Friday, December 12, 1656.
An Act for taking away purveyance, and compositions for
purveyance, was this day read the third time, and, upon the
question, passed; and ordered to be offered to his Highness
the Lord Protector, for his consent. (fn. 1)
Per Sir William Strickland. Resolved that the Bill for
Acklam to pay his debts, be read to-morrow morning.
Upon the order of the day.
Mr. Speaker twice read the question for the smaller punishment.
Mr. Bond and Mr. Bampfield. The proper question is for
drawing up a Bill of Attainder, and that the person should
suffer death. It was first moved, and by the Orders of the
House it ought to be put, else you exclude their votes that
are in the negative, (if the question be put for the smaller
punishment) for then he shall not be punished at all.
Alderman Foot and Major-General Gaffe. The first question is most proper; for, however you have drawn up another
question; and offered it, the sense of the House has gone as
much the other way.
Lord Strickland and Colonel Rouse. The question for the
smaller punishment ought to be put, for the sense of the
House has gone that way.
Colonel White. You should put the question whether that
question should be put. This will determine it; you having
fully debated the business already.
Mr. Ashe, Junior. If that question be put, it cannot be
adequate to the offence. If you adhere to your former vote,
that he is a horrid blasphemer, you cannot go to less than the
punishment by death. It is death by the common law, blasphemy and heresy, and it is true till 2d Henry IV. (fn. 2) there
was not a statute for it; but the law is the same.
Mr. Robinson. By this rule all the protestants of England
may suffer death, for I believe according to that rule, we shall
be all heretics.
Mr. Bampfield and Major-General Goffe called him down:
he had spoken before, viz. upon Tuesday night, at the post,
near the bar.
Mr. Bedford. He did not speak to the debate, but only
to the order as I remember; and he was called up against
Sir William Strickland. We must, in a matter of this nature, dispense with our orders in this case, and give every
man his freedom to speak. I desire he may speak.
Major-General Whalley proposed that he might be heard,
but not upon these grounds.
Major-General Disbrowe. Till we be of a better temper, so
as to hear one another speak with patience, I would have us
lay this business aside, and go to something else.
Major-General Kelsey proposed that he might be heard.
Mr. Church stood up to speak, but Mr. Speaker called him
down, unless he spoke to Mr. Robinson's speaking.
Mr. Robinson. By that rule which Mr. Ashe offered, we
must all suffer death. For the law he speaks of was made in
the time of popery, when we were all accounted heretics and
blasphemers. I desire to know whether, if the Papists should
come to be our judges, we might not all suffer by this law. I
like it not, to leave it arbitrary to the judgment of after parliaments to determine what is blasphemy. I shall not undertake to argue the merit of the cause. It has been fully debated. I cannot agree to that punishment by death; nor to
dismember him, which is worse than death, for it is equal in
torment. I had rather err in point of mercy, than exceed in
I can freely concur with your question, and I think that will
answer your end. For it is idleness has brought the fellow to
these high notions; whereas hard labour will bring him to
sleep, and consequently to settlement again. I would have
you make him a false prophet as to the foretelling his death.
I strive in all things to personate Christ. Let us make him a
Mr. Bodurda. I question whether you ought to put either
the one or the other question: for, by this means, you tacitly
admit the power of the civil magistrate in matters of religion,
which has been also debated. I conceive, under favour, that
though this House may make a law, yet they cannot do it
against the law. They arc to keep to the rules of justice. I
cannot say this person is worthy to die, so much as I understand of the business. Pardon my confusion, because of the
complicateness of the question. I never heard of any punishment that had more than two ends:—1. Reclamatio. 2.
Exemplum. If you put him to death you bar Reclamation.
For Example: It is not likely to reclaim his followers in their
errors. It will rather confirm them; for what he told you
at the bar, I suppose, he has told his disciples also,—that he
must lay down his life. I cannot say this is an offence against
the law of nature, but rather against the law of grace.
I cannot say the text is clear in the Old Testament, for to
put a blasphemer to death.
However, we are under a Gospel administration, and no rule
nor warrant there can be found for his punishment. I know
nothing he has professed in the letter, against the law. The
inward thoughts and opinions of men are not to be punished
in this world. This is but only opinion in him.
I remember what was reiterated six or seven times by Mr.
Bampfield, "The mind of God was clear to him." (fn. 3) If you
should call Nayler again, haply he would also say, "The
mind of God was clear to him;" and it may be proved just, by
as many texts. I appeal to all, if any divines or others have
been sent to discourse with him upon his opinions, or that he
has been at any time told that his life was in danger, which
was always the course with heretics, to use all endeavours,
again and again.
I am also against your question for the smaller punishment, not that I would not have him punished at all. It will
look very ridiculous upon your records.
Proceed either by your judicial or legislative way. I doubt
whether you have all the power of the House of Lords transferred to you, or especially in this thing. You did take off
the grand and high delinquent, the late king, by your legislative law, but this was just.
I deny that any part of the Report, as to his excommunication, was fully evidenced to the Committee. But, if he was
excommunicated, this makes more for James Nayler. If you
punish him for this, you must punish twenty thousand as well
as him. You must punish all the Jews; for those that never
were of a church are all one with them that are excommunicated; else, I dare be bold to say, you do unjustly. Will you
suffer the Jews to walk upon the exchange that deny Christ,
and say he is an Impostor, and put this man to death that acknowledgeth Christ, and all that is in the letter ? I would
have him either transferred to law, or, otherwise, make a
speedy law against blasphemers, and you may soon overtake
him by it; and in the mean time keep him close prisoner.
Mr. Bedford. If I could be at peace in my conscience in
this thing, I should not have troubled you; for he that justifies the wicked, and he that condemns the innocent, are
It is told you that it is not granted whether the civil magistrate have any power in matters of religion. I hope there
are few in this House that will deny it.
If I should not bear my testimony against this person, by
telling you he deserves to die, I should be afraid to go out of
I conceive, though we be under a different administration, yet the equity of the old law still remains to us, be it
judicial or otherwise.
After Moses and Aaron had put in ward the person in Leviticus, God decides the question, he shall die. I would
fain have it answered, whether God has not by this made a
law. The other text for gathering of sticks, is the like.
It was very well opened to you, that place of Zechariah; (fn. 4)
and I confess it much satisfies me, as an explanation of the
law. As to the objection, if the law in Deuteronomy must now
be observed, then the father and mother must thrust the blasphemer through. What is understood by the fifth commandment? Is not obedience to the magistrate and all superiors included under the title of father and mother ? But,
from Gospel rules, I am satisfied in this sentence, which I am
ready to give upon this person.
Heresies in the Gospel are enumerated under the works of
the flesh, and so to be punished by the magistrate. Let it
be made out to me that a blasphemer is not an evil doer,
then I will agree the civil magistrate has no power to punish.
Where is there a rule in the Gospel to punish an incestuous
person, or a murderer? Yet I hope none will say these
ought not to be punished with death. The equity of the
law of old, is the foundation of our law against such persons.
That parable of the tares and the wheat growing together,
cannot surely extend to the impunity of blasphemy. It may
as well reach to murder and adultery, for David committed
both, and yet became of a tare good wheat. It is dear to me
that God's honour is more at the stake in this thing, than
ever it was in this nation. It was prayed for you by the
minister (fn. 5) yesterday, that God would clothe you with zeal.
I beseech God to direct you to do things for his glory. For
my part, I dare not but freely deliver my opinion, that this
person ought to die, and that is my humble motion.
Major-General Kelsey made a long repetition of the former
The gentleman was mistaken who said the first punishment
of sabbath breaking was not till the person was taken gathering of sticks. The law was made before, that the sabbath
breaker should die the death. Yet so tender was Moses in
the case of blood, that though he had a law for it, he did not
do execution till he had asked counsel of God. There are
but four texts, four examples in Scripture in this case; yet
God, in them all, was consulted.
There may be a higher blasphemer than this man. He
that cursed God was put to death; but you will hardly bring
that to this case.
Nor was that blasphemy punishable, by the principles of
nature, with death, till the law was instituted. Though the
light of nature convince men of the sin of blasphemy, yet not
of the punishment; though the sin was the same from the
beginning against the Deity. This is a very high blasphemy, and a dishonour to God, and scandal to Christian re
ligion. But it cannot possibly be reduced to that case, so
much insisted upon. A vast difference between this, and
that of cursing the Creator. Conscience would fly in his
face; but to resist or speak evil of Christ, is not so great a
blasphemy, for we cannot receive him unless it be given us
of the Father.
No body will be against exasperating this offence under the
Gospel; but who shall be judge? I would fain have those
gentlemen make it out, how those texts in the Old Testament and the New, do quadrare.
I hope that common law is out of doors, that was but too
common. We shall never rake that out of the ashes. It was
so common, that it had left no Protestants in England. They
were the heretics which that law designed as the gentleman
mentioned. (fn. 6)
It may be any man's case here. He knows not how to
walk securely; if a man shall be punished by a law ex post
facto. To make a law in any case to this purpose is dangerous, much more in a matter of this nature, which is so dark
and difficult to know what the mind of God is in this thing.
The Christians in New England, I had it from a good hand,
do much wonder at the zeal of this Parliament in this case. (fn. 7)
I grant this is no argument to us, what they do; yet it may
serve as well as that precedent which was urged to us from
the Parliament of Burgos. [Bourdeaux.] (fn. 8)
It is greatly to be doubted, whether this person that has
so far apostatised and fallen upon the rock, but he shall be
broken in pieces. I have little hopes of him. Yet who can
tell what hard labour and humbling of him may bring him
to; but to take his life I cannot agree.
Colonel Briscoe. The distinction of blasphemies offered to
you, may be good in other cases; but, under favour, in this
case there needs no distinction.
The Turks punish the Christian for blasphemies, and so
the Jews. The arguments drawn from the consequences are,
1. No natural consequences, but only accidental; so that we
ought not to fear any danger from that precedent. 2. It is
said, he is under a delusion, therefore to be pitied. And say
he does it, ignoranter, not per ignorantiam: this should rather
aggravate than extenuate. Do we not say in Indictment for
murder, "by the instigation of the devil ?" (fn. 9) I appeal to
Again. This man's offence is more than an Atheist's or a
Pagan's, for he had received the light; which divines call a
species of sin against the Holy Ghost.
My reasons why the person ought to die:—
1. I presume the common law, in this case, may be in
force. The difference was de modo prosequendo.
You may proceed by the legislative power, and you cannot
take a better rule than that in the Old Testament, your
Master's rule, which is like ipse dixit with Pythagoras's own
scholars, or like est Aristotelis in the University.
But it is said, that of cursing God is a greater blasphemy.
I grant it to be so in itself, but the circumstances of it may
extenuate; for it was in his passion that he committed that
cursing; but this offence of Nayler's is deliberate. The
punishment in that text is reiterated, morte moriatur.
That of death for gathering sticks on the Sabbath-day,
was very well answered to you by the gentleman over the
way. That was but singularis, and so ought not to be
drawn into precedent.
3. This man's principles and practices are destructive to
human society, as by destroying those of their own sect. Do
not they all hold against the essence of Government ?
4. How pernicious have these men already been; how
spreading, infectious, and contagious. The magistrates are
nursing fathers, and ought to see to this. They increase
daily. They have neglected the opportunity of all admonition, and so are left to punishment.
5. It robs God of his glory: instance Achan's case, &c.,
and God will not give his glory to another. He is jealous of
it. I am as much for mercy as any man; but in this case,
I cannot go less than death; but with this caution, that I
would have him reprieved for a month, or six weeks, or
longer, and send some divines and others to him, that, if
possible, he may be recalled and restored, &c.
Lord Whitlock. Adjourn, for I see many desire to speak;
and in this weighty business it is fit every man be heard out,
which you have not time to do now.
Colonel Shapcot stood up to speak, but was cried down,
but cleared himself that he had not spoken.
Sir William Roberts. If you hear Colonel Shapcot to the
merits of the cause, you ought to hear Lord Whitlock first,
for he only moved conditionally to adjourn, otherwise, that
he might speak.
Colonel Shapcot. I shall not trouble you long. I hope
it is agreed upon, on all hands, that by the old law this very
blasphemy is punishable by death. The question is now,
whether you may pass that sentence upon him. In my own
private opinion, I am satisfied for this offence Nayler ought
But I sit here in a court, and upon that account I cannot
give my vote that you shall pass a sentence of death upon
him; that is, if you proceed judicially. I doubt you, having not a law, cannot properly do it in this way.
My motion was to go in the way of a Bill. Then you
might have properly passed this sentence upon him; but you
are out of that way now.
For my part, I think the smaller punishment will be sufficient disgrace to the offender, and that would content me. I
am not satisfied from any precedent or law, now in force, that
you can proceed judicially to work in this matter. Now
that the power of the House of Lords or the Ecclesiastical
power is in this house, I very much doubt whether you can
take up the legislative power in all cases. Those precedents,
before cited, do very much differ from this case in my judgment.
The power sticks most with me of any thing. I confess,
if I were satisfied in that, I should be of another opinion.
But if you please to put the first question, it will soon be
decided, and you must come to that at one time or other.
Mr. Nathaniel Bacon. I am for propounding of a new question. Otherwise, you exclude their votes that are for a higher
punishment; for if they give their negative, and it pass, then
the fellow shall have no punishment at all. But seeing that
many stand up with a desire to speak, and others will speak
to it, I desire you would adjourn the debate till to-morrow.
Resolved, That this debate be adjourned till to-morrow.
We were at dinner with Lord Richard Cromwell, per special invitation; Mr. Bampfield and divers others. Lord
Richard was very clear in passing his judgment that Nayler
deserves to be hanged, and he said he very much slighted
Shapcot's motion. He, for his part, was clear in that Nayler
ought to die.
This afternoon the grand Committee, but I was not there.