Diary of Thomas Burton Esq: Volume 3, January - March 1659. Originally published by H Colburn, London, 1828.
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Wednesday, February 2, 1658–9.
Resolved, that a Grand Committee of the whole House, do sit in the House, for Religion, oh Monday; for Grievances and Courts of Justice on Wednesday; and for Trade on Friday; weekly, in the afternoon.
Mr. Neville. I am glad that what you did yesterday passed with so much unanimity. I would have something go, hand in hand with it, for the liberties of the people. The two great flaws in the Government, one in the sovereign power, and another in the executive power, were the negative voice (fn. 1) and the militia. (fn. 2)
The King would not concur, which produced war; and it was determined on the people's side. I would have nothing of aspersion. It is in good hands now; so that the propositions sent to the King, in all things, will not agree. As to the propositions of the militia, about putting it in Sheriffs and Deputy-Lieutenants, I would have a Committee of able persons appointed to prepare a law, that your negative voice may not be many, without doors, (fn. 3) and the militia be entrusted in safe hands, that it may not be oppressive. I shall not bring in an Act, but offer my thoughts.
Mr. Starkey. Those things are settled by the Petition and Advice. The negative voice is of great use on either of the three co-ordinate powers. I never could find any law to the contrary. We are met for peace. By law the King had a negative voice, on whatever was debated or resolved here. We ought to keep singly to the Recognition, and not perplex what is either clear, or ought to be meddled with more seasonably. The gentleman says the militia is settled by the Petition of Right; so he has answered himself. And if it be settled, let us not dispute it over again.
Sir Arthur Haslerigge. I hoped never to have heard this motion in this place, that the militia and negative voice are not in this House. I wonder at the gentleman's modesty, that he brought not in a Bill. I brought in the Bill for the militia to be in the House, and— (fn. 4), and I was sent into Leicestershire, where we met the King, about settling the militia, and the King not condescending, we fought it out. (fn. 5)
I have a complaint to this House, which I hope in due time will be heard; my being kept out of the House, (fn. 6) who was always faithful.
A strange thing that the top stone shall be laid first. I would have this business put off till after the fast. I have met with the printed speeches. (fn. 7) If you please, I will say somewhat to them. We are in a sad case; our armies in great arrears, and great need of navies. There is a promise of accounting to us, (fn. 8) of which we have not heard yet. I went up as one of your servants, to see in what order we should be. I saw where the Lords were. I asked where the Commons should be, and they said, at the bar; where were servants and footmen; and to stand amongst them we must have begun to rub my Lord. I believe many members did forbear to go up. (fn. 9) I would have the speeches read, if you please. (fn. 10)
Mr. Trevor. I wonder to hear this motion seconded by the worthy gentleman who moved for nothing to be done till all Privy and standing Committees w ere settled. He says Providence has so ordered it, that the case of the militia and negative voice, are settled by the law, if any law be. It is said, it was the beginning of the quarrel between the King and the Parliament. I hope it shall not be the quarrel between his Highness and the Parliament. That gentleman had it in his choice that we might have stood bare to him. (fn. 11)
Sir William Wheeler. I move for a Committee to prepare the Bills under consideration for the people; as the law for marriages and probate of wills. (fn. 12)
Major Audley was called in; and standing at the bar, (fn. 13)
Mr. Speaker opened the information against him, and said the House was willing to hear him say for himself, and had brought him to the bar, not upon his knees. (fn. 14)
Major Audley. I have not been used to speak for myself, either elsewhere or in the House. I should be sorry to give offence by speaking. I have stated the matter of fact in a Petition, if it please the honourable House to hear it.
Sir Arthur Haslerigge. I wonder to hear that motion from a gentleman that has sat so long in this House. The gentleman ought to confess or deny. If he confess those words, they will scarcely be avoided. This gentleman has had more favour than stands to any upon your books.
Major Audley. I offered my defence in writing lest by my tongue I should offend while defending myself. I deny the charge in the main of it. It arose upon an election. I was duly elected, and being informed there was a double return, I applied myself to a gentleman to present my Petition. My passion and natural temper being worse than other men's, I said I would lodge a Petition at the cross bar against the election. I desired him to withdraw and not let people be witnesses of our follies.
He said I was not a gentleman, I had no arms: (fn. 15) I was a turncoat. So that I was provoked to those languages. But the challenge I deny. I had no intent. I profess I knew him no member of Parliament; I thought there had been a double return. I had rather acknowledge myself guilty as much as I am, than reflect upon him that is your member.
To the other gentleman I said not a word; (but asked him how long a lease he had of sitting here) meaning only to prosecute. I acknowledge myself accidentally, not professedly, an offender to this House. I have faithfully served you these eighteen years, and was never guilty of being a turncoat. That sticks with me.
Mr. Lechmere. I observed much of relenting. He asked pardon of the gentleman, as a gentleman, as a member of this House; or of the House, in public. As the pardon is asked publicly, you should forgive publicly. He is a perfect man that can bridle his tongue, and he that speaks much must sometimes repent it.
Sir Arthur Haslerigge. The complaint is exceeding worthy your hearing. Many gallant young gentlemen, I see, in this House, who may be here when I am gone. I would not have the blood stick on your chair. I think the acknowledgment is not sufficient. I would fain read the proverb well. "Not right pity, spoils the city." If one member of this House should challenge another, I hope he would be turned out and sent to the Tower.
A competition about an election ! It is said the information is not well proved. A challenge may be whispered. The law favours passion, as in the case of manslaughter; but the manslayer goes not without punishment. In the case of Mr. Holford, (fn. 16) he kneeled at the bar, for one word, and was sent to the Tower, and you can do no less than send this gentleman to the Tower. I have no end but your own honour, and to prevent the fall of some young gentlemen in this House. If the challenge were true, I should disable him for sitting in this House.
Mr. Bulkeley. You cannot so easily lay it aside. This person has put his hand to the plough and drawn it back. He was in holy orders. The question is, whether you will believe a member, or a stranger. I shall put a very great difference between the testimony of the one; and the other, that has forsaken his profession. I heard a gentleman of this House say he heard him say, "Let us step to the other side an hedge, and that will decide the controversy." This tends to blood. It comes regularly before you to vindicate this gentleman. He that dares do least in this way, dares do most in another way. When justice is done, I shall be as much for mercy as any man. A gentleman heard him say more.
Mr. Wharton. I was passing through the hall, and heard Major Audley say, Mr. Bish was an unworthy fellow, and that he did not challenge him, but if he would go the other side of an hedge, that would determine it.
Sir John Lenthall. Wherever an injury is done to any member, it is done to the whole. I would have him as highly punished as any man that has offended in this nature. He is a man that when authority was in his hands did very much oppress the country.
Major-General Kelsey. I would have no aggravation. He is a scholar, and might at first exercise as a minister. It is not unchristian to do so. When a man finds himself unfit, it is Christian to forbear the calling, rather than to be unprofitable. I have acted in that country, and never heard him called an oppressor before.
He apprehended himself to stand in an equal capacity, and ill language did flow from both. It is an offence in its own nature, but I would have all circumstances taken in, to pass a right judgment. I would have it referred to a Committee to have the true state of the case laid before you, ere you pass judgment.
Serjeant Maynard. If any member did inform you of any thing, it was. never your use to refer it to a Committee. I would have nothing laid in his dish of what he has done, otherwise. It needs no aggravation. It is a challenge. Do justice boldly. Vindicate your privileges, lest from twenty you come to twelve.
Sir Richard Temple. I shall not speak to the matter, but to the manner of his punishment. You will not think it fit to send him to any other place than the Tower. I have heard much of his ill deportment. I would have him disabled from all office, civil and military. He has forfeited his mercy by disproving his ingenuity.
Mr. Hungerford. This needs no aggravation. The place is too good. You sent Sir John Stowell to the Gatehouse. I would have him sent thither. I am not of that gentleman's opinion that said he might draw back from his profession.
Captain Baynes. It is not usual for gentlemen concerned to press a business after the person have so ingenuously acknowledged. I would have his punishment put off till the question about the election be determined, lest you punish the people as well as him; and let him, in the meantime, remain in the Serjeant's custody.
Sir Arthur Haslerigge. I would have the Tower his prison, as most honourable for this House; and the second question to be, to disable him from sitting in this House; for I must ever be tender of your privileges.
Mr. Turner. You have testimony from three witnesses, where one is sufficient. Nay, pro bono publico, a man's self may be witness in an indictment where no damages are given. There is misericardia princeps. It is not justice to yourself. You are the great conservators of the peace. I move that he be put out of the Commission of the Peace, (fn. 17) for he has apparently broken his trust.
Lord Lambert. He has done you good service. I am witness of it. It does not amount to a challenge. It is a coarse business; scurvy language; a thing in itself less ingenuous than a challenge. I would not have you exercise the utmost severity to an old servant of yours. I would have him only sent to the Tower. Sir John Stowell: he was long in arms against you.
Mr. Eyre. I desire not to add affliction to misery; but I conceive it was not improperly moved you by Mr. Turner that be be put out of the Commission of the Peace. He is a judge of challenges; and though it be not a challenge, yet it is a provocation. The true valour of fortitude consists not in passion. He may be fit for the military commission, though not for the peace.
Mr. Henley. The offence is heinous. That he is a servant to the Common wealth makes his offence the greater. It is against his duty and his trust. Especially, as an officer, he ought to give the better example. Great men commit things with a hundred hands. A little star may twinkle in and out, but an eclipse of the great luminaries is more conspicuous. I would have him, at least, turned out of the Commission; and that you would be so tender of your privileges, and bear such testimony against all offenders of this kind, as to let them know they kick against the pricks.
Mr. Hungerford. Leave it to the Lords Commissioners, upon your sense, to put him out of the peace, if you please. Nemo bis punietur pro uno delicto. I think it but fit to be done; but not by you, and let the other punishment suffice.
Colonel Okey. I am loth to trouble you again on this business. I am sorry to see those reflections, that he is fitter to be a soldier than a Justice of Peace. I see it will be a crime to be an army man. Is the expense of our blood nothing ? The Long Robe are very —(but this he said underhand.)
Mr. Bulkeley. This seems more necessary than any other part of the punishment. There is a great difference between a sudden rash act and a pursuance of it, day after day, as Mr. Wharton said. The next morning after I heard this, I heard of some further addition. I would have him put out of the Commission for ejecting scandalous ministers. (fn. 18)
Mr. Goodwin. These gentlemen are my near neighbours. You have done justly in sending him to the Tower. I have known him a long time. In the Long Parliament he did you faithful service. For a slip of passion you would not punish him further.
Mr. Bodurda. I move that the cause of his imprisonment be expressed, and the other question waved; for, if you disable him from being a Justice of Peace, you must make a previous vote that he shall not be a member.
Major Audley being called in, received his judgment on his knees at the bar; after the Speaker had made an harangue touching the plaga linguœ as well as the plaga dextræ, &c. that he should stand committed to the Tower during the pleasure of the House.