Diary of Thomas Burton Esq: Volume 4, March - April 1659. Originally published by H Colburn, London, 1828.
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Tuesday, April 12, 1659.
I found them in a debate upon a report from the Committee of Grievances, touching Major-general Boteler. (fn. 1)
The offence of Lord Strafford was not so high. For him in that insolent manner to tell you, in this House, that he would not dispute whatever the Chief Magistrate ordered him to do. He had acted highly in the point of decimation, (fn. 2) and had indemnity for it through great mercy. To offend again is an abuse of your tenderness to him.
Mr. Annesley. Sentences in former times, against offences of this nature have been much higher. He that has denied to be bounded, is not fit to be trusted with the execution of any law. The least you can do is to put a mark upon him, to deter others. Make this person incapable of doing any more mischief. Put him out of the commission of the peace, and desire his Highness to put him out of military power.
Mr. Scot. I find by what I have heard upon this debate, and what will come in against him as high a charge preferred, and punishment proposed, as that of Lord Strafford. I am not for so high a punishment. I shall say nothing of the Act of Indemnity, but only this. They that would not observe an Act of Oblivion, deserve not an Act of Indemnity.
I would have him brought to the bar as a delinquent. See, if he will own your authority, and what he will say for himself. It may be, you will proceed to fine or imprisonment; and, in the meantime, make him incapable of bearing either civil or military office.
A soldier, by the martial law, is not to dispute the orders of his superior officers. I declare myself against the Majorgenerals, and arbitrary power. I hope never to see such things done again. We must distinguish of times. Nothing done since 42 is questioned. I would have no retrospect, but look forward.
Mr. Bodurda. Those that heard me last Parliament, (fn. 4) will say I am no friend to arbitrary government. But, if you admit this for a doctrine, that you will not distinguish of times, I know not where it will end. I would have this laid aside.
Lord Falkland. I hear much that Cavaliers are in town, I wish there be not Cavaliers amongst us, (fn. 5) that strive to make our friends Cavaliers. This gentleman robbed me, and keeps my goods to this day. His actions are generally, all over Northamptonshire, cried out against. I desire you would put the question.
Resolved, that this House doth agree with the Committee, that the entry and detainer of the lands and goods, by force, and rescuing the goods from the sheriff, and hindering execution, and taking the goods which were distrained, and seizing the money from Tarry, and imprisonment of his person, were unjust and illegal: and that the said force still continued by Major-general Boteler, upon the possession of the said lands and stock be removed; and the money and stock, with the increase and proceeds thereof, restored and delivered to the persons from whom they were taken.
Mr. Secretary. I think the gentleman to be a man of worth, and having this severe sentence to be put upon him, I could not but speak my thoughts. To disable him from all employment is the highest, next to life, and you do this unheard.
I understand it is for executing his Highness's commands; through zeal for your safety. What he did was upon occasion of an insurrection, to be in this town and several parts of the nation. There was one Manley, a person greatly engaged in it. He fled, and is now in Charles Stuart's court. He is either actually outlawed, or will be, this term, for treason. His estate was secured, that he being run away, his estate might not run after him. Major-general Boteler got no profit by it. He has served you faithfully and honestly and valiantly. I desire that he may be heard before you pass this severe sentence upon him.
Sir George Booth. He has been heard at your Grand Committee, and did justify himself, (fn. 6) and said, "he had done short of his duty, and should do it, if it were to do, again.
Sir William Wheeler. You have executed part of the punishment, in putting him out of the Commission of the Peace, and now you will go and hear him. If you will hear him, hear him upon the whole, and revoke that part of your sentence which is disgrace.
As to putting him out of the commission of the peace, the Commissioners of the Seal may do it of themselves; but to go and bury him alive, by passing this severe sentence upon him, is strange. Send his charge up to the other House in a formal way, and let him there have his trial, and then it is ripe for your judgment, as high a punishment as any, save death.
Mr. Charlton. The evidence is plain. His offence was committed in his military power, he asserted this he would do, and never dispute it. If this be not the highest offence that can be, I know not what is. He said, "he would never dispute the single person's authority."
Nor is this the highest punishment on this side death. Sending one to Jamaica or Barbadoes, (fn. 7) is much more. You are ripe for the other part of your judgment, and you cannot avoid it, unless you deny your own liberties.
Mr. Annesley (wheeling about (fn. 8) again). I move that his Highness be sent to, by a Committee, to acquaint him with your vote, and refer the military part to him, and, if you please, before further sentence, to hear Major-general Boteler at the bar.
Mr. Goodrick. His confession is no more than if he had confessed it before a justice of peace. The other House will claim a share in this with you. Let Mr. Attorney-general draw up an impeachment against him, and try him legally here.
Mr. Scot. Though I love my life so well, yet I had rather be hanged by the other House, than impeached by you. You have voted his proceeding unjust and illegal. Will you not make your judgment adequate to his crime? You have not yet declared where the militia shall be; so I would have you only declare him incapable of civil and military power.
Sir Henry Vane. You must do this in a judicial way. It is not out of your power yet, how far you will have an oath; or what part of the judicial power you will have. You may declare that he shall not continue. That is your judgment, and there let it lie, till you can put it in effect.
Mr. Secretary. I wish we were upon a foundation of law. This arbitrary act is not the first that has been done; nor the first that you have passed by. The gentleman. Mr. Scot, told you, some days since, he was arrested for 30,000l. for imprisoning of a person. I would hear how he was brought off that action. (fn. 9)
It is without precedent, that, upon a report from a Committee, such judgment should be given in this House, without hearing the parties, or witnesses, in the House. Formerly, when a charge came here against any man, an impeachment was drawn up, and sent to the other House, and was there proceeded upon, as formally as if at the Upper Bench, or other Court.
Lieutenant-general Ludlow. That honourable person said much of this before. (fn. 10) It is every man's duty to attend the Grand Committee. There needs no proof. It is justified; and that he did not so much as he might have done. If not fit for civil, he is not fit for military employment. It is in your power yet, to put him out of your list. I would have you proceed to the other part of your sentence. He seemed to show no reluctancy.
Insurrections are the arrows that fly by night; and if things be not done to prevent them,— (fn. 11). We must consider of times and seasons for safety.
It is aggravated, (fn. 12) that he sinned against mercy or pardon. He converted none of it to his own use. He said, if he had refused, he might have been hanged.
Mr. Speaker. It has not been usual to sentence any person, till you have heard him at your bar. In a case of a Sheriff, upon an undue return, you call him to your bar, and there hear him, and sentence him.
Sir Walter Earle. I would rather have him proceeded against, by way of impeachment. Keep yourselves in a Parliamentary order as much as you can. You ought, by course of Parliament, first to hear him at the bar.
Colonel White. I move, that a general motion thrust not out this particular. I would therefore, have a Committee to inquire after all this gentleman's crimes, and to draw up an impeachment against him. All these things are but discourses.
Mr. Baldwin. I would not have this debate lose its fruits. I would therefore have a Committee appointed to draw up an impeachment, and to consider of a way, how to transfer it to the other House, and how to proceed further in it.
Resolved, that a Committee be appointed to draw up an impeachment against Major-general Boteler; and to consider of a course how to proceed, judicially, against him, and against other delinquents, and to report their opinion thereupon to the House. (fn. 13)
After they had been heard, severally, at the bar, and their reasons and excuses offered by them respectively, to the House, for their non-paying of the several debts charged upon them; by the command of the House they withdrew.
Resolved, that the farmers of the excise and inland commodities, who attended the House this day, do attend the House again to-morrow morning, and that the debate upon this business be adjourned till to-morrow morning, and then resumed, and that nothing else do then intervene.