The Diary of Thomas Burton
15 December 1656

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History of Parliament Trust

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John Towill Rutt (editor)

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1828

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'The Diary of Thomas Burton: 15 December 1656', Diary of Thomas Burton esq, volume 1: July 1653 - April 1657 (1828), pp. 136-148. URL: http://www.british-history.ac.uk/report.aspx?compid=36748 Date accessed: 27 August 2014.


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Monday, December 15, 1656.

A Private Bill read, but I was not there.

This day his Highness conferred the honour of knighthood, upon Alderman Robert Titchborn, present Lord Mayor of London. The like also upon Lislebone Long, Esq., Recorder of London, vide supra, when Sir Wm. Lockhart and Sir James Calthorp were knighted in Journal 11th or 10th Dec supra in 13th fol. back. (fn. 1)

Colonel Edwards was speaking when I came in, about Nayler's business. He had almost done, hut concluded that he could not agree to a lesser punishment' than the highest.

Mr. Butler. I am fully satisfied that the matter of fact is, in the whole, as it is represented. I was once more, inclinable to mercy in this case than now I am. I am fully convinced that, consideratis considerandis, the matter in the lump deserves the highest punishment. The eyes of the whole nation are upon you in this business, and say, Is this the issue of your government and reformation ? Nor are you only to take care of this person's punishment, but to suppress the whole growth of that generation, whose principles and practices are diametrically opposite both to magistracy and ministry; such principles as will level the foundation of all government into a bog of confusion.

But to the end unity in this house may be preserved, there being so much division, my motion is, that some select persons of both judgments might be appointed to find out an expedient to reconcile both.

Major-General Bridge. I confess this to be a very high offence; yet I am not satisfied that the offender should be put to death. I incline rather to the other question, which I conceive most to agree with the sense of the House, and will more answer your end in the suppressing of that party.

Mr. Pedley. I want words to express this offence, it is so high; but I cannot be satisfied neither from the law of God or man that this offence should be punished with death. By our law books, Britton and Bracton, &c., the writ lies de heretico comburendo, (fn. 2) but in this case the first offence is only abjuration.

By the law of God I suppose he is not punishable with death. That law was only positive to the Jewish nation; but, admit this law be moral or perpetual, yet the punishment was but temporary. It being but a circumstance which may esse or adesse sine interitu subjecti, else you must observe the circumstance of stoning and all other circumstances.

As to that argument, that, by the law of nature the offence and punishment of blasphemy is directed. It is true, as the Tusculan Question says, all nations, by the law of nature, must acknowledge a Deity. Yet, because the heathens put persons to death for profaning their idols, that is no argument that the law of nature led them to it. No, it was the depravity of their nature, like their causing their children to pass through the fire to Moloch, &c. If the law of nature had dictated that, then Moses would never have asked counsel of God.

On the whole, I am not satisfied. Unless you make a law, for which you have no precedent, you ought not to put him to death. Go as high as can be in another way, and I think that may be more adequate, if not to the offence, yet to the making of him exemplary, and will gain your end as to the discouraging of that party (who haply will adore him as a martyr if you should cut him off by this censure), and falsify his prophecy of himself that he should lay down his life for this thing.

Mr. Godfrey. I shall willingly cast in my vote, to the abundance that has been spoken, with a saving to your time. I must crave leave to differ from that gentleman that spoke last, and all the rest that have spoken against his death, upon these grounds, that neither law of God, nature, nor of the land, is of force to punish this offender; and yet they conclude with a punishment: If by none of these, how can the conclusion agree with the premises ? Quo Jure shall he be punished at all ?

My opinion is, that as this offence is before you, by all the laws aforesaid, it is punishable with death; I say, by the law of the land also as to the sense and declaration of it.

To clear objections by way of premise. The arguments are either drawn from some defects in the moral, judicial, or ceremonial law, or rather from that which is mixed of the moral and ceremonial, or mixed of them all.

As to the observation of the Sabbath, which was either moral per law of nature, or positivum to the Jews, so it was morale positivum, and it was also ceremoniale as to the Jews. It has been much pressed that if we observe a Jewish law, we must observe the ceremonies too. I shall prove it to you, that to punish sabbath-breaking by death was merely local and ceremonial. 16 Exodus, and in Numbers, gathering of sticks prohibited, and in another place their not being allowed to stir out of their places. I shall prove that law only to be hic and huc, while the Israelites were in the wilderness. God had given them manna, and they presumed to gather it on the Sabbath. Thence came that interdiction not to stir out of their places, their tents. From the like reason was their kindling of fire prohibited, which was merely local, to show them that their whole preservation and dependency was upon miraculous dispensations; both for their food, raiment, &c.

But when they came into the land of Canaan, they were free from this law.

The institution of the Passover was not intended to be performed by them till they came into the land of Canaan. They had no bread in the wilderness, neither leavened nor unleavened. They had no posts to sprinkle, nor doors, nor neighbours to call in, when they were in the wilderness. They were not tied to their places then neither, for they walked abroad to the temple. Our Saviour and his disciples walked in the fields, and plucked the ears of corn too. Nay, our Saviour went to dine with a Pharisee on the Lord's-day, &c. and allowed works of necessity.

Objection. We must, by this rule, make use of all the judicial law, as the water of jealousy, and so bring in witchcraft.

I grant this to be judicial, but it was partly ceremonial, for here comes priest, and tabernacle, and dust, and all, to the decision of this judgment. So that it is clear to me, that the whole ceremonial law is not introduced by this. Though, we shall observe that part of the law which is moral or judicial, we need not observe the ceremoniality.

1. That it is morale naturale, for a blasphemer to die, as well as moral positivum, I shall prove.

The end of the heathens punishing dishonour to their gods by death. It was to vindicate the honour of their god. But it is said, this was the darkness of their nature. I grant it, primarily, that it was darkness to make a stock or stone their god. But it was dearly from the light of nature that they understood a god was not to be dishonoured. How did the heathens know a god by this light ? We may make a good conclusion from wrong premises.

Instance. Nebuchadnezzar and his idol god: his conviction, by a divine influence, that none ought to blaspheme the god of Shadrach, &c. and so I take it to be a morale naturale.

2. A moral positive.

Where the reasons of a law are moral, there the law itself is moral, xiii. Deuteronomy. A person is mentioned, whereunto your case is altogether applicable; a seducer, an impostor, &c. Yours is higher.

There the case is. If a man shall withdraw from God, &c. he shall die the death; "Thou shalt not spare thy wife," &c. Here it may be meant, by objection, that this is not to be done by a judicial manner.

Reasons why this law should reach all nations. 1. "Thou shalt take away iniquity, wherewith the land is defiled." Is there no knd but the land of the Jews to be defiled by this iniquity ? It is as great a defilement in any nation under Heaven where God is worshipped, as to the nation of the Jews; and the same reason why the land should be purged, nor to be punished with less than death, when God says so. The highest sovereignty and majesty has declared how his own excellency should be vindicated. It concerns the Parliament, the nation of England, to take away this guilt.

2. "The Lord your God does prove you," does try you.

Reason. Whether you "love the Lord your God with all your heart." If so, we are under a serious trial, and temptation, indeed. Has God made this the character, the evidence of one that loves God, whereby he will try him ? Are we not now under the same trial ? What we will do with this offender, God expects it from us, as we love the Lord our God so to demean ourselves.

3. Reason from the text. "That Israel might hear and fear, and do no more wickedness." If this be the way that God has made to awaken and stir us up from this wickedness, why should our reasons lay in the balance.

These are God's reasons; and our policies ought not to come in competition. This is against one part of the offence, viz. against a seducer, much more against the other part of the offence, the blasphemer.

Objection. But Moses was ignorant of this law of nature, by putting the man in ward.

Answer. God had undertaken to be the Supreme Legislator, as well as to the judicial part, as to the other. Moses did not suspend that it was to be punished with death. His consultation with God was only about the manner. He should be stoned to death. This was not to the moral part, but only to the judicial.

To clear it by an instance in Moses's own practice in another place. They found a man that gathered sticks in that. 16 Exod. Moses went to consult the manner of his death, which God directed. All the congregation should stone him. It is clear, he knew the kind of punishment, but not the manner, and therefore, and for no other reason, he advised and consulted with God.

Something has been said as to the law of the land. I shall speak in this with all humble submission to all those my learned masters and brethren in the law. Yet I hope nothing I shall offer shall oppose any thing they have said in the general; I should rather have been silent. To say that there is no law of the land, as to the manner of punishment, I do agree. But that there is not a law of the land to punish a blasphemer, and now in force, I must differ. I heard none say so, I think. I knbw no law nor statute which has repealed that law de heretico comburendo. (fn. 3) Does not the common law declare the law against blasphemy, when it provides a punishment comburendo. Admit it differed in the hands whereby it was administered. The ecclesiastical power had it from the civil power, either by Concession or encroachment. It matters not much which, but originally they had it. It is now returned and resumed into its public head whence first it flowed. I hope none will say it does exarescere. I cannot say but the ground and foundation remain. The sense of the common law is known as to the crime. To that it cannot be said to be a law ex post facto. The law you are now to make, is but to the modality. 1 Eliz. 1st chapter, 2d chap. indeed is repealed, but by that statute all ecclesiastical power is resumed to the crown, where heresy and its punishment are declared, so certainly blasphemy, which is the top. It is there directed what shall be heresy; relating to the Scriptures, the Four Councils, or a Parliament, or the Clergy in their convocation.

A provision is made there how it should be punished, yet it is still in the power of a Parliament to declare the punishment. I could rather advise you to proceed in your judicial way, as has been instanced to you in several cases.

Several arguments have been offered to you against punishment by death. I conceive it is no good argument from that text in Zechariah, that the Jews should be more zealous for God than the Gentiles. (God says, "by a foolish nation I will provoke you," the Jews,) to your zeal and jealousy for Christ.

If we expect their conversion, it must not be our impunity, but our zeal that must provoke them. If we would have the prophecy fulfilled, we must do that which is in order to the fulfilling it, provoke them to zeal. It is not expressed in mystical, dark, or obscure terms, but in plain expressions relating to the zeal of the civil magistrates, so zealous, that as to father and mother he shall not spare them. But that objection that it shall be done by their own hands is a clear fallacy. In another place it is said "Thou shalt kill her, even the wife of thy own bosom," or thy children. It is gross to understand that text otherwise than that thou shalt not conceal or plead for any such relation, under such an offence, not to make themselves executioners. That which is spoken against Eli, for honouring his sons more than God; he was a ruler, and yet spared his sons. That brought not only a judgment upon his family, but upon the whole land. The ark departed. Let not; I beseech you, the tendering of your sons, the sons of Belial, though under your pater patriœ.

Your laws have provided against the sons of your nobles per statute 1 Philip and Mary, though repealed, they shall lose their ears and stand in the pillory.

Here is in your question no greater punishment provided for these sons of Belial, than for your own sons.

I beseech you, tender the honour of God in this thing, and divert the judgment from the nation. My motion is for a Bill of Attainder to be brought in, with punishment in it for death, as was first moved.

Colonel Jones: Cons. (fn. 4) Adjourn for an hour or two for refreshing yourselves, and resume the debate.

Mr. Speaker. It has been properly offered you, by a worthy alderman, (fn. 5) that the proper question is for the higher punishment first. Otherwise you exclude their votes, and so he shall not be punished at all, which I hope none intends, that he shall wholly escape. And I must further keep you to it, that when the other question is put, you must not take liberty to speak to that too. I appeal if the whole matter of the debate has not been equal to both questions.

Mr. Downing. I gave my vote that this offender was guilty of horrid blasphemy, &c. and if it were to give again, I should freely give it; and, in my opinion, the offender ought to suffer death. But I hear most part of the debate to incline that this offender should not be punished at all, for, they say, it is not against the light of nature, &c. It is as clear to me, that, by the light of nature, blasphemy against a Deity may be as well discovered as that there is a Deity. The light is the same in the one as in the other. I am not, satisfied by any thing I have heard, but that the civil magistrate has power as well in matters against the first as the second table. It is said, man need not punish, for there is an eternal judgment coming. By this rule no offence need be punished.

That story of the woman taken in adultery, sets forth no punishment at all to be done to her. Christ was not as a magistrate here; they would have had him at that. The like about dividing the inheritance; I have nothing to do in this case amongst you. The like case in the piece of money. He asks no tribute, but appears rather as a servant.

The Jews were come to that height of superstition, by their adoration at the mention of the name of Jehovah, as we Were not long since arrived, at the name of Jesus, (fn. 6) comprehending the whole veneration of the Deity in that title. Paul was as well a murderer as a blasphemer, but nothing was done to him in either offence.

It is clear to me that this offender deserves death, but that there is any law of the land in force against it, I am altogether unsatisfied, having heard of doctors of the law declare themselves so freely in it.

If there were a law, I wish he had been left to it. True, Nebuchadnezzar, by the light of nature, made a law against blasphemy, and so I hope may you; but be punished none by that law till he had committed the offence.

Another instance very remarkable in Ahasuerus, upon that high disobedience of Vashti, which was the more aggravated in circumstances, it being at so solemn a time, and from and to such a person. Ahasuerus does not say "Let her die," &c. for such a high offence, and affront to my majesty. But what does he do ? He advises with his princes and nobles. Said he to the wise men, What shall we do according to law ? He goes no further. It is clear that that prophecy in Zechary relates to the calling in again of Jews only, though it may be analagous to the Gospel. But, if we had no better promise than that, our advice were dangerous, if you should come to make prophecies the ground of a law; nay, from that to condemn a man without a law. By this means we shall fall into James Nayler's principles, to act by our own light within us. I tremble to make this a rule for our proceedings, a bare dark prophecy. We must condemn every false prophet, every one that tells a lie.

I grant, these penal laws made against blasphemy, are in pursuance of the moral law; but how far are these penal laws binding to us ?

There is not one commandment in the whole ten, that any statute in this land is made in pursuance of it. If so, they ought to be at all times alike moral, and not to be altered.

1. Sabbath-day not punished as the Jews did it.

2. Punishment of disobedience to magistrates and parents.

3. Murder. By the Jewish law, a setting upon one to kill him, though he did not kill him, it was death. (fn. 7)

The like concerning smiting a man. That law said, "If a man can but lean upon his staff;" but our law is more penal, for it is murder if he die within such a time.

4. Theft,—punished by them with restitution; it is death.

5. Adultery. Till of late not punished with death, (fn. 8) and that death different. All divines, as well protestant and papist; and others agree, viz: Perkins and others, that it is only in the power of the civil magistrate to vary the punishment according to the necessity. Else, what is left to them ? How can they meet with the increase or decrease of a crime ?

The Jews themselves, to come nearer, have varied in this. Solomon said, "He that steals for hunger shall not be regarded, yet he shall restore seven-fold." Here is a higher punishment than, at the first institution, upon the highest theft. David goes higher for theft, in the case of the ewe lamb, so that circumstances might aggravate such an offence to death. This is left as a record of David's justice. They have varied in the case of sabbath-breaking, for they allowed a sabbathday's journey. He that gathered sticks was put to death; and in another place, (Exodus xvi. 27.) none were put to death for going forth to gather manna, which was a more general offence. The omission of circumcision was punished with death; but, in the 5th of Joshua, we find it dispensed with, because of the general neglect.

The like, in cases of adultery, have varied. The like, in cases of idolatry, have varied. All nations, all ages, have varied the punishment of such offences, according to the conveniency of times and seasons.

Know we not that this is the issue of our great liberty ? Have not Rantism, (fn. 9) and other extravagant opinions, been all this while dispensed withal? There are thousands of this man's opinion, and must we take them all off by a law, or this person for them all, by a law ex post facto. It will not do your end. I am not satisfied that he should be put to death for this offence, but shall agree with the smaller punishment.

Colonel Sydenham, Sir John Reynolds, and Lord Jones. (fn. 10)

Put one Question or other, that, for your honour abroad, you may put an end to it.

Two Justices of Peace could have ended it, and yet it has asked you all this time. For your honour without I would not have you defer it. The House is full enough to put the Question. You have great business upon you.

Major-General Skippon, Colonel Mathews, Mr. Nathaniel Bacon, and Mr. Bedford. Adjourn for a while, or till tomorrow, that the House may be full, before you pass a vote of this nature.

Major-General Disbrowe. If it were proper to restrain all from speaking any more on this business, I could wish it. I would have you adjourn till 11 o'clock, that, in a full House, this great vote may pass without further debate. I have observed nothing but repetitions five days together.

Captain Hatsel. We have had a very serious and Christian debate; yet many have a mind yet to speak to it. I would have none surprised in it. About half an hour since, it was .moved to adjourn. Let us not take any advantage. For my part, I am for the lesser punishment. I desire you would adjourn till the afternoon.

Mr. Bond. You cannot deny any man to speak to it, so you cannot be ripe for the Question yet. I never knew any success of night or afternoon meetings, so I am not for adjourning till the afternoon, but till to-morrow morning.

Major-General Kelsey. Adjourn till to-morrow, and sit night and day till you come to a Question, and not leave it till you have done.

Mr. Margetts. Here is a gentleman behind me that says he has a speech of two hours to make, so that you cannot be near a Question. I desire you will adjourn.

Mr. Bampfield. You will spoil your Grand Committee for religion, if you adjourn till the afternoon. They have not sat these four days.

Major-General Boteler, Colonel Rouse, and Major-General Packer. Adjourn for an hour. It has been firsted and seconded, &c. Let that be your Question.

Sir William Strickland. I could very freely put this upon God's Providence for a Question, at this time, but that the sense of the House is against it; so I desire it may be adjourned till to-morrow.

Mr. Reynell. Adjourn till to-morrow morning.

Lord Lambert. The House will be emptier in the afternoon. Unless you send every man word, how shall they know?

Mr. Berkeley. I desire to second that motion.

Colonel Cromwell. This noble Lord looks upon what is before, but not upon those that are behind; (viz. in the gallery) so, from that reason, of the thinness of the House he cannot judge.

Mr. Highland. It was even now said the House was too thin to pass a vote, and now it is said to be full enough. I desire you would adjourn till to-morrow morning.

The Speaker was putting the Question to adjourn for an hour, but was cried down into the other Question, so

Resolved, That this debate be adjourned till to-morrow morning.

In the Speaker's chamber sat the Committee for Recusants, and perfected it for a Report per Mr. Bedford. Several exceptions were offered to parts of it, by Colonel Mathews, Mr. Goodwin, Mr. Berkeley, Major Porter, Sir Richard Onslow, and myself; but the Bill being gone through, it seems it was not regular to alter any thing.

Footnotes

1 See supra, p. 107.
2 See supra, p. 118. note *.
3 See supra, pp. 118. note *,—137.
4 One of his Highness's Council.
5 Foot. See supra, p. 118.
6 The Nonconformists objected to bowing at the name of Jesus, in the Church Service.
7 This was made capital in England a very few years since, by Lord Ellenborough's Act.
8 An Act had passed May 10,1650, which declares, "that adultery shall he deemed felony, and punished with death."—Parl. Hist. xix. 260.
9 See supra, pp. 29, 49.
10 Colonel Jones. See supra, p. 143, note *.