Diary of Thomas Burton Esq: Volume 4, March - April 1659. Originally published by H Colburn, London, 1828.
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Wednesday, March 16, 1658–9.
Prayers by Mr. Cooper, but Mr. Speaker being very sick, could not attend, so the mace came in alone. (fn. 1)
Sir William Wheeler moved for Mr. Nathaniel Bacon who was at the door; but Mr. Bampfield was called upon, and Sir John Copplestone and Sir Arthur Haslerigge went to his seat to lead him to the chair. He made his apology, but was at last brought to the chair.
Ordered, that Mr. Bampfield do supply the place till Mr. Speaker Chaloncr Chute recover his health, as see former vote. (fn. 2)
Colonel Okey and Mr. Annesley moved that Colonel Overton (fn. 3) be called in, and it was ordered accordingly.
Mr. Weaver. I move to send three or four of your members to your Speaker that is sick, to present the respects of this House, and see how he does. It was very well taken, and ordered accordingly. (fn. 4)
Others said, you may receive the grounds of his imprisonment from his keeper; and the Governor of Jersey, (fn. 5) being one of your members, may give an account of it to this House.
Major-general Overton. (fn. 6) I acknowledge it a great mercy of God, that after three years imprisonment, succeeding fourteen years in your service, I am brought to the bar of this honourable House. As I have been in a suffering condition for four years, so I desire to be passive still. If I may hear the charge brought against me, I hope I shall give such answer to it, as shall satisfy and clear me from any former mistakes and misapprehensions concerning me. I hope I have not done any thing contrary to what I at first engaged, and fought for. I desire not to live or die but by the distributive justice of this House.
I had better have been torn in pieces by wild horses, than have endured this great torment. That had been but for a moment. I most humbly leave myself, my cause, and condition, to this House; and desire, one way or other, to receive according as I have done.
Whereupon, by command of the House, the Deputy-governor and Major-general Overton withdrew, and the warrant was read, which was only to receive into the Governor's custody, him and Sir Thomas Armstrong, and another. (fn. 7)
Mr. Bronghton. I never knew, nor saw the man. I have heard much of his goodness. There appears no cause of his imprisonment. He is a good man. Pray do not delay one hour, but give him that which was his due many years since, his enlargement.
Mr. Neville. It appears by the date, that he has been three years a prisoner, by that warrant. I hope you will not stay a minute, when you see no ground of his imprisonment. You are the fountain of justice in a distributive sense.
Mr. Trevor. There are many of these cases, and divers. I would have no reflection upon times past. Others have been imprisoned, even members of this House, viz. Major-general Brown. There was corpus, but not causa. I would have all the matter before you, the original warrant, and appoint a day for hearing it.
Sir Arthur Haslerigge. I make a difference between times of war and seven years of peace. Such a warrant was never, since William came in. This was never done alone by the King. The King can do no wrong. I wonder we should stick a minute on this. Ah, Sir! there was never such a warrant came before the Long Parliament.
Experience tells us it is time to bound the single person. It concerns you not to hunt after matter. The warrant is in the single person. If he had been alive, I should have said something; but he is dead. I shall say no more. If we perish, let us perish by laws, and not by arbitrary power. Declare against the authority of a single person. If the Council had done it, we should know what to have said to it. He might have had a remedy: now he has none. You must release him, as he is an Englishman.
Mr. St. Nicholas. I hope you will not add affliction to affliction. To be imprisoned by you, will be worse than the former. The original warrant is in Scotland, and must he stay till that come ? I hope you will give him a speedy release.
Sir Henry Vane. You ought not to be accessory, to continue him in prison one moment. You find no cause in the warrant. There may be other causes, but they are not before you. The case is just, that you should give him reparation, and not content yourself barely with releasing him. No person ought to keep a free man of England upon such a warrant, no cause being expressed. The case differs from that of a military person; for inter arma silent leges. Release him, and refer his case to the Committee of Grievances, and command him to attend; and no doubt but he will attend.
Mr.Starkey. I take the law to be clear, that the King cannot commit in his single person, and that the cause ought to be expressed in the warrant. Are not the people fit to have possession of their liberties, that we may make continual claim to them ?
Captain Baynes. You have now a military power mixed with your civil. The military act it all now: I hope you will take course about this. I would have him released, and that will be a means to prevent the Chief Magistrate from acting such things; and also all keepers from receiving prisoners without the cause.
Mr. Weaver. I move that the question be put only as to Major-general Overton. Armstrong is a dangerous person. His business is before the Committee of Grievances. There may be other grounds for committing the rest Let it not be general.
Mr. Godfrey. I think the matter is not before you, unless you had the original cause of his imprisonment. The same ground is for all as for Major-general Overton. Therefore, I would have the vote pass for all in general. There is but one base for all.
Sir Arthur Haslerigge. I would not have you, hand over head, to deliver Irish rebels. It is not for your honour, which is dearer to me than my own life, if I know my own heart. This business of Major-general Overton's is only before you. Nought else before you requires your justice but his business.
Major-general Overton was not committed upon a civil but a military account. You will lay all your officers in the army liable to actions. Plots were daily discovered. I saw a letter from the King to a great man of Scotland, to be ready to rise, &c. We committed him, but durst not set forth the grounds, but would make further use of them. We must make use of persons in the very bosom of our enemies to give us intelligence. If we once discover the grounds, we destroy our intelligence.
I have often taken moss-troopers, (fn. 8) that had murthered your men. We durst not say we took them as murtherers, lest they should discover it to their fellows, before we had caught the rest.
His late Highness sent me into Scotland. I found divers officers in prison, amongst the rest Major-general Overton. It was considered at the council of war. There was a letter showing dissatisfaction to the government, desiring all the officers to meet together. It was at an unseasonable time. We were in no good frame then. It was when Wagstaff (fn. 9) and Wildman's (fn. 10) businesses were in hand. I have brought the letter in my pocket. We cashiered several of them, and sent some prisoners, as Major Brampston, for fear they should go abroad to infect the army. Upon examination of this matter, it was proved that Major-general Overton—I must do him right as well as wrong—(altum risum.) He saw the letter, and approved of it as a good letter, and a godly letter. Major-general Monk saw the letter.
I was commanded to peruse his papers. I found one letter sealed with silk and silver ribbon. It had no hand to it. The contents were that there was an intent to murder the Protector and Lord Lambert, and six others. I was sorry to find it.
Sir Arthur Haslerigge. I, and a great many more of us, were discontented at the dissolution of the Long Parliament. I was sent for by a pursuivant, but had the good luck not to be imprisoned. Major-general Overton was not then an army man, but as one of the people of England. I have observed that he Was committed by the name of Robert Overton, Esq. I would have your question run so.
Mr. Chaloner. In time of peace, we ought not to talk of martial law. It was resolved in Lord Strafford's case, that he could not be tried by martial law. (fn. 11) Martial law was never used but in time of war, of open war, in the army, and upon soldiers only.
The beginning of this was in time of war, and in a dangerous juncture of affairs. There were endeavours to engage a part of the army against the Government. Military men, in military times, do not so much consider form as matter. If the whole case were before you, I would have it referred to a Committee to examine the whole business. Or, if you think not fit to continue him in prison, let him be bailed.
Colonel Okey. There was no plot, not for four months before this gentleman was committed. The plot which they talked on, was of several officers dissatisfied with the breaking the Long Parliament. They chose rather to lay down their commissions than to act up to his designs; and though there came several trepanners from Whitehall, it pleased God to keep us upright.
Lieutenant-general Ludlow. If Mr. Secretary had been here at the beginning of the debate, he would have saved this motion; for it was moved that his whole case might be referred to the Committee of Grievances, as well as for his reparation.
Mr. Reynolds. In your vote, you must express the causes of your releasing him, and let it run not jointly, but severally, viz. that it was illegal as well for that it was done by his Highness singly, and no cause of commitment.
Mr. Sadler. I move to express four reasons. 1. That he is a commoner of England. 2. That it was done by the Chief Magistrate alone. 3. That the warrant expressed no cause. 4. That he was detained four years in prison without trial, and that it was without the reach of the law. (fn. 12)
Mr. Shaftoe. I would not have the mistake pass in this House that no Habeas Corpus lies to Jersey. The case of Berwick, 42 Eliz. and several other cases, show that it reaches any part of the dominions of the king.
Mr. Godfrey. I think it not below your honour at this time, to express them. I would have the rest of the persons added, and say it is also illegal as to them. The base of it runs so far. Your vote will necessarily draw you to it.
Sir Anthony Ashley Cooper. I cannot agree with the addition. I would not only have the warrant voted illegal, but the causes expressed, that it may appear upon your books, which will not appear by the warrant. I would have it further added, as another cause, that he was sent where a Habeas Corpus will not reach.
I am clearly of opinion, and all the Long Robe at the Committee of Grievances were of that opinion, that a Habeas Corpus lies not to Jersey. I would have a precedent. The case of Berwick differs much from it. They are part of England, and send burgesses hither.
I move to set Major-general Overton at liberty; yet for the honour of him that is gone, that fought you into your liberties, that you would not in terminis reflect upon him, as by the words, illegal and unjust.
Mr. — (fn. 13) (who called the Chair, Mr. Bampfield, as Sir Anthony Irby had done before him,) I move that all other persons in the warrant be included in your vote, and that the deputy be called in, to know if he have any other reason for detaining the rest.
News came in just now, by Colonel Matthews, that Sir Lislebone Long (fn. 14) is dead: at twelve o'clock.
It happened that, upon first putting the question, there was never an affirmative, and so it was the sense of the House that Mr. Speaker ought not to put it again; but two or three stood up and said, they gave their yeas, and though they were not heard to do it articulately, it was admitted that, by order of the House, the question ought to be put again, and it was put accordingly.
Resolved, that the commitment and detainer of Robert Overton, Esquire, as well because it is by a warrant under the hand of the Chief Magistrate alone, as because it is by a warrant, wherein there is no cause expressed, is illegal and unjust, and that he be discharged of his imprisonment.
Mr. Speaker, by the command of the House, informed them, that the House had considered of Major-general Overton's imprisonment, and had ordered that he should be discharged without paying any fees; and that the DeputyGovernor was to take notice thereof.
Colonel Terrill offered his Report, (fn. 15) but it was justled out by another debate; even by those that before seemed most zealous for it, viz. Colonel Fielder.
Colonel Terrill made the report, which is very short, and offered it as the opinion of the Committee, that the Governor of the Isle of Jersey, or his Deputy, do bring Sir Thomas Armstrong, prisoner there, in safe custody to the Committee, with the cause of his imprisonment.
He further reported, that the Committee found, that divers commoners of England had, by illegal warrants, been committed to prison into the islands of Jersey, and other the islands belonging to this Commonwealth, out of the reach of an Habeas Corpus. And that it Was their opinion, that the House should be moved to take it into their consideration, how this mischief may be redressed; and that an act might be prepared for that purpose.
I came away at almost one, being to dine at a club, with L. How and northern members. Query, what was done. (fn. 17)
It was moved to sit again afterwards, on the business of the Scotch members, but it would not be admitted. (fn. 18)