam primæ quam secundæ tabulæ, else I understand nothing. That of Rom. xiii. is clear. That of suffering the tares to grow with the wheat, (fn. 10) was not spoken to the magistrate, but to private persons.
3. That law of Darius against those that should speak evil of Daniel's God. (fn. 11)
4. The example of our Saviour's suffering is drawn thus. If he had not been really Christ, then had the Jews done justly in crucifying of him. For the Spirit of God holds this forth plainly, that the charge laid against him was, that he, being a man, called himself God. (fn. 12) And was this offence of Nayler's less than calling himself God, and assuming the name, title, and incommunicable attributes of our Lord and Saviour Jesus Christ, and the worship due to him. If this be not blasphemy, then there is no blasphemy in the world.
I thought to have reserved my judgment as to the punishment, but seeing all along the debate has run to confound the crime and punishment together, my humble opinion is, that his crime deserves to be punished with death.
Colonel Chadwick. First whip him for the lesser crime, as for being a seducer and an impostor, and haply that may work him into a sense of sorrow. If not, then proceed to higher sentence upon the higher offence.
Sir John Reynolds. I would have your time saved, and not go this long way to work, by a Bill, but proceed to pass some moderate punishment upon him. as whipping and imprisonment; and that by the judicial way: but to punish with death, I am against it.
Mr. Speaker offered as an addition to the question, that Nayler might ride backwards on horseback through Bristol and the other towns he had passed through, and from Westminster to the old Exchange, &c.
Sir William Strickland. I see many persons that are up to speak in this business. I would have no man hindered from declaring his conscience to the full, so desire that this debate be adjourned till to-morrow.
Mr. Bond. I second that motion, for I had something upon my own spirit which I thought to speak; but I desire rather that you would adjourn. It is late, and others I see desire to be heard; but, Mr. Speaker, I would have you keep us to our orders, that none may speak to-morrow that has already spoken to this question. The Speaker said he would keep us to it.
Resolved, That this debate be adjourned till to-morrow morning. We sat till almost nine, it being the last night of the natural life of this Parliament. (fn. 13)